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State v Attorney-General, Ex parte Ali [1998] FJHC 192; Hbj0004.1998s (9 July 1998)

IN THE HIGH COURT OF FIJI
(AT SUVA)

JUDICIAL REVIEW NO. HBJ 4 OF 1998S

BETWEEN:

THE STATE

V.

THE ATTORNEY-GENERAL
First Respondent

and

TAX AGENTS REGISTRATION BOARD
Second Respondent

ex parte SULTAN ALI
Applicant

Counsel: P. Coward for the Applicant
Ms N. Basawaiya for the Respondents

JUDGMENT

The applicant moves for Judicial Review pursuant to leave granted on 30 April 1998.

Although the papers filed in support of the application for leave are not as tidy as one would wish it is clear that the Applicant impugns two decisions. These are:

(i) The 15th December 1994 decision of the Tax Agents Registration Board (the Board) to cancel his registration as a Tax Agent; and

(ii) the 6th February 1998 decision by the Minister of Finance (the Minister) rejecting his appeal against the first decision.

The Applicant is seeking declarations that the decision of the Board was unreasonable, unjustified and null and void. He seeks to have both decisions quashed.

The grounds upon which the Applicant is seeking relief (which in view of the restrictions imposed by O53 r6(1) are of special importance) are set out on page 3 of the Form 32 Statement. They amount to allegations against the Board of bias, prejudice, bad faith and breach of the rules of natural justice. From page 2 it appears that the allegation against the Minister is also one of breach of the rules of natural justice.

The essential facts necessary for resolution of the issues before me are not, as I find, disputed.

The Applicant was registered as a tax agent in June 1980. The relevant provisions are the Income Tax Act (Cap. 201) Part VIIA (sections 54A to 54K) (the Act) and the Tax Agents (Registration) Regulations (Cap. 201 Subs S-91) (the Regulations).

On 12 October 1994 the Board wrote to the Applicant (Exhibit A to the supporting affidavit filed on 6 March). It advised him that the Commissioner of Inland Revenue (the Commissioner) had reported 2 alleged breaches by the Applicant of the requirements of Part VIIA of the Act. The first, involving section 54G(1)(a) is no longer relevant since it was not proceeded with. The second, involving section 54G(1)(d) was that:

"Your personal income tax returns and tax liability remain outstanding despite prosecution and repeated reminders."

Section 54G(1)(d) provides that where a tax agent has failed to maintain his personal tax affairs in a satisfactory state then the Board may cancel his registration. The Board advised the Applicant that he was:

"Required ... to provide reasons or show cause, within one month from the date of this letter as to why your registration as a tax agent should not be cancelled."

It is not disputed that when the Applicant was written to he was overseas and did not in fact return to Fiji until October 1995. The Applicant did not reply to the Board's letter within the one month stipulated or at all.

On 15 December 1994 the Board again wrote to the Applicant (Exhibit B to his affidavit filed on 6 March 1998). The Board did not refer to its letter of 12 October; it merely advised the Applicant that it had decided to cancel his registration but that the cancellation would not take effect for 60 days or until the disposal by the Minister of any appeal lodged by the Applicant against the cancellation (see Section 54G(2)).

The Applicant did not reply to the Board's December letter but on 13 February 1995 Tevita Fa and Associates, Barristers and Solicitors then acting for the Applicant wrote both to the Board and to the Minister (Exhibits C & D to the Applicant's affidavit filed on 13 March 1998). Mr Fa advised that he had received a copy of the Board's December letter. He asked the Minister to treat "our representation to you ... as an appeal by Mr Ali to you". The letter then went on:

"Our complaint against Mr Ali's treatment by the Board is that he was found guilty in his absence and he did not have an opportunity to be heard. In our humble opinion the decision is a nullity on the ground of breach of natural justice. We would therefore be grateful if you intervene in this matter and allow Mr Ali to return to the country before he is dealt with according to law."

It does not appear that this letter to the Minister ever received a reply. Although the Applicant returned to Fiji in October 1995 he did not seek a reply from the Minister and neither did he make any further submissions to the Minister in support of his appeal.

The next communication received from the Board (Exhibit F to the supporting affidavit filed on 6 March) was dated 6 February 1998 i.e. 2 ½ years after the Applicant's return to Fiji. It advised the Applicant that the Minister had rejected his appeal and that accordingly his registration as a tax agent had been cancelled. These legal proceedings were commenced shortly thereafter.

After leave was granted to move for Judicial Review I gave various directions and granted both the Applicant and the Board leave to file further affidavits. Although rather too many extraneous and irrelevant matters were raised in these affidavits a number of further relevant undisputed facts emerged.

Under section 44(1) of the Act each person liable to taxation must, without notice or demand, by 31 March of each year provide the Commissioner of Inland Revenue with a return of his income for the preceding year. According to Lily Bingwor, the Secretary to the Board (paragraphs 3, 4 and 8 of her affidavit filed 27 May 1998) by April 1994 the Applicant had still not submitted returns as required by the Act for the years 1988, 1989, 1990, 1991, 1992 and 1993. On 20 April 1994 the Commissioner demanded the returns under the provisions of sections 50(1) of the Act. The returns were not furnished by the Applicant until 7 December 1995. While accepting this to be true the Applicant replied (paragraphs 2 and 3 of his affidavit filed on 10 June 1998) that owing to the absence of his partner it was "difficult to finalise the returns" which were in the process of being finalised when he departed overseas in May 1994 (i.e. after the 20 April demand had been sent to him) and that he remained overseas "due to circumstances beyond (my) control" for the next 17 months.

