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WHITE INDUSTRIES AUSTRALIA LTD & ANOR v FC of T

Members:
Lindgren J

Tribunal:
Federal Court

MEDIA NEUTRAL CITATION: [2007] FCA 511

Decision date: 11 April 2007

Lindgren J

Introduction

1. The present proceeding is ancillary to two other proceedings in the Court (N 123 of 2003 and N 125 of 2003) in which the respective applicants appeal under Part IVC of the Taxation Administration Act 1953 (Cth) ("the TAA") against appealable objection decisions of the second respondent ("the Commissioner"). In this proceeding, the applicants challenge a decision of the first respondent ("Mr O'Neill") to "approve access" to certain accounting documents discovered by the applicants in those other proceedings. The decision to approve access derives its meaning from certain guidelines issued by the Commissioner referred to below. The applicants rely on s 5 of the

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Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the AD(JR) Act") and ss 39B(1) and (1A) of the Judiciary Act 1903 (Cth) ("the Judiciary Act").

2. These reasons relate to the respondents' motion for an order that the proceeding be dismissed pursuant to O 20 r 2(1)(a) of the Federal Court Rules ("FCRs") (see [46] below) or, alternatively, for judgment for the respondents pursuant to s 31A(2) of the FCA Act (see [49] below). The motion is largely based upon an objection to competency, notice of which was filed on 30 August 2006.

3. Order 20 r 1A, which commenced on 22 December 2006, provides that O 20 applies only to proceedings commenced before 1 December 2005, the date on which s 31A of the FCA Act commenced. Section 31A applies to proceedings that were commenced on and after that date.

4. The present proceeding was commenced on 31 July 2006; the notice of motion for summary dismissal was filed on 31 October 2006; the motion was heard on 6 November 2006; and the last written submission was received on 7 December 2006. All of these dates occurred in the period when both s 31A and O 20 operated, and before rule 1A of O 20 commenced.

5. Has the introduction of r 1A on 22 December 2006, after judgement was reserved, altered the position? It has. On and from 22 December 2006, r 1A has instructed me that O 20 applies only to proceedings commenced before 1 December 2005. Therefore, I am required to disregard O 20. I will, however, refer to both s 31A and O 20 below (see [45] ff) in order to make it clear that there would be no difference in the result even if O 20 governed the position.

Background facts

6. I need not discuss the detail of the issues involved in the appeals against the appealable objection decisions. They were commenced in this Court on 14 February 2003. They relate to appealable objection decisions dated 20 December 2002, on objections dated 13 April 2002 against amended assessments dated 30 November 2001 in respect of the year ended 30 June 1997.

7. On 3 August 2004 the applicants gave discovery in their respective appeals by the filing of a single list of documents. They claimed that the documents referred to in Pts 2(a) and (b) of Schedule 1 to the list were privileged from production. As to the documents listed in Part 2(a), being documents numbered 202 to 225, legal advice privilege was claimed. I am not concerned with them. As to the documents listed in Part 2(b), being documents numbered 226 to 238, the claim was that they were advice from accountants privileged pursuant to guidelines issued by the Commissioner. Specifically, the documents were:

"either restricted source documents or non-source documents within the meaning of those words in … the Australian Taxation Office's Access Manual."

The present proceeding relates to these "restricted source documents" and "non-source documents" listed in Part 2(b) ("Documents 226 to 238").

8. Entitled "Guidelines to Accessing Professional Accounting Advisers' Papers" ("the Guidelines"), the Guidelines formed part of the Australian Taxation Office's Access Manual referred to in the passage quoted above. I will digress from this chronological account of the facts of the present case to refer to the Guidelines now.

9. Chapter 7 of the Access Manual is headed "Access to Professional Accounting Advisors' Papers". Paragraphs 7.1.1-7.1.5 of that Chapter set out the background to the issuing of the Guidelines:

  • "7.1.1. While recognising that the Commissioner has the legislative power to request access to most documents, it is accepted that there is a class of documents which should, in all but exceptional circumstances, remain within the confidence of taxpayers and their professional accounting advisors. In respect of such documents the ATO acknowledges that taxpayers should be able to consult with their professional accounting advisors on a confidential basis to enable full and frank discussion in respect of their rights and obligations under taxation laws to take place and for advice to be communicated on that basis.
  • 7.1.2. This approach is formally described as access to professional accounting advisors'

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    papers, but is also known as the accountants' concession.
  • 7.1.3. The ATO's official statement of this administrative concession is set out in Guidelines which appear at the end of this chapter. They are also referred to in Booklet 9 of the Taxpayers' Charter entitled 'Fair use of our access and information gathering powers'.
  • 7.1.4. The guidelines deal with issues of access to differing types of documents, variously classified as:
    • • source documents (records of transactions)
    • • restricted source documents (advice documents shedding light on transactions) and
    • • non-source documents.
  • 7.1.5. The guidelines apply only to documents prepared by external professional accounting advisors who are independent of the taxpayer."

In sum, although professional accounting advice does not attract a privilege known to the law, the Commissioner was prepared to grant a concession in respect of it in the circumstances and for the reasons identified in the Guidelines.

10. Paragraph 7.1.8 of Chapter 7 states that the Guidelines provide that in "exceptional circumstances" an officer may seek written approval to access restricted source documents and non-source documents (see [15] below), and that this is known as removing or lifting the concession.

11. The Guidelines are addressed to officers of the Australian Taxation Office ("ATO") but have been well publicised. "Source documents" are defined in the Guidelines as "all documents which record a transaction or arrangement entered into by a taxpayer", to which full and free access by ATO officers is essential in order for the Commissioner to carry out his responsibilities under the tax laws. Source documents include "papers prepared in connection with the conception, implementation and formal recording of a transaction or arrangement" and which explain its setting, context and purpose. They are called "source documents" because, "in effect, they explain the basis and form part of the fabric of the transaction or arrangement".

12. The Guidelines state that during the course of an audit, ATO officers will seek full and free access to source documents other than "restricted source documents".

13. "Restricted source documents" are defined as advisings and advice papers prepared by an external accounting advisor solely for the purpose of advising a client on taxation matters, which have been completed in connection with the conception, implementation and completion of the transaction.

14. "Non-source documents" are defined as all other advice and advice papers.

15. Importantly, s 5 of the Guidelines states that access to restricted source documents and non-source documents may be sought only in "exceptional circumstances" with the (personal) written approval of a Deputy Commissioner or another appropriate ATO Senior Executive Service ("SES") officer. In such cases, ATO officers will specify, to the extent practicable, the relevant documents applicable to the issue under review. Section 5 continues as follows:

"In a litigated case before the courts and the AAT [Administrative Appeals Tribunal], the ATO recognises the rights of the courts or the AAT to inform themselves about the issues in dispute. However, the ATO will not seek to inspect or obtain documents listed in litigation procedures except with the (personal) written approval of a Deputy Commissioner or another appropriate ATO SES officer."

