FEDERAL COURT OF AUSTRALIA

Quach v Commissioner of Taxation [2019] FCA 1729

ORDERS

THE COURT ORDERS THAT:

1.    Judgment is entered in favour of the respondent against the applicant in relation to ground 3 of the originating application.

2.    The respondent's interlocutory application for summary dismissal of the originating application is otherwise dismissed.

3.    Costs reserved.

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

REASONS FOR JUDGMENT

JACKSON J:

1    The applicant, Mr Quach, has applied for judicial review of certain alleged decisions of the respondent, the Commissioner of Taxation (the Commissioner). These reasons concern an application by the Commissioner for summary dismissal of the application for judicial review.

The background to the application for judicial review

2    The decisions which the Commissioner is alleged to have made concern tax related liabilities which were the subject of amended assessments issued by the Commissioner. Mr Quach objected to the amended assessments and the objections were disallowed. He applied to the Administrative Appeals Tribunal for review of the objection decisions.

3    In the meantime, Mr Quach commenced voluntary payments towards his tax debt. By June 2018 the possibility of the parties entering into what is known as a '50/50 arrangement' had been raised. That is an arrangement under which, relevantly, a taxpayer with unpaid taxation related liabilities may pay the amount of any undisputed liabilities and at least 50% of any disputed liabilities. In return, the Commissioner will agree to two things. The first is deferral of the recovery of the unpaid balance of the disputed debt and the unpaid balance of any related components, namely any tax shortfall penalty, any shortfall interest charge applicable under Division 293 of the Income Tax Assessment Act 1997 (Cth) (ITAA 1997) and any general interest charge (GIC) imposed by Part IIA of the Taxation Administration Act 1953 (Cth) (TAA). The deferral is to a date 14 days after the resolution of the dispute by a determination of the Commissioner, an appellate tribunal or a court (as applicable). The second thing to which the Commissioner agrees is to remit 50% of the GIC that would otherwise accrue if the taxpayer is unsuccessful in the dispute. The Commissioner's power to remit the GIC is conferred by s 8AAG of the TAA.

4    50/50 arrangements are dealt with in a Law Administration Practice Statement which the Commissioner issued in April 2011, known as PS LA 2011/4 (the PSLA). It has been updated twice, in 2014 and in 2015.

5    It appears that the application to the Administrative Appeals Tribunal was made in July 2018. On 6 August 2018 the Deputy Commissioner of Taxation sent Mr Quach a notice indicating an intention to take legal action if the tax debt was not paid in full or if Mr Quach did not contact the Australian Taxation Office (ATO) by 20 August 2018. However correspondence about the provision of security and a payment plan continued. Another notice of legal action was issued on 7 December 2018 requiring payment or contact from Mr Quach by 14 December 2018.

6    On 13 December 2018 a representative of the Commissioner indicated to Mr Quach's solicitor in an email that, among other things, there was insufficient equity in certain properties over which security had been offered 'to mitigate the risk of accepting an arrangement' and that the amount of monthly payments offered was not acceptable. The email indicated that the ATO was willing to refrain from taking any further legal action until 14 January 2019 to allow Mr Quach time to consider his position and 'take any action necessary to move forward with negotiations'. The email asked for more information relevant to the possibility of security and for Mr Quach's 'best payment offer'.

7    Mr Quach's solicitor wrote back on 19 December 2018 asking the Commissioner to defer legal action until the outcome of the Administrative Appeals Tribunal proceedings and further requesting the Commissioner to remit the GIC in accordance with the PSLA. A representative of the Commissioner replied by email on 20 December 2018 saying that in cases of 'high risk to revenue' the ATO will ask for additional security and that Mr Quach's debt had been identified as such a case. The email said that the ATO still needed Mr Quach to supply 'further information and/or completion of actions in relation to the security negotiations' and that '[o]nce the 50/50 arrangement has been formally accepted and put in place, the GIC remission will be made in the form of adjustments upon the resolution of the dispute'. It said that the representative would defer legal action until 14 January 2019 as advised in previous email correspondence.

8    Mr Quach's solicitor replied by letter on 24 December 2018 characterising the email correspondence as a refusal under Subdivision 255-B of Schedule 1 to the TAA to enter into a 50/50 arrangement or to otherwise defer the payment time for the taxpayer, and asked the Commissioner pursuant to s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) to provide written findings of fact and reasons for the decision.

9    Mr Quach commenced the present proceedings on 28 December 2018. By correspondence in January 2019 the ATO characterised the decision it was alleged to have made as a decision concerning the commencement of recovery proceedings against Mr Quach pursuant to s 255-5(2) of Schedule 1 to the TAA, saying that was not a decision to which s 13 of the ADJR Act applies. The Commissioner filed a notice of objection to the competency of the application and on 14 February 2019 filed the present application for summary judgment.

Principles - summary judgment

10    The relevant power to order summary judgment is found in s 31A(2) of the Federal Court of Australia Act 1976 (Cth). In order to enliven the power to award summary judgment under that provision, the court must be satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. It is also necessary to have regard to s 31A(3):

For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a)    hopeless; or

(b)    bound to fail;

for it to have no reasonable prospect of success.

