FEDERAL COURT OF AUSTRALIA

Mahaffy v Administrative Appeals Tribunal [2015] FCA 251

THE COURT ORDERS THAT:

1.    The appeal is dismissed as incompetent.

2.    The applicant pay the second respondent’s costs as agreed or assessed on an indemnity basis.

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

REASONS FOR JUDGMENT

(Revised from transcript)

1    For many years prior to September 2013, Mr Mahaffy was a registered tax agent under the Tax Agent Services Act 2009 (Cth) (the Act). In 2013, Mr Mahaffy applied for a renewal of his registration as a tax agent, but the Tax Practitioners Board (the Board) decided to reject his application. The Board found that Mr Mahaffy was not a fit and proper person to hold registration under sections 20-25 and 20-5 of the Act. For present purposes, it is unnecessary to consider the basis for the Board’s finding as such.

2    On 18 October 2013, Mr Mahaffy applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the Board’s decision. He also sought a stay of the Board’s decision pending the hearing of his review application. Mr Mahaffy initially achieved some success in his endeavour to have the Board’s decision stayed. On 8 January 2014, a member of the Tribunal granted a conditional stay. Unfortunately for Mr Mahaffy, on 25 November 2014, a Deputy President of the Tribunal, on the Board’s application, decided to revoke the stay. The Deputy President also made a number of procedural directions designed, no doubt, to bring the matter to hearing in the earliest possible timeframe.

3    Mr Mahaffy now appeals to this Court from the Tribunal’s decision to revoke the stay of the Tribunal’s decision. Pursuant to section 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) a party to a proceeding before the Tribunal may appeal to this Court on a question of law, from any decision of the Tribunal in that proceeding. Whilst s 44 of the AAT Act refers to the proceedings as an appeal, the proceedings are, in the original jurisdiction of this Court.

4    The problem for Mr Mahaffy is that there is clear and binding authority to the effect that an appeal under section 44 of the Act does not lie in respect of interim or interlocutory orders of the Tribunal. In Director-General of Social Services v Chaney (1980) 3 ALD 161 (Chaney), the Full Court held that “decision” in the context of section 44(1) of the AAT Act is to be given a narrow meaning and refers to a final decision or determination of the Tribunal. Deane J, with whom Fisher J relevantly agreed, held (at 181) that:

… an appeal under s 44(1) of the Act lies only from a decision of the Tribunal which constitutes the effective decision or determination of the application for review.

5    Deane J also held that no appeal lay from an interlocutory decision of the Tribunal suspending the operation of the decision under appeal in that case. As his Honour explained (at 181):

Nor, in my view, was the interim order made by the Tribunal suspending the operation of the decision of the Director-General, a decision of the Tribunal from which an appeal properly lay to this court pursuant to s 44 of the Act. The fact that such an order has independent operative effect does not, in the circumstances, warrant further qualification of the general rule that an appeal under s 44(1) only lies from the determination effectively disposing of the proceeding before the Tribunal.

6    Fisher J additionally observed (at 183) that such an approach conforms:

… not only with the scheme of the Administrative Appeals Tribunal Act 1975 (the Act) and its true construction but also with the restraint properly accepted by courts when appeals from administrative tribunals are limited to errors of law. In such circumstances it is generally considered inappropriate for courts to intervene until the statutory process is completed.

7    The decision in Chaney was followed in circumstances almost identical to Mr Mahaffy’s circumstances in Frugtniet v Tax Practitioners Board (2013) 136 ALD 324 (Frugtniet). In that case, Mr Frugtniet sought to appeal the Tribunal’s refusal to grant a stay of a decision of the Board to terminate Mr Frugtniet’s registration as a tax agent. Murphy J dismissed the appeal as incompetent on the basis that the refusal to grant a stay was not a decision for the purposes of section 44(1) of the AAT Act because it was not a final decision or a determination of the Tribunal. The refusal of the stay did not determine the outcome of the substantive application.

8    Two other matters should be noted about Mr Mahaffy’s notice of appeal. First, his notice of appeal initially only named the Tribunal as a respondent to the appeal. It should have named the Board, being the other party to the Tribunal’s proceedings. That situation has now been remedied. On 27 January 2015, the Board filed an interlocutory application in Mr Mahaffy’s appeal, seeking an order that it be joined as a respondent. Whilst Mr Mahaffy opposed the making of such an order, an order joining the Board was made on 3 February 2015. The Board is clearly a necessary and appropriate party to these proceedings. If it was not a party there would effectively be no contradictor, the Tribunal having filed a submitting appearance.

9    The second point to note about Mr Mahaffy’s notice of appeal is that, as is apparent from the terms of section 44(1) of the AAT Act, an appeal only lies to this Court on a question of law. The Court does not have jurisdiction to entertain an appeal that does not involve a question of law. Mr Mahaffy’s notice of appeal does not attempt to specify any question of law. In this respect, it departs from the required form of notice of appeal under the Federal Court Rules: see Rule 33.12 and Form 75.

10    Mr Mahaffy’s appeal was listed for first directions before me on 3 February 2015. On 28 January 2015, the National Appeals Registrar wrote to Mr Mahaffy, advising him that at the directions hearing the Court would give consideration to, amongst other things, the question of whether his appeal was competent, given the decisions in Chaney and Frugtniet. The letter also drew the apparent deficiency in Mr Mahaffy’s notice of appeal to Mr Mahaffy’s attention, that deficiency being the absence of any identified question of law. The letter enclosed copies of the judgments in both Chaney and Frugtniet and advised Mr Mahaffy that he would be given the opportunity to make submissions in relation to the matters referred to in the letter at the directions hearing.

