Home | Databases | WorldLII | Search | Feedback High Court of Fiji

State v Minister of Finance, National Planning and Sugar Industry, ex parte Singh [2011] FJHC 820; HBJ4.2007 (9 December 2011)

IN THE HIGH COURT OF FIJI ISLANDS
AT LABASA
CIVIL JURISDICTION

Judicial Review No: HBJ 4 of 2007

STATE

-v-

MINISTER OF FINANCE, NATIONAL PLANNING AND SUGAR INDUSTRY

TAX AGENTS REGISTRATION BOARD

ATTORNEY GENERAL OF FIJI

Ex-parte: DHARMENDRA SINGH

Counsel: Mr. A. Sen for the Applicant.
Mr. Mainavolau for the Respondents.
Date of Judgment: 9th December 2011

JUDGMENT

[1]. The applicant in this matter filed summons for an order that the applicant be registered as a tax agent by the Tax Agents Registration Board until the final order of the court. The application was made under Order 45 rule 5 of the High Court Rules.

Background Facts

[2]. The applicant filed a Notice of Motion dated 15.08.2007, seeking leave to apply for judicial review. On 21.08.2007, court granted the applicant leave to apply judicial review.

[3]. On 09.10.2007, a Notice of Originating Motion was filed by the applicant seeking following relief inter alia:

1. An order of certiorari to remove the decision of the Minister of Finance dated 13.04.2007 and 17.05.2007.
   
2. For an order of certiorari to quash the decision of the Tax Agents Registration board dated 13.03.2006.
   
3. For an order of certiorari to quash the decision of the Minister of finance dated 13.04.2007 and 17.05.2007.

A declaration that the Minister of Finance and the Tax Registration Board breached the rights of the applicant.

5. A declaration that the decision of the Minister of Finance dated 13.04.2007 and 17.05.2007 is unlawful, invalid, and null and void.
   

[4]. On 30.11.2007, court made following orders:

1. An order of certiorari to remove the decision of the Minister of Finance, National Planning and Sugar Industry dated 13.04.2007 and 17.05.2007 upholding and/or affirming the decision of the Tax Agents Registration Board's decision and disallowing the appeal of the Applicant against the decision of the Tax Agents Registration board whereby the applicant's application to be registered as a Tax Agent was refused.
   
2. An order of certiorari to quash the decision of the Minister of Finance, National Planning and sugar Industry dated 13.04.2007 and 17.05.2007 upholding and/or affirming the decision of the Tax Agents Registration Board's decision and disallowing the appeal of the applicant against the decision of the Tax Agents Registration Board.
   
3. Costs.
   

[5]. Further, court ordered that the applicant be allowed to practise for 6 months pending an examination.

[6]. However, the respondents did not renew the applicant's registration even after the expiration of 3 months. Therefore, the applicant has applied to this court to get the order delivered in the judicial review case No 4 of 2007 enforced.
[7]. In support of the summons, the applicant filed an affidavit. According to the affidavit, an application for judicial review filed by the applicant, was granted by Coventry J on 30.11.2007. The effect of the order of Justice Coventry was to allow the respondents six months to organize an exam for the applicant so that he could continue as a Tax Agent.

[8]. In that order, the respondents were further ordered to allow the applicant to sit an exam organised by the Fiji Institute of Accountants, in order to register the applicant as a tax agent permanently. The applicant alleges that the respondents have deliberately, with intention to flout the order given by Justice Coventry, refused to undertake any such exams and denied the applicant an opportunity to be continued as a tax agent.

[9]. In reply to the applicant's affidavit, an affidavit was filed by the acting Auditor General of Fiji, Tevita Bolanavanua. In the affidavit, it is deposed that the Tax Registration Board intends to run a special examination and it was in the process of deliberating what taxation topics would be covered in the exam and once the date, venue, and time of the said examination are confirmed the board would inform the applicant immediately.

[10]. Subsequent to the above affidavit, another supplementary affidavit was filed on behalf of the respondents by the Secretary of Tax Registration Board, who is also a senior auditor with the FIRCA.

[11]. According to that affidavit, the Tax Registration Board had scrapped the examination requirement in 1998, and the new minimum qualification requirements (MQR) were implemented by the Minister of Finance in 2004.

[12]. It is further stated that under the MQR of the Tax Registration Board, an applicant must hold a B.A. Degree majoring in Accountancy and Financing with successful completion of Taxation Law Course, and he must also be a member of the Fiji Institute of Accountants (FIA).

[13]. Furthermore, it is deposed that since the applicant does not hold a BA in Accountancy and Financing and also is not a member of the FIA, he could not be eligible for registration even if he passed the special examination.

[14]. The Tax Agents Registration Board is an independent body constituted by the Tax Administration Decree, 2009. Its functions are provided in the Act and in supplementary regulations created by the Ministry of Finance.

[15]. According to the respondents the new requirements for registration of tax agents were implemented by the Minister of Finance in 2004. If it is so, the respondents should have raised that issue when the matter was argued before Justice Coventry in 2007. The respondents cannot argue it now. It is an abuse of process to raise issues on piecemeal basis and hope to get success in a different proceeding should one fail in the first proceedings.

[16]. In the supplementary affidavit, a copy of the said MQR is attached. The respondent's argument was that pursuant to the MQR implemented in 2004, the applicant must hold a BA degree in Accountancy and Finance and also must be a member of the FIA.

[17]. However, a careful analysis of the MQR shows that those qualifications are required for the new applicants who wish to apply for registration as tax agents.

