Federal Court of Australia

RPPL Pty Ltd v Commissioner of Taxation [2025] FCA 1126

ORDERS

THE COURT ORDERS THAT:

1.    The name of the applicant be changed to ‘RPPL Pty Ltd’.

2.    The interlocutory application filed on 14 August 2025 otherwise be dismissed.

3.    Pursuant to r 33.30(5) of the Federal Court Rules 2011 (Cth), the appeal be dismissed.

4.    Subject to orders 5 to 7, the applicant pay the first respondent’s costs as agreed or assessed.

5.    The first respondent have leave to apply for costs to be assessed on an indemnity basis, such leave if exercised, is to be exercised within 7 days of the making of these orders by filing written submissions (limited to 2 pages).

6.    If leave to apply is exercised in accordance with order 5, the applicant is to file any written submissions in response (limited to 2 pages) within 14 days of the making of these orders.

7.    If leave to apply is exercised in accordance with order 5, costs be determined on the papers in chambers.

8.    The parties provide a copy of these orders and the reasons for judgment to the presiding member of the Administrative Review Tribunal in proceeding number 2023/6663 forthwith.

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

REASONS FOR JUDGMENT

CHEESEMAN J:

INTRODUCTION

1    These reasons concern two contested interlocutory applications in relation to an appeal of a decision of the Administrative Review Tribunal which purports to be commenced pursuant to s 172 (1) of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) in the original jurisdiction of this Court. The procedural manoeuvres in this Court and in the Tribunal have been convoluted. Regrettably it is necessary to expose them in some detail in order to determine the present applications.

2    In the Tribunal proceeding, which is pending before the Tribunal, the applicant seeks to review the objection decision made by the first respondent, the Commissioner of Taxation, by which the Commissioner disallowed the applicant’s objection to default assessments for fringe benefits tax made against the applicant in respect of a 2010 Ferrari California vehicle purchased by the applicant and used by the applicant’s director as his work vehicle. The decision which the applicant seeks to challenge in this Court is procedural. It concerns the Tribunal’s exercise of its discretion to refuse leave to the applicant to amend its grounds of review in the Tribunal by enlarging the grounds beyond those relied upon by the applicant at the time of the relevant objection decisions.

3    The notice of appeal names the Tribunal as the second respondent. It is not clear that the Tribunal has been served. It appears that the Tribunal had not been as at 29 July 2025. In any event, the Tribunal has not engaged with the proceeding to date, and has not filed a submitting appearance save as to costs. Given that the originating process filed by the applicant was a “Notice of appeal from a tribunal” (Form 75) the Tribunal does not appear to be a necessary party to the appeal. Had it been necessary to do so, I would have made an order removing the Tribunal as a party to this proceeding.

4    A central issue which arises is whether the appeal is competent. That issue is the subject of the Commissioner’s interlocutory application dated 28 July 2025. If the appeal is not competent, it will be dismissed pursuant to r 33.30(5) of the Federal Court Rules 2011 (Cth).

5    The second issue which arises is whether the Tribunal proceeding should be stayed pending the determination of the present proceeding. The applicant’s interlocutory application was filed on 14 August 2025. The Tribunal proceeding is listed for final hearing for three days commencing on Tuesday, 14 October 2025. The applicant, Rob Prouse Pty Ltd, now known as RPPL Pty Ltd, seeks an order from this Court staying the proceeding in the Tribunal. The stay application is a further manifestation of the applicant’s repeated attempts to postpone the final hearing of the Tribunal proceeding. The latest attempt is a recusal application that is pending before the Tribunal, which is set down for hearing on 18 September 2025, relatively shortly before the final hearing is scheduled to take place.

6    The present interlocutory applications were listed for hearing on 9 September 2025 to enable the parties to know the position in relation to the present applications in sufficient time in advance of the Tribunal hearing scheduled for October 2025.

7    In the applicant’s interlocutory application in this Court, the applicant also sought relief directed to amending and enlarging its appeal in this Court in a number of ways that were not foreshadowed at the case management hearing on 31 July 2025 when orders were made to bring forward the notice of objection of competency for hearing on 9 September 2025.

8    The first way in which the applicant sought to expand the scope of the present appeal was by seeking leave to expand the scope of its existing supplementary notice of appeal by filing an amended supplementary notice of appeal which included an appeal in relation to a further decision of the Tribunal made on 29 July 2025. The decision made by the Tribunal on 29 July 2025 was also procedural. It was a refusal by the Tribunal to exercise its discretion to grant leave to the applicant to amend its grounds of review before the Tribunal by enlarging the grounds beyond those relied upon by the applicant before the Commissioner. This later decision of the Tribunal was made in response to a further application by the applicant to the Tribunal to amend the grounds of its review in the Tribunal.

9    The second way in which the applicant sought to expand its supplementary notice of appeal was to in effect prop up its appeal by adding a claim for judicial review. The applicant sought to do this by obtaining leave to “append” a document described as a “Combined originating application for judicial review – s 39B Judiciary Act 1903 (Cth) and Administrative Decisions (Judicial Review) Act 1977 (Cth)” to its “originating process” in this proceeding or alternatively, by obtaining an order that the Combined originating application for judicial review stand as a separate originating process in this proceeding. The reference to appending the Combined originating application for judicial review to the “originating process” is a reference to the “Notice of appeal from a tribunal” (Form 75) filed on 5 May 2025, as amended by the supplementary notice of appeal in its present iteration.

10    In the applicant’s interlocutory application, the applicant also sought relief injuncting the Tribunal from conducting the final hearing set to be heard in October 2025 relying on s 39B of the Judiciary Act 1903 (Cth) and further relying on s 15(1)(b) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) as an additional basis for its application for a stay of the Tribunal proceeding.

11    The expansive approach taken by the applicant excited another round of correspondence between the parties and I acceded to a request to list the proceeding for case management on Friday, 5 September 2025 to address the fresh disputes that had arisen between the parties, ahead of the hearing of the notice of objection to competency and stay application on Tuesday, 9 September 2025.

12    The case management hearing did not proceed because by email to my Chambers on 4 September 2025, sent with the consent of the Commissioner, the applicant informed the Court that at the hearing on 9 September 2025 to determine the competency of the appeal and the application for a stay the applicant would not press its claim for interlocutory orders by which it sought to append the Combined originating application for judicial review to a proposed amended supplementary notice of appeal and to add an additional appeal from another procedural decision of the Tribunal. The applicant further communicated that “if the respondent’s objection to competency is dismissed, the applicant would seek to have that part of the application heard on a later date”.

13    At the hearing on 9 September 2025, I informed the parties that in the event that the appeal as framed by the supplementary notice of appeal in its present form was found to be incompetent then it would follow that the appeal would be dismissed pursuant to r 33.30(5) of the Rules. Further, that if I was satisfied that the appeal was not competent then the application for a stay of the Tribunal proceeding would be dismissed, there being no extant proceeding in this Court by reference to which the Tribunal proceeding would or should be stayed. Further, that it followed that if the present applications were to be disposed of in that way that those parts of the applicant’s interlocutory application which the applicant had elected not pursue at the hearing, would also be dismissed.

14    Counsel appearing for the applicant sought to be heard on this issue. I invited him to address this issue in the course of making the applicant’s submissions, which he did. The applicant sought to depart from the position it had communicated in its email of 4 September 2025 by asserting that the applicant intended to seek to have the balance of its application heard on a later date regardless of the outcome of the challenge to competency. That was directly contrary to the position which led to the vacation of the case management hearing. Had the case management hearing proceeded, it would have addressed whether the hearing on 9 September 2025 should be adjourned to accommodate the applicant’s pursuit of the broader relief included in its application, and if so, what the terms of that adjournment should be, including as to costs.

15    As the applicant’s submissions on this issue unfolded, it became apparent that the applicant’s wanted to await the determination of its recusal application that was pending in the Tribunal and as I have mentioned scheduled for hearing on 18 September 2025, before assessing whether it would seek to proceed on the remaining part of its interlocutory application not pressed on 9 September 2025. The applicant was candid in acknowledging that it may not wish to agitate all or part of the remnant relief included in its interlocutory application if it succeeded on the recusal application. I infer that was because the applicant was hopeful that success on the recusal application would likely achieve its objective, namely vacating the final hearing in the Tribunal otherwise set to commence in October 2025.

