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THE TAX AGENTS' BOARD OF NEW SOUTH WALES v MARTIN

Judges:
Tamberlin J

Court:
Federal Court

Judgment date: 26 February 1997

Tamberlin J

The Appeal

This is an appeal from a decision of the Administrative Appeals Tribunal (``the AAT'') wherein The Taxation Agents' Board of New South Wales (``the Board'') seeks to set aside the decision of a Senior Member, Mr M Allen, that Mr Martin, is a fit and proper person to prepare income tax returns and transact business on behalf of taxpayers in income tax matters.

Legislation

The relevant provisions of the Income Tax Assessment Act 1936 (``the Act'') and the Income Tax Regulations (``the Regulations'') are:

``Section 251JA The Board shall register the applicant as a tax agent if the applicant satisfies the Board that:

  • (a) if the applicant is a natural person:
    • (i) the applicant is a fit and proper person to prepare income tax returns and transact business on behalf of taxpayers in income tax matters; and
    • (ii) the applicant is not an undischarged bankrupt;

Section 251BC(1) Without limiting the generality of an expression used in this Part, but subject to this section, a person is not a fit and proper person to prepare income tax returns and transact business on behalf of taxpayers in income tax matters, as at a particular time, if:

  • (a) the person is not a natural person;
  • (b) both of the following conditions are satisfied:
    • (i) the person was not registered as a tax agent, or as a nominee, for the purpose of this Part immediately before the commencement of section 39 of the Taxation Laws Amendment Act (No 2) 1988;
    • (ii) the person does not hold such qualifications (whether academic, by way of experience or otherwise) as are prescribed;
  • (c) the person has not attained the age of 18 years;
  • (d) the person is not of good fame, integrity and character;
  • (e) the person has been convicted of a serious taxation offence during the previous 5 years; or
  • (f) the person is under sentence of imprisonment for a serious taxation offence.''

``Regulation 156(1) For the purposes of subparagraph 251BC(1)(b)(ii) of the Act, the following qualifications are prescribed:

  • ...
  • (c) the person:
    • (i) shall have completed the academic requirements for the award of a diploma or certificate from a college of technical and further education following a course of study in accountancy of not less than 2 years' duration of full-time study or 4 years' duration of part-time study;
    • (ii) shall have:
      • (A) been engaged in relevant employment on a full-time basis for not less than a total of 2 years in the preceding 5 years;
      • (B) otherwise been engaged in relevant employment to an extent that the Board regards as equivalent to that referred to in sub-paragraph (A); or
      • (C) been engaged in such other employment and for such time as the Board regards as equivalent to being engaged in relevant employment as referred to in sub- paragraph (A); and
    • (iii) shall have, by written examination, successfully completed a course of study in Australian

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      income tax law acceptable to the Board;
    • ...

156(2) In this regulation `relevant employment' means employment by a person or a partnership or as member of a partnership in the course of which there has been substantial involvement in income tax matters including:

  • (a) the preparation or examination of a broad range of income tax returns;
  • (b) the preparation or examination of objections to assessments issued in respect of such returns; and
  • (c) the provision of advice in relation to income tax returns, assessments or objections.''

Background

I will set out the background circumstances basically as recorded in the reasons for decision of the AAT.

Before the AAT the Board resisted the application by Mr Martin for registration as a tax agent on the ground that he was not a fit and proper person because:

  • (a) he did not have the appropriate level of skill;
  • (b) he was not of good fame, integrity and character;
  • (c) he did not have the appropriate level of experience as prescribed by Regulation 156 of the Income Tax Assessment Regulations.

In order to understand this matter the AAT thought it necessary to consider the history of Mr Martin's experience in Broken Hill as an accountant. In particular the AAT examined the relationship between Mr Martin and Mr Geoffrey Smith, another accountant in Broken Hill and a competitor of Mr Martin, who complained to the Board about Mr Martin's alleged unsuitability to be registered as a tax agent. It also examined the manner in which the practice of Firth Chorlton & Co, Accountants of Broken Hill, was carried on by Mr Martin over many years prior to his departure in 1994.

