Re Dekanic and Tax Agents' Board of New South Wales.

Members:
JD Davies J

Tribunal:
Administrative Appeals Tribunal

Decision date: Decision handed down 30 September 1982.

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J.D. Davies J.

At a meeting on 15 September 1982, a Tax Agents' Board of New South Wales decided to cancel the registration of Mr. Josip Dekanic as a tax agent. The Board acted pursuant to sec. 251K of the Income Tax Assessment Act 1936 and in doing so it took into account a number of grounds which may be briefly stated. Firstly, it was thought that Mr. Dekanic had made a practice of obtaining an assignment of the refunds which his clients expected to receive from the tax office and of paying to the clients a discounted sum for those refunds; secondly, it was thought that Mr. Dekanic had engaged in over-charging; and thirdly, it was thought that the practice adopted by Mr. Dekanic in relation to the statement of deductions in the tax returns lodged by him as agent was unsatisfactory.

On 21 September, Mr. Dekanic lodged with this Tribunal an application for a review of that decision and also an application for an order staying the operation of the decision until the hearing and determination of the review. Some days ago I directed that the hearing of the review would take place on 1 November, which appeared to be the first convenient date for the hearing and that the decision under review would be stayed until today.

Section 41 of the Administrative Appeals Tribunal Act 1975 authorises the Tribunal or a presidential member to stay a decision under review if it is desirable to do so after taking into account the interests of any persons who may be affected and if it is appropriate to do so for the purpose of securing the effectiveness of the hearing and the determination of the application for review.

In applying that provision, the principles which are adopted in other places for other purposes have no direct relevance. Moreover, the jurisdiction of the Tribunal is wide and diverse and it is not practicable to lay down a principle or a set of specific principles applicable to every type of case in respect of which there may be an application for a stay.

In the case of Re Pamela Joy Dart and Director-General of Social Services, on 6 May 1982, I delivered reasons which set out my view of the operation of sec. 41 in relation to a review of a decision made under the Social Services Act 1947. I do not resile from anything said in those reasons, but it seems to me that the situation there under consideration was somewhat different from

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the circumstances which have to be considered here today.

I am here dealing with a decision which involved the cancellation of the registration of Mr. Dekanic to carry on practice as a tax agent. Under the principles of administrative law as expounded by the High Court of Australia and the Federal Court of Australia, a decision cancelling the registration of a person as a tax agent would not, I think, be a valid decision if the tax agent were not given an opportunity to be heard and to put forward facts and reasons why his registration should not be cancelled. Moreover, to cancel a registration without giving to the tax agent a right to be heard would be inconsistent with Art. 14 of the International Covenant on Civil and Political Rights which is set out in Sch. 1 to the Human Rights Commission Act 1981.

The provision of review by the Administrative Appeals Tribunal satisfies these requirements of justice that the affected person has a right to be heard (see
Twist v. Randwick Municipal Council (1976) 136 C.L.R. 106). It follows that a review by this Tribunal completes the process by which a valid decision for the cancellation of a tax agent's registration may be made. By the provision of the right to be heard before this Tribunal, the tax agent, whether he takes advantage of the opportunity of review or not, is given the opportunity to put his case and therefore the rules of natural justice are complied with.

Thus, I am not now dealing with a case in which I am reviewing a decision in relation to which, prior to the making of the decision, the applicant was given a full opportunity to put forward whatever matters he wished to put against the making of the decision the subject of the review. I am dealing with a matter involving the cancellation of a tax agent's licence in the circumstance that the applicant has not yet been heard and has not yet had an opportunity fully to put forward the facts and reasons why his registration should not be cancelled.

I make this remark without making any observations as to what actually occurred before the Tax Agents' Board of New South Wales because I have only limited information before me, but it has been put to me that the applicant was not given an opportunity to be heard and the allegation has not, for the purpose of today's proceedings, been contraverted.