16    The applicant’s submissions on this issue may be dealt with in short compass.

17    The substance of what the applicant is attempting to do is to transmogrify a proceeding which is incompetent and which has been dismissed into a new and materially different proceeding for judicial review founded on different legislation and governed by different parts of the Rules. I have considered, in the alternative to dismissing the appeal under r 33.30(5) of the Rules, whether it would be appropriate to strike out the notice of appeal to give the applicant a further opportunity to cure the defect in the competency of the appeal. I am not persuaded that it is in the interests of justice or consistent with the overarching purpose to take that course. The applicant has had ample notice of the objection to competency and the issue in relation to whether the appropriate vehicle is a proceeding for judicial review. The applicant appreciates that it would require an extension of time to commence under the ADJR Act. Although no statutory time limit is prescribed for commencing under s 39B of the Judiciary Act, delay is a relevant consideration in the exercise of discretion to grant any relief under the Judiciary Act: see Daley v Child Support Registrar [2020] FCAFC 161 at [43] (Flick, Perry and Markovic JJ); McGough v Aged Care Quality and Safety Commissioner [2022] FCA 523 at [30], [162]–[164] (Banks-Smith J). Yet, it has not commenced a judicial review application and elected not to move on that part of its relief by which it sought to graft a judicial review proceeding onto the present appeal. I consider it is appropriate to give effect to r 33.30(5) and dismiss the appeal as incompetent.

18    The applicant contends that although the appeal may be dismissed, there is some remnant part of the proceeding that continues in the form of those parts of the claims for relief in its interlocutory application on which it did not move. I do not accept that is so – where a proceeding is dismissed, any extant interlocutory application pending in that proceeding will not survive that dismissal. If I am wrong on that issue, I would exercise the power conferred by s 31A of the Federal Court of Australia Act 1976 (Cth) (FCA Act) to dismiss that remnant of part of the applicant’s interlocutory application as having no reasonable prospect of success on the basis that it is an application to amend an application that has been dismissed which was in frame but not pressed when the issue of whether the proceeding should be dismissed was determined.

19    I am satisfied that contrary to the applicant’s submissions, to allow the applicant to change its position would not be consistent with the overarching purpose of proceedings in this Court as provided by s 37M of the FCA Act and would in fact be contrary to that purpose. As a matter of substance, the overarching purpose of proceedings in this Court is not served by permitting an applicant to stand by while an objection to competency is determined, and then, and only then, to move in that same proceeding on relief by which it seeks to resurrect its by then dismissed appeal.

20    The applicant’s approach to the conduct of this proceeding, and the proceeding in the Tribunal, has not facilitated the just resolution of the dispute between it and the Commissioner in a way that is in accordance with law and as quickly, inexpensively and efficiently as possible. The procedural history which is addressed in detail below exposes the negative impact that the conduct of these proceedings has had on the efficient use of the judicial and administrative resources available for the purposes of the Court (and I would add, the Tribunal) and the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

21    Returning to the substance of the issues which are the subject of these reasons, I have concluded that the appeal is incompetent and should be dismissed. The application for a stay of the Tribunal proceeding should also be dismissed. Further, the whole of the applicant’s interlocutory application filed on 14 August 2025 including those paragraphs which were not pressed by the applicant at the hearing on 9 September 2025 should also be dismissed. The contingency upon which the applicant indicated that it would seek to be heard on the additional relief included in its interlocutory application dated 14 August 2025 – being that the issue of competency was determined in its favour – does not arise.

22    Against that overview, I will now address the procedural history and the various interlocutory applications in more detail before addressing the applicable legal framework and then turning to consider the issues which fall for determination.

EVIDENCE

23    The applicant relies on an affidavit of Anthony Prentice, the applicant’s solicitor, sworn on 25 August 2025. Mr Prentice’s affidavit relevantly annexes the Tribunal’s reasons for the decisions made on 27 March 2025 (with reasons provided on 7 April 2025) and on 29 July 2025 (with reasons provided on 15 August 2025), the transcripts of the interlocutory hearings before the Tribunal on 24 March 2025 and 29 July 2025 and an affidavit of the applicant’s counsel sworn on 18 July 2025 which had been read before the Tribunal.

24    The Commissioner relies on the affidavit of Domonique Kristel Wong, the solicitor with day-to-day carriage of this proceeding, sworn on 2 September 2025.

RELEVANT PROCEDURAL HISTORY

25    I will first address the history of the proceeding in the Tribunal and then address the history of the present proceeding.

The proceeding in the Tribunal

26    The proceeding in the Tribunal is at an interlocutory stage. As I have mentioned, the proceeding is listed for a final hearing for three days in October 2025.

27    The relevant events giving rise to the Tribunal proceeding are as follows. Default assessments were issued on 3 April 2023 against the applicant. The applicant’s director’s personal tax affairs were also being considered by the Commissioner at this time. On 28 April 2023, the applicant lodged an objection to the default assessments which had been issued against it. On 25 August 2023, the Commissioner disallowed the applicant’s objection. On 7 September 2023, the applicant applied for a review by the Tribunal of the Commissioner’s objection decision pursuant to s 14ZZ of the Taxation Administration Act 1953 (Cth) (TAA).

28    After the elapse of at least seven previous deadlines, on 30 October 2024, the applicant filed a statement of facts, issues and contentions (SFIC) which included four proposed grounds of review which had not been raised in the applicant’s objection to the default assessments. The applicant required leave to rely on the new grounds because s 14ZZK(a) of the TAA limits a taxpayer to the grounds stated in the taxation objection unless the Tribunal otherwise orders.

29    The SFIC is not in evidence on this application. The proposed additional grounds are described in the Tribunal’s published reasons of 7 April 2025 (Tribunal’s decision or T), which are addressed in greater detail below.

30    The first two proposed grounds (grounds C3 and C4) are described by the Tribunal as raising factual and legal issues arising out of the personal tax affairs of the director of the applicant: T[5]. The third proposed ground (ground C5) was directed to explaining a 10% difference in the manner in which the cost of the relevant vehicle was calculated: T[6]. The fourth proposed ground (ground C6) sought to argue that the vehicle in question was now owned by the applicant’s director, rather than the applicant, because of a resulting trust arising from the applicant’s director personally making a balloon payment under a hire purchase agreement entered into by the applicant when it financed the purchase of the car: T[7].

31    In early December 2024, the Tribunal adjourned a directions hearing until February 2025 to provide the applicant additional time before moving on its application for leave to advance additional grounds. It appears that it was hoped that the Commissioner would make his objection decision in relation to the director’s taxation affairs in the intervening period before the applicant’s proceeding was next listed in the Tribunal. The Tribunal foreshadowed that if an application for review of an objection decision in relation to the fringe benefit tax aspect of the director’s assessments was put before the Tribunal, the matters could likely be dealt with together. That course did not eventuate as the objection regarding the director’s personal affairs was still under consideration by the Commissioner when the matter was next before the Tribunal. The Tribunal proceeded to list the applicant’s application to expand its grounds of review for hearing.

32    On 24 March 2025, the Tribunal heard the applicant’s application to expand the grounds of review.

The Tribunal’s decision which is the subject of this appeal

33    On 27 March 2025, the Tribunal granted leave for the applicant to rely on only two of the court proposed new grounds, being grounds C5 and C6, but dismissed the application to rely on the other proposed new grounds, namely grounds C3 and C4. On 7 April 2025, following a request by the applicant for it to do so, the Tribunal published reasons for its decision.

34    The Tribunal ordered the applicant to file an amended SFIC and additional evidence in support of the grounds in respect of which leave had been granted. In doing so, the Tribunal noted that the limited grant of leave “does not give the Applicant a general opportunity to amend, nor to file evidence of a wider compass than that which is necessary for the prosecution of those two grounds alone”: T[29].

35    I interpolate to note that a result of the Tribunal’s decision was that the applicant was granted leave to file an amended SFIC which would circumscribe the grounds of review which the Tribunal would determine in the Tribunal proceeding at the final hearing. The Tribunal’s decision did not determine the proceeding in the Tribunal. The applicant acknowledged in oral submissions that the applicant would have a right of appeal from the Tribunal’s decision finally determining the proceeding under s 172(1) on a question of law. Further, that it was conceivable that such a ground of appeal may be directed to the refusal to grant leave to rely on grounds C3 and C4 provided the appeal was on a question of law. That acknowledgement was well made: see discussion of Lewski v Commissioner of Taxation [2017] FCAFC 145 (Perram, Pagone and Moshinsky JJ) and McLean v Commissioner of Taxation [1996] FCA 351; 66 FCR 106 (Northrop J) below.