Prior to March 1986 the practice of Firth Chorlton & Co was carried on by Mr Keith Chorlton. On 23 March 1986 Mr Chorlton was killed in a motor vehicle accident. The employees of the firm attempted to carry on the practice but they left after Mr Chorlton's former wife returned to Broken Hill and assumed control of the business.

Mrs Chorlton employed accountants to run the practice but in October 1986 she was introduced to the complainant, Mr Smith. Arrangements were made between Mrs Chorlton and Mr Smith for him to conduct the practice with a view to assessing its worth for purchase.

A dispute arose between Mr Smith and Mrs Chorlton as to the purchase of the practice. This arose because Mr Smith wished to purchase the practice by payments from fees gained in the practice whereas Mrs Chorlton wanted an upfront purchase price. The AAT recorded that having heard both Mrs Chorlton and Mr Smith it was left with the overall impression that Mr Smith saw the practice, or more particularly its client list, as one he could gain at little or no cost.

Mrs Chorlton pressed Mr Smith to purchase the practice and when he refused to make a payment in June 1987 she travelled to Adelaide and sold the practice to an Adelaide accountant, Mr Anthony Holloway, to whom she had been introduced by mutual friends in Adelaide. Having sold the practice she requested Mr Martin, on her behalf, to inform Mr Smith of the sale and request him to vacate the premises.

Mr Holloway engaged Mr Martin as Manager to conduct the Broken Hill practice. He worked in that position from 2 June 1987 to 25 May 1994. Mr Holloway applied to the South Australian Tax Agents' Board for a sub number for his Tax Agents' registration number so that income Tax Returns lodged by Mr Martin from the Broken Hill practice could be differentiated from those returns lodged by Mr Holloway's Adelaide practice. Mr Martin was made a nominee on 7 July 1992.

In June 1988 a company, Palmate Pty Ltd, purchased the H & R Block franchise for Broken Hill. That company effectively comprised two persons, Mesdames Cole and Simpson, neither of whom were qualified to be registered as tax agents. Income tax returns prepared by the Broken Hill franchise of H & R Block were signed by Mr Smith and submitted pursuant to his registered Tax Agents' number. Mr Smith received a fee for this service.

Arrangements were made by Mr Martin to purchase Palmate Pty Ltd and have transferred to him the H & R Block franchise for Broken

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Hill in June 1992. Prior to the purchase the H & R Block franchise had been offered to Mr Smith who declined to purchase it.

Mr Martin informed Mr Holloway that he had purchased the H & R Block franchise. Mr Holloway, so the AAT found, expressed reservations about a possible conflict of interest between Mr Martin managing the Broken Hill practice and conducting the H & R Block franchise on his own account.

The evidence was disputed as to how much knowledge Mr Holloway had of Mr Martin's involvement in the H & R Block franchise. Certainly Mr Holloway applied to the Tax Agents' Board of South Australia for a sub agent number to be established for the H & R Block returns, with Mr Martin as nominee.

Mr Holloway denied that he knew that Mr Martin was lodging H & R Block returns under the sub number for Firth Chorlton & Co, Broken Hill. The AAT rejected this denial by Mr Holloway.

In his report of 31 May 1995, Mr Kunkel of the Australian Taxation Office, recorded that the Secretary of the South Australian Tax Agents' Board was told by Mr Holloway that he required the sub number for the Firth Chorlton practice because of the returns prepared by the H & R Block franchise. In addition, the AAT accepted the evidence of a Mrs Haring of H & R Block that Mr Holloway had visited the offices of H & R Block at Broken Hill in company with Mr Martin and inspected the operations and asked about the clientèle. It referred to a letter dated 29 June 1992 written by Mr Holloway to the Secretary of the South Australian Tax Agents' Board which stated:

``We respectfully request that a further sub agent number be issued additional to 27779-010 and that Colin Martin be our appointed nominee for the additional sub agent number as previously discussed with you''

(Tribunal's emphasis)

A dispute arose between the proprietors of Palmate Pty Ltd and Mr Martin which led to delays in the purchase of that company being finalised. This dispute continued for two years during which time income tax returns prepared by H & R Block, Broken Hill, were lodged by Mr Martin using his sub-agent's number as nominee of Firth Chorlton & Co.

