CITATION: Macedo v Chief Commissioner of State Revenue [2009] NSWADT 147 DIVISION: Revenue Division APPLICANT Deirdre Macedo PARTIES: RESPONDENT Chief Commissioner of State Revenue FILE NUMBER: 096042 HEARING DATES: 10 June 2009 DATE OF DECISION: 18 June 2009 BEFORE: Needham J SC - Deputy President CATCHWORDS: directions – leave to appear as agent revoked LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 CASES CITED: Cloud Top Pty Limited v Toma Services Pty Limited [2008] NSWSC 278 APPLICANT No appearance by applicant; REPRESENTATION: R Ross, brother of applicant in a related matter RESPONDENT A H Rider, barrister 1. By 19 June 2009, applicant to file Amended Application and Notice of Agency in favour of Mr Ross if she so wishes ORDERS: 2. Note that this Application is made in relation to an incomplete objection process; therefore the Tribunal has no jurisdiction as currently formulated 3. Note Mr Ross sought to appear as Ms Macedo's agent. Leave to appear refused on basis of non-compliance with direction to file Notice of Agency on last occasion 4. Timetable made on 13 May 2009 vacated5. Matter to be heard together with 096043. REASONS FOR DECISION 1 This matter came before me for directions in the 11.00 am list of the Revenue Division Directions List on 10 June 2009. Mr Rider appeared for the respondent. Mr Ross, who is the brother of the applicant, announced that he appeared as agent for the applicant, Ms Macedo. These proceedings will be referred to as "the Macedo matter". 2 The Macedo matter was before the Tribunal for directions for the first time on 13 May 2009. On that occasion Mr Ross appeared by telephone for the applicant. I was prepared to grant him leave to appear as Agent for Ms Macedo. The following directions were made:- (a) Direct that any Notice of Agency in favour of Mr Ross be filed within 7 days. (b) Direct that any Amended Application be filed within 7 days seeking to add Mr Ross as a party. (c) Respondent to file s 58 documents by 27 May 2009 Applicant to file and serve evidence and submissions by 10 June 2009. Respondent to file and serve evidence and submissions by 7 July 2009. (d) NOTED: On [the next directions date] matters to be discussed:- i. Reply by Applicant ii. Length of hearing time and whether this matter to be heard together with 096043. (e) Adjourned to 8 July 2009 at 11.00. 3 The reference to "Notice of Agency" is shorthand for Form 27 of the prescribed forms, being "Notice of Representation by a Legal Practitioner or Agent Acting for a Party" which can be found on the Tribunal website as well as being available from the Registry. That form requires the consent of the party to be given for the agent to represent him or her and for the signature of the party to appear on that form demonstrating that consent. 4 The Macedo matter was relisted for directions on 10 June 2009 at the request of the respondent given that no action was taken by the applicant in relation to directions (a) and (b) above. The related matter, no 096043, which is a matter in which Mr Ross is the applicant (Ross v. CCSR, "the Ross matter"), was also relisted on this date. 5 The facts giving rise to the Macedo and Ross matters are quite complex but in essence, as far as I can tell from the discussion before me and from the Application (which is the only document of any substance filed by either of the parties so far), the issues are as follows:- (a) Mr Ross and Ms Macedo allege that she, the registered proprietor of the property in question, holds the title on trust for Mr Ross, he being the equitable owner of the property. (b) Ms Macedo has been assessed as being liable for land tax for the years 2002-2007 as she does not reside in the property. (c) An assessment for the 2008 year has either been made, or is pending. (d) Mr Ross alleges that the property is his principal place of residence and, as equitable owner of the property, he is entitled to what is referred to as the "principal place of residence exemption" from land tax. (e) Prior proceedings were on foot for a review of a decision in a previous year relating to land tax, but those proceedings were withdrawn when an issue about the years to which that application applied arose at the hearing of that matter. It appears that the matter is no 086041 but I have not seen that file and am not sure of the issues which arose in that matter or led to its dismissal beyond the description given here. 6 Mr Rider commenced the directions hearing by formulating some issues which arose out of the totality of the dealings of Mr Ross and Ms Macedo with the Office of State Revenue. Those issues are, paraphrasing their formulation by Mr Rider (which was not agreed to by Mr Ross as set out below):- (a) Previous Macedo matter – the 2008 tax year was the subject of prior proceedings (which appear to be numbered 086041, but as noted above I have not seen that file). Those proceedings were withdrawn, in circumstances which Mr Ross says left him free to re-file but which Mr Rider says may attract issue estoppel or res judicata. (b) Macedo matter (current) – the application attaches a letter dated 21 September 2007 from the Office of State Revenue noting that the 2002-2007 tax years were objected to out of time, and no request for an extension of time was made. Accordingly, the objection was "not considered lodged within the prescribed time". Mr Rider noted that in order for the Tribunal to have jurisdiction, Mr Ross should lodge a fresh objection, seeking an extension