Mr O'Neill is an ATO SES officer who did not have operational responsibility for the appeal proceedings. His only involvement has been that of deciding, pursuant to s 5 of the Guidelines, to lift the concession in respect of Documents 226 to 238. It is Mr O'Neill's decision that the applicants attack in this proceeding.

16. On 18 April 2006, Mr O'Neill wrote to Maddocks, the solicitors for the applicants in the appeal proceedings (and in the present proceeding) advising that his approval had been sought by officers of the Commissioner under s 5 of the Guidelines to allow access to, inter alia, Documents 226 to 238. Mr O'Neill stated that they appeared to be "restricted source documents" and "non-source documents", and

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that approval would be granted to access such documents only in exceptional circumstances. He invited the applicants to make any submission they wished to make on the question of approval of access to the documents.

17. There followed a course of correspondence extending down to 3 July 2006 when Mr O'Neill recorded his decision to approve access.

18. The next day, 4 July 2006, the Australian Government Solicitor ("AGS") wrote to Maddocks enclosing a document recording Mr O'Neill's decision to "approve access" to Documents 226 to 238 "pursuant to the Guidelines", and stating his reasons for his decision.

19. The AGS's letter also enclosed two notices to produce dated and filed 4 July 2006, one in each appeal proceeding, requiring production of Documents 226 to 238 on 19 July 2006. These were both signed by Matthew Walsh, a solicitor employed by the AGS.

The current proceeding

20. In relation to the AD(JR) Act, the applicants' amended application for an order of review states:

  • • that a breach of the rules of natural justice occurred in connection with the making of the decision for the purposes of s 5(1)(a) of the AD(JR) Act;
  • • that Mr O'Neill's making of his decision was an improper exercise of the power conferred by the Guidelines within the meaning of s 5(1)(e) of the AD(JR) Act because:
    • (a) Mr O'Neill took into account an irrelevant consideration or irrelevant considerations, and failed to take into account a relevant consideration or relevant considerations;
    • (b) further and alternatively, the power was exercised for a purpose other than that for which it was conferred, or, alternatively, was exercised in bad faith; and
  • • further and alternatively, that the decision was an improper exercise of the power conferred by the Guidelines for the purposes of s 5(1)(h) of the AD(JR) Act because it was based on certain facts that did not exist, or, alternatively, that there was no evidence or other material "to justify the existence of those facts".

21. The grounds under the Judiciary Act as stated in the amended application were that by reason of the above, Mr O'Neill's decision was an improper exercise of the power to make the decision to grant access under the Guidelines and involved an error or errors of law. No particulars of the error or errors of law are given.

22. On 30 August 2006 the respondents filed a notice of objection to competency. In relation to the AD(JR) Act, the grounds stated were that the decision under review is not a decision of an administrative character within the meaning of s 3(1) of that Act, and was not made under an enactment. In respect of the claim for relief under the Judiciary Act, the grounds stated in relation to s 39B(1) of that Act were that neither mandamus, prohibition nor an injunction is sought against any officer of the Commonwealth, and, in any event, that Mr O'Neill's decision was not an exercise of any public power and therefore is not amenable to such relief. I note that I have some difficulty in appreciating why the former ground under the Judiciary Act is raised: from the outset the applicants have in fact sought an order quashing or setting aside Mr O'Neill's decision and from the time of the filing of the amended application for an order of review on 6 September 2006, they have also sought an injunction restraining the Commissioner and Mr O'Neill from seeking access to Documents 226 to 238. The ground stated in relation to s 39B(1A) of the Judiciary Act was that the application does not involve a matter arising under any law made by the Parliament within the meaning of s 39B(1A)(c).

23. In their written submissions the applicants also raised issues of estoppel and substantive unfairness. This led to the filing on 15 November 2006, with leave and subject to conditions, of a further amended application. Unlike the original and amended applications, the further amended application did not separately identify the grounds relied on under the AD(JR) Act and those relied on under the Judiciary Act. Rather, it gathered together all existing grounds and the new grounds under a single heading of grounds available under both

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Acts. The further amended application introduced the following new grounds:
  • • that it was "unfair" for Mr O'Neill to decide to approve access because it was a "breach" of the representations contained in the Guidelines and thus an abuse of process;
  • • that by his representations contained in the Guidelines the Commissioner had created the expectation that he would not seek access to Documents 226 to 238, yet by Mr O'Neill's decision he wrongfully sought to resile from that expectation, and was therefore estopped from seeking access to them; and
  • • that the Commissioner had waived his right to seek access to Documents 226 to 238.

24. I have not given a full and detailed account above of the further amended application. I note, however, that certain facts newly alleged in the further amended application are:

  • • that the Commissioner published the Guidelines following consultation with the Australian Society of Certified Practicing Accountants, the Institute of Chartered Accountants in Australia, the National Institute of Accountants, and the Taxation Institute of Australia, and were widely publicised to Australian taxpayers (para 4(b));
  • • that the Guidelines contain representations to the effect, inter alia,
    • (i) that the Commissioner would not seek access to "restricted source" and "non source documents" in "litigation procedures" except in "exceptional circumstances";
    • (ii) and that the Commissioner acknowledges that taxpayers should be able to consult with their professional accounting advisers on a confidential basis in respect of their rights and obligations under taxation laws to enable full and frank discussion to take place and for advice to be communicated on that basis (para 4(e));
  • • that in reliance on those representations, the applicants assumed that the Commissioner would recognise claims for the "accountant's privilege" save in "exceptional circumstances", and on that basis in 1996 and 1997 sought advice from Coopers & Lybrand, and Mr Phillip Sheridan, which advice was and remains confidential (para 5);
  • • that alternatively, if they had been told in 1996 and 1997 that the Commissioner intended to resile from his representations in the Guidelines and not recognise claims for accountant's privilege, and would, instead, seek access to Documents 226 to 238, the applicants would not have, or alternatively, might not, have sought such tax advice, and instead would or might have sought legal advice (para 6);
  • • that the advice provided by Coopers & Lybrand and Mr Phillip Sheridan is recorded in Documents 226 to 238 (para 7);
  • • that the Commissioner knew, or should have known, that taxpayers who seek tax advice from accountants, including the applicants, chose to seek such advice from them and not from lawyers, in reliance on the representations contained in the Guidelines (para 8);
  • • that by his representations in the Guidelines, the Commissioner created the expectation that he would not seek access to Documents 226 to 238 (para 29(a));
  • • that by Mr O'Neill's decision, the Commissioner wrongfully seeks to resile from that expectation (para 29(b)); and
  • • that in the premises, the Commissioner is estopped from seeking access to Documents 226 to 238 (para 29(c)).

25. On the basis of the same alleged facts and the additional fact that the Commissioner did not challenge the applicants' claim that Documents 226 to 238 were privileged from production by reason of the Guidelines and at no stage sought production of them (para 11), it is "unfair" to the applicants for the Commissioner to seek access to them, and that the Commissioner has "waived" his right to seek access to them (para 30).

