St Cloud Limited v The Commissioner of Land Tax

[1991] QLC 21

[1991] QLC 21

 

  LAND COURT

BRISBANE.

9th July, 1991.

Re:Appeal under Land Tax Act 1915 - 1990.

(A91-1)

St Cloud Limited

v.

The Commissioner of Land Tax

D E C I S I O N

On 14th January, this year St Cloud Limited (St Cloud) filed in the Office of the Registrar of the Court a notice of appeal against the decision of the Commissioner of Land Tax (the respondent) on an objection made by St Cloud against an assessment made by the respondent in respect of land owned by St Cloud as at midnight on 30th June, 1989. 
                  The assessment issued on 16th May, 1990.  The objection to the assessment was made by letter dated 24th May, 1990.  By letter dated 2nd July, 1990 the respondent advised St Cloud that the objection "has been considered and is allowed .... ".  This advice was followed by a formal notice of assessment (amended) issued on 1st August, 1990.  Then followed a series of letters between St Cloud and the respondent beginning with a letter from St Cloud's accountants (David A. Evans & Co) dated 13th August, 1990 and ending by letter to St Cloud dated 17th December, 1990 from the Honourable the Treasurer.  Mr I R MacLeod, Managing Director of St Cloud, took this date (17th December, 1990) as the date from which time would run for the filing of an appeal in Court under regulation 30 of the regulations to the Act.  This regulation in so far as is relevant provides -

"..... If the taxpayer is dissatisfied with the decision of the Commissioner, he may within thirty days after the date of the written notice of such decision appeal to the Land Court, and the original assessment, as altered or amended by the said decision, shall be the assessment appealed against; in all other respects the matter shall proceed as an ordinary appeal against an assessment, provided that the grounds of appeal shall be limited to the grounds of objection."

Regulation 32 provides that -

"The Commissioner and an appellant may agree to abridge or extend any of the periods of time specified in this Part."

If Mr MacLeod is correct in his assumption the appeal is within time.  The respondent however argues otherwise.  He argues that the Court has no jurisdiction to hear the appeal in that the appeal should have been filed in Court within 30 days of the date of issue of the assessment (amended) - this being the decision on objection.  His submission firstly is that the series of correspondence between the parties following the issue of the decision upon objection by the issue of the amended assessment cannot be taken as an objection; in which event time would run from the date of the decision upon that objection (December, 1990) since the regulations provide for only the one objection which if the owner is dissatisfied therewith must be taken on appeal and not by further objection.  Secondly he argues that the correspondence should not be taken as an agreement between the parties to extend time.  This latter submission is based for relevant purposes on the lack of any reference in the correspondence to time being extended. 
As to the first submission I agree with the respondent. It seems clear on a reading of the regulations and the Act that the objector has the right of objection once and that if dissatisfied with the decision he must test it by way of appeal to the Court and not by further objection. (The exception being apparent in s.20 when the Commissioner of his own volition amends an assessment). The second submission however turns on the question whether in the circumstances of the case the Court in the exercise of the powers vested in it under s. 41(5) (equity and good conscience provisions) of the Land Act should extend time in the absence of the Commissioner doing so.
                  This power may only be invoked by the Court if the matter is procedural rather than one of jurisdiction -

"The subsection contains no power to enable this Court to exercise a jurisdiction based on equity and good conscience nor do the introductory words of the subsection in the "Notwithstanding" phrase refer to the exercise of jurisdiction.  In other words the provisions operate only during the exercising of lawful jurisdiction and do not empower the Court to assume a jurisdiction or enable the Court to waive statutory requirements precedent to its jurisdiction."

