FEDERAL COURT OF AUSTRALIA

Pintarich v Deputy Commissioner of Taxation [2018] FCAFC 79

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant’s interlocutory application dated 8 March 2018 be dismissed.

3.    The appellant pay the respondent’s costs of the appeal and the interlocutory application dated 8 March 2018, to be taxed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

KERR J:

1    I have had the advantage of reading the reasons for judgment of Moshinsky and Derrington JJ. The relevant facts, the sequence of events and the parties’ arguments before the primary judge and before this Court are set out in their reasons, which, subject to the observations which follow, I gratefully adopt. I adopt the abbreviations in their Honours’ reasons. I regret I have come to a different ultimate conclusion than that reached by the majority in this appeal.

2    On Monday 8 December 2014 the Australian Taxation Office sent a letter to the taxpayer bearing the signature block of the first Deputy Commissioner. The letter was headed “Payment arrangement for your Income Tax Account debt.”

3    As is relevant to these proceedings it stated:

Thank you for your recent promise to pay your outstanding account. We agree to accept a lump sum payment of $839,115.43 on or by 30 January 2015.

This payout figure is inclusive of an estimated general interest charge (GIC) amount calculated to 30 January 2015. Amounts of GIC are tax deductable in the year in which they are incurred.

If you have any difficulties in making this payment by the agreed date, please contact us immediately.

Failure to make this payment by the agreed date may result in the commencement of legal action without further notice.

4    The taxpayer made payment in full of the lump sum referred to in that letter on 30 January 2015.

5    While we share a common view as to the construction of the letter I differ from their Honours’ reasoning that, notwithstanding the terms of that letter, on the evidence before the primary judge, the first Deputy Commissioner had not earlier made a ‘decision’ referable to the taxpayer’s request for remission of his GIC liabilities.

6    Accordingly I would uphold the taxpayer’s appeal. Because mine is a minority judgment I will confine myself to explaining why I differ on that short point.

The procedural history

7    The proceeding which is the subject of this appeal was commenced by the taxpayer by an originating application for judicial review. The decision the taxpayer sought to challenge was a decision of the Deputy Commissioner of Taxation dated 13 May 2016 for a partial remission of GIC pursuant to s 8AAG of the TA Act.

8    Although framed in that way, the taxpayer’s judicial review was only tangentially concerned with the decision he asserted to be invalid.

9    The premise of the taxpayer’s case was that, if the power to remit GIC had already been exercised, it could not be re-exercised. It was contended by the taxpayer that the first Deputy Commissioner’s letter of 8 December 2014 had already exercised the power to remit the GIC.

10    Hence, the central issue in the court below and in this appeal was whether the power conferred on the Commissioner by s 8AAG of the TA Act had in fact been exercised on or about 8 December 2014. The taxpayer contended that it had. The Deputy Commissioner contended that it had not.

11    The primary judge found in favour of the Deputy Commissioner.

Background

12    On 24 November 2014, Crowe Horwath, the taxpayer’s accountant and tax agent, sent a letter to the Commissioner on the taxpayer’s behalf requesting full remission of GIC. The amount in issue (approximately $335,000) was included in the total amount owing in the statement of account sent by the Australian Taxation Office (the ATO) on 10 November 2014.

13    Section 8AAG of the TA Act conferred the power to grant remission of GIC on the Commissioner. The volume of such matters in practice requires that power to be delegated. The Commissioner therefore had delegated certain of his powers including his powers to remit GIC to the person who held the office of Deputy Commissioner. Mr Celantano, an authorised officer in the Hobart office of the ATO had later been authorised to exercise certain of the Deputy Commissioner’s powers in the Deputy Commissioner’s name.

14    Mr Celantano was allocated the taxpayer’s request for remission of the GIC.

15    It is uncontentious that Mr Celantano had legal authority to remit in full the taxpayer’s GIC notwithstanding his then understanding that authorisation for remissions of more than $75,000 were to be approved by a more senior officer.

16    Conversations with respect to the taxpayer’s request for remission of the GIC took place between Mr Celantano and Mr Smith (of Crowe Horwath), and Mr Celantano and the taxpayer in early December 2014. The taxpayer does not challenge the primary judge’s findings regarding what was said by the parties to those conversations nor, in the case of the conversation that took place between the taxpayer and Mr Celantano, their differing understanding of what had been said. The majority address those matters at [93] to [99]. It is unnecessary for me to repeat them. It is sufficient for the purposes of these minority reasons to note that at [14] the primary judge accepted that it was conceivable that the taxpayer had understood Mr Celantano to have conveyed to him that if he made the lump sum payment he had agreed to make before February 2015 “it [the taxpayer’s total liability which included interest charges] will be all over and done with”. There is thus no basis for any suggestion that the taxpayer had reason to have apprehended that the letter he later received dated 8 December 2014 was other than the outcome of his discussions with Mr Celantano.

17    I proceed on the basis that there was nothing that should have put the taxpayer on notice that no such decision had been made.

18    Nonetheless, given the primary judge’s findings which have not been put in issue, this appeal must be resolved on the basis that Mr Celantano had not intended to communicate the result seemingly conveyed by the letter he caused to be sent on 8 December 2014. The primary judge’s findings were as follows:

18.    On Monday, 8 December 2014, a letter was sent by the Australian Taxation Office to the applicant. It was headed “Payment arrangement for your Income Tax Account debt” and bore the signature block of the first Deputy Commissioner. It thanked the applicant for his promise to pay his outstanding account. The letter continued:

We agree to accept a lump sum payment of $839,115.43 on or before 30 January 2015.

This payout figure is inclusive of an estimated general interest charge (GIC) amount calculated to 30 January 2015. ...

Failure to make this payment by the agreed date may result in the commencement of legal action without further notice.

Although the letter had a signature block, which recorded the name of the first Deputy Commissioner, it was unsigned. Nothing turns on this: see reg 45(2) of the Taxation Administration Regulations 1976 (Cth). Mr Celantano said that he had caused the letter to issue but was unable to explain how the sentence in the second extracted paragraph had come to be included. He had “keyed in” certain information into a computer-based “template bulk issue letter”. This process had generated the document. He had not read the letter before it was despatched. He deposed that what was said in the first two of the paragraphs, extracted above, did “not accord with the conversations” he had had with Mr Pintarich and Mr Smith. Mr Celantano said that he had not, at any time, made any decision, under s 8AAG, to remit any GIC, owing by Mr Pintarich.

…

46.     … Although, at trial, Mr Celantano had no independent recollection of his conversation with Mr Pintarich on 4 or 5 December 2014, his contemporaneous note recorded that the payment of Mr Pintarich’s primary tax should be made in full “whilst we consider the remission of general interest charged”. The proximity of those discussions (which took place on a Thursday or Friday), the notation entered into the case comments on Friday 5 December 2014 and the issuing of the letter on the following Monday 8 December 2014 suggest that Mr Celantano was seeking, in that letter, to record what he understood to be the outcome of those discussions and exchanges. It is unlikely that he would personally have proceeded to make a decision on the waiver application over the weekend. His subsequent conduct is inconsistent with him having done so.

…

50.     … Mr Celantano said that he made no decision on the application. He said that he had not done so because he did not consider that he had the necessary authority to waive the GIC amount involved. In this he was mistaken. Nonetheless, this was his state of mind at the relevant time.

19    As the primary judge recorded, Mr Celantano gave evidence about what he had done to cause the letter of 8 December 2014 to have been issued. His evidence was that he had inputted data into a number of fields and the letter had then been generated and sent out from another place. He said that he had not seen the letter at the time it was created. He said that the terms of the letter were “extracted from a template bulk issue letter” (transcript p 51 lines 38-39) and that there were “hundreds of template letters around” (transcript p 53 lines 28-29). He gave evidence that the interest component in the letter “shouldn’t have been in there” and that he didn’t expect it to be there or know it was there (transcript p 58 lines 20-25). He said that, in this respect, there was a “misalignment” between the conversations that took place and the purpose of the letter (transcript p 59 lines 14-20).

20    The primary judge reasoned (at [44]) that for Mr Celantano to have made a decision to remit the taxpayer’s GIC there had needed to be a “process of consideration and evaluation of relevant facts”.

21    The question was, his Honour stated at [49], “whether Mr Celantano, or anybody else, such as the first Deputy Commissioner, on or about 8 December 2014, made a reviewable decision to accede to Mr Pintarich’s 24 November 2014 application for remission of all GIC then owing by him”.

22    I infer that the primary judge’s reference to the question involving whether Mr Celantano had made a reviewable decision reflected his Honour’s earlier reasoning, which had been as follows:

42.    The alleged 8 December 2014 decision is not the subject of the present challenge. Nonetheless, it is relevant to determine whether that alleged decision, had it been made, would have been reviewable under the ADJR Act. Unless it was made and was a decision which bore the characteristics of a reviewable decision for the purposes of that Act, it is difficult to see how it could have had any impact on the decision impugned in this proceeding.

43.    In order for a decision to be reviewable under the ADJR Act “it will generally be necessary to point to a decision which is final or operative and determinative, at least in the practical sense, of an issue of fact falling for consideration; a conclusion reached as a step along the way in a course of reasoning to an ultimate decision ordinarily will not qualify as a reviewable decision”: see Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99 at 122; [2005] HCA 7 at [61] (Gummow, Callinan and Heydon JJ) summarising the principles earlier propounded by the Court in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 337 (Mason CJ, Brennan and Deane JJ agreeing).

44.    The making of a final and operative decision and its promulgation in some form must, necessarily, be preceded by a process of consideration and evaluation of relevant facts. The question of when these processes lead to the making of a reviewable decision was considered by Greenwood J in Guss v Commissioner of Taxation [2006] FCAFC 88; (2006) 152 FCR 88 at 107–108…

23    His Honour held that, in the facts established by the evidence, no such decision had been made:

50.    The making of any such decision would have required the decision-maker to turn his or her attention to the application and the reasons advanced for it, to decide whether one or more of the relevant parts of s 8AAG had application and to be satisfied that he or she had the necessary authority to make the decision. None of this occurred.

24    Hence, the primary judge held, neither Mr Celantano nor anyone else with authority to make that decision had made a decision to remit the GIC. Because the power to remit GIC had not already been exercised Mr Pintarich’s application for judicial review of the subsequent decision of the first Deputy Commissioner to refuse to remit all but a very minor component of that GIC as he had requested was therefore dismissed.

The appeal

25    The majority have set out the taxpayer’s grounds of appeal and it is unnecessary to repeat them.

26    As Moshinsky and Derrington JJ observe, the Deputy Commissioner essentially submits that the approach taken by the primary judge was correct.

A potential issue disowned

27    The Deputy Commissioner did not seek to uphold the later remission decision on the basis that his delegate Mr Celantano had made a mistake on or about 8 December 2014 such that what had the appearance of a decision was merely a purported decision invalid for jurisdictional error, and as such entitled to be treated by the Deputy Commissioner as having been in law no decision at all. Cases such as Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597 have established that such a premise in some circumstances may entitle a tribunal or decision maker to treat their earlier purported decision as a nullity such that the decision can be lawfully remade.