Submissions on the motion

The submissions of the respondents (applicants on the motion)

26. The respondents' submissions proceeded along the following lines.

27. 

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While the Guidelines may be a source of "legitimate expectations" or "relevant considerations" that could have a bearing in judicial review of the purported exercise of a statutory power, they are not themselves a source of, or an enforceable limit on, any power of the Commissioner to require documents to be produced. The Guidelines are "merely an aspect of the procedures which have been put in place within the ATO" and are not "a prerequisite, in any legal sense, to the issue of the notice to produce by the solicitors acting for the Commissioner." Nor is the notice to produce an exercise of any statutory power conferred on the Commissioner. Rather, every litigant has the right to issue a notice to produce subject to the FCRs. Thus, the issue of access arises, not in connection with the exercise of statutory or public powers of the Commissioner, but in connection with the exercise of rights enjoyed by all litigants pursuant to O 33 r 12 of the FCRs.

28. The legal consequences that attach to the service of a notice to produce are an incident of the operation of the FCRs, and are subject to the Court's control of its own processes. The antecedent internal deliberations within the ATO are therefore not susceptible to collateral challenge in judicial review proceedings.

29. Furthermore, Mr O'Neill's decision was not within the expression "decision to which this Act applies" in s 3(1) of the AD(JR) Act because it was not "a decision of an administrative character made … under an enactment …" because:

  • • it was not a final, ultimate or operative determination, and was therefore not a "decision" for the purposes of the AD(JR) Act (
    Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 ("
    ABT v Bond") at 338); and
  • • it was not required or authorised by any enactment, and legal rights or duties do not owe in an immediate sense their existence to the decision, or depend upon the presence of the decision for their enforcement (
    Griffith University v Tang (2005) 221 CLR 99 ("Tang") at [78]-[80]).

The Guidelines are not "an enactment" as defined in s 3(1) of the AD(JR) Act, because they are not an instrument made under an Act: the most that can be said is that they were issued by the Commissioner to ATO officers as part of his general administration of the Income Tax Assessment Act 1936 (Cth) ("the ITAA"), s 8 of which provides: "The Commissioner shall have the general administration of this Act".

30. In relation to s 39B(1) of the Judiciary Act, the respondents submit that there is no basis for the grant of an injunction and no decision amenable to a writ of certiorari. An injunction will lie only to restrain conduct that is in some relevant sense unlawful. Unlawfulness cannot be demonstrated where, as here, the steps proposed to be taken by the Commissioner in seeking access to Documents 226 to 238 do not owe their efficacy to Mr O'Neill's decision.

31. Similarly, certiorari has no utility where the decision impugned does not have legal force. For this reason, certiorari does not lie, even if some flaw in Mr O'Neill's decision is shown.

32. Even if Mr O'Neill's decision is understood as affecting rights, it does not do so as an exercise of any public power or legal authority, but as a prelude to a decision taken by the Commissioner in his capacity as a litigant before the Court.

33. In relation to s 39B(1A) of the Judiciary Act, the Court has jurisdiction if, relevantly, there is a "matter" "arising under" a law made by the Parliament: s 39B(1A)(c). This test is satisfied only if "the right or duty in question in the matter owes its existence to federal law or depends on federal law for its enforcement":
R v Commonwealth Court of Conciliation and Arbitration;
Ex parte Barrett v Optiz (1945) 70 CLR 141 at 154 (Latham CJ), and
Felton v Mulligan (1971) 124 CLR 367 at 388 (Windeyer J). The Guidelines' lack of statutory status means that a dispute as to whether Mr O'Neill applied them correctly, or accorded procedural fairness before making his decision, does not give rise to any such matter.

The submissions of the applicants (respondents to the motion)

34. The applicants' submissions proceeded along the following lines.

35. The Guidelines are intended to create legally enforceable rights and obligations and to be an enforceable fetter upon the

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Commissioner's powers. This is evident from the language of the Guidelines. For example, the Guidelines state: "They [the Guidelines] are an administrative concession and will be adhered to by ATO officers …".

36. The applicants also refer to what are paras 7.2.1 and 7.2.2 of the Guidelines which state:

  • "7.2.1 The guidelines provide that in exceptional circumstances you may obtain written approval to access restricted source and non-source documents. This is known as removing or 'lifting' the concession. Only certain SES officers are authorised to provide this approval.
  • 7.2.2 You need to ensure that the correct procedures are followed in lifting the concession. It is essential to ensure that the SES officer consulted is independent of the operational/audit team seeking the access."

37. The applicants rely on
ONE.TEL Ltd v Commissioner of Taxation (2000) 101 FCR 548 ("ONE.TEL") in which there was an application to set aside notices given by the Commissioner under s 108 of the Sales Tax Assessment Act 1992 (Cth) ("the STAA") requiring the addressee to provide the Commissioner with information. A Deputy Commissioner of Taxation gave approval under the Guidelines to the seeking of access. Burchett J held, at [42], that the Guidelines gave rise to a legitimate expectation that the Commissioner would act in conformity with them. He held that the Commissioner was not at liberty to depart from them (except in such an urgent case as might arise if there were grounds for fearing destruction of the documents), without giving the person concerned an opportunity to make out a case why the Commissioner should not do so.

38. For the proposition that the Commissioner is entitled to adopt a policy consistent with the statute to provide guidance as to the exercise of a statutory discretionary power, the applicants cite
Elias v Commissioner of Taxation (2002) 123 FCR 499 at [34]. Hely J there held that while there must not be an inflexible policy that limits a statutory discretion, a policy as to how the discretion will "normally" be exercised can be adopted. The case concerned the power given to the Commissioner by s 255-10(1) of Sch 1 of the TAA to defer the time at which the amount of a tax-related liability was, or was to become, due and payable.

39. With respect to the competency of the AD(JR) application, the applicants submit that:

  • • it is already well established that decisions under the Guidelines in the course of an audit are decisions of an administrative character made under an enactment for the purposes of AD(JR) Act (relying on ONE.TEL and
    Deloitte Touche Tohmatsu v Federal Commissioner of Taxation 98 ATC 5192; (1998) 40 ATR 435 ("Deloitte")); and
  • • no different result should apply where a decision is made under the Guidelines not in the course of an audit, but in relation to documents discovered in proceedings before this Court. Specifically, if such decisions are not reviewable under the AD(JR) Act, "by the mere artifice of delaying the time for the making of such decisions [the Commissioner] secures an effective immunity from judicial review, and thus obviates the effect of the decisions of this Court in O NE.TEL and Deloitte".

40. With respect to whether the decision was made under an "instrument", the applicants submit that Tang establishes that the Guidelines are an instrument for the purposes of the AD(JR) Act. The High Court's decision in that case departed from previous authority to the effect that documents issued under a general power of administration could not constitute an instrument under the AD(JR) Act (as an illustration of that previous course of authority they refer to
Australian National University v Lewins (1996) 68 FCR 87 ("
ANU v Lewins")).

