CONSIDERATION
40 The applicant's challenge to the respondent's decision, recorded in the May 2016 letter, can only succeed if, in fact, the alleged "decision" had been made on or about 8 December 2014 and that decision rendered the impugned decision wholly otiose. There can be no doubt that, on or about 8 December 2014, Mr Celantano, as an authorised officer, made a number of decisions which were recorded in the letter of that date. The question is whether he made the alleged decision to accede to Mr Pintarich's application for remittal of GIC under s 8AAG of the TA Act.
41 Unless such a decision had been made neither of the grounds advanced for impugning the May 2016 decision can be sustained.
42 The alleged 8 December 2014 decision is not the subject of the present challenge. Nonetheless, it is relevant to determine whether that alleged decision, had it been made, would have been reviewable under the ADJR Act. Unless it was made and was a decision which bore the characteristics of a reviewable decision for the purposes of that Act, it is difficult to see how it could have had any impact on the decision impugned in this proceeding.
43 In order for a decision to be reviewable under the ADJR Act "it will generally be necessary to point to a decision which is final or operative and determinative, at least in the practical sense, of an issue of fact falling for consideration; a conclusion reached as a step along the way in a course of reasoning to an ultimate decision ordinarily will not qualify as a reviewable decision": see Griffith University v Tang (2005) 221 CLR 99 at 122; [2005] HCA 7 at [61] (Gummow, Callinan and Heydon JJ) summarising the principles earlier propounded by the Court in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 337 (Mason CJ, Brennan and Deane JJ agreeing).
44 The making of a final and operative decision and its promulgation in some form must, necessarily, be preceded by a process of consideration and evaluation of relevant facts. The question of when these processes lead to the making of a reviewable decision was considered by Greenwood J in Guss v Commissioner of Taxation (2006) 152 FCR 88 at 107-108; [2006] FCAFC 88 at [75]-[76]. His Honour there said:
75 It seems to me, consistent with authority, that a "decision of an administrative character" in its primary sense (leaving aside for the moment the extended meaning of the term by force of s 3(2) of the ADJR Act) must exhibit two central features. First, there must be a determination, a resolution, a position taken, a judgment made by a decision-maker. Secondly, that determination must be the emanation of a consideration by the decision-maker or structural organs of an organisation charged with making a determination, of a matter of substance that necessarily involves some feature of deliberation, assessment or analysis that, in the ordinary course, would comprehend those facets of decision-making behaviour described at [71].
76 In a number of cases in the Federal Court of Australia, considerable important intellectual effort has been engaged in seeking to plot the point on the continuum at which a decision arose. Was the "decision" the overt act of communication such as the despatch of a letter, the making of a ruling, the granting of a bylaw, the issue of a notice or, was the decision to be found in the pre-existing deliberative behaviour or "mental process" (Evans v Friemann (1981) 53 FLR 229 at 233, per Fox ACJ) or "thought processes taking place in the mind of the person when considering whether or how to exercise a power or to perform a duty of an administrative character under an enactment" (Ricegrowers Co-op Mills Ltd v Bannerman (1981) 56 FLR 443 at 453 per Northrop J). In Ricegrowers, Northrop J took the view that a decision for the purpose of the ADJR Act must reflect a conjunction of such thought processes and "some overt act by which the conclusions reached as a result of those thought processes are manifested". His Honour further observed (at 543) that:
The manifestation may take many different forms. It may take the form of a verbal or written communication of the conclusion to the person affected. It may take the form of no action being taken when otherwise a definite action would have been taken. In the present case, the conclusion reached by the Chairman of the Commission was that a notice under s 155 of the Trade Practices Act be served on Ricegrowers. The manifestation of that conclusion took the form of the service of the s 155 notice on Ricegrowers.
45 The question whether or not Mr Celantano, or anybody else, made the alleged decision in December 2014 is one of fact to be determined on the evidence before the Court. The 8 December 2014 letter may provide evidence that a decision had been made but the letter is not, itself, that decision.
