Federal Court of Australia

Chambers v Commissioner of Taxation [2022] FCA 1163

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The applicant pay the respondent’s costs of the appeal.

3.    The parties have liberty to apply in respect of costs.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    The applicant appeals from a decision of the Administrative Appeals Tribunal (the Tribunal) dismissing his application for review of a “decision” (the Imputed Decision) made by the Commissioner of Taxation (the Commissioner) on 15 May 2020. The applicant seeks, in the alternative, review of the Imputed Decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act).

2    The applicant contributed to the Coles Myer Managers Superannuation Fund (CMMSF) before moving to the United Kingdom in 1993, where he resided until 2017. The CMMSF ceased operating as a superannuation fund from 30 June 2002 and all accounts were transferred to the Mercer Super Trust. A CMMSF benefit statement dated 30 June 1991 indicates that the applicant had a defined benefit interest, with a total and permanent disability (TPD) benefit of $150,960. However, Mercer Super Trust has informed the applicant that it does not hold his superannuation fund. The applicant has not been able to otherwise locate his superannuation fund.

3    On 11 December 2017, the applicant lodged a “Searching for lost and unclaimed super” form with the Australian Taxation Office (ATO) seeking payment of unclaimed superannuation paid into the CMMSF fund. On 22 March 2018, the ATO responded, in effect, that no such unclaimed superannuation had been located.

4    The applicant then lodged an application with the ATO on 24 October 2019 seeking payment of the TPD benefit associated with his CMMSF superannuation policy. On 6 November 2019, the Commissioner responded saying, “We have found that there is no credit on your account”.

5    On 18 November 2019, the applicant sent a letter to the Commissioner seeking unclaimed superannuation from the Retail Employees Superannuation Trust. On 11 March 2020, the Commissioner responded saying that no unclaimed superannuation was held by the ATO for the applicant.

6    On 11 May 2020, the Office of the Inspector General of Taxation and Taxation Ombudsman (IGTO) advised the Commissioner that the applicant had lodged a complaint concerning his unclaimed superannuation and asked that an officer contact the IGTO to discuss ways to resolve the complaint. The applicant’s complaint was to the effect that he believed that the ATO was responsible for locating his superannuation fund and obtaining the monies in that fund. He believed that his TPD benefit had been transferred to the ATO. He said that the ATO had not provided any evidence of contacting the CMMSF on his behalf to trace the missing superannuation, when his expectation was that it would do so.

7    On 15 May 2020, the Commissioner wrote to the applicant stating that the ATO had reviewed his application to claim any superannuation that the ATO may hold for him. The letter stated that, based on the information the applicant had provided, there were no unclaimed funds held for him. The letter stated that if the applicant was unhappy with the way his complaint had been managed he could contact the Inspector General of Taxation.

8    The Commissioner’s letter of 15 May 2020 is asserted by the applicant to contain the Imputed Decision. On 14 September 2021, the applicant applied to the Tribunal for review of the Imputed Decision. The applicant’s complaint was that the ATO had failed to adequately assist him to locate his CMMSF superannuation fund and had refused to pay the claim for TPD.

9    The Tribunal’s decision was published on 9 November 2021. The applicant had submitted that the Tribunal had jurisdiction to review the Imputed Decision by reason of s 20P of the Superannuation (Unclaimed Money and Lost Members) Act 1999 (Cth) (the Superannuation Unclaimed Money Act), which provides for circumstances where a person dissatisfied with particular notices given, or a decision made, by the Commissioner can object against the notice or decision in the manner set out in Pt IVC of the Taxation Administration Act 1953 (Cth). Part IVC then provides for review of certain decisions by the Tribunal. The Commissioner had submitted in response that the letter dated 15 May 2020 was not a notice or decision in respect of which an objection could be made, and that no objection decision capable of review by the Tribunal under s 14ZZ of the Tax Administration Act had been made.