41. In relation to respondents' submission that the present claim cannot be brought under s 39B of the Judiciary Act, the applicants submit:

  • • First, that the Commissioner is an officer of the Commonwealth, and, when appearing in Court, represents the Crown in right of the Commonwealth (they cite
    Naismith v McGovern (1953) 90 CLR 336 at 342);
  • • Second, that this is not merely a case concerning a decision by the Commissioner as a private litigant to seek access to discovered documents; pursuant to his statutory general power of administration, he

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    has made guidelines intended to regulate his conduct in seeking access to documents, including in matters before this Court;
  • • Third, it is incorrect for respondents to submit that the steps proposed to be taken by the Commissioner do not depend for their efficacy on the decision of Mr O'Neill; the Commissioner cannot seek access unless "exceptional circumstances" exist, and he must not seek to inspect unless "the correct procedures are followed in lifting the concession";
  • • Fourth, those "procedures" are not a mere "prelude" to a decision by the Commissioner as a private litigant; the legitimate expectations created by the Guidelines cannot be dismissed as a mere overture, but constitute a substantial right enforceable in judicial review proceedings;
  • • Fifth, the injunction sought is appropriate since this Court has held that the Commissioner cannot depart from the Guidelines (apparently a reference to the decision of Burchett J in ONE.TEL) and no valid decision has been made that "exceptional circumstances" exist.

42. In relation to the respondents' submission that the present claim cannot be brought under s 39B(1A), the applicants submit that for the reasons set out above Mr O'Neill's decision was made pursuant s 8 of the Act, and that therefore the matter arises under a law of the Parliament.

43. In relation to the estoppel argument, the representations contained in the Guidelines and the Commissioner's conduct in the tax appeals, including his acceptance of the applicants' claim for "accountant's privilege under the Guidelines", entitle the applicants to an injunction against the Commissioner as an officer of the Commonwealth on the basis of estoppel and/or by reference to the doctrines of waiver and election:
Commonwealth v Verwayen (1990) 170 CLR 394 ("Verwayen"). This Court's jurisdiction under s 39B of the Judiciary Act is therefore properly enlivened.

44. I need not recount in further detail the claims of estoppel, unfairness and waiver. In relation to "substantive unfairness", the applicants cite
R v Inland Revenue Commissioner;
Ex parte Preston [1985] AC 835 at 866-7 (Templeman LJ) (for the principle that judicial review may be warranted where a commissioner's decision is unfair and amounting to a breach of contract or breach of representation, and therefore within the ambit of an abuse of power). They acknowledge the note of caution in relation to this principle that was sounded by Lehane J in
Daihatsu Australia Pty Ltd v Deputy Commissioner of Taxation 2001 ATC 4268; (2001) 182 ALR 239 ("Daihatsu") at [51] (that note of caution being that such a principle has not been the subject of extended consideration by Australian courts), but say that at the trial, they will submit that the principles of administrative law in Australia are developing to take account of a form of doctrine of substantive unfairness of the kind described by Lord Templeman.

Reasoning

Order 20 of the FCRs and s 31A of the FCA Act

45. As noted at [2], these reasons relate to the respondents' motion for an order that the proceeding be summarily dismissed. I referred to the question of the applicability of O 20 r 2(1)(a) or s 31A of the FCA Act at [2]-[5]. I decided there that the governing provision in the circumstances is s 31A but indicated that I would also discuss O 20 r 2(1)(a) in order to show that the result on the motion would be the same if that provision applied.

46. Order 20 r 2 of the FCRs reads:

  • "(1) Where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding -
    • (a) no reasonable cause of action is disclosed;
    • (b) the proceeding is frivolous or vexatious; or
    • (c) the proceeding is an abuse of the process of the Court,

    • the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding.

  • (2) The Court may receive evidence on the hearing of an application for an order under subrule (1)."

I need not discuss distinctions and overlaps as between paras (a), (b) and (c).

47. 

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The central concern of both O 20 r 2(1)(a) and s 31A is different from that of O 11 r 16, which empowers the Court to strike out pleadings. For example, evidence may disclose that a person has or may have a "reasonable cause of action" or "reasonable prospects of success", yet the person's pleading does not disclose this. In such a case O 11 r 16 empowers the Court to strike out the pleading but O 20 r 2(1)(a) would not empower the Court to order a stay or dismissal, and s 31A(2) would not empower the Court to give judgment for the respondent against the applicant. A failure after ample opportunity to plead a reasonable cause of action may suggest that none exists and therefore that the applicant has no reasonable prospects of success, but the existence of a reasonable cause of action and the pleading of a reasonable cause of action remain distinct concepts.

48. Finally, it should be noted that "pleading" is defined in O 1 r 4 of the FCRs as not including an application, notice of motion or affidavit. Thus, O 11 r 16 does not permit the striking out of an application. Indeed, the striking out, as distinct from the dismissal, of an application, would be misconceived, as the continuation of a proceeding depends upon the existence of an application.

49. Section 31A of the FCA Act provides:

  • "(1) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
    • (a) the first party is prosecuting the proceeding or that part of the proceeding; and
    • (b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
  • (2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
    • (a) the first party is defending the proceeding or that part of the proceeding; and
    • (b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
  • (3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
    • (a) hopeless; or
    • (b) bound to fail;

    • for it to have no reasonable prospect of success.

  • (4) This section does not limit any powers that the Court has apart from this section."

50. Section 31A of the FCA Act, like O 20 of the FCRs, is concerned with the bringing and defending of proceedings, not just with pleadings; with substance, not just with form. Section 31A(1) is comparable to O 20 r 1 in that they are both concerned with summary judgment for the party who is prosecuting the proceeding. Section 31A(2) is comparable to O 20 r 2 in that they are both concerned with dismissals of proceedings. The word "judgment" in s 31A(2) is defined in s 4 of the FCA Act to mean "a judgment, decree or order, whether final or interlocutory, or a sentence". It is convenient in the context of the present case to think of the judgment to which s 31A(2) refers as an order of dismissal of a proceeding.

51. Is there a difference between the concept of no reasonable cause of action being disclosed (O 20 r 2(1)(a)) and no reasonable prospect of successfully prosecuting a proceeding (s 31A(2))? The only difference that suggests itself to me is that the latter makes plain that there may be taken into account the unavailability of evidence necessary to bring success at trial, whereas it is arguable that the former does not permit the unavailability of such evidence to be taken into account.

52. In the present case, the unavailability of evidence is not an issue. The respondents' motion for summary dismissal is founded on their notice of objection to competency and on facts that are not in dispute: the existence of the Guidelines, Mr O'Neill's making of his decision under them to allow access to Documents 226 to 238, and the giving of the notices to produce in the appeal proceedings.