46 The letter does not, in terms, refer to or state that it was responsive to the application, made on Mr Pintarich's behalf, on 24 November 2014. Rather it appears to have been responsive to the communications between Messrs Smith and Pintarich on the one hand and Mr Celantano on the other on or about 5 December 2014. As already noted there was broad agreement about what had passed between them subject to some ambiguity about whether the proposed resolution related to Mr Pintarich's primary indebtedness or whether it extended to interest accrued on that debt. Although, at trial, Mr Celantano had no independent recollection of his conversation with Mr Pintarich on 4 or 5 December 2014, his contemporaneous note recorded that the payment of Mr Pintarich's primary tax should be made in full "whilst we consider the remission of general interest charged". The proximity of those discussions (which took place on a Thursday or Friday), the notation entered into the case comments on Friday 5 December 2014 and the issuing of the letter on the following Monday 8 December 2014 suggest that Mr Celantano was seeking, in that letter, to record what he understood to be the outcome of those discussions and exchanges. It is unlikely that he would personally have proceeded to make a decision on the waiver application over the weekend. His subsequent conduct is inconsistent with him having done so. No other alleged decision-maker has been identified. There is, for example, no evidence that the first Deputy Commissioner, whose name appeared on the signature block of the letter dated 8 December 2014, had personally made a decision on the waiver application at that time.
47 A strained reading of the 8 December 2014 letter may support the contention that it recorded a decision that the Australian Taxation Office would accept the sum of $839,115.43 on or before 30 January 2015 as full and final settlement of all Mr Pintarich's tax debts and interest charges owing on that day. I say "strained" because a more natural reading of the text, when understood against the background of the previous week's exchanges, is that this figure was made up of the $821,762.75 which was Mr Pintarich's primary debt on 8 December 2014 together with anticipated interest accruing between then and 30 January 2015. This calculation is supported by the interest charges recorded in the statements of account issued to Mr Pintarich on 7 and 14 January 2015. The latter notice, for example, contained a GIC of $2,198.15 which had accumulated between 2 and 8 January 2015. There was no specific mention, in the letter, of interest which had accumulated prior to 8 December 2014.
48 I am not unmindful of the second Deputy Commissioner's view, conveyed to the applicant by letter on 18 August 2015, that the 8 December 2014 letter had been "issued in error". That Deputy Commissioner said that the figure of $839,115.43, which appeared in the 8 December 2014 letter, "did not include the entire amount of GIC which had accrued on the entire amount of outstanding debt up to and including 8 December 2014". I accept this as an implicit recognition, by the Australian Taxation Office, that the language used in the 8 December 2014 letter might be open to such a construction. Such recognition is also implicit in Mr Celantano's acknowledgement that the terms of the 8 December 2014 letter did not reflect the outcome of his respective discussions with Messrs Pintarich and Smith. A more explicit acknowledgement appears in the letter of 13 May 2016, where the first Deputy Commissioner states that the "payout figure" in the 8 December 2014 letter "may be construed as misleading". It does not follow, however, that the 8 December 2014 letter should be so construed. This lack of clarity may explain the consternation and uncertainty which followed the issue of that letter but it does not, necessarily, evidence the making of a decision to waive all accumulated GIC.
49 The question remains whether Mr Celantano, or anybody else, such as the first Deputy Commissioner, on or about 8 December 2014, made a reviewable decision to accede to Mr Pintarich's 24 November 2014 application for remission of all GIC then owing by him. I do not consider that such a decision was made.