11    The standard of no reasonable prospect of success is also found in r 26.01(1)(a) of the Federal Court Rules 2011 (Cth). The tests are identical, apart from s 31A(3): Zippo Manufacturing Co v Jaxlawn Pty Ltd [2011] FCA 1125 at [20] (Gordon J). Even though it has no equivalent in r 26.01, it seems to me that s 31A(3) clarifies, but does not alter, the ordinary meaning of the standard of no reasonable prospect of success, and I will proceed on the basis that the test under the Act and the test under the Rules are the same.

12    The applicable principles are well established and may be summarised as follows:

(1)    It is the applicant for summary judgment who bears the onus of persuading the court that the proceedings should be determined summarily: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 at [45].

(2)    It may be doubted that it is useful to adopt any gloss, paraphrase or lexicon as to the criterion of no reasonable prospect of success: Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 at [58]; see also at [22].

(3)    As the combined effect of s 31A(2) and 31A(3) makes clear, the inquiry is whether the prosecution of the relevant part of the proceeding has no reasonable prospect of success, not whether that defence is hopeless or bound to fail: Spencer at [52].

(4)    The test is a departure from earlier provisions authorising summary judgment to be ordered: Spencer at [53]. Section 31A has lowered the bar and softened the test: Cassimatis at [46].

(5)    Nevertheless, the power to dismiss an action summarily must be exercised with caution and is not to be exercised lightly: Spencer at [24] and [60].

(6)    Section 31A(1) provides that when the court is satisfied that the respondent to an application for summary judgment has no reasonable prospect of successfully prosecuting or defending the proceeding or that part of the proceeding, then the court 'may' give judgment. The assessment required by s 31A of whether a proceeding has no reasonable prospects of success necessitates the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the court: Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 178 FCR 401 at [28].

(7)    A practical judgment as to the case at hand is required, by reference to the stage it has reached: Spencer at [25]; Cassimatis at [46].

The bases for the application for judicial review

13    The way the parties have put their cases here presents certain intricacies in relation to both the step of characterising what decisions were made (if any) and the step of determining why, if at all, the decisions are susceptible to judicial review. Mr Quach puts four different characterisations of what the Commissioner has done. To that must be added three other characterisations which the Commissioner indicates may be assumed to be correct for the purposes of the summary judgment application. The intricacies are multiplied by the fact that Mr Quach relies on the ADJR Act in relation to some grounds and also (apparently) on s 39B of the Judiciary Act 1903 (Cth) in relation to other grounds, with overlap between the two.

14    None of that bodes well for a summary judgment application; while it is not beyond the scope of the power in s 31A of the Federal Court Act to dispose of complex issues summarily, the complexity may affect both the existence of the discretion - whether there are no reasonable prospects of success - and the manner in which the discretion is exercised.

15    The written submissions filed on behalf of the parties did little, with respect, to reduce the complexities. They distracted attention from the issue which, in large part, will determine this application: do the grounds of review raise a case of error, jurisdictional or otherwise, which has reasonable prospects of success?

16    Mr Quach's main complaint about the Commissioner's conduct is that on 27 June 2018, an officer engaged in the negotiations with Mr Quach's solicitors 'directed herself' that a request for a 50/50 arrangement would be refused unless 'the Commissioner determine[s] that "there is little or no risk" associated with the case', that is, risk to the revenue. This is said to be incorrect, because the wording of 'little or no risk' appeared in a version of the PSLA which had been superseded by 27 June 2018, and did not appear in the version that was then current.

17    The originating application claims that this resulted in a 'constructive failure to perform a duty or exercise a discretion', or 'taking into account an irrelevant consideration', or 'failing to take into account a mandatory consideration', which 'vitiated' the Commissioner's decision. That decision is variously described as a decision to refuse a request that the Commissioner not commence proceedings under Subdivision 255-A of Schedule 1 of the TAA (ground 1), or a decision to refuse a request to remit GIC on the basis of a 50/50 arrangement (grounds 2(b) and 3), or a decision to garnish accounts and third party payments (also ground 3).

18    Grounds 1 and 2(b) appear not to be advanced under the ADJR Act, so prerogative writs and equitable remedies are sought. Grounds 2(a) and 3 are advanced under the ADJR Act. In terms, ground 3 attacks conduct or proposed conduct for the purposes of making a decision rather than a decision as such. This invokes s 6(1)(j) of the ADJR Act.

19    There appears to be another complaint raised in the grounds, though the way they are drafted does not make it clear whether it truly is separate from the first complaint. It is said that the Commissioner 'did not give proper, genuine or realistic consideration' to the fact that Mr Quach had voluntarily paid some 75% of the disputed primary tax liability for tax years 2007 to 2014. Although this is appended as particulars to ground 2, which refers to the superseded version of the PSLA, I will treat it as separate to the complaint about reliance on the superseded PSLA.

20    I will consider the prospects of success of the case for judicial review under two separate headings - jurisdictional error/error of law on the face of the record, and the ADJR Act.

Jurisdictional error/error of law on the face of the record

21    Under this heading I will deal with the grounds that do not invoke the ADJR Act. The key question is whether Mr Quach has reasonable prospects of establishing that the conduct identified in his two possible complaints involved a jurisdictional error.