36    I will address the Tribunal’s reasons in detail in my consideration of whether an appeal lies under s 172(1) of the ART Act.

37    For context, it was on 5 May 2025 that the applicant commenced the present appeal by filing a “Notice of appeal from a tribunal” in the form provided for by Form 75 and r 33.12(1). A notice of appeal in this form must state, amongst other things, the precise question or questions of law to be raised on the appeal, any findings of fact that the Court is asked to make and briefly but specifically, the grounds relied on in support of the relief or variation sought: r 33.12(2). The applicant submits that the “appeal” was in substance a Form 66 combined application under s 39B of the Judiciary Act and the ADJR Act and for that reason the Tribunal is the second respondent. The applicant contends that because its solicitors had difficulty filing a Form 66, a Form 75 Notice of appeal from a Tribunal was used instead. That does not explain why the “appeal” as filed purported to include a question of law. An application for judicial review would not require the identification of a question of law, whereas an appeal under s 172(1) must be “on a question of law”. In any event, the applicant later filed a supplementary notice of appeal which put beyond doubt that the proceeding that the applicant had commenced and was pursuing in this Court was (or at least purported to be) an appeal from the Tribunal’s decision made on 27 March 2025.

38    On the “appeal” being accepted for filing in this Court on 29 May 2025, the applicant emailed the Tribunal on 30 May 2025 notifying of the application to this Court and requesting a directions hearing to address the programming of the Part IVC proceedings, which were listed for a three day hearing on 14 to 16 October 2025. The applicant’s email recorded the Tribunal’s direction to file evidence “and a supplementary statement of facts, issues and contentions” and foreshadowed an application to vacate the October 2025 hearing.

39    After an extension of time was given, the applicant filed what it described as a “supplementary”, as opposed to amended, SFIC on 8 June 2025. The Commissioner objected on the ground that the applicant was attempting to preserve the original SFIC that it had been ordered to amend to remove grounds C3 and C4 and supplement it by filing an additional SFIC styled as a supplementary SFIC. The Commissioner further objected on the basis that the supplementary SFIC included what appeared to be a new ground in respect of which leave had not been granted. The supplementary SFIC was not in evidence on the present application.

40    On 4 July 2025, the Tribunal notified the parties by email that the first iteration of the SFIC would be disregarded and would not form any part of the materials before the Tribunal at the final hearing.

Applicant’s further amendment application in the Tribunal

41    On 18 July 2025, the applicant filed a further application in the Tribunal for leave to expand the grounds of review to, in effect, seek to retain both iterations of the SFIC and for a stay of the substantive hearing before the Tribunal pending the outcome of the present proceeding. The application was opposed by the Commissioner.

42    On 23 July 2025, the applicant requested that the Tribunal vacate the substantive final hearing. In the Tribunal’s reasons for refusing that application (delivered on 15 August 2025), the Tribunal recounted at T[12] that the request for the hearing to be vacated was made in the following terms:

The applicant respectfully submits that the hearing scheduled for October should be vacated pending the Federal Court proceedings. Likewise, any application to receive evidence by video and any application for an enlargement of grounds should not be decided unless and until the Federal Court proceedings are concluded because: (a) the Tribunal should not finally determine a review where the Federal Court may set aside the Tribunal's decision to refuse the enlargement of grounds; (b) if the Tribunal’s decision is quashed, the Tribunal will be required to consider whether to grant leave anew – at which point any further enlargement of grounds would be more appropriately considered; (c) the Tribunal as presently constituted should not make either decision by reason that it would create an apprehension of bias.

43    On 29 July 2025, the Tribunal listed the Tribunal proceeding to address a number of issues in relation to amongst other things the arrangements for the final hearing in October 2025. In convening that hearing, the Tribunal provided the parties’ representatives with a copy of ss 9 and 56 of the ART Act. Section 56 articulates amongst other things the obligations of the parties and their representatives to assist the Tribunal to achieve the objective in s 9 of the ART Act, which includes that matters be dealt with expeditiously. During the hearing on 29 July 2025, the following exchanges occurred.

44    First, in relation to the vacation of the final hearing:

DEPUTY PRESIDENT: …I’ve circulated sections 9 and 56 for a reason. There is, as I understand it, an appeal that has been filed in respect of the interlocutory matter that I heard in March.

MR CROWLEY: There is an application. It’s not actually an appeal even though a form 75 was used. It’s actually an application for judicial review. But the point remains, yes, it’s being challenged.

DEPUTY PRESIDENT: Okay. We haven’t been served, Mr Crowley.

MR CROWLEY: Yes. I know. My instructors are dealing with that now.

DEPUTY PRESIDENT: And even if we have been served it makes no difference in terms of my ability to proceed on 14 October. You will need an injunction from the Federal Court to stop that hearing.

MR CROWLEY: So the ruling is that there will be no vacating of the hearing date.

DEPUTY PRESIDENT: I don’t vacate hearings that have been listed without good cause. The mere fact that you’ve filed an application in the Federal Court is not a good reason.

MR CROWLEY: Well, may I make a submission about that?

DEPUTY PRESIDENT: You may.

MR CROWLEY: The subject matter of the Federal Court proceedings is the proper application of section 14ZZK, and if the hearing proceeds in October and is determined, the subject matter of that appeal will be lost.

45    The Tribunal declined to vacate the final hearing. The Tribunal noted that the fact that the applicant had appealed an interlocutory decision was not a compelling reason that would justify vacating the hearing and that to vacate the hearing would require such a reason. The Tribunal informed the applicant’s counsel that if the applicant wished to pursue a stay or injunction in the Federal Court then that was a matter for the applicant and that the Tribunal would abide the decision of the Federal Court.

46    In relation to the further attempt to expand the SFIC, the Tribunal reiterated that unless and until there is a determination in this Court, the applicant could not pursue the two grounds for which leave was refused. The Tribunal proposed to strike out the noncompliant paragraphs of the supplementary SFIC.

47    In response to the Tribunal inviting any further submissions from the applicant’s counsel as to why the Tribunal should not have the hearing until after this Court determined the appeal, counsel for the applicant simply repeated that his instructions were to apply to vacate the hearing. The Tribunal confirmed that the date would not be vacated.

The Tribunal’s second decision

48    On 15 August 2025, at the applicant’s request, the Tribunal delivered written reasons for its decision on 29 July 2025 to dismiss the applicant’s application to vacate the substantive hearing and to further expand the grounds of review. In its reasons, the Tribunal made the following observation:

As to whether any question of bias arose if I proceeded with the substantive hearing, it is hardly biased for me to hear and determine a matter in compliance with orders I made in March 2025, following a fully argued application. The submission as to bias if I was to hear the substantive matter has the appearance of a concoction in an attempt to forum shop for a different member to hear the matter. If the Applicant wishes to make an application to have me recused on the grounds of ostensible bias, it will need to be put properly, rather than in an obscure manner unsupported by any particulars or evidence.

Applicant’s recusal application (pending before the Tribunal)

49    Shortly thereafter, the applicant filed a recusal application against the Deputy President which at the time of writing is pending before the Tribunal, being presently listed on 18 September 2025.

Listing of final hearing

50    At this time, the Tribunal proceeding remains listed for final hearing on 14 to 16 October 2025.

The proceeding in this Court

51    As mentioned, on 5 May 2025, the applicant filed a notice of appeal from the Tribunal’s decision, which was accepted for filing on 29 May 2025.

52    On 13 June 2025, the Commissioner filed a notice of objection to competency of the appeal pursuant to r 33.30(1)(a) of the Rules.

53    On 28 July 2025, the Commissioner applied to the Court for the question of competency to be heard and determined before the hearing of the appeal.

54    On 30 July 2025, the applicant filed its supplementary notice of appeal relying expressly on r 33.14 which provides the circumstances in which a notice of appeal filed in the Court’s original jurisdiction may be amended without leave.

55    The supplementary notice of appeal included the following identification of the relevant decision and articulated three questions characterised as questions of law:

The Applicant appeals from the decision of the Administrative Review Tribunal made on 27 March 2025 at Perth.

