FEDERAL COURT OF AUSTRALIA

Agriwealth Capital Limited v Commissioner of Taxation [2019] FCA 56

ORDERS

THE COURT DECLARES THAT:

1.    The respondent’s decision made on 5 February 2018 (decision) is a decision to which s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) applies.

THE COURT ORDERS THAT:

2.    The application for an order that the respondent furnish to the applicant an additional statement containing further findings on material questions of fact, further reference to the evidence or other material on which those findings were based or further particulars of the reasons for the decision is refused.

3.    The applicant’s originating application dated 13 April 2018 as amended in the form dated 23 July 2018 is otherwise dismissed.

4.    Subject to order 5, the applicant pay 50 percent of the respondent’s costs, as agreed or assessed.

5.    If either party wishes to contend for a costs order different to the provisional order made in order 4 above, they are to notify my associate within 14 days of the date of these orders.

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

REASONS FOR JUDGMENT

ROBERTSON J:

Introduction

1    The applicant has carried on forestry operations in New South Wales and Victoria for a number of years. It has made an application each year since 2006 to the respondent Commissioner of Taxation for a public ruling pursuant to what was at one time s 14ZAAG of the Taxation Administration Act 1953 (Cth) in respect of its proposed forestry project for that year.

2    The Commissioner issued a public ruling in respect of the years 2006 to 2016. However on 7 June 2017 the respondent Commissioner advised the applicant that he did not propose to issue a public ruling for that year.

3    On 13 October 2017 the applicant applied for a public ruling in respect of its timber project for the 2018 year. It is that application which has given rise to the present proceedings.

4    On 28 November 2017 the respondent Commissioner sent a letter to the applicant stating that he was unlikely to make the ruling for which the applicant had applied.

5    On 5 February 2018, the respondent Commissioner advised the applicant that he declined to issue a ruling for the applicant’s proposed 2018 timber project. That letter stated: “Our reasons are set out in the attached Reasons for Decision document.” Some seven pages followed under the heading “Reasons for Decision – Product Ruling”.

6    Correspondence then followed whereby the solicitors for the applicant requested the respondent Commissioner to provide a statement under s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act).

7    On 9 March 2018, the respondent Commissioner wrote to the solicitors for the applicant stating that he took the view that a decision to decline to issue a product ruling was not a decision to which the ADJR Act applied and that he had no duty under s 13 of that Act to furnish such a written statement to the applicant. The letter continued: “Nonetheless, the reasons why the Commissioner has declined to issue a product ruling, and the findings and material underpinning those reasons, are as set out below.” The document then continued for some 10 or 11 pages.

8    On 14 June 2018, the Court made the following orders:

1.    Within 14 days, the applicant provide the respondent with particulars of the inadequacies alleged under paragraphs (1)(a),(b) and (c) of the originating application in the reasons previously provided by the Commissioner for declining to issue a product ruling for the applicant’s 2018 Softwood Timber Project.

2.    Within 14 days of receiving the particulars the subject of Order 1, the respondent is to provide the applicant with a response.

    …

The statutory provisions

9    The relevant provisions of Sch 1 to the Taxation Administration Act were in the following terms:

Making public rulings

358-5    What is a public ruling?

(1)    The Commissioner may make a written ruling on the way in which the Commissioner considers a relevant provision applies or would apply to:

(a)    entities generally or a class of entities; or

(b)    entities generally, or a class of entities, in relation to a class of *schemes; or

(c)    entities generally, or a class of entities, in relation to a particular scheme.

Note:    Section 357-55 specifies the relevant provisions.

(2)    Such a ruling may cover any matter involved in the application of the provision.

(3)    Such a ruling is a public ruling if it:

(a)    is published; and

(b)    states that it is a public ruling.

(4)    The Commissioner must publish notice of the making of a *public ruling in the Gazette.

Note:    The validity of a ruling is not affected merely because a provision of this Part relating to the form of the ruling or the procedure for making it has not been complied with: see section 357-90.

10    Section 357-60 relevantly provided, omitting the examples:

357-60    When rulings are binding on the Commissioner

(1)    … a ruling binds the Commissioner in relation to you (whether or not you are aware of the ruling) if:

(a)    the ruling applies to you; and

(b)    you rely on the ruling by acting (or omitting to act) in accordance with the ruling.

(2)    You may rely on the ruling at any time unless prevented from doing so by a time limit imposed by a *taxation law. It is not necessary to do so at the first opportunity.

11    Section 358-20 provided:

358-20    Withdrawing public rulings

(1)    The Commissioner may withdraw a *public ruling, either wholly or to an extent, by publishing notice of the withdrawal.

(2)    The withdrawal takes effect from the time specified in the notice. That time must not be before the time the notice is published.

(3)    To the extent that a *public ruling, other than an *indirect tax or excise ruling, is withdrawn, it continues to apply to *schemes to which it applied that had begun to be carried out before the withdrawal but does not apply to schemes that begin to be carried out after the withdrawal.

Note:    A scheme is taken to have begun to be carried out if a contract requiring the scheme has been entered into: see section 357-80.

(4)    The Commissioner must publish notice of the withdrawal of a *public ruling in the Gazette.

12    In effect, as stated in s 357-1, a ruling is an expression of the Commissioner’s opinion of the way in which a relevant provision applies, or would apply, to you. A ruling binds the Commissioner if it applies to you and you act in accordance with it. If you do act in accordance with it and the law turns out to be less favourable to you than the ruling provides, you are protected by the ruling from any adverse consequences. This has as its object, as stated in s 357-5(1), that the risks to you of uncertainty when you are self assessing or working out your tax obligations or entitlements are reduced.

13    By s 357-5(2):

(2)    This object is achieved by:

(a)    making advice in the form of rulings by the Commissioner available on a wide range of matters and to many taxpayers; and

(b)    ensuring that the Commissioner provides rulings in a timely manner; and

(c)    enabling the Commissioner to obtain, and make rulings based on, relevant information; and

(d)    protecting you from increases in tax and from penalties and interest where you rely on rulings; and

(e)    protecting you from decreases in entitlements where you rely on rulings; and

(f)    limiting the ways the Commissioner can alter rulings to your detriment; and

(g)    giving you protection from interest charges where you rely on other advice from the Commissioner, or on the Commissioner’s general administrative practice.

14    The relevant provisions of the ADJR Act are as follows:

13    Reasons for decision may be obtained

(1)    Where a person makes a decision to which this section applies, any person who is entitled to make an application to the Federal Court or the Federal Circuit Court under section 5 in relation to the decision may, by notice in writing given to the person who made the decision, request him or her to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision.

(2)    Where such a request is made, the person who made the decision shall, subject to this section, as soon as practicable, and in any event within 28 days, after receiving the request, prepare the statement and furnish it to the person who made the request.

(3)    Where a person to whom a request is made under subsection (1) is of the opinion that the person who made the request was not entitled to make the request, the first-mentioned person may, within 28 days after receiving the request:

(a)    give to the second-mentioned person notice in writing of his or her opinion; or

(b)    apply to the Federal Court or the Federal Circuit Court under subsection (4A) for an order declaring that the person who made the request was not entitled to make the request.

(4)    Where a person gives a notice under subsection (3), or applies to the Federal Court or the Federal Circuit Court under subsection (4A), with respect to a request, the person is not required to comply with the request unless:

(a)    the Federal Court or the Federal Circuit Court, on an application under subsection (4A), declares that the person who made the request was entitled to make the request; or

(b)    the person who gave the notice under subsection (3) has applied to the Federal Court or the Federal Circuit Court under subsection (4A) for an order declaring that the person who made the request was not entitled to make the request and the court refuses that application;

and, in either of those cases, the person who gave the notice shall prepare the statement to which the request relates and furnish it to the person who made the request within 28 days after the decision of the court.

(4A)    The Federal Court or the Federal Circuit Court may, on the application of:

(a)    a person to whom a request is made under subsection (1); or

(b)    a person who has received a notice under subsection (3);

make an order declaring that the person who made the request concerned was, or was not, entitled to make the request.

(5)    A person to whom a request for a statement in relation to a decision is made under subsection (1) may refuse to prepare and furnish the statement if:

(a)    in the case of a decision the terms of which were recorded in writing and set out in a document that was furnished to the person who made the request—the request was not made on or before the twenty-eighth day after the day on which that document was so furnished; or

(b)    in any other case—the request was not made within a reasonable time after the decision was made;

and in any such case the person to whom the request was made shall give to the person who made the request, within 14 days after receiving the request, notice in writing stating that the statement will not be furnished to him or her and giving the reason why the statement will not be so furnished.

(6)    For the purposes of paragraph (5)(b), a request for a statement in relation to a decision shall be deemed to have been made within a reasonable time after the decision was made if the Federal Court or the Federal Circuit Court, on application by the person who made the request, declares that the request was made within a reasonable time after the decision was made.

(7)    If the Federal Court or the Federal Circuit Court, upon application for an order under this subsection made to it by a person to whom a statement has been furnished in pursuance of a request under subsection (1), considers that the statement does not contain adequate particulars of findings on material questions of fact, an adequate reference to the evidence or other material on which those findings were based or adequate particulars of the reasons for the decision, the court may order the person who furnished the statement to furnish to the person who made the request for the statement, within such time as is specified in the order, an additional statement or additional statements containing further and better particulars in relation to matters specified in the order with respect to those findings, that evidence or other material or those reasons.

(8)    The regulations may declare a class or classes of decisions to be decisions that are not decisions to which this section applies.

(9)    Regulations made under subsection (8) may specify a class of decisions in any way, whether by reference to the nature or subject matter of the decisions, by reference to the enactment or provision of an enactment under which they are made, by reference to the holder of the office by whom they are made, or otherwise.