Mr Holloway had discussed with Mr Martin the prospect of his purchasing the Broken Hill practice. These discussions proved inconclusive and on 25 May 1994 Mr Holloway sold the practice to Mr Smith. On the day the sale was finalised Mr Smith terminated Mr Martin's services.

On 2 June 1994 Mr Martin applied to the Board for registration as a tax agent. As Mr Kunkel points out in his report, having been granted nominee status by the South Australian Tax Agents' Board, Mr Martin had a ``legitimate expectation'' that his application would be granted because of the qualifications for registration as nominee of a tax agent being exactly the same as the qualifications for a tax agent.

Prior to the application to the Board, Mr Smith had written to the Board by letter dated 27 May 1994 (that is, two days after the purchase of the Firth Chorlton & Co practice) setting out certain complaints and objecting to him being registered as a tax agent.

On 20 July 1995 the Board decided not to register Mr Martin as a tax agent.

Arguments for the Board

The Board's submissions in substance are that:

  • 1. The AAT wrongly interpreted the meaning of r 156(2) because it misapplied the requirements for ``relevant employment'' by finding that the relationship between Mr Martin and Accountants, ``Firth Chorlton & Co'', was ``akin'' to a partnership. It did not make a finding that a legal partnership existed.
  • 2. The AAT wrongly interpreted s 251BC(1)(d) of the Act in that it restricted its deliberations to the question whether Mr Martin was of good fame, integrity and character and did not address all matters which required serious consideration in order to assess whether Mr Martin was a fit and proper person. In particular it is alleged that the AAT failed:
    • • to consider that Mr Martin admitted that he had invested clients' money in an investment scheme in his own name.
    • • to consider that Mr Martin admitted receiving payment from taxpayers for the preparation of their returns without being a registered tax agent.
    • • to consider that Mr Martin had admitted that he had altered his

      ATC 4196

      certificate of work experience after it was signed by his referee, Mr Holloway.
  • 3. The AAT misapplied the onus of proof as required by s 251JA.
  • 4. The AAT did not afford procedural fairness to the Board because it did not not sufficiently disclose to the Board that it proposed to attach importance to the fact of prior registration as a nominee.

Fit and proper person

Whether a person satisfies the description of ``fit and proper'' will depend on the nature of the profession or calling in respect of which the standard applies.

In the case of
Re Su and the Tax Agents' Board of South Australia 82 ATC 4284 at 4286; (1982) 13 ATR 192 at 195, Davies J approached the expression ``fit and proper person'', in relation to the functions of a tax agent, on the basis that an applicant should be:

``... a person of good reputation (who) has a proper knowledge of taxation laws, is able to prepare income tax returns competently and is able to deal competently with any queries which may be raised by officers of the Taxation Department. He should be a person of such competence and integrity that others may entrust their taxation affairs to his care. He should be a person of such reputation and ability that officers of the Taxation Department may proceed upon the footing that the taxation returns lodged by the agent had been prepared by him honestly and competently.''

This approach was applied by Hill J in
Davies v Australian Securities Commission & Anor (1995) 131 ALR 295 at 305-306. Other decisions which assist in the application of the expression ``fit and proper person'' include
Hughes and Vale Pty Limited v New South Wales (No 2) (1955) 93 CLR 127;
Re Schroder and Tax Agents' Board of Victoria 94 ATC 2144;
Re Parker and Tax Agents' Board of New South Wales 95 ATC 2174; (1995) 31 ATR 1248;
Re Downes and Tax Agents' Board of Queensland 93 ATC 2168; (1993) 30 ALD 893;
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.

It is against this framework of judicial exposition that the application for review in the present matter must be examined.