[18]. It does not apply for renewal of registrations. In any event it further states that the tax agents who had been deregistered in past and wish to be re-instituted should reapply for registrations provided they meet the new criteria, and applications from those who do not meet new criteria will not be accepted.

[19]. It could be observed however, that section 54 (f)(6) of the Income Tax Act cap 201 does not prescribe any academic requirement for registration as a tax agent.

[20]. Section 54 (f) (6) of the Income Tax Act reads:

If an applicant for registration does not possess an academic qualification acceptable to the Board, the Board may request the Fiji Institute of Accountants to conduct on its behalf an examination to determine whether the applicant's knowledge of accounting and of income tax law and practice is sufficient to entitle him to registration.

[21]. Therefore, in my view, the implementation of new regulations by the minister which made academic qualifications compulsory for the registration of tax agents is also in contravention of the section 54 (f) (6) of the Act.

[22]. The other important thing is that when this judicial review matter was argued before Justice Coventry in 2007, the said regulations which prescribed the MQR had been already implemented by the Minister.

[23]. It must be stated that this court is not exercising appellate powers over the earlier judgement. What the applicant has sought is to get the judgment enforced under Order 45 rule 5 of the High Court Rules.

[24]. Order 45 rule 5(1) reads:

Notwithstanding that a judgment or order requiring a person to do an act specifies a time within which the act is to be done, the court shall, without prejudice to Order 3, rule 4 have power to make an order requiring the act to be done within another time, being such time after service of that order, or such other time, as may be specified therein.

[25]. When the applicant filed an application of this nature the respondents are not entitled to re-argue the same issues which have already been determined by Justice Coventry. Further, the order of certiorari quashing the decision of the Minister has effectively concluded the registration issue of the applicant to a certainty. Hence, the Tax Registration Board cannot refuse the renewal of registration of the applicant.

[26]. The respondent submitted that the MQR has been in force since 2004, way before the applicant applied for registration and failure of the applicant to meet these two important academic requirements disqualifies the applicant automatically.

[27]. It was further submitted that even if the applicant sits an examination which the court has requested and even if he succeeds, the applicant would still be deemed as unqualified on the above mentioned basis.

[28]. It must be noted that the respondents filed their first affidavit in opposition on 16.07.2010, in which they stated that the Tax Registration Board intends to run a special examination for the applicant and also stated the proposed arrangements regarding the date, venue and time of the examination.

[29]. However, in their supplementary affidavit the respondents have taken a totally different position as opposed to their first affidavit. In the supplementary affidavit, filed by the secretary of the Tax Registration Board, it is stated that the Tax Registration Board had scrapped the examination requirement in 1998. It is further stated that even if the applicant sits and pass the special examination he would not be legible for registration, which is a clear indication that the respondent do not intend to hold a special exam though ordered by the court.

[30]. As admitted by the respondents, the examination requirement had been scrapped in 1998. Despite that, Justice Coventry very clearly made his order requiring the respondents to hold a special examination for the plaintiff. The rationale behind the said judgment was to allow the applicant to continue to practice as a tax agent for a period of six months pending the special examination.

[31]. The respondents in their submissions laid great stress on the fact that the applicant does not possess the required qualifications, which in my view is an attempt to deviate from the main issue. What the respondents must do is to hold a special exam for the applicant as ordered by court without finding ways and means to escape from their obligation. This court cannot allow a party to circumvent a court order which is still valid.

[32]. It is pertinent to reproduce the significant parts of Justice Coventry's judgement. In his judgment Justice Coventry stated as follows:

'These are judicial review proceedings. I am examining procedure and not merit. The simple facts are that Dharmendra Singh was refused registration by the Board not on the 'fit and proper person ground' but on the academic qualification ground'. The Minister made a decision, granted six months practice and required an examination thereafter. The Minister then solicited views from the Board, the original hearing body, and then took into account highly insignificant matters, without the applicant having a chance to consider or respond to them. The Minister then reversed his own written decision, refused the appeal and upheld the Board's decision. None of these later actions can be upheld in law.'

'The effect of this is that the Minister's letter of the 21st February 2007, in particular paragraphs 4 and 5, stand. Paragraph 6 is to be ignored. The appeal is allowed for six months practice. I order that the six months runs from 1st December 2007.'

'If the applicant is successful in the examinations then it is a matter for the board, in accordance with its statutory powers, to decide what if any course to take concerning its allegation that Mr. Sing is not a fit and proper person.'

[33]. As I stated at the very outset, this is not an appeal against the order of Justice Coventry and hence, the respondents cannot argue new issues. Had the respondents been dissatisfied with the judgment of Justice Coventry they could have appealed the said decision. Since the respondents did not appeal the original decision, it is their obligation to obey the order. Further, when there is a clear provision in the Act which provides for registration of persons who do not possess academic qualifications, the respondent cannot rely on regulations made by the Minister. Having regard to the above, I conclude that the arguments advanced by the respondents are far from satisfactory and hence cannot be accepted.

[34]. Further, the contents of the respondents' supplementary affidavit plainly indicated their intention of not registering the applicant as a tax agent, which could be described not only as a blatant disregard of the High Court order but also an act of contempt. I do not have the slightest doubt that the respondents know about this court's order and have chosen to disregard it. Hence, the respondents should not be allowed to undermine the court order.

[35]. Upon considerations of the above, and in the exercise of powers under Order 45 rule 5 of the High Court Rules, I order the 2nd respondent, the Tax Registration Board to comply with the High Court order dated 30.11.2007 within 6 months from the service of this order on the respondents.

[36]. Cost shall be taxed on indemnity basis.

Pradeep Hettiarachchi
JUDGE