Case: Vanstone v Clark [2005] FCAFC 189
Outcome: distinguished
The submissions of the Board in support of this notice of motion may be summarised as follows: 1. There is a clear case for summary dismissal of the appeal on the grounds that there is no actual controversy between the parties as to Mr Aalders' legal or practical right to be registered as a tax agent. 2. At its highest, the appeal involves consideration of one of perhaps multiple alternate bases for his current registration. 3. Even if Mr Aalders were successful in the substantive appeal, the appeal would not provide the appellant with any consequential relief as the Tribunal has already remitted the matter to the Board for reconsideration with directions necessitating the registration of Mr Aalders as a tax agent. 4. Mr Aalders has acknowledged that he has no personal interest in the outcome of the appeal, and in effect he seeks a hypothetical opinion from the Court on the application of the TTMR Act to the registration of tax agents. 5. This is not a matter where, notwithstanding the lack of practical outcomes of the appeal, the appeal would resolve an important issue of public law as was the case in Vanstone v Clark [2005] FCAFC 189. 8 The submissions of Mr Aalders in response may be summarised as follows: 1. The governments of Australia and New Zealand have put in place a mutual recognition regime as part of the creation of a free trade area. 2. The courts in New Zealand in relation to medical practice have enforced the principles of mutual recognition and he would have expected the Australian judiciary, including the Tribunal, to do the same. 3. Section 28 of the TTMR Act and the provisions of the Trans-Tasman Mutual Recognition Arrangement ('TTMR Arrangement') allow a person in an occupation or profession registered in New Zealand to practise in Australia and vice versa. The Arrangement was ignored as irrelevant by the Tribunal. 4. The position taken by the Board before the Tribunal was a ploy or disguise to attempt to defeat the intent and spirit of the Arrangement and the TTMR Act. 5. The Tribunal failed to give proper consideration to the equivalence of tax agents in Australia and New Zealand. 6. The Tribunal failed to consider for mutual recognition purposes the ability and fitness of Mr Aalders. 7. As a result, tax agents from jurisdictions including New Zealand are discriminated against in Australia. 8. The decision of the Tribunal in relation to TTMR is fundamentally wrong and unjust, and breaches the spirit of the TTMR and the TTMR Arrangement. Unless the precedent is overturned the entire concept of mutual recognition will be 'killed off by a bureaucracy unwilling to follow the direction given by the Government'. 9. The application by the Board to have Mr Aalders' appeal struck out prejudices every New Zealand educated chartered accountant in public practice, who in terms of the TTMR Act is entitled to practise in Australia and who is afforded educational and qualification equality by the Institute of Chartered Accountants in Australia. 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) 15 Notwithstanding this general rule, the courts have also recognised that, even where hypothetical issues are involved, the court preserves a discretion to determine an issue where the determination would be in the public interest: Eastman v Newcastle United Football Club Ltd [1964] 1 Ch 413 at 440, Veloudos v Young (1981) 56 FLR 182 at 190, Douglas v Tickner (1994) 49 FCR 507 at 521, Mosman Park Town v Esther Investments Pty Ltd (1996) 93 LGERA 38, the Full Court of the Federal Court in MIMIA v Al Masri [2003] FCAFC 70 ; (2003) 126 FCR 54 at 62, Vanstone v Clark per Black CJ at [8] and Weinberg J at [38], and more recently the Court of Appeal of Western Australia in Kennedy ex parte West Australian Newspapers [2006] WASCA 172 at [27] .