//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2010] FCAFC 139
respondent. Time for filing the notice of motion extended; application for leave to appeal dismissed with costs; orders of the primary judge not disturbed.
Rawson Finances tried to use the special judicial review law to stop the Tax Office from suing it for unpaid tax and to challenge the Tax Office's refusal to put off the lawsuit. A judge threw out the case because those choices by the Tax Office were not the kind of official decisions that can be reviewed under that law. Rawson asked the appeal court for permission to challenge that ruling. The appeal court said the first judge's orders were only preliminary, not final, so permission was needed. After checking the law from a High Court case, the appeal judges decided the first judge was clearly right because the Tax Office's decision to sue or not to wait did not change anyone's legal rights or duties. Therefore permission to appeal was refused and Rawson had to pay costs.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,297 words · generated 24/04/2026
3 cited instruments linked from this judgment.
Rawson Finances Pty Limited faced recovery action from the Deputy Commissioner of Taxation following the making of tax assessments. It requested that the Commissioner defer commencing legal proceedings to recover the assessed liabilities. The Commissioner declined that request. By letter dated 6 November 2009 the Commissioner communicated both the refusal to defer and the intention to commence recovery proceedings. Rawson Finances responded by filing an application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (AD(JR) Act) on 30 November 2009. It contended that the Commissioner's decisions were decisions of an administrative character made under an enactment and were therefore amenable to review.
The primary judge (Yates J) struck out the AD(JR) Act application on 31 May 2010, dismissed two notices of motion (one seeking a statement of reasons under s 13 of the AD(JR) Act and the other seeking leave to file an amended application), and ordered Rawson Finances to pay the Commissioner's costs. His Honour concluded that neither the decision to commence recovery proceedings nor the refusal to defer those proceedings satisfied the statutory description of a "decision to which this Act applies" within s 5(1) of the AD(JR) Act. Paragraph 4 of the orders gave leave to file an amended application seeking relief under s 39B of the Judiciary Act 1903 (Cth), but that aspect was not challenged.
Rawson Finances then sought leave to appeal to the Full Court. Because there was doubt whether the primary judge's orders were interlocutory or final, it also filed a protective appeal. On 25 November 2010 the Full Court (Ryan, Stone and Jagot JJ) extended time for filing the notice of motion seeking leave, heard the matter urgently, and delivered judgment the same day. The Court determined that the orders were interlocutory, applied the leave-to-appeal test from DÉcor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, found the primary judge's reasoning free of sufficient doubt, and dismissed the application for leave with costs. The reasons comprise only nine paragraphs and focus tightly on jurisdiction, the character of the orders, and the application of High Court authority.
The Full Court began by classifying the primary judge's orders. It held that a decision that the Court lacks jurisdiction under the AD(JR) Act is interlocutory because it "goes no way to determining the underlying claim for relief" ([3]). The underlying claim was the setting aside of the Commissioner's decision to institute recovery proceedings or to decline to defer them. Two earlier Full Court authorities were cited in support: Alexakis v Secretary, Department of Employment and Workplace Relations [2009] FCAFC 124 at [28] and the discussion in Meredith v Commissioner of Taxation (2002) 125 FCR 308 at [23]-[28].
Because the orders were interlocutory, leave was required. The Court applied the cumulative test stated in DÉcor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397: (1) whether the decision is attended by sufficient doubt to warrant reconsideration by a Full Court, and (2) whether substantial injustice would result if leave were refused supposing the decision wrong ([4]). Both limbs must be satisfied. The Court found the first limb not made out and therefore did not reach the second.
The substantive reason for the absence of doubt was the primary judge's application of Griffith University v Tang (2005) 221 CLR 99. The joint judgment in Tang (Gummow, Callinan and Heydon JJ) at [89] supplies two cumulative criteria: the decision must be expressly or impliedly required or authorised by the enactment, and it must confer, alter or otherwise affect legal rights or obligations so that it derives from the enactment ([7]). The Full Court agreed with the primary judge's analysis at [49] that s 255-5(2) of the Taxation Administration Act 1953 (Cth) does not require or authorise a separate preliminary decision whether or not to refrain from suing. Any such consideration is merely a matter bearing upon the power to sue and is "inseparable from, if not identical to, a decision to sue" ([6]).