(10)    A regulation made under subsection (8) applies only in relation to decisions made after the regulation takes effect.

(11)    In this section, decision to which this section applies means a decision that is a decision to which this Act applies, but does not include:

(a)    a decision in relation to which section 28 of the Administrative Appeals Tribunal Act 1975 applies;

(b)    a decision that includes, or is accompanied by a statement setting out, findings of facts, a reference to the evidence or other material on which those findings were based and the reasons for the decision; or

(c)    a decision included in any of the classes of decision set out in Schedule 2.

15    By s 3(1) of the ADJR Act:

decision to which this Act applies means a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not and whether before or after the commencement of this definition):

(a)    under an enactment referred to in paragraph (a), (b), (c) or (d) of the definition of enactment; or

(b)    by a Commonwealth authority or an officer of the Commonwealth under an enactment referred to in paragraph (ca) or (cb) of the definition of enactment;

other than:

(c)    a decision by the Governor-General; or

(d)    a decision included in any of the classes of decisions set out in Schedule 1.

16    By s 3(2) of the ADJR Act, a reference to the making of a decision includes a reference to:

(a)    making, suspending, revoking or refusing to make an order, award or determination;

(b)    giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission

(c)    issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;

(d)    imposing a condition or restriction;

(e)    making a declaration, demand or requirement;

(f)    retaining, or refusing to deliver up, an article; or

(g)    doing or refusing to do any other act or thing;

and a reference to a failure to make a decision shall be construed accordingly.

17    It was not submitted that the Taxation Administration Act was not an Act within (a) of the definition of enactment. Neither was it suggested that declining to make a ruling was within Sch 1 to the ADJR Act which listed, amongst the classes of decisions that are not decisions to which the ADJR Act applies, decisions making, or forming part of the process of making, or leading up to the making of, assessments or calculations of tax, charge or duty, or decisions disallowing objections to assessments or calculations of tax, charge or duty, or decisions amending, or refusing to amend, assessments or calculations of tax, charge or duty, under the “Taxation Administration Act 1953, but only so far as the decisions are made under Part 2-35, 3-10, 3-30 or 4-1 in Schedule 1 to that Act”. The Part dealing with Rulings is Part 5-5 of that Schedule, decisions under which are thus not excluded by Sch 1 to the ADJR Act.

18    A “product ruling” is defined in s 995-1 of the Income Assessment Act 1997 (Cth) to mean a “public ruling under the Taxation Administration Act 1953 that states that it is a product ruling”. A “public ruling” relevantly has the meaning given by s 358-5 of Sch 1 to the Taxation Administration Act. It may therefore be said that a product ruling is a type of public ruling, a subset, and the purpose of a product ruling is to give certainty to participants in an arrangement on the tax consequences of that arrangement, where it is carried out as described in the ruling.

The application and notice of contention

19    The amended application to this Court, dated 23 July 2018, was in the following terms:

1.    A declaration pursuant to S.13(4A) of the Administrative Decisions (Judicial Review) Act 1977 (“the Act’) that the Applicant was entitled to make the Request made by the Applicant to (sic) Respondent by letter dated 12 February 2018 to provide a statement in writing complying with the requirements of S.13(1) of the Act in respect of the Respondent’s decision to decline to issue a Product Ruling for the Applicant's 2018 Softwood Timber project.

2.    A declaration that the matters set out in the Respondent’s letter to the Applicant dated 9 March 2018 did not satisfy the requirements of S.13(1) of the Act.

3.    An Order the Respondent furnish to the Applicant within 7 days in respect of the Respondent's decision made on 5 February 2018 to decline to issue a Product Ruling for the Applicant’s 2018 Softwood Timber Project a statement in writing in accordance with S.13(1) of the said Act containing;

a.    Adequate particulars of the Respondent's findings on material questions of fact;

b.    Adequate reference to the evidence or other material on which those findings were based; and

c.    Adequate particulars of the reasons for the decision.

4.    Such further or other order as the nature of the case may require.

5.    Costs.

20    The respondent Commissioner’s notice of objection to competency dated 24 May 2018, that is, before the applicant’s amended application, was as follows:

The Respondent (Commissioner) objects to the competency of the application for an order pursuant to s 13(7) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act).

GROUNDS OF OBJECTION

1.    The Court is not empowered to make an order that the Applicant be furnished with an additional statement under s 13(7) of the ADJR Act as:

1.1.    a decision by the Commissioner not to issue a public ruling pursuant to s 358-5 of Schedule 1 to the Taxation Administration Act 1953 (Cth), including a “product ruling” on the way in which a relevant provision applies or would apply to entities generally or a class of entities in relation to a particular scheme, is not a decision to which the ADJR Act applies;

1.2.    the Commissioner’s decision to decline to issue the Applicant with a Product Ruling for the Agriwealth 2018 Softwood Timber Project (Decision) is not a decision to which the ADJR Act applies;

1.3.    the Commissioner cannot be required to furnish a statement under s 13(1) of the ADJR Act in respect of the Decision;

1.4.    the Applicant has not been provided with a statement under s 13(1) of the ADJR Act in respect of the Decision;

1.5.    pursuant to section 13(7) of the ADJR Act, only a person who has been furnished with a statement under s 13(1) can apply for an order that they be furnished with an additional statement under s 13(7); and

1.6.     the Court cannot make an order requiring the Commissioner to provide an additional statement under section 13(7) where a s 13(1) statement has not been provided by the Commissioner to the Applicant.

The issues

21    In broad terms, the issues before the Court are:

1.    Whether the Commissioner’s declining to issue a ruling is a ‘decision of an administrative character made … under an enactment’ for the purposes of the ADJR Act.

2.    Whether the Commissioner has substantially complied as a matter of fact with the requirements of s 13 of the ADJR Act, if it operates in the circumstances.

3.    Whether as a matter of discretion the Court would order the respondent Commissioner to furnish an additional statement of reasons.

I shall address each issue separately, so far as possible.

The parties’ submissions on “decision… made… under an enactment”

22    The Commissioner’s contentions that declining to rule was not a decision to which the ADJR Act applied were, first, that a decision to decline to issue a product ruling did not affect rights: absent a ruling, the Commissioner would simply be bound to apply relevant taxation laws according to their terms just as he was before his refusal to issue the ruling. For the purposes of the second limb of the analysis described in Griffith University v Tang [2005] HCA 7; 221 CLR 99 at [89], the decision to decline to issue a product ruling did not itself confer, alter or otherwise affect legal rights or obligations.

23    It is necessary but not sufficient that the decision is authorised by the enactment: Tang at [10] per Gleeson CJ, [78], [89] and [96] per Gummow, Callinan and Heydon JJ.

24    There is a separate question as to whether s 13 of the ADJR Act does not apply by virtue of the express exclusion in s 13(11) of “a decision that includes, or is accompanied by a statement setting out, findings of facts, a reference to the evidence or other material on which those findings were based and the reasons for the decision”.

25    The Commissioner submitted that although there did not appear to be any authority directly addressing whether a decision to decline to issue a product ruling was reviewable under the ADJR Act, the decisions that had relevantly considered the character of a public ruling strongly indicated that it was not. The Commissioner referred to Remuneration Planning Corp Pty Ltd v Commissioner of Taxation [2001] FCA 255; 46 ATR 400; Barkworth Olives Management Ltd v Commissioner of Taxation [2003] FCA 443; 74 ALD 600; 52 ATR 656; and Carey v Field [2002] FCA 1173; 122 FCR 538. The Commissioner also referred to Aronson M, Groves M, and Weeks G, Judicial Review of Administrative Action and Government Liability (6th ed, Lawbook Co, 2017) at [2.550] as follows:

To return to Griffith University v Tang, it will be recalled that Ms Tang’s challenge failed, even though the university’s Act had impliedly authorised the making of student discipline decisions. This was because the university’s decision failed to satisfy the majority’s second criterion, which was that “the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment.” Those legal rights or obligations could be pre-existing or created by the decision itself. They could come from the general law or statute. They could belong to anyone (in the case of rights), or be imposed upon anyone (in the case of obligations). They could even be immediate or contingent. The majority summarised thus:

… [D]oes the decision in question derive from the enactment the capacity to affect legal rights and obligations? Are legal rights and obligations affected not under the general law but by virtue of the statute?

In other words, the decision must make a present or contingent difference in the realm of legal rights or obligations, and it must do this because of the force it derives from the relevant enactment. The university’s decision was said to fail this second criterion because although its impact was great, it neither created nor affected legal rights or obligations. Ms Tang had deliberately chosen not to allege a contractual relationship between herself and the university, and according to the majority, Ms Tang’s enrolment was consensual on both sides, its continuance purely a matter of “mutuality”. Even on the assumption that the misconduct code had promised procedural fairness, and that this had given rise to a legitimate expectation that the promise would be kept, the code created no new rights or obligations and its breach had no effect upon Ms Tang’s existing or immediately contingent rights. We have emphasised our summary in this last respect, because the court left for future consideration the fascinating possibility that the position might have been different if Ms Tang had completed all of the requirements for her degree, because she might then have had “a statutory or other right to [its] award”.

(Footnotes omitted.)

