FEDERAL COURT OF AUSTRALIA

Frugtniet v Tax Practitioners Board [2018] FCA 387

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed with costs.

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

REASONS FOR JUDGMENT

STEWARD J:

1    This is an appeal from a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 30 August 2017, which agreed with a decision of the Tax Practitioners Board (the “Board”) to terminate the applicant’s registration as a tax agent and preclude him from reapplying for registration for a period of five years: Frugtniet v Tax Practitioners Board [2017] AATA 1393. The Tribunal found that the applicant had not shown that he was a “fit and proper person” for the purposes of the Tax Agent Services Act 2009 (Cth) (the “TAS Act”).

2    The applicant represented himself before me, and before the Tribunal. He has, however, a law degree, and is no stranger to litigation: see, for example, Frugtniet v Board of Examiners [2002] VSC 140; Frugtniet v Board of Examiners [2005] VSC 332; Law Institute of Victoria Ltd v Frugtniet [2011] VCAT 596; Frugtniet v Australian Securities and Investments Commission (2016) 152 ALD 31; Frugtniet v Migration Agents Registration Authority [2016] AATA 299; Frugtniet v Secretary, Department of Social Services [2017] FCA 1227; Frugtniet v Migration Agents Registration Authority (2017) 156 ALD 79; Migration Agents Registration Authority v Frugtniet [2018] FCAFC 5.

Procedural History

3    The history of this matter is regrettable. The Board’s decision to terminate the applicant’s registration as a tax agent was originally made on 16 January 2013. The applicant was notified of this decision on 15 February 2013. He sought to have the decision reviewed by the Tribunal by application dated 18 February 2013. On 23 October 2014, the Tribunal decided that the applicant had not shown himself to be a fit and proper person: Frugtniet v Tax Practitioners Board (2014) 148 ALD 401.

4    This decision of the Tribunal (the “first Tribunal”) was the subject of an appeal to this Court. On 1 October 2015, Jessup J allowed the appellant’s appeal and ordered that the application for review be remitted for hearing and determination by a differently constituted Tribunal: Frugtniet v Tax Practitioners Board [2015] FCA 1066.

5    A differently constituted Tribunal reheard this matter in 2016. It reserved, and by 1 July 2017 the Tribunal had still yet to make its decision. On that day, the presiding member ceased to be a member of the Tribunal. It is very unfortunate that no decision had been made prior to that date.

6    Acting pursuant to an instrument of delegation signed on 1 July 2015, Deputy President Forgie made, on 3 July 2017, a direction pursuant to s 19D(2)(a)(i) of the Administrative Appeals Tribunal Act 1975 (Cth) (the “Act”) that a different member of the Tribunal take over the proceeding. Pursuant to s 19D(4), the Tribunal then continued the proceeding. Sections 19D(2) and (4) of the Act provide:

(2)    At any time after the hearing of a proceeding commences and before the Tribunal determines the proceeding, the President may revoke a direction under subsection 19A(1) in relation to the proceeding and give another such direction, if:

(a)    the member, or one of the members, who constitutes the Tribunal for the purposes of the proceeding:

(i)    stops being a member; or

(ii)    is for any reason unavailable; or

(iii)    is directed by the President not to take part in the proceeding; or

(b)    the President considers that doing so is in the interests of achieving the expeditious and efficient conduct of the proceeding.

…

(4)    The reconstituted Tribunal must continue the proceeding. For this purpose, it may have regard to any record of the proceeding before the Tribunal as previously constituted (including a record of any evidence taken in the proceeding).

7    Section 19D(6) provides:

(6)    The President must not, for the purposes of subsection (2), revoke a direction under subsection 19A(1) in relation to a proceeding and give another such direction unless the President:

(a)    is satisfied that it is in the interests of justice to do so; and

(b)    has consulted each member who as a result ceases to be a member of the Tribunal as constituted for the purposes of the proceeding.

8    I note that Deputy President Forgie did not consult with the Tribunal member who heard this matter in 2016. That was because at the time of the making of the direction that person had, as already mentioned, ceased to be a member of the Tribunal. The definition of member in s 3 of the Act does not refer to a former member of the Tribunal. There was, accordingly, no obligation to consult with that individual.

9    On 30 August 2017, the Tribunal made its decision. At par [11] of its reasons, the Tribunal records that it had regard to all the documents admitted into evidence during the course of the 2016 hearing as well as the transcript of that hearing.

PROCEEDINGS IN THE ADMINISTRATIVE APPEALS TRIBUNAL

10    The first issue before the Tribunal was whether the applicant had ceased to meet the requirement for registration as a tax agent that he be a fit and proper person: Frugtniet v Tax Practitioners Board [2017] AATA 1393 at [19]. In reaching its decision that the applicant did not satisfy this requirement for registration as a tax agent, the Tribunal considered the following matters:

(1)    the decision of the Supreme Court of Victoria dismissing an appeal from a decision of the Board of Examiners which refused an application made by the applicant for admission as a legal practitioner on the basis that it was not satisfied that he was a fit and proper person: Frugtniet v Board of Examiners [2002] VSC 140.

(2)    the further decision of the Supreme Court of Victoria dismissing another appeal from a further decision of the Board of Examiners that it was not satisfied that the applicant was a fit and proper person: Frugtniet v Board of Examiners [2005] VSC 332.

(3)    the applicant’s application for registration as a tax agent in May 2008;

(4)    a decision of the Victorian Civil and Administrative Tribunal on 8 April 2011 that the applicant was, for three years, a disqualified person under the Legal Profession Act 2004 (Vic);

(5)    the applicant’s application for registration as a migration agent on 27 October 1999;

(6)    complaints lodged with the Board by clients;

(7)    the applicant’s preparedness to mislead the first Tribunal;

(8)    the applicant’s claims that:

(a)    the application form used by the Tax Agents’ Board of Victoria (“TABV”) in 2008 was not an approved form; and

(b)    the Board did not comply with the TAS Act when conducting its investigation into his conduct.

11    The Tribunal set out the applicable legislation at pars [12] to [18] as follows:

12.    Subdivision 40-A of the TAS Act deals with the grounds that may give rise to termination of registration as a tax agent. Section 40-5 provides:

40-5    Termination of registration—individuals

(1)    If you are a registered tax agent or BAS agent and an individual, the Board may terminate your registration if:

(a)    an event affecting your continued registration, as described in section 20-45, occurs; or

(b)    you cease to meet one of the tax practitioner registration requirements; or

(c)    you breach a condition of your registration.

Note:    The Board may also terminate your registration for breach of the Code of Professional Conduct: see Subdivision 30-B.

