Federal Court of Australia

Little Monster Productions Pty Ltd v Screen Australia [2026] FCA 902

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time be refused.

2.    The applicant pay the respondent’s costs as agreed or assessed.

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

ORDERS

THE COURT ORDERS THAT:

1.    The respondent’s cross-appeal be allowed.

2.    The decision of the Tribunal dated 24 September 2025 be set aside.

3.    The proceeding be remitted to the Administrative Review Tribunal for determination of the applicant’s application for extension of time under s 19 of the Administrative Review Tribunal Act 2024 (Cth).

4.    The appeal be otherwise dismissed.

5.    The applicant pay 75% of the respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

KENNETT J:

Background

1    The applicant (LMP) seeks to appeal from decisions by the Administrative Review Tribunal (the Tribunal) in relation to a determination by the respondent (Screen Australia) of its qualifying Australian production expenditure (QAPE) and a Producer Offset Final Certificate under Division 376 of the Income Tax Assessment Act 1977 (ITAA97).

2    Division 376 provides tax offsets for Australian expenditure in making films. A taxpayer may be entitled to a “producer offset”, a “location offset” or a “PDV offset” (referring to post, digital and visual effects production) based on its QAPE in respect of a film. In the case of a producer offset (which was sought by LMP), a prerequisite for entitlement to the offset is that the “film authority” has issued a certificate to the taxpayer under s 376-65 (see s 376-55(1)(b)). The “film authority” is Screen Australia (s 376-55(3)).

3    LMP is a film producer whose sole director is Megan Williams. Ms Williams’s husband, Matthew Drummond, is also a shareholder in the company. Mr Drummond manages the day-to-day functions of LMP.

4    On 20 March 2023, LMP completed the film Don’t Go Below (the film). The film was released in Australian cinemas on 27 April 2023. Post-production services were provided to it by a related company, Hive Studios International Pty Ltd (Hive), of which Mr Drummond is the sole director. LMP and Hive had entered into a “Film Post-Production Services Agreement” on 5 January 2018 (the Services Agreement). Under the Services Agreement (at least on one construction), LMP was to pay Hive an amount of $6,672,720 in exchange for its post-production services.

5    LMP and Hive also entered into a “Production Investment Agreement”, also dated 5 January 2018 (the Investment Agreement) under which Hive was to invest an amount of $7,454,519 in the film.

6    On or about 12 April 2023, LMP applied to Screen Australia for a final certificate in relation to the Producer Offset for the film with a claimed QAPE of $7,764,713 and a total expenditure of $7,785,829. On 22 February 2024, Screen Australia issued a final certificate to LMP for the amount of $1,079,383.

7    LMP applied to the former Administrative Appeals Tribunal (AAT) for a review of Screen Australia’s decision on 23 February 2024. The AAT was abolished and replaced by the Administrative Review Tribunal (the Tribunal) with effect from 14 October 2024 and the review commenced by LMP continued as a review in the Tribunal, subject to the provisions of the Administrative Review Tribunal Act 2024 (Cth) (ART Act).

8    The parties identified three issues as central to the review:

(a)    whether particular amounts of expenditure had been “incurred”, in the relevant sense, by LMP (Issue 1);

(b)    whether, if any of these amounts had been “incurred”, they were excluded from LMP’s QAPE by particular provisions in s 376-135 of the ITAA97 (Issue 2); and

(c)    if the amounts were incurred and were part of LMP’s production expenditure, whether they exceeded the amounts that would have been incurred had LMP and Hive been dealing at arm’s length (Issue 3).

9    The parties asked the Tribunal to determine Issues 1 and 2 as separate questions and agreed that Issue 3 would require determination only if Issues 1 and 2 were decided in LMP’s favour. The Tribunal conducted a hearing on Issues 1 and 2 on 18 November 2024.

10    On 10 January 2025, the Tribunal provided to the parties a decision and reasons dated 9 January 2025 (the first Tribunal decision). The “decision” was in the following terms.

The Tribunal answers the preliminary questions submitted for determination in the following way:

1.    Whether the “Reviewable QAPE Amounts” have been incurred by the Applicant: The Tribunal answers the question “no”.

2.    Whether, if any or all of the “Reviewable QAPE Amounts” have been incurred by the Applicant, those amounts are excluded from the Applicant’s production expenditure pursuant to s 376-135, items 6, 7 and/ 9 of the Income Tax Assessment Act 1997 (Cth): The Tribunal does not need to answer the question.

11    Correspondence between the parties and the Tribunal followed. Screen Australia was of the view that the Tribunal’s answers to Issues 1 and 2 meant that the decision under review must be affirmed. LMP, having apparently been of the same view at earlier stages, now took a different view.

