Cisc Pty Ltd v the Hon Keith De Lacy

[1995] QSC 71

IN THE SUPREME COURT

OF QUEENSLAND

Apn. No. 100 of 1995

Brisbane

Before the Hon. Justice White

[Cisc Pty Ltd v. The Hon. Keith De Lacy]

BETWEEN:

CISC PTY LTD ACN 067 097 625

Applicant

AND:

THE HONOURABLE KEITH DE LACY,
  TREASURER OF QUEENSLAND

Respondent

JUDGMENT - JUSTICE WHITE

Judgment delivered 26/04/95

CATCHWORDS:     Refusal to make a decision pending determination in another proceeding - Judicial Review Act - s.22(1) - construction of s.59E(1) Stamp Act

Counsel:Mr D. Russell Q.C. and Mr H. Alexander for the applicant

Mr P. Dutney Q.C. and Mr P. Flannagan for the respondent

Solicitors:Clayton Utz for the applicant

Crown Solicitor for the respondent

Hearing Date:   3 April 1995

IN THE SUPREME COURT

OF QUEENSLAND

Apn. No. 100 of 1995

BETWEEN:

CISC PTY LTD ACN 067 097 625

Applicant

AND:

THE HONOURABLE KEITH DE LACY,
  TREASURER OF QUEENSLAND

Respondent

JUDGMENT - JUSTICE WHITE

Judgment delivered 26/04/1995

The applicant seeks review of a decision by the respondent Minister not to make a decision on the applicant's application to him for a declaration under the Stamp Act 1894 until after judgment is given in a similar matter now before the Court and set down for hearing on 26 April 1995.
Section 59E(1) of the Stamp Act provides that where a conveyance or transfer is to a [qualifying body] the Commissioner of Stamp Duties may determine the conveyance or transfer to be exempt from duty where he is satisfied that the property conveyed or transferred or to be conveyed or transferred has been acquired for and is to be used solely or almost solely for [a particular purpose]. If the institution of which the applicant is trustee is to benefit from this provision it must fall within s.59E(1)(d):-

"an institution, or the trustees thereof, declared by the Minister in the Minister's discretion to be an institution to which this paragraph applies, the principal object and pursuit of which is the fulfilling of a charitable object or an object promoting the public good (not being an object or pursuit that is a sporting, recreational, leisure or social pursuit or object or an object or pursuit declared by Order in Council for the purposes of this paragraph);"

The Commissioner may determine the conveyance or transfer to be exempt from duty if he is satisfied that the subject property has been acquired for and is to be used solely or almost solely for:-

"(f) educational purposes;

(g) a public benevolent purpose;

(h) the purpose of conducting a kindergarten or

pre‑school;

(i) the purpose of the relief of poverty;

(j)the purpose of care of sick, aged, infirm, afflicted or incorrigible persons or of children;

(k)the purpose of activities of a religious nature;

(l)more than one of the purposes specified in paragraphs (f) to (k) (both inclusive); or

(m)in the case of an institution declared by the Minister under paragraph (d) -

(i) the purpose of that charitable object or that object of public good which the Minister was satisfied was that institution's principal object and pursuit when declaring it under that paragraph; or

(ii) the purpose referred to in subparagraph (i) and any one or more of the purposes specified in paragraphs (f) to (k) (both inclusive)"