22    It may be that injunctive relief is also available in the case of errors of law that are not jurisdictional errors: see Commissioner of Taxation v Futuris Corporation Limited [2008] HCA 32; (2008) 237 CLR 146 at [47] (Gummow, Hayne, Heydon and Crennan JJ), applying Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [100]; and Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; (2016) 257 CLR 42 at [126] (Gageler J). The remedies of injunction or declaration may also lie, of course, if there is a breach of a legal obligation or some other legal or equitable wrong (whether informed by an error of law or not). The Commissioner also directed some submissions to a possible claim of error of law on the face of the record. But the language used in Mr Quach's application is the language of jurisdictional error and no other error of law or wrong is identified or is apparent from the evidence.

23    The submissions for the Commissioner in relation to the grounds that are not under the ADJR Act mainly focussed on the question of what remedies were available, rather than whether an error giving rise to a remedy had been committed. For reasons I will outline later, I do not consider that focussing on remedies leads to a conclusion that Mr Quach has no reasonable prospects of success.

24    The Commissioner's written submissions as to whether there was any jurisdictional error giving rise to a remedy were brief. He simply contended that having recourse to the wrong version of the PSLA, as a policy document not mandated by any legislative provision, could not be an error going to jurisdiction. He cited well known passages in which the High Court describes the concept of jurisdictional error in general terms, and which do not go to any issues about misapplication of policy documents: i.e. Craig v State of South Australia (1995) 184 CLR 163 at 177-178; and Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [163]. He also referred to some authorities under the ADJR Act which indicate that if a policy document has no statutory force, a failure to adhere to it may not be reviewable: Macquarie Bank Ltd v Commissioner of Taxation [2013] FCA 887; and Bilborough v Deputy Commissioner of Taxation [2007] FCA 773; (2007) 162 FCR 160.

25    All that was said in response in Mr Quach's written submissions was that a constructive failure to perform a duty, failing to take into account a relevant consideration and failing to take into account a mandatory consideration are all 'perfectly orthodox formulations of jurisdictional error'. His counsel did, however, articulate the alleged errors a little further in oral submissions. He submitted that requiring, on the basis of the superseded PSLA, that there be 'no risk or next to no risk to the revenue' was to have regard to an irrelevant consideration or, the obverse, that having regard to that matter was 'so overwhelming' that it precluded consideration of any other relevant considerations. Counsel suggested that two factors which had consequently not been taken into account were the personal circumstances of Mr Quach and the alleged voluntary payment of 75% of the disputed tax liability. Counsel also suggested that proceeding in the way the Commissioner did would be to fetter the exercise of the statutory discretion.

26    That was a shift in the emphasis of the claim. The grounds of review centre on a contention that it was somehow mandatory to take account of the current version of the PSLA, and wrong to have regard to a superseded version. But in oral submissions the claim was put, not on the basis that the PSLA had some statutory or other legally mandated force, but as a proposition that the way in which the officers of the ATO had regard to the PSLA led the Commissioner into certain, more conventional kinds of jurisdictional error. While that was a shift in Mr Quach's case, it did not take it entirely outside the bounds of the amended originating application. The result is that it is no answer to Mr Quach's (modified) case to point to authorities that confirm that a failure to comply with a non-statutory policy document is not a jurisdictional error.

27    Even so, one difficulty with the case at the outset is that the correspondence, on which Mr Quach relies to establish the allegedly unremitting focus on the outdated PSLA, does not do what he says it does. The key particular to the grounds of review (1.3) states (emphasis in original):

As set out in a letter dated 27 June 2018 to the Applicant, the Respondent's delegate (Ms Sandra Oo) directed herself that a request for a '50/50 arrangement' would be refused unless 'the Commissioner determine[s] that "there is little or no risk" associated with the case' to the revenue (emphasis in original).

28    This is what the relevant passage of the 27 June 2018 letter in fact says (emphasis in original):

As you can see the intent of the PS LA, [sic] it is incumbent upon the Commissioner to make an assessment of the risk involved in each case where an objection is received. Upon such assessment, should the Commissioner determine that 'there is little or no risk' associated with the case, he will generally grant a deferment of legal action pending determination of the objection.

29    The letter does not say that a 50/50 arrangement will not be entered into unless there is little or no risk. It says that the Commissioner will generally defer legal action if he determines that there is little or no risk. That does not appear to be a controversial proposition. While some implication of the sort for which Mr Quach contends may be open, at present I find it difficult to extract from the passage relied upon any 'overwhelming' insistence that there be little or no risk to the revenue.

30    However I say 'at present' because of the caution with which summary dismissal of an application must be approached, especially where the question is one of fact that arises at an early stage of proceedings, before steps such as discovery have taken place. It may be that after full evidence and argument the matter will appear in a different light. Also, the apparent disconformity between the particulars and the letter of 27 June 2018 was not raised in argument. I will not dismiss Mr Quach's application on the basis of it in a summary way.

31    I will therefore proceed for the purposes of this interlocutory application on the assumption that the Commissioner did exclude consideration of any matter other than the criterion of 'little or no risk' to the revenue from consideration. Can that amount to failing to take into account a relevant consideration, or taking into account an irrelevant consideration?

32    It is axiomatic that in order for either of those things to be a jurisdictional error, the consideration must be one which, on the proper construction of the statute, is mandatory for the decision-maker to take into account, or not take into account, as the case may be. Mason J (as he then was) set out the principles in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40. The passage is both well-known and long, so I will only summarise the key points as follows:

(1)    The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he or she is bound to take into account in making that decision.

