Southside Autos (1981) Pty Ltd v Commissioner of State Revenue - [2008] WASCA 208

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: SOUTHSIDE AUTOS (1981) PTY LTD -v- COMMISSIONER OF STATE REVENUE [2008] WASCA 208

CORAM: McLURE JA
BUSS JA
NEWNES AJA

HEARD: 2 APRIL 2008

DELIVERED : 10 OCTOBER 2008

FILE NO/S: CACV 149 of 2006

BETWEEN: SOUTHSIDE AUTOS (1981) PTY LTD
Appellant
AND
COMMISSIONER OF STATE REVENUE
Respondent

ON APPEAL FROM:
Jurisdiction              :  STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram  :JUDGE ECKERT (DEPUTY PRESIDENT)
File No  :DR 30 of 2006

Catchwords:

Taxation - Appeal from State Administrative Tribunal - Whether appeal out of time - Written transcript of proceedings of a decision given orally satisfies requirement that reasons be in writing - Whether court may extend time within which to appeal - State Administrative Tribunal Act 2004 (WA) and Taxation Administration Act 2003 (WA) are part of an overlapping legislative scheme and should be construed accordingly - Sections 92 and 105 of the State Administrative Tribunal Act to be read with s 43A of the Taxation Administration Act - Court has power to grant extension of time to appeal

Taxation - Stamp duty - Issuing of motor vehicle licences - Whether assessment of stamp duty was made by licensing authority - Assessment requires the making of a decision or determination by the licensing authority - Where the appellant as an agent of the licensing authority registered and licensed vehicles in its capacity as agent, and appellant had been granted an exemption from stamp duty under s 76C(6) of the Stamp Act 1921 (WA) for demonstration vehicles - Whether in issuing licenses the appellant made a decision or determination as to whether stamp duty was payable - Whether licensing authority performed merely administrative functions

Taxation - Stamp duty - Whether assessments made under Stamp Act prior to the enactment of the Stamp Amendment Act 2003 (WA) are self-assessments or official assessments for the purpose of the Taxation Administration Act - Where licensing authority had previously determined that no duty was payable, the determination was an official assessment - Whether the Commissioner had power to issue reassessments under s 16 of the Taxation Administration Act - Whether s 35 of the Taxation Administration (Consequential Provisions) Act 2002 (WA) precluded or restricted the Commissioner’s power to make a reassessment - Whether regard may be had to subsequent events for the purpose of discovering the appellant's purpose at the time when a motor vehicle licence was issued

Legislation:

Road Traffic Act 1974 (WA) s 15, s 18, s 24, s 76
Stamp Act 1921 (WA) s 16, s 31, s 31AA, s 31A, s 32, s 33, s 34A, s 76B, s 76C, 76I, Second Schedule item 14
State Administrative Tribunal Act 2004 (WA) s 18, s 74, s 78, s 92, s 94, s 105
State Administrative Tribunal Rules 2004 (WA) r 10
Taxation Administration Act 2003 (WA) s 3, s 13, s 14, s 15, s 16, s 17, s 43A, Pt 4 div 3 (ss 40, 41, 42, 43, 44)
Taxation Administration (Consequential Provisions) Act 2002 (WA) s 33, s 34, s 35

Result:

Application for an extension of time to appeal granted
Application to strike out appeal dismissed
Appeal allowed in part

Category: A

Representation:

Counsel:

Appellant: Mr D R Williams QC
Respondent: Mr A J Sefton

Solicitors:

Appellant: Ernst & Young Law
Respondent: State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Carltona Ltd v Commissioners of Works [1943] 2 All ER 560
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719
DKLR Holding Co (No 2) Pty Ltd v The Commissioner of Stamp Duties (NSW) (1982) 149 CLR 431
In Re the Judiciary Act 1903 ‑ 1920 and In Re the Navigation Act 1912 ‑ 1920 (1921) 29 CLR 257
Le Blanc v Queensland TAB Ltd [2002] QSC 323; [2003] 2 Qd R 65
Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24
Newcastle City Council v GIO General Ltd (1997) 191 CLR 85
R v Wheeldon (1978) 18 ALR 619
Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391
Sweeney v Fitzhardinge (1906) 4 CLR 716
Venture Management Ltd v Commissioner of State Taxation (1991) 4 WAR 283

McLURE JA: I have had the advantage of reading the reasons for judgment of Buss JA. I agree with him for the reasons he gives that the appellant requires an extension of time within which to appeal, that this court has power to extend time and that an extension of time should be granted. I also agree with Buss JA that grounds of appeal 3 and 4 should be dismissed for the reasons he gives. However, I propose to state my own reasons in relation to grounds of appeal 1 and 2. I agree with Buss JA that ground 1 should be upheld but have reached a different conclusion on ground 2 which I would dismiss.
The facts, grounds of appeal and relevant statutory provisions are set out in the reasons of Buss JA and not repeated here unless required for an understanding of these reasons.
The appellant challenges the validity of assessments of stamp duty made by the respondent in 2005 (the 2005 assessments). The alleged liability to pay stamp duty arose in relation to the issue of motor vehicle licences prior to 1 July 2003. Prior to the issue of the motor vehicle licences the appellant claimed exemption from stamp duty under pt IIIC of the Stamp Act 1921 (WA) as it was prior to 1 July 2003.
It assists to have an understanding of the general statutory background and the issues in dispute. The Stamp Amendment Act 2003 (WA) (2003 Amendment Act), which came into effect on 1 July 2003, deleted the majority of the administrative provisions of the Stamp Act. The Stamp Act as it was immediately prior to the commencement of the 2003 Amendment Act will be referred to as the 'old Stamp Act'. The administrative provisions relating to the Stamp Act and other specified taxation statutes are now in the Taxation Administration Act 2003 (WA) (TAA) which also commenced on 1 July 2003. The relevant transitional provisions consequent upon the commencement of the 2003 Amendment Act and the TAA are contained in the Taxation Administration (Consequential Provisions) Act 2002 (WA) (CPA).
Part 3 of the TAA deals with assessments. It defines the term 'assessment' (s 13) and provides for three categories of assessment, being self assessment by either the tax payer or a responsible authority (s 14), an official assessment, being an assessment made by the Commissioner of State Revenue (Commissioner) (s 15) and a reassessment by the Commissioner (s 16). Reassessment is defined in the glossary to the TAA as not including an 'original assessment'. An original assessment means a self assessment or the first official assessment made in relation to the tax if no self assessment was made, but does not include a reassessment.
The liability of the appellant to stamp duty relating to the issue of motor vehicle licences arose under the old Stamp Act as the liability was incurred prior to 1 July 2003. Accordingly, the transitional provisions in the CPA apply. Sections 34 and 35 of that Act are central to the appeal and it is convenient to set out the relevant parts.
34.General transitional arrangements
(1)Section 37(1) of the Interpretation Act 1984, except paragraphs (a) and (b), does not apply in relation to the repeal of an old Act.
(2)The repeal of an old Act does not, unless the contrary intention appears ‑
(a)affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable or any status or capacity existing prior to the repeal;
(b)affect any duty, obligation, liability, or burden of proof imposed, created, or incurred prior to the repeal;
…
(3)Subject to subsections (4) and (5) ‑
(a)a right, interest, title, power, privilege, duty, obligation, liability or burden of proof referred to in subsection (2)(a) or (b) may be exercised or enforced;
…
as if the substantive provisions of the relevant old Act ‑
(d)had not been repealed;
(e)were a taxation Act for the purposes of the Taxation Administration Act 2003; and
(f)had been amended to make any modifications necessary for this section to have effect.
(4)If an objection, appeal or other legal proceeding (the 'action') was instituted under an old Act and was not finally determined before the commencement day ‑
(a)the action may be continued;
(b)any requirement to pay interest on an amount of tax determined in the action to have been overpaid applies and may be enforced;
(c)any penalty may be imposed and enforced; and
(d)any decision, order or determination made in the action has effect, and may be enforced,
as if this Act and the taxation Acts had not commenced.
(5)If the time limited by an old Act for doing anything is longer than the time limited by a taxation Act for doing the equivalent thing under that Act, then in relation to a matter to which subsection (3) applies, the time limited under the old Act applies in relation to the doing of the thing under the taxation Act.
(6)If the time limited by an old Act for commencing proceedings in relation to an offence under that Act is shorter than the 5 year period limited by section 111 of the Taxation Administration Act 2003, then despite section 111, proceedings in relation to an offence under the old Act (including an offence under a provision of the old Act that is continued in force under this Part) cannot be commenced after the expiry of the shorter period provided for by the old Act.
(7)In this section a reference, in relation to the Stamp Act 1921, to the repeal of the old Act is a reference to the amendment of the Act by the Stamp Amendment Act 2003.
35.Commissioner not to increase tax liability
Despite Part 3 Division 1 of the Taxation Administration Act 2003, the Commissioner must not make a reassessment that increases the amount of tax a person is liable to pay in relation to anything that happened before the commencement day if the reassessment could not have been made under the relevant old Act.
The appellant contends that the 2005 assessments are reassessments under s 16 of the TAA and are beyond power by virtue of s 35 of the CPA because they increase the amount of tax the appellant is liable to pay and the reassessment could not have been made under the old Stamp Act.
The respondent contends there was no assessment as that term is defined in s 13 of the TAA prior to the 2005 assessments; if there was an assessment, there was no self assessment or official assessment for the purposes of the TAA and thus no reassessment; if there was a reassessment, it could have been made under the old Stamp Act. Thus, the broad issues are:
(1)whether at or around the time of the issue of the motor vehicle licences in question there was an assessment of stamp duty as that term is defined in s 13 of the TAA;
(2)if the answer to question (1) is yes, whether the assessment was a self assessment within either limb of the definition in s 14 of the TAA;
(3)if the answer to question (2) is no, whether the assessment was a first official assessment under s 15 of the TAA;
(4)if the answer to (2) or (3) is yes, the 2005 assessments are reassessments in which event the question is whether the reassessments could have been made under the old Stamp Act.

