Federal Court of Australia

Pratten v Commissioner of Taxation [2025] FCA 749

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for an extension of time to commence an appeal is dismissed.

2.    The applicant must pay the respondent’s costs of the application, to be assessed on a lump sum basis.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

SARAH C DERRINGTON J:

Introduction

1    By a notice of appeal from a Tribunal filed on 9 April 2025, Mr Timothy Charles Pratten seeks, pursuant to s 172(1) of the Administrative Review Tribunal Act 2024 (Cth) (ART Act), to appeal from a decision of the Administrative Review Tribunal (ART) made on 26 February 2025: Pratten and Commissioner of Taxation (Practice and Procedure) [2025] ARTA 161 (the decision).

2    It is uncontroversial that Mr Pratten requires an extension of time to commence an appeal, having filed his notice some 14 days outside the time prescribed by s 174(1) of the ART Act. The Commissioner of Taxation accepts, however, that the short delay is not a matter that would militate against the grant of the extension of time, nor that he would suffer any prejudice were an extension to be granted. The Commissioner nevertheless opposes the grant of the extension of time on the sole basis that the purported appeal is incompetent, on the ground that the decision is not “the decision of the Tribunal” within the meaning of s 172 of the ART Act and hence is not amenable to appeal.

Background

3    The proceeding before the ART stems from Mr Pratten’s application, made on 22 November 2011 (to the then Administrative Appeals Tribunal (AAT)), for review of a decision by the Commissioner, made on 27 September 2011, disallowing Mr Pratten’s objections to the Commissioner’s amended assessments and to the penalties imposed. The proceeding was adjourned by the AAT on 27 August 2013 because concurrent criminal proceedings were being pursued against Mr Pratten in the Supreme Court of New South Wales. When those proceedings were concluded, the AAT proceeding was “reactivated” in 2022.

4    As recorded in the Reasons for the decision (at [26]), on 27 August 2024, Mr Pratten applied to the AAT seeking rulings on two issues:

(1)    a request for further and better particulars from the Commissioner (particulars request); and

(2)    whether the Commissioner could refer to and rely on Mr Pratten’s conviction at the final hearing of his application for review (conviction issue).

5    On 24 September 2024, Mr Pratten applied to the AAT for the issuance of summonses to five people to give evidence, including at the final hearing (Reasons at [27]). An additional summons was sought by Mr Pratten on 17 October 2024 (Reasons at [29]) (summons issue).

6    On 13 December 2024, Mr Pratten applied to the ART, inter alia, for the summons issue to be referred to the ART’s Guidance and Appeals Panel (GAP) for determination (Reasons at [31]). That application was refused by the President of the ART on the basis that it did not raise any issue of significance to administrative decision-making and that, in any event, it related to “issues of practice and procedure” which “were already listed for an interlocutory hearing on 19 December 2024” (Reasons at [32]).

7    The decision dismissed each of Mr Pratten’s applications in relation to the conviction issue and the summons issue (Reasons at [92]). It does not appear that Mr Pratten pursued the particulars request at that hearing.

Is s 172(1) to be construed differently from s 44?

8    This is the first occasion on which the Court has had an opportunity to consider the effect of s 172(1) of the ART Act, which is contained in Part 7, Div 2, subdiv A – Appeals on questions of law. It provides:

172     Party may appeal

(1)    A party to a proceeding in the Tribunal may appeal to the Federal Court, on a question of law, from the decision of the Tribunal in the proceeding.

(Emphasis added.)

9    The predecessor to s 172(1) in the now repealed Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) was s 44. It provided:

44    Appeals to Federal Court of Australia from decisions of the Tribunal

    Appeal on question of law

(1)    A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.

(Emphasis added.)

10    As can be observed, s 172(1) amends the language of s 44(1) to make explicit that the right of appeal lies in respect of “the decision” in “the proceeding.” Mr Pratten denies that that is the effect of s 172(1), and submitted that it is not clear that it was, in fact, the drafters’ intention to signal that the phrase “the decision” means “the final decision in the proceeding.” Had that been so, Mr Pratten submits, it would have been possible for Parliament to say so expressly.

11    But the context in which the amendment was made is important. It was made notwithstanding the jurisprudence which had already settled the position that s 44(1) only conferred a right of appeal from the “effective decision or determination of the application for review”, despite the words “any decision” being used in that sub-section.

