Goldfinch and Commissioner of Taxation

[2011] AATA 580

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(Decision by: Deputy President P E Hack SC)

Goldfinch
and Commissioner of Taxation

Tribunal:

Member:
Deputy President P E Hack SC

Subject References:
PRACTICE & PROCEDURE
application for review
earlier application for review dismissed by consent order
estoppel
current application frivolous and vexatious
application dismissed

Legislative References:
Administrative Appeals Tribunal Act 1975 - 42A(6); 42A(9); 42A(10); 42B(1)

Case References:
Re Mulheron & Australian Telecommunications Corporation - 23 ALD 309

Decision date: 22 August 2011

Sydney

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Decision by:
Deputy President P E Hack SC

1. On 7 July 2011 I made and order, pursuant to s 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), dismissing these proceedings. Subsequently, on 10 August 2011, the applicant, Mr Frank Goldfinch, made a request for a statement in writing of the reasons of that decision. These are those reasons.

2. It is first necessary to recite some history.

3. On 12 February 2009 Mr Goldfinch lodged in the Tribunal an application for review. The application identified the decision to be reviewed as "attached decision for GST and excise". That application had attached to it copies of two letters from the respondent, the Commissioner of Taxation, to Mr Goldfinch, one dated 30 September 2008 and the other dated 23 December 2008.

4. The letter of 30 September 2008 was the first page of a letter notifying Mr Goldfinch that the Commissioner had considered, and disallowed, an objection to a demand for payment made by the Commission on Mr Goldfinch under s 60 of the Excise Act 1901 (Cth). The letter of the 23 December 2008 notified Mr Goldfinch that the Commissioner had considered and allowed only to an extent stated objections by Mr Goldfinch to the Commissioner's assessment of Mr Goldfinch's GST net amounts for the period 1 April 2004 to 30 June 2007 and to the Commissioner's assessment of income tax for the years ending 30 June 2005, 30 June 2006 and 30 June 2007.

5. The application was treated by the Tribunal as encompassing three separate applications - that relating to the GST assessment became application 2009/0642, that involving penalties 2009/0644 and that involving excise 2009/0645.

6. The applications were dealt with in the usual way with a number of conferences involving the parties and a conference registrar. The matters came to be set down for hearing in early April 2010. On 8 March 2010 the matter was before me to deal with an issue of non-compliance with a direction made on 13 November 2009. On 8 March 2010 both Mr Goldfinch and the Commissioner's representative consented orally to the Tribunal dismissing the applications. Accordingly I made an order pursuant to s 42A(1) of the AAT Act giving effect to that consent.

7. The following day Mr Goldfinch sent correspondence to the Tribunal advising that he wished "to rescind my appeal reversal withdrawal made yesterday...". That letter was treated as an application for reinstatement of Mr Goldfinch's applications. The application was heard, but refused, by Senior Member McCabe on 20 April 2010. I note that the order taken out records that the application was made in reliance on s 42A(8) of the AAT Act. That seems to me to be incorrect. That sub-section would operate where an application had been dismissed under s 42A(2) of the AAT Act. The associate's note of the argument that day records that the discussion focussed, as it ought to have, on the power in s 42A(10) of the AAT Act to reinstate where an application had been dismissed "in error". In any event Senior Member McCabe was not persuaded to make an order reinstating the applications.

8. On 11 May 2011 Mr Goldfinch lodged a further application for review in the Tribunal. That application identified the decisions sought to be reviewed as,

"Object to

Notice of amended ATO assessments

1. 30/06/05 issued 04/02/09

2. 30/06/06 issued 04/02/09

3. 30/06/07 issued 04/02/09

4. Notice of assessments 01/10/2004 to 30/06/2006 issued 14/05/2008."

9. The Commissioner, having been informed by the Tribunal of the fact of Mr Goldfinch's application, took issue with the Tribunal's jurisdiction to hear the application given that the earlier applications had been dismissed by consent and reinstatement had been refused. That led to the hearing on 7 July 2011 at which the order, subject of these reasons, was made.

10. The decision of O'Connor J, sitting as the President of the Tribunal, in Re Mulheron & Australian Telecommunications Corporation^[F1], is authority for the proposition that a further application may be made to the Tribunal (subject to questions of time limits) where an earlier application has not been disposed of on its merits or by consent. Her Honour concluded that the Tribunal was estopped from entertaining further applications for review where an earlier application for review of the same decision had been disposed of by a decision on the merits or by a consent decision.

11. It is apparent that the matters that Mr Goldfinch sought to agitate in these proceedings are identical to those in the proceedings dismissed by consent on 8 March 2010. Upon the making of that order, and by operation of s 42A(6) of the AAT Act, the proceedings are taken to have concluded, subject only to the possibility of reinstatement under either of s 42A(9) or (10) of the AAT Act. As it seems to me the decision in Mulheron demonstrates that Mr Goldfinch cannot now seek a review of decisions where he earlier consented to have his application dismissed. I see no difference in substance between a consent decision and a consent dismissal. Accordingly his new application was frivolous or vexatious i.e. legally unsustainable. Thus I dismissed the new application.