IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION a c > ry { 2 i \ Se / ae Sf wee vw BETWEEN : AND: ORDER JUDGE MAKING ORDER : Morling J. DATE OF ORDER : 13 June 1985 WHERE MADE : Sydney THE COURT ORDERS AS FOLLOWS: 1. Costs of the application respondent. ty Matter remitted to hearing. the No. G 23 of 1985 BRIAN ROLAND AUSTIN Applicant TAX AGENTS' BOARD Respondent to be paid by the Board for further "i IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G 23 of 1985 GENERAL DIVISION BETWEEN : BRIAN ROLAND AUSTIN Applicant AND: TAX AGENTS' BOARD Respondent MORLING J. 13 June 1985 REASONS FOR JUDGMENT On 7 June I delivered reasons in this matter for answering in the neaqative a preliminary question of law submitted to the Court. I then made an order that the decision of the Tax Agents' Board of 7" August 1984 refusing to qrant tne applicant's application for registration as a tax agent be quashed. I stood ths matter over unt1i today to deal with the question of costs and to decide tne future course of the Litigation. On the question of costs =f am of the view that the respontent shcuid pay the applicant's costs. The arclicant has zucceedea aun tna proce i] th dings cto aat and cs. crdinary principles that success would lead to him getting an order for costs in his favour. It is true, as counsel for the respondent has indicated, that the respondent in argument adopted an almost neutral position as to the way in which the question of law should be answered. Nevetheless, it was answered in a way favourable to the applicant. Moreover, the decision of the Court on the questisn will be of use to the respondent Board in determining future applications for registration as tax agents. For all those reasons I think the appropriate order is that the respondent should pay the applicant's costs. Me McCrudden has asked the Court not to remit the matter to the Board and to fix a date for the further hearing kK or the matter. He 2 Ww tw that the Ccurt hear evidence as tz: tne Sultability cm the applicant for registration as a tax agent. He asks the Court, should it be satisfied that his client is a Suitable person, to make an order that he be registered as a tax aqent. This course 23 opposed by counsel for the TIT denot think I should taxe the course which Mr MeCruaden asks me to taxe, It mav be .and I express no viaw con We waiver) chat tre Iturt ac2e fave mower under o.15 of tne Administrative Decisions (Judicial Review) Act to make an order directing the Board to reqister the applicant as a tax agent. But even if there 18 such power this would nst be an appropriate case for the exercise of it. What will be involved in the present case 1s a4 consideration of the suitability of the applicant for registration as atax agent. It 15 plain from the material that I have already seen that that gquestion can only he aetermined after a full examination of the aprlicant's past history as a tax agent and his current suitability as a tax agent. Those are questions which should be determined by the Board and not by this Court. It 15 possible to envisage a case in which this Court would direct registration of a person as a tax agent, for example, aif the oniy reason why the Board found against an applicant was that he was not an Australian citizen. In such a case, aif th Cours found that not to be an essential a rae) reguirement, 10 might itself determine the matter. But thas uu mot such aocase. Accordingly, thé proper oraer to make 1: tnat the matter be remitted to the Eoard. However, as I said during the course of arqument avery ecfort should be mada to ensure that the mattst 1s heard by 2 differently constitute: Board from the Board that has already ceyected M- Austin's application. It is inevitacle that :f 1p the Board again rejects Mr Austin's arplication, he will feel that it was rejected because the Board had alreaay made up its mind on the matter. I do not think for one moment that the Board would act unfairly nor do I suggest that it would not reverse its earlier decision if it thought it proper to do so, but that is not the point. I think it can hardly be expected that a layman would share that view, particularly a layman whose livelihood is at stake. I therefore think that every step should be taken to ensure that a differently constituted Board hear Mr Austin's application. The order 1s that the respondent pay the costs of the application. The orders I make in addition to the orders made on 7 June are: i. Costs of the application to be paid by the respondent. 2. Matter remitted co the Board 'for further hearing. I certri- isamd the ' "' - prece: .. . .ce a true copy of the Rease -s _it herein of his Honour Mr. duce ie. - - --11g- et Pe ee eS Associate