Marmota Ltd v Commissioner of State Taxation

[2025] SASCA 11

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

MARMOTA LTD v COMMISSIONER OF STATE TAXATION

[2025] SASCA 11

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice S Doyle and the Honourable Justice Bleby)

7 February 2025

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - SUMMARY JUDGMENT FOR PLAINTIFF OR APPLICANT

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - FUNCTION OF COURT

Appeal against a decision of a single judge of the Supreme Court of South Australia.

The respondent commenced proceedings in the District Court of South Australia for a monetary claim against the appellant in respect of unpaid payroll tax, penalty and interest under the Taxation Administration Act 1996 (SA) (‘TAA’) for the period between 1 July 2010 to 30 June 2015. An auxiliary master of the District Court transferred the proceedings to the Supreme Court. A single judge of the Supreme Court granted summary judgment to the respondent and dismissed the appellant’s application for a permanent stay of proceedings.

The appellant raised numerous grounds of appeal, submitting that the judge erred in:

•granting the respondent’s application for summary judgment (Grounds 1 and 2);

•dismissing the appellant’s application for a permanent stay of the primary action (Grounds 3 and 4);

•applying the incorrect test in determining not to grant a stay by requiring a balance be struck between community interests in collecting taxes and the appellant receiving a fair trial (Ground 5); and

•finding that s 100 of the TAA was not an unlawful privative clause insofar as it prevented the applicant from raising a collateral attack (Ground 6).

Within Grounds 1 and 2, the appellant asserted various defences to the claim, which they submitted constituted bars to summary judgment. The appellant contended that the assessment of payroll tax was a nullity, it could not challenge the validity of such a nullity under Part 10 of the TAA, and that it should have been allowed to raise such challenges in the debt recovery proceedings.

In relation to Grounds 3 and 4, the appellant contended that the Commissioner’s application for summary judgment constituted an abuse of process in the context that an auxiliary master of the District Court had already refused an application for summary judgment. The appellant also relied on delays on part of the Commissioner and other aspects of the Commissioner’s conduct.

A premise of the appellant’s contention in Ground 6 was that s 100 prevented judicial review. In what was effectively an alternative position, the appellant submitted that if s 100 did not prevent judicial review for jurisdictional error, it necessarily permitted collateral challenges to the validity of assessments in other proceedings.

Held (by the Court) dismissing the appeal:

1.The judge correctly granted summary judgment, as s 100 of the TAA operated to preclude the appellant from raising its defences of invalidity of the assessments in the debt recovery proceedings. It had been open for the appellant to raise any challenge to the assessment by way of proceedings under Part 10 of the TAA.

2.The appellant’s contention that s 100 is an invalid privative clause did not properly arise in the proceeding and was untenable as a matter of ordinary construction.

3.The judge correctly concluded it was not an abuse of process for the Commissioner to have brought a second application. Further, the delay and other aspects of the Commissioner’s conduct did not warrant a permanent stay. The appellant failed to show how these matters prejudiced its defence in the context of the permissible limits of the recovery proceedings.

4.The judge’s reference to the need to strike a balance of interests did not appear to have meaningfully informed her ultimate decision, which turned primarily on a question of statutory construction.

Taxation Administration Act 1996 (SA) ss 3, 8, 10, 14, 82, 89, 91, 92, 94, 95, 98, 100, 115; Payroll Tax Act 2009 (SA) ss 6, 7, 8, 79; Uniform Civil Rules 2020 (SA) rr 143.1, 144; Legislation Interpretation Act 2021 (SA) s 19; Administrative Appeals Tribunal Act 1975 (Cth) ss 25, 44; Income Tax Assessment Act 1936 (Cth) ss 175, 177; Australian Constitution s 75; Judiciary Act 1903 (Cth) s 78B, referred to.
Commissioner of State Taxation v Marmota Ltd [2023] SASC 134; T & S Liapis Pty Ltd v Commissioner of State Taxation (2015) 124 SASR 1; Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476; Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369; Re Macks; Ex parte Saint (2000) 204 CLR 158; Ruhani v Director of Police (2005) 222 CLR 489; Higgins v Comans (2005) 153 A Crim R 565; Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; Cameron v Cole (1944) 68 CLR 571; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Taylor v Public Service Board (NSW) (1976) 137 CLR 208; Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; South West Water Authority v Rumble’s [1985] AC 609; Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390; Toronto Suburban Railway Co v Toronto Corporation [1915] AC 590; Minister for Lands (NSW) v Jeremias (1917) 23 CLR 322; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Johns v Australian Securities Commission (1993) 178 CLR 408; Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1; Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338; Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28; Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146; Lipohar v The Queen (1999) 200 CLR 485; Australian Competition & Consumer Commission v C G Berbatis Holdings Pty Ltd (1999) 95 FCR 292; Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651; Capelvenere v Omega Development Corporation Pty Ltd (1983) 5 ATPR 40 386; Public Service Association of New South Wales, Re Application by; Re Industrial Union of Employees (Commissioned Police Officers) Award (1947) 75 CLR 430; Amrit Lal Narain v Parnell (1986) 9 FCR 479; Nikolic v MGIC Ltd [1999] FCA 849; Australian Securities and Investments Commission v White (unreported, Federal Court, Drummond J, No QG 40 of 1998, 16 July 1998); Jacobs v Onesteel Manufacturing Pty Ltd (2006) 93 SASR 568; Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd (2020) 137 SASR 117; Walton v Gardiner (1993) 177 CLR 378; Jago v District Court (NSW) (1989) 168 CLR 23; GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857; Development Assessment Commission v Macag Holdings Pty Ltd (2001) 80 SASR 104; Walton v Gardiner (1993) 177 CLR 378; Rogers v The Queen (1994) 181 CLR 251; Strickland (a pseudonym) v Director of Public Prosecutions (Cth) (2018) 266 CLR 325; Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; RC v The Salvation Army (Western Australia) Property Trust [2023] WASCA 29; Warren v Attorney General for Jersey [2012] 1 AC 22; King Investment Solutions v Hussain [2005] NSWSC 1076; TFM Epping Land Pty Ltd v Decon Australia Pty Ltd [2020] NSWCA 93, considered.

MARMOTA LTD v COMMISSIONER OF STATE TAXATION
[2025] SASCA 11

Court of Appeal – Civil:  Livesey P, S Doyle and Bleby JJA

1. THE COURT:  In 2021, the Commissioner of State Taxation (‘the Commissioner’) commenced proceedings for a monetary claim against Marmota Ltd (‘Marmota’) in respect of unpaid payroll tax, penalty and interest for the period 1 July 2010 to 30 June 2015. This is an appeal from a decision of a single judge of this Court granting summary judgment to the Commissioner and refusing Marmota’s application for a permanent stay of the proceedings.[1]

   [1]     Commissioner of State Taxation v Marmota Ltd [2023] SASC 134.

2. The appeal raises a number of issues. Marmota contended that this was not an appropriate case for summary judgment. It asserted various defences to the claim and submitted, on the appeal, that these defences constituted bars to summary judgment. The Commissioner contended, and the primary judge found, that s 100 of the Taxation Administration Act 1996 (SA) (‘TAA’) precluded Marmota from pursuing those matters by way of defence, and that Marmota should have raised any challenge to the assessment by way of proceedings under Part 10 of the TAA.

3. Marmota submitted that insofar as s 100 of the TAA purported to prevent it from raising such challenges by way of collateral attack, s 100 was an invalid privative clause. It appeared to be a premise of this contention that s 100, on its face, prevented judicial review for jurisdictional error.

4. Marmota also raised what was effectively an alternative position, being that if s 100 did not prevent judicial review for jurisdictional error, it necessarily then permitted collateral challenges to the validity of assessments in other proceedings, such as the present debt recovery proceedings.

5. Marmota’s defensive challenges extended to a contention that the assessment of payroll tax liability was a nullity. In support of its contention that it should be permitted to raise these challenges in the debt recovery proceedings, Marmota submitted that it was prevented from challenging a purported assessment in proceedings under Part 10 of the TAA where the challenge was to the effect that the purported assessment was a nullity. In this regard it relied on the decision of Blue J in T & S Liapis Pty Ltd v Commissioner of State Taxation (Liapis).[2]

   [2] (2015) 124 SASR 1.

6. Marmota also challenged the judge’s refusal of its application for a permanent stay. It submitted that in circumstances where an auxiliary master of the District Court had earlier refused summary judgment, the Commissioner’s application for summary judgment in this Court constituted an abuse of process. In this regard, Marmota also relied on delays on the part of the Commissioner in making the assessments and pursuing recovery, various aspects of the Commissioner’s conduct and what it submitted was the Commissioner’s unreasonable failure to give discovery.

   Background

7. Marmota came into existence in late 2007. It was primarily a uranium explorer, listed in the Australian Stock Exchange (‘ASX’) energy sector. Monax Mining Ltd (‘Monax’) was a minerals exploration company primarily searching for large-scale iron ore and copper. It was listed in the ASX mining sector. On 1 July 2010, a partnership deed came into effect between Marmota and Monax, establishing the ‘Groundhog Services Partnership’.

8. On 17 June 2011, Monax, via its solicitors Shaw Lawyers, gave notice to the Commissioner that Monax, Marmota and other entities may constitute a group for the purposes of the Payroll Tax Act 2009 (SA) (‘PTA’). Shaw Lawyers included with this notice an application on behalf of Monax under s 79 of the PTA for the degrouping of the entities.