10    The Tribunal noted that at a hearing on 9 November 2021, the applicant did not dispute that the letter of 15 May 2020 was not a reviewable decision and had accepted that the issue of jurisdiction no longer needed to be considered. The applicant instead submitted that the Tribunal should remit the matter to the respondent pursuant to s 42D of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) with a direction that the Commissioner provide further particulars in accordance with s 28(5) of the AAT Act. The applicant also submitted that if the Tribunal was unable to do that, the matter should be referred to the Federal Court.

11    The Tribunal observed that it was s 25 of the AAT Act which conferred jurisdiction on the Tribunal to review certain decisions. That section provides:

25    Tribunal may review certain decisions

Enactment may provide for applications for review of decisions

(1)    An enactment may provide that applications may be made to the Tribunal:

(a)    for review of decisions made in the exercise of powers conferred by that enactment; or

(b)    for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.

…

12    The Tribunal found that the applicant’s application did not relate to a decision made under an enactment which provides for review of that decision by the Tribunal. The Tribunal, having found that it did not have jurisdiction to hear the application, found that it did not have the power to remit the matter to the Commissioner for reconsideration, or require that the Commissioner provide further reasons. The Tribunal considered that the powers in s 28 and s 42D of the AAT Act can only be exercised in relation to a decision in respect of which an application may be made to the Tribunal for review.

13    Section 42A(4) of the AAT Act, provides that the Tribunal, “may dismiss an application without proceeding to review the decision if the Tribunal is satisfied that the decision is not reviewable by the Tribunal”. The Tribunal was not satisfied that the Imputed Decision was reviewable by the Tribunal and accordingly dismissed the application.

14    The applicant was self-represented before the Tribunal and in his appeal to this Court. In his Notice of Appeal, he seeks orders: varying the decision of the Tribunal; permitting review by the Tribunal; and requiring that the Commissioner better particularise his decision and provide a decision in a form that would allow review by the Tribunal. In the alternative, the applicant seeks review of the decision pursuant to the ADJR Act. The ground relied upon by the applicant seems to assert that the Tribunal does have the power to review the Imputed Decision made by the Commissioner.

15    The applicant filed several interlocutory applications. These applications were heard immediately prior to the hearing of the substantive appeal.

16    The first interlocutory application seeks an order that the Attorney-General provide legal or financial assistance to the applicant in respect of the appeal. Section 69(1) of the AAT Act provides that a party to a proceeding before the Tribunal may apply to the Attorney-General for provision of assistance in respect of the proceeding. Section 69(2) provides that the Attorney-General may, if satisfied that it would involve hardship to the person to refuse the application, and it is reasonable that the application should be granted, authorise the provision of legal or financial assistance.

17    It is not evident that the applicant has made any application for assistance to the Attorney-General. The jurisdiction of the Court is limited to deciding “matters”; and for there to be a “matter”, there must be a justiciable controversy: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 523–524 (Gleeson CJ and McHugh J), 585 (Kirby J). There is no controversy concerning the provision of legal or financial assistance by the Attorney-General and the application for such assistance has an insufficient connection with the subject matter for determination. It is not within the jurisdiction of the Court to order the Attorney-General to provide assistance to the applicant pursuant to s 69(2) of the AAT Act in these circumstances.

18    The applicant’s second interlocutory application seeks summary judgment or default judgment on the basis of the Commissioner’s alleged non-compliance with an order of the Court made on 9 March 2022 requiring the respondent to file and serve “any affidavits” by 4.30 pm on 19 April 2022. The Commissioner did not file any affidavits. The applicant contends that the respondent is in breach of the order by failing to file any affidavits. However, the applicant’s submission misconstrues the order. The order did not require the Commissioner to file affidavits, but required only that any affidavits the Commissioner wished to rely on be filed by the required date. Having apparently decided not to file any affidavits, the Commissioner was not in default of the order. There is no basis for the grant of summary judgment or default judgment.

19    The applicant’s third interlocutory application seeks, in effect, final relief. That relief includes a declaration that the Tribunal made an error of law when it refused to remit the matter to the Commissioner to provide further particulars and internal review of the decision. This application is best dealt with as part of the consideration of the applicant’s substantive appeal.