No qualifying employment - Regulation 156(2)

The Board argues that Mr Martin had not been engaged in ``relevant employment'' on a full time basis in the five years prior to the hearing in 1996 as required by the subregulation. The AAT, it is said, erred in law, in regarding the position of Mr Martin with Firth Chorlton as more ``akin'' to that of an unregistered partner in a registered partnership. The Board referred to the decision of Pincus J in
Tax Agents' Board of Queensland v Seymour 90 ATC 4262 at 4266; (1990) 21 ATR 200 at 204, where his Honour held that ``employment'' did not include work done by an applicant for registration in his own business where it was not performed under a contract of service. His Honour considered that the term ``employment'' could not include a self- employed person working alone in his own business.

In that case the applicant had established a full-time business preparing tax returns for clients. He entered into an arrangement with registered tax agents that they would audit and sign income tax returns prepared by him and collect a fee from the client, out of which the applicant was to be paid a proportion.

That case is quite different from the present in that, in this case, it was open to the AAT to find that the engagement of Mr Martin was such that he was subject to the supervision and direction of Mr Holloway and was ``in employment''. On a fair reading of the decision the AAT made such a finding. The fact that Mr Martin had a considerable degree of autonomy did not mandate the conclusion that he was not ``an employee''. The reference to Mr Martin being ``akin'' to a partner is a reference to the fact that he had a certain degree of autonomy beyond that which one might normally expect where a person is an employee.

Mr Holloway's complaint about the conduct of Mr Martin was not that he was not subject to directions, but that, at least in the later stages of his engagement, he did not comply with some of the directions given to him by Mr Holloway. To use the language of Pincus J, on the evidence, it was open to the AAT to find that Mr Martin was not in the five year period to May 1994, simply working alone in his own business.

There was evidence before the AAT that Mr Martin was engaged by Mr Holloway in the practice of Firth Chorlton & Co to conduct the

ATC 4197

Broken Hill practice. In 1992 Mr Holloway applied to the South Australian Tax Agents' Board for a sub-number as nominee for the tax agents registration so that income tax returns, lodged by the Broken Hill practice, could be distinguished from those lodged by Mr Holloway's Adelaide office. This arrangement ceased on 25 May 1994. In his application for registration of Mr Martin, as a nominee, dated 26 February 1992, Mr Holloway stated that the experience of Mr Martin included five years experience in Australian Taxation matters as ``Acct/Manager Firth Chorlton & Co''.

In the declaration forming part of the application, Mr Martin was described by Mr Holloway as an ``employee''. In a Summary Sheet, dated 4 June 1992, Mr Martin is again referred to as an employee of Firth Chorlton. In a Statement of Relevant Employment, dated 26 May 1992, Mr Martin is certified by Mr Holloway to be an employee. There was evidence from Mr Holloway that when he ``supervised'' Mr Martin his work was not bad and that his concern was with the way the business was run, rather than with Mr Martin's technical competence. The use of the term ``supervision'' indicates compliance with the required criteria in r 156.

In a Certificate of Work Experience, signed by Mr Holloway, on 26 February 1992, Mr Holloway said that during the past five years there was:

``Total day to day management of the practice including preparation of all returns, amendment requests, objections, provisional tax variations and liaison with clients and the Australian Tax Office in taxation matters.''

This indicates a considerable degree of experience in relation to tax matters.

Mr Holloway expressed confidence in the returns prepared by Mr Martin.

Mr Martin also gave an interview with the Australian Tax Office on 23 November 1992, in which he stated that Mr Holloway had total authority to fire him and the staff and that he was acting under Mr Holloway's authority at all times. In par 46 of its reasons for decision, the AAT expresses the view that Mr Martin was doing work under the ``nominal'' supervision of Mr Holloway and for which Mr Holloway was ultimately responsible.

As I read that paragraph of the reasons for decision, the substance is that Mr Martin was answerable to and subject to supervision by Mr Holloway, but in fact the supervision was rarely, if ever, asserted and that during the period of his engagement he was acting practically in the same way as an autonomous partner in his conduct of the Broken Hill practice. The AAT clearly considered that Mr Martin had the necessary experience and in view of the evidence referred to above, it was quite open to treat him as having satisfied the relevant ``employment'' requirements.

