Background
Little Monster Productions (LMP) sought a Producer Offset Certificate from Screen Australia under Division 376 of the Income Tax Assessment Act 1977 for its film “Don’t Go Below,” claiming qualifying Australian production expenditure of $7,764,713. Screen Australia issued a certificate for $1,079,383. LMP applied to the Administrative Review Tribunal (now the Administrative Review Tribunal under the 2024 Act) on 23 February 2024 to review this decision.
The parties framed three central issues: (1) whether certain expenditure amounts had been “incurred” by LMP; (2) whether any incurred amounts were excluded by section 376-135 of the taxation legislation; and (3) whether amounts exceeded arm’s-length pricing. The parties agreed the Tribunal should first determine Issues 1 and 2 as separate preliminary questions.
On 10 January 2025, the Tribunal issued its decision answering the preliminary questions: it found the disputed amounts had not been “incurred” and therefore did not need to address whether they were excluded from QAPE. LMP’s solicitors then withdrew the review application on 31 January 2025, which was deemed a dismissal under section 95(2) of the Administrative Review Tribunal Act 2024 (Cth).
The Court’s Holding
Justice Kennett held that the first Tribunal decision (answering the preliminary questions) was not an appealable “decision of the Tribunal in the proceeding” under section 172 of the Administrative Review Tribunal Act 2024. The Court emphasized that section 172 uses the phrase “the decision” (singular, definite article)—a deliberate change from the old Administrative Appeals Tribunal Act 1975, which permitted appeals from “any decision.” This change, confirmed by the Explanatory Memorandum, clarifies that only the final decision in a proceeding is appealable. The preliminary answers did not purport to affirm, vary, or set aside the primary decision under section 105; they were intended to shape further conduct and did not have independent legal force. The Court found that LMP’s proposed appeal from the first decision was incompetent, rendering the application for extension of time futile.
The Court also held that LMP’s withdrawal of its review application resulted in a final dismissal under section 95(2), which could only be reopened within 28 days under section 102(7) of the 2024 Act. The Tribunal’s second decision, which treated the dismissal as a “nullity” nearly seven months later, was made without jurisdiction. The Court allowed Screen Australia’s cross-appeal and set aside the second Tribunal decision, remitting the matter to the Tribunal to determine LMP’s alternative application for an extension of time to file a fresh review application under section 19 of the 2024 Act.
Key Takeaways
- Under the Administrative Review Tribunal Act 2024, only the final decision in a proceeding—affirming, varying, or setting aside the primary decision—is appealable; preliminary answers to separate questions are not appealable decisions, even when formally presented in decision template.
- A withdrawal of a review application by a party results in a deemed dismissal that creates a final, binding determination; such a dismissal cannot be reopened or treated as a nullity outside the statutory 28-day reinstatement window under section 102(7).
- The deliberate change from “any decision” (old AAT Act section 44(1)) to “the decision” (new ART Act section 172(1)) reflects an intentional legislative narrowing of appeal rights, requiring that only determinative decisions with legal consequences be appealable.
Why It Matters
This decision clarifies critical procedural distinctions in the newly enacted Administrative Review Tribunal system. Practitioners must understand that the use of “the decision” in section 172—rather than the broader “any decision” language in the predecessor AAT Act—significantly restricts appeal rights. Tribunals may pursue separate preliminary questions as a case management tool, but their answers on such questions do not constitute appealable decisions. This prevents satellite appeals and encourages parties to reserve appeal rights until the final determination of the proceeding. The decision also reinforces the finality of dismissals resulting from withdrawal: a party cannot later avoid an adverse determination by tactical reinstatement applications filed outside statutory timeframes. For practitioners, the practical lesson is that withdrawal should never be treated as merely procedural or reversible; once withdrawn, a review application is gone unless reinstatement occurs within the strict 28-day window.