Bursill v Chief Commissioner of State Revenue

Case •

[2001] NSWLEC 237

•

10/10/2001

No judgment structure available for this case.
Reported Decision: 116 LGERA 424

Land and Environment Court


of New South Wales


CITATION: Bursill v Chief Commissioner of State Revenue [2001] NSWLEC 237
PARTIES:

APPLICANT
William Bursill

RESPONDENT
Chief Commissioner of State Revenue
FILE NUMBER(S): 30020 of 2001
CORAM: Talbot J
KEY ISSUES: Jurisdiction :- appeal from decision of taxation authority following repeal and amendment of the legislation - effect of transitional provisions.
Construction and Interpretation :- consideration of effect of transitional provisions.
LEGISLATION CITED: Administrative Decisions Tribunal Legislation Amendment (Revenue) Act 2000
Land and Environment Court Act 1979 s 68(1), s 68(2), s 68(3)
Land and Environment Court Rules 1996
Land Tax Management Act 1956 s 35, s 38A
Taxation Administration Act 1996 s 86, s 96, s 97(b), s 99
Valuation of Land Act 1916 s 37, s 38
Valuation of Land Amendment Act 2000 s 33, Sch 2 Pt 3 cl 4, cl 5, cl 8, cl 9, cl 10, cl 13
CASES CITED: Coombwood Pty Ltd v Baulkham Hills Shire Council (1995) 86 LGERA 319
DATES OF HEARING: 02/10/2001
DATE OF JUDGMENT:
10/10/2001
LEGAL REPRESENTATIVES:


APPLICANT
Mr A.A. Robins (Barrister)
SOLICITORS
N/A

RESPONDENT
Mr D.J. Newhouse (Barrister)
SOLICITORS
State Crown Solicitor's Office


JUDGMENT:


    IN THE LAND AND Matter No. 30020 of 2001
    ENVIRONMENT COURT Coram: Talbot J
    OF NEW SOUTH WALES Decision Date: 10 October 2001

    William Bursill
    Applicant
    v
    Chief Commissioner of State Revenue

    Respondent

    REASONS FOR JUDGMENT


    1. The applicant has filed an application class 3 which purports to be a valuation appeal against the deemed disallowance of an objection made by letter dated 7 April 2000 against a 1998 land tax assessment.

    2. By further letter dated 18 December 2000, Mr Robins, counsel for Mr Bursill, wrote to the Chief Commissioner of State Revenue (“the Chief Commissioner”) noting that the 1998 objection had not been determined within 90 days and requested that the letter be treated as a notice under s 99 of the Taxation Administration Act 1996 (“the Taxation Administration Act”) of an intention to appeal.

    3. The application class 3 was filed on 6 April 2001.

    4. The Chief Commissioner filed a notice of appearance on 18 April 2001. The notice of appearance was signed by the Crown Solicitor.

    5. Following the first callover on 26 April 2001, there have been further appearances by both parties on 17 May 2001, 14 June 2001, 12 July 2001, 25 July 2001 and 31 August 2001.

    6. On 17 July 2001 the respondent filed a notice of motion seeking, inter alia, a declaration that the Court has no power to entertain a review of a determination concerning land value by the respondent and that the appeal be dismissed. It is claimed that the Valuer-General is the appropriate respondent.

    7. The notice of motion filed on behalf of the respondent also seeks a declaration that a letter dated 23 February 1998 is an objection under s 33 of the Valuation of Land Amendment Act 2000 (“the Valuation of Land Amendment Act”) (formerly s 86 of the Taxation Administration Act). It is the Court’s view that it is premature to deal with the second declaration at this stage.

    8. On 6 August 2001 the applicant filed a notice of motion of encyclopaedic dimension. Fortunately, only two issues are raised at this stage, namely whether in the circumstances of this appeal the combined effect of s 38A of the Land Tax Management Act 1956 (“the 1956 Act”), s 97(b) and s 99 of the Taxation Administration Act and the transitional provisions in Sch 1 of the Valuation of Land Amendment Act (Sch 2 Pt 3 cl 13) is that the respondent is the proper respondent to this appeal, or alternatively, if it is the case that by operation of the Valuation of Land Amendment Act the Valuer-General is the proper respondent to the appeal that leave be granted to amend the appeal substituting the Valuer-General for the Chief Commissioner, as respondent.

    The unamended legislation

    9. Prior to the repeal and re-enactment of Pt 4 of the Valuation of Land Act 1916 (“the 1916 Act”), by the Valuation of Land Amendment Act, s 38 provided that an objector who is dissatisfied with the decision of the Valuer-General on an objection made to the Valuer-General under Pt 3 may, within the time and in the manner provided by the Land and Environment Court Rules 1996 (‘the LEC Rules”), appeal to the Court against that decision.

