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TROUGHTON v DFC of T

Judges:
Jessup J

Court:
Federal Court, Melbourne

MEDIA NEUTRAL CITATION: [2008] FCA 18

Judgment date: 18 January 2008

Jessup J

1. This is an application pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"), seeking an order of review in respect of a decision of the respondent Deputy Commissioner made under s 14T(2) of the Taxation Administration Act 1953 (Cth) ("the Administration Act") refusing to revoke a Departure Prohibition Order ("DPO") made in relation to the applicant under s 14S of the Administration Act on 13 May 2007.

2. The applicant was born in the United Kingdom in August 1943. He and his family emigrated to New Zealand in 1988. Between 1995 and 1999, the applicant was engaged as an engineering consultant in relation to energy policy reform then being implemented by the government of Victoria. Since 2002, the applicant has been resident in the United Kingdom and is now retired.

3. On 9 May 2007, the Commissioner assessed the applicant for income tax for the

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years ended 30 June 1996, 1997, 1998, 1999 and 2000. The total of those assessments was $5,616,712.30, all but $112,303.00 of which remains outstanding. On 13 May 2007, the Commissioner made an order under s 14S(1) of the Administration Act prohibiting the departure of the applicant from Australia for a foreign country. The applicant, who arrived in Australia on 16 April 2007, had proposed to leave Australia on 30 May 2007. The DPO prevented him from doing so.

4. In the period between the date of the making of the DPO and September 2007, there was correspondence between the applicant, and solicitors acting on his behalf, and the Commissioner. Information was provided by the applicant which dealt both with his liability to pay Australian tax in the years to which the assessments related and with the appropriateness of maintaining the DPO. On 20 June 2007, the applicant's solicitors requested the revocation of the DPO pursuant to s 14T of the Administration Act. On 26 June 2007, the applicant attended for examination pursuant to s 264(1) of the Income Tax Assessment Act 1936 (Cth) and s 353-10 of Schedule 1 to the Administration Act. He was accompanied by his legal representatives, who requested, on his behalf, that the DPO be revoked. That request was repeated, and formalised, in letters to the Commissioner from the applicant's solicitors on 29 June, 10 July and 16 August 2007. It was those requests which led to the Commissioner's refusal to act under s 14T of the Administration Act on 14 September 2007, and it is that refusal which forms the subject matter of the present proceeding.

5. The heading to Part IVA of the Administration Act is "Departure from Australia of certain tax debtors". Division 2 thereof, headed "Prohibition and authorisation of departure of certain tax debtors", contains the provisions which are principally of present concern. By s 14R, it is provided that a person in respect of whom a DPO is in force, and who knows that it is in force in respect of him or her, shall not depart from Australia for a foreign country. That prohibition does not apply if the departure is authorised by a "departure authorisation certificate", a subject which I shall mention shortly. Section 14S provides for the making of DPOs. Subsection (1) thereof is in the following terms:

"Where:

  • (a) a person is subject to a tax liability; and
  • (b) the Commissioner believes on reasonable grounds that it is desirable to do so for the purpose of ensuring that the person does not depart from Australia for a foreign country without:
    • (i) wholly discharging the tax liability; or
    • (ii) making arrangements satisfactory to the Commissioner for the tax liability to be wholly discharged;

    the Commissioner may, by order in accordance with the prescribed form, prohibit the departure of the person from Australia for a foreign country."

Section 14T deals with the subject of the revocation and variation of DPOs. Since it is central to the present proceeding, I shall set it out in full:

  • "(1) Where a departure prohibition order is in force in respect of a person and:
    • (a) the tax liabilities to which the person is subject have been wholly discharged and the Commissioner is satisfied that it is likely that the tax liabilities to which the person may become subject in respect of, or arising out of, matters that have occurred will be:
      • (i) wholly discharged; or
      • (ii) completely irrecoverable; or
    • (b) the Commissioner is satisfied that the tax liabilities to which the person is subject are completely irrecoverable;

      the Commissioner shall, on application being made to the Commissioner by the person to do so or on the Commissioner's own motion, revoke the departure prohibition order.

  • (2) Where a departure prohibition order is in force in respect of a person, the Commissioner may, in the Commissioner's discretion and on application being made to the Commissioner to do so or on the Commissioner's own motion, revoke or vary the departure prohibition order.
  • (3) A reference in paragraph (1)(a) to tax liabilities having been wholly discharged includes a reference to arrangements satisfactory to the Commissioner having been made for those tax liabilities to be wholly discharged and a reference in that paragraph to the Commissioner being satisfied that it is likely that tax liabilities to which a person may become subject will be wholly discharged includes a reference to the Commissioner being satisfied that it is likely that arrangements satisfactory to the Commissioner will be made for those tax liabilities to be wholly discharged.

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    (4) As soon as practicable after a departure prohibition order made in respect of a person is revoked or varied under this section, the Commissioner shall:
    • (a) cause to be served, as prescribed, on the person; and
    • (b) cause to be given to each person to whom a copy of the departure prohibition order was given;

      notification of the revocation or variation of the departure prohibition order.

  • (5) As soon as practicable after a decision is made under subsection (1) or (2) refusing to revoke a departure prohibition order made in respect of a person, the Commissioner shall cause to be served, as prescribed, on the person notification of the decision."

Section 14U deals with the subject of "departure authorisation certificates". Subsection (1) thereof is in the following terms:

"Where, on application made by a person in respect of whom a departure prohibition order is in force:

  • (a) the Commissioner is satisfied:
    • (i) that, if a departure authorization certificate is issued in respect of the person, it is likely that:
      • (A) the person will depart from Australia and will return to Australia within such period as the Commissioner considers to be appropriate in relation to the person; and
      • (B) circumstances of the kind referred to in paragraph 14T(1)(a) will come into existence within such period as the Commissioner considers to be appropriate in relation to the person; and
    • (ii) that it is not necessary or desirable for the person to give security under subsection (2) for the person's return to Australia; or
  • (b) in a case where the Commissioner is not satisfied with respect to the matters referred to in paragraph (a):
    • (i) the person has given security under subsection (2) to the satisfaction of the Commissioner for the person's return to Australia; or
    • (ii) if the person is unable to give such security, the Commissioner is satisfied that:
      • (A) a departure authorization certificate should be issued in respect of the person on humanitarian grounds; or
      • (B) a refusal to issue a departure authorization certificate in respect of the person would be detrimental to the interests of Australia;

      the Commissioner shall issue a certificate authorizing the person to depart from Australia for a foreign country on or before the seventh day after a day (being a day later than, but not more than 7 days later than, the day on which the certificate is issued) specified in the certificate."

