FEDERAL COURT OF AUSTRALIA

Queensland Maintenance Services Pty Ltd v Commissioner of Taxation

[2012] FCAFC 152

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

1    This is an appeal from a judgment of a single Judge of the court given on 15 December 2011, whereby her Honour dismissed a challenge by the appellant, Queensland Maintenance Services Pty Ltd, to the validity of a notice dated 10 June 2011 given by the respondent, the Commissioner of Taxation (“Commissioner”), pursuant to s 260-5 of Sch 1 to the Taxation Administration Act 1953 (Cth) (“the Administration Act”) to Goodstart Childcare Limited (“Goodstart”). The challenge was advanced under ss 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) and s 39B of the Judiciary Act 1903 (Cth).

2    In the facts as found by the primary Judge, Goodstart operated childcare centres. Under contract to Goodstart, the appellant provided maintenance, cleaning and renovation services for those centres. In consequence of taxation audits carried out by the Commissioner, on 1 June 2011, the Commissioner issued to the appellant amended assessments of income tax, together with assessments of shortfall interest and penalties, in respect of the years ended 30 June 2007 and 30 June 2008. Together, these assessments involved more than $28.6m. The assessments led to notices under s 260-5 of Sch 1 to the Administration Act, which became the focus of the proceeding before the primary Judge. We commence, therefore, by referring to the relevant provisions of s 260-5, and to the terms of the notices given to Goodstart under it.

3    Relevantly to the present matter, s 260-5 applies if a “tax-related liability” (which the appellant’s liability under the amended assessments undoubtedly was) was payable to the Commonwealth by an entity (in the facts of the present case, the appellant), whether or not that debt had become due and payable. Subsections (2), (3), (4) and (5) of s 260-5 provide as follows:

(2)    The Commissioner may give a written notice to an entity (the third party) under this section if the third party owes or may later owe money to the debtor.

(3)    The third party is taken to owe money (the available money) to the debtor if the third party:

(a)    is an entity by whom the money is due or accruing to the debtor; or

(b)    holds the money for or on account of the debtor; or

(c)    holds the money on account of some other entity for payment to the debtor; or

(d)    has authority from some other entity to pay the money to the debtor.

The third party is so taken to owe the money to the debtor even if:

(e)    the money is not due, or is not so held, or payable under the authority, unless a condition is fulfilled; and

(f)    the condition has not been fulfilled.

(4)    A notice under this section must:

(a)    require the third party to pay to the Commissioner the lesser of, or a specified amount not exceeding the lesser of:

(i)    the debt; or

(ii)    the available money; or

(b)    if there will be amounts of the available money from time to time—require the third party to pay to the Commissioner a specified amount, or a specified percentage, of each amount of the available money, until the debt is satisfied.

(5)    The notice must require the third party to pay an amount under paragraph (4)(a), or each amount under paragraph (4)(b):

(a)    immediately after; or

(b)    at or within a specified time after;

the amount of the available money concerned becomes an amount owing to the debtor.

4    On 8 June 2011, the Commissioner gave Goodstart a notice under s 260-5, requiring it to pay to the Commissioner the sum of $10,093,860.20 out of monies which it owed, or might later owe to the appellant, or, if those monies were less than that sum, the whole of those monies. An officer of the Commissioner was informed by a representative of Goodstart that approximately $2.5m per month would be remitted to the Commissioner pursuant to that notice.

5    The Commissioner’s officer responsible for the giving of the s 260-5 notice was then contacted by the appellant’s solicitor, with a request that the notice be withdrawn. The solicitor said that, if the notice were not withdrawn, it would result in a large number of childcare centres having to close down. Although asked to put his reasons for this request in writing, the solicitor refused to do so, and the appellant immediately commenced court proceedings against the Commissioner. In the context of those proceedings, on 10 June 2011 the appellant’s solicitor informed the Commissioner’s solicitor that the appellant required 90% of its funds from Goodstart to pay other creditors, and that the most that the appellant would agree to pay the Commissioner was $70,000 per month. That was, it seems, insufficient even to meet the monthly interest on the outstanding debt claimed by the Commissioner.

