reO'Reilly and Another [1983] HCA 27

(3) That the costs of the action to the date of remission, including the costs of this order, are to be according to the scale applicable to proceedings in this Court and thereafter according to the scale applicable in that Court and in the discretion of that Court.

(4) That the costs of this application be costs in the cause.

(5) That the Deputy Registrar of this Court forward to the proper officer of that Court photocopies of all documents filed in this Court.

And it is certified that this was a matter proper for the attendance of counsel.

Dawson J. delivered the following written judgment: -

In this matter I granted an order nisi for a writ of mandamus to compel the registration of the prosecutor as a wholesale merchant for the purposes of the Sales Tax Assessment Acts (Nos. 1-9) 1930 Cth and the issue to it of a certificate of registration. The ground upon which the order nisi was made was that one or other of the respondents was under a statutory duty to register the prosecutor and issue a certificate but had failed or refused to perform that duty. The order nisi was made returnable before the Full Court.

Subsequently an affidavit was filed on behalf of the respondents setting out facts which are said to demonstrate that the prosecutor does not engage in the sale of goods by wholesale and that its application to be registered as a wholesale merchant pursuant to the Sales Tax Assessment Acts was not made bona fide for the purposes of those Acts.

It is conceded on both sides that, in view of the contention of the respondents, the hearing of this matter will involve a factual dispute and that it is inappropriate for the Full Court to decide that dispute. For this reason the respondents now seek an order that the matter be remitted to the Federal Court of Australia. The prosecutor does not oppose the making of such an order if I have the power to make it, but has raised for consideration the question whether I have the necessary power.

The starting point must necessarily be s. 44 of the Judiciary Act 1903 Cth which provides:

Any matter that is at any time pending in the High Court, whether originally commenced in the High Court or not, may, upon the application of a party or of the High Court's own motion, be remitted by the High Court to any federal court, court of a State or court of a Territory that has jurisdiction with respect to the subject-matter and the parties, and, subject to any directions of the High Court, further proceedings in the matter shall be as directed by the court to which it is remitted.

In Johnstone v. The Commonwealth [1] it was held that the power conferred by s. 44 of the Judiciary Act allows a matter to be remitted to a court which, although it does not have jurisdiction independently of the remitter, has "jurisdiction over the same kind of party and the same kind of subject matter as that over which the High Court has jurisdiction" (per Aickin J. [2] ). Jurisdiction of a like kind, falling short of actual jurisdiction, is sufficient to satisfy the requirement of s. 44 that the court to which remitter is made should have jurisdiction with respect to the subject matter and the parties. If there is a remitter it is, of course, the matter pending before the High Court which is remitted and if the court to which the remitter is made does not otherwise have jurisdiction over that matter (perhaps even if it does), then it is s. 44 itself which in that event confers jurisdiction: Johnstone v. The Commonwealth [3] .

1. (1979) 143 C.L.R. 398. 2. (1979) 143 C.L.R., at p. 408. 3. (1979) 143 C.L.R., at p. 401.

It is not suggested that the Federal Court has jurisdiction to order the issue of a writ of mandamus against an officer of the Commonwealth. That jurisdiction is vested in this Court by s. 75(v) of the Constitution and although the Federal Court could by a law made by Parliament be invested with such a jurisdiction (see Constitution, s. 77(i) and Federal Court of Australia Act 1976 Cth, s. 19(1)), that has not been done. The extent to which the exercise of that jurisdiction is sought in this matter is, however, limited by the particular circumstances. What is sought is an order compelling the registration of the prosecutor as a wholesale merchant and the issue of a certificate to it pursuant to s. 11(1) and (3) of the Sales Tax Assessment Act (No. 1), that is, an order compelling the exercise of what is said to be a statutory duty.

It is in these circumstances that it is contended by the respondents that the Federal Court has a like jurisdiction with respect to the same subject matter and the same parties. The jurisdiction arises, it is said, under the provisions of the Administrative Decisions (Judicial Review) Act 1977 Cth. Section 5 of that Act, so far as is relevant, provides:

(1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Court [i.e. the Federal Court] for an order of review in respect of the decision on any one or more of the following grounds:

(e) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;

(f) that the decision involved an error of law, whether or not the error appears on the record of the decision;

(h) that there was no evidence or other material to justify the making of the decision;

(j) that the decision was otherwise contrary to law.

(2) The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to -

(a) taking an irrelevant consideration into account in the exercise of a power;

(b) failing to take a relevant consideration into account in the exercise of a power;

(c) an exercise of a power for a purpose other than a purpose for which the power is conferred;

(j) any other exercise of a power in a way that constitutes an abuse of the power.

