Tax Practitioners Board v Buckland

CHARLESWORTH J 1 On 3 November 2022 the Court made orders under r 10.43 and r 10.24 of the Federal Court Rules 2011 (Cth) relating to the service of the initiating documents in this proceeding on a person situated in the Philippines. Oral reasons for judgment were delivered on that day. The parties have since been provided with a transcript of those oral reasons. What follows is a written record of those reasons revised from the transcript. The revisions do not alter the meaning of the reasons given orally. 2 The applicant is the Tax Practitioners Board. In its claim for final relief, the Board seeks (among other things) declarations that the respondent, Mr Anthony Buckland, contravened s 50-5(1) of the Tax Agent Services Act 2009 (Cth) (the TAS Act) by providing tax agent services, including the preparation and lodgment of income tax returns for Australian taxpayers for fee or other reward, whilst not a registered tax agent within the meaning of the TAS Act. That proposed declaration correctly states the elements of the contravention that need to be established under s 50-5(1) of the TAS Act. 3 Orders are sought pursuant to s 50-35(2) of the TAS Act for the payment of a pecuniary penalty in respect of each contravention. In addition, a permanent injunction is sought pursuant to s 70-5(1) of the TAS Act, restraining Mr Buckland from providing tax agent services, including by the preparation and lodgment of income tax returns for Australian taxpayers for fee or other reward whilst not a registered tax agent within the meaning of the TAS Act. 4 There is also a claim for interlocutory relief. It consists of three paragraphs. First, the Board seeks orders that, pursuant to r 10.42 and r 10.43(2) of the Rules, it "be granted leave to serve on Mr Buckland in the Philippines in accordance with article 5 of the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, done at the Hague on 15 November 1965 (the Hague Convention)" a series of documents. These documents include the originating application, supporting affidavits accompanying it, any orders made by the Court on the hearing of this interlocutory application and any reasons for judgment (the Documents). 5 Second, the Board seeks an order that, pursuant to r 10.24 of the Rules, "it may serve the Documents on [Mr Buckland] by sending a copy of, or an electronic link to download and access, the Documents by email addressed to Anthony Dean Buckland" at five email addresses. 6 Third, the Board seeks, pursuant to s 70-5(2) of the TAS Act, an interlocutory or interim injunction restraining Mr Buckland "from providing tax agent services, including the preparation and lodgment of income tax returns for Australian taxpayers for a fee or other reward whilst not a registered tax agent within the meaning of the TAS Act". Being an interlocutory application, that claim for relief may be understood to apply until the conclusion of the proceedings and the delivery of final judgment. Resolution of that issue has been deferred. 7 On the question of service, two issues arise. First, whether the Court should grant leave to serve an originating application outside of Australia in accordance with r 10.43 of the Rules. Second, whether immediately upon the grant of that leave, there should be an order under r 10.24 for substituted service: that is service by a method other than that contemplated under the Hague Convention. 8 I will turn first to the order sought in [1] of the application for leave to serve an originating application outside of Australia. Rule 10.43(1) provides that: Service of an originating application on a person in a foreign country is effective for the purpose of a proceeding only if: (a) the Court has given leave under subrule (2) before the application is served; or (b) the Court confirms the service under subrule (6); or (c) the person served waives any objection to the service by filing a notice of address for service without also making an application under rule 13.01. 9 For the purposes of r 10.43(1)(b) there is no application for the Court to confirm the service under subr (6). 10 For the purposes of r 10.43(1)(c),Mr Buckland does not waive any objection to the service and has not filed a notice of address for service without also making an application under r 13.01. 11 As will become clear, there is correspondence from a person who the Court is satisfied is Mr Buckland, making it very plain that he insists upon service in accordance with the Rules. 12 Rule 10.43(2) provides that: A party may apply to the Court for leave to serve an originating application on a person in a foreign country in accordance with a convention, the Hague Convention or the law of the foreign country. 13 Rule 10.43(3) provides: The application under subrule (2) must be accompanied by an affidavit stating: (a) the name of the foreign country where the person to be served is or is likely to be; and (b) the proposed method of service; and (c) that the proposed method of service is permitted by: (i) if a convention applies - the convention; or (ii) if the Hague Convention applies - the Hague Convention; or (iii) in any other case - the law of the foreign country. 