13.    Section 20-45 deals with events which may affect the continued registration of a tax agent and provides:

20-45    Certain events may affect your continued registration

The following events may affect your continued registration as a registered tax agent, BAS agent:

(a)    you are convicted of a serious taxation offence;

(b)    you are convicted of an offence involving fraud or dishonesty;

(c)    you are penalised for being a promoter of a tax exploitation scheme;

(d)    you are penalised for implementing a scheme that has been promoted on the basis of conformity with a product ruling in a way that is materially different from that described in the product ruling;

(e)    you become an undischarged bankrupt or go into external administration;

(f)    you are sentenced to a term of imprisonment.

14.    The expression tax practitioner registration requirements is defined in s 90-1 as:

tax practitioner registration requirements means the matters about which the Board must, under Subdivision 20-A, be satisfied before the Board is obliged to grant an application for registration under this Act.

15.    Subdivision 20-A sets out the eligibility requirements for registration. Section 20-5(1) provides:

20-5    Eligibility for registration as registered tax agent, BAS agent or tax (financial) adviser

Individuals

(1)    An individual, aged 18 years or more, is eligible for registration as a registered tax agent or BAS agent if the Board is satisfied that:

(a)    the individual is a fit and proper person; and

(b)    the individual meets the requirements prescribed by the regulations (including, but not limited to, requirements relating to qualifications and experience) in respect of registration as a registered tax agent or BAS agent; and

(c)    the individual maintains, or will be able to maintain, professional indemnity insurance that meets the Board’s requirements; and

(d)    in the case of a renewal of registration – the individual has completed continuing professional education that meets the Board’s requirements.

16.    Section 20-15 lists out the criteria for determining whether an individual is a fit and proper person, and provides:

20-15    Criteria for determining whether an individual is a fit and proper person

In deciding whether it is satisfied that an individual is fit and proper person, the Board must have regard to:

(a)    whether the individual is of good fame, integrity and character; and

(b)    without limiting paragraph (a):

(i)    whether an event described in section 20-45 has occurred during the previous 5 years; and

(ii)    whether the individual had the status of an undischarged bankrupt at any time during the previous 5 years; and

(iii)    whether the individual served a term of imprisonment, in whole or in part, at any time during the previous 5 years.

17.    Section 40-25 sets out the period during which a person may not apply for registration, and provides:

40-25    Period during which you may not apply for registration

(1)    If the Board terminates your registration, the Board may also determine a period, of not more than 5 years, during which you may not apply for registration.

…

18.    Finally, as outlined later in these reasons for decision, Mr Frugtniet raises a jurisdictional issue as a result of an alleged subdivision 60-E investigation by the Board. Subdivision 60-E sets out the provisions for investigations by the Board and relevantly provides:

…

60-95    Investigations

(1)    The Board may investigate:

(a)    your application for registration; or

(b)    any conduct that may breach this Act; or

(c)    other matters prescribed by the regulations.

(2)    The Board must notify you in writing if the Board decides to investigate you. The notice must be given within 2 weeks after the decision is made.

(3)    An investigation is taken to commence on the date of the notice.

…

60-125    Outcomes of investigations

…

Investigation relating to whether conduct breaches this Act

(2)    If the Board investigates conduct under section 60-95 and finds that the conduct breaches this Act, the Board must either:

(a)    make a decision that no further action will be taken; or

(b)    do one or more of the following:

(i)    impose one or more sanctions under Subdivision 30-B;

(ii)    terminate an entity’s registration under Subdivision 40-A;

(iii)    apply to the Federal Court for an order for payment of a pecuniary penalty under Subdivision 50-C;

(iv)    apply to the Federal Court for an injunction under section 70-5

Note:    The Board may terminate an entity’s registration under Subdivision 40-A without investigating conduct under section 60-95

Period within which a decision must be made

(3)    The Board must make a decision under subsection (2):

(a)    within 6 months after the day on which the investigation is taken to have commenced under subsection 60 95(3); or

(b)    if a longer period is determined by the Board under subsection (4)—within that period

(4)    If the Board is satisfied that, for reasons beyond the control of the Board, a decision under subsection (2) cannot be made within the period mentioned in paragraph (3)(a), the Board may determine a longer period within which the Board must make a decision under subsection (2).

(5)    If the Board determines a longer period, the Board must do so not later than 2 weeks before the expiry of the period mentioned in paragraph (3)(a).

(6)    The reasons mentioned in subsection (4), include, but are not limited to, the following:

(a)    undue delay that has been caused by an entity other than the Board and that has affected the conduct of the investigation to which the decision relates;

(b)    the complexity of the investigation.

Decision not made

(7)    If:

(a)    a decision is not made within the period mentioned in paragraph (3)(a) and the Board does not determine a longer period; or

(b)    the Board determines a longer period but does not make a decision within that period;

the Board is taken to have decided to take no further action in relation to the matter that was the subject of investigation.

…

12    The Tribunal found that the applicant “knowingly gave false answers to two of the questions asked of him in his application” for registration as a tax agent in May 2008. The two questions at issue required, amongst other things, the applicant to disclose “any other matter” relevant to the Board’s decision as to his character. The applicant answered “No” to both questions, neglecting to disclose that the Board of Examiners had not been satisfied that the applicant was a fit and proper person for admission to legal practice in Victoria on two occasions, and that on both occasions, the Supreme Court of Victoria had dismissed his appeal against that decision. The Tribunal concluded that the applicant’s response to the two questions was false on the basis that the applicant “must have understood that these matters would be relevant to any consideration of his fame, integrity and character”: pars [20]-[28].

13    The Tribunal also found that the applicant “knowingly made a false declaration to [the Migration Agents Registration Authority (“MARA”)] in his 1999 application for repeat registration”. The false declaration was answering “No” to a question asking whether he was the subject of criminal charges still pending before a court at a time when, in fact, he was the subject of pending criminal charges (of which he was later acquitted). The applicant submitted that he was not required to disclose the pending charges because he had disclosed them previously. He further submitted that the Tribunal could not find that he had made a false declaration because MARA had not made any such finding itself. The Tribunal held that it was not precluded from making a different finding from MARA and there was no qualifying statement in the application that previously disclosed charges did not need to be disclosed again.

14    The Board received three complaints about the applicant’s conduct in providing services as a tax agent for 2010/11, two of which the Board agreed were not relevant to the proceeding before the Tribunal. In respect of the complaint which remained relevant to the proceeding, the Tribunal considered a statement of a client of the applicant, Ms Galves-Londono, and series of emails between her and the applicant and concluded that the applicant:

(1)    administered his client’s tax affairs without obtaining her consent on a number of occasions;

(2)    refused to provide a full list of deductions claimed on his client’s behalf;

(3)    created a false impression that he was operating a trust account and that funds would be held in that account;

(4)    lodged an amended return without authority and against his client’s wishes;

(5)    deducted fees from his client owing from her brother in an unrelated matter;

(6)    refused to provide his client with a copy of her tax return or amended return; and

(7)    made comments in correspondence, including comments about risks to his client’s citizenship, which suggest that he sought to mislead and threaten her.