53. The "no reasonable prospects of success" formula of s 31A is that which was adopted in r 24.2 of the United Kingdom's Civil Procedure Rules ("CPRs") following the recommendation of Lord Woolf, Master of the Rolls, in his Access to Justice: Final Report to

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the Lord Chancellor on the Civil Justice System in England and Wales (HMSO, 1996), ch 12, ss 31-36. The same test has been adopted in rr 292(2) and 293(2) of Queensland's Uniform Civil Procedure Rules 1999.

54. Under s 31A I must be satisfied that the applicants have no reasonable prospect of success, but as s 31A(3) makes clear, this does not mean that I must be satisfied that the proceeding is hopeless or bound to fail. I suggest that the legislature's intention in enacting s 31A was to lower the bar for obtaining summary judgment (including summary dismissal) below the level that had been fixed by such authorities as
Dey v Victorian Railway Commissioners (1949) 78 CLR 62 at 91-92, and
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129-130: see
Lawrenson Light Metal Die Casting Pty Ltd (in liq) v Cosmick Pty Ltd [2006] FCA 753 at [15].

55. Section 31A and the identically worded s 17A of the Federal Magistrates Act 1999 (Cth) ("the FM Act") were introduced by the Migration Litigation Reform Act 2005 (Cth) (No 137 2005) which commenced on 1 December 2005. On the Second Reading Speech on the Bill for that Act, the Attorney-General said that the new provision would strengthen "the power of the courts to deal with unmeritorious matters, by broadening the grounds on which federal courts can summarily dispose of unsustainable cases". By "broadening the grounds" the Attorney-General was referring to the formula "no reasonable prospects of success" as contrasted with a "hopeless" or "bound to fail" test. It is reasonable to think that the Attorney-General may have had in mind migration cases in particular.

56. If the Government's chief purpose was to facilitate expeditious disposal of legally unmeritorious migration cases, in my respectful view the measure was misconceived. First, I suggest that any assumption that there were migration cases that were not summarily dismissed because they were found not to be "hopeless" or "bound to fail", but that would have been summarily dismissed because they were without any reasonable prospect of success, is without foundation.

57. Second, it is no secret that although migration cases at first instance in the Federal Magistrates Court of Australia and on appeal to this Court are numerous, most of them occupy little hearing time. Not infrequently, the applicant or appellant does not appear. More often, he or she appears unrepresented and either makes no submissions or makes a short submission that fails to address the issue before the Court. The time taken in migration cases for a Federal Magistrate or Judge to read the papers in readiness for a final hearing is no greater, I suggest, than the time required to read the same papers in readiness for the hearing of a motion for summary dismissal.

58. Third, while s 31A of the FCA Act (mutatis mutandis, s 17A of the FM Act) achieves nothing of significance in relation to migration cases, it is of general application and therefore affects all proceedings brought in the Court. The question of the precise meaning of s 31A of the FCA Act and s 17A of the FM Act and of any change they have made has already been the subject of numerous decisions in this Court and the Federal Magistrates Court. The most recent review of them of which I am aware is that of Driver FM on 19 March 2007 in
Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd [2007] FMCA 157 at [18]-[28]. The authorities to which his Honour referred are:
Howard v Australian Fisheries Management Authority [2006] FMCA 975;
MG Distribution Pty Ltd v Khan [2006] FMCA 666;
Cate v International Flavours and Fragrances (Aust) Pty Ltd [2007] FMCA 36;
Vans Inc v Offprice.Com.Au Pty Ltd [2006] FCA 137;
Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 701 IPR 146;
Jewiss v Deputy Commissioner of Taxation [2006] FCA 1688;
Alphapharm Pty Ltd v Merck & Co Inc [2006] FCA 1227;
Duncan v Lipscombe Child Care Services Inc (2006) 150 IR 471;
Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441;
Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416;
Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401;
Hicks v Ruddock [2007] FCA 299. Not one of these cases was a migration case. In other words, the task of exploring the meaning of s 31A has arisen in a wide range of the cases

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in the Federal Magistrates Court and this Court, with the striking exception of migration cases, no doubt for the reason that I mentioned earlier: the provision is of no practical importance in them.

59. I do not propose to add greatly to the discussion of the meaning and effect of s 31A. In the United Kingdom it has been held in the context of the similar rule 24.2 of the CPRs noted at [53] above, that the expressions "no real prospect of succeeding" and "no real prospect of successfully defending" require attention to be given to real, as opposed to "fanciful" or "merely arguable" prospects:
Swain v Hillman [2001] 1 All ER 91 at 92;
Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 at [90], [95], [133]-[134], [158]-[162];
ED & F Man Products Ltd v Patel [2003] EWCA Civ 472 at [8]. The Queensland Court of Appeal has similarly held, following
Swain v Hillman and
Three Rivers District Council v Governor and Company of the Bank of England, that the "no reasonable prospects of success" test requires the court to determine whether there are "real" as opposed to "fanciful" prospects of success:
Deputy Commissioner of Taxation v Salcedo 2005 ATC 4562; [2005] 2 Qd R 232 at 235. The New South Wales Court of Appeal had to consider the expression "reasonable prospects of success" as it occurred in s 198J of the Legal Profession Act 1987 (NSW) in
Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300. That section prohibited a solicitor or barrister from providing legal services on a claim or defence of a claim for damages unless the solicitor or barrister reasonably believed on the basis of provable facts and a reasonably arguable view of the law that the claim or the defence had reasonable prospects of success. Later subsections elaborated on the meaning of the prohibition. This fact, coupled with the fact that the prohibition was directed to the reasonable belief of the solicitor or barrister, renders the discussion not directly relevant to the summary dismissal context in which the court is required to determine if there are reasonable prospects of success following an inter partes hearing.

60. The respondents' motion is based on an objection to competency and upon undisputed facts. If it succeeds, it will be because the applicants have no reasonable prospects of success on the final hearing due to the fact that they lack a reasonable cause of action under the AD(JR) Act and the Judiciary Act. In these circumstances, no different result would have ensued on the former "hopeless or bound to fail for lack of a reasonable cause of action" test under O 20 r 2(a) of the FCRs.

Section 5 of the AD(JR) Act

61. Was Mr O'Neill's decision "a decision of an administrative character made … under an enactment"? The Guidelines plainly provide for the making of decisions of the kind made by Mr O'Neill.

62. 
ABT v Bond establishes that for a decision to be reviewable under the AD(JR) Act it will, generally speaking, be a decision that is required or authorised by a statute and will be final or operative. Ordinarily, conclusions reached on the way to such a decision will not themselves be reviewable. However, they will be if the statute provides for the making of them. In that case, they can still be described as decisions made under an enactment. The Guidelines did provide for the making of decisions of the kind made by Mr O'Neill lifting the concession. However, such a decision would be made under an "enactment" only if the Guidelines were themselves an instrument made under, relevantly, the ITAA. In my opinion they were not for the reasons given below.