6    As a result of affidavit material filed in the court, and given the significant proportion of the appellant’s income that was derived from Goodstart, the Commissioner’s officer decided to withdraw the s 260-5 notice, and to replace it with a second s 260-5 notice requiring Goodstart to pay only 20% of each monthly payment which fell due to the appellant. The notice of 8 June 2011 was withdrawn, and a new notice was issued on 10 June 2011.

7    Goodstart complied with the notice of 10 June 2011, such that, according to evidence read to the primary Judge, about $500,000 of the $2.5m that was, approximately, payable by Goodstart each month to the appellant was paid instead to the Commissioner pursuant to s 260-5. As at 14 July 2011, the Commissioner claimed that taxation liabilities in the amount of $28,139,160.61 were outstanding from the appellant, and that general interest charges were accruing on that debt at the rate of about $295,000 per month.

8    It was the Commissioner’s decision to give the notice of 10 June 2011 that was challenged by the appellant in the proceeding before the primary Judge. That challenge was based upon many grounds, all of which were rejected by her Honour. On the hearing of the appeal, the appellant sought to introduce two further grounds of challenge which had not been argued at first instance. We refused leave for the introduction of these grounds at the appellate stage, for reasons which we shall state in due course. That left the appellant with one ground of appeal only, namely, that the primary Judge was in error not to have held that the decision to give the notice of 10 June 2011 was so unreasonable “that no reasonable person could have justified it”: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; ADJR Act, s 5(1)(e) and (2)(g). Because of the nature of that challenge, and of the way it was argued on behalf of the appellant, it is appropriate that we set out some extracts from the decision-maker’s statement of reasons for giving the notice of 10 June 2011, provided pursuant to s 13 of the ADJR Act.

9    The decision-maker provided the following findings on material questions of fact:

a.    The Amended Notices of Assessment for the 2007 and 2008 years and Notices of Administrative Penalty had been issued to the Company;

b.    The Original Notice requiring Goodstart to pay to the Tax Office 100% of all amounts it held for the Company would significantly affect the Company's ability to continue trading as it would not have funds to pay employees and trade creditors;

c.    Although the taxation liability arose as a result of the Company's failure to substantiate deductions previously claimed when requested to during the audit process, the Company intended to lodge an objection to the amended assessments even though it had not provided material to substantiate its deductions when provided the opportunity to do so;

d.    The Company made no proposal to pay the outstanding taxation liabilities. It did not have assets sufficient to pay the amended assessments and administrative penalties in full nor provide security for the outstanding taxation liabilities;

e.    The Company was continuing to pay other creditors;

f.    There was a significant risk to revenue that the Company would not pay its ongoing tax liabilities voluntarily but would pay trade creditors in preference to the Tax Office, and that in the event of insolvency, the Tax Office would not recover the outstanding taxation liabilities;

g.    Goodstart pays to the Company approximately $2,500,000.00 each month;

h.    The most effective and efficient method of collection of the taxation debt was through a notice issued under section 260-5 of schedule 1 of the Act to Goodstart as a regular payer to the Company;

i.    There was a risk that services provided by the Company to childcare centres may be interrupted by a continuation of the Original Notice, affecting the ability of those childcare centres to provide childcare services.

10    The decision-maker provided the following reasons for his decision:

a.    Amended assessments had been issued and served on the Company;

b.    The Company did not intend to nor have the capacity to pay the tax liabilities by the due date;

c.    Prior to the Assessments issuing, the company had been provided with an opportunity to present evidence to substantiate the deductions claimed in its original income tax returns for 2007 and 2008. The company refused or otherwise failed to present the substantiation;

d.    The information provided by Frank Zullo in his affidavit showed that the Company could not continue in business or pay its employees and trade creditors if the Original Notice remained in place;

e.    A reduction to the amount payable under a Notice from 100% to 20% would allow the company to have access to sufficient funds to continue trading while it prepared and lodged any objection to the Amended Assessments;

f.    A notice to Goodstart requiring the payment of 20% of amounts payable to the Company would provide monthly payments against the Company’s taxation liabilities of at least $500,000.00, which would be sufficient to cover the General Interest Charges payable on the Company’s outstanding tax liabilities as well as reducing the tax debt, while leaving the Company with at least $2,000,000.00 per month with which to continue to conduct its business;

g.    The revenue was at risk of other creditors being preferred by the Company, and the most effective and efficient way to protect the revenue while considering the circumstances of the Company was to issue the Notice for 20% of all payments from Goodstart to the Company, which could be reviewed once any objection by the Company to the amended assessments is determined or the time for lodging an objection passes without one being lodged.