Crucially, the Commissioner's communications did not affect existing rights or obligations of Rawson Finances under the Taxation Administration Act, any other statute, or the general law. Nor did they create new rights or obligations. At best, a favourable decision would have created "a circumstance, as distinct from a right, affecting an existing liability" that arose on the making of the assessment ([8]). Because the Tang criteria were not satisfied, the decisions were not reviewable under the AD(JR) Act. The primary judge's conclusion was therefore not attended by sufficient doubt, the test for leave failed at the first limb, and the application was dismissed with costs.
The reasoning is deliberately concise. The Court did not embark on a wider examination of the merits of the underlying tax dispute or the s 39B avenue left open by the primary judge. It confined itself to the jurisdictional gateway under the AD(JR) Act and the procedural threshold for appellate intervention.
Before this decision the law on what constitutes a reviewable decision under the AD(JR) Act was settled at High Court level by Griffith University v Tang (2005) 221 CLR 99. The two-limb test (authorisation by the enactment plus effect on rights or obligations) had been applied in many contexts, including taxation. Cases such as Meredith v Commissioner of Taxation had already established that certain Commissioner decisions in the recovery context are not reviewable under the AD(JR) Act. Alexakis had confirmed that jurisdictional dismissals are interlocutory.
This judgment did not change the law. It applied existing authority to a concrete recovery-deferral scenario. It reinforced that a taxpayer cannot convert the Commissioner's ordinary decision to litigate a debt into a reviewable administrative decision merely by characterising a refusal to defer as a discrete "decision". The practical effect is to confirm that challenges to the Commissioner's choice to sue must ordinarily be brought, if at all, by way of s 39B relief or in defence to the recovery proceedings themselves rather than via the streamlined AD(JR) Act route.
After the decision, taxpayers and their advisers have clearer guidance that letters stating an intention to commence recovery or refusing deferral will not, without more, satisfy the Tang criteria. The judgment also illustrates that the DÉcor test is applied strictly; even if substantial injustice might arguably flow, failure on the "sufficient doubt" limb is fatal. The decision therefore narrows the circumstances in which taxpayers can obtain appellate review of interlocutory jurisdictional rulings in tax-recovery litigation.
Paragraph 2 states that the primary judge concluded the Commissioner's decision was not "a 'decision of an administrative character under an enactment' within the meaning of 'decision to which this Act applies'". Plain English: the judge ruled that the Tax Office's choice to sue and its refusal to wait were not the sort of official decisions the special review law was designed to cover.
Paragraph 3: "Such a decision that the Court lacks jurisdiction to grant the relief sought is interlocutory, not final". Plain English: when a judge says "this court cannot hear your case under this particular Act", that ruling is only a preliminary one; it does not finally decide whether you owe the tax or whether the recovery is lawful. You therefore need the court's permission to appeal it.
Paragraph 6 quotes the primary judge: "a decision to refuse to refrain from suing, if made, seems to be inseparable from, if not identical to, a decision to sue". Plain English: deciding not to give you more time before suing is simply the other side of the coin of deciding to sue. It is not a separate formal step that the law requires the Commissioner to take.
Paragraph 7 sets out the Tang passage beginning "The determination of whether a decision is 'made … under an enactment' involves two criteria…". Plain English: for a decision to be reviewable under the AD(JR) Act, two things must both be true. First, some law must actually require or allow the decision to be made. Second, the decision must change, create or remove someone's legal rights or duties. If either is missing, the decision cannot be challenged under that Act.
Paragraph 8 contains the Full Court's own application: "neither of the Commissioner's decisions which are attacked in the present case affected existing rights or obligations of Rawson Finances … All that a favourable decision could have done was to have created a circumstance, as distinct from a right, affecting an existing liability". Plain English: the Tax Office's letters did not alter what Rawson was legally obliged to pay. They merely indicated that collection would proceed. Even if the Commissioner had agreed to wait, that would only have changed the practical situation, not created a new legal right that the company could enforce.
These passages together form the entire substantive reasoning of the Full Court. Every later proposition in the judgment flows directly from them.
This precedent is triggered when a taxpayer seeks AD(JR) Act review of a Commissioner communication that does no more than indicate an intention to commence recovery proceedings or refuses a request to defer such proceedings. It applies whenever the taxpayer attempts to characterise the refusal to defer as a separate reviewable decision under s 255-5(2) of the Taxation Administration Act. The precedent is engaged whenever a single judge has dismissed an AD(JR) application on Tang grounds and the taxpayer seeks leave to appeal, because the Full Court has confirmed that such dismissal orders are interlocutory and that the Tang analysis disclosed in the primary reasons will ordinarily not attract sufficient doubt.