(2)    What factors a decision-maker is bound to consider in making the decision are determined by construction of the statute conferring the discretion. If the relevant factors are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act.

(3)    In relation to taking into account irrelevant considerations, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard.

(4)    The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind.

33    One of the statutory discretions which (arguably) the Commissioner exercised here is not subject to any express limitations or requirements. To the extent that the Commissioner's decision was a decision to commence proceedings, or to refuse a request not to commence proceedings, it was made under s 255-5 in Schedule 1 to the TAA. That section reads:

255-5    Recovering a tax-related liability that is due and payable

(1)    An amount of a tax-related liability that is due and payable:

(a)    is a debt due to the Commonwealth; and

(b)    is payable to the Commissioner.

(2)    The Commissioner, a Second Commissioner or a Deputy Commissioner may sue in his or her official name in a court of competent jurisdiction to recover an amount of a tax-related liability that remains unpaid after it has become due and payable.

34    There is no other provision that sets out matters that must, or must not be, taken into account in deciding whether to sue. Nor is it easy to see how anything in the scope or purpose of the Act implies any such matter.

35    However, once again, I must be slow to dismiss the application at a summary stage. As I have said, the way the parties presented their cases tended to distract attention away from this set of issues, and the outline I have already given of such argument as was directed to them shows that it was far from fulsome. Also, the obvious volume and complexity of the income tax legislation adds to the need for caution before determining at a summary stage that no relevant implication can be found. Even if I were to conclude that this ground of judicial review has no reasonable prospects of success, in the absence of full argument I would not reach that conclusion with great confidence.

36    Another statutory power said to have been exercised by the Commissioner is the power to remit GIC under s 8AAG(3) or s 8AAG(4) of the TAA. That section reads:

8AAG    Remission of the charge

(1)    The Commissioner may remit all or a part of the charge payable by a person.

(2)    However, if a person is liable to pay the charge because an amount remains unpaid after the time by which it is due to be paid, the Commissioner may only remit all or a part of the charge in the circumstances set out in subsection (3), (4) or (5).

(3)    The Commissioner may remit all or a part of the charge referred to in subsection (2) if the Commissioner is satisfied that:

(a)    the circumstances that contributed to the delay in payment were not due to, or caused directly or indirectly by, an act or omission of the person; and

(b)    the person has taken reasonable action to mitigate, or mitigate the effects of, those circumstances.

(4)    The Commissioner may remit all or a part of the charge referred to in subsection (2) if the Commissioner is satisfied that:

(a)    the circumstances that contributed to the delay in payment were due to, or caused directly or indirectly by, an act or omission of the person; and

(b)    the person has taken reasonable action to mitigate, or mitigate the effects of, those circumstances; and

(c)    having regard to the nature of those circumstances, it would be fair and reasonable to remit all or a part of the charge.

(5)    The Commissioner may remit all or a part of the charge referred to in subsection (2) if the Commissioner is satisfied that:

(a)    there are special circumstances because of which it would be fair and reasonable to remit all or a part of the charge; or

(b)    it is otherwise appropriate to do so.

37    It may be accepted for present purposes that the matters identified in s 8AAG(3) and s 8AAG(4) are matters that the Commissioner is required by the statute to take into account. If the Commissioner did exercise the discretion not to remit GIC under one of those subsections, and if the effect of the Commissioner's focus on the question of 'little or no risk' to the revenue was to exclude consideration of other factors, then the result would be that certain mandatory factors were not taken into account. It seems to me that it is open to be argued that one of the considerations which counsel for Mr Quach did identify falls within those factors. Both s 8AAG(3) and s 8AAG(4) direct attention to whether the taxpayer has taken reasonable action to mitigate, or to mitigate the effects of, the circumstances that contributed to delay in payment. Paying some of the debt, and thus reducing the amount that is the subject of the delay in payment, arguably amounts to mitigating the effects of the circumstances that contributed to the delay. In circumstances where neither party directed the court's attention to the terms of s 8AAG(3) or s 8AAG(4), I am not prepared to conclude that such an argument has no reasonable prospects of success.

38    The Commissioner submitted that, in any event, no decision not to remit GIC has been made. The Commissioner accepted for the purposes of the summary judgment application that a decision not to enter into a 50/50 arrangement had been made but submitted that, even so, that is not a decision not to remit GIC. He submitted that there was no decision or exercise of power to remit at the point at which a 50/50 arrangement is entered into. The only effect which arises from the 50/50 arrangement itself is the contractual force carried by the conditional promise that the power to remit GIC will be exercised in the future in a particular way. It is only a decision not to enter into a consensual arrangement, and it is well established that such decisions are not reviewable.

39    While that may be accepted as a general proposition, I am not persuaded that Mr Quach has no reasonable prospects of establishing here that, inherent in the decision not to enter into a 50/50 arrangement, was a decision not to remit GIC. It is arguable that, when the Commissioner does enter into a 50/50 arrangement involving the future remission of GIC, he is indicating that, provided certain conditions are satisfied, namely the taxpayer's compliance with the arrangement, he will remit the GIC in the way agreed. That can arguably be characterised as a decision to remit GIC which is made at that time, even though it is not put into effect until later. That is so even though the PSLA makes it clear that GIC continues to accrue on unpaid amounts, and seems to say that the remission only occurs at the end of the relevant period: see PSLA paragraph 36. It is true that the PSLA also provides for the Commissioner to rescind a 50/50 arrangement if circumstances change: PSLA paragraph 44. However it is not obvious to me that withdrawing a decision is not open to other decision-makers after they make decisions that are reviewable.