11    Those were, therefore, the facts against which the primary Judge was obliged to decide the Wednesbury point. We turn next to the way the primary Judge disposed of that point, in the context of which it will be necessary to refer also to some other grounds which were relied on by the appellant, and to what her Honour made of them.

12    The primary Judge set out the grounds of the appellant’s application before her, which included the following:

4.    The making of the decision to issue and serve the notice to pay for twenty cents in every dollar out of each of the amounts of available money [Goodstart] becomes liable to pay to the [appellant] was not authorised by the enactment or the procedures that were required by law to be observed or involved an error of law or was otherwise contrary to law or was a failure to perform a statutory duty or to make a decision that the [Commissioner] had a duty to make in that:

….

c.    … the [Commissioner] must have failed to consider or apply the legal principles in Edelsten v Wilcox 88 ATC 4484 in making the decision to issue and serve the notice to p ay (sic) for twenty cents in every dollar out of each of the amounts of available money [Goodstart] becomes liable to pay to the [appellant].

5.    The making of the decision to issue and serve the notice to pay for twenty cents in every dollar out of each of the amounts of available money [Goodstart] becomes liable to pay to the [appellant] was a failure to perform a statutory duty or an improper exercise of or abuse of the power conferred by the enactment in pursuance of which it was purported to be made in that the [Commissioner] failed to take relevant considerations into account or gave little or no weight to important considerations in the exercise of the power including:

….

(ii)    the legitimate right of the [appellant] to object against the tax assessments and the shortfall penalties for the debt the subject of the notice to pay;

(iii)    the known or likely consequences and adverse effects the (sic) decision on the financial position of the [appellant] and the viability of its business or that it should have known or considered or made inquiries about before making the decision;

(iv)    the known or likely consequences and adverse effects the decision on the financial position of the [appellant], its employees, sub-contractors and suppliers or and (sic) the [Commissioner] should have known or considered or made inquiries about that before or in the course of making the decision;

(v)    that the issue of the notice to pay for twenty cents in every dollar out of each of the amounts of available money [Goodstart] becomes liable to pay the [appellant] would cause or was likely to cause serious and irreparable hardship or damage to the [appellant] and/or its employees, subcontractors and suppliers and the [Commissioner] should have known or considered or made inquiries about that before or in the course of making the decision;

(vi)    that the issue of the notice to pay would have or was likely to cause consequently (sic) hardship and adverse effects to [Goodstart] and the parents and children who used the childcare facilities of [Goodstart] and of any subsidiary of the [appellant] that owned or operated childcare centres, and its employees, subcontractors and other suppliers, and the [Commissioner] should have known or considered or made inquiries about that before or in the course of making the decision.

(vii)    that the [appellant] had been supplying its services to most if not all of the childcare centres of [Goodstart] at cost (not including overheads) plus 10% since their acquisition from the receivers of the ABC Group, which the [Commissioner] knew or should have known at the time of making the decision;

(viii)    that at all material times the receivables from [Goodstart] make up approximately 90% of the [appellant]’s receivables and 90% of its income, and the [Commissioner] knew or should have known that was likely at the time of making its decision;

(ix)    that without the payment by [Goodstart], the [appellant] would not or would not be likely to be able to pay its employees, subcontractors and suppliers, who would stop or be likely to stop supplying goods and services to the [appellant], and the [appellant] will not be able to continue its enterprise;

(x)    without the payment, the [appellant] will be unable to pay its subcontractors who provide services to [Goodstart], which owns and operates 600 childcare centres, and to Bright Horizons, which owns and operates 35 childcare centres, and as a result the childcare centres will become non-compliant with regulatory standards in a number of areas and may have to close;

(xi)    that the [appellant] supplied its services to Bright Horizons is financially upon the [appellant] for its operations (sic), and without the payment Bright Horizons will not be able to pay its staff, subcontractors and suppliers or continue its operations and will have to close down its 35 childcare centres;

(xii)    whether without the payment and the further moneys that will be owed or become owing by [Goodstart] to the [appellant], the [appellant] and its subsidiaries would or would be likely to have to cease business and be placed in administration or liquidation;

(xiii)    whether the notice to pay would or would be likely to prevent or seriously hinder the [appellant] from pursuing its legitimate rights of objection and appeal against the assessments;

….