20    The applicant’s fourth interlocutory application, raised orally at the hearing, seeks leave to amend the Notice of Appeal to raise a constitutional issue. The applicant has served a Notice of a Constitutional Matter under s 78B of the Judiciary Act 1903 (Cth). The Notice asserts that the Superannuation Unclaimed Money Act amounts to an appropriation by the Commonwealth of private monies on “unjust terms”, and raises other complaints about its validity. The applicant seeks the transfer of funds administered by the Commissioner to a new body.

21    In Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (1999) 95 FCR 292 at 297, French J held at [14]:

Section 78B does not impose on the Court a duty not to proceed pending the issue of a notice no matter how trivial, unarguable or concluded the constitutional point may be. If the asserted constitutional point is frivolous or vexatious or raised as an abuse of process, it will not attach to the matter in which it is raised the character of a matter arising under the Constitution or involving its interpretation.

(Citations omitted; see also Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd (No 3) (2010) 184 FCR 516 at [13]-[14]; Chapel of Angels Pty Ltd v Hennessy [2021] FCA 875 at [34]-[37]).

22    In his Notice of Appeal, the applicant asserts that the Tribunal erred in finding that it had no authority to review the Imputed Decision. The allegation raised by the applicant in his Notice of a Constitutional Matter to the effect that the Commissioner has no authority to hold unclaimed superannuation is not relevant to, and does not affect, that issue. Even if the applicant’s contention were correct, the outcome would have been the same. The applicant should be refused leave to amend to raise his constitutional point.

23    The respondent filed an interlocutory application after judgment had been reserved seeking to rely upon a further affidavit annexing correspondence with the applicant. The applicant opposes the application. It is unnecessary for me to have regard to the further affidavit to decide the matter. I will dismiss the respondent’s interlocutory application.

24    Turning to the appeal itself, the issue is whether the Tribunal made any error of law in finding that the Imputed Decision was not reviewable by the Tribunal.

25    The Tribunal considered the following passage from the decision in Re Staats and National Archives of Australia (2009) 50 AAR 147; [2009] AATA 598 at [12]:

It is clear from the wording of section 25 of the Administrative Appeals Tribunal Act that the Tribunal can only review a decision if it is given the jurisdiction to do so by a specific provision of another enactment. It is essential to look very carefully at the provisions of the enactment said to give rise to the jurisdiction to review to make sure that the jurisdiction extends to the particular decision in respect of which a review is sought.

26    The applicant contends that s 20P of the Superannuation Unclaimed Money Act confers jurisdiction on the Tribunal to review the Imputed Decision. That section provides, relevantly:

Review of Commissioner’s notices and decisions

A person who is dissatisfied with a notice given, or a decision made, by the Commissioner in the administration of Division 2, 4 or 5 of this Part may object against the notice or decision in the manner set out in Part IVC of the Taxation Administration Act 1953.

…

(Example omitted.)

27    Part IVC of the Taxation Administration Act provides for the making of “taxation objections”. Division 4 has the heading, “AAT review of objection decisions and extension of time refusal decisions”. Section 14ZZA provides that the AAT Act (subject to modifications set out in Div 4) applies in relation to such decisions.

28    To attract review by the AAT through the mechanism of s 20P of the Superannuation Unclaimed Money Act, a notice of decision must fall within Divs 2, 3 or 4 of Part 3A. Section 20C, which is within Div 2, provides that the Commissioner must give a superannuation provider for a fund a written notice if the Commissioner is satisfied that there are reasonable grounds for believing that a particular person has a superannuation interest in the fund and a person is a “former temporary resident”. The applicant is not a “former temporary resident” within the definition of that phrase in s 20AA because, relevantly, he is an Australian citizen. There are no other provisions of Divs 2, 3 or 4 of Part 3A that may be relevant.