6. Division 3 of Part IVA is headed "Appeals from, and review of, decisions of the Commissioner". By s 14V, a person aggrieved by the making of a DPO may appeal to the Federal Court, or to the Supreme Court of a State or Territory, against the making of the DPO. By s 14Y, an application may be made to the Administrative Appeals Tribunal for a review of a decision under s 14T or s 14U.

7. Division 4 of Part IVA deals with "Enforcement", a subject to which it is unnecessary further to refer.

8. In the present proceeding, the applicant did not challenge the making of the DPO with respect to him. Further, he accepted that the existence of his tax liability - upon which the DPO was based - was not here contestable; and he did not seek to contest it. The applicant

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confines his challenge to the Commissioner's refusal to act under s 14T of the Administration Act to revoke the DPO. Within that context, the application is further confined, in a respect to which I shall refer presently.

9. The decision maker under s 14T of the Administration Act was Mr Gregory John Trewin, Regional Director (Wickenby) in the serious non-compliance business line of the Australian Taxation Office. In making his decision, Mr Trewin had regard to many documents, to which he referred in his affidavit sworn on 23 November 2007. Perhaps the principal document to which he referred was an internal submission dated 12 September 2007 by the Operational Director, Debt - Project Wickenby. Many of the other documents to which Mr Trewin had regard were also referred to in the internal submission.

10. The internal submission was a document of 19 pages, more than 13 of which were concerned with the question whether Mr Trewin should be satisfied that the applicant's tax liabilities were "completely irrecoverable" within the meaning of s 14T(1) of the Administration Act. The submission dealt very briefly only, and in terms to which I shall refer in due course, with the considerations that were thought to bear upon the general discretion arising under subs (2) of s 14T. It was recommended that Mr Trewin should not be satisfied that the applicant's tax liabilities were completely irrecoverable, and that he should find that the briefly-identified factors said to bear upon the general discretion were not sufficient to warrant the revocation or variation of the DPO.

11. In a document signed by the applicant on 20 June 2007 which was before Mr Trewin, the applicant said that his only assets were an entitlement to an annual pension payment from an occupational pension fund in the United Kingdom, in an amount not exceeding £UK40,000 per annum (after tax) and about $108,000 in an Australian superannuation fund. Additionally, he referred to two bank accounts which he held jointly with his wife: one in the United Kingdom, then having a balance of about £UK25,000; and the other in New Zealand, then having a balance of about $NZ65,000. He said that he held "no beneficial interest or legal interest in any other assets". He added that the funds necessary for his legal representation in Australia were being provided by his son. The applicant asserted that he was unable to pay his Australian tax liability. The liability was, according to the applicant, completely irrecoverable within the terms of s 14T.

12. The Commissioner, however, had access to a deal of information which, in the view of Mr Trewin, cast doubt upon the applicant's assertions that he had no assets other than those to which he referred. The author of the internal submission, and subsequently Mr Trewin himself, considered the extent of the applicant's assets by reference to four broad categories: assets in Australia; assets in the United Kingdom; assets in New Zealand; and assets in Switzerland. For present purposes, I need say nothing further about the first two of these categories. It was Mr Trewin's treatment of the applicant's asset situation in New Zealand and Switzerland which constituted the focus of the applicant's case in this proceeding.

13. Save for the bank account held jointly with his wife to which I have referred, there appeared to be no evidence of any New Zealand assets owned absolutely by the applicant. However, the applicant was involved (to use a neutral expression at this stage) in two family trusts which did hold assets in New Zealand. He was a joint trustee, with his wife, of both trusts, and was within the class of discretionary beneficiaries under one of them. Mr Trewin was not persuaded that the applicant did not have an interest in, or access to, the property of these trusts, or at least one of them, or that he did not have control over that property. The Swiss assets with which the applicant was said to be connected were, it seems, bank account funds held under a trust of which, according to the applicant's own evidence provided at the examination on 26 June 2007, he had been the settlor, but was not the trustee, and in which he had no beneficial interest. He said that the beneficiaries of this trust were his children. However, the applicant did not provide a copy of the trust deed or other relevant documents, notwithstanding a request which he made in that behalf of the trustee. It seems that the trust was administered under the auspices of a Swiss firm called "Strachans", with whom Mr

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Trewin and others in his section had had experience which caused him to form the view that the firm was involved in the establishment and operation of offshore trust structures that would facilitate the concealment of income that might otherwise be subject to Australian tax. For those reasons, and particularly because the applicant had been unable to provide complete and satisfactory answers to a number of the Commissioner's inquiries with respect to the Swiss trust, Mr Trewin found himself unable to be satisfied that the applicant had no interest in, or control over, that trust and its assets.

14. Under s 14T(2) of the Administration Act, it was noted in the internal submission that it "does not appear to be suggested" that the applicant was suffering from financial hardship as a result of the DPO. The submission also noted the existence of a circumstance which had been drawn to the Commissioner's attention by the applicant, namely, that his wife had recently been diagnosed with breast cancer, and was requiring ongoing treatment. It was noted that she would "obviously prefer" to have the applicant by her side in the United Kingdom. However, the view was taken that Mrs Troughton's circumstances were not sufficient to warrant the exercise of a general discretion to revoke, or to vary, the DPO.

15. In par 8 above, I said that the application in this proceeding was confined in a way to which I would return. I refer to that subject now. In the requests made on behalf of the applicant for the DPO to be revoked, no grounds were explicitly articulated. However, from the general flow of the correspondence between the applicant's solicitors and the Commissioner, and from the tenor of the answers given by the applicant at the examination on 26 June 2007, it would seem that the applicant's basic proposition was that he was quite unable to discharge his Australian tax liabilities. If so, the applicant's position would bespeak reliance upon subs (1) of s 14T, namely, by implicitly asserting that the Commissioner should be satisfied that the liabilities were completely irrecoverable. No doubt it was the way in which the applicant had generally balanced his representations to the Commissioner which was responsible for the emphasis given to the subject of irrecoverability in the internal submission. However, in his case in this court, the applicant did not attack so much of Mr Trewin's decision as arose under subs (1) of s 14T of the Administration Act. Rather, he confined his attack to so much of that decision as arose under subs (2) thereof.

16. As I have mentioned above, the internal submission addressed the subject of the general discretion under s 14T(2) as though it were distinct from the subject of irrecoverability under s 14T(1). However, as I read it, it did so in a way which took the conclusion under subs (1) as a given. That is to say, the submission suggested that Mr Trewin should not be satisfied that the applicant's tax liabilities were completely irrecoverable, and then addressed the further question whether, in those circumstances and against that background, there were any other general discretionary matters, of a kind proper to be taken into account under subs (2), which should lead to the revocation or variation of the DPO.