Under s. 3(1) of the Act, a " "decision to which this act applies" means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be (whether in the exercise of a discretion or not) under an enactment, other than a decision by the Governor-General or a decision included in any of the classes of decisions set out in Schedule 1". I shall advert later to the classes of decision set out in Sch. 1. "Enactment" is defined so as to include the Sales Tax Assessment Acts. Section 16, so far as is relevant, provides:

(1) On an application for an order of review in respect of a decision, the Court may, in its discretion, make all or any of the following orders:

(d) an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the Court considers necessary to do justice between the parties.

It cannot, I think, be contested that the jurisdiction of the Federal Court, under the provisions of the Administrative Decisions (Judicial Review) Act to compel, at the instance of the prosecutor, the performance of a statutory duty imposed by the Sales Tax Assessment Acts upon either of the respondents, is of the same kind as that which might be exercised by this Court upon an application for a writ of mandamus. Indeed, that proposition was not disputed by the prosecutor. It submitted, however, that jurisdiction under the Administrative Decisions (Judicial Review) Act is limited to the review of decisions to which the Act applies, that is, decisions of an administrative character under an enactment, and that there is no such decision in this case. In particular, it is said that the failure or refusal to register the prosecutor and issue it with a certificate does not involve a decision under the Sales Tax Assessment Act (No. 1).

This submission cannot, in my view, be sustained. It may be that in some cases an argument could be made out that the failure to register an applicant pursuant to s. 11 of the Sales Tax Assessment Act (No. 1) and to issue a certificate of registration does not involve a decision under the Act. I express no view about that, although I advert in passing to the difficulty which may arise from the definition of "decision to which this Act applies" to include a decision "required to be made". In this case, however, the Australian Taxation Office, on 7 July 1983, replied by telex as follows to a query made on behalf of the prosecutor by its accountants on 6 July 1983.

In your telex of 6 July 1983 confirmation of three matters concerned with an application for registration made by your client Bayford Wholesale Pty. Ltd. was sought. Our response to the matters raised is as follows:

1. Whether or not your client is engaged in the sale of goods by wholesale depends upon the facts. Information available to this office has led to the conclusion that your client is not engaged in the sale of goods by wholesale.

2. In the circumstances no action to effect registration of the company for sales tax purposes, as a wholesale merchant can be taken.

1. The sales tax law contains no requirement or authority for the Commissioner to take action for a person to be registered for sales tax purposes where that person has not become a manufacturer or wholesale merchant.

That telex message, which is exhibited to the affidavit filed in support of the application for a writ of mandamus, is not disputed by the respondents as correctly representing their position and the conclusion must, I think, follow that there has been, in relation to the prosecutor's application to become registered as a wholesale merchant, a decision of an administrative character made under an Act of the Commonwealth and hence, apart from Sch. 1, a decision to which the Administrative Decisions (Judicial Review) Act applies. It is true that the telex message concerns itself with the basis upon which the Taxation Office declined to register the prosecutor and in so doing raises a question of law but, putting on one side that question of law, there has clearly been a decision that the prosecutor is not engaged in the sale of goods by wholesale and a decision that it should not be registered. These decisions are, in my view, decisions of an administrative character under the Sales Tax Assessment Act (No. 1) and are, putting aside Sch. 1, decisions to which the Administrative Decisions (Judicial Review) Act applies.

Next it is submitted on behalf of the prosecutor that if the failure or refusal to register the prosecutor as a wholesale merchant under the Sales Tax Assessment Act (No. 1) involved the making of any decision, that decision is within par. (e) of Sch. 1 of the Administrative Decisions (Judicial Review) Act and is for that reason excluded from the definition of "decisions to which this Act applies". Paragraph (e) refers to -

decisions making, or forming part of the process of making, or leading up to the making of, assessments or calculations of tax or duty, or decisions disallowing objections to assessments or calculations of tax or duty, or decisions amending, or refusing to amend, assessments or calculations of tax or duty, under any of the following Acts. There follows a list of Acts including the Sales Tax Assessment Acts. As I understand the prosecutor's submission it is that the assessment or calculation of sales tax involves machinery which includes as an essential part the use of certificates of registration under the Sales Tax Assessment Act (No. 1). A decision to register a wholesale merchant and to issue a certificate is for this reason, so the submission continues, a decision forming part of the process of making, or leading up to the making of, assessments or calculations of sales tax.