    10. At all times relevant to these proceedings s 96 of the Taxation Administration Act provided that a taxpayer may appeal to the Supreme Court for determination of the taxpayer’s objection under Pt 10 Div 2 of that Act if:-

          (a) The taxpayer is dissatisfied with the Chief Commissioner’s determination of the taxpayer’s objection, or

          (b) In default of a determination of the objection within 90 days of the service of the objection on the Chief Commissioner.


    11. Pursuant to s 99 of the Taxation Administration Act, following a failure of the Chief Commissioner to determine an objection, an appeal could not be made unless the applicant had given written notice to the Chief Commissioner of the proposed making of the appeal, not less than 14 days before it is made.

    12. Prior to the commencement of the Valuation of Land Amendment Act, s 38A of the 1956 Act had the effect of substituting the Land and Environment Court for the Supreme Court in s 96 of the Taxation Administration Act to the extent to which an appeal concerns land value. Section 38A did not, in terms, have the effect of creating a right of appeal or review under the 1956 Act. Arguably the appeal process remained as one under the Taxation Administration Act.

    13. The Valuation of Land Amendment Act repealed the whole of Pt 5 of the 1956 Act within which s 38A appeared.

    14. Amendments to the 1956 Act and the Taxation Administration Act made by the Administrative Decisions Tribunal Legislation Amendment (Revenue) Act 2000 on 17 October 2000 that could have been relevant to the issues raised, were repealed or amended by the Valuation of Land Amendment Act before they commenced. Moreover, the Administrative Decisions Tribunal Legislation Amendment (Revenue) Act 2000 did not commence until 1 July 2001 so that its provisions have no bearing on the determination by the Court in these interlocutory proceedings.

    15. The parties are not in dispute that at the relevant time when the objection was made by the applicant and notice was given of the proposed application for review on 18 December 2000 a land owner who received a tax assessment under the Taxation Administration Act, based on the Valuer-General’s determination of land value, had two avenues of appeal. In this case, the applicant has elected to proceed in this Court to seek a review of the decision by the Chief Commissioner under the provisions of the Taxation Administration Act in accordance with s 38A of the 1956 Act.

    The Amendments

    16. I have already mentioned that Pt 5 of the 1956 Act (including s 38A) was repealed by the Valuation of Land Amendment Act which commenced on 31 December 2000.

    17. The repeal of Pt 5 took away the right of appeal from a determination made by the Chief Commissioner to the extent that it concerned land value.

    The Transitional Provisions

    18. Part 3 in the second schedule to the amended 1916 Act contains provisions consequent on enactment of the Valuation of Land Amendment Act.

    19. Firstly, cl 4 provides that any valuation, allowance or apportionment factor made or determined under the unamended 1916 Act or the unamended 1956 Act is taken to have been made or determined under the amended 1916 Act. No doubt it is for the purpose of aligning the two previous regimes for ascertaining land value into the one order or system. This intention is reiterated by cl 5 which provides that the valuation roll prepared under the unamended 1916 Act or the Register of Land Values prepared under the unamended 1956 Act is taken to form part of the Register of Land Values under the amended 1916 Act.

    20. The argument between the parties is whether the Chief Commissioner or the Valuer-General is the appropriate respondent in this appeal, particularly having regard to the following clauses in Pt 3 Sch 2 of the amended 1916 Act as follows:-
          8. Applications, notices and objections
                Any application, notice or objection made, given or lodged under the unamended 1916 Act or the unamended 1956 Act in relation to a valuation, allowance or apportionment factor is taken to have been made, given or lodged under the amended 1916 Act.

          9. Application of new objections and appeals provisions to existing matters
                The provisions of the amended 1916 Act with respect to objections and appeals apply to any valuation, allowance or apportionment factor under the unamended 1916 Act or the unamended 1956 Act in the same way as they apply to any valuation, allowance or apportionment factor under the amended 1916 Act.
          10. Continuation of pending appeal proceedings
                The provisions of the unamended 1916 Act and the unamended 1956 Act continue to apply to appeals under those Acts in relation to any valuation, allowance or apportionment factor as if the 2000 amending Act had not been enacted.
          13. General Saving
                Subject to this Schedule and the regulations:

              (a) anything begun before the appointed day under a provision of the unamended 1916 Act or the unamended 1956 Act for which there is a corresponding provision in the amended 1916 Act may be continued and completed under the unamended 1916 Act or the unamended 1956 Act as if the 2000 amending Act had not been enacted, and

              (b) subject to paragraph (a), anything done under a provision of the unamended 1916 Act or the unamended 1956 Act for which there is a corresponding provision in the amended 1916 Act (including anything arising under paragraph (a)) is taken to have been done under the corresponding provision of the amended 1916 Act.