63. All earlier decisions on the matter must now be understood in light of the High Court's consideration in Tang of the expression "a decision of an administrative character made … under an enactment". That case concerned a decision of Griffith University, through its relevant committee, to exclude a postgraduate student, Ms Tang, from a program leading to the award of the degree of Doctor of Philosophy. The decision was based on a finding that Ms Tang had engaged in academic misconduct. The relevant admission/exclusion, academic misconduct and appeal processes were the subject of policies adopted by the University Council. The policy documents were similar to the Guidelines in the sense that although the making of them was within the power and mandate of the Council as the University's governing body under the Griffith University Act 1998 (Qld), that Act did not

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refer, expressly or by implication, to the laying down of the policies. Rather, to do so was in the general power of the University Council as the body having the general functions and powers of management given it by the Act.

64. Ms Tang applied for review of the University's decision under the Judicial Review Act 1991 (Qld). The issue was whether that decision was "a decision of an administrative character made … under an enactment" - a formula borrowed from the AD(JR) Act. The University sought summary dismissal. It failed at first instance in the Supreme Court of Queensland and then before the Queensland Court of Appeal.

65. The High Court, however, by a 4:1 majority, allowed the University's appeal. Two judgments were delivered by the Judges constituting the majority, one by Gleeson CJ and the other by Gummow, Callinan and Heydon JJ ("joint judgment").

66. Gleeson CJ referred (at [10]) to the University's reliance on judgments in
Australian National University v Burns (1982) 43 ALR 25 and
ANU v Lewins in this Court to the effect that in order to satisfy the description of a decision of an administrative character made under an enactment, a decision must be authorised or required by a statute and must be given legal force or effect by the statute. The Chief Justice observed that it is not enough that the decision be within power, and that the AD(JR) Act does not provide for review of all decisions of an administrative character made in pursuance of any power or authority that has its foundation in a statute. Gleeson CJ approved of a statement by Lehane J in
ANU v Lewins (at 101) that a decision meets the test "only if it is one for the making of which the relevant statute either expressly or impliedly provides and one to which the statute gives legal force or effect".

67. The ITAA does not expressly or impliedly provide for the making of guidelines or the making of a decision excluding particular documents from their scope. Moreover, the ITAA does not give legal force or effect to the Guidelines or to Mr O'Neill's decision.

68. The proper analysis is that the Guidelines have been made by the Commissioner pursuant to his general power of administration under s 8 of the ITAA; the granting of the concession and the discretion to exclude particular documents from it are attributable only to that general power of administration; and it is O 33 r 12 of the FCRs that imposes a procedural obligation on the applicants as an adjunct to the appeal proceedings.

69. At [18], the Chief Justice referred to
Scharer v State of New South Wales (2001) 53 NSWLR 299, in which Davies A-JA said (at 313) that under the AD(JR) Act:

"The crux of the issue in each case is whether the enactment has played a relevant part in affecting or effecting rights or obligations. A grant of authority to do that which under the general law a person has authority to do is not regarded as sufficient."

The right to require production of Documents 226 to 238 is given by O 33 r 12 which applies to any party to any proceeding before this Court. The same can be said of other procedural rights given by the FCRs directly, or of the right given by them to apply for a procedural benefit of one kind or another, such as the right to apply for leave to issue a subpoena or the right to apply for an order for discovery.

70. Gleeson CJ held that the termination of Ms Tang's candidature occurred under the general law and under the terms and conditions on which the University was willing to enter into a relationship with her, and added (at [23]):

"The power to formulate those terms and conditions, to decide to enter into the relationship, and to decide to end it, was conferred in general terms by the Griffith University Act, but the decision to end the relationship was not given legal force or effect by that Act."

Mr O'Neill's decision was one step antecedent to the decision (by a different officer) to give the notice to produce. Mr O'Neill's decision to exclude Documents 226 to 238 from the scope of the concession can be usefully compared to a decision provided for by the Griffith University's policy that a candidate had been guilty of academic misconduct. Such a decision would have gained nothing in terms of susceptibility to judicial review by reason of its being distinct from the decision to exclude a student; likewise, Mr O'Neill's decision to allow access to Documents 226 to 238 vis-a-vis

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the decision to give the notice to produce them in the appeal proceedings.

71. In their joint judgment in Tang, Gummow, Callinan and Heydon JJ pointed (at [60]) to dangers in looking at the expression "a decision of an administrative character made … under an enactment" otherwise than as a whole. Their Honours quoted the following passage from Aronson MI, Dyer BD, Groves M, Judicial Review of Administrative Action (3rd ed, Lawbook Co, 2004) pp 73-74 (footnotes omitted):

"The recent trend is to treat decisions which can find no other statutory source of authority than such a clause [giving power or even a duty to administer an Act and to do all things necessary in that regard] as not being made under an enactment for ADJR purposes, although there has been scant attempt to identify why that approach should be adopted as a matter of principle. (Original emphasis.)"

72. Their Honours noted (at [78]) that while a decision, in order to be susceptible to review under the AD(JR) Act must be either expressly or by implication authorised or required by an enactment, requirement or authority is not alone sufficient. The further stipulation that the decision must be "of an administrative character" meant that there must be an affecting of legal rights and obligations. Their Honours said (at [80]):

"Do legal rights or duties owe in an immediate sense their existence to the decision or depend upon the presence of the decision for their enforcement [cf
R v Commonwealth Court of Conciliation and Arbitration;
Ex parte Barrett at 154]? To adapt what was said by Lehane J in
Lewins [ANU v Lewins at 103], does the decision in question derive from the enactment the capacity to affect legal rights and obligations? Are legal rights and obligations affected not under the general law but by virtue of the statute? [
General Newspapers Pty Ltd v Telstra Corporation (1993) 45 FCR 164 at 169]."

Mr O'Neill's decision does not derive from the ITAA a capacity to affect legal rights and obligations. Nor do legal rights (of the Commissioner) or duties (of the applicants) in relation to the production of Documents 226 to 238 "owe in an immediate sense their existence to the decision, or depend upon the presence of the decision for their enforcement": Tang at [80]. It is O 33 r 12 and the general law that give the Commissioner procedural rights and impose on the applicants procedural obligations.

73. At [84] of the joint judgment, their Honours referred to
Hutchins v Deputy Commissioner of Taxation 96 ATC 4372; (1996) 65 FCR 269 ("Hutchins"). They referred with approval (at [84]) to a statement by Lockhart J in Hutchins (at 277) that the decision to vote at the meeting of creditors could not itself have conferred any benefit or imposed any disadvantage when it was made, and that any affecting of legal rights arose from the cumulative effect of the votes later cast at the meeting. The respondents submit that Mr O'Neill's decision should similarly be distinguished from the decision of a different officer of the ATO to issue the notice to produce.