9. The history of what followed was characterised by delay. The primary judge summarised the events occurring between 2011 and 2016:[3]

   The Degrouping Application was assigned to a tax officer who sought further information from Mr Shaw in August 2011.  On 10 September 2012, the Degrouping Application was assigned to a different taxation officer.  The new taxation officer sought further information from Mr Shaw between September 2012 and March 2013.

   On 13 March 2013, the taxation officer created an exclusion request report with respect to the Degrouping Application.  Nothing appears to have occurred following this report.

   On 2 April 2014, another tax officer was assigned to the matter who appears to have taken no action on the matter.

   On 30 March 2015, yet another tax officer was assigned to the case.  On 23 May 2016, this tax officer made recommendations on groupings.  This tax officer accepted the recommendations of the previous tax officer, subject to several amendments.  The recommendations conclude with “[g]iven the delays in making and communicating the decision to deny the exclusion, I recommend that no penalty tax or interest be applied to the reassessments.”

   (Footnotes omitted)

   [3] [2023] SASC 134 at [7]-[10].

10. On 29 June 2016, the Commissioner sent an email to Monax. That email advised that a recommendation was made in 2013 and submitted for approval, but for various reasons, ‘the necessary review of the recommendation was overlooked’. The email then advised of the approval of the original recommendation. The email went on to describe various groupings, which included a group constituted by Monax, Marmota and the Groundhog Services Partnership for the period 1 July 2010 to 30 June 2015. It then advised:

    Reassessment

    On the basis of the above determination, the Commissioner intends to amend the group status of Monax, Groundhog Services and Groundhog Partnership to be members of a group whose designated group employer was Marmota and, pursuant to section 10(1) of [the TAA], make assessments of the tax liabilities of the relevant taxpayers.

11. The email further advised that the Commissioner did not intend to apply any interest or penalty tax to the assessment.

12. As noted above, this email was sent to Monax. Marmota submitted before the primary judge that it did not see this email until 2021, when the company secretary of Monax forwarded it.

13. On 5 July 2016, the Commissioner issued partnership assessments in relation to the Groundhog Services Partnership. Marmota contended that these assessments were not assessments at law and are nullities.

14. On 5 August 2016, Shaw Lawyers submitted a new Grouping Exclusion Application Form. Mr Shaw and others met with a representative of the Commissioner on 8 September 2016.

15. Marmota submitted that it first learnt of the partnership assessments when Mr Shaw advised of their existence on 12 September 2016. On 22 September 2016, Monax sent a letter to the Commissioner making submissions with respect to the partnership assessments. That letter commenced:

    These submissions are made on behalf of Monax Mining Limited. We do not act for Marmota Energy Ltd.

16. On the same date, the managing director of Marmota, Mr David Williams, wrote to the Commissioner in relation to the partnership assessments. Mr Williams advised that Marmota had first become aware of the assessments on 12 September 2016 and challenged the grouping of Marmota with Monax and the Groundhog Services Partnership.

17. On 16 May 2017, a taxation audit specialist recommended that the Commissioner should maintain the partnership assessments. On 7 June 2017, an audit manager approved the recommendation.

18. On about 20 June 2017, the Commissioner issued assessments in relation to Marmota’s liability to payroll tax. Again, Marmota denies that these constituted assessments at law.

19. On 2 August 2017, Monax lodged a Notice of Objection to the partnership assessments. It paid its share of the partnership assessments on about 19 May 2021.

20. On 11 August 2017, Dr Colin Rose, the executive chairman of Marmota, sent a letter to the Commissioner objecting to the assessments. Dr Rose sent further letters pursuing the objection on 27 November 2017 and 8 January 2018. The letter of 11 August 2017 reiterated that the first that Marmota had heard of the partnership assessments was on 12 September 2016, when it received correspondence from Shaw Lawyers. By the letter of 8 January 2018, Dr Rose requested that the Commissioner accept both the letters of 11 August 2017 and 27 November 2017 as objections under the TAA.

21. On 9 April 2019, the Treasurer determined Marmota’s objection. That determination is evidenced by a letter of that date. However, Marmota disputes that it received this letter. Then on 23 August 2019, an officer of RevenueSA sent an email to Dr Rose, attaching the determination letter, and advising as follows:

    Since your correspondence by you dated 8 January 2018, the Treasurer has determined the outcome of your objections and has subsequently issued a letter to you dated 9 April 2019.

    For your records please find attached a copy of this determination letter.

    Please note that the Treasurer also issued a letter on the same day to your lawyer at the time, Mr Andrew Shaw, advising of the outcome of the objections.

    Accordingly, once you have read through the contents of the letter please feel free to content [sic] me regarding the negotiations of the payment of the liability.

22. This letter contained an error, in that Mr Shaw was not, and never had been, Marmota’s solicitor.

23. On 23 August 2019, Dr Rose emailed the officer advising that Marmota had not received any such letter from the Treasurer, asking by what method and where it was sent, and advising that Mr Shaw did not act for Marmota. The email continued:

    We look forward to your reply. If you still wish to rely upon such correspondence, I would suggest that the letter be updated to reflect the current sending date. Please feel free to send that to me by email (with updated date). We will then refer the matter to our solicitors, for determination in the Supreme Court.

24. The officer responded by email on 26 August 2019. He acknowledged the error in suggesting that Mr Shaw was acting for Marmota. He also advised that the Treasurer’s letter determining the objection was sent by post to Dr Rose’s address. He advised Dr Rose that the Treasurer would not issue a further letter with an updated date and would rely on the letter dated 9 April 2019.

25. In response to Dr Rose’s advice about proceedings in the Supreme Court, the officer informed Dr Rose that a taxpayer was not entitled to exercise a right of appeal under Part 10 of the TAA unless it has paid 50 per cent of the whole of the tax (not including any interest and penalty tax). He advised of the amount that would be required to be paid.

26. Dr Rose responded by email later the same day, reiterating that Marmota did not receive the Treasurer’s determination letter. He advised that Marmota was ‘not in a position to act or rely on a document sent to us at the end of August 2019, that is dated 4 months earlier as April 2019’. He requested that if RevenueSA wished to rely on that letter, it either provide proof of it having been sent to Marmota in April 2019, or send it again with a contemporaneous date.

27. While Marmota here maintained that it did not receive the determination letter in April 2019, this email contained an acknowledgment that it had received it in August 2019.

28. On 28 August 2019, the officer responded to Dr Rose by email. He advised that RevenueSA could not provide proof of issue of the determination letter. He advised that the document was sent to the address recorded in the RevenueSA system and that ‘in the absence of any publicised delivery issue involving Australia Post’, RevenueSA considered the letter to have been sent. The officer also observed that Dr Rose had been provided with a copy of the determination letter on 23 August 2019 and advised that in those circumstances, RevenueSA did not consider that a further approach to the Treasurer was warranted. The email then requested that Dr Rose advise of the action Marmota intended to take, having regard to the options outlined in the determination letter. It set out the payment methods available. It concluded as follows:

    Given the history of this matter, you are advised that if RevenueSA does not receive a written response about either a) an appeal to the Treasurer’s determination or b) an application to pay the outstanding debt by way of a payment arrangement by 12 November 2019, I have been instructed to start legal proceedings to recover the total amount outstanding.

1. On 13 November 2019, the Commissioner sent Marmota a letter of demand in respect of Payroll Tax outstanding in the amount of $66,006.89.

2. Dr Rose responded by letter, attached to an email, on 28 November 2019. Marmota’s address indicated on the footer of this letter corresponded with the address indicated in the officer’s email of 26 August 2019 advising of where the determination letter had been sent. Dr Rose again disputed that Marmota had received the Treasurer’s letter determining the objection. The letter took issue with various aspects of the officer’s correspondence and concluded by requesting that RevenueSA not take any further action for at least two weeks, on account of Marmota having briefed a specialist tax lawyer.

3. The Debt Management Services section of RevenueSA replied by email later that same day. That email simply read:

   Dear Colin

   Thank you for your email.

   As requested, I acknowledge receipt of your email. A response will be issued in due course.

   Regards

   Debt Management Services

4. Marmota did not receive any further response. On 13 January 2021, that is, over a year later, the Crown Solicitor’s Office issued a further letter of demand to Marmota. Then on 23 March 2021, the Commissioner issued a Final Notice.

5. Further correspondence ensued. On 22 June 2021, the Commissioner commenced recovery proceedings in the District Court of South Australia. On 30 September 2021, the Commissioner filed an Interlocutory Application seeking summary judgment and, in the alternative, orders striking out parts of the Defence on the grounds that they did not comply with the Uniform Civil Rules 2020 (SA) (‘UCR’) or disclose a reasonable defence.

6. An auxiliary master (‘master’) heard that application on 7 March 2022, together with an Interlocutory Application by Marmota for specific discovery. In its defence of the summary judgment application, Marmota raised several arguments that are reflected in the arguments now raised on appeal. The master characterised the submissions of Marmota as follows:

   ·The respondent had objected to certain “purported” assessments (and a “degrouping decision”) but had never received a determination of the objection as required by s 89 of the TAA;

   ·Section 14 of the TAA requires an assessment by written notice in a form approved by the Commissioner, but there is no such published form;

   ·The purported assessments are expressed to be pursuant to s 10 of the TAA. Section 10 in fact provides for re-assessments. Assessments are dealt with in s 8;

   ·Section 100 of the TAA is a privative clause that “seeks to oust the jurisdiction of the court”. On Kable grounds, s 100 is void – or, at the least, ineffective;

   ·The certificate issued under s 115 of the TAA cannot cure the various breaches of that Act that the respondent claims to have identified. In any event, the certificate is only evidence where there is not proof to the contrary and evidence to the contrary has been put forward;

   ·There has been an impermissible delegation of the authority of the relevant Minister;

   ·The proceedings should be stayed against the applicant because of inordinate delay, breaches of the TAA and improper behaviour.