It is not limited to tax. The underlying principles apply to any statutory power whose exercise is said to produce a reviewable decision that does not itself alter rights or obligations. However, the factual matrix of a demand for payment, a request for forbearance, and a refusal coupled with an intention to litigate is the paradigm case. The precedent does not apply where the Commissioner has made a formal determination that itself creates or alters a statutory liability, nor where relief is sought under s 39B rather than the AD(JR) Act.
Practitioners should note the "inseparable from the decision to sue" language. Any attempt to split a recovery decision into multiple preliminary steps is likely to be met with this authority. The case also confirms that an existing tax liability arising from an assessment is the "circumstance" that is being enforced; a decision about the timing of enforcement does not affect that liability itself.
Although the judgment is short, it has been cited for three distinct propositions. First, it is routinely referred to for the classification of jurisdictional dismissals under the AD(JR) Act as interlocutory. Second, it stands as an illustration of the strict application of the Tang criteria in the taxation recovery context. Third, it is an example of the DÉcor test being applied so that failure on the "sufficient doubt" limb ends the inquiry.
Subsequent Full Courts have followed the interlocutory characterisation without criticism. The Tang analysis has been treated as orthodox. No court has doubted the proposition that a refusal to defer recovery is not a reviewable decision. The decision has been distinguished in cases where the Commissioner exercised a different statutory power that did alter legal rights (for example, by issuing a garnishee notice that operated directly on third-party debts). In those cases courts have emphasised that the present judgment turned on the particular character of a "decision to sue or not to sue".
The case has not been overruled. It continues to be cited in tax-controversy judgments and in administrative-law texts as an application of Tang to day-to-day debt-recovery choices. Its procedural holding on the need for leave and the cumulative nature of the DÉcor test is treated as binding within the Federal Court.
The judgment leaves open precisely what additional features would transform a recovery-related communication into a reviewable decision. Would an express statutory requirement for the Commissioner to consider hardship before suing change the analysis? The Court noted that s 255-5(2) does not require a separate preliminary finding, but did not address statutes that do contain such a requirement.
Another open question is the precise boundary between a "circumstance" and a "right". The judgment states that deferral creates only a circumstance affecting an existing liability. In a future case where a statute expressly confers a right to apply for deferral and expressly obliges the Commissioner to determine that application according to stated criteria, would a refusal then satisfy the second limb of Tang? The present reasons do not address that scenario.
The relationship between AD(JR) review and s 39B relief is left untouched. The primary judge granted leave to amend to seek s 39B relief; the Full Court expressly did not consider that avenue. Later courts must therefore still decide whether allegations of bad faith, Wednesbury unreasonableness or breach of natural justice in the making of a recovery decision can be litigated under s 39B even though they cannot be litigated under the AD(JR) Act.
Finally, the judgment assumes the assessments themselves are unchallenged. Where a taxpayer simultaneously disputes the underlying assessment and the recovery decision, different considerations may arise. The Full Court did not have to decide whether the existence of a genuine dispute about the assessment could colour the characterisation of the recovery decision.
These questions remain live because the reasons are tightly focused on the facts before the Court and the narrow procedural issue of leave. They illustrate that while the core Tang doctrine is settled, its application to the myriad procedural steps in tax recovery continues to require careful case-by-case analysis.