As has been seen the Applicant's central complaint against the Board is that it failed to give him an opportunity to be heard in answer to the charge against him. The other allegations of bias, prejudice and bad faith were not the subject of further address by counsel. In paragraph 8 of his supporting affidavit the applicant states that during October and December 1994 he was "in Europe and could not attend to same". In paragraph 3.0 of his written submission and in a slightly different form Mr Howard repeats that complaint when he states "the Applicant was out of Fiji at the time and was not informed of the alleged charges and was not able to respond". In December, when the Board' second letter came the Applicant "was still out of the country and was not able to give full and proper instructions to his then solicitor". In paragraph 6.0 of his submission Mr Howard states that the Applicant "was never served with any correspondence or notice that his registration as a tax agent would be cancelled and therefore could not give full and proper instructions to his solicitor to rebut the charges against him in view of incomplete information of particulars of charges laid".

I am afraid that the Applicant's submissions do not impress me. As has already been noted the section 50(1) demand notice was sent to the Applicant on 20 April 1994. It was sent registered AR. The Applicant did not leave Fiji until 16 May and does not deny receiving it. A copy is to be found at Exhibit A to Lily Bingwor's affidavit of 27 May 1998. Its meaning and effect are absolutely crystal clear, especially to a tax agent. The Applicant did not comply with the demand by 20 May as was required. There is no suggestion that he even replied to the demand perhaps by asking for further time or by explaining his difficulties. It appears that he simply went overseas.

The following October, the demand still being unsatisfied, the Board sent its first letter to PO. Box 1366, the same address to which the demand had been sent and the same address as that given by the Applicant when he had applied originally for registration as a tax agent (see Exhibit A to Lily Bingwor's affidavit filed on 28 April 1998). The Applicant does not in his evidence deny receiving the letter and indeed, in view of the provisions of Regulation 6(2) and 9 of the Regulations taken together with the December letter and with Mr Fa's letter of February 1995 it is hard to see how Mr Howard's submission in paragraph 6.0 of his written submission can possibly be justified.

In all these circumstances the position can now be quite simply stated. The Applicant who, so far as the Board was concerned was practising from his registered address and which had not been told of any change of address or extended trip overseas was sent the October letter. He was invited to reply and make representations. He did not do so. The only explanations offered for not doing so are first, that he was overseas and second he did not understand the charge against him. In this age of letter post, telephone, facsimile and E-mail the first explanation is worthless. Given the obvious relationship between the April demand notice and the section 54G(1)(d) charge the second explanation is of equally little value. It may further be asked why, if the Applicant misunderstood the charges or wished to make representations he did not ask for clarification or for an interview or even explain the fact that he was away overseas. It is not as if the Applicant sought to make representations but was refused the opportunity.

As was observed Cooks J. in Stininato v. Auckland Boxing Association [1978] 1 NZLR 1 at 29/26:

"The requirements of fairness as natural justice vary with the facts."

There is no absolute requirement for a person charged by a tribunal such as the Board to be given a right to a personal hearing. The Applicant was given an opportunity to make whatever representations he wished (including asking for a hearing). He failed to avail himself of the opportunity or even to request postponement of the proceedings against him. There was in other words a singular "lack of diligence shown by the Applicant" (see R v. Aston University Senate ex parte Roffey [1969] 2 QB 538; [1969] 2 All ER 964. Furthermore, in view of the fact that the Applicant has admitted failing to provide his tax returns contrary to s44(1) and failure to comply with the s50(1) notice the plain fact is that he had no defence at all to offer to the s54G(1)(d) charge. While the "it would have made no difference" argument will not excuse a want of procedural fairness it is certainly relevant when deciding whether discretionary relief should be granted (see Wislang v. Medical Practitioners Disciplinary Committee & Ors [1973] 1 NZLR 29, 42/18).

In my opinion the procedure followed by the Board cannot be faulted and if there was default in the presentation of the Applicant's case before it then that default was entirely the Applicant's.

There remains the question of the handling of the appeal by the Minister.

As has been noted, the Form 32 statement did not advance any ground of complaint against the Minister's handling of the matter save a general allegation of a breach of the rules of natural justice. In paragraphs 8.0 and 9.0 however of his written submission Mr Howard, rather than addressing this point cited a recent decision of the Fiji Court of Appeal Kasiepo v. Minister of Immigration (ABU54/96 - FCA Reps 97/522). He suggested that there was nothing to show that the Minister had himself considered the appeal. In particular he complains that a copy of the Minister's decision bearing his signature was not provided to the Applicant. In my opinion the complaints against the Minister's handling of the matter suffer from three fatal defects. The first is that the Applicant had every opportunity over a very lengthy period after his return from overseas to make whatever representations he wished to the Minister but failed to do so. The second is that the Minister's alleged failure personally to exercise his powers was not part of the Order 53 statement and therefore cannot now be raised (O53 r6(1) previously referred to). The third is the presumption of regularity: omnia praesumuntur legitimi facta donec probetur in contrarium. The point not having been raised by the Applicant it is not now open to him to draw a negative inference from the absence of evidence on the matter. As pointed out by Ms Basawaiya what really stands out in this case is the Ministry of Finance's dilatoriness and inefficiency which so vexed both the Board and the Auditor-General (see Exhibits I & J to Lily Bingwor's affidavit of 28 April 1998), the principal beneficiary of which was the Applicant whose de-registration was postponed from February 1995 to February 1998.

I am satisfied that the Applicant's complaint both against the Board and against the Minister are quite unjustified and without merit. The motion for Judicial Review is dismissed.

M.D. Scott
JUDGE

9 July 1998

HBJ0004.98S