12    After a directions hearing before the Tribunal, LMP’s solicitor sent an email to the Tribunal withdrawing its review application. When an application for review is withdrawn, it is deemed to be dismissed pursuant to s 95(2) of the ART Act. On 6 February 2025 the Tribunal confirmed receipt of the withdrawal and noted that the application was therefore taken to be dismissed (the dismissal).

13    LMP applied to reinstate the review application on 1 April 2025. The Tribunal published a decision on 24 September 2025 in the following terms (the second Tribunal decision).

The Tribunals [sic] earlier decision dismissing the application for review is of no effect. The decision of the Respondent under review is affirmed.

14    Briefly, the basis for this decision was that the Tribunal’s acceptance of LMP’s withdrawal was affected by jurisdictional error and should be treated as a nullity. On this understanding, LMP’s review application remained on foot; however, giving effect to the answers to the separate questions published in the first Tribunal decision, the decision of Screen Australia was affirmed.

15    On 16 October 2025, LMP filed a notice of appeal from a tribunal, seeking to appeal under s 172 of the ART Act from the second Tribunal decision. This is proceeding SAD233/2025.

16    Screen Australia filed a notice of objection to competency on 30 October 2025 and then a notice of cross-appeal on 6 November 2025.

(a)    The notice of objection to competency alleged that the second Tribunal decision was of no effect. In the light of a long line of cases (see eg Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; 24 ALR 307), jurisdictional error by a merits review tribunal does not deprive the Court of jurisdiction to determine an “appeal” from a decision of the Tribunal. It was probably for this reason that a notice of cross-appeal was filed. The notice of objection to competency does not appear to be pressed.

(b)    In the notice of cross-appeal, Screen Australia contended that the Tribunal had erred in its second decision by concluding that the earlier dismissal of the review application was affected by jurisdictional error.

17    LMP then changed its position. On 19 November 2025 it filed an application for an extension of time to appeal from the first Tribunal decision and a draft notice of appeal. This is proceeding NSD2136/2025.

18    LMP does not now defend the second Tribunal decision insofar as it identified an error in the dismissal and then purported to determine its review application substantively. It submits that its review application was finally determined by the first Tribunal decision and, on this basis, seeks to appeal from that decision. A consequence of this submission, if correct, is that the parties and the Tribunal were proceeding on a misconception in all of the steps that followed (LMP’s withdrawal, the Tribunal’s confirmation of its effect, the attempt to reinstate the review application, the second Tribunal decision and the appeal and cross-appeal from that decision).

19    Screen Australia, meanwhile, submits that LMP’s review application was finally determined by the dismissal which was the consequence of LMP’s withdrawal. It submits that the Tribunal’s second decision was affected by jurisdictional error insofar as it treated the dismissal as a nullity and the review application as still being on foot.

20    For the reasons set out below, I have come to the following conclusions.

(a)    The first Tribunal decision did not purport to be, and was not, “the decision of the Tribunal in the proceeding” within the meaning of s 172 of the ART Act. It is not capable of being the subject of an appeal under s 172. The extension of time sought in NSD2136/2025 must therefore be refused on the basis that the proposed appeal is incompetent.

(b)    LMP’s review application was finally determined by the dismissal, consequent upon it having withdrawn the application. The Tribunal proceeded on an incorrect basis in its second decision when it came to the view that the dismissal was infected by jurisdictional error. The second Tribunal decision was made without jurisdiction and should be set aside for that reason.

(c)    The Tribunal has not decided an application, made by LMP in the alternative, for an extension of time to make a further review application under s 19 of the ART Act. The matter should be remitted to the Tribunal for that to occur.

21    LMP’s proposed grounds of appeal from the first Tribunal decision were fully argued. However, in the light of the conclusions I have reached, it is not necessary to address those grounds.

The first Tribunal decision

22    LMP’s draft notice of appeal from the first Tribunal decision is framed only as an “appeal” and is cast in the form of a “notice of appeal from a tribunal”. It does not expressly identify the source of jurisdiction that it invokes, but it is clear that it is intended to be an “appeal” under s 172 of the ART Act. It does not, for example, seek relief under s 39B of the Judiciary Act 1903 (Cth) in the alternative. It is therefore necessary to focus on s 172, which provides as follows.

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.

Note 1:     A party to a proceeding for review of a decision of the Child Support Registrar, or second review that relates to the decision, may in some instances appeal instead to the Federal Circuit and Family Court of Australia (Division 2) (see section 99 of the Child Support (Registration and Collection) Act 1988 and section 131E of this Act).

Note 2:     For when a party to a proceeding for review of a decision under the Migration Act 1958 can make an application to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2), see sections 476 and 476A of the Migration Act 1958).

(2)    To avoid doubt, subsection (1) does not apply in relation to a decision under section 128 (President decides whether to refer Tribunal decision to guidance and appeals panel).

Note:    A decision under section 128 is not a decision of the Tribunal.