of time in which to object to the assessments in these years, and that the Commissioner would then consider it. Currently, as there has been no determination of an objection, the Tribunal has no jurisdiction to consider the 2002-2007 land tax assessments. (c) Ross matter - the matter concerns, as noted above, the liability for duty on a transfer. The applicant has not provided, and the respondent has sought, the date of the transfer and a valuation as at the relevant date. (c) Future possible Duties Act matter - Mr Rider noted that no application had been made in relation to duty levied on the Declaration of Trust. Leave to Appear as an Agent 7 When the Macedo matter came before me the question of directions were dealt with together with the Ross matter, in which, of course, Mr Ross was a party. Mr Ross continued his appearance for his sister. It was noted that no Form 27 had been filed in the Registry appointing Mr Ross as Ms Macedo's agent, but Mr Ross indicated orally that he was authorised by Ms Macedo to appear in this matter. He said he had not been able to get in touch with Ms Macedo and so had not filed either the Amended Application nor the Notice of Agency. The Amended Application was necessary because as an alleged owner of the property Mr Ross was a proper party to the Macedo proceedings seeking a review of the land tax payable in relation to the property on the grounds of his occupation of it as his principal place of residence. As he had appeared by (implied) leave on 13 May 2009 and had agreed to be added as an applicant, it was appropriate for him to be granted leave to represent his sister but the requirement of a Form 27 Notice of Agency was required to demonstrate the consent of his sister for him to act on her behalf. 8 Appearance by an agent requires the leave of the Tribunal. Section 71 of the Administrative Decisions Tribunal Act 1998 provides as follows:- "71 Representation of parties (1) A party to proceedings before the Tribunal may: (a) appear without representation, or (b) be represented by an Australian legal practitioner, or (b1) with the leave of the Tribunal given under subsection (2), be represented by an agent who is not an Australian legal practitioner, or (c) if the party is an incapacitated person—be represented by such other person as may be appointed by the Tribunal under subsection (4). (2) A person who is not an Australian legal practitioner may, with the consent of a party to proceedings, apply to the Tribunal for leave to represent the party as the party's agent in the proceedings or in part of the proceedings." 9 Section 71(3A) provides that Rules (which include Practice Notes) may be made about representation. However, the only Practice Note under s 71 is restricted to sub-s 4, which relates to the appointment of representatives for incapacitated persons. 10 Generally leave for a person who is not qualified as a legal practitioner to represent a party in proceedings, with the consent of that party, is granted almost as of course. It is consistent with the Tribunal's charter to act without undue formality (see s 73 of the Administrative Decisions Act) that section 71 be implemented in this way. There are two requirements; an express one that the party being represented consent to that representation, and an implied one that the representative conduct him or herself properly as a representative. It became clear during the directions hearing of 10 June 2009 that there was no affirmative evidence of either of the first of those requirements having been fulfilled, and I began to have concerns about the second requirement. 11 While leave to represent Ms Macedo had been granted in accordance with usual practice on the first directions date, and a direction made for filing of a Notice of Agency, it became clear at the hearing on 10 June 2009 that that grant of leave needed to be revisited. 12 At the outset, as I have noted, I impliedly continued the leave for Mr Ross to appear on behalf of Ms Macedo. It seemed particularly appropriate as on the last occasion there was agreement to the order that Mr Ross be added to the Macedo matter as a party. After some discussion between Mr Rider, Mr Ross and myself about both the procedure to be followed in both the Macedo and Ross matters, and the jurisdictional basis of the Macedo matter, which discussion occasionally became heated, Mr Ross indicated that he no longer wished to appear as agent in the Macedo matter. He did so in circumstances which led me to believe that he was seeking to apply pressure on me to list the Ross matter for determination separately from the Macedo proceedings, contrary to my expressed view. 13 As a result, I became concerned that Ms Macedo's views on the application which had been filed in her name had not been heard. I sought to obtain Ms Macedo's views on the future conduct of the application. Mr Ross had informed me that the lawyer noted on the both the Ross and Madeco Applications no longer acted for the respective applicants. Accordingly, I telephoned the number given as Ms Macedo's contact number in the Application. There was no answer, and Mr Ross indicated that it was his own mobile number. No other numbers were given for Ms Macedo, and I so was unable to contact Ms Macedo to talk to her about the directions to be made in her matter. 