14 I am satisfied that all requirements in r 10.43(3) are satisfied. 15 The supporting affidavit states the name of the foreign country, relevantly, the Philippines, where Mr Buckland is situated and therefore where he is or is likely to be served. 16 Second, the affidavit states the proposed method of service, being personal service under the Hague Convention. 17 I am satisfied that personal service is, in fact, service permitted by the Hague Convention as applies between Australia and the Philippines as nation states. Accordingly, the requirements for the supporting affidavit in r 10.43(3) are met. 18 Rule 10.43(4) provides: For subrule (2), the party must satisfy the Court that: (a) the Court has jurisdiction in the proceeding; and (b) the proceeding is of a kind mentioned in rule 10.42; and (c) the party has a prima facie case for all or any of the relief claimed in the proceeding. 19 As to subr (4)(a), the relief claimed in the proceeding includes a declaration under s 21 of the Federal Court of Australia Act 1976 (Cth) (FCA Act), to the effect that Mr Buckland has contravened an Act of the Commonwealth Parliament. I am satisfied that the Court has jurisdiction to grant that relief. I am also satisfied that the Court has jurisdiction to grant the other relief sought on the originating application, that jurisdiction arising (at the very least), under s 39B of the Judiciary Act 1903 (Cth). 20 Rule 10.42 sets out in a table the kinds of proceedings in which an originating application may be served on a person outside of Australia. This proceeding fulfils the requirements of any one of the following items in that table: 1, 14, 15 or 23. Accordingly, subr (4)(b) is satisfied. 21 As to whether the Board has "a prima facie case for all or any of the relief claimed in the proceedings", I am satisfied that there is a prima facie case arising from all of the supporting affidavits including those set out in [1], under the heading "Claim for interlocutory relief". 22 In determining whether or not the Board has a prima facie case, I have also had regard to correspondence received by the Northern Territory Registry of the Court. That correspondence is before me and I have marked three emails: "MFIA", "MFIB" and "MFIC". All of them, on their face, appear to have been sent by a person named Tony Buckland from the email address: tonybuckland2@gmail.com and directed to the Northern Territory Registry. 23 Reading those emails as a whole, I contemplate that Mr Buckland may raise two issues in answer to the Board's claims, and I will consider those issues in determining whether or not they justify a conclusion that the Board does not have a prima facie case. 24 The phrase "prima facie case" does not have a specified or express definition in the Rules. It is a legal term that takes its meaning from the surrounding context. It should be understood as incorporating a test similar to what must be satisfied on an application for an interlocutory injunction. That is, there must be a serious question to be tried sufficient to warrant the grant of relief. Expressed another way, there must be a case that would, at least, be sufficient, for example, to answer an application for summary judgment under s 31A of the FCA Act. 25 Section 50-5(1) of the TAS Act prohibits the provision of tax agent services by a person, including the preparation and lodgment of income tax returns for Australian taxpayers, for fee or other reward whilst not a registered tax agent within the meaning of the TAS Act. The affidavits that I have read give rise to a prima facie case with respect of each of those discrete and necessary elements. In concluding, I have had particular regard to the identity of the person that has provided the tax agent services upon which the Board relies and to the question of whether or not those services, on the Board's case, were provided by Mr Buckland as opposed to a corporate entity with which he is associated. 26 The correspondence from Mr Buckland has been marked for identification. If he were here, I anticipate that Mr Buckland would argue that the purported tax services have not been provided by him. Rather they have been provided by a corporation of which he is a director or officer, or that he otherwise has an involvement with. I accept that would be a live issue if the matter were to proceed to trial. 27 In addition, it appears to be asserted by Mr Buckland that whether or not there has been a contravention might turn on questions of whether or not Australia owes obligations under international law, pursuant to free trade agreements, including agreements embodying treaties and conventions. 