The Tribunal found that the conduct complained of “reflects poorly on [the applicant’s] insight, ability and honesty” and “demonstrates that the public would not have confidence that he would carry out the functions of a tax agent with integrity and competence”: pars [44]-[45].

15    Before the first Tribunal, the applicant was cross-examined on a passage from one of the Supreme Court proceedings dismissing an appeal against the decision of the Board of Examiners (Frugtniet v Board of Examiners [2002] VSC 140). In the relevant passage, the Supreme Court said it had no confidence that the applicant would have disclosed certain charges and convictions if the Board had not become aware of such matters and tendered evidence of them in the Supreme Court proceeding. During that cross-examination of the applicant on this point, the applicant contended that he had brought the relevant charges and convictions to the Supreme Court’s attention, stating that his “first affidavit had full disclosure”: par [47]. The applicant was granted leave to lodge with the Tribunal a copy of this first affidavit, but he instead lodged his second affidavit, which mentioned the convictions and charges in response to the Board of Examiners’ affidavits. The Board then notified the Tribunal that the affidavit lodged by the applicant was not his first affidavit but his second and lodged a true copy of the applicant’s first affidavit, along with the Board of Examiners’ affidavits. The first affidavit made no disclosure of the relevant charges and convictions. The Board submitted that the applicant’s conduct revealed a preparedness to mislead the Tribunal, whereas the applicant submitted that he had merely made a mistake. The Tribunal found that the applicant was prepared to mislead the Tribunal both through his conduct during the cross examination and by failing to note explicitly that the affidavit lodged by the applicant was not his first affidavit. This conduct “sought to cloud the [f]irst Tribunal’s judgement”: pars [46]-[53].

16    The Tribunal rejected the applicant’s submission that the application for registration form used by the TABV in 2008 was not an “approved form” and therefore “ultra vires”, such that the applicant’s false declarations in this form outlined above could not be taken into account when considering whether he is a fit and proper person. This matter was not pursued in this Court.

17    The Tribunal also rejected the applicant’s submission that the Board had not complied with the TAS Act when conducting its investigation into his conduct. The applicant submitted that the Board had investigated his conduct and did not make a decision within six months of commencement of its investigation, in breach of s 60-125(3) of the TAS Act. In the applicant’s submission, the operation of s 60-125(7) of subdiv 60-E of the TAS Act meant that the Board should be taken to have decided to take no further action at the conclusion of that six month period. The Tribunal found that there was no obligation on the Board to conduct an investigation under subdiv 60-E of the TAS Act where the complaint was that the tax agent has ceased to meet one of the eligibility requirements for registration. The Tribunal further found that there was, accordingly, no statutory time limit on the Board’s consideration of whether the applicant had ceased to meet one of the eligibility requirements.

18    After considering a number of authorities concerning the meaning of the term “fit and proper person” in the context of tax agents, the Tribunal concluded that the applicant had not satisfied this requirement for registration as a tax agent. The Tribunal found that the applicant had “established a clear and consistent pattern of conduct over a considerable period that shows him to be a person of dishonest behaviour and lacking in integrity, and the public will have no confidence that future dishonesty would not occur if he remains registered as a tax agent”: par [67]. For the foregoing reasons, the Tribunal held that the applicant’s registration as a tax agent should be terminated under s 40-5(1)(b) of the TAS Act: par [68].

19    The final issue before the Tribunal was whether a period should be imposed during which the applicant cannot apply for registration. Pursuant to s 40-25 of the TAS Act, the Tribunal held that the applicant may not apply for registration as a tax agent for a period of five years after the effective date of termination of his registration: par [71].

GROUNDS OF APPEAL

20    By notice of appeal dated 26 September 2017, the applicant sought orders that “this Court make certain findings of fact pursuant to s 44(7)” of the Act, or alternatively, that the matter be remitted to the Tribunal, once again, for determination according to law.

21    The applicant’s notice of appeal identified seven potential questions of law as follows:

(a)    Whether the Tribunal erred in denying an oral hearing to the applicant, then decided adversely to the applicant was a denial of natural justice.

(b)    Whether the Tribunal erred in that the delegations and authorisations pursuant to subsections 10A(2) and 59(A)1 AAT Act 1975 dated 1 July 2015, by Deputy President Forgie to exercise the power under s 19A, 19D by its failure to comply with s 19D(6)(b) to consult with the member who ceases to act. In addition whether the delegator who had by then determined adversely matters concerning the applicant, including giving directions in this matter that was heard before the second Tribunal, had by then also made a decision adverse to the applicant which was remitted by the Federal Court to the Tribunal to be constituted by a different member, should not have been involved in the appointment of the member to continue the proceedings, which was therefore inconsistent with the principles of such delegation, that a lay observer would apprehend bias, in that the decision maker was bound by the appointment of the delegator, by reason of such appointment was inconsistent and impermissible with aims and objectives of the AAT. That such a conflict of interest gave rise to a conclusion that a “fair-minded observer might reasonably apprehend that Dr Hughes might not have brought an impartial mind to the decision including the alternative that the decision maker was acting under dictation.

(c)    Whether the Tribunal occasioned by operative delay since 1 October 2015, considered a paper trial and delivered judgment on 30 August 2017, which was more than 12 months, was excessive and caused prejudice to the applicant that made findings that went to the credit of the applicant.

(d)    Whether the Tribunal made findings that were not open to it on the evidence that the Migration Agents Registration Authority application form of 2004, by analogy did not contain any reference to disclosure of charges if not already disclosed in the 1999 application, that the applicant did not make disclosure, that the applicant was not a person of integrity or otherwise a fit and proper person to give immigration assistance, including whether the Tribunal was empowered to make such a different finding as it did that the applicant made a false declaration to MARA in his 1999 application for repeat registration.

(e)    Whether the Tribunal made findings on exhibit emails attached to a statement by Ms Galvez prepared by investigators, was not called as a witness, had not provided a statement after the matter was remitted and directions given, no suggestion that Ms Galvez was unavailable to give evidence, relied upon by the Tribunal, which was not the complete communications, between the parties, unable to cross examine Ms Galvez and objected to by the applicant, including admitting evidence where it’s probative value was substantially outweighed by the danger that the evidence may be prejudicial to the applicant.

(f)    Whether the Tribunal went beyond the evidence and cross examination given by the applicant in relation to the evidence given and affidavit produced by the applicant to the First Tribunal, demonstrated a preparedness to mislead and did mislead, there also being no suggestion by the Second Tribunal that it would consider the transcript of the First Tribunal or that it was referenced in the hearing or put into evidence or that any Tribunal in this matter was misled, given the seriousness of such findings.

(g)    Whether the Tribunal made findings that were not open on the evidence, including failing to consider all the evidence whether the respondent carried out an investigation by stealth pursuant to s 60-95(1) of the TAS Act, including the consequences that were mandated if this were the case although no notice of the investigation was given.