28    It is unprofitable to speculate as to the reasons for the Deputy Commissioner’s forensic decision not to rely on that premise. They may well have been sound. In any event, notwithstanding his later correspondence to the taxpayer in which he acknowledged a mistake had been made (the terms of that letter are set out at [110] of the majority’s reasons), and a similar acknowledgment of prior mistake in the reasons given by him for his later and challenged partial remission decision it is not open to this Court to find in the Deputy Commissioner’s favour in respect of a ground he has disowned.

29    The Deputy Commissioner’s submissions as advanced by Mr Hanks QC in this appeal remained as pressed before the primary judge; that is, having regard to all the facts and circumstances, there had been no decision, purported or otherwise, made by the first Deputy Commissioner or his delegate Mr Celantano acting in his name to remit the taxpayer’s GIC.

The construction question

30    I share the majority’s conclusion that the natural reading of the first Deputy Commissioner’s letter, in the context in which it was written (that is following shortly after a conversation between the taxpayer and the ATO officer responsible for generating the letter that had been about the taxpayer’s request for remission of the GIC) is that the Deputy Commissioner had agreed to accept payment of the lump sum amount on or before 30 January 2015 in full discharge of the taxpayer’s primary tax and GIC liabilities as in the statement of account issued to the taxpayer by the first Deputy Commissioner on 10 November 2014.

31    It is uncontentious that the amount shown as owing by the taxpayer to the ATO in the 10 November 2014 statement of account was $1,156,787.72. That sum was constituted by primary tax of approximately $821,000 and a GIC of approximately $335,000.

32     It is therefore common ground in the Full Court that the primary judge erred as to the correct construction of the first Deputy Commissioner’s letter of 8 December 2014.

The characteristics of a decision

33    I also share the majority’s conclusion that the cases cited by the primary judge concerning the reviewability of decisions under the ADJR Act provide limited, if any, assistance in determining whether or not a decision was made by Mr Celantano on or about 8 December 2014.

34    Where I differ from the majority is that I am unpersuaded that the reasoning of Finn J in Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422 (Semunigus), as accepted by the Full Court in Semunigus v Minister for Immigration and Multicultural Affairs [2000] FCA 240; 96 FCR 533, stands in a relevantly different position.

35    There are sound reasons to be sceptical of the utility of applying reasoning going to the essential elements of a ‘decision’ in the context of ordinary judicial review proceedings to a matter such as this. The nature of most judicial review proceedings involves the contention of a party affected by a seeming decision that what on its face appears to be a decision is in fact no such thing. It is merely a purported decision; and for a reason such as want of procedural fairness in its making, or a misunderstanding of the applicable law, it is liable to be set aside. Judicial expositions in that context as to what constitutes a decision will focus upon the considerations that distinguish a decision from a merely purported decision. The reasons in such cases are not directed at identifying what a decision and a purported decision share in common. As noted at [27] to [29] above, it is the minimum content of what they share in common that is critical.

36    The observation of Finn J at [19] in Semunigus (as set out by Moshinsky and Derrington JJ at [141]), was thus expressed in the context of his Honour then giving consideration as to whether the then Refugee Review Tribunal (RRT) had been functus officio when it had received a late submission on behalf of the applicant.

37    The sequence of events which had occurred giving rise to the proceedings in Semunigus were: (1) a member of the RRT signed his decision on 12 June 1998 and had handed it to the RRT registry staff for processing; (2) on the same day, but after the RRT member had signed his decision and passed it to the RRT registry staff, the applicant’s adviser sent further submissions to the RRT; (3) on 16 June the RRT registry staff had produced two unsigned copies of the decision (for the applicant and the Department of Immigration and Multicultural Affairs) and in accordance with the Registry’s usual practice had affixed the RRT seal on the documents and had written the date 16 June 1998 within the seal on each copy; and (4) by letter dated 18 June 1998, a Deputy Registrar of the RRT had advised the applicant of the decision and enclosed the sealed copy of the decision.

38    Finn J reasoned that he did not need to explore whether the Tribunal’s decision in fact had been made prior to, or was merely a part of, the preparation of the written statement that was signed by the Tribunal on 12 June. All he was required to consider was whether, when the decision and statement were signed and the statement handed to the registry for processing, the decision had been taken. He concluded that in those circumstances it had been. Thus the Tribunal in consequence had been functus officio later in that day when the applicant’s further submissions had been received.

39    The majority acknowledges that the issue considered in Semunigus is not the same as the issue arising in this case and that in particular it turned on what was the Tribunal’s overt act (there being no question that the Tribunal had reached its conclusion as the result of a mental process).

40    However the majority state (1) that they “consider the statement of Finn J to accurately capture the elements that are generally involved in the making of a decision”; and (2) that “we do not see any reason why this general statement of what is involved in making a decision should not apply to a decision to remit GIC under s 8AAG of the TA Act” (at [143]).

41    I accept the first of those propositions. Finn J’s observation is a fair statement of what is generally involved in the making of a decision.

42    However, as the reasoning of Martin CJ in Polo Enterprises Australia Pty Ltd v Shire of Broome [2015] WASCA 201; 49 WAR 134 establishes, there can be circumstances in which a person makes a decision without any explicit mental engagement. Moreover a person may make a decision which is not coincident with his or her intentions. Indeed that possibility is recognised and accommodated by the ‘slip rule’ whereby a judicial decision maker can correct inadvertent errors in his or her decisions.

43    Moreover Finn J was not then addressing, nor, understood in context did his Honour intend to address, what might constitute a merely purported decision.

44    As the literature regarding judicial review recognises many merely purported decisions continue to have practical effect unless and until set aside on judicial review after an application by a party with a sufficient interest to take that step.

45    Further, while I agree that Finn J’s statement still represents what is usually involved in a (valid) decision, I would respectfully observe that that may be rapidly becoming an artefact of the past.

46    The hitherto expectation that a ‘decision’ will usually involve human mental processes of reaching a conclusion prior to an outcome being expressed by an overt act is being challenged by automated ‘intelligent’ decision making systems that rely on algorithms to process applications and make decisions.

47    What was once inconceivable, that a complex decision might be made without any requirement of human mental processes is, for better or worse, rapidly becoming unexceptional. Automated systems are already routinely relied upon by a number of Australian government departments for bulk decision making. Only on administrative (internal or external) and judicial review are humans involved. This is not an entirely new phenomenon: see Administrative Review Council (Australia), Automated assistance in administrative decision making: report to the Attorney-General (2004) No 46. And, while yet still uncommon, some legislative schemes (see for example, s 66 of the Business Names Registration Act 2011 (Cth)) already explicitly provide for computer programs to make decisions that stand as the decision of an agency of government.

48    This trend is not restricted to government. Automated share trading is at the heart of international commerce. Machines make contracts with machines.

49    The legal conception of what constitutes a decision cannot be static; it must comprehend that technology has altered how decisions are in fact made and that aspects of, or the entirety of, decision making, can occur independently of human mental input.

Whether a decision has been made

50    For such reasons I respectfully differ from the majority in rejecting the second proposition that they draw from Semunigus. I am unpersuaded that Finn J’s broad observation as to what a decision usually will involve made in an entirely different context is a useful benchmark to determine the question before this Court.

51    In my opinion analysis of whether a decision has been made must be fact and context specific. It cannot be answered by comparing the facts of what happened in a particular instance against a boiler-plate statement of what decision making usually involves.

52    Its determination requires close assessment of whether the circumstances in which the conduct said to be, or not to be, a decision arose was within the normal practices of the agency and whether the manifestation of that conduct by an overt act would be understood by the world at large as being a decision.

53    As discussed below, the function carried out by Mr Celantano in respect of the taxpayer was within the normal practices of the ATO. He was doing the job he was paid to do. He had been allocated Mr Pintarich’s application for remission of the GIC. Mr Celantano had both actual and ostensible authority to make such a decision. His inputting data into the ATO’s decision template caused the mental processes he applied to that task to be manifested by an overt act. The letter he sent the taxpayer was no less a decision or a purported decision because, by reason of Mr Celantano not checking the text of the letter he generated, he did not make the decision he intended to make.

54    An order of this Court is a decision even if it does not express the intention of the judge or judges who make it. There may be processes allowing for such a decision’s recall and correction (or for appeal or review) but those involve separate and distinct concepts.

55    It would undermine fundamental principles of administrative law if a decision maker could renounce as ‘not a decision’ (and not even a purported decision) something he or she has manifested by an overt act taking the form of a decision simply by asserting there was a distinction between their mental processes and the expression of those mental processes in the overt act. There is no requirement that to be a decision the overt manifestation of the decision must align with the subjective intention of, or the conclusion intended by, the decision maker. It does not cease to be a decision for such a reason.

56    Some conduct manifested in the form of a decision will not rise even to the status of a purported decision. A dog catcher deciding to issue a tax demand might be an example. A demand of that kind may safely be disregarded as not having even seeming legal effect. However, where an authorised decision-maker’s overt act manifests as a decision on the basis of subject matter that is before him or her, I am unpersuaded that this Court is entitled to conclude that neither a decision nor a purported decision has been made.

57    The taxpayer had sought remission of his GIC as included in the running Statement of Account issued by the Deputy Commissioner on 10 November 2014.

58    It is uncontentious Mr Celantano was allocated the taxpayer’s request for remission of the GIC. He spoke to both the taxpayer’s accountant and the taxpayer so as to evaluate the taxpayer’s case advanced in that regard.

59    In those latter discussions either he or the taxpayer (there is no evidence on the question) proposed an arrangement to pay a lump sum in respect of a part of the amount owing under the Statement of Account before March 2015. That was agreed. Mr Celantano had both actual and ostensible authority to make such a decision.

60    Mr Celantano’s and the taxpayer’s then different understandings of what was to be included as ‘all over with’ in respect to the GIC is immaterial. That is because (a) the arrangement arose out of a discussion about Mr Celantano’s request for remission and was therefore materially in relation to that request; and (b) nothing put, or was apt to put, the taxpayer on notice that the letter he later received under the name of the Deputy Commissioner dated 8 December 2014 was inconsistent with Mr Celantano’s understanding of the decision.

61    Mr Celantano intended to create that letter and to cause it to be sent to the taxpayer. His action in doing so had a rational connection with the taxpayer’s application for remission of the GIC. It was an action taken in consequence of what Mr Celantano had concluded was the proper outcome – to defer his decision on that application but in the interim to grant the taxpayer a period of time to allow him to pay the other tax he owed the ATO as set out in the November Statement of Account.

62    To manifest that conclusion Mr Celantano inputted relevant information into certain fields selected from the “hundreds of template letters around”. There was no evidence as to which templates he chose, or what their terms were, but it is not in issue that his creation of the letter involved deliberate interactions between Mr Celantano and an automated system designed to produce, print and send letters to taxpayers.