23    “Decision” is broadly and inclusively defined in s 4 of the ART Act. That breadth is explicable by the fact that the subject-matter of the Tribunal’s jurisdiction is “reviewable decisions” (defined by s 12), which may be of many kinds and made under many different Acts, and one of the parties to a review is the “decision-maker” (defined by s 14). Section 172, on the other hand, refers to a decision of the Tribunal itself: “the decision of the Tribunal in the proceeding”.

24    “Proceeding” is defined in s 4 (again inclusively) as including “a proceeding in the Tribunal in relation to”, relevantly, “an application for review of a reviewable decision”. Use of the defined term itself as an essential part of the definition indicates that the definition is seeking to identify only instances of the general concept (“a proceeding in the Tribunal”) and makes it illogical, if not impossible, to apply the holding in Owners of “Shin Kobe Maru” v Empire Shipping Co Inc (1994) 181 CLR 404 that the ordinary meaning of the defined term cannot be relied on when construing a definition. A “proceeding in the Tribunal in relation to … an application for review of a reviewable decision” should therefore be understood to involve a “proceeding” in the ordinary sense of that term: the sequence of steps beginning with an application for review (s 17), moving through relevant procedural steps under the ART Act and ending with the disposition of the review. Part 4 of the ART Act is headed “Proceedings” and makes provision for applications, the constitution of the Tribunal, procedure, the Tribunal’s powers, and “decisions”.

25    Section 172(1), as noted above, refers to “the decision” in the proceeding. This language differs from the predecessor provision, s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), which provided that a party to a proceeding could appeal on a question of law “from any decision of the Tribunal in that proceeding”. This was a deliberate drafting choice. The Revised Explanatory Memorandum to the Administrative Review Tribunal Bill 2024 (the EM) said at [1097]:

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.

26    Section 44(1) was held to provide for appeals only from “decisions” of a determinative character – that is, decisions that actually determine rights and duties – and s 172(1) was clearly intended to confirm that position: see Pratten v Commissioner of Taxation [2025] FCA 749 at [8]-[18] (SC Derrington J); RPPL Pty Ltd v Commissioner of Taxation [2025] FCA 1126 at [64]-[83] (Cheeseman J). Section 172 is if anything more restrictive, in that it is expressly limited to “the decision” (which at least ordinarily means the final decision) and it does not expressly permit an appeal from a decision about standing (as s 44(2) of the AAT Act did).

27    Division 8 of Part 4 of the ART Act is headed “Decision”. Subdivision A provides for the withdrawal of applications (s 95) and for particular circumstances where the Tribunal may dismiss an application (eg if the parties consent or the applicant does not appear). Subdivision B (which contains only s 103) empowers the Tribunal to make a decision on a review in terms agreed by the parties. Subdivision C is expressed (by s 104) to apply “in relation to an application for review of a reviewable decision”. Its central provision is s 105, which (echoing s 43(1) of the AAT Act) provides:

105  Tribunal decision on review of reviewable decision

In relation to the reviewable decision, the Tribunal must make a decision:

(a)     affirming the reviewable decision; or

(b)     varying the reviewable decision; or

(c)     setting aside the reviewable decision and:

(i)     making a decision in substitution for the reviewable decision; or

(ii)     remitting the matter to the decision-maker for reconsideration in accordance with any orders or recommendations of the Tribunal.

28    Section 107 then provides in some detail for when the Tribunal’s decision on a review “comes into operation”. Generally that occurs when the decision is given to the parties (s 107(1)). Importantly, also, s 108 provides as follows.

108  Effect of Tribunal decision to vary or substitute a reviewable decision

When this section applies

(1)     This section applies if the Tribunal:

(a)     varies the reviewable decision; or

(b)     sets aside the reviewable decision and makes a decision in substitution for the reviewable decision.

Decision is taken to be decision of decision-maker

(2)     The reviewable decision as varied, or the decision made in substitution for the reviewable decision, is taken be a decision of the decision-maker for all purposes other than:

(a)     section 16 (decision is taken to be made if timeframe expires); or

(b)    Division 3 of Part 3 (applying for review of decision); or

(c)     Divisions 2 and 4 of Part 7 (appeals and references of questions of law to Federal Court); or

(d)     Part 10 (notice and information about administrative decision).

No application for review of varied or substituted decision

 (3)     Application may not be made to the Tribunal for review of the reviewable decision as varied or the decision made in substitution for the reviewable decision.

Note 1:     In some circumstances, application may be made to refer to the guidance and appeals panel a decision of the Tribunal to affirm, vary or set aside a decision (see section 123).

Note 2:     This subsection does not apply in relation to ART social services decisions (see Part 5A).

Timing

 (4)     When the decision of the Tribunal to vary or set aside the reviewable decision comes into operation, the reviewable decision as varied, or the decision made in substitution for the reviewable decision, has effect, or is taken to have had effect, from the time at which the reviewable decision has or had effect.