14 During the directions hearing in this and in the Ross matter, Mr Ross made some statements indicating that while the Macedo matter bore the name of Ms Macedo, he was exercising control over the proceedings; for example, he said that he was prepared to withdraw the Macedo matter if I did not accede to his request to have the Macedo and Ross matters heard separately. It became apparent from his comments and from the contact details given for Ms Macedo that Ms Macedo may not, indeed, have had any personal involvement in the matter bearing her name. The signature on the Application, for example, appears to be that of Mr Ross. Whilst there is nothing improper on that if Mr Ross were indeed authorised to sign it on Ms Macedo's behalf, there was nothing on the file to demonstrate that she was even aware of the proceedings. 15 A situation of some similarity (but not on all fours with the present proceedings) occurred recently in Cloud Top Pty Limited v Toma Services Pty Limited [2008] NSWSC 278, in which counsel sought to appear instructed by solicitors who had ceased to act. Where there was no evidence that the counsel seeking to appear had in fact been retained by the solicitors, leave to appear was revoked. The Tribunal should be careful to ensure that any agent seeking to appear actually has the consent of the person represented, rather than merely purporting to have it. 16 Accordingly, I made a direction that Ms Macedo be notified in writing of any directions to be made in the Macedo matter. I formally revoked the leave previously granted by implication for Mr Ross to appear as agent for Ms Macedo. Given the fact that there was no evidence that Ms Macedo had an active role in these proceedings, and some indication that that she was not even aware of them, I am currently disinclined to allow Mr Ross to represent her further without Ms Macedo appearing to give her express consent. However, I will give Mr Ross an opportunity to be heard on further representation when the matter next comes before the Tribunal on 8 July 2009 at midday before me. Issues (a) and (b) in par 6 above 17 Mr Ross indicated his strong views that:- (a) the Member who dismissed the previous matter indicated that there was nothing to stop Mr Ross (or, presumably, Ms Macedo) from re-filing fresh proceedings. Mr Ross indicated that his view was that the need for dismissal and fresh proceedings arose from the conduct of the Chief Commissioner and that Ms Macedo as trustee for him should not be prejudiced in bringing a further application in relation to the 2008 land tax assessment; (b) Mr Paterson, the solicitor from the State Crown who appeared at the directions on 13 May 2009, had "consented" to the 2002-2007 matters being determined in these proceedings and so there was no need for a fresh objection and application for extension of time in which to object to the assessment. 18 Mr Rider indicated that his instructions encompassed no such consent and in any event, jurisdiction on a statutory Tribunal was not something that could be conferred by consent. I agreed with this submission and had no note or recollection of any such "consent" being given, even if it were relevant – see section 38 of the Administrative Decisions Tribunal Act 1997. 19 In relation to the question of estoppel or res judicata, I indicated that once the evidence was prepared, submissions on both sides could deal with this issue and the parties would be in a position either to argue it as a preliminary issue or to have it dealt with, by analogy by way of defence on behalf of the Chief Commissioner (bearing in mind the function of the Tribunal as a body of review) at the hearing of the matter. 20 Matters (c) and (d) are dealt with in the decision on directions in the Ross matter. Directions made 21 The directions and notations made in the Macedo matter were:- (a) By 19 June 2009, applicant to file Amended Application and Notice of Agency in favour of Mr Ross if she so wishes. (b) Note that this Application is made in relation to an incomplete objection process; therefore the Tribunal has no jurisdiction as currently formulated. (c) Note Mr Ross sought to appear as Ms Macedo's agent. Leave to appear refused on basis of non-compliance with direction [to file Notice of Agency] on last occasion. Attempts to contact Ms Macedo unsuccessful; Mr Ross' phone number given for her. (d) Note to Registry: please notify Ms Macedo in writing of adjourned date. (e) Adjourned date for Directions – 8 July 2009 at 12.00 noon. 22 I note that there may be difficulties fulfilling the request in (e), given that the address given is that of Mr Ross and the mobile telephone is his also. This can be, I trust, somewhat allayed by the Registry sending the notification to Mr Duncan Scott, solicitor, the solicitor listed on the application, and asking him either to appear for Ms Macedo (as he is still on the record as her representative) on 8 July 2009, or to bring the matter to her attention and to notify the Tribunal of his attempts to do so. 23 In addition to the orders made at the hearing, and for greater clarity, I vacate the timetables set on 13 May 2009, including the requirement on the Respondent to file the section 58 documents. 24 I have also given short written reasons for the directions in the Ross matter and these reasons should be read along with them. In that matter, I ordered that these proceedings be heard together with the Ross proceedings and for formality I make the same order in these proceedings. I HEREBY CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF THE ADMINISTRATIVE DECISIONS TRIBUNAL. 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