12    As Deane J explained in Director-General of Social Services v Chaney [1980] FCA 87; 3 ALD 161 at 181:

The conclusion which I have reached is that, subject to the qualifications mentioned below, an appeal under s 44(1) of the [AAT] Act lies only from a decision of the Tribunal which constitutes the effective decision or determination of the application for review. Ordinarily, such a decision will be the final decision formulated in accordance with the provisions of s 43 of the [AAT] Act.

13    In reaching that conclusion, Deane J had considered, but rejected, whether the use of the word “any” in s 44 tended to suggest that the Court should prefer a wider construction of the word “decision.” His Honour explained (at 179) that the use of the word “any” could be explained:

… both by the fact that the sub-section follows the specification in s 43(1) of a range of alternative ultimate decisions which may be given by the Tribunal and by the fact that it is possible that one proceeding before the Tribunal could involve the review of a number of connected decisions … each of which effectively disposed of a separate part of the proceedings.

14    In agreeing with Deane J, Fisher J said, at 183:

Under the [AAT] Act the statutory process is complete when the Tribunal either decides to refuse to review the decision of the Administrator or makes a decision in writing affirming, varying or setting aside the decision (s 43(1)). In my opinion, it is such a decision as aforementioned which the legislature has in mind in conferring on this court by s 44(1) a right to hear an appeal on a question of law ‘from any decision of the Tribunal in that proceeding’.

15    In Kishore v Tax Practitioners Board [2016] FCA 1328; 244 FCR 320 at [19], Robertson J explained that:

… the point of the decision in Chaney is to avoid judicial review by way of an appeal to this Court instanter and as of right from non-determinative steps, determinations or decisions of the Tribunal. This reflects the undesirability of fragmenting proceedings in the Tribunal by the making of applications to the Federal Court seeking to challenge intermediate directions, determinations or decisions of the Tribunal.

16    At [21], Robertson J listed the significant number of times Full Courts of this Court have approved and applied the principles in Chaney. It is unnecessary to restate those several authorities.

17    The principle in Chaney, and Robertson J’s explanation of it in Kishore, was adopted by a five-member Full Court in Chief of Navy v Angre [2016] FCAFC 171; 244 FCR 457 at [47] per Mortimer J, with whom Allsop CJ (at [2]), Griffiths J (at [5]), Perry J (at [90]) and Gleeson J (at [91]) agreed. The Full Court in that case was concerned with the construction of s 52(1) of the Defence Force Discipline Appeals Act 1955 (Cth), which provided that an appeal lay to the Federal Court “on a question of law involved in a decision of the [Defence Force Discipline Appeal] Tribunal.” Justice Mortimer held (at [63]) that the language of s 52(1) was “amenable to the construction given to the same word in s 44(1) of the AAT Act by a majority of the Full Court in Chaney.” In other words, the Full Court has already considered a redrafting of s 44(1), which uses a definite rather than indefinite article.

18    Were there any doubt about the effect of the revised wording in s 172(1), the Revised Explanatory Memorandum to the Administrative Review Tribunal Bill 2024 (Cth) at [1097] makes the position pellucid:

Subclause (1) is equivalent to subsection 44(1) of the AAT Act with one minor change. The phrase ‘the decision’ (as opposed to ‘any decision’) clarifies that it is generally the final decision in a proceeding that may be appealed, as held in Director-General of Social Services v Chaney (1980) 3 ALD 161. The effect of the provision is the same.

The Applicant’s contentions

19    In his written submissions, Mr Pratten contends that, when compared with the application for a stay in Chaney, the rulings in this case, although made in an interlocutory process, are different because they:

•    Are decisions of a final nature;

•    Are determinative of distinct questions of law and jurisdiction;

•    Are not temporary, pending nor subject to revision later in the proceedings;

•    Are not provisional or contingent on further orders.

20    Mr Pratten argues that the refusal to issue the summonses “irreversibly deprives the Applicant of the opportunity to compel the attendance of key witnesses” on a point of law for which he bears the onus of proof, and that the disallowance of his objection to the admissibility of the convictions “introduces ongoing procedural uncertainty,” such as to take these decisions outside the principle in Chaney. Mr Pratten relied on the decision of the Full Court in Commissioner of Taxation v Cancer and Bowel Research Association Inc [2013] FCAFC 140; 305 ALR 534 where, at [8], the Full Court said:

An appeal under s 44(1) requires that the disposition by the Tribunal be “the effective decision or determination of the application for review”. In the usual case an effective decision by the Tribunal will be reflected in the orders made under s 43, but, as was explained by Deane J in Chaney, a decision may come within s 44 where it is (a) that the interests of a person are not affected by a particular decision (see AAT Act s 44(2)) and (b) where it is of a part of a proceeding which can properly be divided into separate parts. In such cases the disposition by the Tribunal can be seen as deciding finally some aspect of a party’s entitlements and, therefore, as having the effect of finally deciding or determining an aspect of a proceeding. Its quality as a decision within the meaning of s 44 is that it ends the whole or a properly separable part of the matter before the Tribunal.