The Tribunal decided not to exercise the power under s 14ZZK(a) of the Taxation Administration Act 1953 (Cth) to permit an enlargement of the grounds of review of objection decisions under Part IVC thereof.

The Applicant appeals from that decision.

Questions of law

1.     Is the Administrative Review Tribunal denied jurisdiction, on a review under Part IVC of the Taxation Administration Act 1953 (Cth) (TAA), to consider any matter that involves or refers to a taxpayer who does not also have a Part IVC review before the Tribunal, where that matter informs a statutory exemption to the review applicant's tax liability?

2.     Is the Commissioner of Taxation permitted under s 355-50 of Schedule 1 to the Taxation Administration Act, on a review under Part IVC thereof, to disclose to the Tribunal information relating to a taxpayer who does not have a review before the Tribunal, where a taxpayer whose review is before the Tribunal claims an exemption from fringe benefits tax requiring consideration of the first-mentioned taxpayer's status?

3.     Is there an implied duty to afford procedural fairness to a taxpayer who requests an order enlarging the grounds of review of an objection decision under s 14ZZK(a) of the TAA?

56    In filing the supplementary notice of appeal in this form, the applicant appeared to eschew its previous position (reiterated in its submissions made to the Tribunal on the preceding day extracted at paragraph [44] above) that the proceeding in this Court, although styled as an appeal under s 172(1) of the ART Act, was in truth to be understood as being an application for judicial review.

57    On 31 July 2025, timetabling orders were made. Amongst other things, those orders provided that the applicant file any application for a stay which it intended to bring in relation to the Tribunal proceeding and that the competency application and the stay application be listed for hearing on 9 September 2025.

58    On 14 August 2025, the applicant filed its interlocutory application which I have described at paragraphs [7]–[10] above and which relevantly for the purpose of the application heard on 9 September 2025 seeks a stay of the Tribunal proceeding pursuant to s 178(2) of the ART Act pending the determination of its appeal and to have its name changed in this proceeding to reflect that it has recently changed its name. That latter part of the application is not controversial, I will make an order accordingly.

59    Also on 14 August 2025, the Commissioner filed and served its amended objection to competency. The Commissioner’s first ground of objection — that there is no appealable decision for the purpose of s 172(1) of the ART Act — remains unchanged from the earlier iteration of the notice of objection to competency. A second ground of objection was introduced by which the Commissioner contended that no question of law is raised by the supplementary notice of appeal. That ground is responsive to the three questions of law that were introduced by the filing of the supplementary notice of appeal.

60    The Commissioner contends that the purported appeal is incompetent because the Tribunal’s decision is not a final decision of the Tribunal and is therefore not a decision that is amenable to appeal under s 172(1) of the ART Act. In addition, the Commissioner contends that the purported appeal fails to identify a question of law and is not an appeal on a question of law as is required by s 172 of the ART Act.

APPLICABLE LEGAL FRAMEWORK

Section 172 of the ART Act

61    Section 172(1) of the ART Act, located in Division 2, Subdivision A – Appeals on questions of law, 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.

62    Section 176 provides this Court with jurisdiction to determine an appeal instituted under s 172 of the ART Act:

176 Federal Court has jurisdiction

(1)     If an appeal is made under Subdivision A, the Federal Court:

(a)    has jurisdiction to hear and determine the appeal; and

(b)    must hear and determine the appeal; and

(c)    may make any order it considers appropriate because of its decision.

(2)     Without limiting the orders it may make, the Federal Court may:

(a)     affirm or set aside a decision of the Tribunal; or

(b)     remit a matter to be decided again by the Tribunal, either with or without the taking of further evidence, in accordance with the directions of the Court.

63    Although styled as an ‘appeal’, an application under s 172(1) of the ART Act invokes this Court’s original jurisdiction: FCA Act, s 19(2); see also Haritos v Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315 at [96] (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ).

The proper construction of s 172(1)

64    The proper construction of s 172(1) of the ART Act was recently considered by SC Derrington J in Pratten v Commissioner of Taxation [2025] FCA 749 in what appears to be the first occasion on which the section has been the subject of judicial consideration. The analysis in Pratten demonstrates that the authorities which considered the proper construction of s 44(1) of the now repealed Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) are relevant to the proper construction of s 172(1) of the ART Act. The parties did not seek to challenge the analysis in Pratten or otherwise suggest that I should depart from it.

65    Section 44(1) of the AAT Act was the antecedent of s 172(1) of the ART Act. 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.

66    It may immediately be observed that s 172(1) of the ART Act amends the language of s 44(1) of the AAT Act to make explicit that the right of appeal lies in respect of “the decision of the Tribunal in the proceeding” rather than the phrase used in s 44(1) of the AAT Act, being “any decision of the Tribunal in that proceeding” (emphasis added).

67    The decision in Pratten was made in an analogous context in that the substantive proceeding in the Tribunal was a taxpayer’s application for review of a decision of the Commissioner. Justice SC Derrington’s thorough exposition of the proper construction of s 172(1) is informed by the orthodox principles of statutory interpretation giving primacy to the statutory text and with regard to context, the purpose of the legislation, and is supported by the legislative history taking into account the context supplied by judicial consideration of the antecedent statutory provision: Pratten at [8] to [18]. I agree with, and gratefully adopt, her Honour’s analysis.

68    In short, in its proper construction, s 172(1) confers a right of appeal to this Court, on a question of law, from the decision of the Tribunal in the proceeding, where the decision will generally mean the decision in the proceeding which determines the proceeding. I say generally because, as with s 44(1) of the AAT Act, there are exceptions where the decision will answer the statutory description even if it is not the ultimate decision of the Tribunal. I address the exceptions recognised by the authorities in the comparable setting of s 44(1) of the AAT Act below.

69    The context in which s 172(1) of the ART Act was passed included the existing well-settled position that s 44(1) of the AAT Act only conferred a right of appeal from the final decision, despite the words “any decision” being used in that subsection: Pratten at [11] to [14] citing Director-General of Social Services v Chaney [1980] FCA 87; 47 FLR 80 at 103 (Deane J) and 107 (Fisher J). As SC Derrington J observes, in construing s 172(1), the context in which the amendment was made is important: Pratten at [11]. I agree.

70    The presumption from re-enactment — that words in an Act which have been the subject of judicial construction are presumed to bear the same construction when used in a subsequent Act dealing with the same subject — applies with force here. As the learned authors Herzfeld and Prince observe in Interpretation (3rd ed, Thomson Reuters, 2024) at [8.60]:

In specialised and technical fields, where legislation is often amended and judicial decisions carefully scrutinised by those responsible for amendments, the basis of the presumption may be sound and the presumption may consequently have real force. That is so, for instance, in the case of industrial relations, taxation, workers’ compensation, provisions concerning the jurisdiction of courts and, perhaps, the criminal law. Even outside these fields, the presumption may be applicable because the legislative history shows an awareness of the judicial interpretation in question.

The presumption has been applied to words which are in substance, though not precisely, the same as those which received the judicial construction. …

(Footnotes and citations omitted.)

71    The relevant Explanatory Memorandum, extracted at paragraph [81] below, makes plain that the drafting of s 172(1) of the ART Act was informed by the drafters taking into account the judicial construction of s 44(1) of the AAT Act. Accordingly, there is a sound basis for applying the presumption as an aid to construction in the present context.

72    One of the authorities cited as an illustration of the presumption applying in the context of provisions concerning the jurisdiction of courts is Condensing Vaporisers Aust Pty Ltd v FDC Construction & Fitout Pty Ltd (No 2) [2014] NSWCA 95; 86 NSWLR 360 (Leeming JA, Macfarlan and Ward JJA agreeing). In this case, the Court of Appeal considered the issue of the competency of an appeal in which leave to appeal was required where the matter at issue did not exceed $100,000. Justice Leeming, with whom the other members of the Court agreed, observed that subject to one matter, the structure of the relevant provision was ancient – reflecting the wording of s 35 of the Judiciary Act as first enacted, which in turn derived from the Orders in Council regulating appeals to the Privy Council (at [7]). His Honour stated that while it is important to bear changed language in mind, it does not follow that the decisions on the earlier formulations are to be disregarded (at [9]). After reviewing the statutory antecedents of the relevant provision and the judicial consideration thereof, Leeming JA found that the proper construction of the relevant provision was narrower than the broader construction that the language of the section may support if considered in isolation. Principal amongst his Honour’s reasons for reaching this conclusion was that it was not open to read the relevant provision “afresh” in circumstances where its precise words are laden with many decades of authority, including authority squarely inconsistent with the broader (literal) construction (at [23]). A good reason would be required before a different legal meaning should be given to the same words in essentially the same context (at [23]).

