FEDERAL COURT OF AUSTRALIA

Rizkallah v Tax Practitioners Board [2020] FCA 431

ORDERS

THE COURT ORDERS THAT:

1.    The originating application be dismissed.

2.    No order as to costs.

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

REASONS FOR JUDGMENT

(Revised from the Transcript)

GRIFFITHS J:

1    This matter came before me today. It involves proceedings which have been commenced in this Court for judicial review of decisions by the respondent made on 5 December 2019 and notified to each applicant on 17 December 2019. Relief is sought under both the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) and also under s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act). The subject of the proceedings is decisions of the respondent, the Tax Practitioners Board, terminating the registration as a tax agent of both the first and second applicants. The proceedings in this Court were commenced by originating application dated 6 February 2020. The sole ground of judicial review is that a breach of the rules of natural justice occurred in connection with the making of the decisions, in that the applicants were not informed of the fact that the respondent had before it information concerning a previous case relating to the first applicant before it made the decisions which are now challenged.

2    An unusual feature is that the applicants have also commenced parallel proceedings in the Administrative Appeals Tribunal (AAT) in which they seek a review of the same decisions. That proceeding was commenced on 13 January 2020, i.e. shortly before the proceedings in this Court. I raised with the parties today why the proceeding in the Federal Court should be progressing in circumstances where there is on foot a proceeding in the AAT. That proceeding offers a full merits review and the capacity to overcome any alleged denial of procedural fairness having regard to the nature of the hearing which would be afforded to the parties in that case.

3    I am aware that on 15 January 2020 a Deputy President of the AAT stayed the implementation of the respondent’s decisions pending the outcome of the proceedings in that Tribunal.

4    There is under both the ADJR Act and s 39B of the Judiciary Act a discretion in the Court to withhold relief where there is available an adequate alternative remedy. That power is expressly referred to in s 10(2)(b)(ii) of the ADJR Act and there is a similar discretion vested in the Court in respect of its jurisdiction under s 39B of the Judiciary Act.

5    As Davies J noted in Bragg v Secretary, Department of Employment, Education and Training [1995] FCA 372; 59 FCR 31 at page 34:

It has been said in a number of reported cases that the burden lies upon a respondent to show that the Court should not exercise the jurisdiction conferred upon it.

6    His Honour added, though, that:

Nevertheless, the general practice of the Court is not to consider in the first instance a dispute for the resolution of which a satisfactory administrative remedy has been provided… This Court is too busy and its processes are too costly for it generally to be appropriate for an applicant to come to the Court when there is an informal and expeditious administrative tribunal established to resolve the dispute.

7    His Honour held in that case that it was a clear that there was an administrative remedy available to the applicant there in the form of a remedy under the Public Service Act 1922 (Cth), which provided a full merits review, and that the Court should not proceed to hear a determination in which an issue of natural justice was raised together with other judicial review grounds.

8    I consider that the position is the same here. The respondent has embraced what I have put to Mr Cashion SC, who appeared for the applicant, that there is a plain overlap in the proceedings. I am not satisfied that the narrowness of the natural justice point of itself is sufficient for the Court not to act as I have indicated I am minded to act, nor am I persuaded by the argument that if the judicial review point relating to natural justice is resolved in favour of the applicant it will save the parties and the AAT resources and costs. I need not repeat what Davies J has said about the importance of ensuring that the resources of this Court are also allocated efficiently and effectively.

9    For all these reasons, and noting that Mr O’Mahoney, who appeared for the Tax Practitioners Board, said that the Board would not take any point regarding an extension of time in the event that it proves necessary down the track for the judicial review case to recommence, I believe that the appropriate course is to dismiss the originating application. I also take into account that the Board will not take any point about time in the event that it proves necessary down the track for proceedings to be initiated afresh in this Court.

10    After hearing argument, I consider that the appropriate order is that there be no order as to costs.

Associate:

Dated:    2 April 2020