17. In his affidavit of 23 November 2007, Mr Trewin said that he had decided not to revoke the DPO because:

"I was not satisfied that the tax liabilities to which the Applicant was subject were completely irrecoverable; and

I was not satisfied, in the alternative, that it was otherwise appropriate to revoke the DPO having regard to the Applicant's substantial tax liabilities and having regard to my belief that the Applicant had access to funds outside Australia from which the tax liabilities could be discharged."

As I read this second paragraph, Mr Trewin took into account what had been put by the applicant and referred to in the internal submission, but did not consider that those matters were sufficient to outweigh the circumstances that there were "substantial" tax liabilities and that, as he believed, the applicant had access to funds outside Australia from which the liabilities could be discharged. It is implicit that Mr Trewin took the view that, absent the applicant's presence in Australia, the Commissioner's ability to recover the tax liabilities in question was substantially compromised. On the other hand, it necessarily followed from Mr Trewin's decision under subs (1) that, at least so long as the applicant remained in Australia, the liabilities were not

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completely irrecoverable. It seems inescapable that Mr Trewin took the view that the applicant's continued presence in Australia was relevant to the practical capacity of the Commissioner to recover the tax.

18. In his attack on Mr Trewin's decision under s 5(1) of the ADJR Act, the applicant relied upon four grounds, namely:

  • (a) that the making of the decision was an improper exercise of the statutory power in that irrelevant considerations had been taken into account (ADJR Act, s 5(1)(e) and (2)(a));
  • (b) that the making of the decision was an improper exercise of the statutory power in that relevant considerations had not been taken into account (ADJR Act, s 5(1)(e) and (2)(b));
  • (c) that the making of the decision was an improper exercise of the statutory power in that the power was exercised for a purpose other than that for which it had been conferred (ADJR Act, s 5(1)(e) and (2)(c)); and
  • (d) that the decision involved an error of law (ADJR Act, s 5(1)(f)).

I shall consider each of these in turn. Before doing so, however, it will be necessary to deal with important submissions which the parties made as to the nature of the discretion given by s 14T(2), and as to the purpose of Part IVA of the Administration Act generally.

19. As may be seen, the decision whether to revoke a DPO under s 14T(2) of the Administration Act is a discretionary one. No criterion is expressly mentioned in the subsection. That led Northrop J to describe the discretion as "unfettered" in
Edelsten v Commissioner of Taxation 92 ATC 4285; (1992) 36 FCR 236, 240. However, counsel for the Commissioner accepted, correctly in my view, that such a discretion must still be exercised in accordance with the scope and objects of the legislation, particularly of the part of the legislation in which the relevant statutory provision is to be found: see
FAI Insurances Ltd v Winneke (1982) 151 CLR 342, 368. Counsel submitted that of particular relevance were the purposes for which the power to make a DPO under s 14S is conferred. I accept that admission: see Edelsten at 244. Counsel for the applicant made a submission to like effect in general terms, but at the point of detail, and of relevance to the facts of the present case, that submission departed from that being advanced on behalf of the Commissioner. The applicant's case stressed the severe impact upon freedom of movement which was occasioned by a DPO, and would have it that the Commissioner was always obliged, under s 14T(2), to take that impact into account, particularly with reference to the circumstances of the taxpayer himself or herself. It was also said that the Commissioner was obliged to consider whether the departure of the taxpayer would in fact affect the recoverability of tax. The Commissioner's case was that, as a matter of statutory purpose, Part IVA was overwhelmingly concerned with the protection of the revenue, and that such a consideration should always inform the exercise of a discretion under s 14T(2).

20. I agree with the submissions made on behalf of both parties that the starting point is s 14S. Uninstructed by authority, I would have taken the view that that section contains its own explicit statement of purpose, namely "the purpose of ensuring that the person does not depart from Australia for a foreign country" without discharging, or making arrangements for the discharge of, his or her tax liability. There are two things to note about this provision. The first is that the word "ensuring" is a strong one. It conveys the meaning that preventing a person from leaving Australia with an undischarged tax liability should be regarded as a high priority. The second thing to note is that s 14S(1)(b) is not expressed thus: "where … the Commissioner believes on reasonable grounds that the person should not depart from Australia for a foreign country without …." If it were so expressed, the paragraph would require the Commissioner to exercise a discretion as to the desirability of the person leaving Australia without discharging, or making arrangements to discharge, the tax liability in question. However, in the way the paragraph is in fact expressed, it is a given that the person should not depart from Australia without discharging, or making arrangements to discharge, the tax liability. The Commissioner's function is to consider the desirability of making a DPO in order to ensure the achievement of that objective.

21. 

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However, there is authority which I should follow that suggests that the purposive dimension of s 14S should not be ascertained from such a literal reading of the words of the section. In
Dalco v Federal Commissioner of Taxation (1987) 19 ATR 443, 447-448, Young J said of s 14S:

"I am of the view that that is the way that one approaches the section. The Commissioner is to believe on reasonable grounds that it is desirable to stop a person leaving Australia because it is necessary to collect the tax that is owed to the government and that that discharging of the tax liability will be affected by the person going overseas."

His Honour's view was endorsed in this court in
Edelsten v Federal Commissioner of Taxation 89 ATC 4120; (1989) 85 ALR 226, 230 and in
Skase v Commissioner of Taxation 92 ATC 4001; (1991) 32 FCR 206, 209 and 210-211. In the latter case, Pincus J said that "there must be … the circumstance that recoverability will be affected by the departure of the taxpayer from Australia." (32 FCR at 211)

22. It follows that s 14S(1)(b) should be read not literally, but as though it referred to a belief by the Commissioner (on reasonable grounds) that it was desirable that the person not leave Australia without discharging the tax liability or making the arrangements there referred to. Thus it is not to be taken as a given that, in every case, the departure of the person from Australia will make it unlikely, or at least less likely, that the tax liability will be discharged, or that the ability of the Commissioner to recover the tax will be impaired. These are things which must be considered by the Commissioner in every case. The purpose of s 14S, and accordingly a central purpose of Part IVA, is not the prevention of persons (owing tax) from leaving Australia simpliciter: it is the prevention of such persons from leaving Australia where, in the Commissioner's belief reasonably arrived at, the recovery of tax would or might thereby be impaired.

23. In that result, at least so far as revealed by s 14S, the general scope and objects of Part IVA of the Administration Act are as contended for by both sides in the present case. As contended for by the Commissioner, they are the protection of the revenue. As contended for by the applicant, they are the prevention of persons (owing tax) from leaving Australia where that would affect the recoverability thereof.

