Consideration
14 In my view, reading the Tribunal's reasons as a whole and fairly, the Tribunal did not approach the matter by directing itself to the ultimate issue it needed to resolve, namely whether the applicant was the prescribed fit and proper person.
15 Upon an analysis of the structure and reasons of the Tribunal, in my view the Tribunal did not address the ultimate issue for its consideration and determination, but in reality only considered the question of the operation of s 251BC(3).
16 After setting out the relevant provisions of the legislation, the Tribunal then set out aspects of the applicant's circumstances, including 'Applicant's Practice Circumstances', 'The Applicant's Health', 'Delay in Lodgement' of Income Tax Returns', and 'Failure to Respond to Letters of the Board'. Under the heading 'Summary of Tribunal and Federal Court Decisions', the Tribunal then considered a number of cases on the content of the phrase 'fit and proper person' and the discretion under s 251BC(3).
17 The Tribunal then under the heading 'Conclusion and Reasons for Decision' stated at [56]:
Section 251BC of the Act allows certain conduct or events on the part of a tax agent to be disregarded in an application for re-registration if special circumstances exist.
It was in this context and this context only that the Tribunal, in my view, considered the evidence. The Tribunal kept returning throughout its reasons to the phrase 'special circumstances', which could only be referrable to its consideration of the operation of s 251BC(3). Such references are made throughout the reasons of the Tribunal at [59], [65], [74], [77], [78], which precede or follow analysis of various matters pertaining to the applicant.
18 In my view, although there are also references to the phrase 'fit and proper person' and 'good fame, integrity and character', these matters were not considered in the context of the ultimate issue of whether the applicant was the prescribed fit and proper person, but in the context only of whether 'special circumstances' existed for the purposes of s 251BC(3).
19 Significantly, nowhere in its reasons does the Tribunal conduct the enquiry itself as to whether the applicant was the prescribed fit and proper person either at the time of its determination or at all.
20 It seems that the Tribunal set itself the task it described at [65], which was clearly directed to the operation of s 251BC(3):
The exercise of considering special circumstances involves the weighing up of the events which on the one hand have given rise to the alleged conduct causing the Board to regard the applicant as not being fit and proper and on the other hand events or circumstances either explaining that conduct or otherwise permitting a finding to be made that the applicant is in fact a person who is fit and proper.
21 The Tribunal then proceeded to assess the matters in favour and against the applicant, but only in the context of the exercise postulated by the Tribunal at [65].
22 The Tribunal, after considering a number of matters, stated at [74] as follows:
I am prepared to find that the applicant's health, the circumstances within his practice and the tension within his marriage, most of which were at their peak in the 1990's, occurred during the same periods of time that income tax returns for himself and family entities were outstanding. But on the evidence of the applicant's doctors, and himself at the hearing, all medication ceased at February 2003 and he was regarded then as enjoying improved health. I would have thought that there would have been greater diligence on his part to immediately set about preparing returns and having them lodged. It is noted from other evidence that at or about this time the applicant's accountancy practice stabilized and another employee accountant of considerable expertise was engaged. However the applicant's outstanding personal returns were not lodged until October 2003 and the returns for other entities were not lodged until April, May or June of the following year. That is, some eight months after the applicant's health had been restored and medication had ceased and after his practice had stabilized he first lodged his outstanding personal returns but the other returns were not lodged until a period of between 14 and 16 months later. Set against a background of two prior Magistrates' Court appearances and a suspension from practice it would have been incumbent on the applicant to show a degree of "good fame, integrity and character" if his prior omissions should in the special circumstances that he asserted, be disregarded. (emphasis added)
The Tribunal then proceeded to state at [77]:
Following the analysis of the concept of special circumstances in both Beadle, Groth and Chamberlain, I cannot find the applicant's circumstances of ill health and vulnerability to an unstable rural economy whilst in regional practice, marriage instability and workplace stress, no less in self employment, are alone, or in combination, to be "unusual, uncommon or exceptional" nor could I find in the application of the relevant legislation that to decide to refuse re-registration would cause an outcome which was "unfair, unintended, unjust" or "inappropriate".
