Rawson Finances Pty Ltd v Deputy Commissioner of Taxation

REASONS FOR JUDGMENT BUCHANAN J: 1 The proceedings with which this judgment is concerned arise initially from a decision made within the Australian Tax Office to commence action against the applicant ("Rawson Finances") for allegedly unpaid tax. Rawson Finances attempted to invoke the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") to seek judicial review of the decision. It sought, in fact, to identify two decisions - a decision to proceed with recovery action and a decision not to refrain from recovery action. It is not necessary for me to explore the foundation for the suggested distinction, which is contentious. On 31 May 2010 a judge of the Court rejected the application and some associated motions (Rawson Finances Pty Ltd v Deputy Commissioner of Taxation [2010] FCA 538) holding that the application for review was incompetent as the decision to commence legal proceedings against Rawson Finances (and/or not to refrain from doing so) was not susceptible to review under the ADJR Act. Detailed reasons were given. 2 Rawson Finances attempted to initiate an appeal on 8 June 2010 but for technical reasons its attempt to do so was unsuccessful. On 9 June 2010 a notice of motion was filed, supported by two affidavits, to one of which affidavits was attached a notice of appeal. The notice of motion sought leave to appeal but, alternatively, a declaration that leave to appeal was not required as the orders made on 31 May 2010 were not interlocutory ones. 3 Clearly, so much of the judgment as dismissed interlocutory motions in the proceedings below represented interlocutory conclusions and the accompanying orders giving effect to those conclusions were also interlocutory. Leave to appeal from those orders would be required. However, insofar as the judgment disposed of the application for review under the ADJR Act different questions arise. Before the trial judge, the respondent objected to the competency of the application (see O 54 r 4 of the Federal Court Rules). Such an objection may be contrasted with an application by a respondent for summary judgment in proceedings commenced under the ADJR Act (see O 54 r 7 of the Federal Court Rules). It is well established that orders for summary judgment are generally interlocutory (and now see s 24(1D) of the Federal Court of Australia Act 1976 (Cth) ("the Act") concerning decisions relating to summary judgment under s 31A of the Act). Is the same conclusion required if an application for review is dismissed as incompetent under O 54 r 4? 4 There appears to be no clear answer to this question. Recently, in Alexakis v Secretary, Department of Education, Employment and Workplace Relations [2009] FCAFC 124 ("Alexakis"), a Full Court considered whether an appeal against an order dismissing an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) as incompetent was interlocutory or final. The Full Court surveyed a number of authorities on the distinction between interlocutory and final orders. It preferred (at [19]) to express no final view about the matter but did observe (at [28]) that the balance of authority favoured the view that dismissal of an application for lack of jurisdiction was interlocutory. 5 However, there are cases which appear to support a different view. For example, in Magman International Pty Ltd v Westpac Banking Corporation (1991) 32 FCR 1 ("Magman") Beaumont J (with whom all other members of the Court relevantly agreed) concluded (at 15) that an order based on a finding that a cause of action was barred by statute was final in substance and effect although the application giving rise to the order was in form interlocutory (an application to determine a separate question). The case is cited by Halsbury's Laws of Australia as an example of a final order (325-11640). 6 In Meredith v Commissioner of Taxation [2002] FCAFC 271 ("Meredith"), the Full Court was dealing with the legal effect of a decision to strike out a proceeding commenced under the ADJR Act prompted by a motion for summary dismissal supplemented by a notice of objection to competency. It concluded, unsurprisingly, that the order for summary judgment was interlocutory. However, rather than making the distinction between the two procedures to which I earlier referred, the Full Court in Meredith appears to have proceeded upon the view that an objection to competency was relevantly indistinguishable from an application for summary judgment. It treated the notice of objection to competency as providing the basis for the motion seeking summary dismissal. 7 I note also that in Gant v Commissioner Australian Federal Police (No 2) [2006] FCA 1494 Collier J cited Meredith as authority for the proposition that an order upholding an objection to competency, on the basis that a decision is not reviewable under the ADJR Act, is an interlocutory decision, although her Honour in that case seemed to have no hesitation in granting leave to appeal. 8 I am not sure I see a clear distinction between an order dismissing a proceeding as statute barred and an order dismissing a proceeding because statutory conditions are not enlivened. In either case the result is final so far as the disappointed litigant is concerned and cannot be addressed by some reformulation of the cause of action or attempt to add more substance to the proceedings. An objection to competency, or jurisdiction, if established strikes at the existence of any available relief. Summary judgment, on the other hand, may be given because, although relief may be available, it has not been effectively sought. 9 I do not wish, in the present case and at this stage of proceedings, to deprive the appellant of a right of appeal against a final order (if that is the better view). That is a course, if it is to be taken, which I think should be taken by a Full Court. In addition, the fact that the decision of the trial judge had final consequences for the proceedings commenced in this Court by Rawson Finances (even if interlocutory, strictly speaking) is a factor which tells against the refusal of leave to appeal at this stage. In the circumstances I propose to refer the application for leave to appeal to a Full Court so far as it concerns the decision to dismiss the proceedings as incompetent. The respondent did not oppose such a course. It will be a matter for the direction of the Full Court whether, at the same time, full argument will be heard on the appeal on the assumption that leave might be granted. For the moment the parties should prepare themselves for that eventuality. 10 However the same considerations do not apply to the other aspects of the judgment and the orders which flowed therefrom. There were two relevant, clearly interlocutory, orders made on 31 May 2010 which require consideration at the present time. 11 First, leave to file an amended application for review under the ADJR Act was dismissed. That decision was based squarely on the conclusion that such an application (i.e. under the ADJR Act) was incompetent. It is not necessary that leave to appeal be granted. If leave to appeal against dismissal of the application is granted, and an appeal succeeds, the matter may be raised again with the docket judge. 12 Secondly, an order stating reasons for the decision to commence legal proceedings (or refusing to refrain from commencing legal proceedings) was refused. Again, the refusal was based squarely on the conclusion about the competency of the application. There were other objections to the order sought which were not ruled on by the trial judge. This matter may be also raised again if an appeal succeeds. 13 At the hearing, the applicant did not press its application for leave to appeal against either of these interlocutory orders. 14 I should note the following further procedural matters. The decisions which the applicant sort to agitate in the proceedings below have been overtaken by events. However, the parties seem agreed that the legal issues which the applicant wishes to ventilate on appeal have ongoing significance. In part that is because there are a series of other "decisions" which the respondent has made and which the applicant has challenged, or is proposing to challenge. Those matters are listed before Foster J in the near future. 15 So far as the present matter is concerned I will make the following orders, directions and observations. The Court orders that: