FEDERAL COURT OF AUSTRALIA

Roberts v Deputy Commissioner of Taxation [2015] FCA 238

THE COURT ORDERS THAT:

1.    The application for leave to appeal from the order of the Court made on 29 October 2013 is refused.

2.    The applicant pay to the respondent costs of the application.

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

REASONS FOR JUDGMENT

INTRODUCTION

1    The applicant seeks leave to appeal from a decision of a judge of the Court granting summary judgment under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act): Roberts v Deputy Commissioner of Taxation [2013] FCA 1108.

2    It is also necessary for the applicant to be granted an extension of time within which to seek that leave to appeal, as it is now accepted that the application for leave to appeal was instituted a little out of time. In my view, it is appropriate to grant the extension of time sought. Indeed it was not a matter which the respondent strongly resisted. The explanation for the application being out of time was that, following the judgment dismissing the claim, fresh solicitors were instructed, but they were not told that the judgment to be appealed from was an interlocutory judgment for the purposes of s 24(1A) rather than a final judgment of the FCA Act, it having been granted on a summary basis. There is therefore a satisfactory explanation for the brief delay and no real prejudice by that delay.

3    The test for determining when leave to appeal should be granted or refused from an interlocutory decision was established in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 (Decor), and involves consideration of two issues:

(1)    whether in all the circumstances the decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court; and

(2)    whether substantial injustice would result if leave to appeal were refused, supposing the decision to be wrong.

In Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261, the Full Court (Keane CJ, Gilmour and Logan JJ) expressed the test in the following terms:

Leave to appeal against an interlocutory order will usually be granted only where the applicant is able to show that the order occasions substantial prejudice to the applicant and there is a reasonable argument that the order should be set aside.

Their Honours referred to Decor for that proposition, and consequently I do not discern that the expressions “sufficient doubts” used in Decor and “reasonable argument” used in that case carry any significantly different meaning. It was not contended on the hearing of this application that there was any nuanced difference between those two expressions.

4    It is also not in dispute that the primary judge correctly identified the test for ruling on a summary judgment application under s 31A of the Act, namely whether the Court was satisfied that the applicant had no reasonable prospect of successfully prosecuting the proceeding: reasons at [13]-[16]. Again, that is hardly surprising, as his Honour referred to and applied the decision and principles established by the High Court in Spencer v The Commonwealth of Australia (2010) 241 CLR 118 (Spencer). In the joint judgment of French CJ and Gummow J in that case, their Honours said at [24] that the exercise of powers to summarily terminate proceedings must be attended with caution, and then added at [25]:

Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a “fanciful” prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.

THE LEGISLATION

5    The immediately relevant provisions of the Income Tax Assessment Act 1936 (Cth) (the ITAA 1936) are ss 175, 175A and 177(1). They are in the following terms:

175    Validity of assessment

The validity of any assessment shall not be affected by reason that any of the provisions of this Act have not been complied with.

175A    Objections against assessments

(1)    A taxpayer who is dissatisfied with an assessment made in relation to the taxpayer may object against it in the manner set out in Part IVC of the Taxation Administration Act 1953.

(2)    A taxpayer cannot object under subsection (1) against an assessment ascertaining that:

(a)    the taxpayer has no taxable income; or

(b)    the taxpayer has an amount of taxable income and no tax is payable.

(3)    Subsection (2) does not prevent the taxpayer from objecting against an assessment if the taxpayer is seeking an increase in:

(a)    the taxpayer’s liability; or

(b)    the total of the taxpayer’s tax offset refunds.

177    Evidence

(1)    The production of a notice of assessment, or of a document under the hand of the Commissioner, a Second Commissioner, or a Deputy Commissioner, purporting to be a copy of a notice of assessment, shall be conclusive evidence of the due making of the assessment and, except in proceedings under Part IVC of the Taxation Administration Act 1953 on a review or appeal relating to the assessment, that the amount and all the particulars of the assessment are correct.

6    In Commissioner of Taxation of the Commonwealth of Australia v Futuris Corporation Limited (2008) 237 CLR 146 (Futuris), the High Court considered the circumstances in which a challenge to assessments of income tax might be made under s 39B of the Judiciary Act 1903 (Cth) in the light of those provisions. The plurality judgment (Gummow, Hayne, Heydon and Crennan JJ) said at [24]-[25] that s 175 of the ITAA 1936 operates to protect an assessment of income tax from challenge under s 39B of the Judiciary Act 1903 (Cth) where the assessment does not properly answer the statutory description of “an assessment” because it is “tentative or provisional”, or because it is the result of “conscious maladministration of the assessment process”.

THE ORIGINATING PROCEEDING

7    At first instance, by the originating application, the applicant sought relief under s 39B in relation to notices of assessment issued on 22 February 2008 for the years ended 30 June 2003, 2004, 2005 and 2006. The applicant sought orders quashing the 2008 assessments, and a declaration that they were invalid. He also sought in his application a declaration “pursuant to s 175 of the Act” that there had been maladministration or a deliberate failure to comply with the provisions of the ITAA 1936.

8    Those assessments were amended assessments issued under s 167 of the ITAA 1936, significantly increasing the taxable income and therefore the tax payable by the applicant in relation to each of those four years. There were then then two further assessments issued on the same date dealing with penalties imposed in relation to the underpaid amounts. The primary judge referred to all the assessments, that is the amended assessments of taxable income and tax, and the assessments of the penalties payable, together as the 2008 assessments. I shall adopt the same description. Having received the 2008 assessments, the applicant apparently objected to the 2008 assessments on 16 July 2009 (or 26 May 2009). In relation to his objection, by letter of 21 February 2011, the respondent informed the applicant that the objection had been considered and had been allowed in part. The allowance of the objection in part lead to a substantial reduction in the assessment of taxable income and tax payable in relation to each of those four years, and consequential reductions in the penalty for the shortfall amounts. The primary judge was informed that, following that letter, further amended notices of assessment were issued to give effect to its terms (the 2011 assessments). The applicant had 60 days from the date of that letter to seek a review of the assessments.

9    Nevertheless, it was common ground between the applicant and the respondent that the 2011 assessments did not operate to diminish such entitlement to relief as the applicant might have in relation to the 2008 assessments in the primary proceeding. The matter proceeded on that basis.

THE PRIMARY JUDGMENT

10    After referring to Futuris, the primary judge said at [19] that it established the following principles:

(1)    Section 175 must be read with ss 175A and 177(1). The validity of an assessment is not affected by a failure to comply with the Act, but a dissatisfied taxpayer may object against an assessment in the manner set out in Part IVC of the TAA. Errors in the process of assessment do not go to jurisdiction where s 175 applies and so do not attract constitutional writs (at 157 [24]).

(2)    Section 175 does not protect from the reach of a constitutional writ a jurisdictional error which means that there is no “assessment” because of one of the following reasons:

(a)    the “assessment” is tentative or provisional; or

(b)    the “assessment” is the result of conscious maladministration in the assessment process (at 157 [24]).

(3)    The equitable remedies of injunction (s 39B(1) of the Judiciary Act) and declaration (s 21 Federal Court of Australia Act), although not controlled by the principles of jurisdictional error, operate to declare invalidity and restrain unlawful exercises of power. Where s 175 operates there is no invalidity (at 162 [47]).

(4)    An assessment is tentative or provisional if it fails to specify the amount of the taxable income which has been assessed and the amount of tax payable (at 163 [50]).

(5)    A deliberate failure to administer the law according to its terms is a case of conscious maladministration and outside the protection afforded by s 175 of the ITAA 1936 (at 164-165 [55]). Allegations that statutory powers have been exercised corruptly or with deliberate disregard to the scope of those powers are not lightly to be made or upheld (at 165 [60]).

(6)    Section 177(1) is not a privative clause in the ordinary use of that term. The section operates to change what otherwise would be the operation of the relevant rules of evidence. The section is not going to have any effective operation in the case of proceedings for judicial review because its wording is not apt to cover allegations of “corruption or other deliberate maladministration” (at 166-167 [64]-[66]).

(7)    The appeal was to be decided by the path taken in the reasons and not by any course assumed to be mandated by what was said in one or more of the several sets of reasons in Deputy Commissioner of Taxation of the Commonwealth of Australia v Richard Walter Pty Limited (1995) 183 CLR 168 (“Richard Walter Pty Ltd”) (at 168 [70]).

I respectfully agree. I do not think that the applicant sought to dispute those general propositions.

11    It was more having regard to their application in the particular circumstances which was the focus of the applicant’s contentions.

12    Having regard to those propositions, the primary judge then considered in a little more detail the requirement that an assessment be definite and certain, rather than tentative and provisional, and decisions concerning the expression “conscious maladministration”.

13    That was necessary because it was the applicant’s contention at first instance that the 2008 assessments did meet the description of being tentative or provisional, and alternatively of being the product of conscious maladministration, or both.

14    As to conscious maladministration, the primary judge at [27] recognised correctly that the applicant’s contention both at first instance, and on this appeal, was to assert that the 2008 assessments were the product of reckless maladministration, and that that is a sufficient basis upon which to set aside those assessments.

15    The primary judge then addressed the content of the asserted reckless administration, over the succeeding section of those reasons [27]-[42]. In particular, attention was drawn in the course of submissions by counsel on behalf of the appellant to the passage at [28] as follows:

It seems to me that recklessness is very close to conscious maladministration in that it is proceeding with a course of conduct well knowing that it is likely that it is not in accordance with the law and prescribed administrative processes, but careless or indifferent to that fact. It includes a serious departure from the law and prescribed administrative processes, but careless or indifferent to that fact. It includes a serious departure from the law and prescribed administrative processes to the point that one can infer wilful blindness or a state of mind akin to that.

And later at [42], his Honour said:

I accept as arguable for the purposes of this application that that form of recklessness which bears a close affinity with deliberate conduct (and which I have described above) may be sufficient and I will proceed on that basis.

16    Having undertaken that analysis, the primary judge then expressed the conclusion that the applicant’s material fell well short of establishing an arguable case of reckless maladministration in the sense he had described. His reasons explain why.

17    At [67] of his reasons, the primary judge also rejected the proposition that the applicant had an arguable case that the 2008 assessments are tentative or provisional.

18    Consequently, the primary judge was persuaded that the respondent had shown that the applicant had no reasonable prospect of successfully prosecuting his claim so that summary judgment should be entered.

19    Finally, in his reasons, the primary judge addressed the applicant’s application for discovery by way of interlocutory relief, and which on the applicant’s case should have been determined before the summary judgment application. Having reminded himself that summary judgment might not be warranted because there are issues of fact which may justify “the invocation of pre-trial processes such as discovery and interrogatories”: per French CJ and Gummow J in Spencer at [4], his Honour concluded that it was not either necessary or appropriate to address the interlocutory application for discovery first because it would not avail the applicant. He said at [71] that the existing authorities, to which he referred, justified a refusal of discovery where, as his Honour had found, the applicant fell well short of establishing an arguable case.

THE GROUNDS OF APPEAL

20    The applicant has provided a draft notice of appeal, if leave to appeal were granted, containing nine grounds. On the hearing, it was accepted that they fell into the three categories of issue addressed by the primary judge, namely:

(1)    whether, consistent with the Futuris principles, the material available was sufficient to demonstrate a reasonably arguable case of conscious maladministration (including recklessness) on the part of the respondent in relation to the 2008 assessments;

(2)    whether, again consistent with the Futuris principles, there was a reasonably arguable case that the 2008 assessments were tentative or provisional, so as not to engage the operation and application of ss 175, 175A and 177(1) of the ITAA 1936; and

(3)    whether, in any event, the interlocutory application for discovery and inspection by the applicant against the respondent should have been heard and determined before hearing and determining the application of the respondent that the application itself be summarily dismissed.

I shall address the contentions under those headings.

21    Before doing so, it is desirable to record a little more fully the nature of the applicant’s case.

22    The following is taken largely from the reasons for judgment of the primary judge, but it also has regard to the material to which I was referred in the affidavits filed on behalf of the applicant for the purposes of the initial summary dismissal application, and the initial discovery and inspection interlocutory application.

23    It is apparently common ground that a number of companies involved in the transport or haulage business or businesses operated or were said to have operated for the period covered by the 2008 assessments or part of those periods. During that period there was available to such businesses diesel fuel rebates referred to in the evidence before the primary judge as DAFG (Diesel and Alternative Fuel Grants) and FTC (Fuel Tax Credits). Those descriptions of the diesel fuel rebates were adopted by the primary judge.

24    The applicant controlled various companies including Old No 7 Transport Pty Ltd, Double R Logistic Pty Ltd and Old No 7 Trucking Co Pty Ltd. His position was that on about 1 July 2004 he sold the businesses of Double R Logistic Pty Ltd and Old No 7 Trucking Co Pty Ltd to a man named David Campbell, who controlled a company called Interlink Freight Services Pty Ltd. In short, he said that that transaction explained a number of the payments between the three companies and to himself which otherwise had been treated by the respondent as taxable income in his hands.

25    The material also shows that the respondent, having considered what information was available to him, did not consider that such a transaction occurred or indeed that David Campbell existed. The respondent’s reasons made that quite clear. The assessments were made by the respondent on the basis that, after 18 January 2003, there was no evidence that Old No 7 Trucking Co Pty Ltd was carrying on an enterprise at the time of, before or after the alleged sale of the business on 1 July 2004. The respondent also concluded on the material available that Interlink Freight Services Pty Ltd, that is the company said to have been controlled and operated by David Campbell, did not before, after or as at 1 July 2004 carry on business as a trucking or haulage company. Next, the respondent found that there was no evidence that Double R Logistic Pty Ltd received any payment from customers from the time of opening of its bank account up to, including or after 1 July 2004, being the date of the alleged sale of its business. Nor, the respondent found, did Old No 7 Trucking Co Pty Ltd from 18 January 2003 onwards receive any payment from customers up to, on or after the alleged sale of its business. The respondent for the purposes of the assessments found that Old No 7 Trucking Co Pty Ltd ceased any business activities by 17 January 2003, and possibly as early as November 2002. The respondent also concluded that from 1 July 2004, there was no evidence of Interlink Freight Services Pty Ltd having received any income from customers, from the date of the opening of its bank accounts leading up to, on or from the date of the alleged buying of the businesses of Double R Logistic Pty Ltd and Old No 7 Trucking Co Pty Ltd. In short, putting aside Old No 7 Transport Pty Ltd, over the relevant period, the respondent concluded that none of Double R Logistics Pty Ltd, Old No 7 Trucking Co Pty Ltd nor Interlink Freight Services Pty Ltd were operating as transport or haulage businesses during the period to which the 2008 assessments applied, and so could not have conducted business in a way which made them eligible to receive the full freight subsidies.

26    In the light of those findings, the respondent concluded that the applicant, as the person controlling those entities (perhaps other than Interlink Freight Services Pty Ltd) had not accurately accounted for all income received during the period from 1 July 2002 to 30 June 2006.

27    The respondent’s reasons indicate that efforts were made to confirm the existence of David Campbell. Those efforts, in the view of the respondent, pointed to the conclusion that he did not exist. There was also material referred to in the respondent’s reasons showing that the applicant possessed significant control over Interlink Freight Services Pty Ltd. The respondent concluded that the most likely explanation for the alleged business sale was to provide additional support for the lodgement of BAS figures and claims for DAFG and FTC so that they were not the entitlements of the applicant. During the relevant period, the respondent noted that the applicant was clearly controlling the funds deposited into all accounts, with the possible exception of an account in the name of David Campbell. In relation to that account, he noted that the applicant was the principal beneficiary of funds withdrawn from that account over the period of the 2008 assessments. As it appeared that none of Old No 7 Trucking Co Pty Ltd (after 17 January 2003), Double R Logistic Pty Ltd and Interlink Freight Services Pty Ltd were entitled to receive funds from the payment of DAFG or FTC claims as they were not carrying on business, the value of the DAFG and FTC payments into their accounts was not warranted. The respondent therefore concluded that the applicant had access to, and had used the funds deposited into and withdrawn from those accounts, in the absence of any business enterprise being operated by them, and had applied them to his personal benefit. They were (the respondent concluded) to be regarded as conduits for the receipt of DAFG and FTC payments which did not have a legitimate basis for claim as fuel expended in an enterprise operated by those entities, but reflected a scheme of the applicant to channel funds through a corporate structure for his benefit. A cash flow analysis ultimately followed those funds to the applicant.

28    Similar findings were made in relation to the 2011 assessments, but the 2011 assessments (as the primary judge described it) differed from the methodology used in the reasons in relation to the 2008 assessments because of the utilisation of the deemed dividends provisions in the ITAA 1936.

CONSIDERATION: CONSCIOUS MALADMINISTRATION

29    The applicant’s contention at [27] of his written submissions illustrate, in a short sentence, the difference in emphasis between the approach of the primary judge as to what is required to show maladministration (including, as his Honour said, recklessness) and the applicant’s contention that “recklessness and want of a diligent and conscientious approach” suffice.

30    As the use of a label, the term “recklessness” is capable of conveying a range of qualitatively assessed content. In Applicant WAFV of 2002 v Refugee Review Tribunal [2003] FCA 16 French J at [40] described “good faith” as a “protean term”, and his Honour then over the succeeding paragraphs of his reasons referred to a number of statutory contexts and judicial comments to support that proposition. It may be accepted that, in an appropriate context, the lack of good faith, or the demonstration of bad faith, by an administrative decision-maker may be demonstrated by other than conscious maladministration of the decision-making process. As suggested by the observations of Porter J in Woods v Deputy Commissioner of Taxation (2001) 86 ATR 620 (Woods) and emphasised at [72], each case needs to be considered in the light of its own facts and circumstances. In that matter, ultimately, the entry of summary judgment in favour of the Commissioner required the rejection of evidence which, at that point was unchallenged or untested. Porter J decided at [74] that there was an error in proceeding to enter summary judgment where that evidence had not been tested. That is, there had been (as his Honour said at [71]), the resolution of a factual issue against the taxpayer by making a judgment on the likely outcome of a factual dispute when it was not appropriate to do so. Earlier in his reasons at [50] (in relation to a different contention, namely that there was no assessment because a necessary pre-condition to the making of an assessment –the forming of an opinion for the purposes of s 170(2) – did not happen) his Honour opined that a fair reading of Futuris produced the result that there had not been a definitive limiting of the categories of case available to be reviewed for jurisdictional error, outside the scope of s 175 of the ITAA 1936. He said that it was at least arguable, based upon the view of Kirby J in Futuris, that there was no intention to limit the categories of reviewable judicial error outside the operation of s 175 to the two mentioned in Futuris. However, that does not lead to the conclusion that, in the present context, the lack of good faith asserted by the applicant is made out by the arguably evidenced conduct of the Commissioner in the making of the 2008 assessments.

31    I do not think that that decision takes the applicant’s intentions further, because his contention is about the content of the concept of maladministration as used in the plurality judgment in Futuris, rather than as to whether there is a different category of conduct by the Commissioner as an administrative decision-maker which, if not undertaken, exposes an assessment to judicial review under s 39B despite the apparent width of s 175 of the ITAA 1936.

32    By reference to [24] and [25] of the plurality judgment in Futuris, it can be seen that an assessment is not affected by failure to comply with any provision of the Act. Pt IVC of the Taxation Administration Act 1953 (Cth) (the TAA 1953) provides for a process of objection, and then review, and appeal, as the available path to challenge an assessment. Their Honours said at [24]:

Where s 175 applies, errors in the process of assessment do not go to jurisdiction and so do not attract the remedy of a constitutional writ under s 75(v) of the Constitution or under s 39B of the Judiciary Act.

In the following paragraph, their Honours said that s 175 operates only where there has been what answers the statutory description of an “assessment”, so that a tentative or provisional assessment is not an assessment as defined, and conscious maladministration will also remove a purported assessment from being an assessment. That was then the issue upon which the analysis of the character of the decision-making of the respondent in that case took place. In that case, the allegation was that there was deliberate double counting in circumstances which indicated maladministration on the part of the respondent. That allegation did not succeed. It is not necessary to explore the reasons for that conclusion. As was pointed out by Porter J in Woods, the plurality in Futuris at [55] made it plain that a public officer who knowingly acts in excess of that officer’s power so that there was a deliberate failure to administer the law according to its terms would be a circumstance in which s 39B would be available to challenge the validity of that conduct without being caught within the scope or web of s 175. Later in their Honour’s reasons in Futuris at [60], it is said that allegations that statutory powers have been exercised corruptly or with deliberate disregard to the scope of those powers are not lightly to be made or upheld.