73    The change in the expression of s 172(1) of the ART Act when contrasted with s 44(1) of the AAT Act is significant – it represents a tightening of the statutory language in a way which serves to underscore the statutory purpose recognised in Chaney as informing the construction of s 44(1) of the AAT Act. To again draw on SC Derrington J’s analysis in Pratten, that is made plain by Robertson J’s observations in Kishore v Tax Practitioners Board [2016] FCA 1328; 244 FCR 320 at [19] (cited in Pratten at [15]):

[T]he 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.

(Citations omitted).

74    The observations made by Robertson J echo the more expansive remarks of Deane J in Chaney (at 103):

It may be suggested that the proliferation of opportunities to appeal should be seen as a safeguard of the rights of the individual subject. Such a suggestion would, in my view, be misconceived. Indeed, if the view propounded on behalf of the Director-General in the present matter, namely, that an appeal lies as of right from every intermediate decision on a question of law in the course of the hearing by the Tribunal of an application to review, be accepted, the result would be that the individual subject who challenged a decision of the executive before the Tribunal would not only have no assurance of an orderly and reasonably prompt resolution of his or her case by the Tribunal but that, in confronting the executive even if only to claim a widow's mite, he or she would be stepping into a maze in which the financial ruin of a myriad of possible appeals awaited at the whim of those who fund their enthusiasm for the fray not from their own purses but from the long purse of Government (cf. per Jordan C.J. in Re The Will of Gilbert [(1946) 46 SR (NSW) 318 at 323]).

75    There are however recognised exceptions to the general principle expressed in Chaney. In Douglass v Administrative Appeals Tribunal [2017] FCA 1105 at [20], Griffiths J summarised the four exceptions as follows:

There are evidently four exceptions to the general principle established in cases such as Chaney. First, an appeal lies under s 44(2) from a decision holding that the interests of a person are not affected by a particular decision. Secondly, where the proceedings before the AAT can be divided in two or more separate parts involving the giving of independent decisions (see Chaney at 103). Thirdly, s 36D of the AAT Act makes specific provision for specified interim decisions to be a decision for the purposes of s 44, including decisions under ss 36(3), 36B(3), 36A(2)(b) and 36C(2)(b). Fourthly, Ryan J found in APRA v VBN [2005] FCA 1868 at [39] that a decision of the AAT which required the primary decision-maker to lodge documents under s 37(2) of the AAT Act was “final or operative and determinative in a practical sense” where the order “impinges on the decision-maker’s right to preserve undisclosed documents to which legal professional privilege attaches”. This is because such a requirement has a final impact on legal professional privilege, which the High Court identified in Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; 213 CLR 543 at [11] as a substantive common law right or immunity. This exception has no relevance here, in circumstances where the AAT has declined to make the order sought by the applicant and, in any event, there is no suggestion that legal professional privilege is involved.

76    The first category of exception is now embodied in s 173 of the ART Act – it is not presently relevant. The third and fourth exceptions are also not presently relevant. The second category of exception is the exception on which the applicant relies.

77    The second category of exception described by Griffiths J is drawn from the following observations of Deane J in Chaney. Justice Deane introduced the issue as follows:

It should be stressed that the issue is not whether, after the Tribunal has determined the application for review, an appeal lies to this Court on every ruling or adjudication upon a question of law which proves to be part of the structure of the ultimate decision. The issue is whether such an appeal lies, instanter, from a ruling or adjudication upon the road to ultimate decision regardless of whether that ruling or adjudication may prove irrelevant to the ultimate decision or whether further evidence, increased understanding or, indeed, plain reconsideration may lead to its reversal by the Tribunal itself before the ultimate decision is delivered.

78    Justice Deane relevantly continued:

The conclusion which I have reached is that, subject to the qualifications mentioned below, an appeal under s. 44(1) of the 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 Act.

79    The presently relevant qualification referred to by Deane J is “the case where the proceeding before the Tribunal can properly be divided into two or more separate parts in respect of which independent “decisions” may properly be given” (at 181).

80    The principles in Chaney, and Robertson J’s explanation thereof, have been repeatedly adopted and applied by Full Courts of this Court, including by a five-member Full Court in Chief of Navy v Angre [2016] FCAFC 171; 244 FCR 457 at [47] (Mortimer J, with whom Allsop CJ (at [2]), Griffiths J (at [5]), Perry J (at [90]) and Gleeson J (at [91]) agreed): Pratten at [16]-[17].

81    As SC Derrington J observed, were there any reason to doubt that the effect of change in wording as between s 44(1) and s 172(1), the position is made pellucid by the Revised Explanatory Memorandum to the Administrative Review Tribunal Bill 2024 (Cth) at [1097] (extracted at [18] of Pratten):

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 [Chaney]. The effect of the provision is the same.

82    Section 172(1) confers a right of appeal that is confined in two principal ways.

83    First, the appeal must be from the decision of the Tribunal which is determinative, that is, the decision which disposes of the proceeding before the Tribunal or a part of that proceeding which is truly separate and in respect of which independent decision may properly be given. Section 172(1) does not confer a right to appeal instanter from a decision in the course of the Tribunal proceeding which may prove to be irrelevant to the Tribunal’s ultimate decision or which may properly arise to be reconsidered by the Tribunal in the later course of the Tribunal proceeding. There are many authorities which articulate the distinction between what comprises a final judgment as opposed to an interim decision or an interlocutory decision. In the present context, the observations of Edelman J in Plaintiff S164/2018 v Minister for Home Affairs [2018] HCA 51; (2018) 361 ALR 8 at [11] are apposite:

The “usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties in a principal cause pending between them”. Whether the rights of the parties are finally determined by the order will depend on whether the legal, not the practical, effect of the judgment is final. If it is open to the parties to bring another application then the legal effect is not final, even if the second application would usually be “doomed to failure because the issues of substance which it raised would have been decided adversely to the defendant in the first application”.

(Footnotes omitted.)

84    The second constraint is that the appeal must be on a question of law. The express requirement that the appeal be on a question of law was a requirement of s 44 of the AAT Act and continues as a requirement of s 172 of the ART Act.

85    The following observations made by the Full Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; 43 FCR 280 (Neaves, French and Cooper JJ) in relation to s 44(1) of the AAT Act are of continuing relevance to s 172(1) and bear emphasis (at 286-287):

The limitation of the jurisdiction to the resolution of questions of law imposes a significant constraint upon the role of the Court in reviewing decisions of the Tribunal. The appealable error of law must arise on the facts found by the Tribunal or must vitiate the findings made or must have led the Tribunal to omit to make a finding it was legally required to make. A wrong finding of fact is not sufficient to demonstrate error of law: Waterford v Commonwealth (1987) 163 CLR 54 at 77-78. Where the decision of the Tribunal involves matters of fact and degree, then provided it applies correct principles of law, no appeal will lie: Commissioner of Taxation v Brixius (1987) 16 FCR 359 at 365.

The limits within which the jurisdiction is conferred require that it be exercised with restraint. Only in exceptional circumstances should the decision of the Tribunal not be the final decision: Blackwood Hodge (Australia) Pty Ltd v Collector of Customs (NSW) (1980) 47 FLR 131 at 145 (Fisher J); Commissioner of Taxation (Cth) v Cainero (1988) 88 ATC 4,427 (Foster J). As the Full Court said in Repatriation Commission v Thompson (1988) 9 AAR 199 at 204:

“…the nature of the task of this Court is clear. It is to leave to the tribunal of fact decisions as to the facts and to interfere only when the identified error is one of law.”

This translates to a practical as well as principled restraint. The Court will not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal’s thoughts: Lennell v Repatriation Commission (1982) 4 ALN N 54 (Northrop and Sheppard JJ); Freeman v Defence Force Retirement and Death Benefits Authority (1985) 5 AAR 156 at 164 (Sheppard J); Repatriation Commission v Bushell (1991) 13 AAR 176 at 183 (Morling and Neaves JJ). The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error: Politis v Commissioner of Taxation (Cth) (1988) 16 ALD 707 at 708 (Lockhart J).

