LVR (WA) Pty Ltd and Anor v Administrative Appeals Tribunal and Commissioner of Taxation
Document type: Decision Impact Statement
Venue: Federal Court of Australia (WAD 428 of 2011)
Judgment date: 22 June 2012
Date published: 12 October 2012

Summary of decision:
Outlines the ATO's response to this case that concerns dismissal of applications for the taxpayer's failure to comply with directions; AAT's failure to take into account a relevant consideration; copying of submissions without attribution; and model litigant obligations.

Overview of facts:
On 30 July 2010, the AAT dismissed applications for review of the Commissioner's objection decisions, without proceeding to review the objection decisions, on the basis that there had been a failure to comply within a reasonable time with AAT directions. The applications were lodged on 30 August 2007, and the AAT directions were first made on 26 August 2009. | The only ground relied on by the taxpayer before the Full Federal Court was that the AAT had failed to take into account a relevant consideration, namely an affidavit the taxpayers had filed in the AAT proceedings several days before the dismissal hearing. It was common ground that the AAT's reasons for decision did not refer to the affidavit in question. | At first instance in the Federal Court, Gilmour J dismissed the judicial review application on the basis that the AAT had in fact taken into account the affidavit in question. | It was common ground in the Full Federal Court that approximately 95% of the AAT's reasons had been copied from the written submissions of the Commissioner. | Issues decided by the court | The Full Federal Court unanimously allowed the appeal and set aside the decision of Gilmour J in the Federal Court. | The Full Federal Court held that the AAT had failed to take into account a relevant consideration, namely, an affidavit lodged on behalf of the taxpayers, in coming to its decision to dismiss the applications. As a consequence of this failure, the AAT 'decision-maker thereby failed either to embark on or to complete his jurisdictional task'. | As there had been a failure to take into account a relevant consideration by the AAT, the Full Federal Court expressly did not decide whether the copying without attribution amounted to a constructive failure by the AAT to exercise jurisdiction. The Full Federal Court, however, was critical of the extensive unattributed copying by the AAT and also critical of the parties and their counsel in not drawing the extent and context of the copying to the judge's attention. | The Full Federal Court noted that, if counsel for the taxpayers failed to fully explain the position to Gilmour J, counsel for the Commissioner should have done so to make sure that the judge understood the full circumstances surrounding the AAT's reasons for decision. | The Full Federal Court discussed the nature of the model litigant obligation and the obligations of counsel representing federal government agencies. These comments were made, however, 'without reflecting' on counsel who appeared before the Full Federal Court.

Issues decided:
The Full Federal Court unanimously allowed the appeal and set aside the decision of Gilmour J in the Federal Court. The Full Federal Court held that the AAT had failed to take into account a relevant consideration, namely, an affidavit lodged on behalf of the taxpayers, in coming to its decision to dismiss the applications. As a consequence of this failure, the AAT 'decision-maker thereby failed either to embark on or to complete his jurisdictional task'. As there had been a failure to take into account a relevant consideration by the AAT, the Full Federal Court expressly did not decide whether the copying without attribution amounted to a constructive failure by the AAT to exercise jurisdiction. The Full Federal Court, however, was critical of the extensive unattributed copying by the AAT and also critical of the parties and their counsel in not drawing the extent and context of the copying to the judge's attention. The Full Federal Court noted that, if counsel for the taxpayers failed to fully explain the position to Gilmour J, counsel for the Commissioner should have done so to make sure that the judge understood the full circumstances surrounding the AAT's reasons for decision. The Full Federal Court discussed the nature of the model litigant obligation and the obligations of counsel representing federal government agencies. These comments were made, however, 'without reflecting' on counsel who appeared before the Full Federal Court.

ATO view of decision:
The ATO has decided not to seek special leave to appeal from the decision of the Full Federal Court. The decision turned on the particular material, submissions and sequence of events before the AAT and the Federal Court hearing at first instance. The dismissal issue will be considered again by the AAT in due course. | The Full Federal Court did not find that the Commissioner breached his model litigant obligation. The Court, however, referred at length to the nature and extent of the model litigant obligation, which is binding on federal government agencies and their counsel. The Commissioner will continue to strive to meet every aspect of the model litigant obligation in all matters, and before all courts and tribunals. In particular, he will consider what action should be taken in any matters where verbatim copying issues arise. The Commissioner has reviewed all current appeals to the Federal Court from decisions of the AAT in light of the Full Federal Court judgment.

Administrative treatment:
Implications for ATO Precedential documents (Public Rulings & Determinations etc) | None | Implications for Law Administration Practice Statements | None

Legislative references: Administrative Appeals Tribunal Act 1975 (Cth) 33(1)(a) 42A(5)(b)
Case references: Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (2011) 180 LGERA 99 [2011] FCAFC 59 Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 [2010] HCA 32 Melbourne Steamship Limited v Moorhead (1912) 15 CLR 133 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 [1986] HCA 40 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 [1996] HCA 6 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 [2001] HCA 30 Rana v Repatriation Commissioner (2011) 196 FCR 137 [2011] FCAFC 123 Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294 Singh v Minister for Immigration and Multicultural Affairs [2006] FCA 1113 SZMUV v Minister for Immigration and Citizenship [2009] FCA 205 SZNRZ v Minister for immigration and Citizenship [2010] FCA 107 United States v Troy B. Jenkins 60 MJ 27 (2004) WAFK v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 319 Wu Shan Lian v Minister for Immigration [1994] FCA 926 (1994) 32 ALD 735 (1994) 48 FCR 294
Subject references: Administrative Law Power of AAT to dismiss application without proceeding to review the decision Failure of applicants within reasonable time to comply with AAT directions Mandatory relevant considerations Reasons of AAT substantially copied without attribution from written submissions Whether constructive failure to exercise jurisdiction Practice and Procedure Obligations of parties to court Model litigant obligation Obligation to inform court of source of decision-maker's reasons where copied verbatim and without attribution from party's written submissions
Other references: Legal Services Directions 2005 (Cth)