Toohey v Tax Agents’ Board of Victoria [2007] FCA 431

FEDERAL COURT OF AUSTRALIA

Toohey v Tax Agents' Board of Victoria [2007] FCA 431

ADMINISTRATIVE LAW – appeal from decision of Administrative Appeals Tribunal – where applicant's application for re-registration as a registered tax agent refused under s 251JC of the Income Tax Assessment Act 1936 (Cth) – where Tribunal failed to correctly apply test under s 251JC Administrative Appeals Tribunal Act 1975 (Cth), s 44(1) Crimes Act 1914 (Cth), ss 85ZV, 85ZW, 85ZZH Income Tax Assessment Act 1936 (Cth), ss 251BC(1), 251BC(3), 251JB(1), 251JC(1) A Solicitor v The Council of the Law Society of NSW (2004) 216 CLR 253 cited Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 applied Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited Re Beadle and Director General of Social Security (1984) 6 ALD 1 cited Sinclair v Maryborough Mining Warden (1975) 132 CLR 473 cited Tax Agents' Board v Bray (2004) 58 ATR 118 applied TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 cited PETER JAMES TOOHEY (FORMERLY IDENTIFIED AS "VBY") v TAX AGENTS' BOARD OF VICTORIA VID 254 OF 2006

MIDDLETON J

21 MARCH 2007

MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 254 OF 2006

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MR J HANDLEY

BETWEEN: PETER JAMES TOOHEY (FORMERLY IDENTIFIED AS "VBY")

Applicant

AND: TAX AGENTS' BOARD OF VICTORIA

Respondent

JUDGE: MIDDLETON J DATE OF ORDER: 21 MARCH 2007

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be allowed; 2. The decision of the Tribunal be set aside; 3. The matter be remitted to a differently constituted Tribunal to determine according to law the application of the applicant for re-registration as a Registered Tax Agent under the Income Tax Assessment Act 1936 (Cth); 4. The respondent pay the applicant's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.