Grounds 1 and 2

But for s 34 of the CPA, the provisions of the old Stamp Act alone would govern the question whether the Commissioner had the power to issue the 2005 assessments. Both parties accept that by virtue of s 34(3) of the CPA, that issue is to be determined by reference to the provisions of pt 3 of the TAA.
Two issues arise. The first is the proper approach to take when applying the TAA statutory framework to conduct already carried out under the old Stamp Act. In my view the proper approach is to identify the elements of the relevant concept under the TAA and determine whether as a matter of substance those elements are satisfied by the actions taken under the provisions of the old Stamp Act. The approach can be explained by reference to the term 'assessment' under the TAA. An assessment is relevantly defined in s 13 of the TAA as a determination that no tax is payable or that a person is exempt from tax or that an instrument is exempt from tax. The question then is whether such a determination was in substance made under the old Stamp Act.
Applying that approach, I agree with Buss JA for the reasons he gives that at the time of the issue of the motor vehicle licences the subject of the 2005 assessments: (1) a determination was made by the Director General of Transport (Director General), through the agency of the appellant, that the issue was exempt from stamp duty and thus there was an assessment within the meaning of the TAA; (2) in the absence of any necessary modification under s 34(3)(f) of the CPA, that assessment was not a self assessment or a first official assessment with the consequence that the 2005 assessments are not reassessments.
The remaining question is whether there is any necessary modification required under s 34(3)(f) which alters that outcome. That raises the second and more difficult issue concerning the scope of s 34(3) of the CPA.
Part IIIC and (inter alia) s 31 (assessment of duty by Commissioner), s 31AA (reassessments) and s 31A (default assessments) of the old Stamp Act were repealed by the 2003 Amendment Act. However, by s 34(2) of the CPA the repeal does not affect any accrued right or power existing prior to the repeal or any duty, obligation or liability imposed, created or incurred prior to the repeal. However, such a right, power, duty, obligation or liability may be exercised or enforced on the basis set out in s 34(3) of the CPA. That subsection refers to 'substantive provisions of the relevant old Act'. In this context that is a reference to the old Stamp Act.
Under s 34(3) of the CPA a power may be exercised or a liability enforced as if the substantive provisions of the old Stamp Act:
(1)had not been repealed;
(2)were a taxation Act for the purposes of the TAA; and
(3)had been amended to make any modifications necessary for s 34 to have effect.
Buss JA has concluded that the provisions of pt IIIC of the old Stamp Act under which assessments by the Director General, through the agency of the appellant, were made are 'substantive provisions' of the old Stamp Act because those provisions deal with a matter that is not reproduced or otherwise dealt with in the TAA. He further concludes that it is necessary to modify those substantive provisions by inserting a new provision to the effect that assessments made by the Director General under pt IIIC are assessments of the Commissioner. I have come to a contrary conclusion on both questions.
In my view, the provisions of pt IIIC of the old Stamp Act relating to the Director General's assessment powers are not substantive provisions for the purposes of s 34(3) of the CPA. The phrase 'substantive provisions' in relation to the old Stamp Act is defined in s 33 of the CPA to mean 'the provisions of the old [Stamp] Act other than those dealing with matters dealt with in the Taxation Administration Act 2003'.
The term 'matters' is not defined. Having regard to the statutory context it means the subject matters dealt with in the TAA: In Re the Judiciary Act 1903 ‑ 1920 and In Re the Navigation Act 1912 ‑ 1920 (1921) 29 CLR 257, 265. The subject matters dealt with in the TAA include assessments of tax, objections and review proceedings and payment and refund of tax. It is apparent from the language and purpose of s 34(3) that the provisions of the TAA are intended to cover the field to the exclusion of the provisions of the old Stamp Act on the same subjects. It was not the intention that the assessment powers of the Commissioner and the Director General continue as if the old Stamp Act had not been repealed save perhaps in the case of positive inconsistency with the TAA.
Thus, the provisions of the old Stamp Act relating to assessment, which includes those provisions conferring power on persons including the Commissioner and the Director General to make assessments, are not substantive provisions of the old Stamp Act. A liability to pay stamp duty on the issue of motor vehicle licences under s 16 and item 14 of the Second Schedule of the old Stamp Act would be a liability under the substantive provisions of the old Act.
Even if, contrary to my view, the Director General's assessment powers under pt IIIC are substantive provisions, I am not persuaded there is a proper basis to modify the provisions under s 34(3)(f). The phrase 'necessary for [section 34] to have effect' in s 34(3)(f) means necessary in order to have an accrued power under the old Stamp Act or an incurred obligation or liability under the old Stamp Act exercised or enforced respectively under the powers in the TAA.
Neither party raised the question whether there was a relevant preserved obligation or liability under s 34(2) of the CPA if the Director General's determination was in effect final under the old Stamp Act (because the powers in s 31, s 31A or s 31AA did not apply). If the answer is that the obligation or liability is not preserved under s 34(2) then s 34(3) has no application. My preliminary view is that if the Director General's determination is in effect final, there is no preserved liability of the appellant under s 34(2) of the CPA. However, it is unnecessary to decide that question because I agree with Buss JA for the reasons he gives that the Commissioner would have been entitled to issue a default assessment under s 31A of the old Stamp Act. Accordingly, I will proceed on the basis that the appellant's alleged liability is preserved under s 34(2) of the CPA.

It is not necessary in order to enforce the preserved liability under the TAA to modify the substantive provisions of the old Stamp Act to insert a provision to the effect that when the Director General acted under pt IIIC of the old Stamp Act he was acting on behalf of the Commissioner. The absence of such a provision simply means the 2005 assessments are first official assessments and thus not reassessments. This has the consequence that when the TAA is applied under s 34(3)(e) there can be an assessment under s 13 of the TAA that is neither a self assessment nor an official assessment under that Act. Such an outcome is not in my view inconsistent with the proper construction of the TAA. The term 'assessment' in s 13 is simply an element of the broader concepts of self assessment and official assessment and reassessment is defined by reference to those broader concepts. I see nothing in the language or purpose of the TAA requiring a conclusion that an assessment must be either a self assessment or an official assessment. Moreover, a default assessment under s 31A of the old Stamp Act was separate and distinct from the reassessment power in s 31AA. In this case s 34 of the CPA can be given effect to without modifying the substantive provisions of the old Act.
For these reasons I am satisfied that the Deputy President wrongly concluded that no assessments were made under pt IIIC of the old Stamp Act but correctly concluded that the 2005 assessments were not reassessments under the TAA. I would uphold ground of appeal 1 but otherwise dismiss the appeal. I would uphold ground 1 of the notice of contention. In view of my conclusions in the appeal it is unnecessary to address ground 2 of the notice of contention.
BUSS JA: On 28 January 2005, the respondent (the Commissioner) made various stamp duty assessments (the 2005 assessments) referred to in a written notice of assessment of stamp duty (the Assessment Notice), purportedly pursuant to s 15 of the Taxation Administration Act 2003 (WA) (the TAA).

The Assessment Notice relates to licences for new motor vehicles issued to the appellant between 1 July 1998 and 30 June 2003. The amount of the Assessment Notice was $718,770.90, comprising duty of $552,901.90 and a fine of $165,869.
On 25 February 2005, the appellant objected to the Assessment Notice, and on 1 December 2005, the Commissioner disallowed the objection.

On 20 January 2006, the appellant applied to the State Administrative Tribunal (the Tribunal) for a review of the Commissioner's decision to disallow the objection.
On 17 July 2006, there was a hearing before a Deputy President, Judge Eckert, to determine two preliminary issues, namely:
(a)Did the Commissioner have power to make the 2005 assessments under any and, if so, what provisions of the TAA, the Stamp Act 1921 (WA) (the Stamp Act) or the Taxation Administration (Consequential Provisions) Act 2002 (WA) (the Consequential Provisions Act)?
(b)If the Commissioner had power to make the 2005 assessments, was the Commissioner, when determining whether to make each of those assessments, able to take into consideration the circumstances, matters and events that occurred or existed after the date of grant of a licence and, in particular, the use of the vehicle after that date?
At the conclusion of the hearing, Judge Eckert reserved her decision.
On 19 July 2006, Judge Eckert orally delivered her decision and reasons for decision.
On 10 November 2006, Judge Eckert made written orders, as follows:
(a)the Commissioner had, pursuant to s 15(2) of the TAA, the power to make the 2005 assessments; and
(b)the Commissioner, when determining whether to make each of the 2005 assessments, and when considering the objection to the Assessment Notice, was entitled to take into consideration the circumstances, matters and events that occurred or existed after the date of grant of a licence and, in particular, the use of the vehicle after that date.

Background facts and circumstances

Since 1981 the appellant has carried on business under the name 'Southside Mitsubishi' from premises at 1261 Albany Highway, Cannington.
At all material times, the appellant has been a licensed motor vehicle dealer under s 15 of the Motor Vehicle Dealers Act 1973 (WA).
By letter dated 3 June 1997, Arthur Andersen, on behalf of the appellant, wrote to the Commissioner seeking confirmation of the availability of a stamp duty exemption under s 76C(6) of the Stamp Act on the issue of motor vehicle licences for vehicles used in an arrangement which became known as the 'Drive‑A‑While Program'. The letter outlined the proposed arrangement, as follows:
[The appellant] is currently considering a variation to its current method of demonstrating new motor vehicles and the subsequent disposal of new motor vehicles which it acquires from Mitsubishi. The proposal is as follows:
•[The appellant] will acquire new motor vehicles from Mitsubishi as it would normally do for resale.
•[The appellant] proposes to make some cars available to prospective buyers for hire for a maximum period of three months.
•Either during the three months period or at the end of the three months the hirer of the motor vehicle can acquire that car for a predetermined market value price.
•If the hirer of the vehicle does not proceed with the acquisition the vehicle will become part of the trading stock of [the appellant] and the vehicle will be sold as a demonstration vehicle.
•The vehicle once it has been hired for a period will not be rehired to the public, it will automatically be reinstated as trading stock of [the appellant].
By letter dated 24 June 1997, the Commissioner wrote to Arthur Andersen in relation the Drive‑A‑While Program and confirmed the circumstances in which the exemption under s 76C(6) would apply. In the letter the Commissioner said, relevantly:
It is confirmed that the exemption contained in s 76C(6) of the Stamp Act would apply to the issue of the initial licence for a motor vehicle in the circumstances where in the course of endeavouring to sell it, it is hired to a prospective purchaser for a period of up to three months.
Between 24 June 1997 and 30 June 2003 the appellant licensed 1026 new motor vehicles in its name for use in the Drive‑A‑While Program. It claimed exemptions from duty under s 76C(6) for each of these vehicles.
Before 24 June 1997, the appellant had licensed some new motor vehicles for use in the Drive‑A‑While Program. By letter dated 15 July 1997, Arthur Andersen, on behalf of the appellant, applied to the Commissioner for a refund of duty previously paid on these vehicles. The Commissioner accepted the appellant's claim for a refund. On 28 November 1997, the Commissioner refunded $67,356 to the appellant for duty paid on vehicles claimed by the appellant to have been previously licensed in its own name and used in the Drive‑A‑While Program before the Commissioner's letter dated 24 June 1997.
After a stamp duty audit of the appellant in 1999 and pay‑roll tax and rental business duty audits in 2002, a further audit was carried out. Following the completion of this audit, the Commissioner made the 2005 assessments and issued the Assessment Notice.
The Assessment Notice relates to 673 of the 927 vehicles that were acquired and licensed in the name of the appellant for use in the Drive‑A‑While Program between 1 July 1998 and 30 June 2003.