74. I do not accept this particular submission. Mr O'Neill's decision was in a different position from that with which Hutchins was concerned. Lockhart J was emphasising that the Commissioner's decision to vote against the motion could not advance matters until the motion was voted upon at the meeting of creditors. In the present case, a decision to lift the concession was provided for in the Guidelines and it was within the power of the Commissioner alone to access Documents 226 to 238. In substance, it was the Commissioner who decided both to lift the concession and to enforce his right, as a litigant, of access to Documents 226 to 238. If the Guidelines had been an Act, the provision for the decision to lift the concession would have been comparable to the provision of the making of a finding that a licensee was no longer a fit and proper person to hold a commercial licence, for which the Broadcasting Act 1942 (Cth) s 88(2) provided as the foundation of a decision to suspend or revoke such a licence, that was one of the decisions considered in
ABT v Bond.

75. What is important, however, is that the Guidelines are not an "enactment", and the decision does not, by reason of them or of any enactment, immediately affect legal rights and obligations.

76. 

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Mr O'Neill's decision would be reviewable as "a decision of an administrative character made … under an enactment" if:
  • (a) the ITAA provided for (in the relevant sense) the making of the Guidelines granting the concession;
  • (b) the Guidelines provided for the granting of the concession and for the making of the decision to lift it as a condition precedent to the taking of action to compel the giving of access;
  • (c) the Act or the Guidelines (the latter, within power) provided for the compelling of the giving of access.

77. Gummow, Callinan and Heydon JJ did not see it as an obstacle to their view the fact that the terms of the policy and other circumstances may well have created an expectation in Ms Tang that any withdrawal from her PhD candidature would only follow upon the fair treatment of complaints against her. Their Honours said (at [92]) that such an expectation would not create in Ms Tang any substantive rights under the general law, which would render the decision she challenged a decision made under the University's Act.

78. A similar observation is to be made in relation to the Guidelines. They are calculated to create an expectation that they will be adhered to by the Commissioner. However, that expectation does not convert a non-reviewable decision into a reviewable one.

79. The following summary paragraph (at [96] of the joint judgment in Tang) concludes their Honours' discussion of the issues and immediately precedes their discussion of the orders to be made:

"The decisions of which the respondent complains were authorised, albeit not required, by the University Act. The Committees involved depended for their existence and powers upon the delegation by the Council of the University under ss 6 and 11 of the University Act. But that does not mean that the decisions of which the respondent complains were "made under" the University Act in the sense required to make them reviewable under the Review Act. The decisions did not affect legal rights and obligations. They had no impact upon matters to which the University Act gave legal force and effect. The respondent enjoyed no relevant legal rights and the University had no obligations under the University Act with respect to the course of action the latter adopted towards the former."

This passage applies, mutatis mutandis, to the Guidelines and to Mr O'Neill's decision under them.

80. I turn now to consider other authorities to which I was referred.

81. The applicants rely heavily on the decision of Burchett J in ONE.TEL. That case concerned an application to set aside notices issued under s 108 of the STAA. That section provided:

  • "(1) The Commissioner may direct a person …
  • (a) to provide the Commissioner with such information as the Commissioner requires; …

  • for the purpose of enabling the Commissioner to apply the sales tax law in relation to the person, or in relation to any other person."

Section 109 of the STAA provided that for the purposes of the sales tax law, an authorised officer was entitled to full and free access to documents at all reasonable times, and might inspect, examine, copy, or take extracts from, any document.

82. The Commissioner had issued "Guidelines for the Exercise of Access Powers in Relation to Accountants' Papers" ("the guidelines"). The title and the content were not identical with those of the Guidelines, but the substance of them was similar. Under the guidelines, a decision was made approving of access to certain documents of external accountants on the basis that exceptional circumstances existed.

83. Burchett J stated (at [42]) that the formality and detail of the guidelines and the nature of their subject matter strongly suggested that the guidelines created a legitimate expectation that the Commissioner would not depart from them without giving the person affected an opportunity to make out a case as to why he should not do so. In the event, however, his Honour stated that there had been no breach of natural justice in the circumstances.

84. 

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His Honour also rejected (at [45]) a submission that the decision granting access was so unreasonable that no reasonable person could have made it.

85. His Honour's reference to natural justice and to unreasonableness suggest that he may have been thinking in terms of s 5(1)(a) and s 5(1)(e) and (2)(g) of the AD(JR) Act, although he did not refer to that Act.

86. The report of ONE.TEL is in fact a report of his Honour's reasons for judgment in three proceedings brought by ONE.TEL Ltd against the Deputy Commissioner of Taxation - NG 120 of 1998, NG 449 of 1998 and NG 33 of 1999. It is only the last that is of present relevance, in which the application was made for review of:

"the decision or the conduct of the respondent made on or about 15 December 1998 to give approval for officers of the Commissioner of Taxation to have access under section 109 of the [STAA] to documents in the possession of the applicants."

In oral submissions in that case, senior counsel for the Deputy Commissioner said that the reference to "conduct" had been included in case the view should be taken that the only relevant decision was the decision to issue the notice under s 108 of the STAA. In that case, so it was said, the antecedent decision to lift the concession was conduct that led to the making of that decision. In the present case the decision to allow access is attacked as a "decision" alone.

87. ONE.TEL Ltd asserted that it was aggrieved by the decision because it purported to give approval to officers of the Commissioner to have access under s 109 of the STAA to "restricted source" and "non-source" documents in breach of the guidelines. The application also referred to a breach of the rules of natural justice or procedural fairness, and to other grounds mentioned in s 5 of the AD(JR) Act.

88. The Deputy Commissioner filed a notice of objection to competency on the grounds that the decision to give approval for access was not a decision made "under an enactment" and was also not "conduct", within the meaning of the AD(JR) Act. However, his Honour's reasons do not expressly refer to the objection to competency. In particular, they do not address the contention that the decision was not "made under an enactment".

89. It is difficult to know what to make of his Honour's reasons because they do not, with respect, expose clearly what the field of contest was in relation to the guidelines and the decision to lift the concession made under them, that his Honour was addressing.

90. The respondents submit that ONE.TEL is distinguishable because the decision to approve access was connected with the exercise of a statutory power, namely, the power given to the Commissioner by s 108 of the STAA to direct a person to produce documents to the Commissioner. I agree. In the present case, the decision to approve of access is a precursor of the exercise of a power that O 33 r 14 of the FCRs confers, not only on the Commissioner, but on all litigants before this Court.

91. As the issue as to competency was not addressed in Burchett J's reasons, I do not regard his Honour's decision as standing in the way of my giving effect to the view that I have formed.

92. Deloitte and Daihatsu concerned notices issued by the Commissioner under s 264 of the ITAA. In Deloitte, Goldberg J (at 451) expressed the opinion, and the Commissioner did not dispute, that the Commissioner's delegate was bound to have regard to the Guidelines when deciding to issue a notice under s 264. His Honour said that for this reason it was not necessary for him to deal with the Commissioner's submission that the Guidelines were not a source of rights. In Daihatsu, the taxpayer sought relief under s 16 of the AD(JR) Act and s 39B of the Judiciary Act in respect of notices issued under s 264 of the ITAA. Lehane J (at [68]) refused relief on the merits.