THE COURT: 1 There is before the Court an application for leave to appeal from orders of a single Judge of the Court (Yates J) made on 31 May this year. The Court today, without opposition from the respondent, the Deputy Commissioner of Taxation ("the Commissioner") granted an extension of time for filing and service of the notice of motion seeking leave to appeal. Against the possibility that his Honour's decision was final and not interlocutory so that leave to appeal is not required, the applicant, Rawson Finances Pty Limited ("Rawson Finances") also appeals from paragraphs 1, 2, 3 and 5 of the orders at first instance. Those orders stipulate: 1. The application for an order of review filed on 30 November 2009 be struck out. 2. The applicant's notice of motion filed on 11 March 2010 seeking a declaration that it is entitled to a statement of reasons pursuant to s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) be dismissed. 3. The applicant's notice of motion filed on 11 March 2010 seeking leave to file and serve an amended application for an order of review in the form of the pleading annexed thereto be dismissed. … 5. The applicant pay the respondent's costs. We indicate parenthetically that, by paragraph (4), his Honour granted leave to the applicant to file an amended application seeking relief, pursuant to section 39B of the Judiciary Act 1903 (Cth). However, that grant of leave is not the subject either of the present application for leave to appeal, or of the appeal, if that lies as of right, and we need not consider it further. 2 The Court has come to the clear conclusion that the learned primary Judge's orders which we have just set out were interlocutory and not final. Those orders reflected his Honour's conclusion that the Court had no jurisdiction to entertain an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the AD(JR) Act") because the decision of the Commissioner which it was sought to challenge was not a "decision of an administrative character under an enactment" within the meaning of "decision to which this Act applies" which is the expression used in s 5(1) of the AD(JR) Act, conferring a facility on a person aggrieved by such a decision to seek from this Court, or the Federal Magistrates Court, a review in respect of the decision. 3 Such a decision that the Court lacks jurisdiction to grant the relief sought is interlocutory, not final; see Alexakis v Secretary, Department of Employment and Workplace Relations [2009] FCAFC 124 at [28]. A decision of that kind goes no way to determining the underlying claim for relief, which, in this case, is the setting aside of the Commissioner's decision to institute recovery proceedings or to decline to defer those proceedings. We refer also to Meredith v Commissioner of Taxation (2002) 125 FCR 308, at [23]-[28]. 4 In the light of our conclusion that the orders below are interlocutory, it is necessary to consider whether leave to appeal should be granted. That requires application of the test enunciated by another Full Court of this Court in DÉcor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. That test is: (1) whether, in all the circumstances, the decision at first instance is attended by sufficient doubt to warrant its reconsideration by a Full Court; and (2) whether substantial injustice would result if leave were refused, supposing the decision to be wrong. 5 As indicated by the conjunctive "and," that test is cumulative. It is not satisfied unless each limb of the test is made out. In this case we are not persuaded that the learned primary Judge's decision is attended by sufficient doubt to warrant reconsideration by this Full Court. We shall indicate briefly our reasons for coming to that view. 6 In the first place, neither of the decisions at issue in this case satisfies the test articulated by the High Court, in Griffith University v Tang (2005) 221 CLR 99. We agree with the learned primary Judge when he said at [49] of his reasons in this case; Moreover, with respect to the refusal decision, s 255-5(2) [of the Taxation Administration Act 1953 (Cth)] does not provide for or require some separate and preliminary finding or ruling to be made dealing with the question of whether or not to refrain from making a decision to sue. Should the decision-maker come to consider whether to refrain from commencing legal proceedings as part of the recovery process, that would only be a matter bearing upon, but not an essential preliminary or condition precedent to, the exercise of the power to sue. Indeed, in this respect, a decision to refuse to refrain from suing, if made, seems to be inseparable from, if not identical to, a decision to sue. This was illustrated by the applicant's submission that the respondent's letter of 6 November 2009 contained the relevant decisions and involved the "re-making" of the recovery decision evidenced by the respondent's letter of 21 August 2009. 7 In Griffith University v Tang (supra), in the joint judgment of Gummow, Callinan and Heydon JJ, it was observed, at [89]; The determination of whether a decision is "made ... under an enactment" involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be "made ... under an enactment" if both these criteria are met. It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice. [original emphasis] 8 In our view, neither of the Commissioner's decisions which are attacked in the present case affected existing rights or obligations of Rawson Finances, whether arising under the Taxation Administration Act 1953 (Cth) or some other statutory provision or under the general law. Nor did those decisions of the Commissioner effect, in the sense of creating them, any new rights or obligations of Rawson Finances. All that a favourable decision could have done was to have created a circumstance, as distinct from a right, affecting an existing liability of Rawson Finances which arose on the making of the relevant assessment. 9 In these circumstances, we have concluded that the reasons of the learned primary Judge were not attended with any doubt and certainly not with any sufficient doubt to warrant reconsideration by this Full Court. As the first limb of the test propounded in DÉcor Corporation Pty Ltd v Dart Industries Inc (supra) has not been satisfied, it follows that leave to appeal must be refused. The order of the Court accordingly is that leave to appeal is refused with costs. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Ryan, Stone and Jagot.
Rawson Finances Pty Limited
Deputy Commissioner of Taxation
Time for filing the notice of motion extended; application for leave to appeal dismissed with costs; orders of the primary judge not disturbed.