The 'Dealer Network Registration Scheme'

The appellant licensed the new motor vehicles in its name, for use in the Drive‑A‑While Program, in the following manner:
(a)a scheme known as the 'Dealer Network Registration Scheme' allowed the appellant, as a participant in the scheme, to undertake registration transactions for certain vehicles;
(b)the appellant made application (an Application) to the Department of Planning and Infrastructure (DPI) (formerly the Department of Transport) in accordance with the Road Traffic Act 1974 (WA) and s 76C(7) of the Stamp Act for the registration of the vehicles and the issue of a motor vehicle licence in the appellant's name in respect of each vehicle;
(c)accompanying each Application was a 'Form S13 Dealer's Certificate - Section 76C(7) Stamp Act 1921' (the Certificate), which was a declaration by the appellant made pursuant to s 76C(7) of the Stamp Act that the vehicle described in the declaration and the subject of the Application would be used for demonstration purposes;
(d)the Dealer Network Registration Scheme allowed the appellant to access and use the computer program of the DPI and to register each vehicle in the appellant's name, and allowed the appellant to generate a licence and a third party insurance policy; and
(e)the appellant sent the Application and the Certificate to the DPI, and the licence and third party insurance policy details were recorded in the DPI vehicle licensing computer system.
The Dealer Network Registration Scheme was implemented administratively by the DPI, presumably in reliance on the Carltona principle. See Carltona Ltd v Commissioners of Works [1943] 2 All ER 560; Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24, 37 ‑ 38 (Mason J); Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391, 449 (Gummow and Hayne JJ). The Scheme had no statutory basis.
The Dealer Network Registration Scheme is described in a 'User Manual', published by the DPI, which was tendered in evidence before the Tribunal. Relevant features of the Scheme, for present purposes, as described in the Manual, are these:
(a)The nature and principal features of the Scheme are outlined, as follows:
Licensing Division, Department of Transport will appoint your licensed Motor Vehicle Dealership to the Dealer Network Registration Scheme as an agent. You will be allowed to register new vehicles and conduct other approved transactions for vehicles owned and sold by you.
The scheme gives you authority to assess and collect fees and issue registration labels and number plates to vehicles. The service will be available to you during Dealer trading hours and enable you to provide customers with immediate registration for vehicles.
Dealers authorised under Bulk Licensing Certification are included in the Dealer Network Registration Scheme to register new vehicles and to conduct certain licensing transactions relating to vehicles traded to those Dealers.
As an approved Licensed Dealer, you may undertake registration transactions for any vehicles traded through any of your 'Certified Registered Premises' (as advised by the Motor Vehicle Dealers Licensing Board).
…
Your authorised organisation will be granted limited access to the vehicle licensing computer system of Licensing Division to create immediate records for the registrations you issue and vehicles you trade.
Under the scheme, the Traffic Board delegates to you some of its authority to license vehicles. Any breach of the procedures or requirements of the scheme may result in your membership being withdrawn (AB 191).
(b)The Manual stated, in relation to s 76C of the Stamp Act:
Section 76C of the Stamp Act requires Licensing Division, Department of Transport and its Licensing Agents to collect Stamp Duty on all Motor Vehicle Licence or Transfer applications (other than those specifically exempted), on behalf of the State Taxation Department (AB 301).
(c)The Manual also sought to explain the exemption conferred by s 76C(6):
Section 76C(6) of the Stamp Act provides that no Stamp Duty is payable by Dealers where:
•a licence is granted to a person to carry on a business of selling motor vehicles.
•a vehicle has been sold to a dealer for the purpose of resale to another person and it is in the ordinary course of the business of the dealer.
•a vehicle is registered for the purpose of demonstration to prospective purchasers.
Licensed dealers who trade in vehicles are required to submit a Notice of Acquisition to Licensing Division immediately upon acquiring any licensed vehicle.
NOTE: A Dealer is not required to pay Stamp Duty when registering an unlicensed vehicle providing the licence has been obtained for purposes listed above.
Dealers in trailers, boat trailers and earth moving vehicles are not required to be licensed under the Motor Vehicle Dealers Act. However, Dealers are exempt from Stamp Duty subject to the producing the following:
•Stamp Act Certificate form S13 issued under Section 76(c) [sic]
•Advice of Disposal of Vehicle form is signed by the previous owner
•Current Licence papers (AB 306).

The Commissioner's reasons for disallowing the appellant's objection

In a letter dated 1 December 2005, the Commissioner set out reasons for disallowing the appellant's objection.
The basis for the disallowance was the Commissioner's opinion, formed after his audit of the appellant's business activities, that the Drive‑A‑While Program was in fact a car hire business which the appellant operated concurrently with its Mitsubishi dealership. According to the Commissioner, the appellant should not have relied upon the exemption in s 76C(6) of the Stamp Act with respect to vehicles purchased by it and used in the Drive‑A‑While Program. The Commissioner said that evidence in his possession supported the conclusion that the use of the vehicles in the Drive‑A‑While Program did not satisfy s 76C(6) for these reasons:
I do not accept the proposition that an overseas visitor who hired a Drive‑A‑While vehicle for a period of some two weeks with a pick up and drop off at the airport, or a Victorian family visiting Perth for a few days, could be properly characterised as prospective purchasers of Mitsubishi vehicles from Southside. In that regard, the Commissioner contacted some of the customers of the program, and what has emerged is that not one had any intention of buying the hired vehicle, or another Mitsubishi vehicle, from Southside; rather they simply entered into vehicle rental arrangements, and nothing more. In other words, the motives concerning their dealings with Drive‑A‑While were limited to those of a customer requiring a short term car rental, or a longer hire (by predominantly companies and medical professionals) as a means of transportation for the duration of a visit, project, employment contract, or the like. All the customers contacted by the Commissioner confirmed that they viewed the program as constituting a vehicle hire business, and had no intention of buying the vehicles so hired, or another Mitsubishi vehicle from Southside.
At this juncture, the question that needs to be posed is what persuaded them to deal with Drive‑A‑While?
The participants in the program were enticed to do so by a variety of means including: advertisements of the Drive‑A‑While program in the 'Yellow Pages' (listed along side other companies engaged in the hire of motor vehicles), and by visiting the Drive‑A‑While site on the Internet. At the time of the audit, and at present, the material website profiles Drive‑A‑While as a company specialising in corporate and long term leasing, while also offering its services to people visiting Perth on an employment contract or an extended vacation.
I note that even the standard contract entered into by the customers of the Drive‑A‑While program is headed as 'Vehicle Rental Agreement'.
Based upon these findings, I am satisfied that the customers of the Drive‑A‑While program cannot be termed as genuine potential purchasers of Mitsubishi vehicles from Southside, nor that the Drive‑A‑While program is anything other than a car rental business.

Judge Eckert's reasons for decision in relation to the preliminary issues

An examination of the transcript of Judge Eckert's oral reasons for decision indicates her reasoning was as follows:
(a)Section 76C(1) imposes duty:
There is no need for a separate assessment to be made for the duty to be paid; that's subject to some qualifications later on in the section (ts 7).
(b)The licensing authority is not an agency or emanation of the State of Western Australia (ts 7).
(c)The licensing authority is performing administrative functions on behalf of the Commissioner. It receives the duty imposed under the Act. There is no separate assessment as such:
They perform an administrative function of collecting revenue imposed and stamping the relevant instrument accordingly by printing a receipt across them, as I understand it, across the licence (ts 7).
(d)As to the objection procedure:
If a person doesn't agree with the amount of duty they don't take on the licensing authority … the taxpayer objects to the Commissioner under the relevant statutory provisions (ts 8).
(e)The Commissioner's power of assessment has not been delegated to the licensing authority:
There is no delegation, in my view, of the Commissioner's power to make a determination that I am aware of and although I have not looked at it in depth I doubt that the Commissioner could delegate that fundamental function to a licensing authority under s 6 of the old Stamp Act (ts 8).
(f)The licensing authority acts as the agent of the Commissioner for the collection of revenue (ts 8).
(g)Section 76C(13B) applies to an assessment or determination of the licensing authority under s 76C(9) or (10) only. It does not apply to the administrative functions undertaken by the licensing authority (ts 9).
(h)Section 76C(1) and (6) do not constitute an official assessment 'as they are not determinations by the Commissioner as is required by s 15 [of the TAA] and in light of the provisions of s 13(1) [of the TAA]' (ts 10).
(i)The motor vehicle dealer does not make an assessment under s 76C. Nor does the licensing authority make an assessment (either an official assessment or a self‑assessment) within s 76C (subject to qualifications). As a result, the Commissioner's 2005 assessments do not constitute a reassessment in that a reassessment requires that there first be an official assessment or a self‑assessment (ts 13).
(j)Further:
Instruments under s 76C are stamped pursuant to the old Stamp Act but the Commissioner has not raised an assessment on them and he is not prohibited from making an assessment. He can do so under s 31A of the old Stamp Act and he has always been able to do that during the relevant period (ts 13).
(k)Even if 'something' has been deemed to be an assessment under s 76C(13B), the Commissioner can still assess under s 31A as a default assessment because that provision is merely a deeming provision with respect to subsections (9) and (10) of s 76C (ts 14).
(l)The 2005 assessments were not reassessments within the meaning of the TAA and therefore the Commissioner's assessment power was not subject to the statutory limitations that apply in the making of a reassessment (ts 15).
(m)As the Commissioner is entitled to make the 2005 assessments, 'he is entitled to do so in an essentially unfettered capacity' (ts 15).
(n)Further:
In my view, evidence of the circumstances, matters or events that occurred or existed after the date of the grant of the licence where relevant to determine that earlier purpose, can be taken into account by the [Commissioner] and by this tribunal when reviewing the objection to the assessments (ts 15).

The Commissioner's application to strike out the appeal

Section 43A(2) of the TAA prescribes the period for bringing an appeal from a decision of the Tribunal on a review application in connection with a revenue assessment or decision. It provides that the appeal has to be instituted in accordance with the Rules of the Supreme Court and within the period of 28 days after:
(a)the day on which the Tribunal's decision is made; or
(b)if the Tribunal gives oral reasons for the decision and the appellant then requests it to give written reasons under s 78 of the State Administrative Tribunal Act 2004 (the SAT Act), the day on which the written reasons are given to the appellant.
On 14 November 2006, the appellant filed its appeal notice.
By application dated 12 March 2007, the Commissioner applied for an order that the appeal be struck out and dismissed on the ground that the appeal notice was filed out of time. The application was supported by an affidavit of Bradley John Prentice sworn 12 March 2007. Mr Prentice deposed, relevantly, that:
(a)He is a solicitor in the State Solicitor's Office and has the carriage of the appeal on behalf of the State Solicitor who represents the Commissioner.
(b)On 17 July 2006, the preliminary issues were argued before Judge Eckert.
(c)On completion of the hearing on 17 July 2006, the matter was adjourned until 19 July 2006.
(d)On 19 July 2006, Judge Eckert orally delivered her decision and reasons for decision in relation to the preliminary issues.
(e)On 27 July 2006, Mr Prentice received a copy of a letter dated 26 July 2006 from the Tribunal which attached a copy of the transcript of the decision and reasons for decision delivered on 19 July 2006.
(f)On 10 November 2006, at the instigation of the appellant, the Tribunal issued an authenticated written order recording its findings in relation to the decision which was delivered orally on 19 July 2006.
According to the Commissioner, the appeal not having been commenced within 28 days after 19 July 2006, the appeal is incompetent and should be struck out.

The appellant's submissions in opposition to the application to strike out

The appellant submitted that the appeal notice was not filed out of time in that the Tribunal did not pronounce a 'final decision' until it made the order on 10 November 2006. It was submitted that Judge Eckert merely gave oral reasons for decision on 19 July 2006, and that oral reasons do not constitute a 'decision'.