 (5)     Subsection (4) does not apply if the Tribunal orders otherwise.

29    For present purposes, what emerges from these provisions is that the Tribunal’s “decision” in a proceeding is a decision that has legal consequences. The primary decision (which is one made under an enactment) is “affirmed” (so that it continues to have effect), “varied” (so that it has effect as if the decision as varied were one made by the original decision-maker), or “set aside” (so that it ceases to have effect and is replaced by a decision of the Tribunal or sent back to the original decision-maker). In making one or other of these decisions the Tribunal is in the same position as the AAT, which was commonly said to “stand in the shoes” of the original decision-maker (Miller v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 13; 278 CLR 628 at [14] (Gageler CJ, Gordon, Edelman, Jagot and Beech-Jones JJ) (Miller) applying Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; 266 CLR 250 at [51] (Bell, Gageler, Gordon and Edelman JJ)) or “do over again” the task of that decision-maker (Miller at [14]; Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286 at [100] (Hayne and Heydon JJ)): that is, to exercise the same statutory power with the same effect on legal rights.

30    Making a “decision”, in a statutory context of this kind, involves both “reaching a conclusion on a matter as a result of a mental process” and “translating that conclusion into a decision by an overt act of such character as, in the circumstances, gives finality to the conclusion”: Semunigus v Minister for Immigration and Multicultural Affairs [2000] FCA 240; 96 FCR 533 at [11] (Spender J), [55] (Higgins J) and [101] (Madgwick J). Here, the necessary “conclusion” was that the decision under review was to be affirmed, varied or set aside (s 105). The Tribunal’s “decision in the proceeding” must involve – and convey – a conclusion in those terms. Indeed, the “decision” here can be said to involve more than a “conclusion” about the correct or preferable outcome. It is a conscious act that determines the future statutory rights of the review applicant and the decision-maker.

31    The “overt act” required by the ART Act was, under s 111(2), as follows:

(2)     The Tribunal must give each party to the proceeding the following things in writing:

(a)    the Tribunal’s decision;

(b)    a statement of reasons for the Tribunal’s decision;

(c)    if the party has a right to apply to refer a decision of the Tribunal to the guidance and appeals panel under Division 3 of Part 5—notice of that right;

(ca)    if the party has a right to apply for second review of the Tribunal’s decision under Part 5A—notice of that right;

(d)    notice of the right of the party to appeal to the Federal Court under Division 2 of Part 7.

32    Two things will be noted. One is that the “decision” must be given to the parties. The decision, as noted earlier, must confirm, vary or set aside the primary decision and is an exercise of statutory power that affects the rights of the parties. That requires clarity in the way the decision is conveyed. The other is that the provision of a statement of reasons for a decision is a distinct act from the making of the decision: the former explains, but does not constitute, the latter.

33    In the present case the first Tribunal decision used the Tribunal’s template for announcing a decision and providing reasons. The first page was headed “Decision and Reasons for Decision” and set out the names of the parties, the proceeding number, the constitution of the Tribunal and the date. The text inserted next to the heading “Decision”, which is set out in full at [10] above, recited two of the “preliminary questions” submitted by the parties and the Tribunal’s answers to them (“no” and “the Tribunal does not need to answer the question”). Underneath this was the Tribunal Member’s signature block. The Tribunal’s statement of reasons for giving these answers began on the following page.

34    Although the first Tribunal decision had the look and feel of a “decision of the Tribunal in the proceeding”, it plainly did not purport to determine the proceeding in any of the ways envisaged in s 105. It provided the Tribunal’s answers to two questions which were identified as “preliminary”. It envisaged that something more would occur before the proceeding was finally determined and the rights of the parties were confirmed or affected.

35    There are no express provisions in the ART Act for the stating and answering of separate questions (contrast, eg, rr 30.01 and 30.02 of the Federal Court Rules 2011 (Cth)). Proceeding in this way is clearly within the Tribunal’s discretion as to procedure under s 49 and is a useful way of narrowing the issues in some cases. However, the Tribunal’s answer to a preliminary question does not have any particular legal force in itself (contrast this Court’s answer to a separate question, which results in a formal order that is at least capable of being the subject of an appeal to the Full Court: Arrowcrest Group Pty Ltd v Gill (1993) 46 FCR 90 at 100 (French J, Jenkinson and Spender JJ agreeing)). It is no more than an opinion of the Tribunal intended to give shape to the further conduct of the proceeding. It would not, for example, be capable of being quashed by certiorari (although prohibition or an injunction might lie to prevent further steps being taken on the basis of a legally erroneous answer).

36    In support of its submission that the first Tribunal decision finally determined its review and was capable of being the subject of an appeal LMP pointed to the Tribunal’s reasons at [126]-[127], which were as follows.