33    It is also necessary to refer to the decision of French J in Deputy Commissioner of Taxation v Warrick (No 2) (2004) 56 ATR 371. That case was said by counsel for the applicant to support the applicant’s contentions. It was a decision in which the broad circumstances are not dissimilar from the present case. There had been an amended assessment and penalty tax imposed, an objection lodged (in this instance at present there is no objection lodged to the 2008 assessments), and the Commissioner was then pursuing recovery of the tax payable pursuant to the amended assessments before having ruled upon the objection. Recovery action taken by the respondent was resisted on the basis that the assessments were made allegedly with a want of good faith or for an improper purpose. That application ultimately was unsuccessful, although a stay of the enforcement proceedings was granted for a period of months, presumably to enable the respondent to address the objection to the assessments under challenge as apparently there had been no satisfactory explanation for why there had been such delay in, and a failure to deal with, that objection: see at [106].

34    Under the heading “Want of bona fides …” French J at [96] referred to the submission that it was at least sufficiently arguable that there had been no real or proper attempt to investigate or determine the facts so as to justify the setting aside of the assessments in proceedings such as the present and outside the Part IVC regime. It was said that the decision-making process was applied capriciously. His Honour at [100] concluded that there was nothing in the material before the Court which would arguably support a finding of lack of bona fides on the part of the respondent, even on the basis that want of bona fides might be established not only by showing bad faith but also by showing the absence of a diligent and conscientious approach to the decision-making process involved in making an assessment. His Honour went on specifically to observe at [100] that deficiencies arguably inferred from the reasoning process or non-sequiturs arguably demonstrated in the reasoning process do not disclose an arguable failure to endeavour diligently and conscientiously to exercise the power imposed on the Commissioner (in that case) by the statute. At the conclusion of [100], having made the factual finding adverse to the taxpayer, his Honour concluded:

The threshold for demonstrating a failure to exercise a power bona fide is not a low one. While it does not require proof of malice or dishonesty it does import a serious dereliction of duty which borders upon, if not amounts to, recklessness in the decision-making process. Want of bona fides is not a vehicle through which the taxpayer may challenge the adequacy of the Commissioner’s logic in making assessments of taxable income.

35    I do not discern from those observations that anything said in that case is different from, or supports, a more expansive interpretation of, the concept of maladministration as explained in the plurality judgment in Futuris and as adopted by the primary judge in this matter.

36    Nor, in the light of those authorities to which I was referred, and my consideration of them, am I persuaded that it is arguable that the primary judge, in exercising his discretion to enter summary judgment against the applicant in this matter, applied too strict a test of maladministration in assessing the evidence relied upon by the applicant. His Honour simply applied the law as expounded in Futuris. This is not a case, such as Woods, where the primary judge was required to make findings of fact based on disputed (or undisputed) evidence. It was his role to look at the available evidence, including that put forward by the applicant, to decide upon that material whether it was reasonably arguable that the 2008 assessments were the product of maladministration (including reckless maladministration) by the respondent.

37    It remains to consider whether, on the material before the primary judge, it can be shown that his Honour either misunderstood that material or, as a matter of substantial qualitative judgment, misconceived its import so that it is reasonably arguable on that material that the 2008 assessments were the consequence or product of maladministration by the respondent. I have carefully considered the submissions which were developed orally and, on this aspect of the case, in the written submissions of the applicant. The written submissions under the heading “The Events” identify the material relied upon, and note that the 2008 assessments were made on the basis of undeclared income said to be attributable to the applicant, but that he does not know what is meant by the expression “undeclared income” or how the amount of the assessments is calculated. There are then a series of points in the following paragraph which, it is said, collectively demonstrate that the respondent acted recklessly in the decision-making process in relation to the 2008 assessments and (apparently as an alternative) show an absence of diligence and conscientiousness in a number of respects. I shall not recite them.

38    The material is voluminous. The reasons for decision of the respondent are extensive and are cross-referenced to extensive material. The primary judge categorised those various matters as falling into three broad categories:

(1)    a complaint about the respondent’s approach to David Campbell’s existence;

(2)    a complaint about inconsistency by the respondent to the allocation of diesel fuel rebates, and

(3)    a collection of complaints about document management and related matters.