28 For present purposes, I am satisfied that the validity of the TAS Act does not depend on whether or not it is supported by the external affairs power in s 51(xxix) of the Constitution. Furthermore, the correspondence of Mr Buckland does not otherwise draw the Court's attention to any domestic legislation that expressly or impliedly incorporates any of Australia's purported obligations under the conventions or agreements to which his correspondence refers. Accordingly, I do not consider that the existence of an obligation under international law under any such agreements would be such as to warrant a conclusion that the Board does not have a prima facie case, including as to the validity of the TAS Act. If it is necessary to draw a substantive conclusion as to that issue, I am satisfied that there is no domestic law incorporating the conventions that Mr Buckland refers to, being laws that would have the effect that the TAS Act does not apply to Mr Buckland in accordance with its terms. 29 A prima facie case arises by virtue of evidence that is capable or arguably capable of supporting a finding that Mr Buckland personally performed the tax agent services and that monies were paid for these services into a bank account which (again, assessing the evidence at the level of a prima facie case) is operated and controlled by an entity to which Mr Buckland has some association. I am satisfied (again, assessing the evidence at the level of a prima facie case) that Mr Buckland owns shares in entities that, on the Board's case, are the recipient of funds provided in consideration for the provision of tax services. 30 I am also satisfied on the authorities before me that Mr Buckland's status as a shareholder of the entity receiving the monies is sufficient to fulfil the element of the contravention requiring that the tax services be provided for fee or other reward. In this case, an indirect benefit would be sufficient. 31 Everything that I have said so far should be understood as based on the material that is before me and without the benefit of material from Mr Buckland. The facts alleged by the Board are to be assessed only at the level of a prima facie case and I express no view as to the strength of the Board's case. 32 It follows that I am satisfied that the provisions of r 10.43 of the Rules are satisfied. 33 Insofar as there is a discretion to grant the relief, I am satisfied that the discretion should be exercised in the Board's favour and that the order in [1] of the claim for interlocutory relief should be made. 34 Having made an order under r 10.43, I now turn to [2] of the claim for interlocutory relief. It seeks an order for substituted service. 35 Rule 10.24 provides that: If it is not practicable to serve a document on a person in a way required by these Rules, a party may apply to the Court without notice for an order: (a) substituting another method of service; or (b) specifying that, instead of being served, certain steps be taken to bring the document to the attention of the person; or (c) specifying that the document is taken to have been served: (i) on the happening of a specified event; or (ii) at the end of a specified time. 36 As I mentioned at the outset of these reasons, the order sought by the Board is that it be granted leave to serve the Documents on Mr Buckland by sending a copy or an electronic link of the Documents to five email addresses, and I will take that to mean all of them together. 37 Whether or not it is practicable to serve a document on a person in the way required by the Rules has to be answered having regard to all of the circumstances of the case, including the nature of the relief sought in the case generally. In the present case, there is an order sought pursuant to s 70-5(2) of the TAS Act that: … until the hearing and determination of the application or further order, the Respondent be restrained from providing tax agent services … for Australian taxpayers, for fee or other reward, whilst not a registered tax agent within the meaning of the TAS Act. 38 I am satisfied that the resolution of the application for interlocutory relief is one that involves the need for some expedition. In so concluding, I have had regard to the purposes of the TAS Act and particularly its purpose to protect Australian taxpayers from the mischiefs sought to be addressed. The TAS Act establishes a regime for the registration of tax agents and includes relevant laws conditioning the right to provide certain tax related services. There is no general right in Australia to provide tax return services to Australian taxpayers for fee or other reward. It is one that is regulated under the TAS Act. 39 I now turn to the correspondence from the address tonybuckland2@gmail.com and the proposal put forward in those documents. First, I am satisfied by reference to those documents that Mr Buckland has received correspondence from the lawyers for the Board. That correspondence included an email to Mr Buckland containing a link by which he could access the Documents. 