The appellant contended that the SAT Act distinguishes between 'reasons for decision' on the one hand and a 'decision' on the other. It referred, in this respect, to s 76 and s 79. Section 76 provides, relevantly, that if the Tribunal reserves it decision in any proceeding, it is to give its 'decision and the reasons for the decision' within 90 days. Section 79 provides that a written transcript of the part of the proceedings in which a 'decision' is given orally 'or reasons' are given orally is sufficient for a provision of the Act that requires the 'decision or reasons' to be in writing. According to the appellant, the SAT Act leaves no doubt that a 'decision' is not the same as the 'reasons for decision'. It follows that reasons for decision do not necessarily incorporate a decision, and an appeal lies only from a decision and not from the reasons.
The appellant submitted that the time limited for commencing an appeal did not begin to run until 10 November 2006, when the Tribunal made its 'decision' by virtue of the sealed orders pronounced on that date. It was submitted that an authenticated decision (in the present case, in the form of an order) was required before the 'decision' could be the subject of an appeal.
Alternatively, if the court were to find that the appeal notice had been filed out of time, then the appellant sought an extension of time.

The merits of the Commissioner's application to strike out

By s 43A(2) of the TAA, relevantly, the appellant was required to file its appeal notice within 28 days after the day on which the Tribunal's 'decision' was made.
The glossary to the TAA provides that, unless the contrary intention appears, 'decision' includes a direction. By s 3(1) of the SAT Act, unless the contrary intention appears, 'decision' of the Tribunal includes an order, direction or determination of the Tribunal.
In the present case, the relevant 'decision' of Judge Eckert was her determination of the two preliminary issues. An examination of the transcript of the proceedings on 19 July 2006 reveals that in the course of those proceedings her Honour published both her determination of the preliminary issues and her reasons for that determination. In other words, on 19 July 2006 the learned judge published the Tribunal's decision (within s 43A(2)) and also the Tribunal's reasons for that decision.
Section 74 of the SAT Act requires that certain decisions be given in writing and authenticated in accordance with the rules. By s 74(b), a decision of the Tribunal has to be given in writing and authenticated in accordance with the rules if the Tribunal reserved the decision. As to the authentication of decisions, see r 19 of the State Administrative Tribunal Rules 2004 (WA).
In the present case, the requirement of writing was satisfied by the written transcript of the proceedings on 19 July 2006 in which the decision and the reasons for decision were delivered orally. By s 79 of the SAT Act, a written transcript of the part of the proceeding in which a decision is given orally or reasons are given orally is sufficient for a provision of the Act that requires the decision or reasons to be in writing.
The 'order' of the Tribunal, signed by Judge Eckert on 10 November 2006, represented the written authentication of the decision made on 19 July 2006, and not a separate decision which itself was the subject of a right of appeal.
By s 82 of the SAT Act, a decision of the Tribunal comes into effect immediately after it is given or at such later time as is specified in it, except as otherwise provided in s 29(5). In the present case, no later time was specified and s 29(5) is not relevant.
Section 74 of the SAT Act does not have the effect that a decision of the Tribunal is not made until it has been authenticated in writing. By s 81 of the SAT Act, a failure of the Tribunal to comply with a requirement of Pt 4 div 4, which includes s 74, does not affect the validity of a decision.
In my opinion, subject to the appellant's application to extend time, the appeal not having been commenced within 28 days after the making of the decision on 19 July 2006, the appeal is incompetent and liable to be struck out.

The appellant's application to extend time

The Commissioner opposed the appellant's application to extend time on the ground that neither s 43A nor any other provision of the TAA empowers this court to grant an extension. It was submitted, on behalf of the Commissioner, that the power to extend time in s 105(7) of the SAT Act does not apply to an appeal under s 43A. The Commissioner conceded, however, that he would not oppose the appellant's application to extend time if this court decided that it had power to grant an extension.

The merits of the appellant's application to extend time

At common law (that is, independently of s 19 of the Interpretation Act 1984 (WA)), a court is permitted, in construing a statutory provision, to have regard to the words used by the Parliament in their legal and historical context and, if appropriate, to give them a meaning that will give effect to any purpose of the legislation that can be deduced from that context. See CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); Newcastle City Council v GIO General Ltd (1997) 191 CLR 85, 112 ‑ 113.
It is well‑established that where two or more statutory enactments comprise an overlapping legislative scheme, the enactments should be construed accordingly. See Sweeney v Fitzhardinge (1906) 4 CLR 716, 726; R v Wheeldon (1978) 18 ALR 619, 622; Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719, 722 ‑ 724; Le Blanc v Queensland TAB Ltd [2002] QSC 323; [2003] 2 Qd R 65 [42].
In Commissioner of Stamp Duties v Permanent Trustee Co Ltd, Kirby P said:
Upon the hypothesis (which is admittedly often sorely tried) that there is a rational integration of the legislation of the one Parliament, it is proper for courts to endeavour to so construe inter related statutes as to produce a sensible, efficient and just operation of them in preference to an inefficient, conflicting or unjust operation. This is the approach which I take to the task of statutory interpretation in hand (722).
Later, his Honour said in relation to the legislation under consideration in the appeal before the court:
The result is that, in construing the legislation under consideration here, I will prefer that construction which is available in the language used and which facilitates the sensible operation together of the four statutes mentioned, avoiding inefficiency and the capricious operation of revenue law which would seriously impede or discourage the availability of beneficial statutory provisions for the sale or partition of property held by co‑owners. In the case of ambiguity of the legislation I consider this to be the modern approach which this Court should adopt in implementing the will of Parliament. We should presume that Parliament intended its legislation to operation rationally, efficiently and justly, together (723 ‑ 724).
It is instructive, in evaluating the Commissioner's submission that this court does not have power to extend time, to review the legislative framework relating to appeals from the Commissioner's disallowance of an objection to a stamp duty assessment before the introduction of s 43A of the TAA and s 105 of the SAT Act.
At all material times before 1 July 2003 (when relevant provisions of the TAA and the Stamp Amendment Act 2003 (WA) came into operation), s 33(1) of the Stamp Act provided:
A person who is dissatisfied with the decision of the Commissioner on an objection by the person may, within 42 days after service of notice of the decision of the Commissioner, appeal to the Supreme Court against that decision.
By s 33(2) of the Stamp Act, a person entitled to appeal against a decision of the Commissioner on an objection by that person may, whether before or after the expiry of the time for appealing, apply for an extension of time, and the Commissioner may, for reasonable cause shown by that person, extend the time for appealing for such period as the Commissioner considers reasonable in the circumstances. Section 34A(1) of the Stamp Act provided, relevantly, that a person who is dissatisfied with a decision of the Commissioner to refuse to extend the time for appealing against the Commissioner's decision on an objection, may appeal to the Supreme Court against that decision.
Section 22 of the Stamp Amendment Act 2003 repealed, relevantly, s 33 and s 34A of the Stamp Act with effect from 1 July 2003.
Also, on 1 July 2003, Pt 4, div 3 (comprising s 40, s 41, s 42, s 43 and s 44) of the TAA, and certain other provisions of that Act, came into operation. Section 40(1) provided, relevantly, that a person dissatisfied with the Commissioner's decision on an objection may appeal against the decision. Section 41 conferred jurisdiction on the Supreme Court in relation to, relevantly, any stamp duty appeal under s 40(1). Section 42 provided:
(1)An appeal must be commenced within 60 days after notice of the decision to which it relates is served on the taxpayer.
(2)However, the court or tribunal to which the appeal lies may, on application by the taxpayer, extend the time for commencing an appeal.
Section 43(1) provided, relevantly, that on hearing an appeal against a decision, the appellate court may, relevantly, confirm the Commissioner's assessment, or direct the Commissioner to make a reassessment in accordance with any directions given by the court; if the court varies or revokes a decision, substitute for the decision any other decision that the Commissioner could have made in the circumstances; and make consequential and ancillary orders (including orders for costs). By s 43(2), the onus of establishing that an assessment or decision to which the appeal relates is invalid or incorrect lies on the taxpayer. Section 43(3) and s 43(4) provided, in substance, that if the final reassessment of the taxpayer's liability indicates that duty has been overpaid, the taxpayer is entitled to a refund or credit of the overpaid amount, and interest on the overpaid amount. Section 44 made provision for the Commissioner to state a case on a question of law arising under a taxation Act and for the Supreme Court to decide the question of law and make orders for costs and other incidental matters.
The TAA was amended in material respects by the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA) (the Conferral of Jurisdiction Act) with effect from 1 January 2005. Relevantly, for present purposes:
(a)Section 40(1) was amended to replace the right of appeal conferred by that subsection with a right to apply to the Tribunal for a review of the decision.
(b)Section 41 was repealed.
(c)Section 42(1) was amended to refer to the commencement of an application to the Tribunal for a review rather than to an appeal.
(d)Section 42(2) was repealed.
(e)Section 43(1) and s 43(2) were repealed and replaced with provisions dealing with proceedings before the Tribunal on a review application in connection with a revenue assessment or decision.
(f)A new section, namely s 43A, was inserted. I reproduce the new section at [72] below.
Also, on 1 January 2005, legislation came into operation which established and conferred jurisdiction on the Tribunal. The legislation comprised, relevantly, the SAT Act and the Conferral of Jurisdiction Act.
Section 43A of the TAA provides:
(1)An appeal from a decision of the State Administrative Tribunal can be brought on a question of law, of fact, or mixed law and fact, without having first obtained leave to appeal.
(2)The appeal has to be instituted in accordance with the rules of the Supreme Court and within the period of 28 days after -
(a)the day on which the Tribunal's decision is made; or
(b)if the Tribunal gives oral reasons for the decision and the appellant then requests it to give written reasons under section 78 of the State Administrative Tribunal Act 2004, the day on which the written reasons are given to the appellant.
The appellant did not make a request within s 43A(2)(b).
Section 3(1) of the TAA specifies various enactments as 'taxation Acts' for the purposes of the TAA. The enactments specified include the TAA and the Stamp Act. By s 3(2), each other taxation Act is to be read with the TAA as if they formed a single Act. The SAT Act is not a taxation Act for the purposes of the TAA.
Section 105 of the SAT Act provides:
(1)A party to a proceeding may appeal from a decision of the Tribunal in the proceeding, but only if the court to which the appeal lies gives leave to appeal.
(2)The appeal can only be brought on a question of law.
(3)The appeal lies to -
(a)the Court of Appeal, if the decision was made by -
(i)a judicial member; or
(ii)the Tribunal constituted by members who include a judicial member;
(b)the Supreme Court exercising its other jurisdiction, in any other case.
[(4)repealed]
(5)An application for leave to appeal has to be made in accordance with the rules of the Supreme Court and within the period of 28 days after -
(a)the day on which the Tribunal’s decision is given; or
(b)if the Tribunal gives its decision without giving written reasons for its decision and the party then requests it to give written reasons under section 78, the day on which the written reasons are given to the party.
(6)If leave is granted, the appeal has to be instituted in accordance with the rules of the Supreme Court and within the period of 21 days after the day on which leave is granted.
(7)The court to which the appeal lies may extend a time limit fixed by this section, and the extension may be given even though the time limit has passed.
(8)A party instituting an appeal is to notify the executive officer but the Tribunal is not a party to the appeal and nor is any Tribunal member.
(9)The court dealing with the appeal may -
(a)affirm, vary, or set aside the decision of the Tribunal;
(b)make any decision that the Tribunal could have made in the proceeding; or
(c)send the matter back to the Tribunal for reconsideration, either with or without the hearing of further evidence, in accordance with any directions or recommendations that the court considers appropriate,
and, in any case, may make any order the court considers appropriate.
(10)If the court sends the matter back to the Tribunal under subsection (9)(c), it is to give directions as to whether or not the Tribunal reconsidering the matter is to be constituted by the member or members who made the original decision.
(11)If the Tribunal’s decision is made in a proceeding prescribed by the regulations, a party cannot apply for leave to appeal under this section unless the party agrees to indemnify each other party to the proceeding against that other party’s reasonable legal costs of the appeal.
(12)In the case of a decision in a proceeding coming within the Tribunal’s review jurisdiction, any leave to appeal granted to the decision maker is to be granted on the condition that the costs of each other party are to be met by the decision maker, unless the court considers that it would be unjust or unreasonable to impose that condition, whether generally or in respect of the costs of a particular party.
(13)Despite subsection (2), if the Tribunal’s decision -
(a)is made under a relevant Act or in a proceeding for the review of a decision made under a relevant Act; and
(b)has the effect of depriving a person of the person’s capacity to lawfully pursue a vocation,
an appeal under this section may be brought on any ground whether it involves a question of law, a question of fact or a question of mixed law and fact.
(14)In subsection (13) -
'relevant Act' means -
(a)an Act specified in Schedule 1, if it is an enabling Act; or
(b)an enabling Act prescribed by the regulations for the purposes of subsection (13).
Section 5 of the SAT Act provides that if there is any inconsistency between that Act and an 'enabling Act', the enabling Act prevails. The term 'enabling Act' is defined in s 3(1) of the SAT Act to mean, relevantly, another Act, or a portion of another Act, under which jurisdiction is conferred on the Tribunal. The TAA is an enabling Act for the purposes of the SAT Act.
Section 18(1) of the SAT Act provides that, in exercising its review jurisdiction, the Tribunal is to deal with a matter in accordance with the SAT Act and the enabling Act. By s 18(2), the enabling Act may modify the operation of the SAT Act in relation to a matter that comes within the Tribunal's review jurisdiction.
Section 92(1) of the SAT Act provides, relevantly, that the rules of the Tribunal may provide for the Tribunal to extend a time limit for doing anything in connection with a proceeding, or the commencement of a proceeding, even though the limit is imposed under the SAT Act or the enabling Act. By s 92(2), the extension may be authorised even though the time for complying has passed. Section 92(3) provides that s 92 has effect, despite s 5 of the SAT Act, except to the extent, if any, that s 92 is expressly excluded by the enabling Act.
The TAA does not expressly exclude s 92 of the SAT Act. Further, r 10(1) of the State Administrative Tribunal Rules confers on the Tribunal power to extend any time fixed under the SAT Act, an enabling Act or the rules for the commencement of a proceeding. Rule 10(2) empowers the Tribunal to extend time even if the time fixed expired before an application for an extension was made.
Section 94 of the SAT Act applies, relevantly, if a party appeals under s 105 from a decision of the Tribunal. By s 94(3), the Tribunal's executive officer is to give the Supreme Court:
(a)all documents and other material that were before the Tribunal in connection with the proceedings to which the appeal relates; and
(b)any other documents and other material in the Tribunal's possession that the Tribunal is required by rules of the Supreme Court to send to the court.
In summary:
(a)At all material times before 1 July 2003, there was statutory provision for a taxpayer to apply for an extension of time to appeal to the Supreme Court against the Commissioner's disallowance of the taxpayer's objection. See s 33(2) and s 34A(1) of the Stamp Act.
(b)Between 1 July 2003 and 31 December 2004, there was statutory provision for a taxpayer to apply for an extension of time to appeal to the Supreme Court against the Commissioner's disallowance of the taxpayer's objection. See s 42(2) of the TAA.
(c)Since 1 January 2005 there has been statutory provision for a taxpayer to apply for an extension of time to apply for a review by the Tribunal of the Commissioner's disallowance of the taxpayer's objection. See r 10 of the State Administrative Tribunal Rules read with s 92 of the SAT Act.
Section 105(7) of the SAT Act provides that the court to which an appeal lies pursuant to s 105 may extend a time limit fixed by s 105 (including the 28‑day period prescribed by s 105(5) for filing an application for leave to appeal), and the extension may be given even though the time limit has passed. Section 43A of the TAA does not, however, provide for a taxpayer to apply for an extension of time to appeal from a decision of the Tribunal.
The critical question, in determining the merits of the Commissioner's submission that this court does not have power, in the present case, to extend time, is whether s 43A of the TAA is to be read with s 105 of the SAT Act, so that the power in s 105(7) to extend time applies to an appeal under s 43A.