26    The Commissioner submitted that within the limited field of their operation rulings, whether they were public or private, operated as a kind of Henry VIIIth provision by which the Executive, by fiat, altered the substantive legal incidents of statute in their application to particular taxpayers. That was the significance of the public ruling in the present context, and it was quite a distinct context from some other kinds of plainly administrative decisions which might fall on the other side of the line. The Commissioner referred to s 358-5 stating that the Commissioner may make a written ruling on the way in which the Commissioner considers a relevant provision applies or would apply to entities generally or a class of entities, and emphasised the “wholly discretionary” nature of that language. In the case of public rulings, the Commissioner submitted, he could rule at any time without an application and, conversely, if an application was made the Commissioner was under no obligation to deal with it. In the case of a private ruling, a taxpayer or his or her agent may apply to the Commissioner and, by s 359-35(1), the Commissioner must comply with an application for a private ruling and make the ruling, subject to some provisions for declining to make a private ruling. The Commissioner submitted there were no Part IVC review rights for an application for a public ruling. The Commissioner submitted that because of the following factors, there was no relevant affectation of rights within Tang: there was no provision for an application, no duty to make any decision, no right of review from a refusal and, if the Commissioner had not responded to any of the correspondence, the law would simply have applied to each of the person’s entry into the scheme as it currently applied. The applicable law here derived from the statute and not from the decision.

27    The Commissioner referred to Eastman v Besanko [2010] ACTCA 15; 244 FLR 262. The question was whether the decision of Besanko J not to order an inquiry under s 422 of the Crimes Act 1900 (ACT) into the conviction of Mr Eastman was a decision under an enactment for the purposes of the Administrative Decisions (Judicial Review) Act 1989 (ACT). The relevant statutory provisions were as follows, so far as relevant:

424    Supreme Court order for inquiry

(1)    The Supreme Court may order an inquiry on application by the convicted person, or by someone else on the convicted person’s behalf.

…

(4)    Proceedings on an application are not judicial proceedings.

…

425    Rights and duties in relation to orders for inquiry

(1)    This division does not create a right to the order of an inquiry, and does not create a duty to order an inquiry.

(2)    Without limiting subsection (1), there is no right of appeal in relation to a decision whether to order an inquiry.

28    Section 422 provided, so far as relevant:

424    Grounds for ordering inquiry

(1)    An inquiry may be ordered under this part into the conviction of a person for an offence only if —

(a)    there is a doubt or question about whether the person is guilty of the offence; and

(b)    the doubt or question relates to —

(i)    any evidence admitted in a relevant proceeding; or

(ii)    any material fact that was not admitted in evidence in a relevant proceeding; and

(c)    the doubt or question could not have been properly addressed in a relevant proceeding; and

(d)    there is a significant risk that the conviction is unsafe because of the doubt or question; and

(e)    the doubt or question cannot now be properly addressed in an appeal against the conviction; and

(f)    if an application is made to the Supreme Court for an inquiry in relation to the conviction — an application has not previously been made to the court for an inquiry in relation to the doubt or question; and

(g)    it is in the interests of justice for the doubt or question to be considered at an inquiry.

29    The Court of Appeal held that the appellant was not entitled to seek review of the decision of the judge of the Supreme Court not to order an enquiry into the appellant’s conviction, as referred to in s 424(1) of the Crimes Act. The reasons included the legislative history and purpose of the provision and the unlikelihood of the idea of statutory review of the judge’s decision by another judge of the same Court and an appeal from that decision to the Court of Appeal. Weight was also given to s 425. Tang was considered as the primary judge (Edmonds J) had held that the decision not to order an inquiry into the appellant’s conviction did not confer, alter or affect legal rights or obligations as explained in Tang at [89].

30    Penfold J referred to Tang at [79]-[81] and [89] and said as follows, at [13]:

In this case I am satisfied (for the reasons set out by Edmonds J in the decision now appealed from, Eastman v Besanko (2009) 223 FLR 109 at [12]-[16] and summarised in the judgment of Graham J at [201] below) that if Besanko J made a decision, that decision was authorised by the enactment concerned, but:

(a)    that the decision not to order an inquiry did not “itself confer, alter or otherwise affect legal rights or obligations”; and

(b)    that the decision, therefore is not, within the criteria set down in Tang, a “decision made under an enactment”.

31    At [24], Penfold J said that the complete absence of the applicant under s 424(1) of the Crimes Act as a player in any of the consequences of that application was the basis on which she rejected counsel’s submission that s 424 conferred on an applicant a right to have an application dealt with according to law.

32    At [27], her Honour referred to the legislative history of the provisions and to a statement in the Explanatory Memorandum for the Crimes Legislation Amendment Bill 2001 (ACT) that the purpose of s 425 was “to make it clear that decisions about ordering an enquiry are purely discretionary and are not subject to appeal or review”.

33    Dowsett J referred to the Explanatory Memorandum and said, at [83]:

Whilst the wording of s 425 may arguably leave open the possibility of review under the ADJR Act, the intention to exclude both appeal and review is clear enough when one has regard to the explanatory memorandum. Further, when one keeps in mind the fact that the whole procedure is intended to be an exceptional supplement to the appellate process, and to provide a statutory regime to take the place of the exercise by the Executive of the royal prerogative, it seems most unlikely that the Legislature intended that a person who had no right to an order for an inquiry should nonetheless be able to seek review of a decision that there be no inquiry.

34    At [92], Dowsett J said that the conclusion of the primary judge that the decision that an inquiry should not be ordered did not confer, alter or affect legal rights or obligations as explained in Tang, especially at [89], may reflect an unduly restrictive view of the reasoning of the majority in Tang. Dowsett J said that a decision under s 424 may affect rights and duties under the Crimes Act.

35    Graham J also referred to the Explanatory Memorandum and concluded, at [224], that a decision on an application for an inquiry was a decision of an administrative character which was not open to review or appeal because of ss 424(4) and 425. At [227], Graham J said:

A decision to order or not to order an inquiry under s 424 of the Crimes Act was undoubtedly “authorised” by the Crimes Act. However, where ss 422 to 425 do “not create a right to the order of an inquiry” and do “not create a duty to order an inquiry”, it seems to me that the decision of the respondent not to order an inquiry did not itself bear upon any legal rights or obligations of the appellant. Thus, the decision did not derive from the enactment. In my opinion the test laid down in Griffith University v Tang has not been satisfied.

36    The applicant submitted that the Commissioner’s decision to refuse a ruling in this particular case deprived the relevant participants of the enduring and protective effect upon identified taxation consequences and benefits and accordingly “affected rights” within the purview of the second “criterion” in Tang. The refusal to issue the ruling directly affected the position of the participants. The applicant submitted that the facts in Remuneration Planning were far removed from the present as in that case neither the firm nor any of its clients had applied for the ruling and its operation was advisory and of general application to all taxpayers. Likewise in Albrecht v Australian Taxation Office [2015] WASC 246 a public ruling had been issued for which the plaintiff had not applied. The order was made in the absence of the plaintiff on an ex parte basis and was not concerned with the present issue that arose under the ADJR Act. In Carey v Field, significantly the Commissioner had furnished a s 13 statement and there was no challenge to the adequacy of it. There was no question raised that the relevant decision to withdraw the public ruling was not a “decision under an enactment”.

37    The applicant submitted it was to be borne in mind that the provisions from which the product ruling mechanisms sprang had a wide and varied application. Here there was an application and that was a good starting point because it looked as though the applicant was engaging with the Commissioner to try and achieve an outcome under an enactment. This was different to a product ruling issued by the Commissioner and without an application about how he would deal with product rulings. In the present case there was a detailed process of engagement with the Commissioner, followed by a series of reasons declining to rule. The problem should not be approached by reference to whether all public rulings, whatever their source and whether or not applied for, would be under the coverage of the Act.

Consideration

38    In considering these submissions I also take into account what the learned authors of Judicial Review of Administrative Action and Government Liability said at [2.590], as follows, adding the footnotes into the text:

One of the pre-Tang denials of AD(JR) coverage had concerned a department head’s refusal to grant compensation for the department’s maladministration. [Smith v Oakenfull (2004) 134 FCR 413 at 418-421.] The compensation scheme was non-statutory, but the Act gave the department head the responsibility of managing the department’s funds. Applying Tang’s criteria, there might well be AD(JR) coverage of a decision to grant compensation, because such a decision would provide statutory authority for making the payment. AD(JR) coverage of a decision going the other way, however, may be doubted, because it cannot be said to have generated new rights or obligations, or affected existing rights or obligations. AD(JR)’s definition of “decision” includes refusals, [Section 3(2)(g)] but Tang’s second criterion means that the only refusals that AD(JR) covers are those that create or affect rights or obligations, and even then, only if that effect can be sourced to statute.…

39    Before going to Tang, I shall consider briefly the other authorities on which the parties relied.

40    With respect, I find little of assistance in Remuneration Planning which appears to have turned on the form of the ruling in question, a public ruling, being “not directed to any particular person or persons” and being “purely advisory in the sense that it notifies the public of the opinion of the Commissioner upon the question of taxation involved. It does not affect rights or liabilities in a sense necessary to found curial intervention.”: see the judgment of Gyles J at [11]. On this basis, Gyles J said part of the difficulty was a question of locus standi and also there was “no proper subject for a writ of mandamus or prohibition and nothing to properly injunct to bring the matter within s 39B(1), and there is no matter arising under any law made by the Parliament within the meaning of s 39B(1A).” It was in that context, in my opinion, that his Honour said that private rulings do affect individual taxpayers and, by implication, that public rulings did not. I note that it does not appear that the application in Remuneration Planning involved the ADJR Act.

41    The decision in Remuneration Planning was considered in Albrecht where a litigant in person had claimed that the “Australian Taxation Office went beyond their powers, which is to administer the Tax Act, by using this Public Ruling [TR 2010/3] to legislate on Division 7A.” The plaintiff sought “costs and damages”. Pritchard J, as her Honour then was, said at [27] that the Supreme Court of Western Australia’s jurisdiction “does not extend to a supervisory jurisdiction with respect to decisions of the Commonwealth executive government.” There was also a substantive difficulty, Pritchard J said, referring to Remuneration Planning. Her Honour appears, at [29], to have approved the approach of Gyles J that the public ruling was purely advisory and that if persons were assessed for taxation on the basis of an application of the legislation as outlined in such a ruling the appropriate course for relief was to appeal against the assessment. In my opinion, with respect, Albrecht takes the matter no further.