24. The next provision to which reference should be made is s 14U. Here the legislature has turned its mind to the kind of exceptional circumstances that might arise, in which the non-achievement of the purpose referred to in s 14S(1) might be tolerated. Section 14U deals with four situations. First, there is the situation in which the Commissioner is satisfied that the person, having departed from Australia, will return within an appropriate period, that existing liabilities will be wholly discharged, and that future liabilities will either be wholly discharged or be completely irrecoverable. Secondly, there is the situation in which the person has given security. Thirdly, there is the situation in which permission to depart might be sustained on humanitarian grounds. And finally, there is the situation in which a refusal to permit departure would be detrimental to the interests of Australia. The circumstances to which s 14U is addressed are detailed and apparently comprehensive. The section is plainly relevant to the applicant's contention that the impact of a DPO upon the particular taxpayer had to be taken into account under s 14T(2). The contention was based upon what the Full Court said in
Poletti v Commissioner of Taxation 94 ATC 4639; (1994) 52 FCR 154. Dealing with the nature of an appeal under s 14V, the Full Court said (52 FCR at 159-160):

"The terms of the Act do not support the notion that the appeal is by way of rehearing de novo. The evident purpose of the right of appeal is to enable departure prohibition orders which the Commissioner may make, to be set aside where the person against whom the order is made is not subject to a tax liability or where the Commissioner's belief (to which para (b) of s 14S(1) is directed) is not held bona fide or is not based on reasonable grounds. The requirement that reasonable grounds must exist to support the Commissioner's belief is a safeguard to the taxpayer that departure prohibition orders will not be made against him or her in unreasonable circumstances.

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The making of such an order is a severe intrusion into a person's liberty, privacy and freedom of movement. On the other hand, the protection of the revenue is of great importance to Australia. These two interests must be balanced. Section 14S is an example of a situation where it is necessary to achieve this balance."

As I read the Full Court, their Honours were referring to the legislative balance which had been achieved by the enactment of s 14S, rather than to a process of balancing which, at the level of administrative decision-making, was mandated by the section. They were not concerned with s 14T(2). For my own part, I consider that, at least so far as it goes, s 14U encapsulates such legislative concern as there is in the personal circumstances of a taxpayer with respect to whom a DPO is extant.

25. Returning to the case before the court, the applicant identified six considerations which he alleged had been taken into account by Mr Trewin, and which were said to be irrelevant. They were:

  • i. that the continuation of the DPO over the Applicant is, to the knowledge of the Respondent, capable of imposing duress on the Applicant;
  • ii. that the Applicant is the discretionary object of certain trusts, which hold or held assets or funds in Australia or New Zealand;
  • iii. the existence of transactions between those trusts;
  • iv. the Respondent's speculations as to whether Dr Troughton's United Kingdom pension enabled him to purchase certain airfares;
  • v. the Respondent's speculations as to whether Dr Troughton has an interest in the Trevi Trust;
  • vi. the fact that advisers used by Dr Troughton have also advised Australian taxpayers whose affairs are being investigated in Project Wickenby.

I do not consider that the first item on the applicant's list is a "consideration" in the sense contemplated by s 5(2)(a) of the ADJR Act. Neither did counsel for the applicant so treat it in their submissions. They relied upon the allegation of duress in their case under s 5(2)(c) of that Act, and it is there that I too consider that the matter is more appropriately addressed.

26. As to items ii-v on the applicant's list under s 5(2)(a) of the ADJR Act, the point appeared to be that those matters were relevant under subs (1) of s 14T, but not under subs (2) thereof. In their written outline, counsel for the applicant put it this way:

"As submitted above, the analysis of the financial matters and structures set out in the bulk of Mr Trewin's affidavit and the supporting internal submission are not relevant considerations in relation to the exercise of the discretion to maintain the DPO. They are relevant to the question of whether the Commissioner must revoke the DPO. The question in that regard is whether the Commissioner can be satisfied that the tax liability is irrecoverable."

The problem with this submission is that, on the application for revocation made by the applicant, a substantial part, if not the lion's share, of Mr Trewin's task fell under subs (1). Items ii-v on the list were centrally relevant to that task, and the contrary was not submitted. The applicant may have confined his application in this court to so much of Mr Trewin's decision as was made under subs (2), but Mr Trewin himself was not so confined. Merely to point to considerations that Mr Trewin took into account for the purpose of subs (1) does not make good the proposition that he took irrelevant considerations into account when he came to subs (2).

27. I would add that, in a case such as the present when a taxpayer makes an undifferentiated application for revocation, I consider it both logical and manifestly in harmony with the structure of s 14T for the decision-maker to consider first whether he or she must revoke the DPO under subs (1), and only if a negative answer is given to that question to turn to consider whether he or she should revoke the DPO under subs (2). At that second stage, the fact that a conclusion had been reached that the tax liabilities in question were not completely irrecoverable would seem to be an entirely proper consideration to take into account, even if only by way of background. Different considerations may, of

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course, come into play in the case of an application for revocation which relies on subs (2) alone; but that is not this case.

28. Neither in their written outline nor in their oral submissions did counsel for the applicant deal with item vi on the applicant's list. The matter was raised with Mr Trewin in cross-examination, and he made it clear that he had had experience of other situations in which the same advisers (as used by the applicant) had been involved in the establishment of trusts, and in which persons assessed for Australian tax had been found, contrary to ostensible documentary appearances, to have had control over trust assets, and to have had "the final say in what to do with the money". Although it was put to Mr Trewin that he was confusing ownership and control, it was not submitted that, if the identity of the advisers had a rational tendency, as a matter of fact, to assist Mr Trewin in arriving at a particular state of satisfaction as to ownership (or, if it matters, control) in relation to the assets of the Swiss trust, he was, as a matter of law, prohibited from taking it into account.

29. The relevant considerations which, according to the applicant, should have been taken into account by Mr Trewin, but which were not taken into account, were listed by the applicant as follows:

  • i. the personal hardship imposed by the continuation of the DPO on the Applicant in respect of his family obligations in the United Kingdom;
  • ii. the personal circumstances of the Applicant's spouse and the hardship imposed on her by the continuation of the DPO;
  • iii. the absence of utility of the continuation of the DPO in that the continuing presence in Australia of the Applicant can have no effect on the lawful recovery by the Respondent of the Applicant's tax liability.

With respect to the third item on this list, the applicant provided the following particulars:

  • 1. The Applicant has been served with proceedings for recovery of the tax liability.
  • 2. The Respondent has obtained judgment in respect of the Applicant's tax liability.
  • 3. The Applicant has attended an interview and had answered under affirmation all questions asked by the Commissioner of Taxation in relation to the Applicant's financial affairs, and that examination has concluded.
  • 4. The Applicant has complied to the extent he is able with all requests by the Respondent for documents.
  • 5. The lawyers for the trustee of the Trevi Trust have advised that he has no interest in or control over the Trevi Trust.