In my opinion, the legislative scheme embodied in the SAT Act and the TAA, and the relevant legislative history, suggest that s 43A of the TAA is to be read with s 105 of the SAT Act. Section 43A was not intended to cover the field in relation to revenue appeals from decisions of the Tribunal.
First, the TAA is an enabling Act for the purposes of the SAT Act. By s 18(1) of the SAT Act, in exercising its review jurisdiction, the Tribunal is to deal with a matter in accordance with the SAT Act and the enabling Act. By s 18(2), the enabling Act may modify the operation of the SAT Act in relation to a matter that comes within the Tribunal's review jurisdiction. It is true that s 43A modifies the operation of s 105(1), (2) and (13) in that s 43A confers an appeal as of right and is not confined to a question of law. That modification of s 105 does not, however, in my opinion, indicate that none of the other provisions of s 105 is to apply to an appeal under s 43A.
Secondly, neither s 43A nor any other provision of the TAA makes provision for the powers of the appellate court in relation to the appeal as of right conferred by s 43A(1) or for any ancillary or incidental matters. For example, neither s 43A nor any other provision of the TAA contains any provisions comparable to s 105(8), (9), (10), (12). In other words, the TAA does not require the party instituting the appeal to notify the executive officer of the Tribunal for the purpose of facilitating the executive officer's compliance with s 94 of the SAT Act, or otherwise; does not set out the powers of the court dealing with the appeal; does not enable the appellate court to give directions to the Tribunal if the matter is sent back to the Tribunal; and does not empower the appellate court to require that the decision‑maker pay the costs of the other parties to the appeal where the decision‑maker is the appellant.
Thirdly, although the TAA, as it currently stands, does not make any provision for the matters I have just mentioned, the TAA did make such provision in s 40, s 41, s 43 and s 44 before those provisions were amended and, in some respects, repealed by the Conferral of Jurisdiction Act which came into operation on 1 January 2005. On that date, legislation also came into operation which established and conferred jurisdiction on the Tribunal.
Fourthly, it is most unlikely that the Parliament would have intended that an appellate court hearing an appeal under s 43A should not have powers of the kind set out in s 105(7), (8), (9), (10), (12) of the SAT Act, especially against the background that comparable provisions had been included in s 40, s 41, s 43 and s 44 of the TAA before the Conferral of Jurisdiction Act came into operation.
Fifthly, it is plain from the general language of s 94 of the SAT Act, which I have summarised at [80] above, that s 94 applies both to appeals under s 105 of the SAT Act and appeals under s 43A of the TAA.
In my opinion, the TAA and the SAT Act, at least to the extent that they deal with appeals (either as of right or with leave) from decisions of the Tribunal to the Court of Appeal or the Supreme Court are interrelated statutes. Subject, of course, to the language of the TAA and the SAT Act, it is therefore proper to construe the relevant provisions of each statute, at least to the extent that they relate to appeals to the Court of Appeal or the Supreme Court, to produce a sensible, efficient and just operation.
The better view is that the provisions of s 105 of the SAT Act apply, with any necessary modifications, to a taxation appeal under s 43A of the TAA, to the extent that the application of s 105 is not inconsistent with s 43A. Relevantly, for present purposes, the application of s 105(7), with any necessary modifications, to a taxation appeal under s 43A would permit the court to which the appeal lies to extend a time limit fixed by s 43A(2) and to grant an extension even though the time limit has passed. This construction of the TAA and the SAT Act is open on the language of the relevant provisions, and it is preferable to the construction advanced by the Commissioner to the effect that this court does not have power to extend time, in that the construction which I prefer is conducive to the sensible, efficient and just operation together of the statutes.
In the present case, I would grant the appellant an extension of time to appeal. The appellant's failure to comply with the time limit in s 43A(2) has been explained satisfactorily and the Commissioner would not suffer any relevant prejudice as a result of the extension. Also, as I have mentioned, the Commissioner conceded that he would not oppose the appellant's application to extend time if this court decided that it had power to grant an extension.
It follows that I would dismiss the Commissioner's application to strike out.

The appellant's grounds of appeal

The appellant's grounds of appeal are these:
1(a)The learned Deputy President wrongly concluded that the licensing authority did not make an assessment of duty payable and only performed administrative functions;
1(b)The Deputy President should have held that the licensing authority, on issuing licences, made an assessment for the purposes of the [Stamp Act];
2(a)The learned Deputy President wrongly concluded that the [Commissioner] had the power to make a reassessment under section 15(2) of the [TAA];
2(b)The Deputy President should have held that section 35 of the [Consequential Provisions Act] prevented the [Commissioner] from making a reassessment or alternatively restricted the nature of any reassessments;
3.If, contrary to Ground 2(b), section 35 of the [Consequential Provisions Act] does not prevent or restrict the [Commissioner] from reassessing, then the Deputy President should have held that the power to reassess is subject to restrictions in sections 16(5) & 17(4) of the TAA;
4(a)The Deputy President should have held that the second issue does not arise for consideration; and
4(b)Alternatively, the Deputy President should have held that the [Commissioner] was not entitled to take into consideration the circumstances, matters and events that occurred or existed after the date of the issue of the licences.

The Commissioner's notice of contention

The Commissioner filed a notice of contention, which reads:
The Deputy President's determination that the [Commissioner] had power to issue the 2005 assessments ought be upheld, in any event, on the following grounds, not relied on by the Tribunal:
1.If, which is denied, the licensing authority made a determination that no tax was payable or that the appellant was exempt, the determination did not amount to an official assessment within the meaning of the [TAA] because it was not an assessment made by the [Commissioner].
2.If, which is denied, the 2005 assessments were reassessments, the [Commissioner] was not precluded from making a reassessment by s35 of the [Consequential Provisions Act] and had power to make reassessments under s16(2) TAA, subject to determination of the operation of ss16(5) and 17(2) and (5) TAA.