In circumstances such as these, the granting of a stay may secure the effectiveness of the hearing and determination of the application for review in two ways. Firstly, the granting of a stay may remove pressure from the parties and the Tribunal to hurry towards a decision, it enables sufficient time to be set aside for the preparation of the case and an appropriate date appointed for hearing and it enables the Tribunal to reserve its decision if it sees fit to do so and to give such time to the consideration of its decision as it thinks necessary fully to consider the matter. If a stay were not granted there would be a tendency to rush the hearing and the decision and therefore to reduce the quality thereof.

Secondly, the stay may increase the effectiveness of the determination of the review. If a stay were not granted, the decision, if favourable to the applicant, could not compensate the applicant for the dislocation to his practice which would occur prior to the handing down of the decision. The decision could not put him back into the position of a person whose registration had never been cancelled. The decision can be fully effective, if it is favourable to the applicant, only if the operation of the cancellation is stayed until the decision of the Tribunal is given.

For those reasons, it is the ordinary practice of the Tribunal in the review of a cancellation of a tax agent's registration to grant a stay if the Tribunal is asked to do so, and it grants that stay until the hearing and the determination of the review. In my experience, so far as I can recollect, it has indeed been the usual practice of Tax Agents' Boards to consent to the making of an order staying the operation of the decision under review. An order staying the operation was made, for example, in the case of
Stephen Tien-Ping Su, Re Tax Agents' Board, S.A. 82 ATC 4284, which I heard earlier this year, and it is interesting to note that, even in the appeal from the decision of the Tribunal in that case, the Federal Court of Australia itself granted a stay of the cancellation of the

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tax agent's registration, operative until the hearing of the appeal.

That, as I see it then, is the basic approach to take in these matters but, of course, in every particular case the circumstances of the case must be considered and in not every case will it be appropriate that a stay should be granted. Particularly a stay should not be granted if it is clear that, in the public interest, the decision under review should be effective until the Tribunal has considered the matter fully.

In the present case, I do not see any features of the matter which suggest to me that there is any particular danger to the public should Mr. Dekanic carry on practice pending the decision of this review and, indeed, it seems to me that the public interest lies rather in staying the dislocation to his practice which would occur if the cancellation were operative. Mr. Dekanic has a large practice and a number of employees and it seems to me that the public interest lies rather in the continuance of the current state of affairs until the determination of the review than in bringing the practice to an end.

It was suggested that Mr. Dekanic could carry on practice without fee, but it does not seem to me to be realistic that one should expect him to carry on and to pay the outgoings involved in the practice if he receives no return for doing so. It further seems to me to be undesirable to dislocate his clients unless that dislocation will be permanent. It is unsatisfactory to ask clients, whose affairs have to be attended to in the next few months, to seek advice elsewhere and to take their papers to other tax agents when the decision may be that Mr. Dekanic's registration should not be cancelled.

On the whole, it seems to me that the balance of interests lies in preserving the position as it now is, that is to say, that Mr. Dekanic should carry on his practice rather than in disturbing the position prior to the completion of the review.

I am not able to form any view upon the likely success or otherwise of the application for review. There is only limited information before me and on that information I could not form a view one way or the other as to the likelihood of success. But this is not a matter in which the application is clearly hopeless. There are obviously substantial matters to be considered and I think that there should be a stay of the cancellation until a decision in the review has been made or further order.

However, the public should be protected in two ways. I shall ask the applicant to give undertakings that, during the period of the stay,

• (a) he will not take an assignment of any taxation refund due to a client or clients; and
• (b) he will charge for the preparation of a taxation return
  • (i) in the case of a return ``S'' - not more than $25;
  • (ii) in the case of a return ``A'' - not more than $45; and
  • (iii) in the case of a return ``B'' - not more than $100.

On this basis, the decision cancelling the applicant's registration as a tax agent will be stayed until the hearing and determination of this review or further order.

Leave is reserved to the parties to apply at any time for the variation or termination of this order.

Lastly, there has been an enquiry from a member of the press whether there is any matter in the exhibits which is confidential. I think that I should direct that the exhibits, which are Exhibits A and 1, are confidential and not to be disclosed to members of the public.