Federal Court of Australia

Clifford v Tax Practitioners Board [2023] FCA 1256

ORDERS

THE COURT ORDERS THAT:

Interlocutory application

1.    The interlocutory application for a stay be dismissed.

Timetable leading to hearing of appeal

2.    The applicant file and serve an appeal book comprising the material before the Tribunal on the hearing of the review, the reasons of the Tribunal, the Tribunal’s decision and the notice of appeal by close of business on 31 August 2023.

3.    In the event of disagreement between the parties as to the contents of the appeal book, the contents of that book be settled by a Registrar.

4.    The applicant file and serve an outline of submissions in respect of the appeal of not more than 10 pages by 4pm on 22 September 2023.

5.    The respondent file and serve an outline of submissions in respect of the appeal of not more than 10 pages by 4pm on 9 October 2023.

6.    The appeal be listed for hearing on the basis of an estimate of half-a-day on a date after 12 October 2023, to be fixed by the docket judge after consultation with the parties.

Transfer to Victorian District Registry

7.    The proceeding be transferred to the Victorian District Registry of the Court.

Liberty to apply and Costs

8.    There be liberty to apply.

9.    Costs be reserved.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    On 14 July 2023, by a decision made in Brisbane for reasons published in writing that day, the Administrative Appeals Tribunal (Tribunal) decided that a decision of the respondent Tax Practitioners Board (Board) to terminate the registration as a tax agent of Ms Jennifer Clifford (Ms Clifford) be affirmed subject to the following, namely:

(a)    the termination of her registration take effect one calendar month from the date of publication (and thereby notification) of the Tribunal’s decision; and

(b)    the decision prohibiting Ms Clifford from applying for registration as a tax agent be varied to 18 months commencing on the date that the Tribunal’s decision to terminate her registration takes effect.

2    Immediately prior to the Tribunal’s decision, and as the Tribunal recites at [3] of its reasons, there was in place on and from 29 March 2023 a stay of the decision of the Board under review, pending the hearing and determination of Ms Clifford’s review application. That stay was necessarily one as to which the power to grant reposed in s 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).

3    On 11 August 2023, Ms Clifford lodged, as she had to, in the Queensland District Registry of the Court, a notice of appeal by which she instituted an appeal against the Tribunal’s decision under s 44 of the AAT Act.

4    On 14 August 2023, Ms Clifford filed an interlocutory application by which she sought the following orders:

1.    Until the hearing and final determination of this proceeding, each of:

(a)    the decision of the Administrative Appeals Tribunal of 14 July 2023 in proceeding 2022/7220 (Jennifer Clifford v Tax Practitioners Board); and

(b)    the decisions of the Respondent made 9 August 2022 to terminate the registration of the Applicant as a tax agent and that the Applicant may not apply for registration under the Tax Agent Services Act 2009 (Cth) for a period of two years,

be stayed.

5    The proceeding has come on before me as duty judge. Upon the hearing this morning, I was helpfully referred by Mr A Cunynghame of counsel to s 43(5C) of the AAT Act, which provides:

43    Tribunal’s decision on review

…

(5C)    Despite subsections (5A) and (5B), if:

(a)    the Tribunal has made an order under subsection 41(2) staying the operation or implementation of the decision under review; and

(b)    the order was in force immediately before the decision given by the Tribunal on the review;

then, unless the Tribunal, the Federal Court of Australia or the Federal Circuit and Family Court of Australia (Division 2) otherwise orders, the operation or implementation of the Tribunal's decision is stayed until:

(c)    subject to paragraph (d), the end of the period within which a party to the proceeding before the Tribunal may appeal from the decision to the Federal Court of Australia under subsection 44(1) (including any further time for bringing the appeal that is allowed by the Federal Court before the end of that period); or

(d)    if such an appeal is brought--the appeal is determined.

6    The Board had, shortly prior to the hearing this morning, promoted, along with those acting for Ms Clifford, by consent, orders which would have provided for a later hearing of the interlocutory application. However, upon being taken to s 43(5C), I raised, first with Mr Cunynghame for the Board and then with Mr Morgan of counsel for Ms Clifford, whether, in light of the language employed in that subsection, the interlocutory application was redundant. Upon reflection, Mr Cunynghame submitted that it was. Mr Morgan was, with respect, understandably cautious, wishing to preserve the subject matter of the appeal.

7    However, upon exploring the elements of s 43(5C), it does seem to me that there is no work for the orders proposed in the interlocutory injunction to do. A starting premise is that the decision of the Board of 9 August 2022 has been wholly replaced by the Tribunal’s decision of 14 July 2023. I say that because the very nature of the jurisdiction conferred on the Tribunal is to stand in the shoes of the original decision-maker and to confirm, vary or set aside upon a complete review afresh on the merits of the decision under review.

8    Here, there has not been a complete replication of the decision under review, and, in any event, even if there were, it would be the Tribunal’s affirmation of that earlier decision that would become the operative administrative decision. As it is, the Tribunal has, as indicated, affirmed the decision subject to particular variations. Thus, as to so much of the interlocutory application as seeks to stay the Board’s original decision, it is unnecessary because that decision has been overtaken completely by the Tribunal’s decision.

9    As to the stay of the Tribunal’s decision, and working through the elements of s 43(5C) of the AAT Act, paragraph (a) of that subsection is satisfied, because the Tribunal did make an order under s 41(2) staying the operation or implementation of the Board’s decision. Paragraph (b) is satisfied, because that stay order, which was expressed to run until the determination of the review application, was in force immediately before the decision given by the Tribunal on the review. The Board has not, at least at present, sought an order to the contrary as to a stay; neither has the Tribunal made any order revoking the stay.

10    In those circumstances, and given that an appeal has been brought by the filing of the notice of appeal, the effect of s 43(5C) is that the operation or implementation of the Tribunal’s decision of 16 July 2023 is stayed until the present appeal is determined. That being so, there is no work at all to be done, even were the interlocutory application to be successful. The work has either been done by the overtaking of the Board’s decision by that of the Tribunal or for the reasons given by the operation in the circumstances of s 43(5C).

11    For these reasons, I would dismiss the interlocutory application.

Transfer of Proceedings

12    As to the transfer order (O 7), I was informed that Ms Clifford resides in and practices in Victoria. Her solicitor and counsel have their principal place of practice in Victoria. So too does counsel and the solicitor for the Board. The only reason which dictated the filing of the notice of appeal in the Queensland District Registry was a requirement in the rules to file the notice of appeal in the place where the Tribunal’s decision was pronounced. I was informed that the Tribunal had conducted the hearing by audio visual means, but that the decision, as is apparent on its face, was published in Brisbane. That it was so published is no particular surprise, as the deputy president constituting the Tribunal is based in Brisbane.

13    The result then is an exercise by the Tribunal of a national jurisdiction for reasons that suited the Tribunal by audio visual means receiving evidence and submissions from a person based in Victoria. The only connection with Queensland is a wholly incidental one. The submission of the parties that the proceeding is apt for transfer makes obvious sense to me in the circumstances given. It is for that reason that I have made the transfer order.

Associate:    

Dated:    18 October 2023