42    Barkworth Olives concerned an application for an order of review under the ADJR Act in relation to the applicant’s application for a public ruling. The respondent Commissioner filed a notice of objection to competency alleging, amongst other things, that the conduct sought to be reviewed or the purported decision identified by the applicant was not conduct for the purpose of a decision, or a decision, to which the ADJR Act applied. Spender J held, at [22], that the applicant’s complaints were not, in any relevant sense, reviewable as “conduct” under the ADJR Act. At [26], Spender J said that there was never a decision by the Commissioner to issue a draft ruling which accompanied the covering letter in question as a public ruling. At [27], Spender J said that the view expressed in the draft ruling was not a “public ruling”, nor was it a proposed public ruling, in the absence of any intention by the Commissioner to publish it in the Gazette. At [40], his Honour said it was unnecessary, in the light of his reasons, to make particular findings on the notice of objection to competency. In my opinion, with respect, Barkworth Olives is of no present assistance.

43    Carey v Field involved a proceeding under the ADJR Act to set aside a decision made on behalf of the Commissioner of Taxation to withdraw a product ruling. The product ruling was a public ruling. Merkel J referred, at [4], to the binding effect of a public ruling, provided for at that time in s 170BA(3) of the Income Tax Assessment Act 1936. Although in Remuneration Planning the provision equivalent to s 170BA(3) was set out, at [6], being at that time s 74A(2) of the Fringe Benefits Tax Assessment Act 1986 (Cth), it was not necessary for Gyles J to consider that provision in light of his Honour’s reasoning: see [40] above. Albrecht’ and Barkworth Olives appear to contain no such reference.

44    At [38], Merkel J noted that a request was made to the Australian Taxation Office pursuant to s 13 of the ADJR Act and reasons for the decision were subsequently given by the respondent. It is not necessary for present purposes to go into the grounds of judicial review except to note that the applicant succeeded in respect of the procedural errors of which he had complained but failed in respect of the substantive errors.

45    At [56], Merkel J said the following:

The Commissioner conceded that he was obliged to comply with the rules of natural justice in relation to his decision to withdraw the Product Ruling. The concession was plainly correct. It is now well established that when a statute confers power on a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment: see Annetts v McCann (1990) 170 CLR 596 at 598. In the present case the statute conferred a power upon the Commissioner to defeat the right of members of the class of persons to whom the public ruling was intended to apply, to rely on the Commissioner being bound by the ruling in accordance with s 170BA(3) of the ITA Act 1936. The right that can be defeated by the withdrawal of the ruling is a legal right arising under the statute. It is not a mere indirect and consequential financial interest: cf Corio Bay and District Private Hospital NH Pty Ltd v Minister for Family Services (1998) 87 FCR 37 at 43 and 47.

I note the concession and that Merkel J said that the concession was plainly correct, but I also note that no issue was raised in that case that the ADJR Act did not apply.

46    All of these cases were decided before Tang, to which I now return.

47    Tang concerned a decision to exclude Ms Tang from the PhD candidature program conducted by Griffith University. The question was whether the decision to exclude her was a decision “under an enactment”, the relevant enactment being the Griffith University Act 1998 (Qld).

48    In Tang the respondent had not pleaded a contract and the plurality said, at [91], given the manner in which she had framed her application for judicial review, there had subsisted between the parties no legal rights and obligations under private law which were susceptible of affection by the decisions in question. There was at best a consensual relationship, the continuation of which was dependent upon the presence of mutuality. That mutual consensus had been brought to an end, but there had been no decision made by the University under the University Act. Nor would there have been such a decision had the respondent been allowed to continue in the PhD program. Thus, it appears, the decision was referable to a private law source and the decision was not “made under” the enactment in question: see the judgment of the plurality at [81]. The enactment appeared to do no more than provide a capacity: the enactment did not play a relevant part in the legal force or effect of the decision.

49    In Tang at [10] Gleeson CJ said it was not enough that the decision was within power. A decision met the test “only if it is one for the making of which the relevant statute either expressly or impliedly provides and one to which the statute gives legal force or effect”, citing Lehane J in Australian National University v Lewins (1996) 68 FCR 87 at 101.

50    In Tang at [89] and [96], per Gummow, Callinan and Heydon JJ, it was established that:

The determination of whether a decision is “made … under an enactment” involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be “made … under an enactment” if both these criteria are met. It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice.

…

The decisions of which the respondent complains were authorised, albeit not required, by the University Act. The Committees involved depended for their existence and powers upon the delegation by the Council of the University under ss 6 and 11 of the University Act. But that does not mean that the decisions of which the respondent complains were “made under” the University Act in the sense required to make them reviewable under the Review Act. The decisions did not affect legal rights and obligations. They had no impact upon matters to which the University Act gave legal force and effect. The respondent enjoyed no relevant legal rights and the University had no obligations under the University Act with respect to the course of action the latter adopted towards the former.

51    In the present case, the legislation deals specifically with the power to make a public ruling: s 358-5. The applicant applied for a public ruling in relation to its timber project. The statute set out, in s 357-60, when such a ruling bound the Commissioner. The purpose of applying for the ruling and the effect of the ruling if granted was that the risks of uncertainty when the applicant was self assessing or working out its tax obligations or entitlements was reduced by protecting it from increases in tax and from penalties and interest where it relied on the ruling: see s 357-5. The ruling, if made by the Commissioner, bound the Commissioner if it applied to the applicant and the applicant acted in accordance with it. As explained by the guide in s 357-1, if the applicant acted in accordance with the ruling and the law turned out to be less favourable to the applicant than the ruling provided, the applicant was protected by the ruling from any adverse consequences.

52    It follows that a ruling does not have as its only connection with the statute that it flows from a general description of the Commissioner’s functions: compare Tang at [8] per Gleeson CJ.

53    In my opinion it would be one thing if the decision to decline to make a ruling was referable only to s 8 of the Income Tax Assessment Act 1936 (Cth) vesting the “general administration” of that Act in the Commissioner. As noted by Edmonds J in Macquarie Bank Ltd v Commissioner of Taxation [2013] FCA 887 at [76] that provision does not include a power to make decisions that create, extinguish or modify the legal rights of taxpayers.

54    Legal rights and obligations under private law are not in issue. What is in issue is the applicant’s access to a statutory regime which may affect the incidents of another statutory regime, the taxing regime, on the applicant or the entities or class of entities the subject of the application for the ruling.

55    Neither is an exercise of the power in s 358-5 to make a ruling a mere grant of authority to do that which under the general law a person has authority to do.

56    In the present case the decision is not to exercise a statutory power with statutory consequences. In my opinion, the character of the decision, and its legal effect, is to exclude the applicant from the statutory benefits to which it may have had access if the ruling had been made.

57    No doubt the statutory power in s 358-5 involves a discretion, but the definition of “decision to which this Act applies” in s 3(1) the ADJR Act specifically states that it applies to a decision of an administrative character made “whether in the exercise of a discretion or not”.

58    Further, in my opinion, deciding not to exercise the statutory discretionary power amounts to “doing or refusing to do any other act or thing” within s 3(2)(g) which is to be treated as within the language of “making of a decision”: see s 3(2) of the ADJR Act.

59    This is not to say that all exercises of power by the Commissioner under s 358-5 would be amenable to statutory judicial review under the ADJR Act. As the plurality in Tang said at [64], “there is involved a question of characterisation of the particular outcome which founds an application for review under the statute.”

60    Tang did not concern a decision not to exercise a power. In my opinion, the High Court did not intend to qualify the approach in Right to Life Association (NSW) Inc v Secretary, Department of Human Services & Health [1995] FCA 33; 56 FCR 50. In that case, Lockhart J, Beaumont J and Gummow J held that the Secretary’s letter, received on 31 August 1994, refusing to exercise his authority under the Regulations to direct that the use of a drug for clinical trials should cease, was a reviewable decision under the ADJR Act. Lockhart J said, at 62:

In the present case, the appellant brought various matters to the attention of the Secretary bearing upon the question of the legality under State law of the conduct or continuation of the trials with respect to the drug mifepristone. The Secretary regarded them as relevant and reached a conclusion in my view that he would not give a direction under condition (e)(ii) to stop the trials. That is the sensible and practical analysis of the Secretary’s letter received on 31 August 1994. If the Secretary had reached the opposite conclusion, namely, that to continue the trials would be contrary to the public interest and that a direction should be given to stop them, and thereupon gave that direction, surely that must be a reviewable decision under the ADJR Act. The sponsor would clearly be a person aggrieved and would in my view be entitled to seek a review of the decision under the ADJR Act. Why should the position be different if the Secretary reaches the opposite conclusion, as he did in this case? The answer does not lie in my opinion in the mere form of condition (e)(i) as to absence of awareness on the part of the Secretary and the absence of a direction under condition (e)(ii). By saying in the letter received on 31 August that “I have been presented with no evidence that this condition is not being met” (3rd par, last sentence) and “You have raised nothing which would warrant my acting to stop the trials” (4th par, last sentence), he made a decision refusing to give a direction under condition (e)(ii) of Item 3. In the ADJR Act, a reference to the making of a decision includes a reference to doing or refusing to do a relevant act or thing (ADJR Act, s 3(2)(a), (b) and (g)). It was a decision which had “the character or quality of finality”; it was an ultimate or operative decision: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason CJ at 336 and 338. See also General Newspapers Pty Ltd v Telstra Corporation at 170 per Davies and Einfeld JJ.