30. The approach which I should take to an allegation that a decision-maker, exercising powers under statute, has failed to take into account a relevant consideration, is that referred to by Hely J in
Elias v Commissioner of Taxation 2002 ATC 4579; (2002) 123 FCR 499, 510-511 [56-57]:

"The ground of failure to take into account a relevant consideration in the making of an administrative decision can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision: [Minister for Aboriginal Affairs v] Peko-Wallsend [Ltd (1986) 162 CLR 24] at 39. What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If those factors are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the statute. When a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except insofar as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard: Peko-Wallsend at 40. Where the ground of review is that a relevant consideration has not been taken into account, and the discretion is unconfined by the terms of the statute, the Court will not find that the decision-maker is bound to take a particular matter into account unless an implication to that effect is to be found in

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the subject matter, scope and purpose of the statute: Peko-Wallsend at 40.

Where, as here, a discretion is conferred in very general terms, it is generally a matter for the decision-maker to decide what is relevant and what is not. It is largely for the decision-maker, in the light of the matters placed before him, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards:
Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375. As long as the decision-maker considers those things that the legislation requires to be taken into account and ignores any prohibited consideration, the grounds of failing to take into account a relevant consideration, or taking into account an irrelevant consideration, will not be available. Nor are those grounds available where the essence of the complaint is that the decision-maker paid either too little or too much attention to a relevant factor: Aronson & Dyer Judicial Review of Administrative Action (2nd ed 2000), p 225."

31. The discretion arising under s 14T(2) of the Administration Act is unconfined in the sense explained by Hely J. In the instant case the discretion was, therefore, to be exercised by reference to the subject matter, scope and purpose of Part IVA of that Act, a subject with which I have dealt above. There is nothing in the subject matter, purpose and scope of Part IVA that required Mr Trewin, as a condition to the valid exercise of his discretion under s 14T(2), to take into account the matters referred to in items i and ii on the applicant's list. The proposition can be tested this way: if those matters had not been mentioned by the applicant at all, would Mr Trewin's decision under s 14T(2) have been vitiated for failure to take a relevant consideration into account? The question needs only to be expressed that way for a negative answer to be obvious. In truth, the nature of the applicant's complaint in this regard is not such as would be admitted under s 5(2)(b) of the ADJR Act at all. It is more that Mr Trewin failed to deal with a proposition, based in the alleged facts of the particular case, upon which the applicant had relied. Whether or not there is any substance in that complaint (a matter to which I will turn next), the fact is that it does not match with the ground, or with any ground, upon which the applicant relies under s 5 of the ADJR Act.

32. For the sake of completeness, I would add two comments: first, had the matters referred to in items i and ii been squarely raised by the applicant, Mr Trewin would, in my view, have been justified in declining to deal with them under s 14T(2) upon the ground that humanitarian considerations of that kind were more appropriately addressed under s 14U(1)(b)(ii)(A). Secondly, as a matter of fact, I note that the illness of the applicant's wife was the subject of a paragraph in the internal submission. Mr Trewin was cross-examined on that subject, and said that he accepted the applicant's claim that his wife was ill with breast cancer, that he treated it as a consideration relevant to the decision whether to vary or to revoke the DPO, but that he was "sceptical" as to whether it was the sole reason why the applicant wanted to leave Australia. I accept Mr Trewin's evidence as to his state of mind at the time he made the decision. If Mrs Troughton's illness were a relevant consideration that Mr Trewin was obliged to take into account, I find that he did so.

33. The other family obligation in the United Kingdom referred to in item i of the applicant's list related to his elderly mother, who lives in the UK. Her situation was neither relied on nor referred to in any of the written applications for revocation made on the applicant's behalf. At the hearing in this court, however, counsel for the applicant submitted that Mr Trewin should have been aware that that situation was relied on by the applicant by reason of something he said in the examination on 26 June 2007. During the course of the examination, a copy of the applicant's 1997 New Zealand tax return was produced, and the applicant was asked questions about it. A series of questions related to a sum of about $NZ200,000 which the applicant said (in the return) he had earned from self-employment. Reference was then made to the applicant's work in Victoria in that fiscal year, and the applicant was asked about a requirement that he then had to travel overseas as part of his "lifestyle". The applicant answered:

ATC 8024

"Basically I had - my wife and I are both only children. My - you already heard from the beginning of the interview that my wife's parents emigrated to New Zealand in, I think late 1990. Her mother became increasingly sick, she is an only child. She was not going to move out of New Zealand as a result of that and I have a dependant mother in the UK all of whose blood relatives and husband had died by the early 1990s. I needed to visit her roughly once every three months, which I did fairly religiously during that period. She was on the phone most of the time, she was living in a dilapidated house which I have since - which has since gone, basically, and she required very large amounts of support over this period of time.

So about every three months I have to go to the UK to support her and from 1995 onwards we decided we would basically spend as much of the year we could in the UK which is why we bought a UK home and a car, etcetera, in the UK because both of our sons were at university over there, etcetera, and the only way we could keep our family together was by doing that. So we established another home, other than our New Zealand home, which was in the UK and lived there for the balance of the year with our family."

That was the passage upon which the applicant relied as effectively putting Mr Trewin on notice that he ought to take the applicant's mother's circumstances into account when considering whether to vary or revoke the DPO. I do not believe that the passage is capable of being pressed into service in this way. The examination was relevantly concerned with the applicant's situation in 1997 and thereabouts. The applicant expressed no complaint that he was, in 2007, suffering hardship as a result of being unable to travel to the UK to care for his mother. As I said above, no such complaint was ever articulated in writing. If matters of this kind might otherwise be regarded as relevant considerations for the purpose of s 14T(2), they could only be so, in my view, when squarely raised. I do not consider that Mr Trewin was under an obligation to turn his mind to every piece of information which had come to his, or to his advisers', attention about the applicant and then, in effect, to join the dots in a way that the applicant himself had not chosen to do so as to optimise the prospect of the applicant achieving a favourable outcome under the subsection.