   (Footnotes omitted)

7. The master indicated that this list did not exhaust the arguments Marmota raised.

8. On 1 April 2022, the master delivered reasons for dismissing the application for summary judgment and transferring the matter to the Supreme Court. The dispositive part of those reasons is relatively short and is set out here in full:

   Until corrected, I will continue to simply follow the words of the relevant Rule. The question is whether there is “no reasonable basis for defending the claim”.

   I cannot say that any of the propositions advanced before me are incapable of establishing a reasonable basis for defending the claim. I make it clear that I do not find that s 100 of the TAA is invalid – or ineffective. I simply say that there is an argument. There may also be an argument in respect of the stay. There are many arguments in respect of the operation and construction of privative clauses. They go both ways. It seems to me that this matter should proceed to trial and to full argument based on all of the evidence that is admissible.

   For those reasons, I dismiss FDN 9 [the Interlocutory Application for a stay or, in the alternative, strike out].

   It further appears clear to me that this action should be in the Supreme Court. That court – if any court in this State – should be dealing with the validity of s 100 of the TAA. Further, in that court, the respondent can be put to the sword as to whether or not it seeks judicial review. I therefore order, pursuant to s 24(2) of the District Court Act 1991 that these proceedings be transferred to the Supreme Court. The discovery and strike out arguments can be dealt with there if the parties wish to pursue them.

   (Footnote omitted)

9. As we will come to, the Commissioner’s strike-out application in this Court was premised on the same arguments as the application for summary judgment.

   The primary judge’s findings

10. It is necessary to engage with the primary judge’s reasons in context. An important matter of context to identify early on is Marmota’s contention, by way of defence, that the assessments raised against it were nullities. One reason for this was its contention that the Treasurer, being the Minister to whom the TAA was committed, had not given it written notice of the determination of its objection, contrary to his obligation under s 89 of the TAA:

    89—Notice of determination

    (1)The Minister must give written notice to the objector of the determination of the objection.

    (2)The Minister must include in the notice the reasons for the Minister’s decision on the objection.

11. It is to be recalled that the Treasurer determined the objection on 9 April 2019. Marmota disputes that it received this letter. Then on 23 August 2019, an officer of RevenueSA sent an email to Dr Rose, attaching the determination letter.

12. Marmota’s contention appears to be that it had not received the determination in April 2019 and that the August email, with the determination attached, was incapable of constituting the giving of written notice of the determination. Marmota also raised challenges that the assessments were not made in an approved form and that they were expressed as being made under s 10 of the TAA (which concerns reassessments), rather than s 8. It followed, in Marmota’s submission, that the assessments were nullities.

13. From this defensive premise, Marmota then invoked observations made in obiter by Blue J in T & S Liapis Pty Ltd v Commissioner of State Taxation:[4]

    The making of an assessment and issue of notice of assessment by the Commissioner (or indeed by the Minister on objection) is a purely administrative act. If the Commissioner undertakes an act or issues a document that does not amount to an assessment, it has no legal effect as an assessment. It is what is sometimes described as a nullity.[5] In this respect, the position is to be contrasted with a judgment of a court (all superior courts and most inferior courts) that is later held to have been made outside jurisdiction, which judgment is not a nullity[6] and may be the subject of appeal on the ground, inter alia, that it was made without jurisdiction.[7]

    On the proper construction of the Taxation Administration Act, the reference in sections 82 and 92 to an assessment is to an assessment at law and no right of objection and no right of appeal is conferred in respect of a purported assessment that does not amount to an assessment at law and has no legal effect.

    It is not open to Liapis to contend on an appeal against an assessment that there was no assessment. Conversely, if the Court is satisfied on an appeal against a purported assessment that there was, in law, no assessment, the Court would dismiss the appeal as incompetent.

    It would have been open to Liapis to bring judicial review proceedings seeking a declaration that the purported assessment does not constitute an assessment in law and consequential prerogative relief. Liapis has not done so and did not raise the point on appeal until shortly before the hearing of the appeal.

    (Footnotes in original)

    [4] (2015) 124 SASR 1 at [114]-[117].

    [5]     Compare Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [51] per Gaudron and Gummow JJ (with whom McHugh J agreed) and [152] per Hayne J; Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.

    [6]     Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 at 391 per Dixon J (with whom Evatt and McTiernan JJ agreed); Re Macks; Ex parte Saint (2000) 204 CLR 158 at [20] per Gleeson CJ, [48]-[53] per Gaudron J, [216] per Gummow J, [257] per Kirby J and [328] per Hayne and Callinan JJ; Ruhani v Director of Police (2005) 222 CLR 489 at [47] per McHugh J; Higgins v Comans (2005) 153 A Crim R 565 at [5]-[6] per McPherson JA; Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364 at [13]‑[16] and [31] per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ.

    [7]     Cameron v Cole (1944) 68 CLR 571 at 590-591 per Rich J; Re Macks; Ex parte Saint (2000) 204 CLR 158 at [49] per Gaudron J.

14. Marmota contended before the primary judge, and before this Court, that the assessments being (on its case) nullities, it was not possible for it to object or appeal. It appeared to accept that a consequence of this was that it was open to seek judicial review, but contended that if judicial review was available, it was similarly open for it to mount a collateral attack on the validity of the assessments in debt recovery proceedings.

15. The primary judge noted that Marmota’s position had not stopped it from lodging an Objection to the assessments with the Minister. She also distinguished Liapis as focusing on the right to object under s 82 and the right to appeal under s 92 of the TAA. Liapis was an appeal under Part 10 of the TAA. Perhaps more fundamentally, the judge noted that Blue J was not asked to consider the operation of s 100. Section 100(1) provides:

    100—Exclusion of other proceedings or disputes as to tax liability

    (1)The validity or correctness of an assessment or any other decision in respect of which rights of objection and appeal are conferred under this Part is not open to challenge in any proceedings other than proceedings by way of objection or appeal under this Part.

16. It is to be noted that s 100 extends to challenges to the validity of an assessment. The primary judge considered that the wording of s 100 made it clear that an objection or an appeal extended to objections or appeals against the validity of an assessment such that the assessment might be considered a nullity:[8]

    The act of making a purported assessment may be invalid such that it is a nullity; on the other hand, it may not.  However, to reach that view there must be a proper ventilation of reasons for the asserted invalidity. As outlined above, this is a complex issue.  At present Marmota has done no more than assert this is the case.  Determination of that issue may require evidence; it will certainly require analysis in the context of the statutory scheme and the purpose of the TAA as discussed above. If an act by the Commissioner is said not to amount to an assessment at law, that appears to me to be a challenge to its validity. The plain language of s 100 provides an express statutory instruction for the Court to hear and determine challenges to the validity or correctness of an assessment within Part 10 proceedings. These debt recovery proceedings are not Part 10 proceedings. It follows that it is not permissible for Marmota to raise those issues by way of a collateral challenge in these proceedings. Accordingly, if s 100 is valid there is no reasonable basis for Marmota’s defence of these proceedings.

    (Footnote omitted)

    [8] [2023] SASC 134 at [86].

17. The judge then went on to consider the validity of s 100. Briefly put, her conclusions on the appeal were as follows:

    ·Marmota had not discharged its onus of establishing that a permanent stay ought to be granted;

    ·it was not permissible for Marmota to raise the various defences it asserted in the debt recovery proceedings. Section 100 of the TAA required any challenge to the correctness or validity of an assessment to be made only in proceedings by way of objection or appeal under Part 10 of the TAA, which the Commissioner’s debt recovery proceedings were not;

    ·section 100 of the TAA was not an invalid privative clause, in that it did not purport to exclude review for jurisdiction or any other error. It followed that there was no reasonable basis for Marmota’s defence of the proceedings;

    ·the delay on the part of the Commissioner did not warrant a permanent stay of the proceedings.

18. Accordingly, the judge dismissed Marmota’s appeal.

    The appeal to this Court

19. The appellant complained of numerous errors on the part of the primary judge in refusing its application for a permanent stay of the debt recovery proceeding.

20. The issues arising on this appeal overlap as between Marmota’s application for a permanent stay and the Commissioner’s application for summary judgment. Marmota contended that a stay was warranted when regard was had to the delays occasioned by the Commissioner in making the assessments and pursuing recovery, the Commissioner’s conduct and the failure of the Commissioner to give discovery. Marmota also contended, however, that in dismissing the application for a permanent stay, the judge wrongly found that it had been open for Marmota to challenge the assessments in Part 10 proceedings, in circumstances where Marmota contended that the assessments were nullities (Grounds 4.5 and 4.6). In this regard, the judge found:[9]

    A proper course for ventilating a challenge to an assessment is under Part 10 of the TAA. Having commenced that process by lodging an Objection, Marmota effectively abandoned it by failing to appeal in the absence of a decision by the Minister and, once it became aware of the Minister’s decision, failing to appeal that decision to the Supreme Court. Alternatively, Marmota could have instituted judicial review proceedings. Marmota has done neither. In those circumstances I decline to grant a permanent stay of these proceedings.

    [9] [2023] SASC 134 at [100].

21. The judge therefore treated the question of whether it was open to Marmota to appeal under Part 10 as relevant to her consideration of whether to grant a permanent stay. However, Marmota also deployed this contention in support of its resistance to the summary judgment application. The asserted unavailability of Part 10 proceedings was an integer of its contention that it was entitled to mount a collateral attack to the validity of the assessments in the debt recovery proceedings.