The language of par 46 is to be contrasted with par 45 of the AAT reasons in which the AAT held that work done in relation to the H & R Block franchise was not in relevant employment, having regard to the direct authority of Seymour's case, but it made a contrary finding in relation to the work done for Firth Chorlton.

The evidence was not conclusive on the question of employment, but the AAT reasons for decision, when fairly read with the evidence, do not disclose any error of law with respect to the construction or application of r 156(2).

Interpretation of s 251(BC1)(d)

Shortly summarised, the submission is that the AAT wrongly equated the requirement of ``fit and proper person'' with the requirement of ``good fame, integrity and character''. The approach was too narrow in that the AAT did not consider other aspects of fitness and propriety such as competence, experience or qualifications.

This submission should not be accepted.

As noted earlier the AAT quoted the relevant principles from the judgment of Davies J in Re Su at 82 ATC 4286; 13 ATR 195, as applied by Hill J in Davies case, 131 ALR at 305-6. It then went on to address the question of ``good fame and character'' by addressing the specific complaints raised by the Board as a result of the objection by Mr Smith.

Having considered these matters the AAT proceeded to examine the extent of Mr Martin's involvement in tax matters and concluded that he had sufficient involvement. The decision concludes that the applicant is a ``fit and proper person'' within the meaning of s 251JA.

In these circumstances I am not satisfied that the AAT failed to address the relevant question

ATC 4198

or failed to make findings as to fitness and propriety which went to matters of competence and depth or range of experience, beyond the concept of ``good faith, integrity and character''.

Failure to address relevant matters

It is further argued that the AAT failed to address several relevant matters going to ``fitness and propriety''. There were three omissions asserted.

The first matter said not to have been addressed was that the AAT did not take account of the fact that Mr Martin had invested clients' moneys in his own name in an investment referred to as the ``Pillar Scheme''.

This matter was specifically referred to in para 36 of the AAT reasons, where it is stated:

``36. The Applicant's involvement in certain speculative schemes has been raised. Mr Smith has been very active in pursuing this, even referring certain documents found by him to the Australian Securities Commission. I am satisfied that so far as the so called `Pillar' joint venture is concerned, the Applicant was not concerned in any illegal as opposed to speculative activity. There was no evidence adduced that anyone who had entered into the scheme through the Applicant had complained that they were not advised of the nature and risks of the scheme.''

The role of this Court is not to consider the merits of the complaint but rather to determine whether the AAT failed to take the matter into account. Having regard to the above reference, it is apparent that the AAT considered this matter. The approach to the question whether Mr Martin was involved in any illegal activity was a matter raised before it upon which it reached a conclusion in favour of Mr Martin. The reasoning, in my view, discloses no error of law in this respect.

The second matter said to have been ignored was that Mr Martin admitted receiving payment from taxpayers for the preparation of returns.

In par 32 of its reasons, the AAT said:

``In a report to the New South Wales Tax Agents' Board, undated but alleged to have been prepared on 27 June 1995 (Doc T10), recommendations are made that prosecutions be brought against the Applicant for the unauthorised use of Mr Holloway Tax Agent's number and for acting as an unregistered Tax Agent. No such prosecution has been brought. In considering the matters placed before me I am conscious of what is being alleged amounts to behaviour constituting the commission of an offence, thus I have applied a strict standard of proof whilst also appreciating that the civil standard of proof applies. See
Briginshaw v Briginshaw 60 CLR 336.''

Document T10 recommends proceedings against Mr Martin for receiving a fee in relation to income tax returns at a time when he was not a registered tax agent. As the AAT notes no prosecution was brought. Mr Martin was alleged to have acted as an unregistered tax agent and the matter was clearly raised. I am not persuaded that the AAT ignored it when preparing its reasons for decision.

The fact is that the AAT was simply not satisfied that the allegation had been made out. Mr Martin gave evidence that at the relevant time, all the returns prepared by him as pro- forma returns were signed by Mr Boog, whom he believed was going to employ him and who was a tax agent.

