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PRACTICE AND PROCEDURE - application dismissed - abuse of process - matter resolved between parties but Applicant still seeks matter to be heard

Administrative Appeals Tribunal Act 1975.

In Re The Judiciary Act 1903-1920 and In Re The Navigation Act 1912-1920 (1921) CLR 257.

Irving, Helen Advisory Opinions, the Rule of Law, and the Separation of Powers [2004] MqLawJl 6; (2004) 4 Maquarie Law Journal 105.

1. Set out below are written reasons requested by the Applicant following my dismissal of his application for review upon the basis that to allow the application to continue was an abuse of the Tribunal's process.

1. On 18 March 2016 the Australian Taxation Office (ATO) issued the Applicant a Notice of Assessment for the 2014-2015 financial year to which he objected on 8 March 2018.
2. On 27 June 2018 the ATO did not allow the Applicant's objection.
3. On 17 August 2018 the Applicant applied to have the Tribunal review the assessment by the ATO. His Statement of Facts, Issues and Contentions dated 1 March 2019 included the following:

Issues

Applicant considers that the issues for the Tribunal to determine are as follows:

1. Whether the Respondent correctly included a reported gross distribution of $4,608.44 made to me by Nufarm Finance (NZ) Limited in its calculation of income that is assessable to me for the year ended 30 June 2015

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Contentions

Applicant contended as follows:

1. I want the Tribunal to conclude that the reported gross distribution of $4,608.44 made to me by Nufarm Finance (NZ) Limited in the year ended 30 June 2015 does not have an Australian source (and accordingly is not assessable to me for taxation purposes given that I am a temporary resident for Australian income tax purposes)
2. Determining the source of income has been considered in a number of Australian court cases including Nathan v Federal Commissioner of Taxation and Spotless Services Ltd v Federal Commissioner of Taxation. The cases have referred to a number of factors suggested as being of importance in determining the source of income.
3. The matter was set down for hearing on 14 February 2019, but this hearing was vacated and the matter was remitted for Alternative Dispute Resolution conferencing on 1 July 2019.
4. On 24 January 2020 the Respondent amended the Applicant's assessment to give effect to his contentions in relation to his assessment. On 28 January 2020, the Respondent notified the Tribunal that the amendment to the Applicant's 2015 income tax return had been processed, providing an additional $150 credit which I assume had been requested by the Applicant.
5. The Respondent's representative further noted:

"Subject to the Tribunal's views, I understand this should bring the controversy in that a number 2018/4607 to an end?

I confirm I will write to [JVSG] explaining the details of the amendments that have been made..."

1. On 13 February 2020, the Tribunal wrote to the Applicant notifying him that a further amendment to his 2015 income tax return had been processed.
2. The Tribunal also indicated that if he was satisfied with the Respondent's action he may care to withdraw his application.
3. On 19 March 2020, the Respondent notified the Tribunal that there had been no agreement entered into with the Applicant. The Tribunal was also told that several draft Section 42C agreements were provided seeking to finalise the matter wholly in the Applicant's favour, but he did not respond.
4. On 20 March 2020 the Tribunal wrote to the Applicant in the following terms:

I am writing to you about your application for review.

The decision under review (tax assessment for the 2014-2015 financial year) has been amended by the original decision maker and therefore it appears there is no jurisdiction for the Tribunal to review the decision.

Your application may be dismissed under section 42A(4) of the Administrative Appeals Tribunal Act 1975.

If you do not believe that your application should be dismissed, please contact the Tribunal within 14 days of the date of this letter.

If you need any further information or assistance, please contact us on the telephone number below...

1. On 2 April 2020 the Tribunal received a letter from the Applicant dated 31 March 2020, stating:

Further to a letter from the Tribunal dated 20 of March 2020 I do not believe that my application referred to above should be dismissed.

1. On 3 April 2020 the Tribunal wrote to the Applicant in the following terms:

Thank you for your letter dated 31 March 2020, received by the Tribunal on 2 April 2020.

As advised previously, as the assessment has been amended in accordance with the original application, the Deputy President proposes to dismiss this application as it now lacks utility.

Unless you make detailed written submissions to the contrary to be received by the Tribunal by close of business (5:00 pm) Tuesday 14 April, the matter will be dismissed.

1. No correspondence was received in reply to the above letter and accordingly on 12 May 2020 I signed the following order:

The Applicant has lodged an application for a review of a decision.

The Tribunal is satisfied that the application for review of the decision is an abuse of process of the Tribunal.

The Tribunal, pursuant to section 42B(1)(c) of the Administrative Appeals Tribunal Act 1975 dismisses the application.

1. The Administrative Appeals Tribunal Act 1975 grants the power to dismiss an application on several grounds as set out in s42B which states:

42B Power of Tribunal if a proceeding is frivolous, vexatious etc.

1. The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:

(a) is frivolous, vexatious, misconceived or lacking in substance; or

(c) is otherwise an abuse of the process of the Tribunal.

1. If the Tribunal dismisses an application under subsection (1), it may, on application by a party to the proceeding, give a written direction that the person who made the application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction.
2. The direction has effect despite any other provision of this Act or any other Act.
3. I considered that I could have dismissed the application for any of the reasons set out in s42B (1) (a), (b) or (c), but chose to so do pursuant to s42B(1) (c) because I considered the applicants desire to continue the proceedings was an abuse of the process of the Tribunal. This is because, inter alia, the matter had been resolved but the Applicant then appeared to be seeking an advisory opinion from the Tribunal.
4. It is a well-settled principle that courts and tribunals do not give advisory opinions. I have briefly referred to a relevant precedent and article below:
5. In In Re The Judiciary Act 1903-1920 and In Re The Navigation Act 1912-1920 (1921) CLR 257, Knox CJ and Gavan Duffy, Powers, Rich and Starke JJ when asked to rule on the validity of Part XII of the Judiciary Act 1903 (Cth) which purported to vest advisory opinion jurisdiction in the Court, noted at 265

"In our opinion there can be no matter within the meaning of the section unless there is some immediate right, duty or liability to be established by the determination of the Court. If the matter exists, the Legislature may no doubt prescribe the means by which the determination of the Court is to be obtained, and for that purpose may, we think, adopt any existing method of legal procedure or invent a new one."

1. In other words, in the context of this matter, as there is no longer an issue to be determined between the parties there is nothing for the Tribunal to determine.
2. For expanded discussion of the above principles see Irving, Helen Advisory Opinions, the Rule of Law, and the Separation of Powers [2004] MqLawJl 6; (2004) 4 Maquarie Law Journal 105.
3. Accordingly, I was not prepared to allow the matter to remain extant and made the order set out at paragraph [14] above.

I certify that the preceding 21 (twenty-one) paragraphs are a true copy of the reasons for the decision herein of A G Melick, AO SC, Deputy President.

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