40 By an email to the Northern Territory Registry dated 31 October 2022 Mr Buckland said: I believe that a proceeding is before the Federal Court. I am unaware of the nature of the proceeding nor of court arrangements. I have received an email from one Kenis Chu which purports to be service of court documents. It purports (in Chu's email which is attached) to include affidavits which are too big for transmission. These are too big for me to access from the resources I have. In any event it has a front page wherein the date of any appearance is not given. I attach a copy of that page for your attention. I am currently residing in Philippines and am a resident for tax purposes, and am an officer of the firm Apat na Seasons Pilipinas. That firm provides services internationally and in Australia in a variety of fields including book keeping and accounting. The firm operates from a fixed office in Philippines and any activity complained of by the TPB will have been services provided by Apat na Seasons Pilipinas under the GATT Mode 2 provisions. Any orders sought by the TPB against myself seem directed against Apat na Seasons and my role with that firm as a director. The document I have received refers to an appearance before the Court but no proper date is provided. 41 Mr Buckland's reference to the TPB may be understood as a reference to the Board. I conclude from part of that email that one of the documents, attached to the email, was opened and Mr Buckland complains that no date for an appearance was contained on its face. The email goes on: I understand that service could be effected by email and it appears that Mssrs Minter Ellison have presumed to do so to various addressees. However, by the admission of Mr Chu the documents are too large for email and it demands, improperly I say, that I make efforts and jump through hoops to open them. Therefore, it is clear the method of service was not appropriate to the task. I ask that the TPB serve its documents by mail and a proper date be set for first mention once I have had a chance to read the material. For the purposes of service, the following address is suitable. 42 The email then sets out a physical address situated in Angeles City in Pampanga in the Philippines. The email says that post usually takes 15 days. It goes on: Upon receipt and review of the materials I would need to review it and consider it and then formally respond. Apat na Seasons has previously corresponded with TPB about its conduct derogating from the business it has with Australian clientele. Due to the protection afforded by jurisdiction issues its conduct of litigation against the TPB has been thwarted. Therefore I foresee after meeting of the Board that apart from my conditional appearance the Philippine company will seek to become a party to proceedings in relation to rights afforded under the various relevant treaties and conventions to which Australia is a signatory and also in relation to interlocutory orders it may seek and damages awards it may press. As this firm likely has a substantial property and revenue interest in the proceedings it seems indispensable and imperative that it would be unwise to proceed without including them. 43 In a subsequent email of 1 November 2022, there are allegations to similar effect, again raising reliance on the treaties, Mr Buckland states: … it is ill advised and dangerous for negative/ destructive orders to be made until the Court has before it all of the relevant material and argument by all interested parties. 44 Of course, the Court can only hear relevant material and argument by all interested parties if all interested parties are served. That is the issue with which I am presently concerned. 45 In having regard to whether it is practicable to serve a document on a person in a particular manner, I must have regard to whether service could be done within a timeframe that bears some reasonable relation to the urgency of the relief that is sought. I am satisfied that it is not practicable to require the Board to personally serve Mr Buckland principally because of the time that it would take for personal service to be effected. 46 In that regard, I have also taken into account Mr Buckland's email of 1 November 2022 which suggests he intends to go on a holiday and that the matter can be brought on for directions once he returns. The emails from Mr Buckland indicate that he would not, it appears, complain about service being effected on him by post which he says would take 15 days. It is unclear why it is that Mr Buckland considers that post taking 15 days is an appropriate method of service (or a more appropriate method of service, putting aside personal service for the time being) over and above the transmission of an email containing attachments that are readily able to be opened. 47 On that topic, I have had regard to further correspondence from a legal representative of the Board, Mr Kenis Chu showing that at 4:30pm on 2 November 2022 the Documents were attached to emails. I am satisfied that the affidavits upon which the Board relies may be delivered by a series of emails, each attaching the affidavits, and also that a link might be provided by which the Documents might be accessed. 