34. The applicant's submission with respect to item iii on his list was that the Commissioner had now done everything to which the applicant's continued presence in Australia might have been useful. The applicant's Australian bank account had been garnisheed, summary judgment had been obtained against the applicant in the Supreme Court of Victoria in relation to the tax liabilities, and the applicant had been examined on oath, and required to produce documents. Dealing specifically with Mr Trewin's suspicions that the applicant may have an interest in assets in New Zealand, it was submitted on behalf of the applicant that, if those suspicions were well founded, the Supreme Court judgment could be enforced in New Zealand, as a result of the operation of the International Tax Agreements Act 1953 (Cth) and the Foreign Judgments Act 1991 (Cth). As for the prospect that the applicant may have an interest in Swiss assets, the "Trevi trust" to which particular 5 refers is the Swiss trust mentioned in par 13 of these reasons. The particular implies, and Mr Trewin was cross-examined so as to suggest, that the conclusion which he should have reached about those assets was that the applicant had no interest in or control over the trust, and therefore no property from which there could be any expectation that the tax liabilities would be realised.

35. As the applicant's grounds and particulars make clear, his point in this respect has two levels. At the first level, it was submitted on his behalf that the utility of maintaining a DPO will generally be a consideration required to be taken into account under s 14T(2) of the Administration Act. Although expressed rather tendentiously apropos the facts of the present case, this was a proposition which counsel for the Minister did not seek to contest, at least at the general level. At the second level, it was submitted on behalf of the applicant that Mr Trewin did not turn his mind to the particular facts of the potential asset situation in New Zealand and Switzerland to

ATC 8025

which I have referred in the previous paragraph. Merely to make good that second proposition, however, does not mean that the applicant has demonstrated that Mr Trewin failed to give consideration to the matter of utility. As Mr Trewin made clear under cross-examination, so long as the exact legal and factual situations as to the applicant's interest in these foreign trusts remained less than wholly clear, the applicant's continued presence in Australia might be expected at least to facilitate the making of further inquiries by the Commissioner. Whether or not that is so, however, it is a matter for the Commissioner, not for the court. It is sufficient to say that it has not been established by the applicant that Mr Trewin approached his task under s 14T(2) on the basis of an assumption - whether or not consciously made - that the continued operation of the DPO was of no utility.

36. I would add, again for the sake of completeness, that I regard the applicant's complaint that Mr Trewin did not turn his mind to particular issues as to the foreign enforceability of the Supreme Court judgment and the prospect of finding that the applicant had a present interest in the Swiss trust as another example of the applicant now raising circumstances (in this case, circumstances substantially involving legal issues) which, as a matter of argument, the applicant would now say ought to have moved Mr Trewin to decide the matter favourably to him under s 14T(2). They were not, however, considerations mandated by s 14T(2) itself, or by any other relevant provision of the Administration Act. Neither, as it happens, were the circumstances relied on by the applicant in the correspondence in which his solicitors requested that the DPO be revoked.

37. The next ground relied upon by the applicant was that Mr Trewin had exercised the power under s 14T for a purpose other than that for which it was conferred. A proper purpose, it was submitted, was to enable or to assist the lawful recovery of a tax liability. A number of circumstances, however, gave rise to the inference that Mr Trewin's, and therefore the Commissioner's, real purpose was to place such duress upon the applicant as would cause other members of his family, other persons close to him, or the trusts with which he was associated in some way, to pay the tax on his behalf. The purpose of Part IVA of the Administration Act, it was said, was to facilitate the recovery of tax from persons who might be minded to leave Australia. However, the Part was concerned with the recovery of tax from those persons. It would be improper, it was said, for the Commissioner to resort to the personal duress occasioned by a DPO when he knew that the person was unable to pay tax directly, and for the purpose of compelling persons or entities other than the taxpayer to do so. In the case of the trusts of which the applicant was a trustee (the New Zealand Trusts), it was submitted that it would be quite improper for the applicant to divert the assets thereof to the payment of his own personal tax, and therefore wrong, and beyond the scope of s 14T(2), for the Commissioner to maintain the DPO in place with the purpose, or in the expectation, that the applicant would so proceed.

38. It will be apparent that this ground is concerned with recoverability as such, at least more obviously so than with matters of general discretion that might arise under subs (2) of s 14T. Had the applicant been concerned to challenge Mr Trewin's decision under subs (1), a submission that, in considering whether the liabilities were completely irrecoverable, he instructed himself by reference to the matter of recoverability from persons other than the applicant, would have been intelligible (whether or not well founded). However, the same cannot be said of a like submission made as part of an attack upon Mr Trewin's decision under subs (2), in circumstances where there is no attack on the decision under subs (1) and where the starting point must be that he properly and lawfully took the view that the tax liabilities were not completely irrecoverable (or at least was not persuaded to the contrary by the applicant). In such a case - which is the present case - it is very difficult to see how the applicant could, absent explicit indications of bad purpose, weave into his attack an allegation that Mr Trewin's refusal to revoke was based upon an ulterior purpose of the kind suggested. To say the least, the allegation sits most uneasily with the applicant's acceptance of the decision under subs (1). However, the allegation has been made, and the applicant's point must be considered.

39. 

ATC 8026

On the facts of the present case, I could not find that the actual purpose of Mr Trewin was to have persons other than the applicant pay his tax liabilities. I find that Mr Trewin approached his task as though the question was whether the tax liabilities were completely irrecoverable from the applicant. He was not satisfied that they were. It is true that, in this regard, Mr Trewin took account of assets as to which he was not satisfied that the applicant did not have an interest, or as to which he was not satisfied that the applicant did not have access, but it was always the applicant's capacity to muster the necessary funds that was the focus of his deliberations. He carried this approach through into subs (2). He referred to his belief "that the applicant had access to funds outside Australia from which the tax liabilities could be discharged". I reject the submission that Mr Trewin's purpose was nothing more than to impose duress upon the applicant so that other persons or entities would discharge the applicant's liabilities.

40. It was submitted on behalf of the applicant that, properly instructing himself, Mr Trewin could have come to no conclusion other than that the applicant had insufficient assets to discharge his tax liabilities and that, therefore, his (Mr Trewin's) purpose could only have been to use the continued existence of the DPO as a means to prevail upon the applicant to cause other persons to do so for him. This might have been a submission of some force had the Commissioner chosen not to call Mr Trewin, but such was not the case. I am satisfied from the evidence given by Mr Trewin that he had no such purpose as the applicant alleges. I find that he conventionally turned his mind to the question whether the liabilities were "completely irrecoverable" (as required by s 14T(1)), and in that context considered whether there was no prospect that the liabilities could be recovered from the applicant. I consider that it was appropriate for Mr Trewin to have taken into account assets to which the applicant might have had access, in the sense of being in a position so to influence the disposition thereof as to leave open the prospect that recourse might be had to them to meet, or to assist in meeting, the tax liabilities in question. None of this was inconsistent with the objects of Part IVA as I have identified them above.