It is important to bear in mind that the AAT was constituted by a Senior Member Mr Allen, who is experienced in taxation matters, and that the Court will be slow to infer that a specialist tribunal entitled to make use of his or her expertise overlooked or failed to take into account material evidence, particularly where the matter is within that specialist expertise. See the remarks of Stephen J, as he then was, in
Spurling v Development Underwriting (Vic) Pty Limited [1973] VR 1 at 10-12. This approach has been approved and applied in numerous subsequent decisions, see
Roads Corporation v Dacakis [1995] 2 VR 508 at 529-30 per Batt J;
Minister for Health v Thomson (1985) 8 FCR 213 per Beaumont J. This consideration is particularly important in cases which raise questions as to the professional fitness or propriety of an applicant for a statutory certificate in relation to a particular vocation or profession and the expert is a member of the vocation or profession. Members of a profession or calling will often have a greater appreciation of the exigencies and practical demands of that particular profession. This is not, of course, to suggest that the presence of a specialist member on an administrative appellate or review panel will immunise that

ATC 4199

decision from examination. What it does indicate is that courts will tend to extend a greater degree of latitude, when considering the reasons for decision, than would be the case where there is no specialist member on the panel.

A third matter, alleged to have been overlooked, is that the AAT failed to consider that Mr Martin admitted to altering a certificate of work experience after it had been signed by his referee, Mr Holloway.

There is no suggestion that the additional matters inserted were untrue or inaccurate. In fact, they made the Certificate more accurate. Indeed, while the hand written alterations refer to an increased number of individual returns in 1992 and 1993, there is a reduction in the work done with respect to trusts, partnerships, companies and objections. The changes, in other words, are not calculated to exaggerate the experience. To some extent they indicate a reduction in the level of experience in certain areas. The changes in my view simply update the certificate by reference to work done in 1992 and 1993.

Whilst strictly Mr Martin should have raised the alterations with Mr Holloway, as it was the Certificate of Mr Holloway which was being amended, the breach was not considered by the AAT to be significant or determinative. This evaluation is a matter of fact and degree. The submission was made to the AAT on behalf of the Board that this circumstance was important. The submission was made as a handwritten amendment to a previous typed submission and therefore stood out from the general text. It is unlikely, in these circumstances, that the AAT overlooked the question. It is true that the AAT does not refer to this matter but, in my view, it was open to treat the matter as not having any significant weight.

In summary, I am not satisfied that the AAT erred in law by failing to consider any of the above considerations.

Onus of Proof

The Board submits that the AAT failed to correctly apply the appropriate onus of proof to the application. It is clear from s 251JA that Mr Martin bears the legal onus to satisfy the test. It is equally clear that the AAT was alert to this obligation.

The gravamen of this complaint is that the AAT wrongly placed the onus on the Board because it wrongly considered that Mr Martin, having been registered as a nominee of a registered tax agent by the South Australian Board, had a ``legitimate expectation'' that he would and should have received virtual automatic registration as an agent.

This submission, in my view, confuses the issue of onus with the well known concept of ``legitimate expectation''. A legitimate expectation of being registered does not reverse any statutory onus of proof. The substance of what is being said, in my view, is that because of his acceptance by the South Australian Board for nominee status, where the qualifications required are identical, the grant of such status will afford significant evidence of ``fitness and propriety''. The use of the familiar expression ``legitimate expectation'' with its extensive judicial gloss in relation to procedural fairness is, perhaps, infelicitous. However, the reasons do not disclose that the AAT approached the question on the basis of any incorrect view as to where the onus lay. Rather, it can be inferred that the AAT considered the prior nominee status was a matter which should be given significant weight when deciding whether the applicant had made out a sound case for registration.

Three specific references are made to the AAT reasons which are said to illustrate an error in the AAT's approach. These are as follows:

``AB 580 Para 35

There is no evidence that the mistakes were such that the Tax Agents' Boards in either South Australia or New South Wales were alerted to an incompetent Agent practising nor have any former clients brought actions in negligence against the applicant alleging overpayment of tax or the imposition of additional tax plus penalties as a result of his negligence.