29    Accordingly, it cannot be accepted that s 20P of the Superannuation Unclaimed Money Act operates to make the Imputed Decision reviewable by the Tribunal under s 25 of the AAT Act. There was no error in the Tribunal’s decision that it was not authorised to review any “decision” of the Commissioner contained in his letter of 15 May 2020.

30    The applicant contends that the Tribunal should have remitted the Imputed Decision to the Commissioner with a direction that the Commissioner provide better particulars in accordance with s 28(5) of the AAT Act and internally review the decision. Section 42D(1) of the AAT Act provides that:

At any stage of a proceeding for review of a decision … the Tribunal may remit the decision to the person who made it for reconsideration of the decision by the person.

31    Section 42D(1) operates upon a premise that the Tribunal has jurisdiction to review the relevant decision under an enactment. In circumstances where it has no such jurisdiction, the power under s 42D(1) to remit a decision for reconsideration is not engaged. There was no error by the Tribunal in refusing to remit the matter.

32    The applicant raises an argument to the effect that the Tribunal’s decision should be set aside because of apprehended bias on the part of the member who heard the application and the then President of the AAT (the President). The applicant alleges that the apprehended bias arises from the President having previously been a partner in a firm of solicitors which acted for a school authority which was a defendant in a representative proceeding, and the applicant having been a member of the class represented in the proceeding. The applicant also asserts that the apprehended bias arises from the President having served on a church authority associated with the relevant school.

33    The next step in the applicant’s apprehended bias argument is that he had asked the Tribunal member to refer a question of law in the proceeding to the Federal Court of Australia. Section 45(1) of the AAT Act provides:

45    Reference of questions of law to Federal Court of Australia

(1)    The Tribunal may, with the agreement of the President, refer a question of law arising in a proceeding before the Tribunal to the Federal Court of Australia for decision. The Tribunal may do so on its own initiative or at the request of a party to the proceeding.

Note:    This Part does not apply to certain migration proceedings (see section 43C).

34    The Tribunal member declined to refer any question of law to the Federal Court. The applicant argues that in deciding not to make the referral, the Tribunal member must have consulted the President and is tainted with apprehended bias as a result of the President’s connection with the applicant.

35    However, under s 45(1), it is only necessary for the Tribunal to obtain the agreement of the President to refer a question of law to the Federal Court. Neither the President’s agreement, nor any consultation with the President, is required when the Tribunal declines to make a referral. It cannot be inferred that the President had any role in the refusal of the Tribunal member to make a referral. To the contrary, the transcript shows that during the hearing the Tribunal member expressly told the applicant that the matter would not be referred to the Federal Court because the Tribunal had no authority to do so in circumstances where the Imputed Decision was not reviewable by the Tribunal. Further, the President’s alleged connection with the applicant is so remote that it cannot be accepted that a fair-minded lay observer might reasonably apprehend that the President might not bring an impartial mind to the resolution of any question required to be decided: cf Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6]; Charisteas v Charisteas (2021) 393 ALR 289; [2021] HCA 29 at [11]-[12]. The allegation of apprehend bias must be rejected.

36    The applicant makes an alternative claim for review under the ADJR Act. However, the Imputed Decision of 15 May 2021 was not a, “decision to which this Act applies”, within s 5(1) of the ADJR Act, as it was not a “decision … under an enactment” within s 3(1). That is, at least because the Imputed Decision had no effect on the applicant’s legal rights, the letter merely advising the applicant that the ATO had reviewed his application to claim any superannuation that the ATO may hold for him and indicating that no relevant unclaimed funds had been located: cf Griffith University v Tang (2005) 221 CLR 99 at [89]. Even if the Imputed Decision were reviewable under the ADJR Act, the applicant has not demonstrated any legal error.

37    The appeal must be dismissed.

38    I will order that the applicant pay the Commissioner’s costs of the appeal. Noting that the Commissioner has asked to be heard as to costs for reasons that have not been explained, I will give the parties liberty to apply in respect of that issue.

Associate:    

Dated:    30 September 2022