[errors in original]

22    Some of these grounds overlap, and some, in substance, invite this Court to reconsider the merits of certain facts found by the Tribunal, although no submission was made by the Board that some of the grounds did not constitute questions of law for the purposes of s 44 of the Act. At the hearing before me, the applicant declared that he no longer pressed the second ground set out above, and made no submission about it. I took it to have been abandoned.

Consideration

23    The applicant filed an outline of submissions on 15 January 2018 and a reply to the Board’s submissions (dated 5 February 2018), on 6 February 2018. Both parties, with leave, also filed additional submissions in writing following the hearing. Those submissions did not raise any substantive issues that had not been addressed in previous submissions or during the hearing, save for the application of s 60-125(7) (as to which see below).

24    The applicant endeavoured to develop each ground of appeal at the hearing (save for the second ground). Each of those remaining six grounds have been carefully considered by me, given that it is no small matter to prevent a person from pursuing his or her chosen profession. Having said that, it is equally important to uphold the integrity and standards of a given profession. Each of those remaining six grounds is addressed below.

A. Grounds One and Three

25    Given the applicant’s first and third grounds of appeal (as set out at par [21] above) overlap, I will deal with them together. The applicant’s complaint alleged delay in the hearing and determination of his application for review. It was submitted that where there is significant delay, it is incumbent upon an appellate court to look with special care at any challenged factual findings. Extreme delay can, in particular circumstances, lead to a denial of procedural fairness. The applicant relied upon the following passage from the judgment of Kirby J in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470 at [85]:

Relevance of delay: The significance of delay, depending as it does on the issues for decision, necessitates examination of the matter actually decided. If this involved no more than the construction of a written document, the interpretation of a statutory provision applied to agreed facts or other like questions, undue delay, whilst regrettable, might not affect the acceptability or validity of what has been done. The court conducting the appeal or judicial review could judge that matter for itself. Where, however, the matter for decision involves an assessment of the truthfulness of a party or important witnesses, the resolution of competing versions of the facts and the differentiation of truth and falsehood, delay, especially protracted delay, in the provision of a reasoned decision may cast doubt on the validity of that decision. Commonly, this is explained by reference to the need to ensure that “the trier of fact can recall the testimony and the demeanor of the witnesses as well as the dynamics of the trial”. (Footnotes omitted)

NAIS was an extreme case. The Refugee Review Tribunal had held oral hearings on 6 May 1998 and 19 December 2001, but only handed down its decision on 14 January 2003. The delay was unexplained. Gleeson CJ observed at par [5] of NAIS that the circumstances in which delay, of itself, would vitiate a decision “are rare”.

26    The applicant submitted that I should treat the period of delay as having commenced on 7 June 2014, when the hearing by the first Tribunal was completed. I was also urged to judge this matter “for myself” and make findings of fact pursuant to s 44(7) of the Act. The applicant submitted that I should do this as the decision of the Tribunal had been made on the papers. This ground of appeal, is misconceived. The applicant’s application was heard by the original Tribunal member in the second half of 2016 and a decision was made by the Tribunal on 30 August 2017, only two months after Deputy President Forgie’s direction of 1 July 2017. I therefore reject the submission that the period of delay commenced on 7 June 2014. In my view, there was no significant delay as alleged. This is not a case like NAIS. Save in respect of one possible matter (as to which, see below at par [48]) I also decline to make findings of fact pursuant to s 44(7) of the Act. The applicant did not specify with sufficient clarity which findings of fact met the criteria set out in that section.

27    As part of these grounds, the applicant also submitted that the Tribunal erred in not convening an oral hearing after its reconstitution. He also contended that the reconstituted Tribunal should not have made findings about his credit, and the credit of Ms Galves-Londono (one of three individuals who had complained to the Board about the applicant) without first giving him an opportunity to be heard. In particular, he submitted that the finding that he misled the first Tribunal should not have been made without a further hearing, given the serious nature of that conclusion. I disagree. The applicant was informed by letter dated 3 July 2017 that the Tribunal would be reconstituted, and for that purpose, would have regard to any record of the proceeding before the original member. The applicant made no application thereafter for a further hearing. Nor did the Tribunal need to make findings about the applicant’s credit based upon his demeanour in the witness box. It reached its findings based upon an assessment of objective events, findings made by other courts, contemporaneous evidence, and the inherent probability that explanations given by the applicant at the 2016 hearing were true or correct.

28    In my view, the statutory scheme for reconstituting the Tribunal does not require, in every case, a fresh oral hearing. The power to continue proceedings is broadly conferred by s 19D(4) of the Act and leaves it largely to the Tribunal to determine how it is to be informed: Murray v Repatriation Commission No 2 [2016] FCA 1216. In some cases, the Tribunal might form the view that a further hearing is needed. That might arise if the credit of a witness is sought to be impugned because of his or her performance in the witness box. In other cases, consideration of the transcript of evidence, witness statements and tendered documents might suffice. In Ahmed v Minister for Immigration and Multicultural Affairs (2001) 184 ALR 343, Hely J considered s 422 of the Migration Act 1958 (Cth), which at the relevant time provided:

(1)    If the member who constitutes the Tribunal for the purposes of a particular review:

(a)    stops being a member; or

(b)    for any reason, is not available for the purpose of the review at the place where the review is being conducted;

the Principal Member must direct another member to constitute the Tribunal for the purpose of finishing the review.

(2)    If a direction is given, the Tribunal as constituted in accordance with the direction is to continue to finish the review and may, for that purpose, have regard to any record of the proceedings of the review made by the Tribunal as previously constituted.

(3)    In exercising powers under this section, the Principal Member must have regard to the objective set out in subsection 420(1).

The applicant in that case had argued that he should have been given a further oral hearing upon the reconstitution of a hearing of the Refugee Review Tribunal. Hely J rejected that contention. His Honour said at par [24]:

In my view, the applicant’s contention fails. RRT, as originally constituted, complied with s 425. As Wilcox J observed in Liu, if Parliament had intended to require the substituted member to hold a fresh oral hearing, the appropriate course would have been to insert a requirement to that effect in s 422 and s 422A. But Parliament did not do this. Instead, it commanded the substituted member merely to “finish the review” with an express provision that, for that purpose, the substituted member was entitled to have regard to any record of the proceedings of the review made by the Tribunal as previously constituted.

In my view, the foregoing passage applies with equal force to s 19D(4) of the Act, which requires the member to “continue the proceeding”.

29    This is a case where, to use the language of Ryan J in Abujoudeh v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 179, “the approach which led the Tribunal to characterise certain parts of the applicant’s claims as implausible, was based on a dispassionate analysis of the content of the applicant’s evidence, not the manner in which it was given” (at par [32]). It was thus proper for the Tribunal to reject explanations and answers given by the applicant, and even make findings that he had misled the first Tribunal, without the need for any further hearing. Whilst I accept that the finding that the applicant has misled the Tribunal was serious, it was open to the Tribunal so to conclude on the material before it without the need for a further oral hearing. As will be seen, in 2016 the applicant was given a full opportunity to meet this contention (see par [31] below).