63    In such circumstances, in my view it is not open to the Deputy Commissioner to renounce what was expressed in the name of the Deputy Commissioner as not constituting a decision because of a distinction between the mental process undertaken by Mr Celantano and the content of the letter of 8 December 2014 he caused to be sent under the name of the Deputy Commissioner. The position is no different to that which would have applied had he dictated a letter stating his conclusions, but by error it was returned to him in the form it took on 8 December 2014 and he had signed and sent it without checking.

64    It would turn on its head fundamental principles of administrative law if a decision maker was entitled unilaterally to renounce as ‘not a decision’ (and not even a purported decision) something he or she had manifested in the form of a decision by reason of a distinction between their mental process and the expression of their mental processes.

65    It would be productive of administrative uncertainty and confusion if the Deputy Commissioner were entitled to rely on a distinction between his officers’ subjective mental processes and the objective manifestation of those processes where correspondence has been sent in his name which, on its face, appears to the world to be a decision – at least where the officers have both ostensible and actual authority and nothing occurs as to put the recipient on notice that a letter they have received in the Deputy Commissioner’s name is not the decision it seems to be.

66    I note in that regard that the taxpayer had requested that Mr Celantano put the terms of his decision in writing so that he could borrow money from his bank on the strength of it. His bank, as the taxpayer did, proceeded on the strength of the representations in the letter he was sent that that payment would satisfy his full liability.

67    There is a high degree of artificiality in advancing the proposition that some parts of his letter should be disregarded as not a decision when the Deputy Commissioner does not dispute that the balance of his letter of 8 December 2014 manifested his decision with respect to the payment arrangement Mr Celantano, on his behalf, had agreed to.

68    The majority concludes that the payment arrangement was a separate matter from the taxpayer’s request for remission of the GIC. It had required a different and distinct conclusion to be reached. In my opinion the evidence is that the two were intertwined. In the circumstances prevailing, even on Mr Celantano’s understanding what he intended arose out of the only matter that had been before him, the taxpayer’s request for remission of the GIC in full. In that factual matrix the remission decision was not separate and distinct from but rather a component of Mr Celantano’s conclusion as to how he ought to address the taxpayer’s representations in respect of his case for the remission of the GIC.

69    As I have reached a conclusion that differs from that of the majority I must address a further submission advanced on behalf of the Deputy Commissioner that any decision to remit the taxpayer’s GIC was facially irregular because it could not have been made by Mr Celantano given the terms of s 8AAG of the TA Act.

70    The Deputy Commissioner did not advance the contention that the primary judge’s decision should be sustained on the basis that a merely purported decision had been made. However, assuming the decision was facially irregular, I proceed on the basis that that should have put the taxpayer and his advisers on notice that in law it was no decision at all.

71    However there is no basis to conclude that decision in the terms expressed by the Deputy Commissioner on 8 December 2014 was facially irregular.

72    Section 8AAG of the TA Act is as follows:

8AAG Remission of the charge

(1)    The Commissioner may remit all or a part of the charge payable by a person.

(2)    However, if a person is liable to pay the charge because an amount remains unpaid after the time by which it is due to be paid, the Commissioner may only remit all or a part of the charge in the circumstances set out in subsection (3), (4) or (5).

(3)    The Commissioner may remit all or a part of the charge referred to in subsection (2) if the Commissioner is satisfied that:

(a)    the circumstances that contributed to the delay in payment were not due to, or caused directly or indirectly by, an act or omission of the person; and

(b)    the person has taken reasonable action to mitigate, or mitigate the effects of, those circumstances.

(4)    The Commissioner may remit all or a part of the charge referred to in subsection (2) if the Commissioner is satisfied that:

(a)    the circumstances that contributed to the delay in payment were due to, or caused directly or indirectly by, an act or omission of the person; and

(b)    the person has taken reasonable action to mitigate, or mitigate the effects of, those circumstances; and

(c)    having regard to the nature of those circumstances, it would be fair and reasonable to remit all or a part of the charge.

(5)    The Commissioner may remit all or a part of the charge referred to in subsection (2) if the Commissioner is satisfied that:

(a)    there are special circumstances because of which it would be fair and reasonable to remit all or a part of the charge; or

(b)    it is otherwise appropriate to do so.

73    It can be accepted that the provisions of s 8AAG(2) applied in the instance of the taxpayer.

74    That acknowledged, the terms of s 8AAG(5) do not contain preconditions for the exercise of that discretion in terms that would require this Court (or the taxpayer and his advisers) to conclude that a remission decision in the circumstances of the taxpayer was facially invalid.

75    The majority accepts that there may be some perceived unfairness in the circumstances of this case but observes that this type of situation is unlikely to arise very often. Given the growing inter-dependency of automated and human decision making I am skeptical of the latter proposition assuming, as the majority concludes, the indicia of a decision require a conclusion reached after a mental process and the outward expression of the decision to reflect that conclusion. There is reason, in my view, to be concerned with giving license to such unfairness.

76    For the reasons I have stated above I am satisfied that both Grounds 1 and 2 of the taxpayer’s appeal have been made out. But for my being in the minority, I would have made orders accordingly.

77    Although no party in these proceedings either at first instance or on appeal drew attention to the position of the bank which lent Mr Pintarich the funds he required to make the lump sum payment he did, the unfairness that the majority refers to may not necessarily be confined to him. On the facts before the primary judge it was not put in issue that the bank had lent those funds after Mr Pintarich had supplied it with a copy of the letter of 8 December 2014 to assure the bank that that was the extent of his liability. The consequences of treating the Deputy Commissioner’s letter as of no account may be that the bank lent money which it otherwise would not have. The effect of the decision that the majority affirms in this instance may be to permit the Deputy Commissioner to put the ATO’s interests above that of a third party. As this matter was not raised, I have not decided this matter on that basis. Nor have I treated it as a relevant consideration as to the disposition of this appeal. On the view I take as to the disposition of this appeal, it is not necessary to consider whether the bank should have been joined to those proceedings.

The application to raise new grounds

78    I am satisfied that the new grounds sought to be advanced on behalf of the taxpayer are not without potential merit. However, having regard to well-established principles which limit the circumstances in which leave to raise new ground is to be granted to I respectfully adopt the reasoning and the conclusion of Moshinsky and Derrington JJ that, on the facts of this appeal, the appellant’s interlocutory application to raise new grounds not advanced at first instance must be rejected.

Associate:

Dated:    25 May 2018

REASONS FOR JUDGMENT

MOSHINSKY AND DERRINGTON JJ:

Introduction

79    The issue raised by this appeal concerns the remission of the General Interest Charge (GIC) that is imposed by taxation legislation. Under s 8AAG of the Taxation Administration Act 1953 (Cth) (the TA Act), the Commissioner of Taxation has the power to remit all or part of the charge payable by a person. That power has been delegated to the respondent (the Deputy Commissioner).

80    In the present case, the appellant (the taxpayer) applied for remission of all GIC that was payable by him in respect of his tax liabilities for the 2010, 2011, 2012 and 2013 years of income. He also applied for a ‘payment arrangement’ in respect of his liabilities. A delegate of the Deputy Commissioner, by ‘keying in’ certain information into a computer-based ‘template bulk issue letter’, caused a letter dated 8 December 2014 (the December 2014 letter) to be issued to the taxpayer to the effect that the Deputy Commissioner would accept a lump sum payment of a certain amount on or before a certain date. The amount specified in the letter was slightly greater than the taxpayer’s primary tax liability and significantly less than his total liability for primary tax and GIC.

81    The issue is whether, by issuing the December 2014 letter, the Deputy Commissioner made a decision to remit all GIC payable by the taxpayer save for the relatively small amount of GIC covered by the lump sum payment amount referred to in the letter, if the taxpayer paid the lump sum on or before the specified date. The taxpayer contends that the December 2014 letter constituted or manifested the making of such a decision. The Deputy Commissioner, on the other hand, contends that no decision was made, on or about 8 December 2014, on the application for remission of GIC.

82    The primary judge found that, at the time that the December 2014 letter was issued, the relevant delegate of the Deputy Commissioner had not undertaken a process of deliberation, assessment or analysis with a view to deciding whether or not to grant the taxpayer’s application for remission of GIC. The primary judge considered that the letter did not purport to be the communication of a decision on the application to remit GIC. His Honour also considered that, even if the letter were construed in the way contended for by the taxpayer, the surrounding circumstances did not evidence the making of a decision to remit GIC by the relevant delegate of the Deputy Commissioner or any other person.

83    The taxpayer does not challenge the primary judge’s findings of fact, but challenges the primary judge’s conclusion that the December 2014 letter did not constitute or manifest a decision to remit GIC.

84    For the reasons that follow, we do not consider that either of the taxpayer’s appeal grounds (set out below) is made out. In brief summary, in circumstances where, at the relevant time, neither the Deputy Commissioner nor any delegate of the Deputy Commissioner had reached a conclusion as to the application for remission of GIC, it is not established that a decision was made to remit GIC. This is the case even if the December 2014 letter is construed in the way contended for by the taxpayer.

85    It is convenient to note at this point that, although the issue raised by the proceeding below concerned whether a decision to remit GIC had been made on or about 8 December 2014, the proceeding was framed as an application for judicial review of a later decision, made on or about 13 May 2016 (the May 2016 decision), to partially remit GIC. That decision was less favourable for the taxpayer than the December 2014 letter, as construed by the taxpayer. The taxpayer challenged the May 2016 decision on the basis that the Deputy Commissioner had already made a decision to remit GIC (on or about 8 December 2014); accordingly, the May 2016 decision was said to be ultra vires. The case was conducted on both sides on the basis that, if the Deputy Commissioner had, on or about 8 December 2014, made a decision to remit GIC, the May 2016 decision was beyond power. Having concluded that the Deputy Commissioner had not, on or about 8 December 2014, made a decision to remit GIC, the primary judge dismissed the taxpayer’s application.

86    At the hearing of the appeal, the Court raised with the taxpayer’s counsel whether the taxpayer sought to pursue alternative formulations of his case based on contract or estoppel. After obtaining instructions, it was indicated on behalf of the taxpayer that he sought leave to rely on these alternative grounds. Orders were made to the effect that: the taxpayer have leave to file an application to amend his notice of appeal, together with an affidavit and submissions; and the Deputy Commissioner have leave to file and serve responsive submissions. It was arranged that any such application would be determined on the papers. For the reasons set out below, we would dismiss the application for leave to rely on the alternative grounds.

The legislation

87    Before setting out the background facts, it is convenient to set out s 8AAG of the TA Act. It provides (and at all relevant times provided) as follows:

8AAG Remission of the charge

(1)    The Commissioner may remit all or a part of the charge payable by a person.

(2)    However, if a person is liable to pay the charge because an amount remains unpaid after the time by which it is due to be paid, the Commissioner may only remit all or a part of the charge in the circumstances set out in subsection (3), (4) or (5).

(3)    The Commissioner may remit all or a part of the charge referred to in subsection (2) if the Commissioner is satisfied that:

(a)    the circumstances that contributed to the delay in payment were not due to, or caused directly or indirectly by, an act or omission of the person; and

(b)    the person has taken reasonable action to mitigate, or mitigate the effects of, those circumstances.