40    Counsel for the Commissioner referred to s 8AAG(3) to s 8AAG(5) concerning remission of GIC, which are reproduced above. He submitted that the state of satisfaction required by those provisions does not readily lend itself to the idea that the Commissioner forms that state of satisfaction at one point but makes it conditional on future events. I do not accept that is necessarily correct. Section 8AAG(5) may be put to one side, as it can operate whenever the Commissioner is satisfied that it is appropriate to remit (see s 8AAG(5)(b)), and it is not in issue in these proceedings. In s 8AAG(3) and s 8AAG(4) the Commissioner has to be satisfied as to the existence or occurrence of certain past events and circumstances or as to the fairness and reasonableness of remission having regard to the nature of past circumstances. It is not clear why the Commissioner cannot be satisfied about those things before entering into a 50/50 arrangement.

41    In other words, the distinction between agreeing to exercise a statutory power in the future, and deciding to exercise a statutory power in the future, may not be a material one in the context of this application for judicial review. The cases on which the Commissioner relied in relation to consensual arrangements all concerned the exercise of general powers of administration, and did not address the argument that deciding not to enter into an agreement to exercise a specific statutory power is a decision not to exercise that power: see General Newspapers Pty Ltd v Telstra Corporation (1993) 45 FCR 164; Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99; and Bilborough. Once again, in the absence of full argument I am not prepared to dismiss that ground on the basis that it has no reasonable prospects of success.

42    As for the suggestion that the way the relevant officer applied the PSLA here resulted in a fetter on the exercise of the statutory discretion, the concept of fettering discretion is more aptly used when a policy statement confines the exercise of the discretion in advance by requiring the decision-maker to apply fixed rules without regard to all the circumstances of the case: see e.g. Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640-641 (Brennan J). There is no suggestion that any version of the PSLA fetters the discretion that way here. It seems that Mr Quach is, rather, alleging 'the uncritical application of government policy to the facts of the particular matter' representing an 'abdication' by the Commissioner of his functions: see Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 591 (Bowen CJ and Deane J). However given the view I have taken as to the claim of failure to take into account a relevant consideration, it is not necessary to consider this ground any further in relation to the summary judgment application.

Non-ADJR Act grounds - remedies

43    As I have said, in submissions much more attention was paid to the question of remedies, rather than to the existence of grounds of review that might found those remedies.

44    The reasons the Commissioner advanced as to why ground 1, complaining of a refusal not to sue Mr Quach, had no reasonable prospects of success, resolved to the following:

(1)    A decision to sue or to refuse not to sue someone is not susceptible to certiorari, because it has no apparent legal effect, and certiorari can only operate to quash the legal effect of an act (Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480 at [25]).

(2)    Certiorari can only issue for jurisdictional error or non-jurisdictional error of law on the face of the record (Wingfoot at [26]), and the application does not identify any such error.

(3)    Mandamus cannot issue because there is no unperformed public duty: see e.g. R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 242-243.

(4)    An injunction that is sought ancillary to mandamus would be subject to the same constraint.

(5)    No declaration has been sought.

45    The last of these points was made in written submissions filed before the hearing of the application. But at the hearing, leave was given to file an amended originating application to seek a declaration that the Commissioner's refusal of Mr Quach's request not to commence proceedings was vitiated by an error of law. That illustrates the difficulty facing a respondent seeking to obtain summary judgment on the basis that the particular remedies sought by the applicant are not available. Applications may be amended. Remedies are commonly varied before, at or after trial. It is well established that the court is not confined to granting the relief which the applicants have specified: Wicks v Bennett (1921) 30 CLR 80 at 100 (Higgins J); Rawson v Hobbs (1961) 107 CLR 466 at 485 (Dixon CJ). In White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511; (2007) 160 FCR 298 at [103] Lindgren J held that, for the purposes of s 31A of the Federal Court Act, the applicants were not to be confined to the exact terms of the injunction formulated by them.

46    Therefore in relying on the unavailability of particular remedies as a basis for summary dismissal of an application, the Commissioner sets himself an onerous task. The task appears all the more difficult when one considers the inherent flexibility of the remedies of injunction and declaration, including when they apply in the sphere of public law.

47    In view of the caution that must always attend summary disposition of proceedings, the Commissioner needs to persuade the court here, in effect, there can be no remedy of any utility arising on the facts. Counsel for the Commissioner accepted this. After all, the standard set by s 31A of the Federal Court Act is that the applicant has no reasonable prospect of successfully prosecuting the proceeding or a relevant part of the proceeding. Successful prosecution must include obtaining a remedy of some utility: see Macquarie Bank Limited v Commissioner of Taxation [2013] FCAFC 119 at [6].