I have decided that the Reviewable QAPE Amounts have not been incurred by [LMP] and therefore my answer to the first separate question is “no”.

In the event the Tribunal answers the first separate question as “no” it follows the decision under review must be affirmed.

37    The second of these paragraphs, at least on its face, is somewhat equivocal. It seems to indicate that the Tribunal had not ruled out the possibility of further evidence being introduced or arguments put before the first question was definitively answered. Be that is it may, this was part of the Tribunal’s reasons and not part of the formal statement of its decision. At its highest, it stated the Tribunal’s understanding of how the review would be determined in the light of the answer it had reached. It allowed for, and possibly assumed, further submissions from the parties as to what the final decision in the proceeding should be.

38    For these reasons, the first Tribunal decision was not “the decision of the Tribunal in the proceeding” within the meaning of s 172 of the ART Act. It follows that LMP’s proposed appeal from this decision is incompetent and the application for an extension of time should be refused.

39    Had I come to a different view on the competency of the proposed appeal, I would have refused to grant an extension of time in any event. As will emerge from the events related below, by early March 2025 there was no impediment to LMP appealing from the first Tribunal decision (assuming such an appeal to be competent). Instead of doing so, and apparently on advice, it pursued a different course. The only explanation for LMP not having attempted to appeal from the first Tribunal decision until 19 November 2025 is that its advisers had regarded a different approach (ie, attempting to reinstate the review) as preferable. That is not a sufficient reason to permit the commencement of an appeal approximately 10 months out of time.

The dismissal and the second Tribunal decision

Withdrawal and deemed dismissal

40    After the handing down of the first Tribunal decision, the Tribunal contacted the parties to seek their availability for a telephone directions hearing. This was described on 15 January 2025 in an email by a member of the Tribunal’s staff as “to discuss [how to] proceed with the finalisation of this matter”. Screen Australia’s solicitor responded by submitting that the Member “should proceed to issue a final decision affirming Screen Australia’s original decision (consistent with [127] of the Tribunal’s reasons)”.

41    LMP’s solicitors sent an email to the Tribunal on 28 January 2025 attaching written submissions. They argued that there were substantial issues that had not been considered and asked the Tribunal to proceed with “a merits review of the Original Decision in its full substance”. Screen Australia’s solicitors responded, arguing that LMP was attempting to reopen the issues already determined. On 30 January 2025, the Tribunal responded by email indicating that it would not be reopening the issues ventilated in connection with the separate questions. A directions hearing occurred on 31 January 2025 and the matter was adjourned to 7 February 2025. However, later on 31 January, LMP’s solicitor sent an email to the Tribunal saying that he had been instructed to withdraw LMP’s review application. He said:

We understand the effect of such withdrawal, which can be made at any time pursuant to s.95(1) of the ART Act … is that “the Tribunal is taken to have dismissed the application” and the Tribunal “cannot take any further action on the application for review”. This would include the public communication of the reasons on the Preliminary Questions.

42    A staff member of the Tribunal sent an email to the solicitors for the parties on 6 February 2025, confirming receipt of LMP’s notice of withdrawal and observing that, in accordance with s 95 of the ART Act, the Tribunal was taken to have dismissed the application.

Application for reinstatement

43    LMP had apparently decided to withdraw its review application and avoid having an adverse decision (and reasons) published because it lacked the resources to pursue an appeal in this Court. However, shortly afterwards, LMP was able to obtain funding to pursue an appeal. It began seeking to have its review reinstated under s 102 of the ART Act.

44    An obstacle that LMP faced was that, while s 102(7) allows a party to apply for reinstatement within 28 days after a review is dismissed under ss 95, 99 or 100, an application under that provision by an applicant whose review was withdrawn under s 95 was expressly precluded by s 102(8). On 4 March 2025, LMP asked Screen Australia to apply for reinstatement of the proceeding under s 102(7). This request was not acceded to. On 1 April 2025, LMP made an application for reinstatement under s 102(5) and (6), which provide as follows.

(5)    A party to the proceeding in relation to the application may apply to the Tribunal for reinstatement of the application on the grounds of error within 28 days after the party receives notice that the application is dismissed (or such longer period as the Tribunal, in special circumstances, allows).

(6)    If a party applies under subsection (5) and the Tribunal considers that the application was dismissed in error, the Tribunal may reinstate the application and make such orders as appear to the Tribunal to be appropriate in the circumstances.

45    The Tribunal heard this application on 3 July 2025. The parties filed written submissions on 17 July 2025 and a further hearing occurred on 19 August 2025. The second Tribunal decision was published on 24 September 2025.

46    The Tribunal was not persuaded that any error within the scope of s 102(6) had occurred in the course of LMP withdrawing its review application. However, it discerned an alternative argument to the following effect (at [39]).