(4)    The Commissioner may remit all or a part of the charge referred to in subsection (2) if the Commissioner is satisfied that:

(a)    the circumstances that contributed to the delay in payment were due to, or caused directly or indirectly by, an act or omission of the person; and

(b)    the person has taken reasonable action to mitigate, or mitigate the effects of, those circumstances; and

(c)    having regard to the nature of those circumstances, it would be fair and reasonable to remit all or a part of the charge.

(5)    The Commissioner may remit all or a part of the charge referred to in subsection (2) if the Commissioner is satisfied that:

(a)    there are special circumstances because of which it would be fair and reasonable to remit all or a part of the charge; or

(b)    it is otherwise appropriate to do so.

Background facts

88    The following statement of the background facts is substantially based on the reasons of the primary judge (the Reasons). There was no challenge on appeal to any of the primary judge’s findings of fact.

89    The taxpayer had failed to file timely tax returns for the 2010, 2011, 2012 and 2013 years of income. On 4 November 2014, a Deputy Commissioner of Taxation (the first Deputy Commissioner) issued notices of assessment to the taxpayer in respect of the 2010, 2011 and 2012 years of income. The assessments were for amounts of $807,797.95, $3,264.40 and $7,703.25, respectively.

90    On 10 November 2014, the first Deputy Commissioner issued a further notice of assessment, in respect of the 2013 year for an amount of $2,474.15.

91    On the same day, the first Deputy Commissioner also issued a statement of account which showed that the taxpayer owed the sum of $1,156,787.72. This related to the four years of income, namely the 2010, 2011, 2012 and 2013 years of income. The amount of $1,156,787.72 comprised primary tax of approximately $821,000 and GIC of approximately $335,000.

92    On 24 November 2014, the taxpayer’s accountant, Mr Drew Smith, wrote to the Australian Taxation Office on the taxpayer’s behalf seeking a full remission of GIC. The letter provided details of the basis of the application.

93    On 2 December 2014, correspondence by telephone and email passed between Mr Smith and Mr Ian Celantano. Mr Celantano, an authorised officer in the Hobart office of the Australian Taxation Office, had been authorised to perform certain functions and exercise certain powers in the name of the person who from time to time held the position of Deputy Commissioner of Taxation. Those functions and powers had originally been delegated by the Commissioner of Taxation to the office of the Deputy Commissioner. Mr Celantano gave evidence in his affidavit that he was allocated the taxpayer’s request for remission of GIC. During the exchanges with Mr Smith, Mr Celantano sought further information about the taxpayer’s circumstances including a claim by the taxpayer that the delay in filing returns had been occasioned by ongoing Family Court proceedings between the taxpayer and his former wife.

94    Mr Smith responded to these queries by email on 4 December 2014. The matters dealt with included the means by which the taxpayer was proposing to obtain funds to pay his income tax debt and the reasons for the late lodgement of the tax returns. Although the primary judge did not make a finding to this effect, it appears that, following Mr Smith’s response, there were no outstanding requests for information relating to the application for remission of GIC.

95    Further telephone communications between Mr Celantano, the taxpayer and Mr Smith occurred on 4 or 5 December 2014. In paragraph 8 of his affidavit, the taxpayer recalled the substance of his telephone conversation with Mr Celantano as follows:

(a)    Mr Celantano asked me for information about why I didn’t lodge my 2010, 2011 and 2012 tax returns;

(b)    I said knew nothing about it because I hadn’t seen any paperwork, and that I left all that to my advisors;

(c)    Mr Celantano mentioned the $818,765.60 plus General Interest Charges of $337,411.96;

(d)    I said I’d been through a long divorce trial, where the Family Court had refused to make a decision, and I was up for $3 million in legal fees;

(e)    I said I was trying to sell assets and pay mortgages, but it was all in the hands of [the] trustee … and it needed the full consent of my ex-wife which she didn’t give;

(f)    I said I’d only just got back the control of the assets.

(g)    Mr Celantano said I know what you’re going through, I’ve come across these Family Court matters routinely;

(h)    I said I don’t have any money to pay the tax and interest and I will go broke and have to declare myself bankrupt;

(i)    I said there is some land my company is developing which would give me about $820K in equity;

(j)    Mr Celantano said if you make sure you can pay it by February 2015 then it will all be over and done with;

(k)    I said put it in writing so I can take it to the bank.

96    Mr Celantano made a contemporaneous note of this telephone conversation with the taxpayer. The primary judge stated that, subject to one matter, there were no material differences between their accounts. Mr Celantano recorded:

Received voicemail from Joe Pintarich today at 9:32am requesting a call back to [his telephone number]. Contacted Joe at 3:20pm … .

After background 12 year history of Joe’s divorce commencing in 2002, orders that were made in 2010 which resulted in a trustee appointed in 2010 that caused further grief due to mishandleing [sic] of his vast business and property portfolio including the Trustee still involved with Super Fund that is a continued mess.

Joe advised this is the first time in a long long time he has been able to see any light towards resolution of his problems and has spent the last 4-5 months, starting to clean up their affairs. The court orders resulted in things (assets) taken off him but the trustee they stuffed it up and then dumped it back on him but again stated the Tax office should have been informed about ongoing developments with his divorce.

Joe advised he will pay the debt outstanding because that is the type of person he is and doesn’t want to shirk his responsibilities.

After a long clearance of land that was previously unusable he has since developed into a series of commercial properties including General Motors Holden as a tenant with a 30 years lease and is now in a position to remortgage.

Joe advised his accountant Drew has approached solicitors to re mortgage the property to obtain a loan but he has also approached his financier ANZ bank to do the same.

We put forward that we require the primary tax of $821,762.75 paid in full whilst we consider the remission of general interest charge currently $344,216.13.

Joe offered to pay the primary tax in full before Christmas or in early January at the latest by remortgageing the GMH Motors property.

… Advised Joe we would agree to the payment in full and would contact his authorised representative to formalise his payment arrangement.

97    As the primary judge noted, the matter on which the accounts of the taxpayer and Mr Celantano differed related to the scope of the “arrangement”. Mr Celantano said that he had told the taxpayer that the Australian Taxation Office required that the primary tax debt owing be paid in full “whilst we consider the remission of general interest charge”. The taxpayer deposed that Mr Celantano had told him that “if you make sure you can pay it by February 2015 then it will all be over and done with” (emphasis added). The primary judge stated that the first “it” clearly referred to the agreed amount, but the second “it” begged the question of what would be “all over and done with” if the payment was made by February 2015. The primary judge stated that the two accounts were reconcilable if the second “it” referred to the dispute over the non-payment of the primary taxation liability to which Mr Celantano said he was referring. It was, however, conceivable, the primary judge noted, that the taxpayer understood Mr Celantano to be referring to the taxpayer’s total liability, which included interest charges.

98    A telephone conversation between Mr Celantano and Mr Smith occurred shortly after that between and Mr Celantano and the taxpayer. Again, Mr Celantano made notes of the conversation. He recorded that:

Received call back from Drew [Smith] at 3;40pm [sic] … . Discussed with Drew the recent conversation with Joe Pintarich and discussions around obtaining payment in full of the primary tax component of $821,762.75 whilst we reviewed the request for remission of GIC.

Joe indicated he would be able to obtain finance either before Christmas or shortly there after [sic] in the new year. Advised Drew that we didn’t think this was feasible or realistic but advised the Commissioner would accept an arrangement of payment in full of the primary tax of $821762.75 on or before 31 January 2014 [sic].

Drew advised that it would be sensible and requested a lump sum arrangement by 31 January 2014 [sic] with payment slips issued to their office … .

Provided payment arrangement conditions and disconnected. Inputted lump sum payment in ICP [the Integrated Core Processing system] of $821,762.75 due 30 January 2014 [sic] as 31st is a non bank day (Saturday).

99    At the end of the note Mr Celantano explained his reasons for agreeing to the arrangements that he had discussed with the taxpayer and Mr Smith:

Decision to enter arrangements in line with PSLA [Practice Statement Law Administration] 2011/14 paragraph 61 which in part states

61.     Without limiting the Commissioner’s discretion in relation to a particular case, the following factors will be taken into account in determining whether to accept payment by instalments:

•    the information provided by the taxpayer and other information that may be held (or obtained) by the Commissioner

•    the circumstances that led to the inability to pay

•    the taxpayer’s current financial position, including other current payment obligations and actions taken by the taxpayer to rearrange finances or borrow to meet the debt

•    the stage that any legal recovery action has reached and any grounds offered by the taxpayer to justify a request that further legal action be deferred

•    the offer made and the ability to meet payment of the debt (and the additional charges for late payment imposed by legislation) on those terms without seriously impacting on the taxpayer’s ability to meet other obligations

•    compliance with other taxation obligations or commitments (for example, whether all lodgement obligations including activity statements (BAS/IAS) are up to date) and the history of the taxpayer’s prior dealings with the Commissioner , and

•    the willingness of the taxpayer to accept the conditions under which the Commissioner will agree to a payment arrangement.

Authority to agree to [an] arrangement in line with taxation authorisation guideline 1.8.5.

100    On Friday, 5 December 2014, Mr Celantano placed a notation on the taxpayer’s case comments report in which he said: “Payment arrangment [sic] inputted – see attached notes”.

101    On Monday, 8 December 2014, the December 2014 letter was sent by the Australian Taxation Office to the taxpayer. It was headed “Payment arrangement for your Income Tax Account debt” and bore the signature block of the first Deputy Commissioner. The first four paragraphs of the letter were as follows:

Thank you for your recent promise to pay your outstanding account. We agree to accept a lump sum payment of $839,115.43 on or by 30 January 2015.

This payout figure is inclusive of an estimated general interest charge (GIC) amount calculated to 30 January 2015. Amounts of GIC are tax deductible in the year in which they are incurred.

If you have any difficulties in making this payment by the agreed date, please contact us immediately.

Failure to make this payment by the agreed date may result in the commencement of legal action without further notice.

Although the letter had a signature block, which recorded the name of the first Deputy Commissioner, it was unsigned. Nothing turns on this: see reg 45(2) of the Taxation Administration Regulations 1976 (Cth) (as in force at the date of the letter). In his evidence before the primary judge, Mr Celantano said that he had caused the letter to be issued but was unable to explain how the first sentence in the second paragraph had come to be included. Mr Celantano gave evidence that he had “keyed in” certain information into a computer-based “template bulk issue letter”. This process had generated the document. He had not read the letter before it was despatched. He deposed that what was said in the first two of the paragraphs did “not accord with the conversations” he had had with the taxpayer and Mr Smith. Mr Celantano gave evidence that he had not, at any time, made any decision under s 8AAG to remit any GIC owing by the taxpayer.

102    The taxpayer duly paid the sum of $839,115.43 to the Australian Taxation Office on 30 January 2015. That payment was confirmed by Mr Smith in an email to Mr Celantano on the same day.