Gummow J said at 87-88:

The present litigation turns principally upon the remaining condition, condition (e). The primary judge held that the decision which attracted the operation of s 5(1) of the ADJR Act was made under condition (e)(ii).

The text of condition (e) is as follows:

“(e)    the Secretary must not, at any time:

(i)    have become aware that to conduct or continue the trial would be contrary to the public interest; and

(ii)    have directed that the trial not be conducted, or be stopped.”

Condition (e) may operate upon the exemption conferred by reg 12(1A) and s 18(1), both as a condition precedent and a condition subsequent. It may operate before the conduct of the trial has commenced, with the result that the trial never takes place, or it may serve to bring to an end the trial whilst it is under way.

The terms of condition (e) are not expressed so as to confer any power upon the Secretary to direct that the trial not be conducted or be stopped. The condition for the continuance of the exemption is that the Secretary has not given such a direction. However, I am prepared to construe the Regulations on the footing that a grant of power to give such a direction necessarily is implicit in condition (e): see Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290 at 302-303. However, what is implied is power to give the direction, if the Secretary has become aware that to conduct or to continue the trial would be contrary to the public interest.

It follows that a decision to direct that a trial not be conducted or be stopped is made under the Regulations. Likewise, a refusal to make such a direction is, relevantly, a decision under that enactment for the purposes of s 5(1) of the ADJR Act.

See also Beaumont J at 80.

61    Australian National University v Lewins (1996) 68 FCR 87 concerned a decision not to promote the applicant to the position of Reader. As noted by Davies J, at 91, it was not in dispute that the refusal to recommend that Mr Lewins’ application for appointment as Reader be accepted had the necessary characteristics of a “decision”, provided it was made under an enactment. Davies J said, at 92, that where the decision of the Promotions Committee effectively brought Mr Lewins’ application for promotion to the level of Reader to an end, it not having been recommended, there was a sufficient element of finality or conclusiveness for the Committee’s act to constitute a reviewable decision.

Lehane J said, at 98-99:

There is no doubt or dispute that, if the decision not to promote the appellant is one to which the Act applies, the appellant is a person aggrieved by the decision.

There is also no doubt or dispute that the decision not to recommend the appellant for promotion (which in practical terms amounted to a decision that he would not be promoted) was a decision of an administrative character. The issue between the parties is, thus, whether it was a decision made under an enactment.

Kiefel J, at 96, agreed with Lehane J.

It is to be recalled that in Tang the High Court referred with approval to the judgment of Lehane J in Lewins on the topic of “made under an enactment”: see per Gleeson CJ at [10] and Gummow, Callinan and Heydon JJ, particularly at [78] and [80]-[81].

62    In my opinion, the better view is that Tang does not decide that where an administrative decision to exercise a statutory power is “made… under an enactment” a decision not to exercise that statutory power is not “made… under an enactment” because it cannot be said to have generated new rights or affected existing rights. I regard Eastman v Besanko as clearly distinguishable, by reason of the terms of s 425 of the Crimes Act, the legislative history and the intention of the legislature: see [27]-[35] above.

63    For these reasons I do not, with respect, share the doubt expressed by the learned authors of Judicial Review of Administrative Action and Government Liability at [2.590] which I have set out at [38] above. In my view a decision to exercise a statutory power is not to be regarded as an abstract exercise and, likewise, a decision not to exercise a statutory power should be regarded as the obverse, for these purposes, of a positive decision in the applicant’s favour. Regard must be had to the terms of the application. In that way the decision not to exercise the statutory power to make a ruling may be seen as authorised by the enactment and affecting legal rights and in that sense deriving from the enactment: see Tang at [89].

64    I find that in the circumstances of the present case the decision not to make a ruling was and is a decision to which the ADJR Act applies.

The parties’ submissions in relation to the reasons for the decision made on 5 February 2018

65    I turn to the next issue which is whether s 13 does not apply to the Commissioner’s decision because the decision “includes, or is accompanied by a statement setting out, findings of facts, a reference to the evidence or other material on which those findings were based on the reasons for the decision” within the meaning of s 13(11)(b) the ADJR Act.

66    Although the respondent did not disavow the reasons which did accompany the decision on 5 February 2018, as I understood the argument he did not ultimately contend that those reasons of themselves answered the description in s 13(11)(b). In any event, I find that the statement of 5 February 2018 did not, at least, set out a reference to the evidence or other material on which the findings were based and therefore did not answer s 13(11)(b).

67    The applicant submitted that the reasons dated 9 March 2018 did not accompany the decision and what did accompany the decision was not a statement within s 13(11)(b). If that be so, then the adequacy of the reasons may fall for consideration in the exercise of the Court’s discretion to order the decision-maker to furnish an additional statement.

68    The respondent submitted that his primary position was that the reasons dated 9 March 2018 was the statement of reasons and it did accompany, relevantly, the decision. Researches having disclosed no closer authority, the respondent relied on the decision of the Full Court in Winkler v Director of Public Prosecutions (1990) 25 FCR 79 where Art XI(2) of the relevant extradition treaty provided:

The request [for extradition] shall be accompanied by a description of the person sought, a statement of the facts of the case, the text of the applicable laws of the requesting State including the law defining the offence, the law prescribing the punishment for the offence and the law relating to the limitation of the legal proceedings.

69    Wilcox and O’Loughlin JJ held that the relevant request for extradition made on 18 March 1988 was constituted by all three Diplomatic Notes, Nos 151 of 20 October 1987, 27 of 8 March 1988 and 31 of 18 March 1988, and this request was accompanied by the prescribed documents. The respondent relied on the joint judgment at 96 as follows:

… we should dispose of the submission made to Davies J, and repeated before us, that the only request for extradition was that made by Note No 151 of 20 October 1987, which request had not been “accompanied by” an appropriately executed United States arrest warrant. In making this submission counsel point out that Note No 27, of 8 March 1988, referred back to Note No 151. They draw from this circumstance the proposition that Note No 27 cannot be regarded as a request, within the meaning of Art XI. We do not agree. Note No 27, in terms, contained a request for Mr Winkler's extradition. The fact that the Note recited the earlier request is not a reason for ignoring the clear words of this fresh request. Furthermore, the request was renewed by Note No 31 of 18 March 1988. We agree with Davies J that the relevant request was constituted by all three notes and that this request was “accompanied by” the prescribed documents.

Upon the assumption that they are correct in submitting that the Note of 8 March did not constitute a “request”, counsel for the appellant then say that the request for extradition in the Note of 18 March 1988 was not effective because that request was not “accompanied by” the material required by Art XI(2) of the Treaty. Counsel concede that the phrase “accompanied by” is not to be read literally, in the sense of being required to be in the same envelope. But they say that, while it may be acceptable to speak of a request being “accompanied by” something sent subsequently, it is a misuse of language to speak of a request being “accompanied by” something sent previously. The concession that “accompanied by” is not to be construed literally is supported by Ex parte Muir (unreported, Queen’s Bench Division, Lloyd LJ and Macpherson J, 7 December 1987). In that case Lloyd LJ and Macpherson J held that “accompanied by … such evidence” means accompanied by such evidence at the time when the decision to commit is taken. It is not necessary for us to determine whether we would go that far, but we have no difficulty with the proposition that the phrase “accompanied by” is sufficiently elastic to include all material submitted at about the time of the request and before the expiration of any relevant cut-off date; for example, a date by which, in the absence of the documents, the fugitive must be set at liberty. If it should happen, in a particular case, that some of the relevant documents have already been submitted to the requested State, there is no difficulty in saying that the request is “accompanied by” those documents. The purpose of a provision such as Art XI(2) is to ensure that the requested State has all of the information which it needs in order to determine the request. Where a requested State already holds relevant documents, nothing would be achieved by requiring the requesting State to submit further copies. Extradition treaties are to be interpreted so as to give effect in a practical way to the bargain between the two countries which they embody: see Government of Belgium v Postlethwaite [1988] AC 924 at 947.

70    Burchett J considered the appellant’s submissions in this respect at 118-120 and held that the words “accompanied by” should not be read in a sense which would include documents received after the date of the Attorney-General’s notice.

Consideration

71    In my opinion, the present statutory and factual circumstances are quite different. Here the expression is “a decision that includes, or is accompanied by a statement”. The present is not a case, unlike Winkler, where the documentation may not be available at the time the decision is made. Further, unlike Winkler, the interpretation of treaties is not involved. Here the expression is found as an exception to the obligation to provide a statement of reasons when asked by a person entitled to make an application under s 5 of the ADJR Act. The primary meaning of the provision is that the exception applies where either the decision includes findings of facts, a reference to the evidence or other material on which those findings were based and the reasons for the decision or the decision is accompanied by a statement (in a separate document) setting out those matters. Questions of fact would, no doubt, be involved but here the reasons of 9 March 2018 were supplied over four weeks after the date of the Commissioner’s decision to decline to issue the ruling, on 5 February 2018, and do not as a matter of substance seek to incorporate the reasons forwarded with the 5 February 2018 decision. Further, the 9 March 2018 reasons were provided in response to a request dated 12 February 2018 and thus appear to be a later rather than an accompanying statement. They have the character of a later supplied statement of reasons as commonly occurs with a s 13 statement where the decision itself did not include reasons.

72    I do not approach the provision on the basis that the statement has to be in the same envelope as the decision or that it must, necessarily, arrive in or as an attachment to the same email or in the same post. Nevertheless I find that the statement dated 9 March 2018 did not accompany the decision given on 5 February 2018. There was a statement which accompanied that decision but it was the statement of seven pages supplied with it.