50 The making of any such decision would have required the decision-maker to turn his or her attention to the application and the reasons advanced for it, to decide whether one or more of the relevant parts of s 8AAG had application and to be satisfied that he or she had the necessary authority to make the decision. None of this occurred. As mentioned, there was no evidence that any other officer, or the first Deputy Commissioner personally, had considered or determined the application at the relevant time. Mr Celantano said that he made no decision on the application. He said that he had not done so because he did not consider that he had the necessary authority to waive the GIC amount involved. In this he was mistaken. Nonetheless, this was his state of mind at the relevant time. He acted consistently with this view. By email dated 23 February 2015, he told Mr Smith that the Australian Taxation Office was reviewing the application for waiver of the GIC. He subsequently prepared submissions in a memorandum dated 21 April 2015 for consideration by a more senior officer whom he believed had the necessary authority and made recommendations in that memorandum as to the disposition of Mr Pintarich's waiver application. This led to the making of a decision to refuse the application. The senior officer approved Mr Celantano's recommendation and made the decision. Mr Pintarich was advised of the decision by letter dated 15 May 2015.
51 On 17 June 2015 Mr Smith made a detailed submission on behalf of Mr Pintarich correcting what he said were errors of fact in the 15 May 2015 letter and renewing the application for waiver of accumulated GIC. In one paragraph, on the first page of the six page document, Mr Smith drew attention to the fact that the reasons for the 15 May 2015 decision, recorded in the letter of that date, did not refer to the 8 December 2014 letter and, particularly, to the advice that the first Deputy Commissioner would accept a lump sum payment on or before 30 January 2015 which included an estimated GIC amount calculated to 30 January 2015. Mr Smith did not, however, assert that any decision had been made on 8 December 2014 to waive all Mr Pintarich's accrued GIC.
52 On 18 August 2015 the second Deputy Commissioner responded to Mr Smith's submissions of 17 June 2015 and, again, refused the application for waiver. In doing so, that Deputy Commissioner, as already noted, made the statement that the 8 December 2014 letter had been "issued in error".
53 Not satisfied, Mr Smith made a further submission seeking remission of outstanding GIC. He did so by letter dated 16 October 2015. This letter was eight pages in length and addressed some of the s 8AAG criteria. On the second page, Mr Smith specifically reserved Mr Pintarich's rights in relation to the decision said to have been recorded in the 8 December 2014 letter. He stated:
[Mr Pintarich] reserves his right to dispute both the correctness of your assertion that the Commissioner can retrospectively treat the letter of 8th December, 2014 as issued in error and the Commissioner's attempts to impermissibly repute [sic] the agreement actually made by him on the 8th December, 2014.
54 These further submissions resulted in the first Deputy Commissioner's impugned decision conveyed by letter on 13 May 2016.
55 The history of the dealings between Mr Pintarich (and his representative) and the Australian Taxation Office after 8 December 2014 is not determinative of the question of whether a decision of the kind alleged was made on that day. It is, however, clear that Mr Celantano, the other officers in the Australian Taxation Office who were involved and the Deputy Commissioners in whose names decisions were made, considered that Mr Pintarich's application of 24 November 2014 remained unresolved at least until the 15 May 2015 decision to refuse the application. It was that decision which, thereafter, Mr Pintarich sought to reopen, a process which culminated in the making of the impugned decision. No such process preceded the making of the agreement recorded in the 8 December 2014 correspondence.
56 The making of a decision required a process of deliberation, assessment and/or analysis on the part of Mr Celantano with a view to deciding whether or not to grant Mr Pintarich's application for waiver of the GIC. He did not undertake any of those facets of decision-making in regard to the application prior to the issuing of the 8 December 2014 letter. Such thought processes which did engage him related to the proposals which had been canvassed with him during the previous week relating to the payment of the outstanding tax liability together with such interest as might accrue between the time at which he made his decision and the payment. The 8 December 2014 letter was intended to confirm Mr Celantano's appreciation of what had been agreed. Unfortunately, its final draft was not reviewed by Mr Celantano before it was despatched and did not employ language that he might, in retrospect, have preferred to use to record the agreement. The letter was not and did not purport to be the communication of a decision relating to the GIC waiver application. Even if it be construed in the manner contended for by Mr Pintarich, the surrounding circumstances did not evidence the making of such a decision by Mr Celantano or any other person.
57 As no decision was made on 8 December 2014 to remit the applicant's GIC liability, there is no reason why the impugned decision, conveyed by letter on 13 May 2016, should not stand and operate according to its terms.