(xv)    whether if the [appellant] were allowed a reasonable period of time to pay it would be or would be likely to be able to pay the assessments of tax and penalty shortfalls ….

13    Her Honour dealt with these grounds together, holding first that, as a matter of law, the Commissioner was not required to take into consideration the impact of the decision to issue the s 260-5 notice on the wide range of stakeholders identified by the appellant. Her Honour adopted the observations of Finkelstein J in Saitta v Commissioner of Taxation [2002] FCA 1105 at [18]:

My acceptance of the proposition that the Commissioner is required to take into account the particular circumstances of the taxpayer should not be understood as imposing a universal requirement that in every case the Commissioner must consider every way the service of a s 260-5 notice may affect a taxpayer. Nor must the Commissioner in every case take into account the effect on third parties of the service of a notice. The principal object of s 260 is to establish an efficient means of recovering money due to the Commonwealth. When a taxpayer pays his taxes that may cause him inconvenience. On other occasions, the effect of the payment might be more dramatic. Third parties, including creditors of the taxpayer, may be affected especially if the taxpayer does not have the funds with which to pay all of his liabilities. Speaking generally, none of this is of any concern to the Commissioner ….

Her Honour said that it was not in dispute that the Commissioner was required to have regard to the impact of his decision to issue the notice on the business of the appellant, adding that it was clear that the primary issue influencing the Commissioner’s officer in respect of the percentage payable by Goodstart was the financial impact of the notice on the appellant, arising from the fact that approximately 90% of its income was derived from Goodstart. The withdrawal of the original s 260-5 notice, and the substantial reduction in the amount payable by Goodstart, came about because of the Commissioner’s consideration of the financial hardship which might otherwise have been experienced by the appellant, and the belief that the reduction in the amount covered by the notice would permit the appellant to continue to operate its business.

14    The primary Judge next rejected the appellant’s submission that the Commissioner did not genuinely take into account relevant considerations regarding the effect of the 20% notice upon the financial position of the appellant. Her Honour said (at [147]) that the Commissioner’s officer “took into consideration all the evidence which the [appellant] provided to him at the time of the decision, including that the [appellant] obviously received 10% of its income from sources other than Goodstart”. Her Honour continued (at [148]):

Further, despite the claim in ground 5(vii) that the [Commissioner] ought to have taken into consideration the fact that the [appellant] had been supplying its services to most (if not all) of the childcare centres of [Goodstart] at cost (not including overheads) plus 10% since their acquisition from the receivers of the ABC Group, this evidence was not in the affidavit of [the appellant’s witness] of 10 June 2011 which had been provided to [the Commissioner’s officer]. I accept the submission of the [Commissioner] that, accordingly, this could not have been a consideration to which the [Commissioner] ought to, but did not, have regard.

Her Honour was not satisfied that the Commissioner’s officer failed to take into account material before him from which he should have known that the appellant could not maintain a viable business in the event that 20% of the revenue from Goodstart was redirected to the Commissioner. Neither was her Honour satisfied that the “real reason” for issuing the notice was that 20% of the funds payable by Goodstart were sufficient to cover the general interest charge, as well as some tax, owing by the appellant. She accepted that this may have been one reason for the notice, but was not persuaded that it was the only reason.

15    In the result, the primary Judge rejected ground 4(c), and the limbs of ground 5 that were arguably relevant to the matters now before the Full Court.

16    The primary Judge then turned to an aspect of the case before her which does not arise on the appeal – “risk to the revenue” – but it may be relevant to advert to one finding which she made in the course of her treatment of that aspect (at [156]):

[T]here is no foundation to the [appellant’s] submission that, at the time of the Decision, the [Commissioner] knew the [appellant’s] business model was based on a 10% margin of the cost of services and supplies provided by the trade creditors to the childcare centres.