39    In relation to those matters, collectively, I share the view of the primary judge that taken individually or collectively they are not capable of demonstrating conscious maladministration, whatever the scope of that expression but including reckless maladministration, so as to entitle the applicant to bring the principal proceeding outside the objection-review-appeal process provided by Pt IVC of the TAA 1953, and so outside the scope of operation of s 175. By way of an example, there is obviously a serious issue as to the existence or otherwise of David Campbell. The respondent reached a view about that based upon information available to the respondent, but apparently conscientiously and appropriately after an investigation by the respondent. The fact that the applicant has adduced other evidence, including his own, as to the existence of David Campbell does not tend to show that the respondent did not conscientiously set about making the 2008 assessments in accordance with the ITAA 1936. That would be true even if, upon consideration of the objection, or a review of the respondent’s ruling on the objection, it is found that David Campbell does exist. It might well be that the respondent’s conclusions to support the 2008 assessment may not be correct when, and if, there was a review of those assessments under Part IVC. But, ultimately, in my view, there is simply no arguable foundation (accepting on its face the material presented by the applicant but also for these purposes observing the material available to show the processes undertaken by the respondent to make the 2008 assessments) that the applicant could show that the 2008 assessments were not “assessments” for the purposes of the ITAA 1936. Their correctness or otherwise is a matter which, as Futuris explains, is to be determined in accordance with the available procedures under Pt IVC of the TAA 1953.

40    I have not overlooked the applicant’s contention that “someone remains entitled to receive the diesel fuel rebates”. That may be correct, but it does not demonstrate, of itself or in conjunction with the other matters which were raised, that the respondent did not attempt to follow the prescribed procedures for the purposes of making the 2008 assessments in an appropriate manner and without “maladministration” on the respondent’s part.

41    Similarly, I do not think that the matters to which the applicant drew attention under the topic of “applicant’s attempts to inform himself”, and obviously at least from his perspective despite his efforts producing only frustration to him, can either alone or in conjunction with the other matters which he has raised, elevate his case to one where it is reasonably arguable that the respondent in the making of the 2008 assessments did not in fact generate assessments for the purposes of the ITAA 1936 because of maladministration on the respondent’s part.

42    I respectfully adopt, and share, the views of the primary judge on those matters.

43    The primary judge dealt with the submission that the 2008 assessments were tentative or provisional only because the respondent’s investigations continued after they had been made, having regard to the observations in Futuris at [49]-[52]. I share the view that none of that material suggests that, having regard to the face and contents of the 2008 assessments, they are tentative or provisional. There is no arguable basis for showing that they may have been tentative or provisional because the benefit of the diesel fuel rebates has been found to lie, for the purposes of the ITAA 1936, as taxable income of the applicant, rather than (as he contends) with an appropriate business to be offset against the operating costs of that business. That is a matter which, of course, would be relevant to any proceedings under Pt IVC.

44    The third matter raised by the applicant at first instance was only briefly adverted to in the course of submissions on this application. On that issue, it is necessary to review the decision of the primary judge in the exercise of his discretion not to address the application for discovery before addressing the application for summary judgment. However, as the primary judge said, the fact that on the face of the material relied upon by the applicant, there is able to be made a firm judgment that he has no arguable case against the respondent for relief of the type claimed in the primary proceeding, indicates that there was no arguable miscarriage of the discretion to permit discovery in this matter at the time and in the manner which the applicant sought it so as to warrant the grant of leave to appeal. As I too have determined that the application for leave to appeal should be refused on the primary basis asserted by the applicant, that approach on the part of the primary judge is itself also reflected in my views.

45    For those reasons, I refuse the application for leave to appeal.

46    I have not addressed the issue of prejudice, that is, whether there would be substantial injustice to the applicant if leave to appeal were refused, because I have not got to the point of accepting that, contrary to the decision of the primary judge, the applicant had an arguable case that he was entitled to relief sought on this application in respect of the 2008 assessments. I note that the respondent has argued that, in any event, there is no significant injustice to the applicant by refusing leave to appeal because he has, or had, access to the regime under Pt IVC of the TAA 1953 and the procedures which it provides for. In particular, I have not needed to determine whether that is so where, as in the present circumstances (as I was told by counsel), the time within which any objection to the 2008 assessments passed without notice of objection having been given.

47    The applicant should pay to the respondent costs of the application.

Associate:

Dated:    19 March 2015