86    In the absence of a question of law within the meaning of s 44 of the AAT Act (and by extension, s 172(1) of the ART Act), the jurisdiction of the Court is not enlivened as the necessary subject matter of the appeal is lacking: Kowalski v Military Rehabilitation and Compensation Commission [2010] FCAFC 10 at [39] (Marshall, Tracey and Foster JJ).

87    The authorities recognise that the distinction between what is a question of law and what is not can be elusive, notoriously so.

88    The principles relevant to the identification of a question or questions of law for the purpose of an appeal under s 44(1) of the AAT Act were relevantly summarised in Haritos at [62] by a five-member Full Court (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ).

89    For present purposes, it suffices to note that consistently with the express terms of s 44 of the AAT Act, and I interpolate to add, now, also s 172(1) of the ART Act, the subject-matter of the Court’s jurisdiction is confined to a question or questions of law. The ambit of the appeal is confined to a question or questions of law. In that context, it is necessary to state the relevant question or questions of law with sufficient precision to facilitate the efficient and effective hearing and determination of appeals from the Tribunal. The Court has jurisdiction to decide whether or not an appeal from the Tribunal is on a question of law. Any requirements of drafting precision concerning the form of the question of law do not go to the existence of the jurisdiction to hear and determine appeals instituted in the Court in accordance with s 44(1), but to the exercise of that jurisdiction. The question of whether or not the appeal is on a question of law is to be approached as a matter of substance rather than form. A question of law within s 44 is not confined to jurisdictional error but extends to a non-jurisdictional question of law. Similarly, the expression “question of law” is not to be construed as meaning a “pure” question of law or similarly, “only” a question of law and accordingly, not all so-called “mixed questions of fact and law” stand outside an appeal on a question of law.

90    A broad enquiry as to the construction and operation of statutory provisions is not a question of law within the meaning of s 44 of the AAT Act: Comcare v Etheridge [2006] FCAFC 27; 149 FCR 552 at [19] (Branson J). A question of fact cannot be turned into a question of law by asserting that the Tribunal has “erred in law”: Comcare v Etheridge at [15]. An assertion that there was an error of law is not sufficient without going on to identify what the error is said to be.

91    To construe s 172(1) of the ART Act without regard to the significant constraint on the role of the Court in reviewing decisions of the Tribunal imposed by the express language of the provision would be to thwart the statutory purpose by facilitating the fragmentation of proceedings in the Tribunal and encouraging a proliferation of appeals in this Court that are not within the jurisdiction conferred on the Court. Such an approach would be contrary to the instruction in s 15AA of the Acts Interpretation Act 1901 (Cth) which requires preference to be given to a construction which promotes the self-evident legislative purpose of generally discouraging appeals from decisions of the Tribunal that are not dispositive of the Tribunal proceeding. That there are closely confined exceptions to the general principles articulated in Chaney does not detract from this conclusion.

Question of Competency

92    Rule 33 of the Rules provides for the filing of a notice of objection to competency of an appeal that is brought in the Court’s original jurisdiction. By r 33.30(2) of the Rules, the applicant carries the burden of establishing the competency of an appeal. If the Court determines that an appeal is not competent, the appeal is dismissed: r 33.30(5). The Rules must be interpreted and applied in the way that best promotes the overarching purpose: FCA Act, s 37M(3).

Stay of Tribunal proceeding

93    By s 178(1) of the ART Act, the operation and implementation of a Tribunal decision is unaffected by an appeal to this Court. The Court may make an order staying or otherwise affecting the operation or implementation of the Tribunal decision “for the purpose of ensuring the effectiveness of the hearing and determination of the appeal”: s 178(2)(a). An order made under s 178(2)(a) of the ART Act may be made on a conditional basis: s 178(3).

94    Generally, the discretion conferred to stay proceedings should only be exercised where the circumstances justify a departure from the statutory intent of the prima facie position under s 178(2)(a), being an appeal to the Court does not affect the operation of the decision or the taking of action to implement it: see Aspen Pharma Pty Ltd v H Lundbeck A/S [2013] FCA 324 at [31]-[32] (Yates J) in respect of s 44A(2) of the AAT Act, the antecedent of s 178(2)(a).

95    The applicant bears the onus of demonstrating that there is a proper basis for a stay: Minister for Home Affairs v Zadeh [2018] FCA 1452 at [23] (Thawley J).

CONSIDERATION

Preliminary point

96    It is not clear to me whether the applicant continues to maintain its attempt to re-characterise the present proceeding as an application for judicial review and not an appeal. To the extent that the applicant does maintain any submissions on the basis of that premise, I reject those submissions for the following reasons.

97    First, there are substantive and procedural differences between the two types of proceedings, each of which are addressed in distinct parts of the Rules – see rr 31.01 and 31.11 respectively: see also Yao v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 18 at [17] (Perram J) and Mahaffy v Administrative Appeals Tribunal [2015] FCA 251 at [9] (Wigney J).

98    Secondly, hypothetically, and without in anyway sanctioning the applicant’s unorthodox attempt to amend its supplementary notice of appeal to “append” a new and distinct originating process for judicial review to stand as a new originating process in this proceeding, the applicant has elected not to move on that part of its interlocutory application that was directed to obtaining relief to give effect to that attempt: see paragraph [12] above. The Court should not accede to any attempt to prolong the proceeding in this Court and thereby derail the final hearing in the Tribunal.

99    Thirdly, the applicant has not separately instituted an application for judicial review and has not obtained an extension of time within which to commence such a proceeding. There being no separate proceeding on foot, there is nothing which could be the subject of an orthodox consolidation application or application for the two proceedings to be heard concurrently.

100    Fourthly, after suggesting that the proceeding is really an application for judicial review, the applicant, has nonetheless filed a supplementary notice of appeal which attempts to address the specific procedural requirements which apply to notices of appeal in the Court’s original jurisdiction. That confirms that what the applicant is seeking to do is to exercise a right of appeal under s 172(1) of the ART Act.

Competency of the appeal

101    The Commissioner raises two grounds of objection to competency, each of which is addressed to the relevant constraints on this Court’s jurisdiction in s 172(1) of the ART Act: first, that the decision sought to be appealed by the applicant is not an appealable decision within the meaning of s 172(1) of the ART Act; and secondly, that the supplementary notice of appeal does not disclose any operative question of law as the subject of the appeal but merely raises three questions relating to legal principles of general application.

Ground of objection 1: no appealable decision

102    The applicant attempts to overcome the impediment posed by s 172(1) of the ART Act by characterising the Tribunal’s decision as a relevantly “independent decision” within the second category of exemption to the general principle established by cases such as Chaney that is capable of being determined on appeal under s 172(1).

103    I do not accept that the Tribunal’s decision was a decision that falls within the second category of exception to the principle in Chaney nor am I satisfied the Tribunal’s decision was a final decision in the sense required by s 172(1) of the ART Act on its proper construction. My reasons are as follows.

104    First, the Tribunal’s decision was not an independent decision in the requisite sense so as to attract the exception. The proceeding before the Tribunal cannot properly be divided into two or more separate parts in respect of which the impugned decision was an independent decision. The Tribunal’s decision was a decision to refuse to grant leave to advance additional review grounds in respect of the very objection decision that is the subject of the extant review grounds scheduled to be heard before the Tribunal in October 2025. The Tribunal will exercise its general decision-making powers under s 105 of the ART Act to either affirm the objection decision; vary the objection decision; set aside the objection decision and make a decision in substitution or remit the matter to the Commissioner for reconsideration. The refusal to give leave was an integral part of the Tribunal proceeding.

105    Secondly, depending on the way in which the Tribunal exercises its powers at the conclusion of the final hearing, the issue that the applicant seeks to agitate may not arise at all – for example, if one of the extant review grounds is upheld. Conversely, if it be the case that after the Tribunal delivers its decision that is dispositive of the proceeding, the applicant is able to identify a question of law involved in the refusal of leave to advance the additional review grounds that will constitute part of the structure of the dispositive decision of the Tribunal and may in those circumstances engage the right of appeal conferred by s 172(1) of the ART Act. An illustration of this procedural course is the decision of the Full Court in Lewski. As I have mentioned, the applicant acknowledged this but submitted that it could also choose to appeal instanter. I reject that submission.