22. Marmota also submitted that the Commissioner’s application for summary judgment itself constituted an abuse of process, summary judgment having been refused by the master in the District Court.

23. As to the substance of the summary judgment application, Marmota maintained that in circumstances where its challenge was that the assessments were nullities, it was not open for it to appeal under Part 10, that s 100 constituted an invalid privative clause and that it was permissible for Marmota to make a collateral challenge to the validity of the assessments in debt recovery proceedings.

24. Given the somewhat intermeshed nature of the issues as they were argued, it is convenient first to address some fundamental issues of construction of the TAA that Marmota raised, before turning to whether the judge was correct in granting summary judgment and refusing the application for a permanent stay.

    Whether a right of appeal under Part 10 existed where the assessments were contended to be ‘nullities’

25. Section 3(1) of the TAA defines ‘assessment’:

    (1)     In this Act, unless the contrary intention appears—

    assessment means an assessment by the Commissioner under Part 3 of the tax liability of a person under a taxation law, and includes—

    (a)a reassessment and a compromise assessment under Part 3; and

    (b)an assessment by the Minister or the Supreme Court on an objection or appeal under Part 10,

    and assessed has a corresponding meaning;

26. The section does not express the term to include ‘purported’ assessments. Indeed, on its face, the reference to an ‘assessment’ by the Commissioner ‘under Part 3’ would indicate an assessment made lawfully under that Part. That is a textual indicator of what is meant in the Act by ‘assessment’. The ultimate issue of construction, however, is the scope of the power to determine objections and appeals under Part 10.

27. The starting point is to read the provisions in their full context:[10]

    The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute[11].  The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”[12].  In Commissioner for Railways (NSW) v Agalianos[13], Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”.  Thus, the process of construction must always begin by examining the context of the provision that is being construed[14].

    (Footnotes in original)

    [10]   Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69].

    [11]   See Taylor v Public Service Board (NSW) (1976) 137 CLR 208 at 213 per Barwick CJ.

    [12]   Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320, per Mason and Wilson JJ. See also South West Water Authority v Rumble’s [1985] AC 609 at 617, per Lord Scarman, “in the context of the legislation read as a whole”.

    [13] (1955) 92 CLR 390 at 397.

    [14]   Toronto Suburban Railway Co v Toronto Corporation [1915] AC 590 at 597; Minister for Lands (NSW) v Jeremias (1917) 23 CLR 322 at 332; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 312, per Gibbs CJ; at 315, per Mason J; at 321, per Deane J.

28. Section 8, which appears in Part 3, expresses that an assessment is an assessment of a tax liability:

    8—General power to make assessment

    (1)The Commissioner may make an assessment of a tax liability of a taxpayer.

    (2)An assessment of a tax liability may consist of or include a determination that there is not a particular tax liability.

29. In the present case, the tax liability in respect of which an assessment is made is a liability for payroll tax. Sections 6 and 7 of the PTA provide:

    6—Imposition of payroll tax

    (1)Payroll tax is imposed on all taxable wages.

    (2)Payroll tax is levied and collected for the credit of the Consolidated Account at the Treasury.

    7—Who is liable for payroll tax?

    The employer by whom taxable wages are paid or payable is liable to pay payroll tax on the wages.

30. Section 82 of the TAA confers a right of objection to an assessment of payroll tax liability:

    82—Objections

    A person who is dissatisfied with—

    (a)     an assessment (other than a compromise assessment); or

    …

    may lodge a written notice of objection with the Minister.

31. That is what Dr Rose did on behalf of Marmota by his letters of 11 August 2017 and 27 November 2017 and a further letter of 8 January 2018. However, the fact that Marmota objected to the assessments did not mean that the Commissioner could not proceed to recover the tax. Section 91 provides:

    91—Recovery of tax pending objection

    The fact that an objection is pending does not in the meantime affect the assessment or decision to which the objection relates and tax may be recovered as if no objection were pending.

32. This section allows the Commissioner to proceed to recover tax even if an objection is pending and, it must follow, even after an appeal following determination of an objection is commenced. Section 92 confers a right of appeal to the Supreme Court, where a person has made an objection:

    92—Right of appeal

    A person who has made an objection may appeal to the Supreme Court if—

    (a)the person is dissatisfied with the Minister’s determination of the objection; or

    (b)90 days (not including any period of suspension under section 88) have passed since the objection was lodged with the Minister and the Minister has not determined the objection and served notice of the determination on the person.

1. Sections 82, 91 and 92 together provide a contextual indicator that the recovery of tax may occur independently of, and notwithstanding, any challenge to the assessment. That is to say, any challenge prosecuted on an appeal does not affect the Commissioner’s ability to recover the tax in the meantime. That is then reinforced by the terms of s 100.

2. Section 98 then confers powers on the Supreme Court, in the first instance with respect to the assessment under challenge:

   98—Determination of appeal

   On an appeal, the Supreme Court may do one or more of the following:

   (a)confirm or revoke the assessment or decision to which the appeal relates;

   (b)make an assessment or decision in place of the assessment or decision to which the appeal relates;

   (c)make an order for payment to the Commissioner of any amount of tax that is assessed as being payable but has not been paid;

   (d)make any further order as to costs or otherwise as it thinks just.

3. These sections provide the essential structure of objections and appeals in Divisions 1 and 2 of Part 10 of the TAA. Division 3 is constituted solely by s 100. Marmota’s essential contention here, drawing on the comments by Blue J in Liapis,[15] is that the scheme of objections and appeals is limited to where the assessment is a valid assessment at law. It does not extend to purported assessments that are invalid and, thereby, nullities.

   [15] (2015) 124 SASR 1.

4. It is difficult to see how s 100 could not be construed as providing important context to the reach of objections to and appeals against assessments of tax liability under ss 82 and 92 respectively. To emphasise certain words in s 100:

   The validity or correctness of an assessment or any other decision in respect of which rights of objection and appeal are conferred under this Part is not open to challenge in any proceedings other than proceedings by way of objection or appeal under this Part.

   (Emphasis added)

5. The emphasised words above expressly contemplate that the validity of an assessment is open to challenge in ‘proceedings by way of objection or appeal under this Part’. It is difficult to conceive of a stronger contextual indicator, not amounting to an express conferral of power, that rights of objection and appeal under Part 10 extend to challenges to the validity of an assessment.

6. The heading to s 100 reads, ‘Exclusion of other proceedings or disputes as to tax liability’. This heading forms part of the TAA.[16] As such, it indicates that s 100 is concerned with disputes as to tax liability, not merely ‘assessments’. It is an indicator, albeit not necessarily of great strength, that Part 10 is concerned with addressing all disputes as to tax liability, not only those disputes where the validity of the assessment is accepted but its accuracy is not.

   [16]   Legislation Interpretation Act 2021 (SA) s 19.

7. This leads to a further observation. The challenges to the validity of the assessments in this case are weak to say the least. The assertion that Marmota did not receive written notice of the determination of the objection within the meaning of s 89(1) of the TAA is dubious. On Marmota’s own evidence, it received written notice in August 2019 of the April 2019 determination. Next, the argument that in the absence of a published form for assessments, the assessment was not in a form approved by the Commissioner as required by s 14 of the TAA and was therefore invalid, is both textually weak and pays no account to the tenet of construction explained by the plurality in Project Blue Sky Inc v Australian Broadcasting Authority:[17]

   The purpose of construing the text of a statute is to ascertain therefrom the intention of the enacting Parliament.  When the validity of a purported exercise of a statutory power is in question, the intention of the Parliament determines the scope of a power as well as the consequences of non-compliance with a provision prescribing what must be done or what must occur before a power may be exercised.  If the purported exercise of the power is outside the ambit of the power or if the power has been purportedly exercised without compliance with a condition on which the power depends, the purported exercise is invalid.  If there has been non-compliance with a provision which does not affect the ambit or existence of the power, the purported exercise of the power is valid.  To say that a purported exercise of a power is valid is to say that it has the legal effect which the Parliament intended an exercise of the power to have.

   [17] (1998) 194 CLR 355 at [41].

8. The complaint that the Commissioner expressed the assessments to have been made under s 10, rather than s 8, appears to be without merit. It is well understood that when a power is exercised, a mistake in its source does not render the exercise invalid.[18]

   [18]   Johns v Australian Securities Commission (1993) 178 CLR 408 at 426 (Brennan J), 454 (Toohey J), 469 (McHugh J); Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1 at [34] (French CJ, Hayne, Kiefel and Bell JJ).

9. This list of complaints does not exhaust the defences that Marmota seeks to raise. Marmota further challenges the use of a certificate under s 115 of the TAA as an aid to proof of the debt. It also challenges the validity of the assessments on the basis of them having been made by a delegate.

10. It is not necessary to decide the various defences raised by Marmota, notwithstanding the obvious weaknesses of at least some of them. The observations already made serve to show that if Marmota’s construction of Part 10 were correct, the evident legislative intention that all challenges to assessments should be made through Part 10 proceedings would be thwarted to no small degree. Any time a taxpayer challenged the validity of an assessment, Part 10 proceedings would be unavailable. That would be the case, on Marmota’s argument, no matter how flimsy the challenge.

11. Part 10 imposes a regime for challenging assessments that is subject to procedural and timing constraints. It imposes the onus on the taxpayer. Marmota did not identify any purpose served by a construction that would render that regime unavailable where the challenge was one of validity as opposed to mere accuracy. To the contrary, the structure of Part 10, when read together with the wording of s 100, indicates a clear legislative purpose that all challenges to assessments are to be made by way of Part 10 proceedings.