(In re: Determination of Value of Improvements - Niall PPH - (1974) 1 Q.L.C.R. 180 LAC)

The distinction between jurisdiction and procedure however is not easy to define.  For a Court of statutory creation such as this Court jurisdiction to entertain a matter embraces both the subject matter of the dispute and the statutory procedures which must be implemented in order to move the Court -

"We think the words set out in Craies at page 246 are applicable - 'where a Statute confers jurisdiction upon a tribunal of limited authority and statutory origin the conditions and qualifications annexed to the grant must be strictly complied with'  "

(re: Ubank v. Queensland Housing Commission - (1954/55) 25 C.L.L.R. 5 at p 14 LAC)

In Garthwaite v. Garthwaite (1962) 2 All E.R. 233 at p 241-2 Diplock L.J. said -

"....... the expression "jurisdiction" of a court may be used in two different senses, a strict sense (which he regarded as the only correct one) and a wider sense.  I think, with respect, that he defined the strict sense too narrowly, for it would not embrace the court's lack of jurisdiction to entertain a suit based on the personality of a party, as for instance against a foreign sovereign or ambassador.  However, it is important for the purposes of the present appeal to distinguish between the two senses in which the expression is used.  In its narrow and strict sense, the "jurisdiction" of a validly constituted court connotes the limits which are imposed on its power to hear and determine issues between persons seeking to avail themselves of its process by reference (i) to the subject-matter of the issue, or (ii) to the persons between whom the issue is joined, or (iii) to the kind of relief sought, or any combination of these factors.  In its wider sense it embraces also the settled practice of the court as to the way in which it will exercise its power to hear and determine issues which fall within its "jurisdiction" (in the strict sense), or as to the circumstances in which it will grant a particular kind of relief which it has "jurisdiction" (in the strict sense) to grant, including its settled practice to refuse to exercise such powers or to grant such relief in particular circumstances.  This distinction between the strict and the wider meaning of the expression "jurisdiction" was of little importance in the case of the superior courts so long as they did not owe their origin to statute, for there was no need to distinguish between non-existence of a power and settled practice not to exercise an existing power.  However, in the case of courts created by stature, as the Supreme Court of Judicature, comprising the High Court and the Court of Appeal, has been since 1873, the court has no power to enlarge it jurisdiction in the strict sense, but it has power to alter its practice proprio motu within the limits which it imposes on itself by the doctrine of precedent, subject, however, to any statutory rules regulating and prescribing its practice and procedure made pursuant to any rule-making power contained in the statute."

The statutory procedures for invoking the jurisdiction of the Court in this matter are contained within the regulations and within the Rules of the Court (re: Land Tax Appeals). Rule 1 (the only rule relevant in this case) says no more than is contained in regulation 30. Were they expressed in mandatory form failure to file an appeal within the prescribed time would be fatal to the hearing of the appeal. The procedures, however, are not expressed in such form. The power to extend such time (regulation 32) in my opinion places these procedures in their true sense as procedures which may be waived by the respondent or failing waiver may be considered by the Court under the equity and good conscience provisions of the Land Act (Rule 20 of the general rules of the Court would appear to have relevance in a case of this nature). The Court however does not act in this regard without good cause - the equity and good conscience provisions so imply. Assume for example that nothing had transpired between St Cloud and the respondent between the date of the issue of the amended assessment and the date of filing of the appeal. Refusal by the respondent to extend time in those circumstances would be proper and as a consequence the appropriate order would be to strike out the appeal as incompetent. The circumstances here however are different. St Cloud could have lodged an appeal within 30 days of the notice of the amended assessment and then carried on negotiations with the respondent on a without prejudice basis assuming that the respondent was prepared to do so. This course was not taken. Rather the amended assessment was questioned on a formal and open basis, the question was accepted and negotiations continued openly between the parties until 17th December, 1990 when they were put at an end. In these circumstances it is reasonable to conclude on the application of the principles contained in s. 41(5) (which in my opinion are not negatived by the absence in the correspondence by either party to the subject matter in dispute) that the time should be extended until that date. I accordingly find that the submission of the respondent has no merit and that the Court has jurisdiction to proceed to the next matter in dispute.

Member of the Land Court.