AB 581 Para 36

There was no evidence adduced that anyone who had entered into the (Pillar) scheme through the applicant had complained that they were not advised of the nature and the risks of the scheme.

AB 582 Para 40

The criticisms were raised by Mr Smith, yet no-one from that association was called to say that the association considered that they

ATC 4200

were dissatisfied with the services provided by the applicant. No doubt they considered that they got what they paid for.''

These three extracts simply note that there is no evidence one way or another on the matter. They do not indicate to me that the AAT misunderstood the requirement that Mr Martin should satisfy the Board as to fitness and propriety. The statements on their face do not assert that the Board failed to meet any evidentiary onus. In these extracts the AAT is simply summarising the state of the evidence and making appropriate observations.

Procedural fairness

The Board submits that because the AAT in its reasons emphasised the importance of the prior registration as nominee, it ought to have specifically alerted the Board to the importance it intended to attach to this matter and it is said therefore that the AAT should have invited a response from the Board.

It is further said that the significance to the AAT of the respondent's prior registration was not a matter which could have been anticipated. Reference was made to Re Downes and Re Schroder referred to earlier.

Whilst the AAT clearly placed significance on the prior registration there is nothing in the reasons to support a contention that the AAT regarded the prior nominee status as binding or restricting the scope of the matters to be considered when determining whether a person is ``fit and proper''. Rather, the reasons demonstrate that many other matters apart from prior nominee status were factored into the reasoning when the AAT came to consider whether the statutory requirement was satisfied.

The fact of prior registration was apparent at the hearing and the Board had a full opportunity to address the AAT as to its significance. The fact that the AAT may have subsequently attached more significance to that appointment than the Board anticipated does not mean that there was any breach of procedural fairness.

The proceedings before the AAT are adversarial in nature. The AAT is under no obligation to disclose to or call back parties to make submissions as to the reasoning process which it has decided to adopt after the hearing has closed and after it has commenced to consider the evidence and has embarked on its reasoning process in relation to the submissions made by the parties. See the helpful discussion and the cases cited in Judicial Review of Administrative Action, Aronson and Dyer, (1996) at 541-548.

As counsel for Mr Martin points out in the statement of Facts and Contentions prepared by Mr Martin and furnished to the AAT on 23 November 1995, it was stated by Mr Martin:

``Fact 1

When the application was made to the Tax Agents' Board of NSW for the registration as a Tax Agent in June 1994, it was on the grounds that the conditions of registration had already been satisfied in 1992, having being been a registered nominee for two years and held a reasonable expectation that the upgrading from nominee to personal registration was a matter of course.''

On page 6 of that Statement of Contentions, the first matter raised under the heading ``Summary'' is:

``1. Minimum requirements for registration satisfied by identical requirement for nominee registration as granted in SA in 1992.''

At par 54 of its reasons the AAT said that it was:

``... conscious of the fact that registration as nominee was granted to the Applicant before complaints were made regarding his integrity and competence and that those matters had to be investigated.''

It is clear, therefore, that the AAT did not view the effect of that registration in any false light.

In view, particularly, of the express and specific contention raised by Mr Martin before the AAT it cannot be reasonably suggested that the AAT's acceptance of the importance of prior registration as nominee was ``unforseen, novel or unanticipated''. It was a matter clearly flagged by Mr Martin as important and should have been addressed by the Board before the AAT. It is too late now to suggest that the AAT should have given the Board yet a further opportunity to address on this question. Substantial weight must also be given to the consideration that litigation should be brought to finality in a timely framework and that this case concerns an administrative decision in an area where efficient, inexpensive and prompt determination is especially important.

ATC 4201

Conclusion

In my opinion the reasons given by Senior Member Allen for the decision of the AAT were comprehensive, well-balanced, and reasonable. The reasons disclose that a number of matters which might have been considered adverse to Mr Martin were raised and considered but were found to be outweighed by countervailing considerations and material.

For the above reasons I am not persuaded that the Board has made good a case that there has been any error of law in the reasoning of the AAT and the appeal should therefore be dismissed with costs.

ORDERS

The Court orders that the appeal be dismissed with costs.


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