48 Mr Buckland has shown a proficiency with the preparation of email correspondence. So far as his correspondence contains a submission that he asks me to consider, I do not consider that clicking on a link is at all onerous or at least any more onerous than opening a physical envelope that might be delivered to his physical address in the Philippines. 49 It remains to consider whether or not r 10.24 might be invoked by a party in the Board's position, in circumstances where provision is made in r 10.49 of the Rules for substituted service. That rule is contained in Div 10.4 of the Rules, which is titled "Service outside Australia". It provides that: 10.49 Substituted service If service was not successful on a person in a foreign country, in accordance with a convention, the Hague Convention or the law of a foreign country, a party may apply to the Court without notice for an order: (a) substituting another method of service; or (b) specifying that, instead of being served, certain steps be taken to bring the document to the attention of the person; or (c) specifying that the document is taken to have been served: (i) on the happening of a specified event; or (ii) at the end of a specified time. 50 The question is whether I should substitute another method of service under r 10.24. That is, granting leave for the Board to serve the Documents on Mr Buckland by sending him an email or emails containing a link to download and access copies of them. A question of construction arises as to whether or not the power in r 10.24 might be exercised in circumstances where the requirements under r 10.49 are not otherwise met on the facts. 51 Rule 10.49 requires, implicitly at least, that the Court be satisfied that there be an attempt at service on a person and that that attempt has been unsuccessful. The relevant service is service under the Hague Convention. Here, there has been no attempt to serve in accordance with the Hague Convention, including because of the asserted impracticality and asserted urgency for interlocutory relief. 52 The Board relies on Ford, in the matter of Careers Australia Group Limited (in liq) v Mansfield [2022] FCA 173. O'Bryan J there discusses the interrelation between the various rules in a case in which an order for substituted service was sought immediately upon, and in conjunction with, an order granting leave under r 10.43. His Honour refers to a line of authority concerning the interrelation between the rules, including the interrelation between r 10.24 and r 10.49. The effect of those authorities is that this Court may make an order under r 10.24, notwithstanding the existence of r 10.49, provided, of course, that the requirements of r 10.24 are met. The authorities are also to the effect that, even if that be wrong, the Court has the power under r 1.34 to dispense with the requirement of a rule. The dispensation power extends to the dispensation of any requirement implicit in r 10.49 that there be proof of an unsuccessful attempt to serve documents on a person in a foreign country. 53 Accordingly, I am satisfied that I have the power to make an order under r 10.24 and that, in any event, I have the power under r 1.34 to dispense with the requirement under r 10.49 that there be an unsuccessful attempt at, in this case, personal service. 54 Both r 10.24(a) and r 10.49(a) empower the Court to substitute another method of service. I am satisfied, for the purposes of each of those rules, that the method of service sought under [2] of the claim for interlocutory relief is appropriate in these circumstances. 55 In that regard, I have taken into account that as late as 1 November 2022 (two days ago) Mr Buckland himself was using one of those email addresses to communicate with the Court and ask for documents to be brought to the attention of the docket judge. I am also satisfied (by reference to MFIA) that an email was sent to Mr Buckland. Although that email does not, on my printout of the document, identify the "gmail 2" address, it does identify at least three other addresses. 56 I do not consider it to be onerous for there to be an electronic link to download and access documents contained in an email. However, I propose that there be an order, in any event, that there be a further method of substituted service, that is service be effected by way of sending the Documents by way of attachments to emails sent to each of those addresses, and permitting for such emails to be sent in multiple transmissions. 57 In that way, if there is some form of disadvantage to Mr Buckland in receiving a link that, in his words, requires him to "jump through hoops" to open the Documents, then there can be, in addition to that method of service, the attachment of the Documents in PDF format as attachments to each of the emails. I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Charlesworth.