Case: Crowley v Tax Agents' Board of NSW (1989) 90 ATC 2005
Outcome: cited
To uphold the ruling of the Tribunal would create a situation which requires the New Zealand government to give up its right to its own sovereign decisions and to make those subservient to whims of the tax bureaucracy of Australia in order for the TTMR regime to apply. 9 Mr Aalders subsequently filed further written submissions including: 1. There prevails unwarranted discrimination against New Zealand Chartered Accountants based on supposition and assumptions based on ignorance and prejudice rather than on fact. 2. The Tribunal is biased in its approach to New Zealand tax agents. 10 Mr Aalders also referred in detail to Crowley v Tax Agents' Board of NSW (1989) 90 ATC 2005, a decision of the Tribunal. SUMMARY DISMISSAL 11 The relevant powers of the Federal Court are found in s 23 Federal Court of Australia Act 1976 (Cth) and O 20 r 2 Federal Court Rules : Beitseen v Johnson (1989) 29 IR 336 at 338. Section 23 provides: 'The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate.' 21 Mr Aalders' commitment to his principles, and the broader policy objective of the TTMR Act and the TTMR Arrangement to removing regulatory barriers to trade and commerce between Australia and New Zealand as evidenced in the Explanatory Memorandum to the Trans-Tasman Mutual Recognition Bill 1996 , are not in dispute. However, with respect, I am not satisfied that Mr Aalders' submissions raise issues of genuine public interest sufficient to displace the traditional approach of Courts to what are, at the end of the day, hypothetical questions in the context of this case. While Mr Aalders submits that the principle he seeks to agitate has wider significance than the circumstances of his individual case, there is, for example: &#8226; No evidence which could lead me to the conclusion that the differences in the taxation regimes between Australia and New Zealand do not warrant different approaches to registration as tax agents or that there is an issue of public policy in ensuring that New Zealand tax agents are able to be registered in Queensland without complying with requisite Australian standards. &#8226; No evidence before me which could lead me to the conclusion that appropriately qualified New Zealand tax agents are not able to be registered in Queensland on other bases, including under the Tax Act (as Mr Aalders was). &#8226; No indication of the scale of the problem if any facing New Zealand tax agents seeking to be registered in Queensland. &#8226; No evidence that the inability (to the extent there is an inability) of New Zealand tax agents to be registered as tax agents in Queensland creates an issue of public interest in Australia , as distinct from New Zealand (to the extent that it is an issue of public interest in New Zealand, which is also unknown and may indeed be irrelevant for the purposes of the exercise of my discretion in this matter). &#8226; Notwithstanding Mr Aalders' claims concerning the approach by New Zealand courts to Australian medical practitioners seeking to practise in New Zealand no evidence there is a conflict between inconsistent decisions between Australia and New Zealand in the interpretation of the TTMR statutes on each side of the Tasman which it would be desirable to resolve. Further, notwithstanding Mr Aalders' submissions concerning Crowley v Tax Agents' Board of New South Wales (1989) 90 ATC 2005 and its undesirability as a precedent in reinforcing discriminatory treatment of New Zealand-educated chartered accountants, I am not persuaded that it is appropriate at this stage to revisit the approach taken in that case. &#8226; No issue involving, for example, the administration of justice, public safety, issues of public or media attention or difficult issues of law which have been raised and which should be resolved. &#8226; No longer 'a matter' between Mr Aalders and the Board in relation to his registration as a tax agent, with the exception of what he described as the offence he took at his perceived treatment by the Tribunal (TS p 18 ll 4-11) and his desire that the Board take a different approach to other New Zealand tax agents seeking registration. 22 Indeed the last point in many ways crystallises the issue concerning whether there is a public interest in the Court hearing Mr Aalders' appeal. Mr Aalders in his written submissions asks: '...that if he is not allowed to appeal a questionable determination of equivalent occupations, which discriminates against NZ educated Chartered Accountants in public practice (often included in the omnibus description of Tax practitioners) under the Trans Tasman Mutual Recognition Act 1997 and the TTMR arrangement, who else, other than him, may bring such a proceeding to bring about a correction of a most curious decision?' 23 One obvious answer to the question of 'who else, other than Mr Aalders' is a New Zealand tax agent who seeks registration as a tax agent in Australia, who cannot be registered by means of the Tax Act or other avenues, and therefore who cannot achieve registration as a tax agent in Australia other than by reference to the TTMR Act . Should such a person be unsuccessful before the Board and subsequently before the Tribunal, their application might very well come to the Federal Court of Australia for determination. However Mr Aalders is not such a person. He was successful in his case before the Tribunal against the Board, and has been registered as a tax agent. Other than what are clearly his strong feelings in relation to the relevant issues, he has no personal interest in general principles applicable to New Zealand tax agents becoming registered as tax agents by the Board.