41. For the above reasons, I reject so much of the applicant's case as is based on s 5(2)(c) of the ADJR Act.

42. It was finally submitted on behalf of the applicant that Mr Trewin's decision under s 14T of the Administration Act involved an error of law. I have referred above to the two New Zealand trusts in which the applicant was involved. They were the Peter Troughton Family Trust and the Joyce Troughton Family Trust, each constituted by deed dated 11 September 1991. Each deed contained the following provision:

"Until the First Date of Distribution the Trustees shall hold the Trust Fund upon trust for the Trustees at their absolute and uncontrolled discretion:

  • (a) Discretion to Accumulate Income

    Except during a Restricted Period to accumulate the whole or part of the current net annual income arising from the Trust Fund by investing the income and the resulting income to the intent that the accumulations be added to the Trust Fund and be held by the Trustees upon the same trusts and with the powers declared in this deed in respect of the capital of the Trust Fund of which such accumulations shall then form part; and/or

  • (b) Discretion to Apply Capital

    Except during a Controlled Period and except during a Restricted Period to pay apply or appropriate the whole or part of the capital of the Trust Fund to or for or towards the maintenance education advancement or otherwise howsoever for the benefit of a Discretionary Beneficiary; and/or

  • (c) Discretion to Apply Income

    Except during a Restricted Period to pay apply or appropriate the whole or part of the current net annual uncome arising from the Trust Fund to or for or towards the maintenance education advancement or otherwise howsoever for the benefit of a Discretionary Beneficiary."

Referring to the deed for the Peter Troughton family trust, the internal submission made to Mr Trewin contained the following passage:

ATC 8027

"On reviewing the terms of the trust deed, a number of matters arise which support the conclusion that the trust assets are presently held on behalf of Dr Troughton and his wife:
  • • Clause 3.01 provides as follows:

    'Until the First Date of Distribution the Trustees shall hold the Trust Fund upon trust for the Trustees at their absolute and uncontrolled discretion'

  • • The First Date of Distribution is defined to mean '31 March 2071 or an earlier date adopted by the Trustees by resolution in writing made at any time except during a Restricted Period.'
  • • Restricted Period is defined to mean 'a period when the Settlor or one of the persons who may benefit under or by exercise of the discretionary powers of the Trustees is the sole Trustee of the Trust Fund or when 2 or more of the persons who may so benefit are the only Trustees of the Trust Fund'.

The above matters appear to show that until 31 March 2071, or at least until the Restricted Period expires, the trust assets are to be held on behalf of the Trustees, being Dr Troughton and his wife 'at their absolute and uncontrolled discretion'. Further, clauses 3.01(b) and (c) effectively provide that during the Restricted Period no income or capital of the trust is to be distributed to the discretionary beneficiaries."

The submission noted that New Zealand tax refunds for the trust were directed to be paid into the applicant's account, and continued: "These transactions appear to be effectively distributions from the trust and they support the conclusion that [the applicant] has an interest in the trust."

43. As I have mentioned above, and as the internal submission itself noted, the applicant was not within the class of discretionary beneficiaries established under the Peter Troughton Family Trust. He was, however, a discretionary beneficiary under the Joyce Troughton Family Trust. However the applicant's interest, or potential interest, as a beneficiary may be, it seems fairly clear that the author of the internal submission misread the trust deed in each case. As appears from the extract set out above, the view seems to have been taken that the trustees (the applicant and his wife in each case) were to hold the trust fund upon trust for themselves at their absolute and uncontrolled discretion. It could not seriously be suggested, and counsel for the Commissioner did not submit, that the trust deeds operated in this way. Rather, the relevant provision was a quite conventional one in which the trustees were directed to hold the fund upon the specific trusts referred to in subclauses (a), (b) and (c) as set out above. They involved the accumulation of income, the application of capital and the application of income respectively. These were New Zealand trusts and, as was submitted on behalf of the applicant, their construction is a matter of New Zealand law. Being foreign law, the content of New Zealand law in this court is a question of fact. To the applicant's affidavit was exhibited a letter dated 7 November 2007 from a New Zealand solicitor. Unsurprisingly, he expressed the view that the interpretation given by the author of the internal submission to the trust deed was erroneous in point of law. He said:

"We therefore conclude that the ATO have been extremely selective in quoting only from the first four lines of clause 3.01 and as a result have misinterpreted its plain and ordinary meaning which is that the trust assets are held on trust for the discretionary beneficiaries of the trust."

Counsel for the Commissioner did not submit that the New Zealand solicitor was mistaken in expressing these views.

44. That raises the question whether the error made by the author of the internal submission, and adopted by Mr Trewin, was an "error of law" within the terms of s 5(1)(f) of the ADJR Act. Questions of foreign law are treated as questions of fact in Australian courts. Indeed, as noted above, the applicant himself dealt with issues arising under the New Zealand trust deeds as though they were questions of fact: he relied upon the opinion of his New Zealand solicitors. Whether s 5(1)(f) of the ADJR Act itself should be construed as referring only to errors of Australian law is a matter of construction, and appears never to have been judicially considered. However, in
Singh v Minister for Immigration and Multicultural Affairs (No 2) [2001] FCA 327,

ATC 8028

Heerey J held that the expression "error of law" then appearing in s 476(1)(e) of the Migration Act 1958 (Cth) referred to an error of Australian law: at [22]. That provision was, I consider, relevantly indistinguishable from s 5(1)(f) of the ADJR Act. I note that Ambrose J arrived at the same conclusion regarding what was a "question of law" for the purposes of s 38(2) of the Commercial Arbitration Act 1990 (Qld) in
Re Independent State of Papua New Guinea (No 2) [2001] 2 Qd R 162, 186 [109]. I take the view, with respect, that these authorities were correctly decided in relevant respects. However that may be, Singh was a judgment of this court under an analogous provision, and should be followed.

45. I hold that the error made by Mr Trewin as to the construction of the New Zealand trust deeds was not an error of law within the meaning of s 5(1)(f) of the ADJR Act and cannot, therefore, provide a ground of review in the present case.

46. After I had reserved judgment, the applicant indicated by correspondence that he desired to seek leave to amend his application in a particular respect. I permitted him to seek that leave, and I subsequently received the parties' written submissions with respect to the application to amend.

47. The applicant seeks to include the following additional grounds of review in his application:

  • (a) The decision under s 14T(2) by Mr Trewin involved the exercise of a personal discretionary power at the direction or behest of another person (ADJR Act, s 5(1)(e) and (2)(e); and
  • (b) the decision was otherwise an abuse of power, in that the decision-maker failed to exercise a personal discretionary power independently (ADJR Act, s 5(1)(e) and (2)(j)).

The applicant justifies his late application to amend upon the basis that the facts said to sustain the proposed ground were not referred to in any of the affidavits filed on behalf of the Commissioner, and did not emerge until the course of Mr Trewin's cross-examination.

