Judgment summary
Little Monster Productions Pty Ltd (LMP) sought review of a Producer Offset Final Certificate issued by Screen Australia under Division 376 of the Income Tax Assessment Act 1997, after Screen Australia certified qualifying Australian production expenditure (QAPE) of $1,079,383 against LMP's claimed QAPE of $7,764,713 [see paras 10-17].
The Tribunal determined two preliminary separate questions and answered the first against LMP on 9 January 2025 (the first Tribunal decision) [10]. LMP then withdrew its review application, which was deemed dismissed under s 95(2) of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) [17-18]. LMP later sought reinstatement, and the Tribunal, in a second decision dated 24 September 2025, held that the dismissal was a nullity affected by jurisdictional error and purported to affirm Screen Australia's decision (the second Tribunal decision) [19-21].
LMP appealed from the second Tribunal decision and, separately, sought an extension of time to appeal from the first Tribunal decision. Screen Australia cross-appealed against the second Tribunal decision.
Kennett J held that the first Tribunal decision was not 'the decision of the Tribunal in the proceeding' within the meaning of s 172 of the ART Act because it did not affirm, vary or set aside the reviewable decision under s 105, and so was not appealable [22, 41, 48]. The extension of time to appeal from it was accordingly refused [49-50].
The Court further held that the second Tribunal decision proceeded on an incorrect premise: the Tribunal's delay in making a s 105 decision after answering the separate questions did not amount to a nullity of the kind discussed in Bhardwaj, and LMP's withdrawal and deemed dismissal under s 95 were effective [56-64]. The second Tribunal decision was therefore made without jurisdiction and was set aside.
The Tribunal had not determined LMP's alternative application for an extension of time under s 19 of the ART Act to bring a further review application, and the Court rejected Screen Australia's submission that such an extension was precluded by s 19(4). The matter was remitted to the Tribunal for that application to be determined [65-70].
Background
LMP is a film producer whose sole director is Megan Williams; her husband Matthew Drummond manages LMP's day-to-day affairs and is sole director of a related company, Hive Studios International Pty Ltd (Hive).
LMP completed the film Don't Go Below on 20 March 2023, released in Australian cinemas on 27 April 2023. Hive provided post-production services under a Film Post-Production Services Agreement dated 5 January 2018, under which LMP was to pay Hive $6,672,720. The parties also entered a Production Investment Agreement of the same date, under which Hive was to invest $7,454,519 in the film.
On or about 12 April 2023, LMP applied to Screen Australia for a Producer Offset final certificate claiming QAPE of $7,764,713 and total expenditure of $7,785,829. On 22 February 2024, Screen Australia issued a certificate for $1,079,383.
LMP applied to the former Administrative Appeals Tribunal for review on 23 February 2024; the review continued in the newly constituted Administrative Review Tribunal from 14 October 2024. The parties agreed to have two issues (whether amounts were 'incurred', and whether excluded under s 376-135 ITAA97) determined as separate questions, with a third issue (arm's length pricing between LMP and Hive) to be addressed only if the first two were resolved in LMP's favour.
Core dispute
The proceedings raised two connected questions. First, in NSD2136/2025, whether the Tribunal's answers to the separate preliminary questions (the first Tribunal decision, given 9-10 January 2025) constituted 'the decision of the Tribunal in the proceeding' for the purposes of s 172 of the ART Act, such that an extension of time to appeal from it should be granted.
Second, in SAD233/2025, whether the Tribunal's later decision of 24 September 2025 (the second Tribunal decision), which treated the deemed dismissal following LMP's withdrawal as a nullity affected by jurisdictional error and purported to affirm Screen Australia's original decision, was itself made without jurisdiction. LMP also contended, in the alternative, that the Tribunal had not determined its application for an extension of time under s 19 of the ART Act to bring a fresh review application.
Court findings
Kennett J held that the first Tribunal decision, although styled as a decision with reasons, only answered preliminary separate questions and did not affirm, vary or set aside Screen Australia's decision as required by s 105 of the ART Act. It was therefore not 'the decision of the Tribunal in the proceeding' under s 172, and LMP's proposed appeal from it was incompetent; the extension of time was refused on this basis, and would in any event have been refused given the roughly ten-month delay [22-49].
On the second Tribunal decision, the Court found that the Tribunal had erred in treating its failure to make an immediate s 105 decision after answering the preliminary questions as amounting to jurisdictional error, and further erred in treating the resulting dismissal (following LMP's valid withdrawal under s 95) as a nullity under the Bhardwaj principle. A mere delay in making a decision, without more, is not equivalent to a purported decision lacking legal effect. LMP's withdrawal was effective under s 95(1)-(2), and the review had already been finally determined by the deemed dismissal. The Tribunal therefore had no jurisdiction to reconsider or affirm Screen Australia's decision in its second decision [56-64].
On the extension of time issue under s 19 of the ART Act, the Court rejected Screen Australia's submission that s 19(4)(a) precluded an extension merely because LMP had previously had, or exercised unsuccessfully, an opportunity to seek reinstatement under s 102. Reading s 19(4)(a) in the present tense, the Court held it applies only where the applicant currently has the ability to seek reinstatement, and does not preclude an extension where that opportunity has already passed. The Tribunal had not in fact determined LMP's alternative s 19 application [65-69].
Outcome
In NSD2136/2025, the application for an extension of time to appeal from the first Tribunal decision was refused, and LMP was ordered to pay Screen Australia's costs as agreed or assessed.
In SAD233/2025, Screen Australia's cross-appeal was allowed and the Tribunal's decision of 24 September 2025 was set aside. The proceeding was remitted to the Administrative Review Tribunal for determination of LMP's application for an extension of time under s 19 of the ART Act. LMP's appeal was otherwise dismissed. LMP was ordered to pay 75% of Screen Australia's costs as agreed or assessed.
Major issues / areas of contention
- Whether the Tribunal's answers to separate preliminary questions constituted 'the decision of the Tribunal in the proceeding' under s 172 of the Administrative Review Tribunal Act 2024 (Cth)
- Whether an extension of time should be granted to appeal from that first Tribunal decision
- Whether LMP's withdrawal of its review application and the resulting deemed dismissal under s 95 of the ART Act were effective
- Whether the Tribunal's second decision, treating the dismissal as a nullity under the Bhardwaj jurisdictional error principle, was itself made without jurisdiction
- Whether the Tribunal had determined LMP's alternative application for an extension of time under s 19 of the ART Act to bring a further review application
- Construction of s 19(4)(a) of the ART Act regarding when an extension of time is precluded by the availability of reinstatement under s 102