30    Part of the applicant’s complaint here also includes – somewhat disjointedly – a contention that the reconstituted Tribunal should not have had regard to the transcript from the first Tribunal’s decision. This contention, as will be seen, is repeated in another ground. As I comprehend it, the applicant’s argument was that he was denied procedural fairness because he had understood from what had been said by the presiding member during the 2016 hearing that the earlier transcript would not be considered. An examination of the 2016 transcript bears that out. Moreover, the transcript from the first Tribunal hearing was not put to the applicant in cross examination, and was not tendered, either in whole or in part, by the Board, although its counsel had given notice that it might be relied upon, depending upon the answers given by the applicant in cross-examination. Nonetheless, the transcript is expressly quoted in the reasons of the reconstituted Tribunal: Frugtniet v Tax Practitioners Board [2017] AATA 1393 at [47]. The applicant complains that he was “misled” by the Tribunal.

31    The foregoing gives the appearance of a denial of procedural fairness. But a closer inspection of the events below does not bear this out. The part of the transcript reproduced in the reasons of the Tribunal at par [47] concerned the manner in which the applicant had conducted himself at the first Tribunal’s hearing. As described earlier, at that hearing, the applicant had sought to qualify a finding made by Pagone J in his Honour’s 2002 judgment: Frugtniet v Board of Examiners [2002] VSC 140. At par [12] of that judgment, Pagone J said:

The applicant accepted during his submissions to me that the perjury charges, the ANZ charges and the UK convictions were matters that ought to have been disclosed and considered in deciding whether he was a fit and proper person for admission to practice. The Board of Examiners might itself have found in his favour if he had candidly laid out these matters, and if he had done so, there would have been more prospect of the present appeal succeeding. However, these were matters that only came to light upon investigations undertaken by the Board itself after its adverse decision, after the applicant’s institution of this appeal and after the applicant had filed his first affidavit in this court in support of the appeal. In those circumstances I have no present confidence that the applicant would have disclosed these matters if they had not come to the Board’s knowledge and had the Board not tendered the evidence in the proceeding before me.

When cross-examined about this paragraph before the first Tribunal, the applicant contended, contrary to the finding of Pagone J, that it was he and not the Board of Examiners who had first brought to the Court’s attention in his first affidavit his UK convictions and charges concerning perjury in an affidavit that he had lodged with the Supreme Court. I have already described the applicant’s conduct by which he lodged his second affidavit instead of his first, which made no disclosure of his conviction and charges. Based upon a consideration of this chronology of events, the Tribunal found at par [52] of its reasons for decision that, through his conduct at the first Tribunal hearing, the applicant had displayed a preparedness to mislead. It took that conduct into account in determining whether the applicant was a fit and proper person.

32    In my view, the reference to the transcript of the first Tribunal at par [47] did not involve any denial of procedural fairness to the applicant. The transcript was reproduced only to describe the context of the applicant’s conduct before the first Tribunal. That conduct had been the subject of renewed cross-examination of the applicant in 2016, without any need to rely upon the transcript from the first Tribunal. The specific paragraph from Pagone J’s judgment, as set out above, was expressly put to the applicant by the representative for the Board in 2016 and he was asked whether he agreed with it. He was then directly asked questions about the filing of the second affidavit, and the circumstances surrounding it, and was given, a full and proper opportunity to explain his conduct, both in the witness box and subsequently in submissions. I find that the applicant was well aware of this issue in 2016. Indeed, the very same conduct had formed part of the first Tribunal’s decision, which also found that it had been misled by the applicant. The applicant then appealed that finding, without success, before Jessup J: Frugtniet v Tax Practitioners Board [2015] FCA 1066 at [42]-[48].

33    Finally, at the hearing the applicant invoked s 34J of the Act, and submitted that he had not consented for his application to be determined in his absence. Section 34J provides:

If:

(a)    it appears to the Tribunal that the issues for determination on the review of a decision can be adequately determined in the absence of the parties; and

(b)    the parties consent to the review being determined without a hearing;

the Tribunal may review the decision by considering the documents or other material lodged with or provided to the Tribunal and without holding a hearing.

That submission is misconceived. The applicant’s application was not heard in his absence. There was a hearing in 2016 at which he appeared. Section 34J, when read with s 19D(4), did not oblige the Tribunal to hold a further hearing.

B. Ground Four

34    At par [38] of its reasons for decision, the Tribunal made a finding that the applicant knowingly made a false declaration to the MARA in his 1999 application for repeat registration as a migration agent. His declaration was found to be false because the applicant had failed to disclose pending criminal charges concerning his employment at the ANZ bank. A similar finding of fact had been made by Gillard J in the Supreme Court of Victoria in Frugtniet v Board of Examiners [2005] VSC 332 at [47]. On this appeal, the applicant submitted in his written outline of submissions and at the hearing, that it was not open to the Tribunal to make that finding because MARA itself had never reached the same conclusion. Moreover, the applicant claimed that no such finding had been made in the first Tribunal’s decision, and that this issue was not present before the Tribunal in 2016. These submissions are misconceived.

35    First, regardless of what MARA did or did not decide, the issue before the Tribunal was whether the applicant was a “fit and proper person” for the purposes of ss 20-5 and 20-15 of the TAS Act. That required, amongst other things, a consideration of whether “the individual is of good fame, integrity and character”. The Tribunal’s finding about the completion of the 1999 MARA form was relevant to that issue, as it constituted conduct going to his character and the Tribunal was correct to consider it.

36    Secondly, whatever may or may not have been decided by the first Tribunal, it could not bind the Tribunal in 2017 on remittal from this Court.

37    Thirdly, it is plain that the applicant was cross-examined about his disclosure to MARA before the Tribunal in 2016, and it was proper for the reconstituted Tribunal to have regard to the transcript of that examination. The issue was also the subject of closing submissions. The Tribunal did not err by considering it.

38    At the hearing before me, the applicant also complained that the Tribunal had wrongly concluded at par [21] that MARA had found that he was not a fit and proper person to provide immigration assistance. I agree that, so expressed, this was a mistaken observation. MARA did not make that finding. However, in its more detailed consideration of this matter at par [37], the Tribunal accurately found that MARA had decided not to take any further action concerning the applicant’s registration as a migration agent. In my view, notwithstanding the mistake in par [21], the Tribunal properly understood MARA’s conclusions. In any event, no part of that mistake formed part of the Tribunal’s operative reasoning for finding that the applicant was not a fit and proper person, which appears at par [67] of its reasons for decision. The Tribunal reached that conclusion having regard to other historical events concerning the applicant. Again somewhat disjointedly, the applicant complained that the finding that the Board of Examiners had “found that [the applicant] was not a fit and proper person” (par [22] of the reasons below) was not accurate. Rather, the Board found that it was not satisfied that he was a fit and proper person. In my view, this misdescription of the Board’s findings is of no moment and did not affect the Tribunal’s ultimate conclusion.