48. Under cross-examination, Mr Trewin was asked whether he had received any advice or suggestion about the question of the revocation of the DPO, save that contained in the internal submission. He said that he had, and, relevantly to the present application to amend, indicated that one of the persons involved had been the Assistant Commissioner, Mr Trewin's "SES Officer". He had expressed the belief that the DPO should not be revoked. Mr Trewin said that he believed that he acted independently, but that he "heard what the Assistant Commissioner had to say". When asked whether, in making his decision, he took the Assistant Commissioner's advice into account, he replied "not particularly, no". When pressed upon this point, Mr Trewin repeated that he had heard what the Assistant Commissioner had to say, but that he "had very little of this information before him". Mr Trewin said that he was himself the decision maker, but that he thought it was "smarter" to find out whether the opinion of others with whom he worked (including the Assistant Commissioner) accorded with his own, and "whether I am making the right decision".

49. On the basis of this evidence, it was submitted on behalf of the applicant that, realistically, the position could not be other than that Mr Trewin regarded himself as organisationally obliged to act in accordance with what he perceived to be the views of his supervising officer. I was, in effect, invited to reject Mr Trewin's denials in this regard. I do not propose to do so. Although the matter of acting under direction was not covered by the applicant's then grounds, and although Mr Trewin was (in the circumstances) seemingly taken by surprise that the subject should be entered upon in cross-examination, he answered counsel's questions readily and frankly. The thrust of that evidence was that he discussed his decision under s 14T with others with whom he worked, including the Assistant Commissioner, and noted the opinions which they held in that regard. He recognised throughout that the decision was his alone to make. On the state of the evidence, I could not find that Mr Trewin was so overborne by the strength of the expressed opinions of others, or so preoccupied with doing the bidding of the Assistant Commissioner, to render the decision one which was not effectively made by him individually. In the circumstances, I take the view that, if the applicant has otherwise made

ATC 8029

good his application to amend, the proposed ground would have no reasonable prospect of succeeding.

50. There are, however, two other considerations which were pressed upon me by counsel for the Commissioner and which, if accepted, would lead to the rejection of the present application. The first relates to the nature of the jurisprudential basis of the proposed ground. In written submissions filed on behalf of the applicant, it was taken as a given, rather than established by legal argument, that the power which Mr Trewin exercised under s 14T of the Administration Act was a personal discretionary one. I am not persuaded that it was. In terms, the power to revoke a DPO is given to the Commissioner. It is common ground that that power was delegated to the Deputy Commissioner. It seems that the Deputy Commissioner has provided a general authorisation to officers at the levels of "EL 2" and "SES" to revoke DPOs. It was pursuant to that authorisation that Mr Trewin, whose position is at the "EL 2" level, exercised power in the present case. It was only in a brief written submission in reply, filed on 15 January 2008, that counsel for the applicant addressed the significance of this authorisation to a ground of review such as that now proposed. It was submitted, in effect, that, Mr Trewin having been authorised to exercise the power, he should then be regarded, for the purposes of s 5(2)(e) of the ADJR Act, as someone invested with "a personal discretionary power" in the same way as would have been the case had he, or his position, been specifically nominated in the statute.

51. The Commissioner drew my attention to the judgment of Gibbs CJ in
O'Reilly v State Bank of Victoria (1983) 153 CLR 1, 12-13, as authority for the proposition that, at least in the context of income tax decisions, a power given in terms to the Commissioner would normally be properly exercised where the actual decision was made by an officer reporting to, and having the relevant authority of, the Commissioner. The applicant did not dispute that proposition at the general level, but, as I have indicated above, submitted that the legal question effectively remained the same, namely, did Mr Trewin, as the relevant authority-holder, exercise the power himself, or at the direction or behest of another person?

52. The question whether a ground of review of the kind referred to in s 5(2)(e) of the ADJR Act would be available in a situation where the decision-maker acted pursuant to an authorisation uncontroversially given by the person named as the statutory repository of the power has not been fully or, I would have to say, adequately argued in the present case. That was, I consider, largely because the applicant did not make this ground part of his original application. I do not consider it to be satisfactory that, because of a few, at best ambiguous, answers given by a witness under cross-examination, the applicant should, after judgment is reserved, seek to introduce a new ground of review, and to do so upon the strength of a supposed proposition of law which is not manifestly correct, and which has been neither fully nor adequately argued.

53. There is, however, a further point. The applicant's proposed ground is that Mr Trewin made his decision at the direction or behest of the Assistant Commissioner. That officer was, however, occupying a position at the "SES" level, and, therefore, also held a standing authorisation to make decisions under s 14T of the Administration Act. That authorisation was sourced in the same document as provided the authorisation for Mr Trewin himself. In the circumstances, either of them could have made the decision which Mr Trewin in fact made in the case of the applicant. Counsel for the Commissioner submitted that they could likewise have made the decision together, or in collaboration. I accept that submission. If it be correct that the authorisation of a single person in accordance with the principle referred to in O'Reilly leads to the conclusion that the power becomes a "personal discretionary power" within the terms of s 5(2)(e) of the ADJR Act, manifestly the same could not be said - or could be said only in a highly modified way - in the case of a general authorisation of a number of persons. In the circumstances of the present case, the Assistant Commissioner was no less authorised than Mr Trewin, and the former's input into the latter's decision under s 14T, such as it was, could not be regarded as having taken the decision outside the scope of

ATC 8030

the statute, assuming always, as I do, that O'Reilly applied in the circumstances.

54. I propose to refuse leave to amend, substantially for the reasons set out above. In summary, they are that, on the facts, the applicant has no reasonable prospect of establishing that Mr Trewin did make the decision in question at the direction or behest of another person; that the jurisprudential basis of the proposed ground is not manifestly sound, and has not been fully or adequately argued; and that the "other person" at whose direction or behest the decision was said to be made was himself the holder of an authority, no less complete than that of Mr Trewin himself, to make the decision. My conclusion applies equally to each of the two proposed grounds referred to in par 47 above.

55. The second consideration pressed upon me by counsel for the Commissioner related to the lateness of the application to amend and to the circumstance that the need to amend in relevant respects became apparent during the trial and was adverted to by senior counsel for the applicant; yet no application was made at that time. I have not found it necessary to base my conclusion upon this consideration. I am inclined to think that, if the applicant's new point were otherwise of obvious merit, and if arrangements could be made, even at this late stage, to avoid any prejudice to the Commissioner, the consideration should not be allowed to stand in the way of the amendment which the applicant seeks. However, for reasons which I have given, I am persuaded that leave to amend should be refused in any event.

56. For the above reasons, the application must be dismissed with costs.


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