48    The point made by the Commissioner about certiorari and mandamus in relation to ground 1 appears to be strong; counsel for Mr Quach accepted as much. But in relation to injunctions, the Commissioner argued that injunctive relief sought would be subject to the same constraint as mandamus, namely that it would only lie if there was an unperformed public duty. In oral submissions counsel appeared to step back from that proposition, but if it was pressed, I do not accept that it leads to summary dismissal. The only authority cited was Bilborough. In that case, the Commissioner had rejected an offer of compromise. The applicant sought judicial review, principally under the ADJR Act. Kiefel J (as she then was) dismissed the application under that Act, applying Griffith University v Tang. At [28] her Honour dealt with an alternative submission based on s 39B of the Judiciary Act, and held:

The applicant may be taken to seek mandamus or an injunction requiring the respondent to make a fresh decision in accordance with law. Mandamus would not issue except to command the fulfilment of some duty of a public nature which remains unperformed: R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 242. An order by way of mandatory injunction would be viewed in the same light. The applicant is unable to point to some such duty imposed by the ITAA and the TAA with respect to offers of compromise.

49    That is not authority for any general proposition that if an applicant is seeking mandamus, any injunctive relief sought similarly requires the existence of an unperformed public duty. All her Honour was saying was that if a mandatory injunction compelling a fresh decision was sought, it would only issue if it compelled the performance of such a duty. Here Mr Quach seeks a prohibitory injunction, albeit ancillary to an order requiring a fresh decision, and as I have said, it is not appropriate on a summary judgment application to proceed on the basis that he will be confined at any trial to the precise way that the relief sought is presently framed.

50    Similarly, even if certiorari and mandamus are not available, it is possible that declarations may be granted: see Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581.

51    Even if certiorari and mandamus are unavailable in respect of the decision, there is no obvious reason why it is not open to Mr Quach to seek an injunction to restrain the Commissioner from proceeding to implement a decision that is infected by jurisdictional error. Similarly, it may be that there would be some utility in making a declaration of jurisdictional error, if the facts warrant it, as that would quell a legal controversy and the Commissioner, as a responsible public official, can be expected not to pursue a course of action that lacks legality. The usual discretionary considerations attending the grant of equitable remedies apply to injunctions and declarations in public law cases: Futuris Corporation at [48].

52    It is true that in Kronen v Commissioner of Taxation [2012] FCA 1463; (2012) 213 FCR 495 at [42]-[43], Besanko J held:

The starting point is that, although the applicant claims declarations, the ordinary rule in the circumstances of this case is that no declaration of right will be made where certiorari and mandamus do not lie: Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 at [101]. There is nothing to suggest that the ordinary rule does not apply in this case.

For the jurisdiction in paragraph 39B(1A)(c) of the Judiciary Act to be engaged, the right owing its existence to federal law must be a right capable of enforcement by an order in the nature of certiorari or mandamus. That is so even if the relief granted is a declaration.

53    However in Jones v Medical Board of Australia [2017] QSC 238; [2018] 2 Qd R 565 at [25]-[32], Martin J made observations which displayed scepticism about the existence of any such 'ordinary rule', or its derivation from Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319.

54    In the absence of full argument I am not prepared to resolve that controversy, if any, or to conclude that no useful remedy, at least in the form of injunctive or declaratory relief, will be available to Mr Quach if he establishes that the Commissioner's decision is vitiated by jurisdictional error or is otherwise unlawful.

55    In relation to the availability of declaratory relief the Commissioner relied on Strictly Stainless Pty Ltd v Deputy Commissioner of Taxation [1993] FCA 855. That was a case where Davies J dismissed an application for judicial review under the ADJR Act of a decision by the Commissioner to bring a summons for the winding up of a company on the basis of a tax debt. In obiter dicta his Honour left it open that a party might obtain relief under s 39B of the Judiciary Act in relation to a decision to sue. But he referred to 'an important principle of public policy that a person should be entitled to approach a court and have his case determined according to law whether or not the institution of the proceedings be reasonable'. The Commissioner in this case submitted that this is a reason why, as a matter of discretion, injunctive and declaratory relief should be refused.

56    I agree that this is an important principle of public policy which presents an obstacle to success for Mr Quach here, at least in relation to some of the grounds of review. But I am not prepared to dismiss the application on a discretionary ground without full evidence and argument. Davies J recognised that in some 'exceptional and appropriate' circumstances, relief under s 39B could be granted. His Honour's obiter dicta about the reviewability under s 39B of decisions to litigate or not to compromise a claim should not be read as laying down hard and fast rules.

Conclusion on non-ADJR grounds

57    I am not prepared to dismiss Mr Quach's application in so far as it does not relate to the ADJR Act. I do not consider that I have had the benefit of full argument on the alleged jurisdictional errors, so that as a matter of discretion I do not consider that I should dismiss the application now.

ADJR Act grounds

58    Mr Quach claims that the Commissioner's decision not to remit GIC is an improper exercise of power conferred by s 8AAG(3) or 8AAG(4) of the TAA, because a mandatory consideration was not considered.

59    The Commissioner accepts that a decision not to remit GIC under one of those provisions would be a decision of an administrative character made under a relevant enactment, and thus a decision to which the ADJR Act applies. But, as I have already said, the Commissioner submits that he has not made any such decision; he has only decided (it may be assumed) not to enter into a 50/50 arrangement. I have already said that I am not prepared to conclude that this argument leaves Mr Quach with no reasonable prospects of success in his claims under the Judiciary Act. Should the result be different under the ADJR Act?

