Kishore v Tax Practitioners Board

1. The appeal filed on 28 October 2016 from the decision of the Administrative Appeals Tribunal dated 30 September 2016 is dismissed as incompetent.
2. The appellant pay the respondent's costs, as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 These reasons consider and determine an objection by the respondent to the competency of an appeal purportedly brought under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). The jurisdiction of the Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth) or under s 39B of the Judiciary Act 1903 (Cth) was not invoked. 2 On 30 September 2016, the Administrative Appeals Tribunal answered what it described as certain threshold questions and listed the matter for directions "at the earliest opportunity". 3 The decision under review by it was described by the Tribunal at [3]-[4] as follows: By letter dated 10 October 2014 the Tax Practitioners Board (the Board) notified Mr Kishore that it had decided to terminate his registration as a tax agent, with effect from 14 November 2014. The Board's decision was based upon its becoming satisfied that Mr Kishore had breached s 30-10(1) of the Tax Agent Services Act 2009 (the Act) by not acting honestly and with integrity towards Charltons around the time he left that firm, in the circumstances described by Pembroke J in the Supreme Court of New South Wales in Charltons CJC Pty Ltd v Fitzgerald [2013] NSWSC 350. Mr Kishore has applied to the Tribunal for review of the Board's decision to terminate his registration as a tax agent. 4 On 28 October 2016, a notice of appeal under s 44 of the Administrative Appeals Tribunal Act was filed in this Court stating as follows, as amended by leave given in the course of the hearing: The Applicant appeals from the decision of the Administrative Appeals Tribunal in the Taxation and Commercial Division, as contained in paragraphs 24 and/or 26 of the Administrative Appeals Tribunal's judgment published 30 September 2016 ("the Judgment"). The underlining indicates the amendment. 5 The Tribunal described, at [6], the background and the questions as follows: It was agreed, after hearing preliminary oral submissions, that a convenient way of approaching the resolution of the dispute between the parties was for the Tribunal to address a series of 'threshold questions' formulated by the parties and accepted by the Tribunal as central to the dispute. Those questions are: 1. What is the conduct relied upon by the Respondent to uphold the decision under review (the Conduct)? 1A. Is the Conduct a tax agent service (as defined)? 2. Whether the Conduct is capable of breaching section 30-10(1) of the Act? 3. Whether the Respondent (or its authorised delegate) has failed to comply with subsection 60-125(3) of the Act, by failing to make a decision under subsection 60-125(2) within the prescribed timeframe? 4. Whether the Respondent did properly delegate its power to commence an investigation so as to permit the instant investigation? 5. Whether the decision to terminate the Applicant's registration as a tax agent contravenes the Act because it was purportedly made by a committee of the Board acting without appropriate delegation? 6. Whether the decision to terminate the Applicant's registration as a tax agent contravenes the Act because it was purportedly made by the Board, the Board having delegated that power to a committee? 6 As referred to in the amended notice of appeal, [24] of the Tribunal's reasons was as follows: In noting that the Code 'regulates your personal and professional conduct as a registered tax agent …' (emphasis added), the Guide clarifies that the purpose or object underlying s 30-10(1) in particular, but more broadly the entire Code, is to uphold standards in all aspects of a person's conduct as a registered tax agent, whether that conduct is personal conduct as a registered tax agent, or professional conduct as a registered tax agent. It follows that the reach of s 30-10(1) is not confined in the way contended for by Mr Kishore. If it were so confined - so as to require honesty and integrity only in relation to the provision of tax agent services - then one would expect the remaining subsections of s 30-10 to be similarly confined. That would have the effect of depriving subsection (2), at least, of any meaning at all. (Original italics.) 7 As also referred to in the amended notice of appeal, [26] of the Tribunal's reasons was as follows: I conclude that the Conduct is capable of breaching s 30-10(1) of the Act. The answer to question 2 is 'yes'. The Act referred to was the Tax Agent Services Act 2009 (Cth). Section 30-10 of that Act set out the Code of Professional Conduct. As set out at [5] above, the "Conduct" was stated at [6] of the Tribunal's reasons to be the conduct relied upon by the respondent to uphold the decision under review. 8 By notice filed on 4 November 2016 the respondent objected to the competency of the appeal on the ground that the decision referred to in [26] of the reasons of the Tribunal did not constitute the effective decision or determination of the application for review that was before the Tribunal and, therefore, no appeal lay from that decision under s 44 of the Administrative Appeals Tribunal Act. In light of the late amendment to the notice of appeal, I read the objection to competency as including the decision referred to in [24] of the reasons of the Tribunal. 9 Section 44 of the Administrative Appeals Tribunal Act provides relevantly as follows: 44 Appeals to Federal Court of Australia from decisions of the Tribunal Appeal on question of law (1) A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding. … Appeal about standing (2) Where a person has applied to the Tribunal for a review of a decision, or has applied to be made a party to a proceeding before the Tribunal for a review of a decision, and the Tribunal decides that the interests of the person are not affected by the decision, the person may appeal to the Federal Court of Australia from the decision of the Tribunal. … Jurisdiction (3) The Federal Court of Australia has jurisdiction to hear and determine appeals instituted in that Court in accordance with subsections (1) and (2) … 10 The basis of the notice of objection to competency was the decision of the Full Court in Director-General of Social Services v Chaney [1980] FCA 87; 47 FLR 80 (Chaney). The question in that case was whether an appeal lay under s 44 from a ruling by the President of the Tribunal that the Tribunal had jurisdiction to review the decision of the Director-General of Social Services that Mrs Chaney was not entitled to a widow's pension. Deane J said at 103: The conclusion which I have reached is that, subject to the qualifications mentioned below, an appeal under s 44(1) of the Act lies only from a decision of the Tribunal which constitutes the effective decision or determination of the application for review. Ordinarily, such a decision will be the final decision formulated in accordance with the provisions of s 43 of the Act. The qualifications referred to are an appeal pursuant to s 44(2) from a decision that the interests of a person are not affected by a particular decision and the case where the proceeding before the Tribunal can properly be divided into two or more separate parts in respect of which independent "decisions" may properly be given. Justice Fisher agreed and added, at 107: Under the Act the statutory process is complete when the Tribunal either decides to refuse to review the decision of the administrator or makes a decision in writing affirming, varying or setting aside the decision (s 43(1)). In my opinion, it is such a decision as aforementioned which the legislature has in mind in conferring on this Court by s 44(1) a right to hear an appeal on a question of law "from any decision of the Tribunal in that proceeding". It was ordered that the appeal to the Federal Court from the ruling of the President of the Tribunal be dismissed as incompetent. 11 Both parties were content to have the issue of the competence of the appeal argued at the first case management hearing. Short outlines of submissions were filed.