C. Ground Five

39    The applicant next submitted that the Tribunal wrongly took into account and gave weight to a statement made by Ms Galvez-Londono, as well as certain emails sent between her and the applicant, in circumstances where Ms Galvez-Londono had not been called to give evidence either during the 2016 hearings or the reconstituted 2017 hearing. At par [40] of the Tribunal’s reasons for decision this evidence was addressed as follows:

The evidence of Ms Galvez-Londono remains relevant to this proceeding. The Applicant asserted, however, that the evidence should be disregarded because Ms Galvez-Londono was not called as a witness and he did not have an opportunity to cross-examine her. The Tribunal rejects this submission, given that the Applicant did not, in the course of the hearing, raise that he wanted to cross-examine this witness. Whilst the Tribunal is willing to take account of Ms Galvez-Londono’s witness statement, it makes the observation that its ultimate conclusions can be reached independently of this evidence by reference to a series of emails between the Applicant and Ms Galvez-Londono.

I am of the view that the applicant’s complaint has no merit. It was entirely open to the Tribunal to have regard to the statement and to the emails without the need for Ms Galvez-Londono to be called as a witness. As is well known, the Tribunal is not bound by the rules of evidence and may inform itself on any matter as it thinks appropriate: see s 33 of the Act. It was open to the applicant to call Ms Galvez-Londono and challenge the contents of her statement or the contents of the emails she had sent him. He declined to do so, although he did object to the statement and emails being before the Tribunal. The Tribunal did not err by relying on this material and the weight to be placed on it was a matter for it.

40    At the hearing before me, the applicant argued that the Tribunal itself or the Board should have called Ms Galvez-Londono to give evidence. I reject that submission. Whilst s 33(1AA) of the Act imposed an obligation on the Board to “use his or her best endeavours to assist the Tribunal to make its decision”, this did not oblige it to call Ms Galvez-Londono, or any other witness. It was open for the Board to present its case limited to production of contemporaneous documents. The applicant was made aware upon the opening of the hearing that the emails and statements would be relied upon by the Board. They were in the Tribunal documents, and they had also been relied upon in the first Tribunal hearing. The applicant was not taken by surprise. Nor was the Tribunal itself under any duty to call Ms Galvez-Londono. Whilst proceedings in the Tribunal are inquisitorial, it is not obliged to run the case of a party before it. It is under no duty to seek to remedy deficiencies in an applicant’s case: Rahman v Minister for Immigration and Multicultural Affairs [2000] FCA 1277 at [29]; Abebe v Commonwealth (1999) 197 CLR 510 at 576.

D. Ground Six

41    The applicant next submitted that the Tribunal erred by referring to material which was in addition to that before the originally constituted Tribunal in 2016. The only material identified was the transcript of the first Tribunal hearing. It was contended that because the decision of the first Tribunal had been set aside by Jessup J, it followed that the transcript should not have been considered. This ground is rejected. For the reasons expressed above, it was a matter for the Tribunal as reconstituted to consider for the purposes of both ss 19D(4) and 33 what material it should consider in continuing the Tribunal. This was the conclusion the Tribunal itself reached. At par [51] of the reasons below the Tribunal said:

In setting aside the First Tribunal’s decision, Jessup J ordered that this matter be remitted for hearing and determination by the… Tribunal differently constituted. No further directions were made for how the matter should be conducted on remittal. With that in mind, the Tribunal concludes that having regard to the transcript of the First Tribunal hearing and in particular Mr Frugtniet’s assertions regarding the disclosure of his convictions and charges in the 2002 proceeding, is not inconsistent with any direction made by Justice Jessup.

I agree with this reasoning.

E. Ground Seven

42    Finally, the applicant repeated the submission made below and previously made before Jessup J in Frugtniet v Tax Practitioners Board [2015] FCA 1066 and before the first Tribunal, that the Board had failed to comply with the six months’ time limitation imposed by s 60-125(3) of the TAS Act and that accordingly, by reason of s 60-125(7) of that Act, the Board must be deemed to have decided to have taken no further action in relation to its investigation of the applicant. Section 60-125 applies to investigations made under s 60-95. Those provisions relevantly provide:

s 60‒95

(1)    The Board may investigate:

(a)    your application for registration; or

(b)    any conduct that may breach this Act; or

(c)    other matters prescribed by the regulations.

(2)    The Board must notify you in writing if the Board decides to investigate you. The notice must be given within 2 weeks after the decision is made.

(3)    An investigation is taken to commence on the date of the notice.

…

s 60‒125

Investigation relating to application for registration

(1)    After completing an investigation in relation to an application for registration under section 20‑20, the Board must make a decision in accordance with section 20‑25.

Investigation relating to whether conduct breaches this Act

(2)    If the Board investigates conduct under section 60‑95 and finds that the conduct breaches this Act, the Board must either:

(a)    make a decision that no further action will be taken; or

(b)    do one or more of the following:

(i)    impose one or more sanctions under Subdivision 30‑B;

(ii)    terminate an entity’s registration under Subdivision 40‑A;

(iii)    apply to the Federal Court for an order for payment of a pecuniary penalty under Subdivision 50‑C;

(iv)    apply to the Federal Court for an injunction under section 70‑5.

Note    The Board may terminate an entity’s registration under Subdivision 40‑A without investigating conduct under section 60‑95.

Period within which a decision must be made

(3)    The Board must make a decision under subsection (2):

(a)    within 6 months after the day on which the investigation is taken to have commenced under subsection 60‑95(3); or

(b)    if a longer period is determined by the Board under subsection (4)—within that period.

(4)    If the Board is satisfied that, for reasons beyond the control of the Board, a decision under subsection (2) cannot be made within the period mentioned in paragraph (3)(a), the Board may determine a longer period within which the Board must make a decision under subsection (2).

(5)    If the Board determines a longer period, the Board must do so not later than 2 weeks before the expiry of the period mentioned in paragraph (3)(a).

(6)    The reasons mentioned in subsection (4) include, but are not limited to, the following:

(a)    undue delay that has been caused by an entity other than the Board and that has affected the conduct of the investigation to which the decision relates;

(b)    the complexity of the investigation.

Decision not made

(7)    If:

(a)    a decision is not made within the period mentioned in paragraph (3)(a) and the Board does not determine a longer period; or

(b)    the Board determines a longer period but does not make a decision within that period;

the Board is taken to have decided to take no further action in relation to the matter that was the subject of investigation.

….