    The Arguments

    21. The respondent relies on a construction of cl 8 to the effect that the objection made on 7 April 2000, although lodged under the Taxation Administration Act in accordance with s 35 of the unamended 1956 Act, is taken to have been lodged under the amended 1916 Act.

    22. Furthermore, the respondent says that cl 10 applies only where an appeal is on foot as at 31 December 2000. Moreover, cl 9 preserves the right to object and appeal in respect of any valuation under the unamended 1956 Act but the objection or appeal is to be made in accordance with the provisions of the amended 1916 Act.

    23. Notwithstanding the applicant’s argument that the notice given to the respondent on 18 December 2000 was relevantly the beginning of the appeal process, the respondent nevertheless says that nothing which remained to be continued and completed after that date, within the meaning of cl 13, had begun before 31 December 2000.

    24. In summary, therefore, the respondent recognises that the objection against the valuation made pursuant to the 1956 Act is saved pursuant to cl 8 as if it was an objection lodged under the amended 1916 Act, whereas pursuant to cl 9 any appeal can only proceed in accordance with the provisions of the amended 1916 Act under which the Chief Commissioner has no role for the purposes of ascertaining land value.

    25. The construction adopted by the respondent could create an anomaly. If it is correct, an appeal against a determination of land value by the Chief Commissioner would be defended by the Valuer-General, who is not necessarily the authority that determined the subject land value (notwithstanding that in practice it may have been the Valuer-General’s valuation that was used for the assessment of land tax).

    26. Clause 8 has the general function of continuing the effect of any application made, notice given or objection lodged pursuant to the unamended 1916 or 1956 Act prior to 31 December 2000. The result is that any such application, notice or objection made, given or lodged by 31 December 2000 is adopted as an application, notice or objection for the purposes of the amended 1916 Act after 31 December 2000.

    27. Clause 9 assumes that a valuation, allowance or apportionment had been made under an unamended Act as at 31 December 2000. By virtue of that clause the provisions of the amended 1916 Act apply to objections and appeals after that date, notwithstanding that they are in respect of an existing valuation, allowance or apportionment. In this case an objection was made before 31 December 2000. Subject to the effect of cl 13, discussed later, no appeal had been made.

    28. The transitional provisions appear to have been drafted on the assumption that Pt 5 of the unamended 1956 Act had the effect that valuations, objections and appeals made under the Taxation Administration Act in respect of land value were made under the unamended 1956 Act. The view already expressed by the Court in par 12 casts serious doubt about the credibility of the basis for that assumption. In order to give a practical meaning to the transitional provisions in respect of objections and appeals, referred to in the repealed Pt 5, the Court is prepared to accept this otherwise doubtful proposition for present purposes.

    29. Without further consideration the combined operation of cl 8 and cl 9 means that an appeal in respect of the determination of the objection lodged on 7 April 2000 is to be dealt with in accordance with the provisions of the amended 1916 Act. There is no issue at this stage in the proceedings that a right of appeal still exists and that the subject land value may be reviewed by this Court. However, nothing is stated in the transitional provisions about the identity of the respondent.

    30. Where an appeal is already on foot at the relevant date cl 10, in terms, continues to apply the provisions of the respective unamended Acts after 31 December 2000.

    31. The provisions with respect to objections and appeals are procedural. Notwithstanding cl 8 and cl 9, an appeal in relation to the determination of a relevant objection is an appeal in respect of a determination of land value adopted by the relevant authority, in this case the present respondent.

    32. Clause 13 serves to preserve any procedure commenced prior to but not complete by 31 December 2000 where there is a corresponding procedure in the amended 1916 Act. The Court does not agree that the giving of the notice under s 99 of the Taxation Administration Act necessarily gave rise to the beginning of the appeal process within the meaning of the unamended 1956 Act for the purposes of cl 13. Arguably it could. Nevertheless, cl 13, at the least, confirms that the legislature intended there to be some preservation of existing procedures notwithstanding the amendments. The provisions of cl 13, therefore, assist the Court to understand the purpose of the transitional provisions.
    33. Although not elegantly formulated, the scheme intended by the transitional provisions appears to be that the procedural requirements of the amended 1916 Act are to be applied after 31 December 2000, irrespective of whether the determination of land value was made for the purposes of the unamended 1916 Act or the unamended 1956 Act as applied to the Taxation Administration Act. Where the appeal is already on foot on 31 December 2000 the former provisions continue to apply.

    34. The procedural changes or deeming provisions in respect of valuations and objections made prior to 31 December 2000 do not alter the essential nature of the proceedings as an appeal against a determination made by the relevant authority, namely the Chief Commissioner. The Chief Commissioner determined, or is deemed to have determined, the objection. Accordingly, it is his decision from which the right of appeal arises.

