Hutchins, Peter Graeme v Deputy Commissioner of Taxation [1996] FCA 201

CATCHWORDS Administrative Law - Administrative Decisions (Judicial Review) Act 1977 (Cth) - "decision" to which AD(JR) Act applies - decision "under an enactment" - Deputy Commissioner of Taxation - decision to vote against motion for acceptance of composition at creditors' meeting under Part X of the Bankruptcy Act 1966 - whether decision to which AD(JR) Act applies. Administrative Decisions (Judicial Review) Act 1977 (Cth) Income Tax Assessment Act 1936, ss 8, 208, 209 Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321 General Newspapers Pty Ltd v. Telstra Corporation (1993) 45 FCR 164 Minister for Immigration and Ethnic Affairs v. Mayer (1985) 157 CLR 290 Australian National University v. Burns (1982) 64 FLR 166 Australian Wool Testing Authority Ltd v. Commissioner of Taxation (1990) 26 FCR 171 Strictly Stainless Pty Ltd v. Deputy Commissioner of Taxation 5 November 1993, unreported, Davies J Chan Yee Kin v. Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Right to Life Association (NSW) Inc v. Secretary, Department of Human Services and Health (1995) 128 ALR 238 Lamb v. Moss (1983) 76 FLR 296 Peter Graeme HUTCHINS v. Kenneth Howard Collins, DEPUTY COMMISSIONER OF TAXATION VG 247 of 1994 Black CJ, Lockhart J, Spender J Melbourne 27 March 1996

IN THE FEDERAL COURT OF AUSTRALIA ) VICTORIA DISTRICT REGISTRY ) No VG 247 of 1994 GENERAL DIVISION ) BETWEEN: PETER GRAEME HUTCHINS Appellant AND: KENNETH HOWARD COLLINS, DEPUTY COMMISSIONER OF TAXATION Respondent COURT: Black CJ, Lockhart J and Spender J DATE: 27 March 1996 PLACE: Melbourne MINUTES OF ORDER THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA ) VICTORIA DISTRICT REGISTRY ) No VG 247 of 1994 GENERAL DIVISION ) BETWEEN: PETER GRAEME HUTCHINS Appellant AND: KENNETH HOWARD COLLINS, DEPUTY COMMISSIONER OF TAXATION Respondent COURT: Black CJ, Lockhart J and Spender J DATE: 27 March 1996 PLACE: Melbourne REASONS FOR JUDGMENT BLACK CJ: This is an appeal from a judgment of Jenkinson J upholding an objection to competency and dismissing an application under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") for an order of review of the respondent's decision to vote against a motion put to a meeting of the appellant's creditors convened under Part X of the Bankruptcy Act 1966. The motion in question was for a special resolution that the creditors accept a composition of the appellant's debts. The composition would have involved payment by the appellant of $20,000 in full settlement of his debts, which in total were for a sum in excess of $6 million. Included in this total was a debt of $954,105.06 owing to the Commonwealth for income tax and an associated liability. The respondent decided that the Commonwealth would vote against the motion and it failed to be carried by the majority required by s.204(1)(c) of the Bankruptcy Act, there being a majority of creditors in number in favour of the composition but less than the requisite three-fourths majority in value. If the Commonwealth's vote had been for the motion, or if the Commonwealth had abstained from voting, the motion would have been carried as a special resolution with the consequences provided for by Part X of the Bankruptcy Act. The appellant sought judicial review of the decision to vote against the proposed composition, claiming that he was aggrieved by the decision because: "1. As a result of the respondent's decision to vote against the proposal, the applicant's proposal was not accepted by the applicant's creditors in the manner and with the majorities required by Part X of the Bankruptcy Act 1966. 2. As a consequence of the respondent's decision and the resulting failure of the applicant's creditors to accept the applicant's proposal, the Court was not precluded from making a sequestration order against the applicant's estate and the Court made such a sequestration order against the applicant's estate on 17 August 1993." The respondent objected to the competency of the application for judicial review on the ground that the decision to vote against the proposed composition was not a decision to which the ADJR Act applied because it was not a decision "under an enactment" within the meaning of that expression in s.3(1) of the ADJR Act. It was not disputed that the decision was one of an administrative character. The appellant contended before Jenkinson J, as he did before us on appeal, that the decision was made "under" one or more of ss.8, 208 and 209 of the Income Tax Assessment Act 1936. Section 8 provides: "The Commissioner shall have the general administration of this Act." Sections 208 and 209 provide: "208 (1) Income tax when it becomes due and payable shall be a debt due to the Commonwealth, and payable to the Commissioner in the manner and at the place prescribed. 208 (2)In sub-section (1), "income tax" includes interest under section 170AA or 207A and additional tax under section 207 or Part II. ... 209 (1)Any tax unpaid may be sued for and recovered in any Court of competent jurisdiction by the Commissioner or a Deputy Commissioner suing in his official name. 209 (2)In sub-section (1), "tax" includes interest under section 170AA or 207A and additional tax under section 207 or Part II. Jenkinson J upheld the objection to competency. To the extent that ss.208 and 209 were relied upon, he concluded that the decision was not made in pursuance of or under the authority of either section. His Honour also rejected the submission that the decision was made under s.8 of the Income Tax Assessment Act, holding s.8 did not "make provision" for the decision in the sense intended by Mason CJ in Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321 at 337. His Honour would also have upheld the objection on the ground that the decision was not of a substantive nature.