Case: Brownsville Nominees Pty Ltd v Commissioner of Taxation (1988) 19 FCR 169
Outcome: distinguished
In further support of the contention that a decision by an officer to the effect that a request does not fall within an established policy as to which decisions will or will not be entertained, is not a decision...made...under an enactment , the Authority referred me to two additional decisions of this Court. The first was Brownsville Nominees Pty Ltd v Commissioner of Taxation (1988) 19 FCR 169, where Northrop J held that the Commissioner's refusal to issue an amended assessment under s 170 of the Income Tax Assessment Act 1936 (Cth) was not subject to review under s 7 of the ADJR Act. Section 7(1) of the ADJR Act provides for the making of applications for review of the failure of a decision-maker to make a decision where, inter alia , that decision-maker has a duty to make a decision to which [the ADJR Act] applies . Northrop J held at 173 of his reasons for judgment that s 170 did not impose any duty on the Commissioner to make an amended assessment of income tax upon the request of a taxpayer, and thus the application for review of the Commissioner's refusal to issue the amended assessment was not competent. I would observe that the Commissioner's refusal to issue an amended assessment was expressed to the taxpayer in that case in the following terms (at 171): '...In the circumstances your request to have the subject assessments amended should remain in abeyance pending resolution of the appeal...'. Of course the issue thus arising fell for consideration in the context of the complexity of the code of that legislation as to the circumstances where an amendment to an assessment may be made. Brownsville Nominees did not involve the situation of a successful challenge to an assessment of tax by the Australian Tax Office made by a taxpayer, whether formally or informally. The Authority contended nevertheless that there was no practical difference between that situation and the present, the Authority simply deciding here not to consider the request for a variation at all. 45 It is important to bear in mind, in any event, that the applicants have applied for review of the Authority's decision here under s 5(1) of the ADJR Act, and not under s 7 thereof, so that the only question with which I am presently concerned is whether or not the subject decision fulfilled the requirements of s 3(1) of the ADJR Act. In that context I would observe what Lockhart J said at 62 of his reasons for judgment in Right to Life concerning Brownsville Nominees : 'We were referred by counsel for the Secretary to the judgment of Northrop J in [ Brownsville Nominees ] as authority for the proposition that there was no "decision" within the meaning of s 5 of the ADJR Act because there was no duty imposed on the Secretary to make such a decision. Brownsville is not authority for that proposition...His Honour's decision was based squarely upon the duties imposed upon the Commissioner under the Assessment Act.' In similarly rejecting the application of Brownsville Nominees in the manner sought by the Secretary, Beaumont J concluded at 80 of his reasons for judgment that: 'I have difficulty accepting the submission. In the first place, as has been noted, the definition of "decision" in s 3(1) of the ADJR Act is not confined to those cases where a duty to make a decision is imposed, although such decisions are also picked up...'. Moreover at 88 of his reasons for judgment, Gummow J expressed his agreement with: '...what [was] said in the reasons for judgment of the other members of the Court as to the inadequacy of [ Brownsville Nominees ] as authority for the proposition that in the present case there could be no decision attracting the ADJR Act unless the Secretary was under a duty to act.' I need add nothing further as to the absence of any assistance of Brownsville to the Authority.