    35. It is appropriate in the circumstances of this case that the present respondent continues to be the party accountable to the applicant in this Court for its actions.

    Whether the respondent is entitled to relief

    36. Although the Court has decided that the Chief Commissioner is the appropriate respondent, the applicant raised the question of the effect of s 68(3) of the Land and Environment Court Act 1979 (“the Court Act”).

    37. Section 68 deals generally with amendments and irregularities as follows:-

          (1) In any proceedings before the Court, the Court shall have power at any stage of the proceedings to order, upon such terms as to costs or otherwise as the Court thinks fit, any amendments to be made which, in the opinion of the Court, are necessary in the interests of justice.

          (2) Where, in beginning or purporting to begin any proceedings before the Court or at any stage in the course of or in connection with any such proceedings, there is, by reason of anything done or left undone, a failure to comply with the requirements of this Act or of the rules whether in respect of time, place, manner, form or content or in any other respect:
                (a) the failure shall be treated as an irregularity and shall not nullify the proceedings, or any step taken in the proceedings, or any document, judgment or order in the proceedings, and
                (b) subject to subsection (3), the Court may, on terms, set aside wholly or in part the proceedings or any step taken in the proceedings or any document, judgment or order in the proceedings or exercise its functions under this Act and the rules to allow amendments and to make orders dealing with the proceedings generally.
          (3) The Court shall not set aside any proceedings before it or any step taken in any such proceedings or any document, judgment or order in any such proceedings on the ground of a failure to which subsection (2) applies on the application of any party unless the application is made within a reasonable time and before the applicant has taken any fresh step after becoming aware of the irregularity.


    38. The applicant’s argument is that the Chief Commissioner submitted to jurisdiction when the appearance was first entered and subsequently at the callovers.

    39. It is alleged that the Chief Commissioner became aware of the claimed irregularity at the time the application class 3 was filed. Not only was the application not made within a reasonable time the Chief Commissioner took a number of fresh steps in the proceedings after becoming aware of the alleged irregularity.

    40. Furthermore, Mr Robins submits that the subsequent actions by the Chief Commissioner amounted either to a waiver of any entitlement to be discharged as a party or that he was estopped from denying that he was the correct party.

    41. The joinder of a defendant to proceedings in a court of limited statutory jurisdiction is not, in my opinion, a failure to comply with the requirements of the Court Act or of the LEC Rules, contemplated by s 68(2) of the Court Act.

    42. As a court with defined jurisdiction and powers, this Court can only entertain proceedings which are expressly assigned to it by the relevant legislation ( Coombwood Pty Ltd v Baulkham Hills Shire Council (1995) 86 LGERA 319 at 333).

    43. The former s 38 of the 1916 Act and the present s 37 of the amended 1916 Act provide for an appeal to the Land and Environment Court by a relevant person (identified in the respective sections) who “is dissatisfied with the decision of the Valuer-General on an objection” or “with the Valuer-General’s determination of the owner’s objection”.

    44. Section 96 of the Taxation Administration Act consistently provides that a taxpayer may appeal to the Supreme Court if the taxpayer is dissatisfied with the Chief Commissioner’s determination of the taxpayer’s objection. It is only by dint of s 38A of the unamended 1956 Act that an appeal by a taxpayer pursuant to s 96 of the Taxation Administration Act lies to this Court (rather than to the Supreme Court). Otherwise, there is no jurisdiction for this Court to entertain an appeal arising pursuant to s 96 of the Taxation Administration Act. If the contrary had been the case and, notwithstanding the transitional provisions, the only surviving right of appeal is pursuant to s 37 of the amended 1916 Act then the Court would have been deprived of jurisdiction to determine a purported appeal against a decision by the Chief Commissioner irrespective of when the issue arose and the steps taken in the proceedings. Jurisdiction of this Court, as a court of limited jurisdiction, cannot be conferred by concession. It is therefore open for the Court to entertain the respondent’s notice of motion on the issue of jurisdiction irrespective of the delay or steps taken in the proceedings. Any prejudice to the applicant could have been covered by an appropriate costs order.

    45. Ultimately, the questions of waiver and estoppel have no bearing on the outcome as the Court has decided that the respondent is not entitled to the relief it seeks in the notice of motion in any event.

    Orders

    46. The respondent’s notice of motion will be dismissed.

    47. The issue of costs has not been fully argued and accordingly will be reserved.

    48. The Court makes the following formal orders:-
          (1) The respondent’s notice of motion filed 17 July 2001 is dismissed.
          (2) Costs reserved.

    49. The matter will be re-listed for further callover before the Registrar at a convenient date.
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