106    Thirdly, the fact that the applicant can, and indeed has, brought a separate and subsequent application before the Tribunal for the same relief demonstrates that the Tribunal’s decision is not a decision that is final or determinative of substantive rights in the sense required by s 172(1). It is not the decision of the Tribunal in the proceeding; it is simply a decision in the proceeding. The decision does not finally determine the rights of the parties in a principal cause pending between them. That is not the legal effect of the decision. The applicant brought another application to the same effect, which the Tribunal entertained and determined. The first decision was clearly not a final determination of the applicant’s right to seek leave under s 14ZZK(a) of the TAA. Notwithstanding that the second application was likewise dismissed, it was open to bring it and it was determined. See the observations of Edelman J in Plaintiff S164/2018 extracted at paragraph [83] above.

107    Fourthly, even if one were to accept that the applicant’s characterisation of the Tribunal’s decision as a refusal of leave to advance the additional review grounds because the Tribunal did not have jurisdiction, then the decision did not effectively dispose of the proceeding before it. The applicant was not seeking to advance the proposed additional review grounds in respect of which leave was refused in substitution for the extant grounds it was pursuing. The Tribunal was seized with jurisdiction to determine the extant grounds of review and the Tribunal’s decision in determining those grounds will be the dispositive decision in the Tribunal proceeding in respect of which s 172(1) of the ART Act may apply provided any appeal is on a question of law.

108    In Chaney, Deane J addressed the operation of the right of appeal conferred by s 44(1) of the AAT Act in the context of a Tribunal decision on whether the Tribunal does, or does not, have jurisdiction (at 103):

As has been said, the ruling that the Tribunal had jurisdiction to hear the application for review simply asserted the Tribunal’s jurisdiction to continue to hear the application on the merits. That ruling did not effectively dispose of the proceedings or any independent part thereof. It was not, in my view, a decision from which an appeal lay, on a question of law, to this Court pursuant to the provisions of s. 44 (1) of the Act. In the event that the Tribunal adheres, in the light of all the evidence, to its present ruling that jurisdiction exists and ultimately decides to set aside or vary the decision of the Director-General, an appeal will lie from that ultimate decision of the Tribunal on any question of law involved in the ruling for the reason that the assertion as to jurisdiction will constitute part of the structure of such an ultimate decision. The position would, of course, have been different if the ruling had gone the other way and the Tribunal had held that it had no jurisdiction to deal with the matter. In that event the decision of the Tribunal would have effectively disposed of the proceeding before it.

109    The scenario giving rise to this appeal lies between the two scenarios addressed by Deane J. Even if the Tribunal’s decision was a decision to refuse leave because the Tribunal concluded that it lacked jurisdiction to entertain the proposed additional review grounds, that decision did not dispose of the proceeding before the Tribunal and as I have said, if the applicant is able to identify a question of law in the refusal of leave, that will constitute part of the dispositive decision of the Tribunal and engage the right of appeal conferred by s 172(1) of the ART Act: see discussion of Lewski at paragraph [116] below.

110    Section 172(1) of the ART Act confers a right of appeal in respect of a final decision of the Tribunal in the proceeding, as elucidated by the decision in Pratten. This appeal does not concern the final decision of the Tribunal within the meaning of s 172 of the Act — that decision has not yet been made. The decision which the applicant seeks to appeal is not capable of being appealed under s 172(1) of the ART Act. It is neither final or determinative in the requisite sense nor independent so as to fall within the second category of exception to the finality requirement.

111    For completeness, I will briefly address the applicant’s submissions which relied on Lighthouse Philatelics Pty Ltd v Federal Commissioner of Taxation [1991] FCA 667; 32 FCR 148 (Lockhart, Burchett and Hill JJ); Lewski; and McLean in support of its contention that a decision under s 14ZZK is a decision which is cognisable under s 44 of the AAT Act and now s 172.

112    Before addressing each of the authorities, I note that the applicant’s approach to the authorities is misconceived. The issue that arises is not whether “a s 14ZZK decision” in the generic sense is a decision in respect of which an appeal lies under s 172(1) of the ART Act. The issue is whether the specific decision made by the Tribunal, in this case refusing to grant leave under s 14ZZK in respect of two proposed grounds in the context of a review comprised of a number of other grounds which are listed for final hearing, is a decision in respect of which this Court has jurisdiction under s 172(1) to determine an appeal on a question of law. I reject the applicant’s submission that all decisions under s 14ZZK are, as a universal proposition, necessarily classified as either decisions that are, or are not, decisions in respect of which an appeal lies under s 172(1). The issue of whether the particular decision is a decision in respect of which a right of appeal applies under s 172(1) that may be exercised instanter will turn on a close consideration of the individual decision, not simply by reference to power exercised to make the decision. Bearing this in mind, it may readily be seen that the Tribunal decision in issue on this appeal is of a different character to those which were subject to the appeals in Lighthouse Philatelics, Lewski and McLean.

113    Lighthouse Philatelics involved an appeal to the Full Court of the decision of the Tribunal in relation to the proper construction of s 190(a) of the Income Tax Assessment Act 1936 (Cth) (ITA Act) (a statutory antecedent of s 14ZZK of the TAA) and whether there was a power to amend an objection at all rather than an exercise of the relevant discretion to grant leave to amend. In that case, the Tribunal refused the application to amend on the basis that s 190(a) of the ITA Act did “not empower the amendment”. The application was in the Court’s original jurisdiction but was referred to a Full Court for decision under s 44(3) of the AAT Act because amongst other reasons there were diverging decisions in the Tribunal and the issue raised was of considerable importance.

114    The reasons of the Full Court expose that the amendment of the review grounds was in fact to be a “substitute” for the grounds relied on in the original objection (at 149). This provides the necessary context for the parties’ agreement that the “the decision of the Tribunal, albeit not a decision on the review that was before it, was an “independent decision” of the kind referred to by Deane J in Chaney… and was a proper subject matter of an appeal under s 44(1) of the AAT Act” (at 149). The first point of distinction with the present appeal is that the proposed additional review grounds were just that – additional or supplementary, they were not in substitution for the whole of the review grounds relied on before the Commissioner. In Lighthouse Philatelics the decision effectively determined the proceeding because it precluded the applicant from pursuing the proposed amended grounds which it sought to pursue instead of those that were before the Tribunal. That is not the case here.

115    In Lighthouse Philatelics, the Full Court held that it was not that the Tribunal’s discretion had miscarried, but rather that the Tribunal had misapprehended of the legal effect of the relevant section (at 152-153). That is the second point of distinction between the decision in Lighthouse Philatelics and the present appeal. I address in my consideration of whether the appeal is on a question of law my reasons for concluding that the Tribunal in this case made a decision which involved an exercise of discretion on the assumption that it had jurisdiction, it did not determine that it did not have jurisdiction.

116    In Lewski, the Full Court determined an appeal on a question of law pursuant to s 44(1) of the AAT Act from the final decision of the Tribunal. One of the appeal grounds was a challenge to an interlocutory decision not to grant leave to raise new grounds under s 14ZZK(a) of the TAA (at [124]-[133]). Lewski did not involve an appeal made instanter in respect of an interlocutory decision refusing leave under s 14ZZK(a). Lewski is illustrative of the uncontroversial fact that the applicant may appeal on a question of law from the decision to refuse leave under s 14ZZK(a) as part of an appeal from the final decision of the Tribunal.

117    McLean concerned two appeals from decisions of the Tribunal which were heard together. Like Lewski, the appeals were instituted in relation to the final decision of the Tribunal in which the Tribunal had affirmed the objection decisions made by the Commissioner. One aspect of the appeals was the Tribunal erred in law in refusing each taxpayer leave to amend their grounds of objection under s 14ZZK to include an additional review ground. The Tribunal accepted that it had jurisdiction but, as a matter of discretion, refused the amendments sought. Justice Northrop observed that a party which seeks to appeal on a question of law from a decision of the Tribunal in the exercise of a discretion has a difficult task (at 113B). In allowing the appeal, Northrop J found that the Tribunal’s decision was an error of law in that the Tribunal did not apply the proper principles in the exercise of the unfettered discretion conferred by s 14ZZK and that the proposed grounds formed part of the matters in dispute consistent with the stated grounds (at 116-117). McLean did not involve an appeal instanter from the refusal of leave under s 14ZZK. It is a further illustration of the fact that an interlocutory decision in relation to amendment may properly give rise to an appeal on a question of law as part of the appeal of the final decision of the Tribunal.