60    The Commissioner relies on Bilborough. In that case he had refused to enter into a compromise of a judgment debt. Applying Griffith University v Tang, Kiefel J held that this was not a decision under an enactment for the purposes of the ADJR Act. If an offer of compromise had been accepted, it would have derived its potential capacity to bind not from statute but from the general law: see [19]. Nor could a policy statement under which the Commissioner acted be characterised as an instrument made under an Act, and thus fall within the extended definition of 'enactment' in s 3 of the ADJR Act: see [21]-[25].

61    There are similarities between Bilborough and the present case, but in my view, it does not necessarily dictate the result for which the Commissioner contends here. In Bilborough the Commissioner had obtained judgment against the taxpayer and what the taxpayer sought was a compromise of that liability. There could be no question that the Commissioner's powers to accept or not to accept the offer of compromise were its general administrative powers, which gave no ability to unilaterally affect the rights of the taxpayer.

62    A decision to remit, or not to remit, GIC is different. It derives legal effect from a specific statutory provision. In Bilborough there was a submission that the offer of compromise that had been rejected 'effectively' requested the Commissioner to remit interest and penalty charges: see [26]. At [27] Kiefel J accepted that such a decision might be of a different character and have different consequences to the decision under consideration. But her Honour rejected the submission on the basis that the taxpayer was not seeking review of any discrete decision forming part of the subject matter of the proposal that had not been accepted. This does not shed any light on the question of whether a decision not to enter into a 50/50 arrangement is a decision not to remit GIC.

63    Nor does the main authority in this area, Griffith University v Tang, shed much light on that question. The key passage in the judgment of the plurality is at [89] (emphasis in original):

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.

64    There may be some significance for the present question of the use of the word 'itself' in this passage, as in 'the decision must itself confer, alter or otherwise affect legal rights or obligations'. It could be argued that a decision to enter into a 50/50 arrangement does not 'itself' affect such rights in a manner derived from an enactment; it has purely contractual effect until the statutory power to remit GIC is exercised: see Griffith University v Tang at [82].

65    Similarly, at [80] their Honours phrased the question as whether legal rights or duties owed their existence to the decision 'in an immediate sense'. But the full passage at [79]-[80] is (footnotes omitted, emphasis in original):

The decision so required or authorised must be 'of an administrative character'. This element of the definition casts some light on the force to be given by the phrase 'under an enactment'. What is it, in the course of administration, that flows from or arises out of the decision taken so as to give that significance which has merited the legislative conferral of a right of judicial review upon those aggrieved?

The answer in general terms is the affecting of legal rights and obligations. Do legal rights or duties owe in an immediate sense their existence to the decision, or depend upon the presence of the decision for their enforcement? To adapt what was said by Lehane J in Lewins [Australian National University v Lewins (1996) 68 FCR 87 at 103], does 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?

66    So the question as ultimately posed is whether the decision derives the capacity to affect legal rights and obligations from the enactment. For the reasons I have given, it seems to me to be arguable that a decision to enter into a 50/50 arrangement including the remission of GIC derives its capacity to affect legal rights from s 8AAG of the TAA.

67    It is important for present purposes to note that in Griffith University v Tang at [68]-[69] their Honours rejected a construction that turns upon identification of the 'immediate or proximate source of power' and held:

The search for 'immediate' and 'proximate' relationships between a statute and a decision deflects attention from the interpretation of the Review Act and the AD(JR) Act in the light of their subject, scope and purpose.

68    In my view, this leaves it open to be argued that, even if the immediate or proximate source of certain legal rights is the law of contract, a decision that has effect as a result of that law could also, relevantly, have effect by reason of specific provisions such as s 8AAG(3) and s 8AAG(4) of the TAA.

69    In light of this I am not prepared to hold, on a summary judgment application, that Griffith University v Tang and Bilborough preclude acceptance of a characterisation of the Commissioner's decision as a decision not to remit GIC. That is all the more so since, as I have noted, in the course of the correspondence in December 2018 Mr Quach's solicitors specifically asked for GIC to be remitted, albeit in accordance with the PSLA.

70    The only other ground of the originating application which relies on the ADJR Act is ground 3, by which it is alleged in the alternative to the other grounds that the Commissioner has engaged or has proposed to engage in conduct for the purpose of making a decision to refuse to remit GIC, or to garnish certain accounts and third party payments of Mr Quach under Subdivision 260-A of Schedule 1 to the TAA. This is said to be contrary to law within the meaning of s 6(1)(j) of the ADJR Act. That section provides that where a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision to which the ADJR Act applies, a person who is aggrieved by the conduct may apply to this court for an order of review in respect of the conduct on the ground (among others) that the making of the proposed decision would be otherwise contrary to law.

71    The Commissioner is prepared to assume for the purposes of the summary judgment application that he has engaged in conduct for the purpose of making a decision to refuse to enter into a 50/50 arrangement, and for the purpose of issuing a garnishee notice.

72    His first line of defence is that if a decision not to enter into a 50/50 arrangement is not reviewable under the ADJR Act, then neither is conduct for the purpose of the decision. I have already indicated that I am not, at present, prepared to rule in the Commissioner's favour on that.

73    In relation to the allegedly proposed garnishee notice, the Commissioner also submitted that it is not conduct for the purposes of s 6 because it is not procedural in nature. What Mr Quach seeks to impugn in ground 3 is still the substance of the proposed decision, not the procedure that has been adopted to arrive at it.