21    Neither of Mr Pratten’s arguments can be accepted. Both rulings are of themselves interlocutory in nature, not final. Neither of those decisions have the quality that the whole, or a properly separable part, of the matter has been decided by the Tribunal. The Full Court explained the test in Australia Bay Seafoods Pty Ltd v Northern Territory [2022] FCAFC 180; 295 FCR 443 at [70]:

The test for determining whether a judgment or order appealed from is final or interlocutory is whether the judgment or order, as made, finally determines the rights of the parties. The test depends on whether the legal, not the practical, effect of the judgment is final; the legal effect of a judgment is not final where it would be open to a party to bring a second application, even if it would be doomed to fail.

(Citations omitted.)

22    However unlikely success might be, nothing prevents Mr Pratten from re-agitating the summons issue nor the conviction issue before the ART: Bienstein v Bienstein [2003] HCA 7; 195 ALR 225 at [25]. It follows that, in the words of the Full Court in Australia Bay Seafoods, the legal effect of the decision was not final.

23    As to the summons issue, it is beyond argument that a decision whether or not to issue a summons is one of an interlocutory or procedural nature and not a decision from which an appeal lies under s 44(1) (and thus its successor): Yao v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 18 at [19]; Phillips v Inspector-General in Bankruptcy [2011] FCA 612; 121 ALD 562 at [55]; Gadzikwa v Comcare [2020] FCA 1560 at [51]-[52], [57]. The decisions in Phillips and Gadzikwa, to which reference was made in Mr Pratten’s submissions, are not materially different from the circumstances of this case. The principle expressed in those cases does not change depending on which party bears the onus of proof in relation to a particular issue before a Tribunal.

24    As to the conviction issue, a submission that a challenge to a ruling on evidence can be described as a “decision” within the meaning of s 44(1), as was said by Mortimer J in Chief of Navy at [58], “begs the question of construction with which Chaney is concerned.” In any event, similarly to the reasoning of Allsop CJ in Chief of Navy at [3], the relief sought by Mr Pratten’s application in relation to the conviction issue is hypothetical. There is no certainty whatsoever as to the relevance of, or the weight to be given to, the fact of his conviction at the ultimate hearing.

25    In any event, no “final” ruling was made with respect to the conviction issue. Nor is there any merit to Mr Pratten's submission that he has been deprived of the opportunity to prepare his case, and is somehow expected to appear at the final hearing without knowing what use the Commissioner will make of the fact of his conviction. The ART reserved Mr Pratten’s objection to the Commissioner’s reliance on the conviction to the substantive hearing on the basis that (Reasons at [90]):

The Tribunal is not in a position at this stage of the proceedings to give a ruling as to what weight (if any) is to be given to the Conviction. That is a matter that can only be properly evaluated and determined at the hearing once the evidence and submissions in this proceeding are placed before the Tribunal. That is because, amongst other things, the Tribunal will have to decide whether the matters in issue in the Part IVC proceedings are so closely related to the matters that were in issue in the criminal proceedings, as to be relevant and of evidentiary weight in these proceedings.

(Emphasis added.)

26    Not only has the Tribunal signalled to Mr Pratten what likely use might be made of the fact of his conviction, the Tribunal has also signalled that there will be evidence and submissions available to Mr Pratten, no doubt prior to the hearing in the usual way submissions are exchanged, such that Mr Pratten will not be taken by surprise as to the use that the conviction might be put at the final hearing.

Conclusion

27    In this case, on a proper construction of s 172(1) of the ART Act, an appeal on a question of law would lie from the ART’s ultimate decision on its review of the Commissioner’s disallowance of Mr Pratten’s objections to his amended assessments and penalties. Quite evidently, that is not the decision from which Mr Pratten seeks to appeal at this point in time. That decision has not yet been made.

28    Mr Pratten has not identified any justifiable basis in the present proceedings to permit the fragmentation of the proceedings before the Tribunal through judicial review.

29    The appeal which Mr Pratten wishes to prosecute is not competent. It is therefore futile to grant him an extension of time by which to commence his proposed appeal. The application for an extension of time must be dismissed with costs, to be assessed on a lump sum basis.

Associate:

Dated:    8 July 2025