Her Honour continued that there was every reason for the Commissioner to be concerned that the appellant would prefer other creditors to the Commissioner, and that the risk to the revenue of the appellant’s objective in continuing to pay creditors in preference to the Commissioner was a relevant consideration for the decision-maker in the circumstances.

17    The ground which does arise on the present appeal – Wednesbury unreasonableness – was expressed (as Ground 7) in the application below as follows:

Further or alternatively, the [appellant] repeats and relies on the foregoing, and in the premises the exercise of the power was so unreasonable that no reasonable person could have so exercised the power.

Under this ground, her Honour summarised the appellant’s submission in the following terms:

•    the [Commissioner] knew or was sufficiently aware the [appellant’s] business depended upon charging a 10% margin on the cost of its services to childcare centres, but nevertheless in effect guessed that taking 20% of 90% of the [appellant’s] monthly revenue would leave sufficient funds to pay its trade creditors;

•    the financial documents of the [appellant], which were readily available, demonstrate[d] a profit margin of no more than 10%;

•    the evidence before the [Commissioner] did not suggest any risk to the revenue.

Her Honour’s conclusion was as follows (at [170]):

In my view these submissions do not warrant a finding of overwhelming circumstances, such that the exercise of the power by the [Commissioner] was so unreasonable that no reasonable person could have so exercised the power. The facts are fairly clear. I have already observed that I am not satisfied that the [Commissioner] knew that the [appellant’s] business model was based on a 10% margin. I am not prepared to find that the [Commissioner] acted unreasonably in finding that there was a risk to the revenue.

Her Honour held that the Wednesbury ground was not substantiated.

18    At the centre of the appellant’s argument on appeal was the decision-maker’s conclusion, contained in his statement of reasons as set out above, that a reduction of the amount payable under the s 260-5 notice from 100% to 20% “would allow the company to have access to sufficient funds to continue trading while it prepared and lodged any objection to the amended assessment”. It was submitted on behalf of the appellant that this conclusion lacked any rational basis, and that the figure of 20% was, in effect, plucked out of the air by the decision-maker. In developing that submission, counsel for the appellant at times strayed beyond the confines of s 5(2)(g) of the ADJR Act and into the “no evidence” realm of s 5(1)(h). That course was not legitimately open to the appellant: the “no evidence” ground had not been relied on below, and we declined the appellant leave to rely upon it on appeal (for reasons which we provide below). The Wednesbury ground must, in our view, be addressed unencumbered by any issue as to whether the decision-maker was possessed of evidence or other material such as would have justified the making of his decision.

19    That state of affairs makes it very hard for the appellant to succeed on the Wednesbury point. Broadly, the facts were as follows. The first notice, given on 8 June 2011, required all the moneys owing by Goodstart to the appellant to be forwarded to the Commissioner. Under s 260-5, the Commissioner was entitled to so proceed. However, upon service of the notice, the decision-maker was informed that the appellant required 90% of its funds from Goodstart to pay other creditors. A payment to the Commissioner of the remaining 10% - amounting, it seems, to about $250,000 per month – would not have been sufficient to pay the general interest charge due under the Administration Act (which was in the order of $295,000 per month). Had the payment been fixed at 10%, therefore, the appellant’s trade creditors would have been paid in the normal course, none of the tax owing would have been paid, and the amount owing to the Commissioner overall would have increased, not decreased, each month. It takes little imagination to see why the decision-maker, acting reasonably and rationally, would have rejected such an outcome.

20    Given that the decision-maker was disposed to withdraw the original notice requiring 100% of Goodstart’s payments to be forwarded to the Commissioner, it seems plain that some percentage lying between 10% and 100% was going to be fixed in the replacement notice that was given on 10 June 2011. In our view, the decision-maker’s choice of 20% as the relevant percentage was conspicuously moderate in the circumstances, and was both rational and reasonable in the light of the facts with which he was confronted. Taking $500,000 as the monthly payment that would then be forwarded to the Commissioner, that payment would have contributed about $205,000 each month to the discharge of the appellant’s tax obligations (i.e, over and above the interest charge component) and would have left the appellant with about $2m each month by way of receipts from Goodstart. Against the objective facts of the case, we agree with the primary Judge that the decision to fix the required payment at 20% fell comfortably within the range of reasonable outcomes under s 260-5. On those facts, the appellant’s Wednesbury case could never, in our view, have succeeded.