11    At the directions hearing on 3 February 2015, Mr Mahaffy appeared in person. Mr Markus appeared for the Board. Despite the fact that the Registrar’s letter had been sent both to the email and postal addresses nominated by Mr Mahaffy in his notice of appeal, Mr Mahaffy claimed not to have received it. In the circumstances, Mr Mahaffy was not in a position to address the issues raised in the letter. A copy of the letter was provided to Mr Mahaffy and the substance of it was explained to him.

12    The question of the competency of Mr Mahaffy’s appeal was listed for argument and determination by the Court on 17 February 2015. This was a date that Mr Mahaffy reluctantly agreed was suitable to him. It was made clear to Mr Mahaffy that it was important that either he or a legal representative appear on that day to make any submissions he wanted to make concerning the competency of his appeal.

13    On 10 February 2015, Mr Mahaffy sent a letter by facsimile to the Registry. That letter advised that Mr Mahaffy had approached someone, who was apparently a barrister, to assist him with legal advice, but that person was too busy to assist him until after 17 February 2015. The letter also said that Mr Mahaffy was unable to attend Court on 17 February 2015 as a result of an unspecified serious illness. It was indicated that a doctor’s certificate would be supplied to the Court on 17 February 2015. Mr Mahaffy said that he was seeking an adjournment for two weeks so he could get the named barrister to assist him.

14    On 12 February 2015, the Registry advised Mr Mahaffy by email that the Court was not prepared to grant an adjournment on the basis of the information in his letter and that Mr Mahaffy or a legal representative should attend Court on 17 February 2015. On 17 February 2015, the Registry received a number of letters from Mr Mahaffy. The letters contained submissions that purported to address the issues and cases that had been drawn to his attention in the earlier correspondence from the Registrar. The submissions also purported to address two cases that had been drawn to Mr Mahaffy’s attention by the Board, Nelson v Commissioner of Taxation [2014] FCAFC 163 and Croker v Secretary, Department of Employment and Workplace Relations [2006] FCA 1257 (Croker).

15    The first of those cases is a decision of the Full Court (Greenwood, Rares and Davies JJ) to the effect that a notice of appeal under section 44 of the AAT Act that does not raise a question of law does not enliven the jurisdiction of the Court. The second case is a decision of Buchanan J in this Court, applying Chaney’s case in circumstances again relevantly the same as this case. Shortly before 2.15pm on 17 February 2015, the Court received a further set of submissions from Mr Mahaffy, again by facsimile, that addressed the cases that had been drawn to Mr Mahaffy’s attention by the Registrar.

16    None of the submissions advanced by Mr Mahaffy in the three letters address the fundamental difficulty with Mr Mahaffy’s purported appeal. That difficulty is that the authorities plainly indicate that the Tribunal’s decision to lift the stay is not a decision for the purposes of section 44 of the AAT Act. It is an interim or interlocutory decision. The decisions in Chaney, Frugtniet and Croker clearly establish that such a decision is not amenable to appeal under section 44 of the AAT Act. Nor do Mr Mahaffy’s submissions address the other fundamental difficulty with his notice of appeal, namely the fact that it does not concern any question of law. The only suggested error of law identified in Mr Mahaffy’s submissions is a claim that the Tribunal misunderstood his case. That claim does not raise a question of law sufficient to enliven the jurisdiction of the Court.

17    Mr Mahaffy, as applicant in these proceedings, has the burden of establishing the competence of his appeal. He has not discharged that burden. I have had regard to the fact that Mr Mahaffy is not legally represented and that, for reasons largely unexplained, he has not been able to obtain the assistance of a barrister who he apparently wants to assist him. I have also had regard to the fact that Mr Mahaffy claims that he has been unable to travel to Court for the hearing. That claim is not supported by evidence. Nor is there any indication why he cannot travel to Court. Mr Mahaffy appears to not now claim that he is ill, as he did previously. In any event, he has produced no evidence of any medical condition that would prevent him from appearing today. It was made abundantly clear to Mr Mahaffy at the first directions hearing that he would have to appear today himself or be represented.

18    In any event, having regard to the authorities already referred to, Mr Mahaffy’s case is plainly hopeless. It must be dismissed as incompetent.

19    In relation to costs, the Board’s solicitor has drawn the Court’s attention to the fact that Mr Mahaffy was written to on 28 January 2015 by the Board’s solicitor. That letter pointed out to Mr Mahaffy, in terms similar to the Registrar’s letters, the difficulties that Mr Mahaffy faced given the decisions of the Full Court in Chaney and the decisions in Croker and Frugtniet. The letter indicated to Mr Mahaffy that should he discontinue the appeal in light of those difficulties, the Board would not seek any order as to costs, but that if Mr Mahaffy proceeded with the appeal, the Board may apply for costs to be assessed on an indemnity basis.

20    The Board accordingly sought indemnity costs. In all the circumstances, an order for indemnity costs is warranted. That is not, only because of the offer in the Board’s solicitor’s letter, but because Mr Mahaffy chose to pursue what was plainly a hopeless case and did not even have the courtesy to appear or offer a proper explanation for his non-appearance.

21    Accordingly, the orders of the court are:

1.    The appeal is dismissed as incompetent.

2.    The applicant pay the second respondent’s costs as agreed or assessed on an indemnity basis.

Associate:

Dated:    24 March 2015