103    In the meantime, on 11 December 2014, 7 January 2015 and 14 January 2015 further statements of account had been issued by the Australian Taxation Office to the taxpayer. A further statement of account was issued on 5 February 2015. The statements disclosed a (progressively increasing) outstanding balance because of accruing interest.

104    On 23 February 2015 Mr Smith wrote to Mr Celantano. Mr Smith’s email read:

Please find attached copy of a letter we received form [sic] the ATO [Australian Taxation Office] in relation to the settlement of the ATO debt for Mr Pintarich.

The $839,115.43 that was paid to the ATO is as per the attached letter which refers to the payment being inclusive of GIC.

Can you please update as to the status of the matter given the contents of the letter received by Mr Pintarich.

105    Mr Celantano replied by email on the same day, stating that:

We’re currently reviewing your application for remission of GIC previously made.

Our agreement was to pay the primary debt which was $821,762.75 which your client has made.

106    Within minutes Mr Smith wrote again, saying:

Can you please advise on the letter we received which stated a different figure.

The reality is my client has absolutely no capacity to borrow any further funds and the ANZ Bank were only willing to allow Mr Pintarich to borrow further funds of [sic] the back of the letter received from the ATO.

107    Mr Celantano continued to consider the application for remission which had been made on 24 November 2014. By office memorandum dated 21 April 2015, Mr Celantano recommended that a decision be made that the application for remission of GIC incurred prior to 24 November 2014 be refused but that any GIC incurred between 24 November 2014 and the date of the decision should be remitted because of the delay in determining the application. The memorandum contained a recital of relevant facts and findings made on each of the criteria stipulated by subsections (3), (4) and (5) of s 8AAG of the TA Act. The memorandum was sent to a more senior, executive-level, officer who had an authorisation with no monetary limit to remit interest charges. In the course of argument before the primary judge, it became common ground that Mr Celantano held a similar authorisation, with no monetary limit, from the first Deputy Commissioner. Mr Celantano, however, believed that he was constrained by an internal policy of the Australian Taxation Office, which provided that the maximum amount that an officer at his level of seniority should remit was $75,000.

108    Mr Celantano’s recommendation was, for the most part, accepted. On 15 May 2015 a second Deputy Commissioner of Taxation (the second Deputy Commissioner) wrote to the taxpayer. He advised that consideration had been given to the taxpayer’s request of 24 November 2014 for remission of GIC. The taxpayer was advised that his request for full remission of GIC had been denied and reasons for that decision were provided. Remission of GIC accrued from 2 January 2015 to 14 days after the date of the letter was granted due to “a delay in responding to [the] request”. He was advised that payment in full of the outstanding GIC was required within 14 days. The sum involved was $344,604.90. Under the second Deputy Commissioner’s signature block, which included an actual signature, there appeared: “Per (Ian Celantano)”.

109    By letter dated 17 June 2015, Mr Smith provided to the Australian Taxation Office a detailed summary of the taxpayer’s financial position and the previous dealings between the taxpayer and the Deputy Commissioner. This submission was intended “to correct errors of fact in [the] letter” of 15 May 2015. Mr Smith asserted at page 6 of the letter that “the facts as presented fall within the scope of circumstances upon which the Commissioner may remit all or part of any GIC”. He asked that the decision to refuse to remit GIC be reconsidered.

110    The request was considered by the second Deputy Commissioner. By letter dated 18 August 2015, that Deputy Commissioner advised the taxpayer that his application had been refused. There would be no remission and the outstanding amount, then being $361,222.47, remained due and payable. At paragraph 5, the letter stated:

We wish to advise you that the letter issued by the Deputy Commissioner of Taxation … dated 8 December 2014 titled ‘payment arrangement for your income tax Account debt’ (‘the letter’) was issued in error. The outstanding amount of $839,115.431 [sic] in the letter did not include the entire amount of GIC which had accrued on the entire amount of outstanding debt up to and including 8 December 2014.

111    The second Deputy Commissioner, in the letter of 18 August 2015, also advised the taxpayer that he had not provided the required financial information and that he could submit another GIC remission request with supporting documentation.

112    By letter dated 8 September 2015, Mr Smith advised the Australian Taxation Office that the taxpayer proposed to accept the offer to apply for remission of the GIC impost. The letter concluded with the following paragraph:

By accepting your offer to proceed with a further submission for remission, Mr Pintarich should not be taken as agreeing that an amount of GIC is owing, for he remains of the view that he owes nothing further to the Australian Taxation Office. Accordingly, Mr Pintarich reserves his right to dispute both the correctness of your assertion that the Commissioner can retrospectively treat the letter of 8 December 2014 as issued in error and the Commissioner’s attempts to impermissibly repudiate the agreement actually made by him on 8 December 2014.

113    On 9 September 2015, the second Deputy Commissioner confirmed by letter that a further application for remission of GIC would be entertained provided that it was lodged by 30 September 2015.

114    Having obtained an extension of time the taxpayer made a further request for remission by letter dated 16 October 2015 sent by Mr Smith to the Australian Taxation Office.

115    This request was allocated to an officer other than Mr Celantano. Following consideration of an internal submission prepared by that officer, a senior officer formed the view in March 2016 that partial remission should be granted.

116    By letter dated 13 May 2016, the first Deputy Commissioner, whose name had earlier appeared on the letter of 8 December 2014, advised the taxpayer that a partial remission of the GIC owing would be granted. This was the impugned decision. One of the reasons given for the partial remission was that:

You were erroneously advised that the sum of $839,115.43 would satisfy the outstanding debt and was a ‘payout figure’. This lead [sic] to you borrowing funds to pay the tax amounts within 2 months. Although the ‘payout figure’ may be construed as misleading, a Notice for Income Tax and Running Account Balance issued on 11 December 2014 for the period 1 December 2014 to 8 December 2014, advised of accruing GIC amounts, with a total debt of $1,166,902.00. This would have been an indication to you that the GIC component had not been satisfied and was still outstanding. Further notices issued on 7 January 2015, 14 January 2015 and 50 [sic] February would have been further indications of accruing GIC.

The first Deputy Commissioner acknowledged that there had been a delay in responding to the taxpayer’s initial GIC remission request and that the taxpayer had sought finance “to pay the amount demanded in the letter of 8 December 2014”. These considerations justified, he decided, partial but not full remission.

The proceeding at first instance

117    The proceeding at first instance was commenced by originating application for judicial review. By the originating application, the taxpayer sought review of the May 2016 decision pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act). Under the heading “Details of claim”, it was stated:

1.    The Respondent had, by its letter of 8 December 2014 to the Applicant, already exercised its discretion under s.8AAG to accept a lump sum payment of $839,115.43 inclusive of General Interest Charges, as a “payout figure” in respect of the Applicants then outstanding tax debts.

2.    The Applicant made that lump sum payment to the Respondent in accordance with the exercise of that discretion.

3.    The Respondent subsequently purported to revoke or otherwise revisit that exercise of discretion by its decision of 13 May 2016, which the Applicant says the Respondent is and was not permitted to do.

118    The taxpayer relied on a single ground of review, as follows:

1.    The Respondent’s decision of 13 May 2016 is ultra vires for the purposes of ss. 5(1)(c) and/or 5(1)(d) of the Administrative Decisions (Judicial Review) Act 1977 (Cth).

119    The following orders were sought by the taxpayer:

1.    An order quashing or setting aside the Respondent’s decision of 13 May 201 [sic] with effect from 8 December 2014.

2.    An order declaring that:

(a)    The Respondent’s decision of 8 December 2014 was a proper exercise of its discretion under s.8AAG of the Taxation Administration Act 1953;

(b)    The Applicant fulfilled the requirements of the Respondent’s decision of 8 December 2014; and

(c)    The Respondent is unable to revoke, vary, or otherwise revisit its decision of 8 December 2014.

3.    Any other order or consequential order the Court deems fit.

4.    Costs.

Decision of the primary judge

120    The primary judge set out the facts at [5]-[33] of the Reasons. This part of the Reasons has been substantially reproduced above. The primary judge outlined the parties’ cases at [34]-[39]. As noted at [35] of the Reasons, the taxpayer contended that the May 2016 decision was ultra vires because the Deputy Commissioner had, by the December 2014 letter, made a decision, under s 8AAG of the TA Act, to remit GIC, with the consequence that, in May 2016, there was no GIC owing that could be made the subject of a remission decision. Further, the taxpayer contended, it was not open to the Deputy Commissioner, in May 2016, to revoke or vary his earlier decision.

121    The primary judge’s reasoning was set out at [40]-[57] of the Reasons. At [40], the primary judge stated that the taxpayer’s challenge to the May 2016 decision could only succeed if, in fact, the alleged “decision” had been made on or about 8 December 2014 and that decision rendered the impugned decision wholly otiose. The primary judge stated that there could be no doubt that, on or about 8 December 2014, Mr Celantano, as an authorised officer, made a number of decisions that were recorded in the letter of that date. The primary judge stated: “The question is whether he made the alleged decision to accede to Mr Pintarich’s application for remittal of GIC under s 8AAG of the TA Act.”

122    At [42] of the Reasons, the primary judge noted that the alleged 8 December 2014 decision was not the subject of the present challenge. His Honour continued: “Nonetheless, it is relevant to determine whether that alleged decision, had it been made, would have been reviewable under the ADJR Act.” His Honour added that “[u]nless it was made and was a decision which bore the characteristics of a reviewable decision for the purposes of that Act, it is difficult to see how it could have had any impact on the decision impugned in this proceeding”, that is, the May 2016 decision. His Honour then referred, at [43], to the principle that, in order for a decision to be reviewable under the ADJR Act, it will generally be necessary to point to a decision that is final or operative and determinative, citing Griffith University v Tang (2005) 221 CLR 99 at [61] and Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 337.

123    At [44], the primary judge stated that “[t]he making of a final and operative decision and its promulgation in some form must, necessarily, be preceded by a process of consideration and evaluation of relevant facts”, referring to Guss v Commissioner of Taxation (2006) 152 FCR 88 at [75]-[76].

124    His Honour then said, at [45], that the question whether or not Mr Celantano, or anybody else, made the alleged decision in December 2014 “is one of fact to be determined on the evidence before the Court”. His Honour added that the December 2014 letter “may provide evidence that a decision had been made but the letter is not, itself, that decision”.

125    It appears from [46] and [47] of the Reasons that, in the primary judge’s view, the preferable construction of the December 2014 letter was that it did not purport to communicate or record a decision on the application for remission of GIC. At [47], his Honour said that a “strained reading” of the December 2014 letter “may support the contention that it recorded a decision that the Australian Taxation Office would accept the sum of $839,115.43 on or before 30 January 2015 as full and final settlement of all Mr Pintarich’s tax debts and interest charges owing on that day”. However, the primary judge considered that a “more natural reading” of the letter, when understood against the background of the previous week’s exchanges, “is that this figure [ie, $839,115.43] was made up of the $821,762.75 which was Mr Pintarich’s primary debt on 8 December 2014 together with anticipated interest accruing between then and 30 January 2015”.