12. This analysis may be compared with the exercise of construction of s 25 of the Administrative Appeals Tribunal Act 1975 (Cth) engaged in by the Federal Court in Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd.[19] The Court was there concerned with construing the power of review of a ‘decision’ that was ‘made in the exercise of powers conferred by [an] enactment’.  A majority of the Court held, on a close purposive and contextual analysis, that the phrase, properly construed, meant ‘in purported exercise’ of the powers conferred:[20]

    [I]n my opinion an applicant to the Tribunal has standing and the Tribunal has jurisdiction provided there is a decision in fact and provided further that the decision purports to have been made in exercise of powers conferred by an enactment whether or not as a matter of law it was validly made and whether or not action on the basis there was power to make the decision was right or wrong.

    [19] (1979) 41 FLR 338 at 344-346 (Bowen CJ); 367-373 (Smithers J).

    [20]   Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338 at 346 (Bowen CJ). See also Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 at [36]-[40] (Gray ACJ and North J) concerning the construction of s 44 of the Administrative Appeals Tribunal Act 1975 (Cth).

13. Marmota called in aid the decision of the High Court in Federal Commissioner of Taxation v Futuris Corporation Ltd (‘Futuris’).[21] That case was concerned, in particular, with the proper construction of s 175 of the Income Tax Assessment Act 1936 (Cth). That section provided:

    The validity of any assessment shall not be affected by reason that any of the provisions of this Act have not been complied with.

    [21] (2008) 237 CLR 146.

14. At issue in Futuris was whether this section prevented review for jurisdictional error of a purported exercise of power tainted by a deliberate failure on the part of the Commissioner to comply with the provisions of the Act. The plurality, applying Project Blue Sky Inc v Australian Broadcasting Authority,[22] asked:[23]

    … whether it is a purpose of the Act that a failure by the Commissioner in the process of assessment to comply with provisions of the Act renders the assessment invalid; in determining that question of legislative purpose regard must be had to the language of the relevant provisions and the scope and purpose of the statute.

    [22] (1998) 194 CLR 355 at [93].

    [23]   Federal Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146 at [23].

15. The Court accepted that where s 175 applied, errors in the process of assessment did not go to jurisdiction and did not attract the remedy of a constitutional writ under s 75(v) of the Constitution.[24] The question that then followed was, what were the limits beyond which s 175 did not reach?[25] Ultimately, the Court held that the section did not bring a deliberate failure to comply with the provisions of the Act within the power of the Commissioner. Such a failure manifested jurisdictional error and attracted the supervisory jurisdiction of the Federal Court.

    [24]   Federal Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146 at [24].

    [25]   Federal Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146 at [25].

16. The issue presently under consideration in this case, by contrast, is simply whether Part 10 reviews and appeals are available when the complaint extends to challenging the validity of the assessment. Marmota’s invocation of Futuris and other cases concerning the Commonwealth legislative approach to assessments appears to have been only for the rudimentary purpose of highlighting a type of legislative drafting that is capable, to some extent at least, of rendering assessments valid where they have been tainted by non‑compliance with a statutory provision. Marmota’s ultimate submission in this regard was that if the Commissioner wished to have the benefit of a section such as s 175 (and s 177) of the Income Tax Assessment Act 1936 (Cth), the legislature could have included it, but did not.

17. The comparison that Marmota sought to draw is of limited, if any, assistance. The analysis in any case is specific to the legislation in question. In the case of the TAA, an orthodox approach to statutory construction by reference to the Act’s text, context and purpose indicates that the facility in Part 10 for challenging an assessment extends to any challenge to the validity of that assessment.

18. The Commissioner submitted that it was not necessary to decide whether the obiter observations of Blue J in Liapis were correct or not. If those observations were correct, and an appeal could not be brought under Part 10 given the nature of Marmota’s challenge, then it would necessarily follow that judicial review for jurisdictional error would remain available.[26] However, Marmota has never sought judicial review either. The only question for the purpose of the Commissioner’s summary judgment application was whether s 100 prevented Marmota from challenging the validity of the assessments in the debt recovery proceedings.

    [26]   Kirk v Industrial Court (NSW) (2010) 239 CLR 531.

19. Having said that, the primary judge found that Marmota could have raised its challenges on an appeal under Part 10. That finding informed her decision on the application for a permanent stay. Marmota challenges that conclusion. The judge distinguished Liapis on the basis that Blue J in that case did not consider the operation of s 100. The above analysis shows that when Part 10 is considered in its entirety, including s 100, appeals and reviews under that Part extend to challenges to the validity of an assessment.

20. We respectfully hold, therefore, that Blue J’s observations at [116] of Liapis are incorrect.

21. By emails dated 26 August 2019 and 28 October 2019, following the Treasurer’s determination, the Commissioner invited Marmota to appeal to the Supreme Court. The Commissioner has maintained that it was open to Marmota to appeal (although now takes the position that Marmota is out of time to do so). Marmota has maintained that Liapis prevented it from taking that course. However, Blue J’s observation at [117] that it was nonetheless open for the taxpayer in that case to bring judicial review proceedings necessarily followed from his conclusion about Part 10 proceedings. Marmota has not offered any satisfactory explanation as to why it did not, given its view of Liapis, make an application for judicial review.

22. In circumstances, therefore, where Blue J’s conclusion was strictly made obiter, had not taken into account s 100 and in any event allowed for judicial review, and where the Commissioner invited Marmota to appeal, Marmota’s decision to raise its challenges only in the debt recovery proceedings must be taken to have been its choice. It was not forced to this position. In the event that this Court finds that s 100 precludes Marmota from raising its defences in the debt recovery proceedings, Marmota cannot credibly assert that it has been denied an avenue of challenge.

23. It has also been necessary, or at least preferable, to address this aspect of construction of Part 10, as the construction of s 100 is a necessary precondition to considering Marmota’s challenge to its validity. Marmota must succeed in that challenge in order to escape the conclusion that s 100 prevented it from raising its asserted defences to the Commissioner’s claim in the debt recovery proceedings.

    Whether s 100 of the TAA is an invalid privative clause

24. Marmota’s contention that s 100 is an invalid privative clause is the subject of Ground 6 of the appeal. The judge rejected Marmota’s contention:[27]

    I do not consider that, properly construed in the context of the TAA, s 100 is an invalid privative clause that displaces the jurisdiction of the Supreme Court of South Australia to review tax assessments. The language of s 100 stands in stark contrast to invalid Hickman style provisions which provide “except as otherwise provided in this section, a decision of the authority under this act is final and is not subject to appeal or review.” Section 100 identifies the way in which the validity or correctness of an assessment under the TAA can be challenged and identifies the limits on the circumstances of that challenge.  It allows an appeal to be commenced in the Supreme Court within reasonable time frames.  The Court has discretion to extend those time frames within reasonable limits.  Section 100 does not purport to exclude review for jurisdictional or any other error. 

    (Footnote omitted)

    [27] [2023] SASC 134 at [92].

25. Marmota observed in written submissions before this Court that the Commissioner relied on s 100 in pursuit of summary judgment and submitted that the Commissioner did so:

    … to exclude the Court further considering the many failures that have occurred. The Commissioner has accordingly been immunised by it from an examination of those failures based on the reasoning of [the judge]. The Commissioner’s reliance is misplaced and [the judge] erred in her decision. Reliance on the section impairs the institutional integrity of the Court and impermissibly interferes with the judicial process in a manner incompatible with the Court’s role it has fundamentally excluded the Commissioner’s conduct and processes from review, and the Commissioner’s compliance with the requirements of the law.

26. This submission focused on the effect of s 100 as preventing a collateral attack in the debt recovery proceedings specifically, rather than as abrogating the power of this Court to exercise supervisory jurisdiction in respect of jurisdictional error at all. In that regard, it betrayed a fundamental misunderstanding of the principle enunciated in Kirk v Industrial Court (NSW):[28]

    There is but one common law of Australia[29].  The supervisory jurisdiction exercised by the State Supreme Courts by the grant of prerogative relief or orders in the nature of that relief is governed in fundamental respects by principles established as part of the common law of Australia.  That is, the supervisory jurisdiction exercised by the State Supreme Courts is exercised according to principles that in the end are set by this Court.  To deprive a State Supreme Court of its supervisory jurisdiction enforcing the limits on the exercise of State executive and judicial power by persons and bodies other than that Court would be to create islands of power immune from supervision and restraint.  It would permit what Jaffe described as the development of “distorted positions”[30].  And as already demonstrated, it would remove from the relevant State Supreme Court one of its defining characteristics.

    This is not to say that there can be no legislation affecting the availability of judicial review in the State Supreme Courts.  It is not to say that no privative provision is valid.  Rather, the observations made about the constitutional significance of the supervisory jurisdiction of the State Supreme Courts point to the continued need for, and utility of, the distinction between jurisdictional and non‑jurisdictional error in the Australian constitutional context.  The distinction marks the relevant limit on State legislative power.  Legislation which would take from a State Supreme Court power to grant relief on account of jurisdictional error is beyond State legislative power.  Legislation which denies the availability of relief for non‑jurisdictional error of law appearing on the face of the record is not beyond power.

    (Footnotes in original)

    [28] (2010) 239 CLR 531 at [99]-[100].

    [29]   Lipohar (1999) 200 CLR 485 at 505 [43].

    [30]   Harvard Law Review, vol 70 (1957) 953, at p 963.

