Case: Beitseen v Johnson (1989) 29 IR 336
Outcome: followed
The notice of motion before the Court concerns an application by the Tax Agents' Board of Queensland ('the Board') for orders that an appeal of Mr Aalders commenced by notice of appeal filed on 26 August 2005 be dismissed. The claim is brought pursuant to the discretionary power of the Court in s 23 Federal Court of Australia Act 1976 (Cth) or alternatively O 20 r 2 Federal Court Rules to dismiss or permanently stay an appeal on the grounds that to proceed would be futile or would involve the Court in the determination of issues that are moot or hypothetical. That these provisions confer this power on the Court in such circumstances is clear from the decision of the Full Court in Beitseen v Johnson (1989) 29 IR 336 at 338. 2 Mr Aalders, a chartered accountant who was a registered tax agent in New Zealand, applied to the Board for registration as a tax agent in Queensland on 2 August 2002. The application was on two grounds: first, under the Trans-Tasman Mutual Recognition Act 1997 (Cth) ('the TTMR Act'), and second, under the Income Tax Assessment Act 1936 (Cth) ('Tax Act'). 3 The Board refused Mr Aalders' application for registration under both Acts, and he applied to the Administrative Appeals Tribunal ('the Tribunal') for review of that decision. 4 The Tribunal delivered its decision on 29 July 2005. In that decision, the Tribunal: &#8226; affirmed the decision of the Board to reject Mr Aalders' application for registration as a tax agent in Queensland pursuant to the TTMR Act, but &#8226; set aside the decision to reject the Mr Aalders' application for registration as a tax agent pursuant to the provisions of the Tax Act, and remitted the matter to the Board for reassessment with the direction that Mr Aalders qualified for registration as a tax agent in Queensland. 5 It is common ground that Mr Aalders is now registered as a tax agent in Queensland. The chronology filed by the Board indicates that Mr Aalders was registered as a tax agent on 10 August 2005. 6 Mr Aalders has now appealed the decision of the Tribunal, but only in respect of the Tribunal decision Q2004/110 with respect to his application for registration as a tax agent pursuant to the TTMR Act. 11. 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.' 14 The principle has also been applied in the Federal Court in a number of cases (for example Beitseen v Johnson (1989) 29 IR 336, La Roche v Cormack (1991) 33 FCR 414, Rocklea Spinning Mills v Anti-Dumping Authority (1995) 56 FCR 406 at 423, Mayne Nickless Ltd v Transport Workers Union of Australia [1998] 984 FCA, Civil Aviation Safety Authority v Administrative Appeals Tribunal [2001] FCA 1319 , Vanstone v Clark [2005] FCAFC 189). In Beitseen , to which I was also directed by Ms Brennan acting for the Board, the trial judge had made orders directing members of a union to perform and observe the rules of that organisation by treating the respondent as having been validly appointed to the position of secretary in the union, and by treating as null and void a purported resolution of the union that an election be held for that position. The respondent's appointment was for the unexpired term of the previous incumbent in that role, however it was common ground that the unexpired term would expire shortly afterwards, and that an election was in progress to determine who would fill the office for a full term from that time. The appellants sought to appeal the decision at first instance on the basis of issues including whether the respondent was eligible to be appointed to the position pro tem, whether the union could have filled the position by appointment a casual vacancy, and whether the appointment of the respondent had not been effectively revoked by a subsequent meeting. Woodward, Northrop and Ryan JJ held that: &#8226; in the circumstances there was no real contest between the parties as to the right of the respondent to occupy the position &#8226; resolving those questions would be to furnish an advisory opinion which courts traditionally, and for good reason, have been averse from doing &#8226; although the appellants genuinely desired to agitate the issues involved in the grounds of their notice of appeal, such a desire does not satisfy the requirement that the legal rights of the parties should be in actual controversy as articulated Hole v Insurance Commissioner . As explained by their Honours: 'On our understanding that requirement entails that any judgment which might be given on the appeal should confirm or modify rights which remain capable in a real and genuine sense of being enjoyed.' (at 337-338) 18 In the case before me there is no question that Mr Aalders is genuinely desirous of resolution of the issue of the application of the TTMR Act to New Zealand tax agents seeking to practise in Australia. From the facts of the case before me, however, it is equally clear that, so far as Mr Aalders is concerned, the point is moot. Whether the TTMR Act applies to New Zealand tax agents seeking to practise in Australia is, considered objectively, no longer relevant to his circumstances. Mr Aalders was registered as a tax agent in Australia following the decision of the Tribunal, on a different basis to the application of the TTMR Act. To paraphrase the words of their Honours in Beitseen and Hole : &#8226; there remains no real contest between Mr Aalders and the Board as to his registration as a tax agent &#8226; his desire to agitate the issue of the application of the TTMR Act to New Zealand tax agents does not satisfy the requirement that the legal right of the parties should be in actual controversy &#8226; no outcome from Mr Aalders' substantive appeal, irrespective of whether I were to find in his favour or against him, and no direction I could give to the Tribunal in relation to his case, could confirm or modify any rights he already has.