Whether as a matter of discretion the Court should order the respondent Commissioner to furnish an additional statement

73    Turning now to the adequacy of the reasons, in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 the High Court held that the findings for the purposes of s 430 of the Migration Act 1958 (Cth) meant the findings which the Tribunal had made rather than findings of facts which could be described as “objectively material”: see per Gleeson CJ at [9]-[10], per Gaudron J at [34], per McHugh, Gummow and Hayne JJ at [68] and [77] and per Callinan J at [205] and [217]. (Section 430 required the Tribunal to prepare a written statement that set out its decision, the reasons for the decision, the findings on any material questions of fact, and reference to the evidence or any other material on which the findings of fact were based.)

74    This reasoning was referred to by Bromberg J in Alexander v Australian Community Pharmacy Authority [2010] FCA 189; 233 FCR 575 at [66] where his Honour said:

The obligation to provide a statement of reasons under s 13 of the ADJR Act requires the decision-maker to state its findings on those questions of fact which the decision-maker considered to be material to the decision made, and the reasons it had for reaching that decision. The requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker, not upon an objective or external standard of materiality. Those conclusions follow from the High Court’s decision in Yusuf, and in particular in the judgment of McHugh, Gummow and Hayne JJ at [68], and the similarity of wording between s 430 of the Migration Act and s 13 of the ADJR Act. A number of decisions of this Court have applied the reasoning of Yusuf to s 43(2B) of the AAT Act: see Civil Aviation [Safety Authority v Central Aviation Pty Ltd (2009) 253 ALR 263] at [29].

75    Much earlier, in Ansett Transport Industries (Operations) Ltd v Taylor (1987) 18 FCR 498 at 504, Lockhart J made a similar point when, in dismissing the application claiming insufficiency of the Secretary’s s 13 statement, his Honour said:

That is not to say that the Secretary did or did not err in law in making the decision which he did. That is a quite different matter which is not to be examined on the hearing of this application which is solely a challenge to the sufficiency of the s 13 statement.

76    It is in that light that the reasons of 9 March 2018 need to be considered in order to address the exercise of the Court’s discretion to order a further statement. The existence of that discretion and the relevant jurisdiction was recognised by Hill J in United Airlines v Secretary, Department of Transport and Communications [1990] FCA 427; 26 FCR 598 at 606-607; see also Randwick City Council & Anor v Minister for the Environment & Anor [1998] FCA 1376; 54 ALD 682 at 700 per Finn J.

77    I turn now to those reasons, the question being whether the Court as a matter of general discretion considers that it should order a further statement setting out findings on material questions of fact, reference to the evidence or other material on which those findings were based or further reasons for the decision. The discretion is not in terms the discretion in s 13(7) of the ADJR Act as that section applies where a statement has been furnished in pursuance of a request under s 13(1). Here the statement has expressly not been so furnished. Nevertheless, in my opinion, the Court’s general discretion is informed by the notions of adequacy to which s 13(7) is addressed.

78    The statement given on 9 March 2018 first set out an extract from Product Ruling 2007/71, as follows, including paragraphs 86, 87 (part) and 89, 90 (part) and 91 referred to later in the statement:

82. Under Division 358 of Schedule 1 to the TAA the Commissioner will exercise the discretion to issue a Product Ruling or not to issue a Product Ruling for a particular product in a way that reflects the policy behind the rulings system generally.

83. The paramount consideration in the Commissioner’s decision will be whether the Product Ruling will provide certainty to the entities who participate in the scheme or who are considering participating in the scheme. Given that the purpose of a Product Ruling is solely to benefit participating entities it follows that any collateral benefits that flow to the implementer of the scheme are not taken into account when deciding whether a Product Ruling should be issued.

84. For example, Product Rulings are not given to assist the implementer of the scheme to market the scheme or for the implementer or an associate to raise finance for the ‘product’ from financiers. The level of certainty that Product Rulings are intended to provide to participating entities require that all aspects of the ‘product’, including the means to finance the product, should be settled and in place at the time that the application is submitted.

…

86. … a Product Ruling will ordinarily not be issued if:

•    there is any uncertainty about the scope of the scheme or how it may operate;

•    there is any uncertainty about the application of the law to the scheme or the legal structure under which it is proposed to operate; or

•    if the applicant and the Commissioner are unable to agree on any material aspect of the proposed Ruling.

87. Additionally, and without limiting the discretion to refuse to rule in relation to other instances, a Product Ruling will ordinarily not be issued in the following specific circumstances:

…

(c) where an entity involved with the application for Product Ruling has failed to comply with their taxation obligations, for example, there are outstanding income tax returns or activity statements, or amounts of tax which are overdue for payment;

…

(e) an applicant continues to present ‘shifting scenarios’, indicating that there is, in fact, no settled scheme on which the Commissioner may rule;

…

(g) there is a reasonable possibility that the Ruling, or circumstances associated with the Ruling, could be misleading to potential participants. Falling within this category are requests where:

…

•    the Commissioner cannot give a positive clearance on general anti-avoidance provisions;

•    …

89. A Product Ruling will only be issued if the entity who has applied for the Product Ruling (the applicant) gives an assurance to the Commissioner in the form of the Product Ruling ‘Agreement on Terms of Use’ or any other assurances as may be required.

90. Under the Product Ruling ‘Agreement on Terms of Use’, the applicant is required to inform the ATO of any event that may impact on the continuing application of the Product Ruling. In particular, the applicant must notify the Product Rulings area of the ATO12 if any of the following occur:

…

(i) upon becoming aware of arrangements or events introduced or effected by other parties (including related parties), that are outside of the terms of the scheme agreements, that may impact on the tax consequences for participants in agribusiness managed investment scheme.

91. Notification of such events should be provided to the Commissioner in writing before the relevant event occurs. However, where circumstances outside of the control of the implementer of the scheme prevent this occurring, the Commissioner should be notified no more than 14 days after the event occurs or the implementer becomes aware of it.

79    The reasons then set out the background to the ruling application, stating that the applicant was the manager of, and the responsible entity for, a number of forestry schemes for which the Commissioner had issued product rulings since 2005.

80    After noting that the Commissioner had declined to issue a product ruling for the 2017 project, the statement listed the documents, outlining the scheme sought to be ruled upon, which were included in the ruling application for the 2018 project.

81    At [12] of the statement, there was set out some details of the letter from the Commissioner to the applicant dated 28 November 2017 which “identified reasons why it was unlikely that the Commissioner would issue a product ruling for the 2018 Project”. At [13] of the statement it was said that the applicant neither provided their comment on the reasons nor withdrew the Ruling Application.

82    Under the heading “Reasons for decision” the statement provides:

14.    The Commissioner has refused to issue a product ruling for the 2018 Project as the Commissioner is not confident that the making of a product ruling would provide certainty to entities who participate in the proposed scheme, in light of the following matters.

83    The headings for those matters are as follows:

There is uncertainty about the scope of the scheme or how it may operate.

Failure to comply with the ‘Agreement on Terms of Use’

The Manager continues to present ‘shifting scenarios’ indicating that there is, in fact, no settled scheme on which the Commissioner may rule

The Commissioner is of the view that Part IVA of the ITAA36 may apply to parts of the 2018 Project

Poor lodgement and the debt history of related entities

84    There are a number of findings of fact. The first is at [17] where it is stated that the ATO’s risk reviews and audit activities reveal that not all aspects of past products were disclosed by the applicant at the time that prior ruling applications were submitted. There are seven matters referred to, covering over a page. Each of those matters include one or more findings of fact. For example, in the first subparagraph, it is stated that the ATO’s product ruling risk review for the 2007 to 2009 Projects identified that a payment equivalent to 15% of the establishment fee was made to growers (via associated entities) as a referral fee. The subparagraph goes on to state that this feature was not fully disclosed by the applicant at the time of applying for a product ruling for those years. A related finding is that that feature was considered to provide growers with a deferral mechanism and the potential tax benefit. There is a finding that the feature of the scheme was addressed in the product ruling for 2012 Project. It is then stated that the tax implications of such a payment were not addressed in the product rulings that had been issued for schemes prior to the 2012 Project.

85    The statement goes on at [18] and [19] to state as follows:

The utility of a product ruling depends on the accuracy and completeness of the facts presented to the Commissioner in relation to a particular scheme. In the case of a product ruling for a forestry scheme, a product ruling can only provide certainty to participant growers to the extent that the features of the scheme are described accurately and completely in the ruling.

Since [the applicant] has failed to provide all of the facts applicable to its schemes in past product ruling applications, and additional features were only identified from ATO reviews and audit activities, the Commissioner lacks confidence that the proposed scheme for the 2018 Project will be implemented as identified in the Ruling Application. In circumstances where there are grounds for doubting whether the Ruling Application accurately and completely describes the manner in which the 2018 Project will be implemented, and any deviation between the Ruling Application and the scheme as implemented could result in different tax consequences for growers, the Commissioner considers that the requested product ruling may not provide certainty to those that participate in the 2018 Project.

86    Under “Failure to comply with the ‘Agreement on Terms of Use’”, having regard to the matters I have summarised in part at [84] above, the Commissioner considered that there had been prior non-compliance by the applicant with the Agreement on Terms of Use requirements. This, the statement continued, caused the Commissioner to lack confidence that those requirements would be complied with for any product ruling issued for the 2018 Project. In turn, this was another aspect which cast doubt on whether a product ruling for the 2018 Project would provide certainty to participants.