27. The judge found that in addition to the facility of appeal under Part 10, it may also be open for a taxpayer to commence proceedings for judicial review. Ultimately it is not necessary to decide whether that course was open. Had Marmota acted in accordance with its position that an appeal under Part 10 was not open because the decision was a nullity, it should have commenced proceedings for judicial review. On its own logic, s 100 would not have prevented such an application. If there was doubt, it could have commenced both types of proceeding.

28. What Marmota’s written submissions did not explain is how, on Marmota’s case, the power of this Court to grant relief for jurisdictional error was extinguished or compromised. The fact that s 100 on its face prevents challenges to the validity of an assessment in debt recovery proceedings says nothing about its broader reach.

29. As it is, we have found that it was open to Marmota to appeal under Part 10. The question that would then arise under this ground is only whether the scope of an appeal under Part 10 is such as to deprive the Court of power to grant relief for jurisdictional error. That is assuming that judicial review for jurisdictional error has been excluded. Alive at the oral hearing to this being the real issue, Marmota’s counsel submitted that s 100 prevented applications for judicial review for jurisdictional error. Then, as to an appeal under Part 10, he submitted:

    But what I’m saying is s 100 says you still have to go down part 10, you can’t go down – even for a jurisdictional error, you have to go down part 10.

    Her Honour said ‘You might have to go down part 10, but what are you complaining about? You’re still in the Supreme Court. There are some limits as to how you proceed in the Supreme Court. You’ve got time in which to appeal, you’ve got a limitation’.

    Our answer is but, at the end of the day, that does not give you a judicial review remedy. It gives you a constrained remedy controlled by part 10. It’s constrained in the process, it’s constrained in time, it’s constrained in remedies, and they’re not the same as a judicial review remedy.

1. The Court pressed counsel as to what meaningful constraint, that effectively deprived the Court of some aspect of its supervisory jurisdiction, was imposed by limiting the jurisdiction of the Court to appeals under Part 10, if indeed that was the effect of the section. Counsel’s first answer was that ‘the remedies were different’ and seemed to suggest, without elaboration, that there was a difference between quashing the decision and setting it aside (or revoking it, as is provided for by s 98 of the TAA).

2. The Court gave counsel an opportunity to isolate any meaningful difference in Reply. Counsel submitted in Reply that there were meaningful differences between whether the decision under review was declared to be a nullity, or whether the assessment is set aside and a new assessment made by the Court. The submission extended to speculating that if a decision is declared to be no decision at all, different consequences may arise depending on what has happened in the meantime.  Counsel did not offer any example of a practical difference.

3. Section 98(d) of the TAA confers power on the Court on an appeal to ‘make any further order as to costs or otherwise as it thinks just’ (emphasis added). That subsection allows the Court to fashion any relief appropriate to the circumstances of the case. Despite being given an opportunity to do so, Marmota was not able to articulate how there was any meaningful curtailment of the Supreme Court’s power to grant relief for jurisdictional error on an appeal under s 100, when compared with the relief that would be available on an application for judicial review. None is apparent.

4. Marmota also briefly referred, in this regard, to the time limit for bringing an appeal under Part 10 but did not develop the submission. Pursuant to s 94(1) of the TAA, the time for bringing an appeal is 60 days after the date of service of notice of the determination of the objection. However, pursuant to s 94(2), if 90 days have passed without determination of the objection, a person may appeal at any time. In any event, pursuant to s 95 of the TAA, the Court has a discretion to allow a person to appeal after the end of the 60-day period up to 12 months from the date of service of the determination of the objection. This is not a case where a time limit subverts the purpose of the remedies.[31]

   [31]   Compare Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651 at [57]-[59].

5. Marmota did not issue notices under s 78B of the Judiciary Act1903 (Cth). The Court has given consideration as to whether it should not proceed until notices are issued. However, insofar as Marmota’s challenge to s 100 involves a purported issue arising under the Constitution, we consider that the issue does not properly arise. First, Marmota neither appealed under Part 10 nor applied for judicial review. It has not tested the limits of s 100 beyond its claim that s 100 should not be able to prevent it from mounting a collateral attack in debt recovery proceedings. This appeal does not concern any application for judicial review (in defence of which the Commissioner might plead s 100) or, more obviously, an appeal under Part 10, which s 100 not only does not prevent but rather, on its face, requires.

6. Second, and relatedly, for the reasons discussed above, Marmota’s contention that s 100 is an invalid privative clause is untenable as a matter of ordinary construction.

7. This is a case where the observations of French J in Australian Competition & Consumer Commission v C G Berbatis Holdings Pty Ltd are apposite:[32]

   [32] (1999) 95 FCR 292 at [13]-[14].

   The rigidity of the duty imposed on the Court by s 78B has been the subject of some criticism - Capelvenere v Omega Development Corporation Pty Ltd (1983) 5 ATPR 40‑386 at 44,546. Concern was there expressed about the possibility that constitutional points could be raised which were patently without substance. It was suggested that even a point recently decided by the High Court in indistinguishable circumstances could be raised again and again. That speculation was at odds with the observation of Hunt J in Green v Jones at 435, that s 78B was not intended “to permit never ending challenges to matters which have already been determined by the High Court particularly recently by that Court”. By extrapolation from judicial construction of like language in s 40 of the Judiciary Act, relating to removal of causes, a matter should “really and substantially arise under the Constitution” before it attracts the operation of s 78B - Public Service Association of New South Wales, Re Application by; Re Industrial Union of Employees (Commissioned Police Officers) Award (1947) 75 CLR 430 at 433 per Williams J. These cases and the general principles surrounding the application of s 78B were discussed by Burchett J in Amrit Lal Narain v Parnell (1986) 9 FCR 479 at 486-489. His Honour said, at 489, and I respectfully agree:

   “Section 78B only operates when the circumstances it postulates are made to appear to the court: it does not operate simply because a party asserts those circumstances. It is clear, from the reference to the possibility of intervention or removal of the cause to the High Court upon the initiative of an Attorney-General, that what the section contemplates is a constitutional question which is a live issue in the proceedings.”

   His Honour was there dealing with an application for judicial review from a Magistrate’s decision to refuse bail to a person the subject of an extradition warrant pending the hearing of the extradition proceedings. A purported constitutional point having been raised, Burchett J said:

   “On the basis that the constitutional point depends entirely upon an erroneous construction of the Extradition (Commonwealth Countries) Act 1966 (Cth), the cause pending in this Court does not “really and substantially” (to use the language of Williams J in the passage cited above) involve a matter arising under the Constitution or involving its interpretation.”

   Section 78B does not impose on the Court a duty not to proceed pending the issue of a notice no matter how trivial, unarguable or concluded the constitutional point may be. If the asserted constitutional point is frivolous or vexatious or raised as an abuse of process, it will not attach to the matter in which it is raised the character of a matter arising under the Constitution or involving its interpretation - Nikolic v MGIC Ltd [1999] FCA 849:cf Australian Securities and Investments Commission v White (unreported, Federal Court, Drummond J, No QG 40 of 1998, 16 July 1998).

8. Marmota has not mounted a tenable argument that s 100 of the TAA is an invalid privative clause. Its contention fails as a matter of ordinary construction of the TAA. Neither has it commenced proceedings that were manifestly available to it to challenge the assessments, within which the validity of s 100 might properly (if nonetheless untenably) be raised. Ground 6 of the appeal must be dismissed.

   The availability of collateral attack

9. Resolution of the two matters of construction addressed above contributes significantly to the determination of whether Marmota was permitted to challenge the validity of the assessments by way of collateral challenge in the debt recovery proceedings. The primary judge held that if s 100 was valid, there would be no reasonable basis for Marmota’s defence of these proceedings.[33] We have held that Marmota has not raised a tenable basis for impugning the validity of s 100. We have also held that Marmota would have been able to raise its pleaded challenges to the validity of assessments in an appeal under Part 10, had Marmota chosen to appeal.

   [33] [2023] SASC 134 at [86].

10. The remainder of Marmota’s argument in support of the proposition that collateral attack remained available was premised on an alternative position to its contention that s 100 was invalid, that is, that judicial review remained available notwithstanding the terms of s 100. It submitted that in that event, collateral attack ‘should be allowed’ and it should not be required to proceed by way of judicial review.

11. To be fair to Marmota, the Commissioner hedged on whether judicial review remained available. Assuming, without deciding, that s 100 does not exclude proceedings by way of judicial review, we are then driven to the considerations relevant to when a Court will permit collateral challenge to the validity of executive decisions in proceedings such as the present. It is not necessary to broach this subject in any great depth. Both parties referred to the indicative factors that Besanko J identified from a review of the academic literature, in Jacobs v Onesteel Manufacturing Pty Ltd:[34]

    1.Are the grounds of challenge likely to involve the adducing of substantial evidence?

    2.If a collateral challenge is permitted, will all proper parties be heard before the court or tribunal in which the collateral challenge is to be heard?

    3.In the particular case, does the allowing of a collateral challenge by-pass the protective mechanisms associated with judicial review proceedings such as the rules as to standing, delay and other discretionary considerations?

    4.Is there a statutory provision that bears in one way or another on the question of whether a collateral challenge should be permitted?

    5.Is the issue raised by the collateral challenge clearly answered by authority?

    6.Are there other cases pending which raise the same issue?

    7.(Possibly) Is there a more appropriate forum in terms of expertise and perhaps court procedures such that a collateral challenge should not be permitted?

    [34] (2006) 93 SASR 568 at [93] (Besanko J; Duggan, Vanstone and Layton JJ agreeing).