In their written submissions and at the second hearing on the reinstatement application, [LMP] argued the error was in the Tribunal suggesting, and then accepting and giving effect to [LMP’s] notice of withdrawal. They contended that following the determination of the separate questions, the Tribunal was functus officio and ought to have made orders affirming the decision of Screen Australia under s105 of the ART Act. It was that error of the Tribunal that resulted in the dismissal.

47    The Tribunal reasoned as follows (at [43]-[50]).

In the circumstances of this case, although the Tribunal noted at [127] in the statement of reasons, that following its answer to the first separate question that “the decision under review must be affirmed”, it did not make a formal order under s 105 of the Act. The failure to do so meant the Tribunal had not properly discharged is statutory function falling into error.

…

In this case, there had been a hearing on the merits as defined by the separate questions. In circumstances where the determination of the separate questions disposed of the review in its entirety, the Tribunal should have affirmed the decision of the Respondent at that time. There were no residual issues for consideration.

...

The Tribunal accepts that its error produced the environment in which the Applicant was able to lodge the withdrawal. However, it does not accept the error induced the dismissal ...

48    The Tribunal characterised this error as “jurisdictional” (at [52]) and then, citing Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597 (Bhardwaj), reasoned that it was open to it to reconsider a decision that it has concluded to be a nullity (at [53]). The error that was discerned in the first Tribunal decision was described as follows (at [58]-[63]).

Section 105 of the ART Act provides that after conducting a review, the Tribunal is to make a decision affirming, varying or setting aside the decision under review and where appropriate, substituting a new decision or remitting the matter back to the decision maker for reconsideration. The statutory design of the ART Act assumes the Tribunal will, once the evidence and submissions are received, dispose of the proceeding by way of a final decision that resolves the issues between the parties.

In this case, the matter proceeded in an unusual manner. Rather than determining all the issues together, the parties requested, and the Tribunal agreed, to determine Issue 1 and Issue 2 as separate questions. By dealing with the review in this way, there would only be a residual issue for determination (Issue 3) should the Tribunal decide the separate questions favourably to the Applicant.

The Tribunal’s answer to Issue 1 was ‘no’ which resolved the substantive controversy between the parties. Had the application run the usual course and all extant issues determined concurrently in the one hearing, the Tribunal’s conclusion in respect of Issue 1 would have resulted in the Tribunal making a final decision under 105 of the ART Act affirming the Respondent’s decision. It was the use of the uncommon process which led to the oversight.

The Tribunal’s determination of the separate questions was treated as an end in itself without the consequential final decision. The proceeding was then in anomalous position where there existed a determination of a separate question but not the final decision that should have followed. The Tribunal’s function under s 105 of the ART Act had not yet been formally discharged despite the fact that the material facts and issues had been determined such that the Respondent's decision should be affirmed.

This did not arise from the parties’ failure to advance their case but from the procedural path taken which diverged from the normal process contemplated by the ART Act. The circumstances leading to the error were on this basis exceptional, unusual and of such a fundamental nature as to engage the Bhardwaj principle.

The decision to dismiss the review following the withdrawal was a nullity. Had the Tribunal discharged its statutory task and made a decision under s 105 of the ART Act, there would have been no application capable of being withdrawn and therefore dismissed by the Tribunal. The dismissal decision was infected by jurisdictional error and accordingly is entitled to be regarded by the Tribunal as no decision in law.

49    Having concluded that the “decision to dismiss the review” was a nullity, the Tribunal resolved the issues before it as follows (at [73]-[76]).

Noting the earlier dismissal decision is of no effect, it is appropriate for the Tribunal to correct the oversight leading to jurisdictional error and discharge its statutory function under s105 of the ART Act.

On 9 January 2025, the Tribunal decided that the Reviewable QAPE amounts had not been incurred by the Applicant and the answer to the first separate question (Issue 1) was ‘no’. In respect of Issue 1, the Tribunal concluded:

•    the Fee for the post production services covered by the Services Agreement had not been paid or otherwise discharged by the Applicant;

•    the payment clause in the Services Agreement did not set out any terms or conditions of payment and so there was not a presently existing obligation which had been definitely committed to by the Applicant; and

•    even if there was an obligation to pay, it was contingent upon the receipt of the gross receipts of the Film and therefore not a presently existing liability.

The Tribunal observed that it was not necessary to determine the second question, but should it be wrong about whether the expenses had been incurred, the Reviewable QAPE amounts would otherwise be excluded from the Applicant’s production expenditure. In respect of Issue 2, the Tribunal concluded the Fees were not production expenditure and not QAPE by reason of the fact that were [sic] deferments or profit participation for the purposes of s 376-135 of the ITAA 97.

As a consequence of the Tribunal’s answer to the first separate question, namely that the Reviewable QAPE had not been incurred by the Applicant, the decision under review should be affirmed. Detailed reasons for the decision are contained in the statement of reasons provided to the parties on 10 January 2025.