43    The applicant’s argument was that a letter he had received on 26 June 2012 from the Board constituted notification of the decision to investigate him for the purposes of s 60-95(2) and that the six-month period commenced from the date of that letter in accordance with s 60-95(3) of the TAS Act. As the Board made its decision to terminate the applicant’s registration as a tax agent on 15 February 2013, more than six months after 26 June 2012, it followed, so the applicant contended, that the Board must be taken to have made no decision, pursuant to s 60-125(7) of the TAS Act.

44    In my view, this is not a ground that the applicant could effectively raise in the Tribunal. That is because if he is right, the Board was deemed to have made a decision in 2012 to take no further action in relation to its investigation into the applicant’s character with the result that there was no reviewable decision for the Tribunal to consider pursuant to s 70-10 of the TAS Act. That provision provides:

An application may be made to the Administrative Appeals Tribunal for review of any of the following decisions of the Board:

(a)    a decision under section 20‑25:

(i)    to reject an application for registration (including renewal of registration); or

(ii)    to specify a condition to which registration is subject;

(b)    a decision under subsection 20‑30(3) to require professional indemnity insurance;

(c)    a decision under section 20‑40 to refuse to vary a condition to which registration is subject;

(d)    a decision under subsection 20‑50(1) not to determine a shorter period for making a renewal application;

(e)    a decision under Subdivision 30‑B or 40‑A to terminate registration;

(f)    a decision under section 30‑20 to make an order or to specify a time period in respect of an order;

(g)    a decision under section 30‑25 to suspend registration (including a decision as to the length of the suspension);

(h)    a decision under section 40‑25 to determine a period during which an application for registration may not be made;

(i)    a decision under subsection 60‑125(4) to extend the period of time within which an investigation is to be completed.

Absent an application of s 60-125(7) of the TAS Act, a decision was made on 15 February 2013 to terminate the applicant’s registration pursuant to s 40-5(1)(b) of that Act which is reviewable in the Tribunal pursuant to s 70-10(e). However, if s 60-125(7) is engaged a statutory fiction is thereby created which denies the very existence of the reviewable decision. A similar issue had arisen in Kennedy v The Administrative Appeals Tribunal (2008) 168 FCR 566. In that case, the applicant sought to challenge the validity of a notice of assessment in a tax appeal made pursuant to Pt IVC of the Taxation Administration Act 1953 (Cth), which had been commenced in the Tribunal. The Court decided that such a challenge could not effectively be made in the Tribunal as its authority to consider the excessiveness of assessments was premised on the presence of a valid assessment. The Court referred to the decision of Rath J in F.J. Bloemen Pty Ltd v Federal Commissioner of Taxation [1978] 2 NSWLR 468 at 480, where his Honour said “[a] properly constituted appeal assumes that there is a valid assessment”: Kennedy at [12].

45    So too here, the applicant’s challenge to the decision to terminate his registration assumes the existence of a decision made under s 40-5 which can be reviewed by the Tribunal. Invoking s 60-125(7) of the TAS Act denies the existence of any such decision and, in my view, for that reason, cannot be effectively raised as a ground in the Tribunal.

46    This is not to deny that there was before the Tribunal a decision which was incapable of review. As counsel for the Board submitted, a “decision” for the purposes of s 25 of the Act refers to a decision in fact made regardless of whether or not it is legally effective. The decision in fact made here was made on 15 February 2013. The Tribunal had power to consider the merits of that decision, even though it may not be one that had been lawfully made. However, what the Tribunal could not itself decide was the legal validity of the decision being reviewed. That can only be done by this Court. As the Full Federal Court said in Kennedy (at pars [22]-[23]):

Mr Kennedy’s challenge in the Tribunal to the validity of the Commissioner’s assessments, based on the contentions that they were made in bad faith or the Commissioner’s view as to fraud and evasion was incorrect, must fail. The Tribunal has jurisdiction to hear and determine the present review under Part IVC of the TAA because each assessment purports to have been made in exercise of powers conferred by that enactment. Whether or not the assessments were, as a matter of law, validly made does not attenuate this finding. There is a long line of authorities which supports this proposition, starting with Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307. More recently, in Minister for Immigration v Ahmed (2005) 143 FCR 314 at 323, the Full Federal Court observed that the judgment as to the validity of a Minister’s actions is for the courts, not for an administrative body such as a Tribunal: see also Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344.

Accordingly, if the Tribunal in this case were to make an administrative ruling that the Commissioner’s assessments were valid, this would not take effect as a binding determination of law, and the Commissioner would remain entitled to collect tax pursuant to the assessments subject to any determination by a court that those assessments were not valid. In this case, Mr Kennedy has elected to have the objection decisions referred to the Tribunal, yet he complains that the Tribunal cannot decide whether the assessments were correctly and validly made and does not have the jurisdiction which he has invoked. In these circumstances, the Court would lean against finding that the jurisdiction can be challenged: see Kim v Minister for Immigration and Citizenship [2008] FCAFC 73 at [21]-[29] (per Tamberlin J) and [37]-[39] (per Gyles J).

It is precisely because any decision made by the Tribunal below impugning the validity of the decision made by the Board would “not take effect as a binding determination of law” that the Tribunal was correct to reject the applicant’s sixth ground, albeit for different reasons. In that respect, the Board correctly submitted in its written outline dated 1 March 2018:

The Applicant’s seventh ground complains that the Tribunal failed to find that the First Respondent’s decisions were “void in the circumstances”, but an application for review to the Tribunal is an application for review on the merits, not an application for jurisdictional review of the decisions under review, and as an administrative body the Tribunal is simply not empowered to determine the validity of actions by the First Respondent.

Even if the Applicant had convinced the Tribunal that it lacked jurisdiction, on the basis – which is not conceded – that the First Respondent’s decisions were not made in purported exercise of a power conferred by an enactment, the most that the Tribunal could do would be to dismiss the proceeding. The Tribunal’s opinion as to the validity of the First Respondent’s decisions would not have any legal affect, and the First Respondent’s decisions would remain in force.

I agree with that submission.

47    Before me, counsel for the Board also defended the Tribunal’s decision below that there had been in any event no investigation for the purposes of s 60-95 of the TAS Act, and that accordingly time had never commenced to run for the purposes of s 60-125 of that Act. In his submission, ceasing to be a fit and proper person did not amount to conduct that “may breach this Act” for the purposes of s 60-95(1)(b). Rather, conduct that “may breach this Act”, is confined, so it was submitted, to a breach of the Code of Professional Conduct contained in Pt 3 of the TAS Act. In the alternative, the Board submitted that the letter identified by the applicant was not notification of an investigation for the purposes of s 60-95(2) of the TAS Act. Rather, a different letter, sent on 20 November 2012, constituted formal notification, and the impugned decision was accordingly made within the six-month time limit.