12. As to Point 1, it would certainly be necessary to adduce some evidence on Marmota’s challenges. As to Point 2, there would be no issue with the proper parties being heard. Points 3 and 4, however, raise a substantial barrier to the availability of collateral challenge in this case. As to Point 4, s 100, on its terms, prohibits such a challenge. Marmota’s (alternative) assumption, for present purposes, that s 100 can be read down so as to not prohibit applications for judicial review, does not automatically mean that the section would also permit a collateral challenge. Whatever the merits of the assumption, the words of s 100 stand flatly against it being extended to reading down the words ‘any proceedings’ in s 100 so as not to include debt recovery proceedings.

13. When Point 3 is taken into account, there is further reason to conclude that s 100 cannot be so read down. The purpose of s 100 is to channel all challenges into Part 10 appeals. Those appeals are subject to specific procedures and are to be heard by the Supreme Court. As already noted, the scheme of the Part is such that pursuant to s 91, the tax may be recovered (which must include by way of proceedings, if necessary) notwithstanding that an objection is pending. That is to say, the availability of collateral challenge in debt recovery proceedings would entirely undermine the scheme of Part 10, which provides different avenues for recovery on the one hand, and challenges to assessments on the other.

14. Points 5, 6 and 7 add little, if anything, to the analysis. However, the observations already made are sufficient to conclude that even if judicial review were not excluded in favour of only being able to proceed under Part 10, nothing about that state of affairs would support a conclusion that the section did not prohibit collateral attack in recovery proceedings. The prohibition in s 100 manifestly extends to recovery proceedings. That is consistent with the broader operation of Part 10.

15. It follows that it was not open to Marmota to make a collateral challenge to the validity of the assessments in the debt recovery proceedings.

    Summary judgment

16. The Commissioner sought summary judgment under UCR 143.1(2) and alternatively UCR 144(2)(1)(a), on the basis that no reasonable defence to the claim was capable of being disclosed or that there was no reasonable basis for defending the claim. The primary judge referred to and applied the exposition of the appropriate approach to an application for summary judgment given by Doyle JA in Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd:[35]

    By way of summary of the approach articulated in Spencer v Commonwealth, it can be said that the power to determine a claim summarily should not be exercised lightly. Exercise of the power requires a practical assessment of whether the applicant has real, as opposed to merely fanciful, prospects of success. While the Court need not be satisfied that the claim is hopeless or bound to fail, nevertheless it must be cautious not to do a party injustice by summarily determining an action, particularly where there are disputed issues of fact or law or mixed fact and law, merely because the Court considers that the claim is unlikely to succeed. However, beyond these very general guidelines, the Court should focus upon the words used in the rules and avoid applying any judicial gloss.

    Related to the requirement that the Court undertake a “practical” assessment is the notion that the Court should not embark upon a “mini trial” of the claim. Rather, the claim should be assessed in a summary manner, while being cognisant of the incomplete nature of the evidence upon which the Court’s decision must be based. Adversarial argument may assist, and indeed may result in the emergence of a sufficiently clear answer to a complex issue that summary judgment is appropriate. On the other hand, the need for prolonged argument may be indicative of a reasonable basis for the claim.

    (Footnotes omitted)

    [35] (2020) 137 SASR 117 at [59]-[60].

17. The judge proceeded on the basis, correctly, that the test requires a practical consideration of whether there is a reasonable or real prospect of defending the action successfully.[36]

    [36] [2023] SASC 134 at [66].

18. We have found that it had been open for Marmota to challenge the assessments by way of proceedings under Part 10, that Marmota had failed to establish that s 100 was an invalid privative clause and that it was not open to Marmota to make a collateral attack on the validity of the assessments in the debt recovery proceeding. Those findings warrant the conclusion that Marmota had no reasonable or real prospect of defending the debt recovery proceeding successfully. Subject to the question of whether the primary judge erred in refusing to order a permanent stay of the proceeding on Marmota’s interlocutory application, the judge did not err in ordering summary judgment in favour of the Commissioner.

19. We turn to Marmota’s application for a permanent stay of the proceeding.

    Principles governing an application for a permanent stay

20. It is well understood that the jurisdiction to grant a permanent stay of proceedings exists to prevent the courts from becoming instruments of unfairness. In Walton v Gardiner, the plurality said:[37]

    The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. Again, proceedings within the jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them. Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.

    (Footnotes omitted)

    [37]   Walton v Gardiner (1993) 177 CLR 378 at 392-393.

21. It is insufficient, however, that prejudice or unfairness might be suffered because of, for example, delay.[38] Public confidence in the courts demands the exercise of jurisdiction where disputes are properly raised, in the absence of anything less than a conclusion that the Court would, in the event of continuance, become the instrument of unfairness. In GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (‘GLJ’),[39] the High Court emphasised the constraints placed on a judge by the adversarial system, where making and responding to a claim is the province of the parties, not the judge. The doctrine of abuse of process, understood in that context, is concerned with maintaining a fair trial that does not involve undue unfairness or oppression and thus ‘protects the integrity of the adversarial system of justice and the maintenance of the rule of law’.[40]

    [38]   Jago v District Court (NSW) (1989) 168 CLR 23 at 50.

    [39] (2023) 97 ALJR 857.

    [40]   GLJ (2023) 97 ALJR 857 at [20].

22. This then has consequences for the onus on the party alleging abuse of process:[41]

    Neither necessary unfairness nor such unfairness or oppression as to constitute an abuse of process justifying a permanent stay of proceedings depends on a mere risk that a trial might be unfair. The party seeking the permanent stay bears the onus of proving that the trial will be unfair or will involve such unfairness or oppression as to constitute an abuse of process. While the onus is the civil standard of the balance of probabilities, the onus has rightly been described as a heavy one, and the power rightly said to be exercisable only in an exceptional case. This is because it is always an extreme step to deny a person the opportunity of recourse to a court to have their case heard and decided.

    (Footnotes omitted)

    [41]   GLJ (2023) 97 ALJR 857 at [21].

23. A person who invokes the jurisdiction of a court has, on the face of it, a right to its exercise. The power to grant a permanent stay, that is, to refuse the exercise of jurisdiction, must be an exceptional power as it operates in exception to the ordinary function of the rule of law that requires cases to be heard and decided.[42]

    [42]   GLJ (2023) 97 ALJR 857 at [21]; Jago v District Court (NSW) (1989) 168 CLR 23 at 76 (Gaudron J).

24. Marmota contended that the primary judge erred in ordering a permanent stay on a number of grounds. To the extent that those grounds relied on the contention that it was not open for it to pursue its complaints by way of appeal under Part 10, We have found against Marmota. It is necessary now to turn to the other grounds raised.

    Delay by the Commissioner

25. The primary judge rehearsed the delays on the part of the Commissioner, which are set out earlier in these reasons. She accepted that Marmota’s complaints about the delays were justified. However, she held that Marmota had failed to articulate clearly the effect of the delay upon the fairness of the proceedings.[43] She observed Marmota was provided with written notice of the determination of the Objection by 23 August 2019 at the latest. She accepted that the Commissioner did not issue proceedings expeditiously, with an unexplained delay of nearly two years from August 2019 until June 2021. She rejected Marmota’s contention that this delay was entirely the fault of the Commissioner.[44] In this regard, she explained:[45]

    Marmota did not exercise its right of appeal to the Supreme Court under s 92(b) of the TAA notwithstanding the Minister did not determine the Objection within 90 days of the lodgement of Marmota’s Objection. Having become aware of the Minister’s decision at the latest on or about 23 August 2019, Marmota did not exercise its right of appeal under s 92(a). Marmota could have proceeded to ventilate issues concerning the validity of the Partnership and Marmota Assessments under Part 10 of the TAA at any time within 60 days after it became aware of the notice or, with leave of the Court, within 12 months of the date it became aware of the notice.  Likewise, Marmota has arguably had available to it the option to pursue judicial review proceedings and it has chosen not to do so.  Instead, Marmota entered into correspondence with the Commissioner, sat back and took no further action notwithstanding the relevant time limits.  It is not clear whether this was due to inadvertence or a forensic decision.  Regardless, Marmota did not do so and now seeks to raise these collateral issues relating to validity of the assessments as part of its defence of these proceedings.  I have found that this is not permissible.

    [43] [2023] SASC 134 at [95].

    [44] [2023] SASC 134 at [98].

    [45] [2023] SASC 134 at [99].

1. Marmota’s complaint of error in this regard depends in part on matters that we have addressed above. It maintained that it was not entitled to pursue an appeal under Part 10. We have rejected that submission. As to the possibility of judicial review proceedings which, on the logic of its own (alternative) position about Part 10 proceedings would necessarily have been available, Marmota submitted:

   In respect of the judicial review proceedings, rather than bringing such proceedings, Marmota says it was entitled to rely on being able to use a collateral attack.

2. For the reasons given above, we reject that submission. Marmota has given no good reason why it sat back and allowed time to run. The judge’s assessment that the delay was also Marmota’s responsibility was quite correct.

3. Marmota also relied on the effect of the delay on its ability to meet the claim. Dr Rose commenced as chairman of Marmota on 1 May 2015. The assessments related to periods up to 1 July 2015. Dr Rose is the only person still associated with the company who was employed during any part of the periods the subject of assessment. He had no interaction with the previous chairman, Robert Kennedy, who died in 2018. The history relevant to the grouping of Marmota, Monax and the Groundhog Services Partnership occurred long before his association with Marmota. Marmota complained that the Commissioner’s delays ‘from 2011 to 2023’ in issuing the assessments, considering the objections and taking further action have irrevocably prejudiced Marmota.