87    Under “The Manager continues to present ‘shifting scenarios’ indicating that there is, in fact, no settled scheme on which the Commissioner may rule”, after referring to paragraph 87(e) of PR2007/71 the statement continued as follows:

23.    In the past, notwithstanding concerns held by the Commissioner about features in proposed [applicant] schemes upon which product rulings have been sought, the ATO has negotiated with [the applicant] for such concerns to be addressed by amendments being made to the proposed scheme and has proceeded to issue product rulings for the amended scheme. In this regard:

a.    The 2008 Product Ruling application raised concerns for the Commissioner around:

i.    excessive initial establishment fees, and

ii.    profitability. (In this respect, to demonstrate expected future profits, [the applicant] had used indexation greater than CPI. The Commissioner was not satisfied that, assuming an indexation rate equivalent to CPI, the project would return a profit over the 26 to 30 year life of the project).

The fee structure for the 2008 Project was subsequently revised during the process of settling the 2008 scheme and the 2008 Product Ruling issued for the scheme as revised.

b.    The 2009 Product Ruling application presented other issues, in that the Commissioner had concerns:

i.    that the project was only commercially viable because the model used historical values for direct forestry expenditures to be incurred in the future;

ii.    land values for the purposes of the nominal rent were inflated such that the direct forestry expenditures would be at least 70% of the establishment fee; and

iii.    as to sale consideration of the put option resulting in guaranteed returns above the market value of the put option property.

These matters prompted negotiations with [the applicant] and a revised application was lodged and issued.

24.    The Commissioner considers that the foregoing provide examples of “shifting” scenarios as described in PR 2007/71.

25.    Further, in some cases, through later ATO reviews and audit activities, it has been identified by the Commissioner that the schemes as implemented by [the applicant], or as sought to be implemented by [the applicant], have included features which, in the ATO’s view, are tantamount to those removed by [the applicant] as part of the negotiation leading to the making of prior public rulings. In this regard:

a.    During its consideration of the 2012 Project, the ATO sought to address concerns held by the Commissioner relating to the 15 year manager loan, the exercise price of the put option and test elements of the DFE (direct forestry expenditure), as there was a minimal margin between the establishment fee and reaching the 70% DFE threshold. The elements of the DFE were tested via an independent valuation. [The applicant] subsequently agreed to reduce the establishment fee charged to the growers to meet the 70% DFE rule. In addition, the 15 year loan was removed and only the one year loan continued to be available, and the exercise price of the put option was changed to market value. The put option removed the arbitrage between the amount received by the grower and the amount assessable on the market value on disposal of the Timberlot. However, subsequent audit activities by the ATO found that the Regal Loans may have had the effect of circumventing these revisions to the scheme by providing up to 15 years of financing and an option to dispose of the Timberlot by defaulting on the Regal Loans to recreate the arbitrage.

b.    The application for the 2016 Project did not cover the financing arrangements involving Regal. The details of the arrangements were only submitted after the ATO’s audit activities identified those arrangements. The Commissioner was of the view that Part IVA of the Income Tax Assessment Act 1936 (Cth) (ITAA36) may apply to these arrangements and these were subsequently abandoned by [the applicant] in its product ruling application for the 2016 Project. However, it is the Commissioner’s view that the RHHP Trust Loan and novation agreement in forming part of the 2018 Project the subject of the Ruling Application have similar features to the Regal Loans in providing 26 years of finance and recreating the arbitrage between the amount received by the grower and the amount assessable on the market value on disposal of the Timberlot. It is considered that Part IVA of the ITAA36 may well apply to the financing arrangement in the 2017 Project and 2018 Project.

26.    The above matters have led the Commissioner to lack confidence that the scheme the subject of the Ruling Application for the 2018 Project will be implemented in the form proposed and thus lead him to consider that any product ruling thereon may not provide an appropriate level of certainty to participants.

88    Under “The Commissioner is of the view that Part IVA of the ITAA36 may apply to parts of the 2018 Project” and after quoting paragraph 87(g) of PR 2007/71 the statement said the following:

28.    The deed of novation has been included as a feature of the forestry schemes described in the applications for product rulings for the APL projects since the 2011 Project. It is described in the Division 394 forestry application checklists completed by the applicant for each product ruling application, as a measure put in place to reduce investors’ exposure to the Manager’s credit risk. The RHHP Costs are novated by [the applicant] to a trust (RHHP Trust), set up especially for each project. Each trust shares the same Trustee. Audit activity by the ATO confirmed in late 2015 that [the applicant] claims a deduction for the amounts novated to the trust. For the 2015 Project and prior projects, the funds were loaned back to [the applicant] shortly thereafter. The audit concluded that the novation amounts claimed by [the applicant] were not deductible, and while Part IVA of the ITAA36 was not addressed, the auditors advised it may be considered at a later date.

29.    The trustee of the associated RHHP Trusts advised the Commissioner in a letter dated 30 April 2017 that the RHHP Trusts treat the novation amount as a receipt of capital. There are clear compliance risks associated with this arrangement as an asymmetry occurs between the timing of deductions and the matching of assessable income. The Commissioner considers that policy intent of Division 394 of the ITAA97 is that the recipient of the funds should be assessed in the same year as the investors claim a deduction for the initial contributions. The novation appears to erode this effect.

30.    On the receipt of the novation payment from [the applicant], the RHHP Trust loans the same amount per timberlot to growers. The loan is secured by the grower’s rights and interests in respect of the project documents. At the time of entering the loan, the grower also enters a deed of novation with the trust, granting the trust the right to novate its obligation to pay the RHHP Costs and to transfer and assign its rights and interest in the loan agreement to the grower in the event of default on the loan. Where the integrity measures of Division 394 of the ITAA97 are met, a deduction for the prepayment of the RHHP Costs can be claimed by a grower. The additional financing arrangements appear to have the effect of returning the prepayment of RHHP Costs back to the growers within three months of the project commencing.

31.    The ATO raised Part IVA concerns during the drafting of the 2016 Product Ruling in respect of the Regal Loans and [the applicant] agreed that these further financing arrangements will not be implemented. This led to the issuing of the 2016 Product Ruling. The grower loans from the RHHP Trust in the 2018 Project raise the same concerns as the Regal Loans to growers in past projects.

32.    The potential application of Part IVA to the 2018 Project to which the Ruling Application relates is a further reason why the Commissioner considers that any product ruling thereon would not provide certainty to participants.

89    Under the heading “Poor lodgement and the debt history of related entities”, the statement set out part of paragraph 87(c) of PR 2007/71 and continued as follows:

33.    … Historical non-compliance by an entity involved in a forestry scheme with its taxation obligations gives rise to concerns that, in future, the taxation and other contractual obligations of the entities involved in the scheme may not be discharged, or may not be discharged in accordance with the terms of use of a product ruling.

34.    The Commissioner considers that there is evidence that entities related to [the applicant] may not be meeting, or have not previously met, their taxation obligations:

a.    APL has potential tax adjustments of approximately $17 million (before interest and penalties) arising from an audit currently being conducted into that entity. Until this matter is finalised and any related debts are paid, there is uncertainty about the financial viability of [the applicant] and its ability to implement the 2018 Project.

b.    A senior officer of [the applicant] and APL has a poor lodgement and payment history as regards his personal tax affairs. The current ATO position paper for the audit of his personal tax affairs has raised a debt of $7 million which is yet to be paid.

c.    The Trustee of the RHHP Trusts is currently being audited and there are concerns that novated funds are being treated as capital in circumstances when they should be treated as assessable income or that there is a present entitlement arising from a reimbursement agreement (100A of the ITAA36). If the correct position is that the Trustee is not taxed on the novated funds, a tax arbitrage has been achieved through the prepayment and novation of the RHHP Costs.

d.    The income tax returns that have been lodged by the Trustee for the RHHP Trusts were lodged up to 4 years and nine months out of time and were only lodged after ATO demands had issued. In the income tax returns that have been lodged, the RHHP Trusts have declared only interest income that is distributed to two beneficiaries each year. Both beneficiaries are tax exempt entities. The amount reported as actually paid to the beneficiaries is much less than the reported present entitlement of the beneficiaries. As has been noted above, the Commissioner considers that Part IVA of the ITAA36 may apply to the parts of the proposed 2018 Project involving the RHHP Trusts.

35.     The evidence as regards the poor tax compliance history of entities involved with [the applicant] is a further reason why the Commissioner is not satisfied that a product ruling in relation to the 2018 project would provide certainty to investors.

90    There was not in evidence any result of the order made by the Court on 14 June 2018 that the applicant provide the respondent with particulars of the inadequacies alleged under paragraphs (1)(a),(b) and (c) of the originating application in the reasons previously provided by the Commissioner for declining to issue a product ruling for the applicant’s 2018 Softwood Timber Project. See also the submission at [107] below.

91    In its outline of written submissions dated 21 September 2018, the applicant said that neither set of reasons at any point identified any conflict to be resolved upon the material before the Commissioner. “Hence the Commissioner in neither document purported to make any identifiable findings on material questions of fact as S.13 required.”

92    Those submissions then set out the essence of the “reasoning” and then contended that this approach could only be justified in the circumstances of this case if in the course of reaching these conclusions the Commissioner had first evaluated “evidence or other material” and made relevant “findings on material questions of fact” and had identified the material and expressed his findings. This was not done, which accounted for the fact that the Commissioner could not say on either occasion that he had followed the requirements of s 13.

93    The applicant submitted that neither set of reasons referred to a critical exchange of correspondence in May 2017 between the applicant’s representatives and the Commissioner’s representatives in which the applicant took issue with a number of factual assumptions that were being made by the Commissioner.

94    The applicant submitted that the Commissioner never responded to the applicant’s detailed letter dated 9 May 2017 which had put squarely in issue a number of factual assertions by the Commissioner as to what had occurred in past years.

95    The applicant submitted that when the Commissioner came to make a determination in respect of the applicant’s request for a ruling in respect of the 2018 Project, he was fully aware of the controversy defined in the May 2017 correspondence as to whether there had in fact been full and proper disclose by the applicant in the past to the Commissioner in respect of previous annual Projects.

