Fastbet Investments Pty Ltd v Deputy Commissioner of Taxation (No 5)

• Jurisdiction: Australia Federal only
• Judge: DERRINGTON J
• Judgment Date: 09 December 2019
• Neutral Citation: [2019] FCA 2073
• Court: Federal Court
• Date: 09 December 2019

FEDERAL COURT OF AUSTRALIA

Fastbet Investments Pty Ltd v Deputy Commissioner of Taxation (No 5) [2019] FCA 2073

File numbers:	QUD 547 of 2017 WAD 73 of 2018
Judge:	DERRINGTON J
Date of judgment:	9 December 2019
Catchwords:	ADMINISTRATIVE LAW – jurisdictional fact review – formation of reasonable belief – alleged failure to take into account a relevant consideration – approach to discerning relevant considerations or relevant factors – discussion of application of Peko-Wallsend test – whether Peko-Wallsend test applicable to particular facts of particular cases ; TAXATION – security bond demands – relevant factors for determining whether “otherwise appropriate” to require security bond demand – whether consideration must be given to impact on recipient of requiring security – whether Commissioner can lawfully receive cash for discharge of mortgage security
Legislation:	Administrative Decisions (Judicial Review) Act 1977 (Cth) Income Tax Assessment Act 1922 (Cth) Income Tax Assessment Act 1936 (Cth) Judiciary Act 1903 (Cth), s 39B Taxation Administration Act 1953 (Cth), Sch 1, s 255-100
Cases cited:	Abebe v Commonwealth (1999) 197 CLR 510 Alexander v Australian Community Pharmacy Authority (2010) 233 FCR 575 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 Bare v Independent Broad-Based Anti-Corruption Commission (2015) 48 VR 129 Bernadt v Medical Board of Australia [2013] WASCA 259 Buck v Bavone (1976) 135 CLR 110 Bushell v Environment Secretary (Bushell) [1981] AC 75 CAQ17 v Minister for Immigration and Border Protection [2019] FCAFC 203 Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 Chang v Neill [2019] VSCA 151 CLK Kitchens & Joinery Pty Ltd v Commissioner of Taxation [2019] FCA 1086 D’Amore v Independent Commission Against Corruption [2012] NSWSC 473 EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681 Foster v Minister for Customs and Justice (2000) 200 CLR 442 George v Rockett (1990) 170 CLR 104 He v Minister for Immigration and Border Protection (2017) 255 FCR 41 Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1 Insurance Australia Ltd trading as NRMA Insurance v Motor Accidents Authority of New South Wales [2007] NSWCA 314 Keris Pty Ltd v Deputy Commissioner of Taxation (2017) 253 FCR 233 Lee v Commissioner of Taxation (1962) 107 CLR 329 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 Minister for Immigration and Border Protection v SZMTA (2019) 363 ALR 599 Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 Minister for Immigration and Ethnic Affairs v Taveli (1990) 23 FCR 162 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 O’Reilly v Commissioners of the State Bank of Victoria (1983) 153 CLR 1 Phosphate Resources Ltd v Minister for the Environment, Heritage and the Arts (No 2) (2008) 251 ALR 80 Pilbara Infrastructure Pty Ltd v Economic Regulation Authority [2014] WASC 346 Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 Prior v Mole (2017) 261 CLR 265 R v Connell; Ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441 Ruddock v Taylor (2005) 222 CLR 612 Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 Sean Investments Pty Ltd v Mackellar (1981) 38 ALR 363
Date of hearing:	10 June 2019, 11 June 2019, 10 July 2019
Registry:	Queensland
Division:	General Division
National Practice Area:	Taxation
Category:	Catchwords
Number of paragraphs:	221
Counsel for the Applicants:	Mr PE Hack QC with Mr JW Fickling
Solicitor for the Applicants:	Robson Legal
Counsel for the Respondent:	Dr R Schulte
Solicitor for the Respondent:	Australian Government Solicitor

ORDERS

		QUD 547 of 2017
BETWEEN:	FASTBET INVESTMENTS PTY LTD ACN 124 463 770 Applicant
AND:	DEPUTY COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA Respondent
		WAD 73 of 2018
BETWEEN:	HOLMES ROAD PTY LTD ACN 609 139 577 AS TRUSTEE FOR THE HOLMES ROAD TRUST Applicant
AND:	DEPUTY COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA Respondent

JUDGE:	DERRINGTON J
DATE OF ORDER:	9 DECEMBER 2019

THE COURT ORDERS THAT:

1. In proceeding QUD 547 of 2017:

   1. the application is dismissed;

   2. if the costs of the application are not agreed between the parties and the Court informed by 4.00 pm AEST on 18 December 2019, the proceeding be listed for directions as to costs at 9.30 am on 20 December 2019.

2. In proceeding WAD 73 of 2018:

   1. the application is dismissed;

   2. if the costs of the application are not agreed between the parties and the Court informed by 4.00 pm AEST on 18 December 2019, the proceeding be listed for directions as to costs at 9.30 am on 20 December 2019.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1. In separate proceedings the respective applicants, Fastbet Investments Pty Ltd (Fastbet) and Holmes Road Pty Ltd (Holmes Road), each seek relief under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (AD(JR) Act) or s 39B of the Judiciary Act 1903 (Cth) in respect of decisions by the Deputy Commissioner of Taxation of the Commonwealth (the Commissioner) to issue notices to them under s 255-100 of Schedule 1 of the Taxation Administration...