Ground 1 of the appeal: the relevant provisions of the Stamp Act

By s 5 of the Stamp Act, as in force at material times, the Commissioner has the general administration of the Act. Section 4(1) provided that, in the Act, except so far as the context otherwise required, 'Commissioner' means the person holding the office of Commissioner of State Taxation under the Public Sector Management Act 1994 (WA).
Section 6 of the Stamp Act, as in force at material times, conferred on the Commissioner a power, by instrument in writing under his hand, to delegate, in essence, to any officer of the staff assisting the Commissioner in the administration of the Act such powers, duties and functions as are conferred or imposed upon the Commissioner by or under the Act and which are specified in the instrument.
Section 16(1) of the Stamp Act, as in force at material times, provided, relevantly, that subject to s 16(2), the duties to be charged for the use of the Crown on or in respect of the instruments specified in the Second Schedule shall, subject to the Act, be the duties specified opposite to those instruments in that Schedule.
By s 16(2) of the Stamp Act, as in force at material times, relevantly, the duties specified in the Second Schedule shall be subject to the exemptions specified in the Third Schedule or otherwise by or under the Act.
Item 14(1) of the Second Schedule to the Stamp Act, as in force at material times, provided, relevantly, that duty is payable on the issue or transfer of a licence for a motor vehicle that is not a heavy vehicle by the person in whose name the licence is issued.
Part IIIC of the Stamp Act, as in force at material times, bears the heading 'Motor vehicle licences and transfers thereof'. The relevant provisions of Pt IIIC, as in force at material times, were these:
(a)Section 76B provided that in Pt IIIC, except so far as the context otherwise requires:
'Director General' means the chief executive officer of the department of the Public Service principally assisting in the administration of the provisions of the Road Traffic Act 1974 that section 5 of that Act defines as the 'licensing provisions of this Act';
'issue', in relation to a licence, includes a grant or renewal of the licence;
'licence' means a vehicle licence issued under the provisions of Part III of the Road Traffic Act 1974, and in respect of which a fee under that Act has been paid or is payable, but does not include a duplicate vehicle licence or certified copy thereof issued under regulations made under that Act;
'transfer' means a transfer, under s 24 of the Road Traffic Act 1974, of a licence, but does not include a transfer of a licence to a person who, if he were the person named in the licence, would not be required by or under that Act to pay the prescribed fee for the licence.
(b)Section 76C provided, relevantly:
(1)Duty referred to in item 14 or, where subsection (6a) or section 76CA or 112UE(2) applies, item 6 of the Second Schedule shall, except where -
(a)it is denoted on a licence or transfer by an impressed stamp or an adhesive stamp which has been duly cancelled; or
(b)subsection (11) applies,
be paid to the licensing authority to which an application is made for the issue or transfer of a licence.
(2)A licensing authority which is -
(a)the Director General shall furnish to the Commissioner each month details of amounts of duty brought to account for licences and transfers during the preceding month;
(b)not the Director General shall, subject to subsection (3), furnish to the Commissioner within a period of 15 days after the end of the month in which licences were issued or transferred a return in such form as the Commissioner approves in writing setting out details of those issued or transferred licences, together with a remittance for the amount of duty payable in respect thereof.
(3)If no duty is payable in respect of the licences, if any, issued or transferred in any month by a licensing authority which is not the Director General, that licensing authority shall furnish the Commissioner with a nil return in respect of that month.
(4)Every licensing authority shall cause licences issued or transferred by it and charged with duty in accordance with item 14 or, where subsection (6a) or section 76CA applies, item 6 of the Second Schedule to be endorsed as to the payment of duty in such manner as the Commissioner may require.
(5)When the charging of duty is denoted, on licences issued or transferred as referred to in this section, by adhesive stamps, the person issuing or transferring those licences shall furnish the Commissioner, not later than the 15th day of the month following the month in which those licences were issued or transferred, with a statement relating to those issued or transferred licences in such form as the Commissioner requires in writing.
(6)No duty is chargeable under this Act -
(a)in the case of a transfer to a dealer, if that transfer has been obtained by the dealer for the purpose of the resale to another person by the dealer of the motor vehicle to which that transfer relates, and for no other purpose, and that resale is in the ordinary course of the business of the dealer; or
(b)in the case of a licence issued to a person who carries on the business of selling motor vehicles, if that licence has been obtained by that person for the purpose of -
(i)selling the motor vehicle to which that licence relates to another person in the ordinary course of that business; or
(ii)demonstrating the motor vehicle referred to in subparagraph (i) to prospective purchasers thereof,
and for no other purpose.
(6a)A transfer of a licence for a motor vehicle under a testamentary instrument or upon an intestacy to a person who is entitled to that vehicle in terms of that instrument or upon that intestacy -
(a)shall be charged with duty under item 6 of the Second Schedule; and
(b)is not subject to the requirements of subsection (8).
(7)A person applying for -
(a)the transfer of a licence referred to in subsection (6)(a); or
(b)the issue of a licence referred to in subsection (6)(b),
shall, before the transfer or issue of the licence, certify in such form as the Commissioner requires that, if the licence is issued or transferred to the person, the motor vehicle in respect of which the application is made will, while the person is the holder of the licence, be used for the purpose specified in the certification, being one of the purposes referred to in that subsection, and for no other purpose except a minor incidental purpose.
(8)For the purposes of this Part an application for the issue or transfer of a licence shall contain or be accompanied by -
(a)a statement signed by the person who is the proposed licensee or transferee showing -
(i)the market value of the motor vehicle at the time of the application; and
(ii)whether or not the proposed licensee or transferee is a purchaser of the motor vehicle and, if he is, the purchase price paid for the vehicle;
and
(b)where the proposed licensee or transferee is a purchaser of the motor vehicle a statement signed by the seller of the motor vehicle showing the purchase price paid for the vehicle by the purchaser.
(9)If an application does not contain any statement required by subsection (8)(a) or (b) or if the licensing authority considers that the market value of the motor vehicle stated is less than the market value at the time of the application, the licensing authority -
(a)may call on the proposed licensee or transferee to furnish to it such evidence or further evidence of the market value as he may wish to supply;
(b)shall determine the market value of the motor vehicle on such evidence, including the evidence (if any) furnished under paragraph (a), as it thinks fit;
(c)shall, on the basis of that determination, assess the amount of duty payable on the licence or transfer; and
(d)shall not issue or transfer the licence until that amount has been paid.
(10)If it appears to a licensing authority that a person has contravened section 24(2) of the Road Traffic Act 1974 in respect of a motor vehicle and if the time for commencing proceedings for the offence has not elapsed, the authority may -
(a)determine the market value of the motor vehicle as at the date the person became the owner of the motor vehicle;
(b)assess the duty payable by the person as if the licence had been transferred on the application of the person; and
(c)include a fine equal to the amount of duty assessed.
(10A)A licensing authority may remit the whole or part of any fine included under subsection (10).
(10B)The total amount of the duty assessed under this Part, and any fine included under subsection (10) -
(a)shall be paid by the person to a licensing authority before the licence for the vehicle is transferred; and
(b)may be recovered -
(i)if the offence against section 24(2c) of the Road Traffic Act 1974 is prescribed for the purposes of section 102 of that Act, by issuing a traffic infringement notice to the person for an alleged offence against section 24(2c) of that Act; or
(ii)on a complaint alleging that the person has committed an offence against section 24(2c) of that Act.
(l0C)If it appears to the Commissioner that a person has contravened section 24(2) of the Road Traffic Act 1974 in respect of a motor vehicle, the Commissioner may -
(a)determine the market value of the motor vehicle as at the date the person became the owner of the motor vehicle;
(b)assess the duty payable by the person as if the licence had been transferred on the application of the person; and
(c)serve a notice of the assessment on the person.
(10D)The Commissioner shall not take action to recover any duty or fine payable under this section if a licensing authority is taking action to recover the duty or fine, and vice versa.
(11)If the Commissioner considers that duty has been paid or assessed on the basis of a value of a motor vehicle that is less than the market value at the time of the application he may, notwithstanding that the licence for the vehicle has been issued or transferred and an amount of duty has been paid, serve -
(a)a notice of assessment showing the duty or the balance of the duty assessed on the person liable under item 14 of the Second Schedule to pay the duty;
(b)a notice of assessment showing the proportion of the duty assessed on a person liable under subsection (12) to pay a proportion of duty.
(12)If -
(a)duty has been paid or assessed on the basis of a value of a motor vehicle that is less than the market value at the time of the application; and
(b)the seller of the motor vehicle has in a statement under subsection (8)(b) understated the purchase price of the vehicle,
the seller is liable to pay the part of the duty that relates to the difference between the purchase price stated by him and the lesser of the actual purchase price or the market value of the vehicle.
(13)The liability of the seller under subsection (12) is joint and several with the liability of the person referred to in item 14 of the Second Schedule.
(13A)Section 31A(1a), (1b), (3), (4) and (5) and section 32 apply to a notice under subsection (l0C) or (11) as if it were a memorandum created by the Commissioner and an assessment of duty under section 31A.
(13B)Section 32 applies to an assessment or a determination made by a licensing authority under this Part as if it were an assessment or determination, as the case requires, made by the Commissioner.
(13C)If a traffic infringement notice issued under section 102 of the Road Traffic Act 1974 for an alleged offence against section 24(2c) of that Act specifies the amount referred to in subsection (10B), the person to whom it is issued shall not object under section 32 to the assessment made under subsection (10) unless he has paid the total amount payable under and in respect of the infringement notice.
(14)A person who for the purposes of this section makes any return, statement, certificate or valuation, or furnishes any evidence, which is false in a material particular commits an offence against this Act.
(15)Section 75A does not apply to any determination by the Commissioner of the market value of a motor vehicle for the purposes of this section.
(16)A person referred to in subsection (8)(a) who fails or refuses to comply with paragraph (a)(i) or (ii) of that subsection commits an offence.
(17)A seller of a motor vehicle who fails or refuses to comply with subsection (8)(b) commits an offence.
…
The term 'licensing authority' was not defined in Pt IIIC or elsewhere in the Act.