21    But the appellant’s case, as we have pointed out above, was based not so much on the objective facts as on the decision-maker’s conclusion, contained in his statement of reasons, that a 20% notice would allow the appellant sufficient funds to continue trading. The case was, in effect, that, in the light of the material that was before the decision-maker, no such conclusion was reasonably open to him. Before turning to the jurisprudential content of that submission, we would point out that it was not the decision-maker’s view that a 20% payment would necessarily permit the appellant to continue paying all of its trade creditors at the levels theretofore obtaining. What he said was: “allow the company to have sufficient funds to continue trading”. That some tightening of the belt, at least, might be necessary was implicit in his later expressed concern that, if something less than a 20% payment were fixed, “the revenue was at risk of other creditors being preferred….” That is to say, the decision-maker recognised that the 20% payment which he proposed to fix was one which might well leave some other creditors disappointed.

22    Absent leave to conduct a no-evidence case on appeal, the appellant’s legal submission that the decision to fix the payment at 20% was not such as could have been arrived at by any reasonable decision-maker must be rejected. The appellant’s point is not a Wednesbury one. Rather, the appellant is in effect inviting the court to take issue with the outcome of the decision as such, a characterisation of the argument which cannot be avoided merely by describing the decision as “irrational”. There was, in our view, nothing irrational or unreasonable about the decision at all. The court knows how the decision-maker fixed upon 20% and, staying clear as we must of any consideration or evaluation of the merits of the situation, the only available conclusion is that the decision fell well within the range of the reasonable.

23    For the above reasons, we propose to dismiss the appeal with costs.

24    As indicated previously, there were two arguments which the appellant sought to raise on appeal which had not been deployed before the primary Judge. We refused the appellant leave to follow that course, and it remains for us to state our reasons for having done so.

25    The first new argument was proposed to be covered by a new ground of appeal (i.e, a ground sought to be introduced by way of amendment to the Notice of Appeal as filed) as follows:

The trial judge should have concluded that the notice was invalid. The notice did not comply with the requirements of sub-section 260-5(5) of the Schedule 1 to the Taxation Administration Act 1953 (Cth) and, further, it was ambiguous.

The ground was concerned with the way the notice of 10 June 2011 was expressed. It was not said that, consistently with the decision in fact made (and subject to the matters which we have already determined above), a s 260-5 notice could not have been drawn that complied with the section: it was just that the particular notice in fact given to Goodstart did not comply with the statute. It was submitted on behalf of the appellant that this was a purely legal point to be resolved by reference to the wording of the notice, and that no evidence which might have been called by the Commissioner could possibly have affected the way the point would have been resolved by the primary Judge, had it then been raised.

26    But the Commissioner’s opposition to the application to amend was based on other grounds. The judgment of the primary Judge was given on 15 December 2011. According to the Commissioner, had the s 260-5 notice then been held to have been invalid because of its wording, a new, properly-expressed, notice could, and presumptively would, immediately have been given to Goodstart. That notice would have covered the monthly payments de facto made under the (now invalid) notice of 10 June 2011, and payments thereafter required to be made. The effect of s 260-5 was to impress 20% of the payments due to the appellant from Goodstart with a statutory charge in favour of the Commissioner: Macquarie Health Corp Ltd v Commissioner of Taxation (1999) 96 FCR 238, 258 [80]. On 3 January 2012, the appellant was placed into administration under Pt 5.3A of the Corporations Act 2001 (Cth) (“Corporations Act”). If the appellant were to be wound up (there was no evidence of this having occurred before the court on appeal), the winding-up would be taken to have begun on 3 January 2012: Corporations Act, ss 513A, 513B and 513C. In such an event, the Commissioner’s position under s 260-5 of Sch 1 to the Administration Act would be protected so long as the notice under that payment pre-dated the commencement of the winding-up: Corporations Act, s 471C; Macquarie Health 96 FCR at 259 [82]-[83].