Then finally at [78] and [79] the Tribunal decided:
Mr Moore acknowledged that the applicant had not ever been convicted of "a serious taxation offence" or at all (refer s 251BC) and he was not automatically disqualified from registration. It was also submitted that if special circumstances are found not to exist, the only decision open to the Board, upon an application for re-registration is refusal to register. No other option exists, for example, to suspend, or admonish. I agree with those submissions. The Tribunal is required to consider, in the circumstance of the case under review, to determine whether if special circumstances do exist whether to disregard the "omission" of an applicant. If the decision to refuse re-registration is affirmed, it is open to an applicant to apply, without any period of prohibition, to the Board for registration. If that course is followed, the applicant, at the time of such an application will have the opportunity to demonstrate that he is fit and proper. Section 251K appears to apply only where an agent has been suspended or where his registration has been cancelled. In the present case it was the applicant's application for re-registration that was declined.
The applicant's history, Court appearances, previous suspension, subsequent default and neglect and the magnitude of it and its duration dictates that it would be inappropriate to decide other than to affirm the decision under review.
23 Whilst the references in [79] could be said to relate to the enquiry going to the affirmation of the decision under review, they are not sufficient to show, in light of the previous reasoning of the Tribunal, that the Tribunal considered for itself the ultimate issue.
24 In my view, the Tribunal failed to appreciate the matter it was bound to consider and failed to address the ultimate issue for consideration, and in so doing made an error of law.
25 The above conclusion would lead to the appeal being allowed. As other matters have been raised in this appeal, it is appropriate to make the following observations.
26 Complaint was made by the applicant that the Tribunal erred in its consideration of the existence of 'special circumstances' as referred to in s 251BC(3) of the Act. In my view this complaint does not raise any question of law, and the Tribunal applied the correct construction of the term 'special circumstances'.
27 The term 'special circumstances' is not defined in the Act. It is used according to its ordinary meaning. As was said in Re Beadle and Director-General of Social Security (1984) 6 ALD 1 at 3:
An expression such as "special circumstances" is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.
28 Whether there were 'special circumstances' was a question of fact for the Tribunal to decide. The Tribunal's conclusion that there were no special circumstances was a conclusion on a question of fact. It was a conclusion open to it on the facts as found.
29 Another complaint made by the applicant was that the Tribunal incorrectly took into account the charges against the applicant before the Magistrates' Court in 1990 for failing to lodge his 1989 return. I do not accept the Tribunal fell into error in this regard. There was nothing in the Act that bound the Tribunal to not take account of the applicant's appearance in the Magistrates' Court in 1990. In any event, the applicant raised the matter in his witness statement, as follows:
In 1990 I was prosecuted for an offence of failing to file a tax return for the year ended 30 June 1989 contrary to section 8C of the Taxation Administration Act 1953. At the hearing of that charge before the Magistrates' Court at Ballarat I pleaded guilty and was fined $500.00. Enquiries of the Magistrates' Court confirmed no recording of any conviction in regard to that charge and the imposition of that fine. This is consistent with no conviction being entered in the Court record notwithstanding the plea of guilty and the imposition of a fine. I believe I disclosed a conviction in relation to this matter in error when completing applications for re-registration as a Tax Agent in 1992 and 1995 lodged with the Respondent on 12 February 1992 and 16 March 1995 respectively (T42) (T45).
He was cross-examined about the matter without objection.
30 The applicant also contended that the Tribunal, by virtue of ss 85ZV and 85ZW of the Crimes Act 1914 (Cth) ('the Crimes Act'), was bound in the circumstances of this case, to not take account of the fact that the applicant appeared before the Magistrates' Court or the fact that he pleaded guilty to the charge. The operation of those two provisions under Div 3 of Pt VIIC of the Crimes Act - ss 85ZV and 85ZW - are, in express terms, made subject to Div 6 of Pt VIIC. Section 85ZZH relevantly says that Div 3 does not apply in relation to the taking into account of information by a tribunal established under a Commonwealth law for the purposes of making a decision. In my view, that provision is of general import, and does not just apply where a Tribunal is making a determination specifically referred to it in relation to a conviction, or where it is otherwise bound to take in to account a conviction. Accordingly, in my view, ss 85VZ and 85ZW have no application to the circumstances of this case.
31 Finally, other matters were raised by the applicant as to the Tribunal's failure to take into account certain matters, or reach various conclusions, which in my view involve no question or error of law. Each of the remaining grounds of the further amended notice of appeal and contentions went to the factual merits of the findings of the Tribunal, although as I have concluded, the Tribunal did not deal with the ultimate issue that needed consideration and determination, but considered the existence of 'special circumstances' for the purposes of applying s 251BC(3) of the Act.