126    The primary judge appears to have implicitly, if not expressly, accepted that, as recorded in Mr Celantano’s contemporaneous note, Mr Celantano had said to the taxpayer that payment in full of the primary tax was required “whilst we consider the remission of general interest charge”. The primary judge stated at [46]:

Although, at trial, Mr Celantano had no independent recollection of his conversation with Mr Pintarich on 4 or 5 December 2014, his contemporaneous note recorded that the payment of Mr Pintarich’s primary tax should be made in full “whilst we consider the remission of general interest [charge]”.

127    The primary judge also stated at [46]:

The proximity of those discussions (which took place on a Thursday or Friday), the notation entered into the case comments on Friday 5 December 2014 and the issuing of the letter on the following Monday 8 December 2014 suggest that Mr Celantano was seeking, in that letter, to record what he understood to be the outcome of those discussions and exchanges. It is unlikely that he would personally have proceeded to make a decision on the waiver application over the weekend. His subsequent conduct is inconsistent with him having done so. No other alleged decision-maker has been identified. There is, for example, no evidence that the first Deputy Commissioner, whose name appeared on the signature block of the letter dated 8 December 2014, had personally made a decision on the waiver application at that time.

128    The primary judge acknowledged, at [48], the second Deputy Commissioner’s view (conveyed to the taxpayer by letter on 18 August 2015) that the December 2014 letter had been “issued in error”. His Honour also noted that, in the 13 May 2016 letter, it was stated that the “payout figure” in the December 2014 letter “may be construed as misleading”. His Honour said that it did not follow, however, that the December 2014 letter should be so construed. Further, his Honour said that “[t]his lack of clarity may explain the consternation and uncertainty which followed the issue of that letter but it does not, necessarily, evidence the making of a decision to waive all accumulated GIC”.

129    At [49], the primary judge said that “[t]he question remains whether Mr Celantano, or anybody else, such as the first Deputy Commissioner, on or about 8 December 2014, made a reviewable decision to accede to Mr Pintarich’s 24 November 2014 application for remission of all GIC then owing by him”. His Honour said that he did not consider that such a decision was made. His Honour’s core reasoning for reaching this conclusion was set out at [50]-[56] of the Reasons:

50    The making of any such decision would have required the decision-maker to turn his or her attention to the application and the reasons advanced for it, to decide whether one or more of the relevant parts of s 8AAG had application and to be satisfied that he or she had the necessary authority to make the decision. None of this occurred. As mentioned, there was no evidence that any other officer, or the first Deputy Commissioner personally, had considered or determined the application at the relevant time. Mr Celantano said that he made no decision on the application. He said that he had not done so because he did not consider that he had the necessary authority to waive the GIC amount involved. In this he was mistaken. Nonetheless, this was his state of mind at the relevant time. He acted consistently with this view. By email dated 23 February 2015, he told Mr Smith that the Australian Taxation Office was reviewing the application for waiver of the GIC. He subsequently prepared submissions in a memorandum dated 21 April 2015 for consideration by a more senior officer whom he believed had the necessary authority and made recommendations in that memorandum as to the disposition of Mr Pintarich’s waiver application. This led to the making of a decision to refuse the application. The senior officer approved Mr Celantano’s recommendation and made the decision. Mr Pintarich was advised of the decision by letter dated 15 May 2015.

51    On 17 June 2015 Mr Smith made a detailed submission on behalf of Mr Pintarich correcting what he said were errors of fact in the 15 May 2015 letter and renewing the application for waiver of accumulated GIC. In one paragraph, on the first page of the six page document, Mr Smith drew attention to the fact that the reasons for the 15 May 2015 decision, recorded in the letter of that date, did not refer to the 8 December 2014 letter and, particularly, to the advice that the first Deputy Commissioner would accept a lump sum payment on or before 30 January 2015 which included an estimated GIC amount calculated to 30 January 2015. Mr Smith did not, however, assert that any decision had been made on 8 December 2014 to waive all Mr Pintarich’s accrued GIC.

52    On 18 August 2015 the second Deputy Commissioner responded to Mr Smith’s submissions of 17 June 2015 and, again, refused the application for waiver. In doing so, that Deputy Commissioner, as already noted, made the statement that the 8 December 2014 letter had been “issued in error”.

53    Not satisfied, Mr Smith made a further submission seeking remission of outstanding GIC. He did so by letter dated 16 October 2015. This letter was eight pages in length and addressed some of the s 8AAG criteria. On the second page, Mr Smith specifically reserved Mr Pintarich’s rights in relation to the decision said to have been recorded in the 8 December 2014 letter. He stated:

[Mr Pintarich] reserves his right to dispute both the correctness of your assertion that the Commissioner can retrospectively treat the letter of 8th December, 2014 as issued in error and the Commissioner’s attempts to impermissibly repute [sic] the agreement actually made by him on the 8th December, 2014.

54    These further submissions resulted in the first Deputy Commissioner’s impugned decision conveyed by letter on 13 May 2016.

55    The history of the dealings between Mr Pintarich (and his representative) and the Australian Taxation Office after 8 December 2014 is not determinative of the question of whether a decision of the kind alleged was made on that day. It is, however, clear that Mr Celantano, the other officers in the Australian Taxation Office who were involved and the Deputy Commissioners in whose names decisions were made, considered that Mr Pintarich’s application of 24 November 2014 remained unresolved at least until the 15 May 2015 decision to refuse the application. It was that decision which, thereafter, Mr Pintarich sought to reopen, a process which culminated in the making of the impugned decision. No such process preceded the making of the agreement recorded in the 8 December 2014 correspondence.

56    The making of a decision required a process of deliberation, assessment and/or analysis on the part of Mr Celantano with a view to deciding whether or not to grant Mr Pintarich’s application for waiver of the GIC. He did not undertake any of those facets of decision-making in regard to the application prior to the issuing of the 8 December 2014 letter. Such thought processes which did engage him related to the proposals which had been canvassed with him during the previous week relating to the payment of the outstanding tax liability together with such interest as might accrue between the time at which he made his decision and the payment. The 8 December 2014 letter was intended to confirm Mr Celantano’s appreciation of what had been agreed. Unfortunately, its final draft was not reviewed by Mr Celantano before it was despatched and did not employ language that he might, in retrospect, have preferred to use to record the agreement. The letter was not and did not purport to be the communication of a decision relating to the GIC waiver application. Even if it be construed in the manner contended for by Mr Pintarich, the surrounding circumstances did not evidence the making of such a decision by Mr Celantano or any other person.

(Emphasis added.)

130    The primary judge concluded at [57] of the Reasons that, as no decision had been made on 8 December 2014 to remit the taxpayer’s GIC liability, there was no reason why the May 2016 decision should not stand and operate according to its terms. Accordingly, the taxpayer’s application was dismissed with costs.

The appeal

131    The taxpayer appeals from the whole of the judgment of the primary judge. The notice of appeal sets out two grounds of appeal:

1.    Having regard to the fact that the purported decision to remit general interest charge was manifested in writing by letter from the respondent to the appellant dated 8 December 2014, the learned trial judge erred in concluding that subjective evidence given by the purported decision maker ought to be determinative in concluding that no remission decision had been made.

2.    The learned trial judge ought to have decided that, having regard to the content of the letter and the circumstances in which it was received, the letter manifested a decision by the respondent to remit general interest charge.

Consideration of the appeal

132    It is convenient to deal together with the taxpayer’s two grounds of appeal. This is consistent with the approach taken in the taxpayer’s submissions.

133    The taxpayer frames the issue in the proceeding as being whether, by the December 2014 letter, the Deputy Commissioner made a decision pursuant to s 8AAG of the TA Act to remit GIC imposed in relation to the taxpayer’s tax liabilities if the taxpayer made the lump sum payment of $839,115.43 on or before 30 January 2015. The taxpayer contends that the letter constituted or manifested a decision by the Deputy Commissioner to remit GIC accruing on the taxpayer’s tax liabilities up to the date of the letter if the lump sum payment was made.

134    The taxpayer submits that the primary judge held, at [56] of the Reasons, that the evidence of Mr Celantano’s subjective thought processes was determinative of the question of whether the December 2014 letter manifested a decision to remit GIC, and that this was an error. The taxpayer also submits that the primary judge ought to have concluded that the question whether the December 2014 letter constituted a decision by the Deputy Commissioner ought to have been determined by reference to the content of the letter itself and the objective circumstances in which it was sent. The taxpayer submits that, having regard to these matters, the primary judge ought to have concluded that the letter was a decision to remit GIC. In oral submissions, counsel for the taxpayer stated that the taxpayer did not challenge any of the primary judge’s factual findings (T29).

135    The Deputy Commissioner essentially submits that the approach taken by the primary judge was correct.

136    In our view, there is some force in the taxpayer’s position as to the correct construction of the December 2014 letter. However, even if that construction is accepted, we do not consider that the taxpayer has established any error in the primary judge’s conclusion, namely that no decision was made, on or about 8 December 2014, to remit GIC.

137    In relation to the construction of the December 2014 letter, in our opinion, the natural reading of the letter, in the context in which it was written, is that the Deputy Commissioner agreed to accept a payment of the lump sum amount on or before 30 January 2015 in full discharge of the taxpayer’s primary tax and GIC liabilities as set out in the statement of account dated 10 November 2014. This construction is supported by the following aspects of the letter:

(a)    The heading of the letter was: “Payment arrangement for your Income Tax Account debt” (emphasis added). This linked the letter to the statement of account dated 10 November 2014 (headed “Income Tax Account”). The statement of account covered both primary tax and GIC.

(b)    The reference in the first sentence of the letter to the taxpayer’s recent promise to pay his “outstanding account” also linked the letter to the statement of account.

(c)    The second sentence of the letter (“We agree to accept a lump sum payment of $839,115.43 on or by 30 January 2015”) suggested that, if the taxpayer paid the lump sum by the date referred to in the letter, this would fully discharge the debt identified in the statement of account. This was further supported by the lump sum being described as a “payout figure” in the following sentence of the letter.

(d)    The statement in the first sentence of the second paragraph that the payout figure was “inclusive of an estimated general interest charge (GIC) amount calculated to 30 January 2015” suggested that the payout figure covered all GIC up to 30 January 2015.

138    It is true that the letter did not, in terms, refer to the application for remission of GIC or to a determination of that application. However, we do not consider that this detracts from the reading of the letter outlined above. In particular, the letter did refer to GIC, stating that the payout figure was “inclusive of an estimated general interest charge (GIC) amount calculated to 30 January 2015”. This indicates that the subject matter of GIC was comprehended by the letter.

139    It is also true that, during the conversation between the taxpayer and Mr Celantano on 4 or 5 December 2014, Mr Celantano said (as the primary judge found) that he would require the primary tax to be paid in full “whilst we consider the remission of general interest charge”. However this was merely stating a position and needs to be seen in the context of the conversation as a whole, which contained some ambiguity. According to Mr Celantano’s contemporaneous note, the taxpayer offered to “pay the primary tax in full” and Mr Celantano “[a]dvised [the taxpayer] we would agree to the payment in full and would contact his authorised representative to formalise his payment arrangement”. These statements may have been taken to suggest that payment of the primary tax liability would be accepted in full discharge of the taxpayer’s primary tax and GIC liabilities. However, it should also be noted that, according to Mr Celantano’s contemporaneous note, in the subsequent conversation between Mr Smith and Mr Celantano, they discussed “obtaining payment in full of the primary tax component of $821,762.75 whilst we reviewed the request for remission of GIC”.

