Rawson Finances Pty Limited v Deputy Commissioner of Taxation [2010] FCAFC 139 (25 November 2010)

Last Updated: 30 November 2010

FEDERAL COURT OF AUSTRALIA

Rawson Finances Pty Limited v Deputy Commissioner of Taxation [2010] FCAFC 139

Citation:		Rawson Finances Pty Limited v Deputy Commissioner of Taxation [2010] FCAFC 139
Appeal from:		Rawson Finances Pty Limited v Deputy Commissioner of Taxation [2010] FCA 538
Parties:		RAWSON FINANCES PTY LIMITED ACN 078 272 956 v DEPUTY COMMISSIONER OF TAXATION
File number(s):		NSD 677 of 2010
Judges:		RYAN, STONE AND JAGOT JJ
Date of judgment:		25 November 2010
Date of hearing:	25 November 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	9
Counsel for the Applicant:	Ms R Seider with Ms S Kaur-Bains
Solicitor for the Applicant:	Argyle Lawyers Pty Limited
Counsel for the Respondent:	Mr A Robertson SC with Mr G T Johnson SC
Solicitor for the Respondent:	ATO Legal Services Branch

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 677 of 2010

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	RAWSON FINANCES PTY LIMITED ACN 078 272 956 Applicant
AND:	DEPUTY COMMISSIONER OF TAXATION Respondent

JUDGES:	RYAN, STONE and JAGOT JJ
DATE OF ORDER:	25 NOVEMBER 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The time for filing and service of the applicant’s notice of motion seeking leave to appeal be extended to 9 June 2010.

2. The application for leave to appeal be dismissed.

3. The applicant pay the respondent’s costs, to be taxed in default of agreement.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 677 of 2010

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	RAWSON FINANCES PTY LIMITED ACN 078 272 956 Applicant
AND:	DEPUTY COMMISSIONER OF TAXATION Respondent

JUDGES:	RYAN, STONE and JAGOT JJ
DATE:	25 NOVEMBER 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

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] FCAFC 271; (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] FCA 655; (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] HCA 7; (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.

Associate:

Dated: 29 November 2010