The nature of the sales tax legislation and the part played by certificates of registration issued to manufacturers and wholesale merchants is examined by Dixon J. in Deputy Federal Commissioner of Taxation (S.A.) v. Ellis and Clark Ltd. [4] . He points out that the general policy of the legislation is to levy tax upon the last sale by wholesale of goods imported into or produced in Australia, that is, upon the sale to the retailer by the last wholesaler. He describes the function of registration and the issue of a certificate [5] :

To give effect to this policy, every person who engages, whether exclusively or not, in the sale of goods by wholesale is required to register. Upon registration, he becomes bound to keep proper books, make returns of his sales, and pay the tax. He receives a certificate bearing a number and this certificate he is bound to quote when he buys goods, unless, besides being a wholesale merchant, he is a retailer and he sells principally by retail. A sale to a person who quotes his certificate is not the subject of tax, and thus, if there be successive sales to wholesalers, the goods do not incur tax until the last wholesaler sells them to the retailer. Then an ad valorem duty is imposed on that sale, which presumably was considered likely to be at a price higher than the preceding sales. That is, I think, a sufficient description of the system to indicate that the purpose which lies behind the registration of manufacturers and wholesale merchants and the use of certificates of registration is to determine the proper incidence of sales tax in accordance with the scheme of taxation. A certificate of registration will not assist in the assessment or calculation of the sales tax which a wholesaler may be liable to pay. The existence of a certificate and the quotation of its number may determine whether a tax is or is not imposed upon a particular sale and so determine liability for sales tax, but a decision not to register or to register a wholesaler and to issue a certificate can have nothing to say about the assessment or calculation of sales tax which may be payable by that wholesaler or by any other wholesaler. The process of registration and the issue of certificates provides the apparatus which enables "decisions making, or forming part of the process of making, or leading up to the making of, assessments or calculations of" sales tax to be made, but decisions relating to the apparatus itself do not fall within that description. No doubt in one sense any decision under the Sales Tax Assessment Acts is a decision leading up to the making of an assessment or calculation of sales tax because the imposition of sales tax is the ultimate purpose of the legislation, but par. (e) of Sch. 1 of the Administrative Decisions (Judicial Review) Act makes a distinction between decisions answering that description and other decisions under the Sales Tax Assessment Acts. Given that distinction, I think that decisions relating to the registration of manufacturers or wholesalers and the issue of certificates of registration are of a sufficiently preliminary nature to fall outside the description contained in par. (e). 1. (1934) 52 C.L.R. 85, at pp. 89 et seq. 2. (1934) 52 C.L.R., at p. 89.

It follows, in my view, that the Federal Court has jurisdiction within the meaning of s. 44 of the Judiciary Act with respect to the subject-matter and parties of these proceedings. Although, as I have said, it has no power of its own to order mandamus, the jurisdiction which it would exercise upon a remitter is the jurisdiction of this Court vested in its by s. 44 of the Judiciary Act.

Mention was made during argument of s. 23 of the Federal Court of Australia Act and it was suggested that once the Federal Court was seized with these proceedings, that section would confer the necessary jurisdiction to order the issue of a writ of mandamus. Section 23 empowers the Court, in relation to matters in which it has jurisdiction, to make orders of such kinds, and to issue, or direct the issue of, writs of such kinds as the Court thinks appropriate. That section has a limited operation which is examined in Thomson Australian Holdings Pty. Ltd. v. Trade Practices Commission [6] . However, it is not necessary to pursue the question of the operation of s. 23 here because reference to it in the present context involves, I think, a misconception. The jurisdiction which the Federal Court would exercise upon a remitter of this matter to it would, as I have pointed out, be jurisdiction invested in it by s. 44 of the Judiciary Act by reason of the remitter and that of itself is sufficient to bestow power to grant the appropriate remedy without recourse, if it were available, to s. 23 of the Federal Court of Australia Act.

Being of the view that s. 44 of the Judiciary Act enables me to remit this matter to the Federal Court and enables that Court to dispose of it, it seems to me that (subject to one thing which I shall mention) I ought to make the order sought. The disputed question of fact which has arisen can more appropriately be determined in a court other than this Court and, having regard to s. 9 of the Administrative Decisions (Judicial Review) Act, this application has proceeded before me upon the basis that there can be no remitter to a State court. The parties are content to have the whole of the matter remitted and, since the resolution of the question of fact is likely to dispose of the matter, at least if it is resolved in favour of the prosecutor, it seems appropriate to take that course.

The one reservation which I have is that, having granted an order nisi returnable before the Full Court, I doubt whether I am any longer in a position to make an order with respect to the disposition of this matter. However, the order nisi was made ex parte and I am prepared, with the consent of the parties, to vacate that order to enable me to make an order remitting this matter to the Federal Court.