AB v Commissioner of Taxation [1998] FCA 1116

FEDERAL COURT OF AUSTRALIA CONSTITUTIONAL LAW - invalidity - characterisation of s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("AAT Act") - whether s 44(5), insofar as it provides for the Federal Court to remit a matter to the Administrative Appeals Tribunal, is invalid under ss 75, 76 and 77 of the Constitution - relevant "matter" under s 44 of the AAT Act. PRACTICE AND PROCEDURE - application to set aside or vary an order of the Court pursuant to O 35 r 7(1) of the Federal Court Rules - scope of the discretion to re-open a judgment which has not yet been entered - whether sufficient possibility of injustice if refusal to allow re-opening. PRACTICE AND PROCEDURE - application to set aside or vary an order of the Court pursuant to O 35 r 7(1) of the Federal Court Rules - order to remit to Administrative Appeals Tribunal for determination in accordance with the reasons of the Court - whether to vary order so as to direct decision of Tribunal - whether further findings of fact to be made by Tribunal. ADMINISTRATIVE LAW - administrative appeals - remitter to Administrative Appeals Tribunal - whether only one decision reasonably open to Tribunal. The Constitution - Ch III, s 75, s 76, s 77 Income Tax Assessment Act 1936 (Cth) - s 25(1), s 25A(1), s 26(e), Part IIIA Administrative Appeals Tribunal Act 1975 (Cth) - s 44, s 44(5) Federal Court Rules - O 35 r 7

Minister for Immigration and Ethnic Affairs v Gungor (1982) 42 ALR 209 - cited TNT Skypak International (Aust) Pty Limited v Federal Commissioner of Taxation (1988) 82 ALR 175 - considered O'Toole v Charles David Pty Limited (1989) 90 ALR 112 - considered Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 - considered and followed Wati v Minister for Immigration (1997) 148 ALR 578 - considered and followed Jolley v FCT (1989-90) 20 ATR 335 - followed Australian Trade Commission v Richard Shrapnel Consulting Services Pty Limited (1988-89) 85 ALR 287 - followed Statham & Anor v Federal Commissioner of Taxation (1989) ATC 4,070 - followed A.B. v COMMISSIONER OF TAXATION NG 999 of 1996 FOSTER J 9 September 1998 SYDNEY