93. Clearly, a decision to issue a notice under s 264 is an administrative decision made under an enactment because (a) the ITAA is an "enactment"; (b) that enactment provides for the making of the decision; and (c) the decision (or the giving of the notice pursuant to it) enlivens statutory provisions that affect the legal rights and obligations of the recipient.

94. 
Bellinz v Commissioner of Taxation 98 ATC 4634; (1998) 84 FCR 154 is also

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distinguishable. A Full Court of this Court held that where the question was one as to the inclusion of an amount as assessable income, or the allowance of an amount as a deduction, and no question of discretion or of administrative procedure arose, the Commissioner cannot be said to have acted unfairly where he has acted in accordance with the law. This is true even if there is an element of discrimination as between his decision in the case at hand and his decision in other cases. Such a holding, therefore, does not cover the present case because the Guidelines lay down administrative procedures and provide for a discretionary decision to exempt certain documents from the concession granted in them.

95. Hutchins, referred to at [73], has much in common with the present case. The decision impugned was a decision of the Deputy Commissioner of Taxation to vote against a motion put at a meeting of creditors convened under Pt X of the Bankruptcy Act 1966 (Cth). The application was made under the AD(JR) Act. At first instance, Jenkinson J had upheld an objection to competency.

96. The applicant contended that the decision was made under one or more of ss 8, 208 and 209 of the ITAA.

97. Black CJ said (at 273) that where the sole source of authority for a decision is a general power of administration conferred by an enactment, the decision will be "unlikely to be one that is given force or effect by an enactment or by a principle of law applicable to the enactment". In saying this, the Chief Justice quoted (at 272) the following passage from the judgment of Davies and Einfeld JJ, with which Gummow J agreed, in
General Newspapers Pty Ltd v Telstra Corporation at 172:

"The ADJR Act is thus concerned with decisions which, being authorised or required by an enactment, are given force or effect by the enactment or by a principle of law applicable to the enactment."

98. In Tang, Gummow, Callinan and Heydon JJ described (at [84]) as a "sound ground" of non-reviewability, Black CJ's reference to the Commissioner's voting decision as one that was not given statutory effect by s 8 of the ITAA.

99. For the reasons given above, the application is incompetent in so far as it relies on the AD(JR) Act.

Sections 39B(1) and (1A) of the Judiciary Act

100. In this case the jurisdictional question under s 39B(1) is whether the proceeding is a matter in which certiorari or an injunction is sought against an officer of the Commonwealth. It is not suggested that the Commissioner and Mr O'Neill (an Assistant Commissioner of Taxation) are not such officers. The applicants seek an order quashing or setting aside Mr O'Neill's decision and an injunction restraining the respondents "from seeking access to" Documents 226 to 238. The Court therefore has jurisdiction under s 39B(1) of the Judiciary Act.

101. The question that remains in relation to s 39B(1) is whether the applicants have no reasonable prospect of successfully prosecuting the proceeding (ie gaining the order and injunction they seek). In the present state of the evidence and exploration of the legal issues involved, I am not persuaded that they have no reasonable prospects of success of doing so.

102. Evidence has not been filed.

103. I do not think that, for the purposes of s 31A of the FCA Act, the applicants are necessarily to be confined to the exact terms of the injunction formulated by them ("from seeking access" to Documents 226 to 238).

104. There are several issues that were not explored in submissions. In particular, the question of the relationship between the newly introduced issues of unfairness, estoppel and waiver, on the one hand, and the established grounds of judicial review, on the other, was not explored.

105. Again, as noted earlier, the error or errors of law relied on have not been particularised.

106. On a broad view, the Commissioner is exercising public power in relation to the assessment and recovery of tax, although the right to issue a notice to produce under the FCRs is not itself such a power. The assessment and recovery of tax is radically different from, for example, conduct leading to the making of contracts and the making of them: see
General Newspapers Pty Ltd v Telstra Corporation. I am not satisfied that the broad view referred to has no reasonable prospects of prevailing.

107. 

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There should be a final hearing, as soon as practicable, of the claim under s 39B(1) of the Judiciary Act.

108. Unlike the debate relating to s 39B(1), that relating to s 39B(1A)(c) was confined to the question of jurisdiction.

109. The respondents submit that for the same reasons that Mr O'Neill's decision was not one made under an enactment for AD(JR) purposes, the "matter" was not one "arising under any laws made by the Parliament" for the purposes of s 39B(1A)(c).

110. There is a considerable body of case law on the scope of s 39B(1A)(c) (and s 76(ii) of the Constitution), and on the relationship between that provision and review under the AD(JR) Act. It seems excessive for me to refer to the cases, which were not, in any event, addressed in the submissions of either party. I note, however, that the authorities have been discussed in two important articles: Allsop, "Federal Jurisdiction and the Jurisdiction of the Federal Court of Australia in 2002" (2002) 23 Aust Bar Rev 29; Robertson, "The Administrative Law Jurisdiction of the Federal Court: Is the AD(JR) Act Still Important?" (2003) 24 Aust Bar Rev 89.

111. In some respects, the availability of review under s 39B(1A)(c) of the Judiciary Act is wider, and in some respects narrower, than that available under the AD(JR) Act. What is important for present purposes is that the notion of a "matter … arising under any laws made by the Parliament" in s 39B(1)(c) of the Judiciary Act is wider than that of a "decision … made under an enactment" of s 5 of the AD(JR) Act. Reference may be made to such cases as
LNC Industries Ltd v BMW (Aust) Ltd (1983) 151 CLR 575,
Australian Solar Mesh Sales Pty Ltd v Anderson (2000) 101 FCR 1, and
ACTEW Corporation Ltd v Pangallo (2002) 127 FCR 1, for an indication of the breadth of the concept of a matter arising under any laws made by the Parliament.

112. The Commissioner derives his power relevant to this case from s 8 of the ITAA. The only power that he exercises, and is said by the applicants to have limited by the Guidelines, is a power conferred by a law of the Parliament. As noted above, the assessment and recovery of tax is the exercise of a public power as distinct from, for example, the exercise of a contractual right. It seems to me that the question whether, in all the circumstances, the Guidelines are binding on the Commissioner, at least vis-a-vis the applicants, is a matter arising under the ITAA. The cases cited above show that it is not a disqualification that general law doctrines are involved. The Court has jurisdiction under s 39B(1A)(c).

113. It is not shown that the applicants' claims, in so far as they are based on s 39B(1) and (1A) of the Judiciary Act, do not have reasonable prospects of success.

Conclusion

114. The application should be dismissed pursuant to s 31A of the FCA Act in so far as it is made under the AD(JR) Act, but not so far as it is made under s 39B(1) and (1A) of the Judiciary Act.

115. Both parties have had a measure of success and my present view is that there be no order as to costs, to the intent that each party bear its own costs.

116. I will list the proceeding for directions with a view to progressing the matter for hearing of the claim under the Judiciary Act. On that occasion, a party wishing to seek an order for costs will have the opportunity of making submissions to that end.


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