4. As the respondent submitted however, Marmota’s submissions did not extend to explaining how these matters prejudiced Marmota’s defence in the context of the permissible limits of the recovery proceedings, that is, where Marmota is not permitted to raise its asserted defences by way of collateral attack. The same may be said of Marmota’s complaints about discovery and other aspects of the Commissioner’s conduct. Further, Marmota has not identified evidence held or destroyed by Marmota, the searches Marmota has undertaken or the witnesses to whom it has attempted to speak. When those considerations are placed next to Marmota’s failure to take any action once notified of the determination of the Objections in August 2019, its complaint of delay rings hollow.

   Whether the second interlocutory application constituted an abuse of process

5. The Commissioner’s application for summary judgment in this Court was, in substance, to the same effect as the application in the District Court that the master refused. The master’s reasons for refusing that application are set out above. The following observations about those reasons are not intended to be critical.

6. First, the master dismissed the Interlocutory Application on the basis that the arguments of Marmota in defence should go to trial, based on all the evidence. Having said that, the master did not engage with the arguments themselves or with the effect or validity of s 100 of the TAA. Indeed, he expressly considered that this Court should address the validity of that section.

7. As discussed above, the asserted invalidity of that section was a critical gateway to the acceptance of many of Marmota’s arguments in resistance to the summary judgment and strike-out applications. Thus, while the master accepted that Marmota had arguments available to it, that acceptance was at least in part conditional on this Court’s treatment of Marmota’s argument about the validity and effect of s 100.

8. Further, the master also considered that the Commissioner’s strike-out argument should be pursued in the Supreme Court, notwithstanding his dismissal of the Interlocutory Application seeking that relief.

9. The primary judge held that the application for summary judgment in the Supreme Court did not, as the second such application, constitute an abuse of process. She explained:[46]

   Auxiliary Master Roder transferred the proceedings to the Supreme Court and invited the parties to consider reagitating interlocutory applications where the validity of the legislative provisions and their operation could be properly considered. The Commissioner says that in those circumstances there was little utility in appealing Auxiliary Master Roder’s orders and that the preferable course was the course that has been taken by bringing this application. 

   In my view, it is not an abuse of process for the Court to hear and determine the application for summary judgment. The application has not been brought for an illegitimate purpose nor is it likely to bring the administration of justice into disrepute. Further, the application is not unjustifiably oppressive to Marmota. Auxiliary Master Roder did not evaluate the merits of the defence, nor did he evaluate the merits of Marmota’s argument in respect of the validity of s 100 of the TAA.  He did not rule upon the substance of the dispute. 

   [46] [2023] SASC 134 at [58]-[59].

10. A second interlocutory application to the same effect as an earlier, unsuccessful one can amount to an abuse of process. However, in Development Assessment Commission v Macag Holdings Pty Ltd,[47] Doyle CJ discussed the absence of an issue estoppel preventing an unsuccessful interlocutory application from being repeated and observed:[48]

    There is an obvious tension between the conclusion that repeated applications can be made, and recognition of the fact that in certain situations the making of a second or later application will amount to an abuse of process.

    [47] (2001) 80 SASR 104.

    [48]   Development Assessment Commission v Macag Holdings Pty Ltd (2001) 80 SASR 104 at [57].

11. Resolution of that tension in any given case must now be understood to be a question of what is required to maintain a trial that is fair and does not involve undue unfairness or oppression and thus ‘protects the integrity of the adversarial system of justice and the maintenance of the rule of law’.[49]

    [49]   GLJ (2023) 97 ALJR 857 at [20].

12. Viewed from that understanding, the master’s refusal of the application for summary judgment and referral of the matter to this Court cannot be divorced from his expressed view that the question of the validity of s 100 was best dealt with by this Court. That question was essential to the prospects of success of the Commissioner’s summary judgment application. Moreover, the master invited the Commissioner to renew the strike-out application, at least, in this Court. That application rested on the same grounds as the summary judgment application.

13. In those circumstances, it could not be said to be an abuse of process for the Commissioner to have pursued the strike-out application, at least, in this Court. Positing the success of that application on account of s 100 of the TAA, it would then be for Marmota to re-plead its Defence. On any further pleading, it would be open to the Commissioner to apply for summary judgment, again on the basis that s 100 prohibited the asserting of those defences (whatever they were) in a debt recovery action.

14. The point is that the master’s refusal of the Commissioner’s application for summary judgment was hedged by his view that this Court should determine the challenge to the validity of s 100. This was not a repeat of an application where there had been no change in circumstances. To the contrary, the second application was made in this Court, the master having considered this Court to be the appropriate forum. The master’s statement that the matter should proceed to trial must be read in that context. It was open to the Commissioner to maintain, in this Court, that s 100 prevented Marmota from asserting its various defences. It was further open for the Commissioner to press for summary judgment on that basis. The master had not decided that question. Pursing the application in this Court, on that basis, involved no compromise to the integrity of the adversarial system of justice or the maintenance of the rule of law.[50]

    [50]   GLJ (2023) 97 ALJR 857 at [20].

15. In those circumstances, the second application for summary judgment did not constitute an abuse of process.

    Balancing interests

16. In determining the application for a permanent stay, the primary judge articulated the approach to be taken as follows:[51]

    Consideration of this application requires a balance to be struck between the interests of the community in relation to the collection of taxes and those of the individual company in receiving a fair trial.  The onus of establishing that a permanent stay ought to be granted rests with Marmota.  Marmota must demonstrate that the matters it complains of are sufficient to amount to an abuse of process warranting a permanent stay of these proceedings.

    [51] [2023] SASC 134 at [54].

17. Marmota complained that by referring to a ‘balance to be struck’, the judge applied the wrong test in assessing the application for a permanent stay.

18. The judge’s language reflected the language of Mason CJ in Jago v District Court (NSW).[52] However, in GLJ,[53] which was handed down after her Honour’s judgment, the plurality explained, following the passages discussed above, that whether proceedings should be stayed for abuse of process should not be viewed through the prism of balancing interests:[54]

    Moreover, although it has been said that the question whether a permanent stay should be granted on abuse of process grounds “falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations”[55], the ultimate question is not “whether the unfairness to a moving party by reason of a stay outweighs the unfairness to a defending party by reason of the continuation of the proceedings”.[56] It is difficult to conceive of a case in which a mere balancing of competing interests between the parties could justify a permanent stay of proceedings. The metaphor of a “balancing exercise” is best avoided.[57] It cannot be applied to the concept of either the incapacity for a fair trial to be held, or a trial involving such unfairness or oppression as to constitute an abuse of process. It also tends to distract attention from the real issue – the congruence or otherwise of the holding of a trial and rendering of a verdict with the fundamental norms underlying our legal system – and impermissibly refocuses attention on considerations personal to the parties. Considerations personal to the parties are relevant only to the extent that they expose circumstances of the congruence or incongruence in the particular case of the holding of a trial and rendering of a verdict.

    (Footnotes in original)

    [52] (1989) 168 CLR 23 at 33.

    [53] (2023) 97 ALJR 857.

    [54]   GLJ (2023) 97 ALJR 857 at [22].

    [55] Walton v Gardiner (1993) 177 CLR 378 at 395-396; 67 ALJR 485. See also Rogers v The Queen (1994) 181 CLR 251 at 256; 68 ALJR 688; Strickland (a pseudonym) vDirector of Public Prosecutions (Cth) (2018) 266 CLR 325 at [164]; 93 ALJR 1.

    [56]   Contrary to Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218 at [205]. Also contrary to RC v The Salvation Army (Western Australia) Property Trust [2023] WASCA 29 at [34].

    [57]   The metaphor is used, for example, in Warren v Attorney General for Jersey [2012] 1 AC 22 at [21]‑[26] in a context where it is clear the “balance” means only a determination of the need to protect the integrity of the criminal justice system in all of the circumstances of the case.

19. The Commissioner did not contest that, following the High Court’s exposition of the correct approach to charges of abuse of process, that the metaphor of ‘balancing interests’ should be avoided. However, as the Commissioner further pointed out, the basis of the application for summary judgment did not actually call for the balancing of interests. Indeed, the judge ultimately did not, in determining the application for a stay, engage in such an exercise.

20. For the reasons discussed above, the judge correctly concluded that it was not an abuse of process, in the circumstances, for the Commissioner to have brought a second application. She also correctly concluded that the Commissioner’s conduct and the delay did not warrant a permanent stay.

21. The judge manifestly made an evaluative judgment of these factors raised by Marmota in support of the application for a stay. Her (correct) determination on the summary judgment application, that s 100 operated on the debt recovery proceedings to prevent Marmota from raising its defences of invalidity of the assessments, was fundamental to her decision. For the reasons given above, her consequent refusal to grant a permanent stay was the correct decision. The judge’s reference to the need to strike a balance of interests does not then appear to have meaningfully informed her ultimate decision, which turned primarily on a question of statutory construction. This ground of complaint fails.

    Conclusion

22. There was some discussion about whether Marmota required leave to appeal, given the nature of the judgment from which the appeal was brought. The Commissioner contended that leave was not required, on the basis that summary judgment upholding an applicant’s claim has effect as a final judgment,[58] and in any event did not oppose a grant of leave to the extent that it was necessary. It is not necessary in those circumstances to address Marmota’s concerns with the question of leave. We grant leave to appeal insofar as is required. For the reasons given above, however, we dismiss the appeal.

    [58]   See, e.g., King Investment Solutions v Hussain [2005] NSWSC 1076 at [25]-[26] (Campbell J); TFM Epping Land Pty Ltd v Decon Australia Pty Ltd [2020] NSWCA 93 at [7] (Basten JA, Meagher JA agreeing).