48    It is unnecessary for me to conclude the correctness of these submissions given my conclusion concerning s 60-125(7) of the TAS Act. For the sake of completeness, I observe that, if I had been required to consider the Board’s alternative submission, I would have accepted it. In my view, not every letter or email sent by the Board to a tax agent suspected of ceasing to be a fit and proper person, is necessarily a formal notification of the kind contemplated by s 60-95(2). This conclusion is supported by the Explanatory Memorandum to the Tax Agent Services Bill 2009 (Cth) which at par [217] states:

When a complaint is made to the Board, the Board will determine whether the complaint is one of substance and whether an investigation is warranted. To do this, the Board may need to gather preliminary information. It may do this by any means it sees fit, for example, by inquiry of the complainant and/or the tax agent or BAS agent to whom the complaint pertains, or by requesting and reviewing documentation provided by the complainant, the client, or obtained from the ATO.

Thereafter, an investigation for the purposes of s 60-95 may or may not commence. As par [218] of that explanatory memorandum states:

Following its preliminary inquiry, if the Board decides to investigate a matter, it must notify the tax agent, BAS agent, unregistered entity or applicant for registration, as appropriate, in writing, within two weeks after the decision to investigate. The Board is not required to notify the complainant (if any) of its commencement of an investigation, however it may choose to do so.

In my view the letter of 26 June 2012 was an attempt by the Board to gather preliminary information. It rejected some of the allegations made against the applicant and sought information and explanation. Formal notification of an investigation then only took place by letter dated 20 November 2012 (stated in the Tribunal’s reasons for its decision at par [61] to be 2005, but that is a typographical error). Amongst other things, the letter stated:

This letter is formal notification to you that a Delegate of the Board, acting under the delegated authority of the Board, has made an allegation in the attached Submission that you are not a fit and proper person to be registered as a tax agent under the [TAS Act] …. This may have consequences for your continued registration as a tax agent.

The Delegate has determined that this matter, including the relevant information you have provided in relation to this matter to date, should be put to a Committee of the Board, acting under the delegated authority of the Board, to determine whether you are a fit and proper person within the meaning of [the TAS Act].

49    The same issue had arisen before Jessup J in the 2015 appeal to this Court. Jessup J relevantly said ([2015] FCA 1066 at [37]-[40]):

37.    Factually, the Tribunal found as follows:

The Board carried out a preliminary enquiry into the affairs of [the applicant] following the publicity given to a decision made by the Victorian Civil and Administrative Tribunal (VCAT) on 8 April 2011. The 8 April 2011 decision held that the Law Institute of Victoria, as a delegate of the Legal Services Board, was justified in in [sic] finding that [the applicant] should be a disqualified person for the purposes of Division 3 of Part 2.2 of the Legal Profession Act 2004. The [Board] became aware that the Board of Examiners, which deals with the applications of qualified persons to be admitted to practise law in Victoria, had found that [the applicant] was not a fit and proper person for admission to legal practise [sic] on two occasions. The enquiry was conducted by Mr Frank Pietka, a delegate of the Board.

…

Following Mr Pietka’s enquiry, which included discussions with [the applicant], the Board decided that it would investigate whether he was a fit and proper person to be registered as a tax agent under the TAS Act. [The applicant] was notified of that decision in a letter dated 20 November 2012 (stated to be 2005, but that is clearly a typographical error). Relevantly, the letter stated:

This letter is formal notification to you that a Delegate of the Board, acting under the delegated authority of the Board, has made an allegation in the attached Submission that you are not a fit and proper person to be registered as a tax agent under the [TAS Act] …. This may have consequences for your continued registration as a tax agent.

The Delegate has determined that this matter, including the relevant information you have provided in relation to this matter to date, should be put to a Committee of the Board, acting under the delegated authority of the Board, to determine whether you are a fit and proper person within the meaning of [the TAS Act].

On 15 February 2013 the Board notified [the applicant] that his registration as a tax agent had been terminated. Relevantly, the letter stated:

1.    We refer to our letter dated 20 November 2012 in which a Delegate of the [Board] formally notified you of the decision to refer concerns regarding your fitness and propriety and continued registration as a tax agent to the [Committee].

2.    …

3.    The Committee resolved to terminate your registration under paragraph 40–5(1)(b) of the [TAS Act] on the basis that you have ceased to meet the tax practitioner registration requirement that you are a fit and proper person.

4.    This letter is formal notification of the Board’s decision to terminate your registration. The termination of your registration will take effect from 20 February 2013.

5.    The Committee also decided in accordance with subsection 40–25(1) of the [TAS Act] that you may not apply for registration under the [TAS Act] for a period of five years (5) years [sic] from the date that the termination of your registration takes effect.

38    I can now return to what was the applicant’s point about this procedure in the present case. He submitted that it should be found, as a fact, that the Board’s investigation commenced well before 20 November 2012. If so, he was not told about it as required by s 60-95(2) of the TAS Act, and the investigation was not completed within six months as required by s 60-125(3) of that Act. No longer period having been determined under s 60-125(4), there was a deemed decision to take no further action pursuant to s 60-195(7).

39.    To the extent that this series of contentions was put clearly to the Tribunal, it was dealt with by the Tribunal in the following passage in its reasons:

In my opinion, the above sequence of events indicates that the Board properly complied with the TAS Act in the conduct of its preliminary enquiry and subsequent investigation by a Committee of the Board into whether [the applicant] was a fit and proper person to be a registered tax agent. He was accorded procedural fairness and given ample time to respond to the allegations made. The decision was made within six months after the date on which the investigation was taken to have commenced in accordance with s. 60–125(3). It is not the case, as was submitted by [the applicant], that a decision was not made within the six-month period and therefore s. 60–125(7) applied.

Unless it be held that the Tribunal misunderstood what constituted an “investigation” under the TAS Act, there can be no error of law identified in this reasoning. Indeed, absent such a misunderstanding, the above passage should be viewed as concerned only with facts.

40.    This is not the occasion to consider what the position would be in a case in which the Board gives no notice under s 60-95(2) of the TAS Act. In the present case, the Board did give such a notice. Then, by the operation of subs (3), the investigation was taken to have commenced. The submissions of the applicant that the investigation commenced at some anterior point in time are inconsistent with the TAS Act and cannot be accepted. The Tribunal did not, in this or any other respect, misunderstand what constituted an investigation under that Act.

I concur with the foregoing passages, however, unlike the first Tribunal, the Tribunal on remittal here did not expressly find as a fact that the letter of 20 November 2012 constituted notification made pursuant to s 60-95 of the TAS Act. Were I required to do so, I would have found, as the first Tribunal did, and for the reasons it gave, that the letter of 20 November 2012 constituted notification of an investigation for the purposes of s 60-95. I would have made this finding of fact pursuant to s 44(7) of the Act. As it happens, because of my conclusion concerning the Tribunal’s role and s 60-125(7) of the TAS Act, it has not been necessary for me to do so.

CONCLUSION

50    The appeal is dismissed with costs.

Associate:

Dated:    23 March 2018