74    This submission relies on the exposition of the term 'conduct' in s 6 of the ADJR Act which Mason CJ set out in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 341-343. There, his Honour drew a distinction between reviewable decisions and conduct engaged in for the purpose of making such a decision. In s 6, 'conduct' refers to action taken, rather than a decision made. It is essentially procedural and not substantive in character. A challenge to conduct is an attack upon the process engaged in before the making of the decision. It looks to the way in which the decision making process has been conducted, rather than decisions made along the way.

75    So it is clear from Bond and subsequent authorities that in order to be conduct challengeable under s 6(1), the conduct needs to be procedural in nature, as distinct from the making of a decision: see e.g. New South Wales Aboriginal Land Council v Aboriginal and Torres Strait Islander Commission (1995) 59 FCR 369 at 379-382 (Hill J); and Electricity Supply Association of Australia Ltd v Australian Competition and Consumer Commission [2001] FCA 1296; (2001) 113 FCR 230 at [92]-[93] (Finn J) (ESAA v ACCC). But it does not necessarily follow that in all cases the conduct can only be challenged on the basis of some error or flaw in the procedure followed, as distinct from some error or flaw in the decision proposed to be made. After all, s 6(1)(j) (which Mr Quach invokes) provides the ground 'that the making of the proposed decision would be otherwise contrary to law'. In that case, at least, while there must be conduct within the meaning of s 6 if the section is to apply, an error identified in the proposed decision may still provide the basis for the challenge.

76    Thus in Bond at 342-343, Mason CJ said (emphasis added):

This view of the relationship between a 'decision' and 'conduct' is supported by an examination of the provisions of the A.D.(J.R.) Act. Section 6(1) provides for a direct challenge to conduct on procedural grounds only. The other grounds of challenge set out in the sub-section go to the invalidity of the proposed decision to which the conduct relates. Then, it is the proposed decision rather than the conduct which is challenged; s. 6 merely allows the challenge to take place before the making of the proposed decision. In other instances, conduct may only be impugned upon procedural grounds: see, e.g., s. 6(1)(a) and (b).

77    Where does this leave ground 3 of Mr Quach's application? It may not be a sufficient answer for the Commissioner to say that it is the proposed decision that is being challenged, as if that precludes the existence of conduct capable of coming within the terms of s 6(1). But it is still necessary for Mr Quach to establish that the conduct is conduct for the purpose of making the proposed decision.

78    In that respect, ESAA v ACCC is illuminating. There, complaint was made about threats that the ACCC had allegedly made to commence proceedings against ESAA or its members for contraventions of various provisions of the Trade Practices Act 1974 (Cth) if they published a particular view they held. ESAA sought to characterise this as conduct for the purpose of making a decision to commence proceedings. Finn J rejected that characterisation. At [93] his Honour held:

Though an indication that a decision may or will be made in the future, the making of threats cannot properly be characterised as a procedure engaged in 'for the purpose of making that decision'. It more closely approximates to the formation of an 'in principle' view (a) which is communicated to the person against whom a later decision might be taken and (b) which is designed to avert, if possible, the need for such a later decision. Moreover, while threats may serve some strategic purpose in the performance of the ACCC's functions, their making cannot on the evidence before me properly be said to be a procedure engaged in for the purpose of making (if such be necessary) a decision to initiate proceedings against ESAA and/or its members.

79    In my view, these observations apply to the conduct alleged here. The particulars to ground 3 refer (via the particulars to ground 1) to the letter of 27 June 2018 with the alleged direction that a request for a 50/50 arrangement would be refused unless the Commissioner determines that there is 'little or no risk' to the revenue. They complain about '[c]onditioning consideration of a request to enter into a "50/50 arrangement"' on satisfaction that there is 'little or no risk' to the revenue. They refer to the notice of proposed legal action and of proposed garnishment on 7 December 2018.

80    An indication in a letter that the Commissioner will not agree to a 50/50 arrangement unless he is satisfied that a certain level of risk is present is, at most, the expression of an in principle view. And even if the notice of intention to commence legal action could be described as an indication of a decision that will be made (rather than the making of a decision), it is not conduct engaged in for the purpose of making that decision. That approach is consistent with the following passage from Mason CJ's discussion of the distinction in Bond at 342:

Thus, conduct is essentially procedural and not substantive in character. Accordingly, s. 3(5) refers to two examples of conduct which are clearly of that class, namely, 'the taking of evidence or the holding of an inquiry or investigation'. It would be strange indeed if 'conduct' were to extend generally to unreviewable decisions which are in themselves no more than steps in the deliberative or reasoning process.

81    Holding an inquiry leading to a decision is conduct for the purpose of making the decision. Indicating in a preliminary way what the decision will be, is not. As counsel for the Commissioner put it, the purposive connection is absent. Counsel for Mr Quach submitted that when a decision-maker indicates that they are going to take a mandatorily irrelevant consideration into account, that is conduct preparatory to a decision. I do not accept that. It is, rather, a preliminary indication of one of the reasons for the decision.

82    I agree that Mr Quach has no reasonable prospect of successfully prosecuting ground 3. This applies in relation to both the alleged proposed decision to refuse to remit GIC and to garnish accounts and third party payments.

Conclusion

83    An order will be made for summary judgment for the Commissioner against Mr Quach in relation to ground 3. The application for summary judgment will otherwise be dismissed. I will hear the parties as to costs.

Associate:

Dated:    24 October 2019