27    The proceeding below was argued before the primary Judge on 9 and 15 August 2011, and some further submissions were received on 19 August 2011. Had the point now sought to be introduced been argued then, the Commissioner would have had the opportunity to consider his position and, if thought prudent, to give a further s 260-5 notice to protect his position. Alternatively, he would at least have been forewarned of the prospect that the notice of 10 June 2011 might be held to be invalid in the primary Judge’s judgment in the case which, it will be recalled, was handed down on 15 December 2011. The Commissioner would then have had until 3 January 2012 to give a new notice, thereby preserving his status as a secured creditor. But, if the proposed new point is now run, and succeeds, it will be too late for the Commissioner to protect his position in this way, the commencement day for any winding-up that might take place having long since passed.

28    Save to make the point that there has been no winding-up, counsel for the appellant really had no answer to these submissions on behalf of the Commissioner. As for that point as such, the focus of the Commissioner’s argument is not undermined by the circumstance that the appellant had not been put into a winding-up: so long as that might happen, the Commissioner remained exposed to the consequences of the commencement of the winding-up being back-dated to 3 January 2012. If the appellant should now be permitted to run its new ground with respect to the wording of the notice of 10 June 2011, the Commissioner will undoubtedly have been prejudiced by the appellant’s failure to run the same ground at first instance, and to secure a ruling on the point in the primary Judge’s reasons of 15 December 2011.

29    It was for the above reasons that we refused the appellant leave to amend its Notice of Appeal to include a ground challenging the textual sufficiency of the notice of 10 June 2011.

30    The appellant sought to advance its other new argument without any application to amend the Notice of Appeal in relevant respects. The appellant sought to introduce a challenge to the validity of the decision to give the notice of 10 June 2011 on the ground that there was no evidence or other material to justify that decision: ADJR Act, s 5(1)(h). The main justification advanced by the appellant for now introducing the no evidence ground was that it was in fact part of its case before the primary Judge, although subsumed under the more general basis of challenge: “error of law”. We do not accept that, on any reasonable understanding of the appellant’s case below, the primary Judge ought to have perceived in that case a “no evidence” point. We approach the present question on the basis that the point was not run below, and is now sought to be agitated for the first time.

31    Counsel for the appellant did not put to us any reason why the no evidence point could not have been advanced before the primary Judge. At first instance, the appellant was legally represented, and its grounds were professionally drawn. They were detailed and wide-ranging. They had, it seems, been amended twice. There could be no suggestion that the appellant was not in the conventional position of making its own choice as to the grounds upon which it would challenge the administrative decision to which it objected. Having done so, it should not be permitted to raise on appeal a ground, or an argument, which it could have, but did not, raise at first instance, and for which omission it offers no acceptable explanation.

32    The Commissioner also pointed out that the question of whether there was evidence which justified the decision under challenge was itself inherently susceptible of further evidentiary treatment in the proceeding before the trial Judge. Had the point been taken at that level, the Commissioner might have taken the opportunity to lead further evidence as to the evidence or material that was before the decision-maker. The appellant’s response that, the decision-maker having filed his statement under s 13 of the ADJR Act, nothing further could be said on the subject, does not entirely, or satisfactorily, meet the Commissioner’s point. Given the nature of the appellant’s no evidence ground (it was tied to what was said to be the lack of justification for the decision-maker’s fixing at 20% the proportion of the monies owing by Goodstart to be forwarded to the Commissioner), the appellant’s case would have had to invoke para (b), rather than para (a), of subs (3) of s 5 of the ADJR Act. That is to say, it would have had to show the non-existence of a fact upon which the decision-maker based his decision: Watson v Australian Community Pharmacy Authority [2012] FCAFC 142 at [83]. That the appellant should now be entitled to advance the no evidence ground for the first time without the Commissioner having had the opportunity to consider calling evidence to show that the fact upon which the decision-maker did rely (if that were the appellant’s case) did exist would, in our opinion, involve self-evident injustice. It is, in addition to the other matters mentioned above, an amply sufficient basis upon which we should refuse leave for the appellant to proceed as proposed.

33    It was for the above reasons that we refused the appellant leave to advance a “no evidence” argument in support of its challenge to the judgment of the primary Judge.

34    The order of the court will be that the appeal be dismissed with costs.

Associate:

Dated:    2 November 2012