In the present case, the relevant applications made by the appellant for the issue of motor vehicle licences were made, and the licences in question were issued, before 1 July 2003.
Before the repeal of the old Stamp Act, various duties, obligations and liabilities were imposed, created or incurred under that Act in respect of the motor vehicle licences issued to the appellant. In particular:
(a)by s 16(1), certain stamp duties were required to be charged for the use of the Crown on or in respect of the instruments specified in the Second Schedule;
(b)by item 14 of the Second Schedule, the instruments included motor vehicle licences of the kind issued to the appellant;
(c)by s 16(2), the stamp duties chargeable under s 16(1), read with item 14, were subject to various exemptions, including the exemption contained in s 76C(6);
(d)if the exemption in s 76C(6) did not apply to any of the motor vehicle licences issued to the appellant then, by s 39(1) read with item 14, the appellant was the person liable to pay the amount of stamp duty chargeable on the licences and, by s 17(1), any such duty was to be paid and denoted according to the provisions of the old Stamp Act.
The 'substantive provisions' (as defined in s 33 of the Consequential Provisions Act) of the old Stamp Act comprise the provisions of the old Stamp Act, other than those dealing with 'matters' dealt with in the TAA. As I have mentioned, the word 'matters' is not defined. The word 'matter' is referred to in s 34(5) of the Consequential Provisions Act. By s 34(5), relevantly, if the time limited by the old Stamp Act for doing anything is longer than the time limited by the TAA for doing the equivalent thing under that Act, then, 'in relation to a matter to which [s 34(3)] applies', the time limited under the old Stamp Act applies in relation to the doing of the thing under the TAA.
In my opinion, it is apparent from the definition of 'substantive provisions' in s 33 of the Consequential Provisions Act, in the context of s 34, that the 'matters' in question are those dealt with by specific provisions, or related provisions, of the old Stamp Act or the TAA (as the case may be). The word 'matters', in the context in which it appears, includes, relevantly, a specific statutory power of assessment under the old Stamp Act in relation to a head of duty under that Act, if the specific power is not reproduced in the TAA. The 'matters' referred to in the definition of 'substantive provisions' refer to specific provisions, or related provisions, dealing with particular subject matters, and not to broad general subject matters such as 'assessments of tax, objections and review proceedings'. Section 34(5) of the Consequential Provisions Act uses the word 'matter' in the sense I have held to be correct.
By s 34(3) of the Consequential Provisions Act, subject to s 34(4) and (5), the preserved powers, duties, obligations and liabilities may be exercised or enforced as if the 'substantive provisions' of the old Stamp Act had not been repealed, were a taxation Act for the purposes of the TAA, and had been amended to make any modifications necessary for s 34 to have effect. Section 34(3) enables the preserved powers, duties, obligations and liabilities to be exercised or enforced in accordance with the TAA which, as I have mentioned, is an Act providing for the administration and enforcement of legislation dealing with State taxation.
In the present case, s 34(4) and (5) do not apply.
The requirement in s 34(3) that the 'substantive provisions' of the old Stamp Act are to be taken to have been amended to make any modifications necessary for s 34 to have effect appears to have been included for the purpose of facilitating the harmonious operation of, relevantly, those provisions of the TAA which are concerned with the enforcement (including the Commissioner's powers of assessment and reassessment) of a taxpayer's duties, obligations and liabilities under the old Stamp Act (including those in relation to the payment of stamp duty).
My construction of s 34 of the Consequential Provisions Act is consistent with and confirmed by the explanatory memorandum relating to the Bill which, upon enactment, became the Consequential Provisions Act. The explanatory memorandum states, relevantly, in relation to s 34:
Subclause (3) operates subject to subclauses (4) and (5). Subclause (3) provides that the matters in:
•subclause (2)(a) or (b) may be exercised or enforced;
•subclause (2)(c) may be imposed and enforced; and
•subclause (2)(d) may be instituted, continued or enforced,
as if the substantive provisions of the old Act (as defined in clause 33) had not been repealed, were a taxation Act for the purposes of the Taxation Administration Act and had been amended to make any modifications necessary to allow this clause to have effect. This ensures that all matters, unless otherwise specified in subclause (4) and (5), operate as if the Taxation Administration Act were always in operation. [emphasis added]
I turn now to consider whether the assessments made by the appellant, as agent of the Director General, between 1 July 1998 and 30 June 2003, were 'self‑assessments', within s 14 of the TAA, read with s 34(3) of the Consequential Provisions Act. Initially, I will consider this point on the basis that no modifications, as contemplated by s 34(3), are necessary to allow s 34 to have effect.
In my opinion, the relevant assessments made by the appellant, as agent of the Director General, were not 'self‑assessments'. I am of that opinion for the following reasons.
First, the relevant assessments were not made by the appellant in its capacity as a 'taxpayer', but by the Director General through the agency of the appellant. The Director General, as the licensing authority which made the relevant assessments, was not a 'taxpayer' (as defined in the glossary to the TAA) or a person liable to pay stamp duty under Pt IIIC of the old Stamp Act. Secondly, the relevant assessments were not made in returns under the old Stamp Act. By s 76C(3), if no duty is payable in respect of the licences, if any, issued or transferred in any month by a licensing authority which is not the Director General, that licensing authority shall furnish the Commissioner with a nil return in respect of that month. Part IIIC did not, however, contain any comparable provision in relation to the Director General. Thirdly, the relevant assessments were not made by a 'responsible party' (as defined in the glossary to the TAA) in that there is no evidence that, at any material time, the Commissioner made a special tax return arrangement with the appellant, the Director General or anyone else in relation to the appellant's obligations under the old Stamp Act or another taxation Act. See s 49 of the TAA.
I turn now to consider whether the assessments made by the appellant, as agent of the Director General, between 1 July 1998 and 30 June 2003, were 'official assessments', within s 15 of the TAA, read with s 34(3) of the Consequential Provisions Act. Again, I will consider this point, initially, on the basis that no modifications are necessary under s 34(3) to allow s 34 to have effect.
In my opinion, the relevant assessments made by the appellant, as agent of the Director General, were not 'official assessments', as defined in s 15(1) of the TAA, in that they were not assessments made by the Commissioner. Part IIIC of the old Stamp Act distinguishes between assessments made a licensing authority, on the one hand, and the Commissioner, on the other. The definition of 'Commissioner' in the glossary to the TAA means the Commissioner of State Revenue appointed in accordance with s 6 of the TAA. The defined term does not include a licensing authority. There is no evidence that, at any material time, the Commissioner delegated to the Director General, pursuant to s 6 of the old Stamp Act, any of his or her powers, duties and functions under the Act.
I have concluded that the assessments made by the appellant, as agent of the Director General, between 1 July 1998 and 30 June 2003, were 'assessments' as defined in s 13 of the TAA, but did not involve the 'making' of 'self‑assessments' or 'official assessments' within s 14 and s 15 respectively of the TAA. It follows that the 2005 assessments were 'original assessments' of the Commissioner, as defined in the glossary to the TAA, unless:
(a)the provisions of the old Stamp Act under which the Director General, through the agency of the appellant, made the earlier assessments are 'substantive provisions', as defined in s 33 of the Consequential Provisions Act;
(b)it is necessary to make modifications to those provisions of the old Stamp Act under s 34(3) of the Consequential Provisions Act for s 34 to have effect; and
(c)the necessary modifications would require the earlier assessments by the Director General, through the agency of the appellant, to be treated as either self‑assessments or official assessments for the purposes of the TAA.
In my opinion, when Pt 3 div 1 of the TAA is read with s 33, s 34 and s 35 of the Consequential Provisions Act and the old Stamp Act, it is apparent that the Parliament contemplated that any assessment made under the old Stamp Act which was also an assessment as defined in s 13(1) of the TAA would necessarily be either a self‑assessment or an official assessment. Otherwise, provision would have been included in Pt 3 div 1 for the 'making' of assessments which are neither self‑assessments nor official assessments.
In my opinion, the provisions of the old Stamp Act under which the relevant assessments by the Director General, through the agency of the appellant, were made are 'substantive provisions' within s 33 of the Consequential Provisions Act in that those provisions deal with a 'matter' which is not reproduced under the TAA. Also, in my opinion, modifications to the relevant provisions of the old Stamp Act are necessary for s 34 to have its apparent intended effect. The necessary modification is that the assessments made by or on behalf of the Director General under Pt IIIC of the old Stamp Act are assessments made by the Commissioner and, as a result, 'official assessments' within s 15 of the TAA. The necessary modification characterises the assessments made by or on behalf of the Director General as 'official assessments' rather than 'self‑assessments', for the purposes of the TAA, in that the Director General is a public officer performing statutory duties and his or her functions are therefore more analogous to those of the Commissioner than to a taxpayer making a self‑assessment.
Accordingly, I conclude that the relevant assessments made by the Director General, through the agency of the appellant, were 'official assessments' within s 15 of the TAA, and that the 2005 assessments made by the Commissioner were therefore 'reassessments'. Judge Eckert's decision that the 2005 assessments were not reassessments is, with respect, incorrect.
I turn now to consider whether:
(a)the Commissioner had power to make the reassessments (that is, the 2005 assessments) under s 16(2)(a) of the TAA; and
(b)s 35 of the Consequential Provisions Act precluded the Commissioner from making the reassessments and, further, whether s 35 restricted the nature of any reassessments.
By s 16(2)(a) of the TAA, subject to s 16(5), the Commissioner may make a reassessment, relevantly, on his or her own initiative, if it appears that a previous assessment is or may be incorrect for any reason.
Section 16(5) provides that if an assessment is based on a particular interpretation of the applicable law or a particular practice of the Commissioner that was generally applied to assessments of that kind when the assessment was made, then the Commissioner cannot make a reassessment based on the ground that the interpretation is or was erroneous.
Section 17(2)(b) provides that the Commissioner may make a reassessment at any time after the previous assessment was made if there are reasonable grounds for suspecting that there has been an evasion of duty, or that the previous assessment was made on the basis of false or misleading information.
Section 17(4) of the TAA provides, relevantly, that in any other circumstances the Commissioner may only make a reassessment within 5 years after the date of the original assessment.
In my opinion, subject to s 16(5) and s 17(2)(b) and (4) of the TAA, the Commissioner had power to make the reassessments (that is, the 2005 assessments) under s 16(2)(a) of the TAA. I will deal with s 16(5) and s 17(2)(b) and (4) in the context of ground 3 of the appeal.
As I have mentioned, by s 35 of the Consequential Provisions Act, despite Pt 3 div 1 of the TAA, the Commissioner must not make a reassessment that increases the amount of tax a person is liable to pay in relation to anything that happened before 1 July 2003, if the reassessment could not have been made under the old Stamp Act.
Before the TAA came into operation on 1 July 2003, the Commissioner had power to make an assessment under s 31A(1)(c) of the old Stamp Act in respect of the issue of a motor vehicle licence. That power was of general application and was not excluded or limited by the provisions of Pt IIIC.
In Venture Management Ltd v Commissioner of State Taxation (1991) 4 WAR 283, the Commissioner issued an assessment of duty under s 31(2) of the old Stamp Act in respect of an instrument and, after the duty had been paid, sought to reassess the duty chargeable on the instrument and issue a new assessment. Franklyn J held that when an instrument is produced for stamping, that production obliges the Commissioner to perform the function imposed on him by s 23 of the old Stamp Act. The production of the instrument carries with it a requirement within the meaning of s 31(1) of the old Stamp Act that he determine whether duty is payable and, if so, the amount of duty for the purposes of expressing his opinion and thereby making an assessment (293). The effect of s 31(4) of the old Stamp Act is that once the Commissioner has assessed duty and issued his assessment pursuant to s 31(2), he is bound by that assessment (293). The Commissioner cannot reassess an instrument in respect of which an assessment has issued (293). This result is produced by the 'issue' of an assessment under s 31(2)(a). Franklyn J said, in relation to s 31A:
It is not directed to an assessment of the 'duty chargeable' or the issue of an assessment thereof. It enables the Commissioner to make an assessment of the amount which in his judgment is the amount of duty which ought to be levied on a document which is not available to him and provides that he cause written notice of that assessment and the amount to be paid to be served on the person liable (294 ‑ 295).
His Honour added that s 31A is specific to the matters with which it deals and is not relevant to the general stamping of instruments presented to the Commissioner for stamping (295).
The decision in Venture Management is distinguishable from the present case in that in Venture Management the Commissioner issued an assessment under s 31(2) of the old Stamp Act and subsequently sought to reassess the duty chargeable and issue a new assessment. In the present case, the Commissioner did not make a prior assessment of duty under s 31(2) or at all.
The Director General's decision or determination (that is, his assessment), in the present case, that no duty was payable in respect of the issue of each of the motor vehicle licences in question was not the decision, determination or assessment of the Commissioner under the old Stamp Act. It did not preclude the Commissioner from exercising the power of assessment conferred by s 31A(1)(c) of the old Stamp Act. An assessment under that provision may be made where the Commissioner has formed the opinion, based on reasonable belief or suspicion, that a person is liable to pay any duty under the Act. Section 31A(1)(a) and (b) refer to 'any statement, return or other document'. By contrast, s 31A(1)(c) does not include any of those words. Section 31A(1)(c) applies whenever the Commissioner has reason to believe or suspect that any person is liable to pay any duty under the Act. It applies whether or not there is 'any statement, return or other document'. In those circumstances, the Commissioner is empowered to cause an assessment to be made of the amount which, in his judgment, ought to be levied, and the person in question is liable to pay that amount.
It appears that the Commissioner made the 2005 assessments on the basis of his belief or suspicion (which, on the Commissioner's case, was a reasonable belief or suspicion) within s 31A(1)(c) of the old Stamp Act that the appellant was liable to pay duty. If this aspect of the Commissioner's case is established before the Tribunal then, had s 31A(1)(c) continued in operation, the Commissioner would have been entitled to make the 2005 assessments.
A critical issue in the review proceedings before the Tribunal (bearing in mind that only the preliminary issues have been determined), is whether the purpose for which the motor vehicle licences were originally issued to the appellant is within s 76C(6)(b) of the old Stamp Act. The actual use to which the motor vehicles were put by the appellant after the issue of the licences may be probative of the appellant's purpose in relation to their use when it made application for the issue of the licences, and hence form a basis for the Commissioner's alleged reasonable belief or suspicion.
Accordingly, on the Commissioner's case in relation to his belief or suspicion, the Commissioner could have made the 2005 assessments under s 31A(1)(c) of the old Stamp Act (if it had continued in operation) and, in consequence, s 35 of the Consequential Provisions Act did not preclude the Commissioner from making reassessments under s 16(2)(a) of the TAA in respect of the licences in question.
Section 76D(4) and (5) of the new Stamp Act contains an exemption in similar terms to the exemption in s 76C(6) of the old Stamp Act. The current s 76I, which was introduced by the Stamp Amendment Act 2003 and commenced on 1 July 2003 (and subsequently amended), provides:
(1)If under section 76D(4), (5) or (5a) no duty was payable on the grant or transfer of a licence to a dealer, then while the dealer remains the licensee of the vehicle to which the licence relates the dealer must not use, or allow any other person to use, the vehicle for a purpose other than a purpose referred to in section 76D(4)(a), (5)(a) or (5a)(a).
Penalty: $20 000.
(2)If a dealer contravenes subsection (1) -
(a)the grant or transfer of the licence is taken not to be, and never to have been, exempt from duty under section 76D(4), (5) or (5a) (as the case may be);
(b)the grant or transfer of the licence is chargeable with penalty tax of an amount equal to the amount of duty chargeable on the grant or transfer of the licence; and
(c)the duty and penalty tax is due for payment within one month after an assessment notice is issued in respect of the grant or transfer of the licence.
It is unnecessary to refer to s 76D(5a).
In my opinion, the provisions of the current s 76I are not inconsistent with the Commissioner having power to issue an assessment under s 31A(1)(c) of the old Stamp Act if he had reason to believe or suspect that any person was liable to pay duty on the issue of a motor vehicle licence under the Act. The exemption under s 76C(6) of the old Stamp Act was concerned with the intended use of the motor vehicle in question when the applicant applied for the issue of the licence, even though s 76C(7) required the production of a certificate containing a warranty by the applicant that the vehicle would be used for the exempt purpose. The current s 76I(1) imposes a duty on an applicant who has been granted an exemption under s 76D(4) or (5) not to use, or allow any other person to use, the vehicle for a purpose other than the relevant exempt purpose. If that statutory duty is breached then, by s 76I(2), relevantly, the issue of the licence is taken not to be, and never to have been, exempt under s 76D(4) or (5), as the case may be.