96    Neither of the “Reasons” documents issued by the Commissioner identified that controversy. Neither of the “Reasons” documents determined that controversy or otherwise exposed findings by the Commissioner upon the critical question whether there had been full and proper disclosure by the applicant in the past. The reasons issued were premised upon an assumption that there had not, and that this was not in debate.

97    The conclusion that there was or was likely to be some further act of non-disclosure by the applicant in its 2018 ruling request was the foundation of the “uncertainty” upon which the Commissioner’s decision to decline to make a ruling for 2018 turned.

98    That conclusion was not underpinned by any relevant factual determination by the Commissioner and the Commissioner thus in his “Reasons” provided no supportable basis for his decision. Thus a statement complying with s 13 of the ADJR Act had never been provided to the applicant by the Commissioner.

99    The applicant’s written outline of submissions in reply dated 15 October 2018 again focused, in particular, on the Commissioner not identifying any “findings of fact” that he made and provided to the applicant on disputed matters (original emphasis) in either of the “Reasons” documents issued to the applicant which would satisfy s 13 of the ADJR Act. The applicant submitted that a statement which did not set out the findings on material questions of fact and which failed to refer to the evidence or other material on which those findings were based did not comply with the requirements of s 13: Hatfield v Health Insurance Commission (1987) 15 FCR 487; 77 ALR 103.

100    The applicant submitted there were disputed questions of fact as to what the applicant had disclosed and what it had not disclosed about its Projects in prior years. The Commissioner based his decision not to rule upon a conclusion that there had been non-disclosure. That evaluation was vital and central to the Commissioner’s decision declining to issue a Ruling for the 2018 Project.

101    The same complaints against the applicant as to suggested non-disclosure had been made by the Commissioner in the context of the 2017 Product ruling application. They were set out in the Commissioner’s letter dated 1 May 2017.

102    The applicant submitted it had put its contesting position about those matters forcefully in its letter in reply of 9 May 2017. The Commissioner did not:

a.    Respond to that letter;

b.    Engage with the factual assertions made by the Applicant; or

c.    Evaluate whether the Applicant or the ATO officers were correct.

103    Instead, on the face of it, the applicant submitted, the Commissioner adopted the ATO officers’ unexamined assertions of fact concerning alleged past “non-disclosures” on the part of the applicant as stated in his 1 May 2017 letter and simply repeated them as a basis for his decision not to issue a Public Ruling for the 2018 Project.

104    The applicant submitted that a statement of reasons will be inadequate if it states conclusions without providing particulars of or explanations for those conclusions or if it does not record the decision-maker’s findings on material questions of fact: Trollope v Middleton [2008] FCA 564; 169 FCR 507 at [23] per Tracey J; Alexander v Australian Community Pharmacy Authority at [76] per Bromberg J; Sadleir v Motor Trades Association of Australia Superannuation Fund Pty Ltd [2011] FCA 33 at [42]–[47] per Lander J.

105    In oral submissions, the applicant again emphasised that the letter itself was not identified as part of the evidence upon which the deliberations took place and, more importantly, there was no resolution expressed of an obvious contest between what Mr Jones was saying on 9 May 2017 and what the Commissioner was saying repeatedly in November, in February and, again, in March.

106    The respondent Commissioner submitted the applicant’s distillation of the reasons clearly demonstrated that the documents provided enabled the applicant to understand why, and the basis on which, the decision was made. This was no “coincidence” or “fortuitous result”, but the consequence of an administrator actively seeking to provide guidance to a party with an interest in its decision.

107    Notably, the Commissioner submitted, despite having been ordered by the Court to particularise the inadequacies alleged in the reasons previously provided by the Commissioner, the applicant had not suggested that its capacity to challenge the decision had been thwarted or unfairly compromised by any deficiency in those reasons. Rather, the matters that had now been asserted by the applicant to amount to an inadequacy in the reasons were, in truth, challenges to the substance of the decision and the (clearly fulsome and explicable) reasons therefor. These matters included, for example, assertions by the applicant that there had been a failure to take into account some material relevant consideration and that the decision was in some sense unreasonable having regard to the material allegedly before the decision-maker.

108    In oral submissions, the Commissioner contended that it was to be borne in mind that the power in question here was a power to make a public ruling. This was a power to be exercised, not necessarily upon any application at all, in respect of factually and legally complex schemes. The power would be defeated by stating the test or applying the test at a level that required highly detailed findings.

109    The respondent Commissioner submitted in relation to the statement of 9 March 2018 that [9] listed the previous product rulings and [11] listed the documents which outlined the scheme sought to be ruled upon. Paragraph [14] set out the reason for refusing to issue the product ruling. The Commissioner then went through the subheadings in the document and submitted that what appeared at [17] and following set out material findings of fact. The Commissioner submitted that there were no findings of fact to be made as between the particular points made in the May 2017 letter and the particular reasons given in the 9 March 2018 statement. There was no need to resolve disputes over what had been said in 2017 because the most recent reasons proceeded on a more precise and different basis.

Consideration

110    I accept the Commissioner’s submission that the 9 March 2018 statement is replete with findings of fact. I find that the 9 March 2018 statement does contain adequate findings on material questions of fact, and adequate reference to the material on which those findings were based and adequate reasons for the decision. I conclude that the Commissioner’s actual decision-making did not involve the further resolution of the matters to which the applicant referred: see, for example, [93]-[96] above. I find the basis of the Commissioner’s reasoning to be sufficiently clear, whether what the Commissioner did be considered right or wrong, in the sense of lawful or unlawful, on a substantive application for judicial review.

111    If the present proceedings were proceedings for judicial review of the Commissioner’s decision not to make the ruling then, in my opinion, whether the Commissioner failed to make findings that he was required to have made would be able to be agitated. That is not the present exercise. For example, if the Commissioner were required as a matter of law to make more explicit findings as to the matters raised in 2017 by the applicant before he could decide not to make the ruling then the applicant may well succeed in those proceedings. The present task however is whether, having regard to the nature of the discretionary power, there has been established some gap between what was in fact in the mind of the decision-maker, in terms of either findings on questions of fact, reference to the evidence or other material on which those findings were based or the reasons for the decision, and what the decision-maker has set out in the 9 March 2018 statement.

112    Whether reasons are sufficient or not must depend upon the circumstances of the particular case and on the particular enactment involved in the decision-making process in question: see Ansett Transport Industries (Operations) Ltd v Taylor (1987) 18 FCR 498 at 502 and 503.

113    For that reason, with respect, individual instances may do no more than illustrate the general principle.

114    In Trollope v Middleton a question was whether an endorsement on one of the affidavits of the grounds on which the respondent had relied to justify the issue of a search warrant under s 130 of the Bankruptcy Act 1966 (Cth) was a statement of reasons of the kind contemplated by s 13(1) of the ADJR Act. It was held, at [24], that the statement of reasons contained in the endorsement was no more than conclusionary in nature. This was held to be “hardly surprising” in light of the requirements of s 130(4) of the Bankruptcy Act.

115    I have referred already to Alexander v Australian Community Pharmacy Authority. In truth the case involved a judicial review challenge already brought in the Court, on the ground of failure to take a mandatory relevant consideration into account, and the context in which the consideration of s 13 arose was the extent to which any failure to refer to matters in a s 13 statement may lead to the inference that a relevant consideration was not taken into account.

116    In Sadleir v Motor Trades Association Superannuation Fund the conclusion of Lander J at [45] was that all the Tribunal had done in its record of decision was to state its findings of fact and declare that the decision was fair and reasonable, where fairness and reasonableness was the ultimate statutory question under s 37(6) of the Superannuation (Resolution of Complaints) Act 1993 (Cth).

117    What is to be considered, in each case, is whether there is a basis for concluding that the statement of reasons does not set out the findings on material questions of fact, reference to the evidence or other material on which those findings were based or the reasons for the decision which were part of the decision-maker’s actual decision making. If something is apparently missing, that may be because it did not form part of the decision-maker’s actual decision-making. In that case, it is not something to be dealt on an application for a statement of reasons but on a substantive application for judicial review.

Conclusion and orders

118    In terms of the relief sought in the applicant’s amended application, I find that the applicant was entitled to make the request for a statement of reasons but otherwise I would refuse to grant relief on the basis that the statement of 9 March 2018 contained adequate particulars of findings on material questions of fact, adequate reference to the evidence or other material on which those findings were based, and adequate particulars of the reasons for the decision.

119    The Commissioner’s notice of objection to competency fails in substance, by which I mean that paragraphs 1.1, 1.2 and 1.3 fail. The other grounds of objection were directed to a more technical point which was the applicant’s earlier reliance, in its originating application, on s 13(7) of the ADJR Act.

120    In relation to costs, my provisional view is that the applicant should pay 50 percent of the respondent Commissioner’s costs. If either party wishes to contend for a different costs order they should notify my associate within 14 days of the date of these orders. Thereafter appropriate procedural orders may be made for the determination of that issue.

121    I propose to make the following declaration and orders:

1.    The respondent’s decision made on 5 February 2018 (decision) is a decision to which s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) applies.

2.    The application for an order that the respondent furnish to the applicant an additional statement containing further findings on material questions of fact, further reference to the evidence or other material on which those findings were based or further particulars of the reasons for the decision is refused.

3.    The applicant’s originating application dated 13 April 2018 as amended in the form dated 23 July 2018 is otherwise dismissed.

4.    Subject to order 5, the applicant pay 50 percent of the respondent’s costs, as agreed or assessed.

5.    If either party wishes to contend for a costs order different to the provisional order made in order 4 above, they are to notify my associate within 14 days of the date of these orders.

Associate:

Dated:    1 February 2019