140    If the natural reading of the December 2014 letter is as set out above, it would follow that the letter communicated that a decision had been made to remit all GIC payable by the taxpayer save for the relatively small amount of GIC covered by the lump sum payment amount referred to in the letter, if the taxpayer paid the lump sum on or before the specified date. However, we do not consider that this resolves the question whether the Deputy Commissioner made such a decision. In order for there to be a decision to remit GIC under s 8AAG of the TA Act, we consider that there needs to be both a mental process of reaching a conclusion and an objective manifestation of that conclusion. In the present case, on the basis of the findings of the primary judge (which are not challenged on appeal) there was no mental process of reaching a conclusion. We will refer to some case law on the making of a decision, and then refer to the relevant findings of fact. It is convenient to note that both sides in the present appeal proceeded on the basis that, for the power to remit GIC to be exercised, it is necessary for a decision to be made to remit GIC.

141    In Semunigus v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 533 (Semunigus), in the context of considering whether the Refugee Review Tribunal was functus officio in circumstances where the member had signed his decision and handed it to registry staff for processing, but the decision had not yet been sent to the applicant or the relevant Department, all members of a Full Court of this Court (Spender, Higgins and Madgwick JJ) accepted the following statement that had been made by Finn J at first instance (Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422 at [19]):

For present purposes I am prepared to hold that the making of a decision involves both reaching a conclusion on a matter as a result of a mental process having been engaged in and translating that conclusion into a decision by an overt act of such character as, in the circumstances, gives finality to the conclusion — as precludes the conclusion being revisited by the decision-maker at his or her option before the decision is to be regarded as final.

Although the members of the Full Court differed as to the application of this statement to the facts of the case, all members of the Full Court accepted this statement: see at [11] per Spender J, at [55] per Higgins J, and at [101] per Madgwick J.

142    The statement made by Finn J set out above has also been cited with approval in other decisions. In Minister for Immigration and Citizenship v SZQOY (2012) 206 FCR 25 (SZQOY) at [29], Buchanan J, with whom Logan J (at [33]) and Barker J (at [50]) generally agreed, referred with approval to that statement. The statement of Finn J was also cited with approval in He v Minister for Immigration and Border Protection [2017] FCAFC 206 at [79] per Siopis, Kerr and Rangiah JJ; and Dunstan v Higham (2016) 310 FLR 58; [2016] ACTCA 20 at [72]-[74] per Murrell CJ, Penfold and Rangiah JJ.

143    It is true that the issue considered in Semunigus was different from the issue that arises in the present case. In particular, the issue in Semunigus concerned the second part of Finn J’s description of what is involved in the making of a decision, namely the overt act. There was no question that, on the facts of Semunigus, the tribunal member had reached a conclusion as a result of a mental process; the issue was whether that conclusion had been manifested in an overt act such as to put it beyond recall. The same type of issue arose in SZQOY. The issue in the present case is different. It concerns the first part of Finn J’s description of what is involved in the making of a decision, namely the reaching of a conclusion as a result of a mental process. Nevertheless, we consider the statement of Finn J to accurately capture the elements that are generally involved in the making of a decision, and thus to be of assistance in resolving the current issue. We do not see any reason why this general statement of what is involved in the making of a decision should not apply to a decision to remit GIC under s 8AAG of the TA Act.

144    In the present case, on the basis of the findings made by the primary judge, no conclusion was reached on the application for remission of GIC on or about 8 December 2014. The only delegate of the Deputy Commissioner who was considering the application was Mr Celantano. There was no suggestion that the Deputy Commissioner himself or any other delegate had reached such a conclusion. In relation to Mr Celantano, the findings of the primary judge make clear that he did not reach any conclusion on the GIC remission request on or about 8 December 2014. We note, in particular, the following findings:

(a)    The primary judge said, at [50], that the making of any such decision (to remit GIC) would have required the decision-maker to turn his or her attention to the application and the reasons advanced for it, to decide whether one or more of the relevant parts of s 8AAG had application and to be satisfied that he or she had the necessary authority to make the decision. His Honour then stated that “[n]one of this occurred”.

(b)    His Honour stated: “Mr Celantano said that he made no decision on the application. He said that he had not done so because he did not consider that he had the necessary authority to waive the GIC amount involved. In this he was mistaken. Nonetheless, this was his state of mind at the relevant time” (Reasons, [50]).

(c)    The primary judge stated, at [56], that the making of a decision required a process of deliberation, assessment and/or analysis on the part of Mr Celantano with a view to deciding whether or not to grant the taxpayer’s application for waiver of the GIC. His Honour then stated: “Mr Celantano did not undertake any of those facets of decision-making in regard to the application prior to the issuing of the 8 December 2014 letter”.

145    It may be accepted that the relevant decision-maker, Mr Celantano, did reach a conclusion about some matters in the process of preparing the December 2014 letter. In particular, he concluded that the request for a payment arrangement should be acceded to (allowing the taxpayer until 30 January 2015 to pay an amount that was already due and payable as at 8 December 2014). But the fact remains that he did not reach a conclusion in relation to the application for remission of GIC. This was a separate matter from the request for a payment arrangement and required its own conclusion to be reached.

146    We note for completeness that one aspect of his Honour’s treatment of Mr Celantano’s evidence may be inaccurate. In [56] of the Reasons, his Honour stated: “Such thought processes which did engage [Mr Celantano] related to the proposals which had been canvassed with him during the previous week relating to the payment of the outstanding tax liability together with such interest as might accrue between the time at which he made his decision and the payment” (emphasis added). This sentence may be taken to suggest that Mr Celantano’s thought processes, in preparing the letter, included that GIC would be payable for the period between the date of the letter (8 December 2014) and the date for payment (30 January 2015). However, it is clear from Mr Celantano’s evidence that he did not turn his mind to this aspect of the letter. Indeed, he did not intend the first sentence of the second paragraph of the letter (regarding GIC) to be included: see the trial transcript, p 58, lines 18-23. It was in this respect that Mr Celantano considered there to be a “misalignment” between the conversations he had had with the taxpayer and Mr Smith, and the letter: trial transcript, p 59, lines 14-18. See also trial transcript, p 65, lines 11-26. However, even if the sentence from [56] of the Reasons quoted above is inaccurate, this does not affect the findings of the primary judge referred to above, which establish that Mr Celantano did not reach a conclusion, on or about 8 December 2014, on the application to remit GIC.

147    The taxpayer relies on Goodin v Commissioner of Taxation (2002) 169 FLR 282; 50 ATR 220 at [14]. In the context of considering a challenge to the validity of a notice issued by the Commissioner of Taxation under s 260-5 of the TA Act, Pagone J stated that the test for validity, where there is a challenge to the description of the addressee of such a notice, is whether the notice brings to the attention of the intended person that that person has a liability or duty. Pagone J said at [14]: “Whether a notice does so will depend upon a consideration of its form and content rather than what the individuals may subjectively have undertook or fortuitously guessed”. However, the issue in that case, concerning the validity of a notice, was quite different to the issue in the present case.

148    The taxpayer also relies on Polo Enterprises Australia Pty Ltd v Shire of Broome (2015) 49 WAR 134 (Polo) at [80]. The case concerned applications to a shire for permits to hold polo tournaments on a beach. Two different organisations (referred to as CBP and PEA in the judgment) applied for a permit to hold such a tournament on the same beach on the same day. The shire granted the application of one organisation (CBP). The other organisation (PEA) sought review and one of the issues was whether there had been a “decision” to refuse that organisation’s application within the meaning of the legislation providing for review. Martin CJ (with whom Newnes and Murphy JJA agreed) held that “in the particular circumstances of this case, when the Shire decided to grant CBP’s application for a permit to conduct a beach polo tournament on Cable Beach in May 2014, it also decided to refuse PEA’s application to conduct a similar event at the same time and place” (at [92]). In reasoning to this conclusion, Martin CJ held that, for the purposes of the review legislation, a “decision” could be made implicitly rather than explicitly: see at [80]-[88], referring to Irwin v Military Rehabilitation and Compensation Commission (2009) 174 FCR 574 (Irwin) and Telstra Corporation Ltd v Kotevski (2013) 209 FCR 558 (Telstra). However, the issues considered in Polo, Irwin and Telstra were different from the issue in the present case. In each of those cases, the issue concerned whether there was a “decision” for the purposes of review legislation or whether a review body had jurisdiction. The issue in the present case is very different. Further, the facts of Polo were quite particular. As discussed by Martin CJ at [84], the shire had received two applications for permits to conduct beach polo tournaments at the same time and at the same place; the grant of either application necessarily meant the rejection of the other. In these circumstances, it was concluded that acceptance of one application implicitly involved rejection of the other, even in the absence of mental engagement by the decision-maker. We note for completeness that Martin CJ discussed, at [77]-[78], the decision of the Full Court of this Court in Semunigus, and set out the passage from Finn J’s judgment at first instance that is set out above. Martin CJ described the issue that arose in that case and said: “Viewed in that context, it would not be appropriate to construe the passage to which I have referred [that is, the statement of Finn J] as asserting that in every case and in every context there cannot be a ‘decision’ unless there has been a process of mental engagement by the decision-maker.” We do not consider there to be any inconsistency between this statement and the approach that we have taken above. We have treated the statement of Finn J as a general statement of what is involved in the making of a decision, and we accept that it may not be applicable in relation to all issues.

149    The primary judge referred in the Reasons to decisions concerning the reviewability of decisions under the ADJR Act. It may be that the way that the application was framed suggested this approach. However, the issue to be determined was whether, on or about 8 December 2014, the Deputy Commissioner made a decision to remit GIC. In considering this issue, in our respectful opinion, the cases concerning the reviewability of decisions under the ADJR Act provided only limited, if any, assistance. However, we do not consider that this affects the conclusion reached by the primary judge.

150    In light of the above conclusions, it does not appear to be necessary to consider the parties’ submissions regarding subsections (3), (4) and (5) of s 8AAG. It is common ground that, in the present case, the words in s 8AAG(2) were applicable. That is, prior to any decision to remit GIC, the taxpayer was liable to pay GIC “because an amount remain[ed] unpaid after the time by which it [was] due to be paid”. Accordingly, by virtue of subsection (2), “the Commissioner may only remit all or a part of the charge in the circumstances set out in subsection (3), (4) or (5)”. These subsections set out various matters in respect of which the Commissioner is to be satisfied. For example, subsection (5) provides that the Commissioner may remit all or a part of the charge if he or she is satisfied that: “there are special circumstances because of which it would be fair and reasonable to remit all or a part of the charge”; or “it is otherwise appropriate to do so”. In the present case, there is no indication in the evidence that Mr Celantano reached a state of satisfaction under any of subsection (3), (4) or (5) on or about 8 December 2014. This may be said to provide a further basis to conclude that no decision to remit was made. In response, the taxpayer relies on the presumption of regularity and estoppel. However, it does not appear to be necessary to consider the taxpayer’s submissions in this regard, in circumstances where we have reached the conclusion that no decision to remit was made irrespective of the state of satisfaction required by subsection (3), (4) or (5).