118    The first ground of objection to competency is established — the applicant has not discharged its onus of establishing that the appeal lies under s 172(1) in relation to the Tribunal’s decision of 27 March 2025. The appeal is not competent and will be dismissed in accordance with r 33.30(5).

Ground of objection 2: no question of law

119    It is not necessary to determine the remainder of the objection to competency. Had it been necessary to do so, I would have concluded that the applicant’s supplementary notice of appeal is not on a question or questions of law. I will briefly state my reasons.

120    The questions of law which the applicant seeks to pose are extracted at paragraph [55] above. Each of the posited questions do no more than invite the Court to embark upon a broad and hypothetical enquiry regarding the construction or operation of statutory provisions: Screen Australia v EME Productions No 1 Pty Ltd [2012] FCAFC 19; 200 FCR 282 at [24], cited with approval in Haritos at [92].

121    The way in which the appeal is framed does not engage with the constraint in s 172(1) of the ART Act that the appeal must be on a question of law. The applicant submits that the Tribunal’s decision was a decision that it did not have jurisdiction to conduct a review on the proposed additional grounds of review. I reject that submission. The Tribunal’s decision was made on the basis of an exercise of discretion on the assumption that the Tribunal had jurisdiction. None of the questions of law posed are addressed to a question of law arising in relation to an exercise of discretion — it is well recognised that a party which seeks to appeal on a question of law from a decision of the Tribunal in the exercise of a discretion has a difficult task: McLean at 113B. Essential to that task is to identify with precision the question of law that is the subject of the appeal.

122    The Tribunal’s reasons must be read fairly in the context in which they were delivered and with an eye not keenly attuned to error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ) citing Pozzolanic at 287. The reasons for decision of the Tribunal should be read in a balanced and fair manner and the Court should not scrutinise reasons with a view to discerning an error of law which does not truly exist: Hogno v Repatriation Commission [2010] FCA 1044; 118 ALD 1 at [15] (Flick J).

123    The Tribunal’s reasons for its decision identified what it described as two “factors” for consideration: first, whether the Tribunal had jurisdiction to consider the proposed contentions; and secondly, whether if it did, it should exercise its discretion to do so: see T[12].

124    As to the first factor, or issue, the Tribunal noted that:

(1)    the applicant did not address the question of the Tribunal’s jurisdiction to determine the matters raised in the proposed additional grounds: T[13]; and

(2)    the Commissioner submitted that the Tribunal did not have jurisdiction to determine questions regarding a taxpayer whose affairs were not before the Tribunal: T[14].

125    In relation to the Commissioner’s submission, the Tribunal said, at T[15], “[g]iven the statutory framework in which the Tribunal operates, that submission must be correct”, citing Segler and Commissioner of Taxation (Taxation) [2024] AATA 4286. The relevant point made in Segler is that the Tribunal’s jurisdiction conferred under the TAA to review decisions of the Commissioner is only available for matters which fall within the definition of “reviewable objection decisions” which in turn requires that an “objection decision” has been made: see Segler at [25] to [28] and [42] to [43]. Ms Segler’s position was similar to the director’s position in that no reviewable objection decision had been made which would attract the Tribunal’s review jurisdiction. It was in this sense that the Tribunal understood the Commissioner’s submission as being correct, that the Tribunal had no jurisdiction to review and determine the director’s taxation affairs because that was not a matter which was before it.

126    Reading the Tribunal’s reasons fairly, the Tribunal did not positively conclude that it did not have jurisdiction to determine proposed grounds C3 and C4 as against the applicant. Instead, the Tribunal accepted at a general level the uncontroversial proposition that the Tribunal did not have jurisdiction to determine questions regarding a taxpayer whose affairs were not before the Tribunal (and for which the Tribunal cited Segler). The director was such a taxpayer. The Tribunal described grounds C3 and C4 as seeking to argue two grounds which raised factual and legal issues arising out of the personal tax affairs of the director: T[5]. The Tribunal then proceeded by making an assumption that it did have jurisdiction and proceeded to consider whether in the exercise of its discretion, it should permit the enlargement of the review by granting leave in respect of the proposed amended grounds (T[16]) (emphasis added):

I have concluded that even if I had jurisdiction to hear the argument regarding the matters raised in contentions C3 and C4, given [the director’s] taxation affairs are not before me, the Commissioner and any future Tribunal would not be bound by any findings I made. That is, in the context of [the director’s] taxation affairs, any decision I made would be merely theoretical.

127    The Tribunal then set out its reasoning in relation to the second factor, or issue, being the exercise of discretion. It did this under the heading “Discretion”, separating its reasoning by reference to proposed amended grounds “C3 & C4” (see T[17] to [23]) in respect of which it refused leave and proposed amended grounds “C5 & C6” (see T[24] to [28]) in respect of which it granted leave.

128    The Tribunal addressed the exercise of its discretion in relation to proposed grounds C3 and C4 by taking into account and addressing specifically the arguments that the applicant had raised with one exception. The Tribunal declined to consider one aspect of an argument raised by the applicant which the applicant had not initially made to the Tribunal and which the applicant sought to introduce by filing submissions that traversed beyond a limited grant of leave and to which the Commissioner had not had an opportunity to respond: T[20] to [21].

129    The Tribunal accepted that the statutory context of fringe benefits tax meant that both the employer side of the ledger and the employee side of the ledger fall to be considered in any review (T[17]), but did not accept that the Tribunal should proceed to determine a theoretical position not properly before the Tribunal as to the director’s taxation affairs, in circumstances where any decision it may make on grounds C3 and C4 would not bind the Commissioner in considering the director’s taxation affairs, which were then the subject of an extant objection process before the Commissioner (T[18]) and would be based on incomplete information. The Tribunal exercised its discretion under s 14ZZK of the TAA to refuse leave concluding as follows (at T[22] to [23]):

[22]     Weighing strongly against the exercise of my discretion is the inutility of making findings which will not and cannot bind the Commissioner, particularly when in doing so I will have incomplete information and when the issues are live before the Commissioner in an objection which is presently being considered.

[23]     In these circumstances I refused to permit reliance on grounds C3 and C4.

130    Read fairly, the Tribunal did not refuse leave on the basis of a conclusion that it lacked jurisdiction to entertain grounds C3 and C4. What the Tribunal did, was to decline to exercise its discretion to grant leave in circumstances where it would have to proceed on an incomplete information base and there was a risk that the approach taken would be inutile in cutting across the extant objections process pending before the Commissioner. A central difficulty on this application is that the applicant has not put in evidence any of the various iterations of its SFIC, including that which contained the proposed grounds C3 and C4. I have been limited in my consideration of the competency of this appeal to the generalised description of these grounds contained in the Tribunal’s reasons.

131    The “questions of law” posed by the applicant do no more than invite the Court to embark upon a broad and hypothetical enquiry regarding the construction or operation of statutory provisions. The applicant’s four grounds of appeal do not assist in identifying an appealable question of law. Having regard to the principles in Haritos at [93]-[94], I have approached the supplementary notice of appeal as a matter of substance over form, attempting to discern whether any of the four grounds disclose the relevant questions of law to establish the subject matter of the purported appeal. The applicant’s grounds are premised on a mischaracterisation of the Tribunal’s reasoning and had it been necessary to do so, I would have concluded that the appeal as framed does not raise any question or questions of law.

Stay application

132    The application for a stay will be dismissed. That consequence follows from the fact that the appeal is not competent. There is no purpose served by staying the Tribunal proceeding given that the orders I will make today will bring this proceeding to an end.

Costs

133    In the ordinary course, costs follow the event. The Commissioner should have his costs, having prevailed completely.

134    In light of the procedural history, a question arises as to whether there should be an order for indemnity costs. I will make orders granting leave to the Commissioner to apply for costs to be on an indemnity basis. If the Commissioner exercises that leave, I will consider the parties’ submissions on that issue on the papers in chambers.

CONCLUSION

135    For these reasons, the Commissioner’s objection to competency is upheld and the proceeding will be dismissed as incompetent, with costs. Any application pursuant to the limited grant of leave for an alternative costs order will be considered and determined on the papers.

Associate:

Dated:    12 September 2025