50    As noted earlier, LMP appealed from the second Tribunal decision. This was on the footing that it was by way of the second Tribunal decision that Screen Australia’s original decision had been affirmed. Screen Australia cross-appealed and submits that the basis upon which the Tribunal purported to affirm its decision (ie, that the dismissal was a nullity) was not correct. If Screen Australia’s submission is correct, LMP’s review application was determined by the dismissal and the second Tribunal decision is of no effect.

51    LMP does not now seek to defend the reasoning that underpinned the second Tribunal decision. However, the agreement of the parties is not in itself a sufficient basis to set that decision aside (see eg Irwin v Military Rehabilitation and Compensation Commission [2009] FCAFC 33; 174 FCR 574 at [13]-[15] (Downes, Greenwood and Tracey JJ)). It is therefore necessary to consider whether the basis on which the second Tribunal decision proceeded was wrong.

The errors in the second Tribunal decision

52    The second Tribunal decision has at least these significant problems.

53    First, its starting point appears to have been that the Tribunal, in the first Tribunal decision, failed to perform its statutory task under s 105 of the ART Act when it delivered its answers to the preliminary questions and did not simultaneously make a final decision affirming Screen Australia’s primary decision. With respect, that is not so. The Tribunal had not heard the proceeding generally. In its first decision the Tribunal was deciding questions which the parties had asked it to answer on the basis that the answers, if they went in a particular way, would decide all the issues in the review application. Its understanding that answering the first question negatively would lead to Screen Australia’s decision being affirmed may well have been correct. However, there was no error in seeking to have the parties confirm this understanding before making a final decision; indeed, not to do so would have risked a significant denial of procedural fairness to LMP. As events showed, at the time of the first Tribunal decision or shortly afterwards, LMP had second thoughts as to whether the answers of the Tribunal actually were sufficient to dispose of the review.

54    Secondly, even if there was nothing further for the Tribunal to do after the first decision other than give effect to its answers by affirming Screen Australia’s decision, it does not follow that the Tribunal had taken any purported action that was a nullity in the sense discussed in Bhardwaj. The problem, if there was one, was the lack of action.

55    In Bhardwaj, the Tribunal had made a decision adverse to the review applicant but then discovered that it had erroneously denied him a hearing. Its second decision (which was favourable to the review applicant) was held to be valid on the footing that the first decision was “no decision at all” (at [51] and [53] (Gaudron and Gummow JJ)). Here, at most, there was an unnecessary delay in making a decision under s 105; there was nothing that purported to be a decision but lacked legal efficacy. The failure to make a decision straight away might have played a causal role in LMP deciding to withdraw its review application; however that, in the Tribunal’s view, did not engage s 102(6).

56    Thirdly, even if the Tribunal could have been compelled by mandamus to make a decision under s 105, until that happened LMP’s review application would remain on foot. Accordingly, the review was still on foot at the time LMP withdrew its application and there is no reason to think that that withdrawal was not effective. Section 95(1) provides that an application may be withdrawn by written notice to the Tribunal “at any time”; and the consequence of such a withdrawal – deemed dismissal – flows automatically by operation of s 95(2).

57    The second Tribunal decision therefore proceeded on an incorrect premise. The Tribunal had no jurisdiction to affirm Screen Australia’s decision because the review of that decision had been dismissed, by operation of s 95(2), on or about 31 January 2025.

Extension of time for a further application to the Tribunal

58    In its reasons for the second Tribunal decision, the Tribunal noted that LMP had sought in the alternative an extension of time to file a further review application under s 19 of the ART Act (at [1] and [72]). The Tribunal did not find it necessary to determine this application. LMP submitted that, if it was otherwise unsuccessful in the proceeding, the matter should be remitted to the Tribunal for that application to be determined.

59    Although remittal to the Tribunal is part of the relief sought by LMP in its notice of appeal from the second Tribunal decision, a failure to deal with its extension application under s 19 is not an element of any of the grounds set out in LMP’s notice of appeal or any of the questions of law that are said to arise. All of LMP’s grounds attack the reasoning in the reasons for the first Tribunal decision, which the Tribunal in effect adopted in making its second decision. However, Screen Australia does not raise that point in opposition to LMP’s reliance on its extension of time application. Instead, Screen Australia submits that an extension of time to make a fresh application in the Tribunal is precluded by s 19(4) of the ART Act and remitter would therefore be futile.

60    Section 19 relevantly provides:

19  Exception—Tribunal may extend period

Application to extend period

(1)    A person (the applicant) may apply to the Tribunal to extend the period during which the applicant may apply to the Tribunal for review of a decision.

(2)    The Tribunal may, by order, extend the period if the Tribunal considers that it is reasonable in all the circumstances to do so.

(3)    The Tribunal may extend the period even if it has expired.

