Denlay v Commissioner of Taxation [2013] FCA 307

FEDERAL COURT OF AUSTRALIA

Denlay v Commissioner of Taxation [2013] FCA 307 Citation: Denlay v Commissioner of Taxation [2013] FCA 307

Parties: KEVIN VINCENT DENLAY v COMMISSIONER OF TAXATION HELENA MIRJA DENLAY v COMMISSIONER OF TAXATION

File number(s): QUD 114 of 2012 QUD 115 of 2012

Judges: LOGAN J

Date of judgment: 5 April 2013

Catchwords: JUDICIAL REVIEW – application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth) for judicial review of the decision of the respondent to issue a garnishee notice pursuant to s 260-5 of Schedule 1 of the Taxation Administration Act 1953 (Cth) – whether the decision to issue the notice was an improper exercise of power, per s 5(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) – whether the respondent failed to take relevant considerations into account in the exercise of the power to issue the 260-5 notice, per s 5(2)(b) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) – whether the decision to issue the notice in circumstances where there was a stay of the enforcement of a Queensland Supreme Court judgment in respect of the appellant's amended assessment based taxation liabilities and while the tax appeals were part-heard, was so unreasonable that no reasonable decision maker could have exercised the power, per s 5(2)(g) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) – an examination of the number of relevant considerations in relation to the discretionary power to issue a garnishee notice under s 260-5 of Schedule 1 of the Taxation Administration Act 1953 (Cth) in light of the broader statutory scheme within which it operates Held: Commissioner's decision quashed – improper exercise of power – the decision maker failed to take into account why the stay of enforcement of the judgment had originally been granted (ie the provenance of the stay order) – the decision maker failed to take into account the merits of the taxation appeals and the potential impact of issuing the notice on the taxation appeals – the decision to issue the notice was so unreasonable that no decision-maker, acting reasonably, could have arrived at such a decision