The relevant Minister is the respondent Treasurer. There is no time within which the Minister must make a declaration pursuant to s.59E(1)(d) of the Stamp Act. There is no dispute that the decision by the respondent to make no decision concerning a declaration under that provision falls within s.22(1) of the Judicial Review Act and the applicant is a person aggrieved.
           The applicant is the trustee of the Queensland Construction Industry Skills Centre Fund ("QCISCF").  It was formed by agreement between Queensland Construction Training Fund ("QCTF") and the Vocational Education Training and Employment Corporation ("VETEC") in November 1994.  The applicant alleges that its purpose is educational and charitable and a further purpose is to acquire certain land on which QCISCF proposes to establish a training centre for persons employed in or otherwise providing services in and to the construction industry.
By letter dated 25 November 1994 the solicitors for QCISCF applied to the respondent Minister for a declaration pursuant to s.59E(1)(d) of the Stamp Act for the purpose of having the land exempt from duty.  In support of the application the solicitors included an agreement in respect of the subject land between QCTF and the Queensland Investment Corporation ("QIC") dated 16 August 1994, a deed of assignment between QCTF and the applicant as trustee of QCISCF, a contract between QIC and the applicant, the Founders' Agreement between QCTF and VETEC and the Deed establishing QCISCF all dated 14 November 1994.  Other material was enclosed under cover of letter dated 13 December 1994.
Previously QCTF had sought the respondent Minister's declaration pursuant to s.59E(1)(d) in respect of the same land, which declaration he had declined to make in letters dated 18 October and 18 November 1994. The applicant's solicitors submitted to the respondent that the reasons previously advanced in respect of QCTF were also applicable to QCISCF's application.
           By letter dated 18 January 1995 the respondent wrote that since an application had been made under the Judicial Review Act for a review of his decision not to declare QCTF to be an institution to which s.59E(1)(d) of the Stamp Act applied and since the outcome of that matter might influence his decision in the present application he did not propose to make a decision in respect of QCISCF until judgment had been given by the Court in the QCTF matter.
           On 17 February 1995 the applicant instituted these proceedings for review of that decision.
           On 20 February 1995 the applicant's solicitors wrote again to the respondent pointing out that there were distinguishing features between QCISCF's application for declaration and that of QCTF, that the case for a declaration was stronger with respect to QCISCF than QCTF and that if QCTF were to fail in its review proceedings nonetheless an application for declaration in respect of QCISCF might still be granted.  The respondent was again requested to determine QCISCF's application for declaration so that were it to be rejected the applicant would have time to join in QCTF's review proceedings thereby saving costs.  The respondent replied on 2 March 1995 that he proposed to await the outcome of QCTF's proceedings.
Mr Russell Q.C. for the applicant argued it was unreasonable of the Minister to delay making a decision as to whether he would make a declaration pursuant to s.59E(1)(d) until the Court determined the proceedings brought by QCTF. It was submitted to be unreasonable because it was more convenient to have both QCTF's proceedings and the QCISCF application for judicial review (in the event of an adverse decision about a declaration) heard together. The other and more strongly argued basis was that on a proper construction of s.59E(1) of the Stamp Act unless the Minister makes a declaration pursuant to s.59E(1)(d) within six months of the date of execution of the instruments that would otherwise be charged to stamp duty, the applicant may be denied the opportunity of satisfying the Commissioner that the property has been acquired for the qualifying purpose(s) so that he could determine that it should be exempt from duty. On the construction contended for by the applicant the date after which the applicant would have to rely on the Commission's discretion to extend time would be 14 May 1995. Mr Russell submitted that would have expired or would be likely to have expired by the time a decision is given in respect of the QCTF matter. This construction argument was not raised in the correspondence with the Minister. Mr Dutney Q.C. who appeared for him submitted that the Minister should not have to speculate as to other reasons which might dictate an earlier decision. He submitted that the Court should decide the matter on whatever material was available to the Minister at the time when he decided against making the declaration sought until the outcome of the other proceedings was known. That submission is true for decisions of a substantial kind, but here the complaint is of a continuing failure to make a decision and the Minister, once appraised of further submissions as to why he ought to make a decision, in my view, must give those further submissions due regard. He has been appraised of this further ground since it was raised by counsel on the hearing but has not been persuaded by it to alter his previously expressed view.
           It is convenient to consider the construction point since it is the major focus of the applicant's submissions of unreasonable delay by the Minister.
Section 59E(1) provides relevantly:-

"Where the Commissioner is satisfied that a conveyance or transfer is to [institution] ...

the Commissioner may determine the conveyance or transfer to be exempt from duty where the Commissioner is satisfied that the property conveyed or transferred, or to be conveyed or transferred, has been acquired for and is to be used solely or almost solely for [purposes] ...

within 6 months (or such later time as the Commissioner may in the Commissioner's discretion in a particular case allow) and for a duration of 12 months (or such longer period as the Commissioner may in the Commissioner's discretion in a particular case require for the purpose of being satisfied that the property has been acquired for that purpose)..."