Exception—where reinstatement is available or has been refused

(4)    The Tribunal must not extend the period if:

(a)    section 102 permits the applicant to apply to the Tribunal to reinstate an application by the applicant for review of the decision; or

(b)    the Tribunal refuses an application by the applicant under section 102 to reinstate an application for review of the decision.

61    The difficulty with Screen Australia’s submission is that:

(a)    the Tribunal has not expressly refused LMP’s application for reinstatement (rather, the second Tribunal decision is to the effect that the review application had not been effectively dismissed) and it was not submitted that s 19(4)(b) is engaged; and

(b)    section 19(4)(a) – which prima facie speaks at the time the Tribunal is deciding whether to extend the period – refers to the applicant having permission to apply for reinstatement in the present tense.

62    Screen Australia submits that s 19(4)(a) should be construed so as to be applicable where the applicant has or has had an opportunity to seek reinstatement. I have not been referred to, or found, any relevant authority on this issue.

63    In the present case LMP, by virtue of having withdrawn its original application under s 95, was precluded by s 102(8) from seeking reinstatement under s 102(7). It was limited to seeking reinstatement “on the grounds of error” under s 102(5), which is what it sought to do (although that application seems to have been outside the 28 day time limit in s 102(5)). However, s 19(4) would be quite illogical if it permitted a second review application to be made out of time by an applicant which had withdrawn a previous review application but prevented a second review application by an applicant who was entitled to seek reinstatement under s 102(7). The reference in s 19(4)(a) to being “permitted” to seek reinstatement should therefore be understood to include the capacity to make an application under s 102(5) for reinstatement on the ground of “error”.

64    The larger problem for Screen Australia’s submission is the use of the present tense in s 19(4)(a). Read literally, the paragraph only applies to an applicant who, at the time the extension application is decided, can apply for reinstatement. It therefore does not prevent an extension of time being granted to an applicant who has already applied for review of the relevant decision, has been unsuccessful and has allowed the time for seeking reinstatement to pass by.

65    The EM touches on this issue, but unfortunately not in a way that sheds much light on it. It says in relation to cl 19(4) of the Bill (at [309]):

Subclause (4) provides that the Tribunal must not extend the timeframe to lodge a new application if the ability to seek reinstatement exists under clause 102, or the Tribunal has refused an applicant’s request for reinstatement. Clause 102 of the Bill allows the Tribunal to reinstate a dismissed application, either on application or by its own initiative. This is generally limited to within 28 days of the application being dismissed. Subclause 19(4) effectively directs persons to seek reinstatement of a dismissed application rather than making a new application on the same matter. This is because a person should not be able to re‑apply for review of a decision that has already been dismissed by the Tribunal.

66    The statement that cl 19(4) directs a person to seek reinstatement instead of making a new application is consistent with a literal reading of s 19(4)(a) and tends against Screen Australia’s submission. On this view, an extension is not to be granted where reinstatement is an option but otherwise an extension is possible. However, that reading makes the presence of s 19(4)(b) (which precludes an extension when reinstatement has been refused) hard to explain. On the other hand, the final proposition in the extract above – that a person should not be able to re-apply for review of a decision when a review has “already been dismissed” – while easy to understand as a matter of policy, makes a quite different point which does not cohere with the language of s 19(4) at all. If the intention of the legislature was to prevent repeated review applications in relation to the same decision, it seems likely that that a provision clearly reflecting that intention would be included (rather than cryptic references to the availability of reinstatement in a section primarily concerned with extensions of time).

67    This leaves the policy of s 19(4) somewhat obscure. However, the construction proposed by Screen Australia is difficult to reconcile with Parliament’s choice of language. The class of unsuccessful review applicants who have or have had the capacity to apply for reinstatement under s 102(5) or (7) would seem to include all unsuccessful review applicants. If that was the intended result, it would have been much simpler to provide in terms that a person was not permitted to make more than one application for review of a decision. The preferable approach, therefore, is to give the words of s 19(4)(a) their ordinary meaning. On this approach, the Tribunal is not precluded from granting LMP an extension of time in which to make another application to review the decision of Screen Australia.

68    There is therefore no reason why the matter should not be remitted to the Tribunal for LMP’s extension of time application to be determined.

Disposition

69    In NSD2136/2025, LMP’s application for an extension of time in which to appeal will be refused with costs.

70    In SAD233/2025, Screen Australia’s cross-appeal will be allowed and the second Tribunal decision will be set aside on the ground that the Tribunal had no jurisdiction to make a substantive decision on the review. The matter will be remitted to the Tribunal for determination of LMP’s application for an extension of time under s 19 of the ART Act. LMP’s appeal will otherwise be dismissed. Taking account of LMP’s success on one aspect (remittal for consideration of its extension application), it should pay 75 percent of Screen Australia’s costs of the proceeding.

Associate:

Dated:    14 July 2026