In the present case, a critical issue in the review proceedings before the Tribunal is whether the purpose for which the motor vehicle licences in question were issued to the appellant is within s 76C(6)(b) of the old Stamp Act. The introduction of the current s 76I does not affect the proper construction of the statutory provisions which bear upon the issues raised by ground 2 of the appeal or the critical issue before the Tribunal.
It is unnecessary, in the circumstances, to consider whether the Commissioner could have based the 2005 assessments on the power conferred by s 31(2) of the old Stamp Act if s 31(2) had continued in operation.
Ground 2 of the appeal succeeds in part. Judge Eckert should have held that the 2005 assessments were reassessments, and that the Commissioner did not have power under s 15(2) of the TAA to make those assessments. However, her Honour was correct in deciding that s 35 of the Consequential Provisions Act did not, in the present case, prevent the Commissioner from making a reassessment or restrict the nature of any reassessment.

Ground 3 of the appeal: the relevant provisions of the TAA

Ground 3 of the appeal is based on the premise that, contrary to the appellant's submission, s 35 of the Consequential Provisions Act does not prevent or restrict the Commissioner from reassessing. In that event, the appellant's contention is that Judge Eckert should have held that the power to reassess is subject to the restrictions in s 16(5) and s 17(4) of the TAA.

Ground 3 of the appeal: the appellant's submissions

The appellant submitted, in reliance on s 16(5) of the TAA, that the Commissioner is unable to invoke the power to reassess under s 16 if the original assessment was based on a particular interpretation of the law or a particular practice that he or she generally applied.
It was submitted, on behalf of the appellant, that the Commissioner's particular practice that applied, in the present case, when the original assessments were made was the interpretation of the exemption in s 76C(6) of the old Stamp Act. According to the appellant, that particular practice was communicated by the Commissioner to the appellant in the letter dated 24 June 1997. See [34] above.
The appellant contended that the Commissioner acted in accordance with this particular practice when he refunded the duty previously paid on each licence for a vehicle used in the Drive‑A‑While Program. The refund was for licences issued before 24 June 1997, being the date on which the appellant obtained confirmation from the Commissioner of the exempt status of licences for vehicles used in that program.
The appellant submitted that the Commissioner cannot reassess the duty paid on the issue of each licence as the reassessment is a departure from the Commissioner's previous interpretation of the law and a departure from a particular practice that was applied when the original assessments were made.
Also, it was said that, under s 17(4) of the TAA, the Commissioner may only make a reassessment within five years after the date of the original assessment or on an application made within that five year period. It followed, so it was contended, that the Commissioner could not make a reassessment of the duty payable on any vehicle licence (that is, originally assessed) issued before 28 January 2000 (the 2005 assessments having been made five years after that date).

Ground 3 of the appeal: its merits

I have decided, in the context of ground 2, that the 2005 assessments were reassessments.
It is apparent that whether s 16(5) and s 17(2)(b) or (4) of the TAA apply, in the present case, depends on facts which are disputed or, at least, facts which were not agreed between the parties for the purposes of the hearing of the preliminary issues.
For example, the facts agreed between the parties, for the purposes of the hearing of the preliminary issues, do not establish that s 16(5) would apply to the 2005 assessments. In particular, the agreed facts do not establish that the 2005 assessments were made on the basis that there was a relevant preceding interpretation of the applicable law or a particular practice of the Commissioner that was generally applied to original assessments of the kind in question, and which the Commissioner now considers to be erroneous.
It is appropriate for the applicability of s 16(5) and s 17(2)(b) or (4) of the TAA to be remitted to the Tribunal for determination in the course of the final hearing of the appellant's application to review the Commissioner's disallowance of its objection.
Ground 3 of the appeal raises for decision issues which are not suitable, at this stage, for determination by this court. The ground fails.

Ground 4 of the appeal: the relevant statutory provisions

Ground 4 is an alternative ground to ground 2.
At all material times, s 26 of the old Stamp Act provided, relevantly, that all the facts and circumstances affecting the liability of an instrument to duty, or the amount of duty with which an instrument is chargeable, are to be fully set forth in the instrument or a document accompanying the instrument when it is presented for stamping.

Ground 4 of the appeal: the appellant's submissions

The appellant submitted that, in the present case, the availability of the exemption in s 76C(6)(b) of the old Stamp Act, on the issue of each motor vehicle licence, is to be determined by the purpose for which the appellant obtained that licence. The appellant's purpose in obtaining each licence was to place the vehicle in the Drive‑A‑While Program. The motor vehicle for which the application was made would, while the appellant was the holder of the licence, be used for the purposes of demonstrating the vehicle to prospective purchasers, and for no other purposes except minor incidental purposes. Accordingly, so it was submitted, the appellant's true purpose in obtaining each licence was plain when that licence was issued. No further enquiry is available in that there was no basis for the Commissioner to have regard to subsequent events when issuing the 2005 assessments.
According to the appellant, the Commissioner's inability to have regard to subsequent events when determining the purpose for which the appellant sought to obtain a licence is supported by Pt IIIC of the old Stamp Act (that is, the Act as it stood before the amendments introduced by the Stamp Amendment Act 2003). In particular, under Pt IIIC the Commissioner had no power to revoke an exemption granted under s 76C(6) where it was later determined that the vehicle the subject of the exemption was no longer demonstrated or, indeed, not demonstrated at all.

Ground 4 of the appeal: its merits

The general rule is that the liability of an instrument to stamp duty is to be ascertained by reference to the circumstances which exist when the instrument is executed. The court can, however, have regard to subsequent events for the purpose of discovering the true position at the time of execution. See DKLR Holding Co (No 2) Pty Ltd v The Commissioner of Stamp Duties (NSW) (1982) 149 CLR 431, 454 (Mason J, Stephen J agreeing).
Judge Eckert was correct, with respect, in deciding that evidence of the circumstances, matters and events that occurred or existed after the

date of issue of each licence in question were relevant in determining the appellant's purpose at the material time.

The Commissioner was entitled to take into account the subsequent circumstances, matters and events (in particular, the actual use of the vehicles) in deciding whether to issue each of the 2005 assessments, and in considering the appellant's objection to the Notice of Assessment. The subsequent circumstances, matters and events may also be taken into account by the Tribunal, in the course of determining the appellant's purpose or purposes at material times, on the hearing of the appellant's application to review the Commissioner's disallowance of its objection.
Ground 4 fails.

The grounds of contention

It is unnecessary, in the circumstances, separately to consider the grounds of the Commissioner's notice of contention. I have dealt, in substance, with ground 1 in the course of considering ground of appeal 2. Also, I have dealt, in substance, with ground 2 in the course of considering grounds of appeal 2 and 3.

Conclusion

Ground 1 of the appeal is made out. Ground 2 of the appeal succeeds in part. Judge Eckert's determination in relation to the first preliminary issue should be set aside and that issue should be determined as follows: the Commissioner had power to make the 2005 assessments under s 16(2) of the TAA, the old Stamp Act and s 34(3) of the Consequential Provisions Act, subject, however, to s 16(5) and s 17 of the TAA.
Otherwise, the appeal fails.
NEWNES AJA: For the reasons given by Buss JA, I would uphold ground 1 of the appeal and would uphold ground 2 to the extent described by Buss JA. I, too, would dismiss grounds 3 and 4. There is nothing I could usefully add to his Honour's reasons.