151    We accept that there may be some perceived unfairness in the circumstances of this case. As indicated above, in our opinion, the natural reading of the December 2014 letter, in the context in which it was written, is that the Deputy Commissioner agreed to accept a payment of the lump sum amount on or before 30 January 2015 in full discharge of the taxpayer primary tax and GIC liabilities as set out in the statement of account dated 10 November 2014. The taxpayer duly paid the lump sum amount by the due date. It may be perceived as unfair if the Deputy Commissioner is able to go back on what was conveyed by the letter. However, the issue to be determined is whether or not, on or about 8 December 2014, a decision was made to remit GIC. As explained above, we consider that, for such a decision to be made, there needs to be both a conclusion reached on the application to remit as well as an overt act. In the present case, neither Mr Celantano nor anybody else had reached a conclusion on the application for remission at the relevant time.

152    It may also be said that the outcome is productive of administrative uncertainty, in the sense that taxpayers or others dealing with government may not be able to rely on letters from government agencies communicating decisions. However, the circumstances of this case are quite unusual. The letter resulted from Mr Celantano ‘keying in’ certain information into a computer-based ‘template bulk issue letter’. This produced a letter that, in some respects, did not reflect his intentions. This type of situation is unlikely to arise very often. And evidence would usually be required if it was sought to be established that a letter communicating a decision did not reflect a conclusion that had been reached. Further, although we have indicated above what we consider to be the natural reading of the December 2014 letter, the letter did not expressly deal with the application to remit GIC and the letter is susceptible of more than one interpretation.

153    In summary, in circumstances where, at the relevant time, neither the Deputy Commissioner nor any delegate of the Deputy Commissioner had reached a conclusion as to the application for remission of GIC, it is not established that a decision was made to remit GIC on or about 8 December 2014. This is the case even if the December 2014 letter is construed in the way contended for by the taxpayer.

154    For these reasons, we do not consider that either of the taxpayer’s appeal grounds is made out.

The application to raise new grounds

155    As noted above, at the hearing of the appeal, the Court raised with the taxpayer’s counsel whether the taxpayer sought to pursue alternative formulations of his case based on contract or estoppel. Subsequently, the taxpayer filed, with leave, an interlocutory application dated 8 March 2018 seeking leave to amend his notice of appeal in the form annexed to the application. The proposed amended notice of appeal contains the following additional grounds of appeal:

3.    In the alternative, this Honourable Court ought to now find that the respondent was bound in contract to accept the sum of $839,115.43 in full and final payment of the appellant’s income tax liabilities owing to the respondent as at 30 January 2015, having regard to:

a)    the offer by the respondent contained in his letter of 8 December 2014 that the respondent would accept from the appellant a lump sum payment of $839,115.43 by 30 January 2015 to pay the appellant’s outstanding income tax account debt, such amount being inclusive of general interest charge calculated to 30 January 2015; and

b)    the acceptance of that offer by performance on the part of the appellant, in the form of payment of the said sum of $839,115.43 made by the appellant on 30 January 2015.

4.    In the further alternative, this Honourable Court ought to now find that the respondent is estopped from seeking to recover any part of the income tax account debt owing by the appellant as at 30 January 2015 in excess of the amount paid on that date of $839,115.43 having regard to:

a)    the respondent’s representation that the respondent would accept from the appellant a lump sum payment of $839,115.43 by 30 January 2015 to pay the appellant’s outstanding income tax account debt;

b)    the respondent’s representation that the said sum of $839,115.43 was inclusive of general interest charge calculated to 30 January 2015; and

c)    the payment of the said sum of $839,115.43 by the appellant in reliance on the respondent’s representations.

156    The proposed amended notice of appeal also includes, under the heading “Orders sought”, the following additional paragraphs:

4.    In the alternative, declarations that:

a)    the respondent and the appellant entered into contract that the appellant could pay the sum of $839,115.43 which was in full and final payment of the appellant’s income tax account debt owing to the respondent as at 30 January 2015;

b)    the appellant paid the said sum of $839,115.43 and thereby satisfied and discharged the whole of his income tax account debt owing to the respondent as at 30 January 2015;

c)    the respondent is not entitled to seek to recover any additional sum referable to the income tax liabilities of the appellant as at 30 January 2015 nor any general interest charge accruing thereon.

5.    In the further alternative, declarations the respondent is estopped from seeking to recover:

a)    any part of the income tax account debt owing by the appellant as at 30 January 2015 in excess of the amount paid on that date of $839,115.43; or

b)    any general interest charge accruing thereon.

157    In support of the interlocutory application, the taxpayer filed an affidavit of Christopher Groves, a solicitor employed by the taxpayer’s instructing solicitors, dated 8 March 2018. This deposes to the effect that Mr Groves considers there to be a proper basis for the proposed new grounds.

Consideration of the application to raise new grounds

158    The principles applicable to an application to raise new grounds on appeal are well established. In Coulton v Holcombe (1986) 162 CLR 1 at 7-8, Gibbs CJ, Wilson, Brennan and Dawson JJ said:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The powers of an appellate court with respect to amendment are ordinarily to be exercised within the general framework of the issues so determined and not otherwise. In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this Court has firmly maintained the principle that the point cannot be taken afterwards: see Suttor v Gundowda Pty Ltd; Bloemen v The Commonwealth. In O’Brien v Komesaroff, Mason J, in a judgment in which the other members of the Court concurred, said:

“In some cases when a question of law is raised for the first time in an ultimate court of appeal, as for example upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is expedient in the interests of justice that the question should be argued and decided (Connecticut Fire Insurance Co v Kavanagh; Suttor v Gundowda Pty Ltd; Green v Sommerville). However, this is not such a case. The facts are not admitted nor are they beyond controversy.

The consequence is that the appellants’ case fails at the threshold. They cannot argue this point on appeal; it was not pleaded by them nor was it made an issue by the conduct of the parties at the trial.”

In our opinion, no distinction is to be drawn in the application of these principles between an intermediate court of appeal and an ultimate court of appeal.

(Footnotes omitted.)

See also Water Board v Moustakas (1988) 180 CLR 491 at 497 per Mason CJ, Wilson, Brennan and Dawson JJ.

159    The taxpayer submits that: it is expedient and in the interests of justice to allow the new grounds to be raised on appeal; and both grounds turn on questions of law, that is, the application of the law to the facts as found by the primary judge. The taxpayer submits that the relevant facts in support of each of the grounds “have been established beyond controversy” (Water Board v Moustakas at 497) such that the only new points to be ventilated are points of law.

160    The Deputy Commissioner submits that neither of the proposed new grounds turns on the construction of a document or involves a question of law framed by uncontroversial facts. It is submitted that, had the taxpayer agitated, at first instance, the points now sought to be raised, the initiating process would not have taken the form of an originating application for judicial review and that, in that process:

(a)    almost certainly, the allegations made by the taxpayer would have been the subject of a statement of claim, in which all of the material facts, establishing any cause of action in contract or any right to equitable relief, would have been pleaded with sufficient particularity;

(b)    in advancing a cause of action in contract, the material facts pleaded by the taxpayer would necessarily have included: the formation of the contract, including the manner in which the parties exchanged offer and acceptance; whether the contract was in writing, oral, or partly oral and partly in writing; the terms of the contract, express and implied, and the certainty or otherwise of those terms; and the form of consideration provided by the taxpayer; and

(c)    if the taxpayer had chosen to plead a claim that the Deputy Commissioner is estopped from resiling from a representation that payment of the sum identified in the December 2014 letter would discharge all of the taxpayer’s liability, the material facts pleaded by the taxpayer would necessarily have included: the nature of the representation made by the Deputy Commissioner; the fact, and the extent, of the taxpayer’s reliance on that representation; and the detriment that would have been suffered by the taxpayer if the Deputy Commissioner were to resile from the representation.

161    The Deputy Commissioner submits that those allegations would have been met by a defence in which the Deputy Commissioner identified the allegations that were admitted and the allegations that were denied, and pleaded any additional matters that could defeat the taxpayer’s claims. It is also submitted that: the parties would then have been entitled to seek discovery and the giving of discovery would have cast light on the matters in dispute between the parties; and other pre-trial procedures, such as the issuing and answering of notices to admit facts, would have informed the issues in dispute between the parties. The Deputy Commissioner submits that, had the taxpayer raised the proposed new grounds at first instance, the Deputy Commissioner would have conducted his case very differently – in particular, by adducing additional evidence. In his written submissions, the Deputy Commissioner provides details of the additional evidence that may have been called.

162    In our view, the submissions of the Deputy Commissioner should be accepted. Had the proposed new grounds been raised in the proceeding at first instance, it is likely that pleadings would have been required and that the pre-trial processes would have been materially different. Further, we cannot exclude the possibility that the Deputy Commissioner would have led additional evidence or that he would have conducted cross-examination of the taxpayer’s witnesses differently. For example, had the contract ground been raised at first instance, the issues are likely to have included whether a contract had been formed and the interpretation of the terms of any contract. Evidence of the conduct of the parties following the supposed point of formation of agreement would have been admissible in relation to the issue of contract formation: see Gangemi v Osborne [2009] VSCA 297 at [24] per Nettle and Harper JJA (Mandie JA agreeing at [185]), citing Howard Smith & Co Ltd v Varawa (1907) 5 CLR 68 at 77-78; Barrier Wharfs Ltd v W Scott Fell & Co Ltd (1908) 5 CLR 647 at 662 and 669; Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153 at [25]. In relation to the interpretation of the terms of any contract, evidence of surrounding circumstances may have been admissible on the basis that the contract was ambiguous or susceptible of more than one meaning: see Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337; see also Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 at [47]-[52] per French CJ, Nettle and Gordon JJ; at [108]-[113] per Kiefel and Keane JJ; at [119] per Bell and Gageler JJ. By way of further example, had the estoppel ground been raised at first instance, the issues are likely to have included whether the taxpayer suffered any detriment as a result of reliance on any representation. Putting aside whether the taxpayer himself would have needed to call more evidence on this point, the Deputy Commissioner may have led additional evidence or conducted the cross-examination of the taxpayer’s witnesses differently.

163    For these reasons, we would dismiss the taxpayer’s application for leave to raise the new grounds.

Conclusion

164    For the reasons set out above, we would dismiss the taxpayer’s appeal and dismiss the taxpayer’s interlocutory application dated 8 March 2018. There is no apparent reason why costs should not follow the event. Accordingly, we would also order that the taxpayer pay the Deputy Commissioner’s costs of the appeal and the interlocutory application.

Associate:

Dated:    25 May 2018