The plain meaning seems to be that the Commissioner must be satisfied that the property sought to be made exempt of stamp duty must be used for the designated purpose within six months of a conveyance or such later time as may be allowed by the Commissioner and must be so used for 12 months or such longer time as the Commissioner requires.  I cannot read the provision as requiring the Commissioner to be satisfied within six months of the conveyance that the property has been acquired and is to be used for a designated purpose so as to render it exempt from duty. 
If s.59E(1) were to be construed in the way contended for by the applicant then it might be supposed that were an application made to the Minister pursuant to s.59E(1)(d) promptly and delay occurred either in the Minister's or the Commissioner's office the Commissioner would be required to exercise his discretion to extend time by reference to the usual tenets of the exercise of an administrative discretion. However I have concluded that that is not the proper construction of the section.
           I should consider then whether the delay by the Minister is unreasonable.  In Thornton v. Repatriation Commission (1981) 35 A.L.R. 485 the Repatriation Commission deferred consideration of an appeal by a widow for a repatriation pension pending the outcome of a case in the High Court which was thought by the Commission to raise similar issues. On an application under the provisions of the Administrative Decisions (Judicial Review) Act 1977 the applicant contended that the Commission's decision was in the circumstances unreasonable and such as to constitute unreasonable delay within the meaning of s.7(1) of the Commonwealth Act. That is in terms the same as s.22(1) of the Judicial Review Act.  Fisher J after reviewing a number of authorities concluded at p.490:-

"In my opinion a delay is unreasonable if it can be said that no reasonable man acting in good faith would, in the circumstances, have approved the delay.  Such a test is akin to that adopted, in relation to the disallowance of by-laws, by the Privy Council in Slattery v. Naylor (1888) 3 App Cas 446 at p.452 where Lord Hobhouse uses the words 'fantastic and capricious' and 'such as reasonable man could not make in good faith' when considering whether the by-law was reasonable."

His Honour went on:-

"In my opinion the reasonableness of the delay on the part of the Commission is a matter for objective determination, the question being whether a reasonable man acting in good faith could consider the decision to delay until the High Court hands down its judgment as appropriate of justified in the circumstances, or whether it was capricious and irrational."

His Honour referred to a number of authorities which held that Courts of law can only act upon the law as it is and should not adjourn to consider what the law might be as a consequence of a decision in another case.  However sometimes adjournments have been made appropriately pending the decision in another case.  Mr Russell referred to the decision of Re Yates Settlement Trusts [1954] 1 All E.R. 619 as authority for the proposition that generally courts are not justified in awaiting the outcome of a decision. The Court of Appeal in the case held that where an important case was under appeal a judge might reasonably adjourn a similar case until the result of the appeal was known, but in the case under consideration the circumstances were special in that a settlor, whose scheme was before the court for approval, might not have long to live and an adjournment might result in an injustice to the parties if the settler died before the application was heard. That decision might be apposite were rights to be extinguished as a consequence of a failure by the Minister to make a decision prior to the expiration of six months from conveyance on the construction contended for by the applicant. I have however concluded that that is not the proper construction of the section.
           Fisher J went on to note at p.492:-

"The question is whether there are circumstances which a reasonable man might consider render this delay justified and not capricious.  In the first instance it is, on the evidence, a delay for a considered reason and not in consequence of neglect, oversight or perversity.  Moreover, it is a delay for a finite and not an indefinite period.  Admittedly it is uncertain when the High Court will hand down its decision, but one is not entitled to assume that there will be any excessive delay."

Neaves J in Kelly v. Watson (1985) 10 F.C.R. 305 at p.311 applied that test.
           There can be nothing capricious or irrational in the conduct of the respondent Minister in awaiting the outcome of the judicial review proceedings in respect of matters which appear on the face of it very similar to those which are sought to be argued by the present applicant.  The hearing date is certain.  There is no compelling reason why he should make a decision so that, if adverse to the applicant this applicant can be joined in QCTF's proceedings.   The applicant has said that QCISCF's position is stronger and different and accordingly may very well unnecessarily extend QCTF's proceedings.  If a decision favourable to QCTF is obtained from the Court then that is another factor which might have to be considered in respect of the present arrangements which have been made for the subject land.
           For those reasons in my view the application should be dismissed with costs.