Steber v Chief Commissioner of State Revenue
[2014] NSWCATAD 135
•09 September 2014
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Steber v Chief Commissioner of State Revenue [2014] NSWCATAD 135 Hearing dates: Final submissions were received on 19 July 2014. Decided on the papers in accordance with a direction by the Tribunal on 29 July 2014. Decision date: 09 September 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: N S Isenberg, Senior Member Decision: The decision under review is affirmed
Catchwords: Regional relocation grant. Discretion of the Chief Commissioner. Distance requirement. Legislation Cited: Administrative Decisions Review Act 1997
Regional Relocation Grants Act 2011
Regional Relocation Grants Order 2014
Regional Relocation (Home Buyers Grant) Act 2011
Regional Relocation (Home Buyers Grant) Amendment Act 2013Cases Cited: B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187, (2008) 74 NSWLR 481
Cornish Investments Pty Limited v Chief Commissioner of State Revenue (RD) [2013] NSWADTAP 25
FC of T v Wade (1951) 84 CLR 104
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
Stature Pty Ltd -v- Chief Commissioner of State Revenue [2002] NSWADT 271Category: Principal judgment Parties: John Alexander Steber and Charmian Steber (Applicants)
Chief Commissioner of State Revenue (Respondent)Representation: Counsel
L J Byrne (Respondent)
J Steber and C Steber (Applicants in persons)
Crown Solicitor's Office (Respondent)
File Number(s): 1410171
reasons for decision
Background
This matter is an application under s 45 of the Regional Relocation Grants Act 2011 ("RRG Act") for an administrative review by the Tribunal of the Respondent's decision not to pay a relocation grant to the Applicants. Occasionally the Respondent is referred to as the Chief Commissioner in this decision.
A brief factual chronology is:
(1) 14 September 2013 the Applicants exchanged contracts to sell their residence at Wyong ("the metropolitan home").
(2) 15 October 2013 the Applicants exchanged contracts to purchase vacant land and a caravan with a fibro annex, outdoor toilet and laundry at Bonnells Bay ("the regional home").
(3) 5 December 2013 the Applicants signed an application for a grant ("the Grant Application").
(4) 10 December 2013 the Applicants completed the purchase of the regional home.
(5) 30 December 2013 the Registrar General issued a certificate of title certifying that the Applicants owned the regional property.
(6) 13 January 2014 the Grant Application was received by the Office of State Revenue ("OSR").
(7) 21 January 2014 the OSR issued a letter informing East Coast Conveyancing, which had acted for the Applicants on both conveyances and had lodged the Grant Application, that the Grant Application was denied as the eligibility criteria under s 15(2)(a1) of the RRG Act, requiring that the metropolitan home must be at least 100 km in a straight line from the regional home (the "Distance Requirement"), was not satisfied.
(8) 31 January 2014 East Coast Conveyancing sent a request to the OSR for the Chief Commissioner to reconsider the decision rejecting the Grant Application and to allow the grant to be paid.
(9) 10 February 2014 the OSR issued a letter to East Coast Conveyancing advising that the 31 January 2014 request had been considered and was rejected. The letter noted that the legislation allowed no discretion to accept an application where it failed the distance requirement if it was received by OSR on or after 1 January 2014.
(10) 19 February 2014:
(a) the OSR received a facsimile dated 18 February 2014 from East Coast Conveyancing objecting to the ruling denying the grant and requesting the Chief Commissioner to use his discretion to pay the grant to the Applicants; and
(b) the Applicants sent an email to the OSR objecting to the decision to deny the grant and requesting that the application be reconsidered.
(11) 10 March 2014 the OSR issued a letter to East Coast Conveyancing advising that East Coast Conveyancing's objection was disallowed ("the Decision").
(12) 7 April 2014 an unsigned and undated Administrative Review Application Form ("the Review Application") was received at the Tribunal together with supporting documents. The Review Application named East Coast Law Pty Ltd trading as East Coast Conveyancing as applicant and Paul Bollen of East Coast Law as the applicant's legal representative.
(13) 15 May 2014:
(a) the Tribunal received a letter dated 14 May 2014 from East Coast Law stating that the applicant was withdrawing the Review Application and that this had been agreed to by the Respondent; and
(b) the Tribunal wrote to Mr Paul Bollen and to the Crown Solicitors Office advising that East Coast Conveyancing was no longer proceeding with the matter and it was listed for dismissal on 3 June 2014.
(14) 29 May 2014 the Tribunal received a facsimile from the Applicants stating that they were unaware that the matter was to be before the Tribunal on 3 June 2014 nor were they informed by East Coast Conveyancing that it had filed an objection, nor that it had requested that the Review Application be withdrawn. The Applicants requested that the Review Application proceed.
(15) 3 June 2014 during a directions hearing attended by Mr Steber by telephone and by a representative of the Respondent, the Tribunal ordered that Mr and Mrs Steber be joined as applicants and that East Coast Conveyancing be removed as an applicant.
(16) 2 July 2014 the Tribunal received a letter from the Applicants dated 29 June 2014 making submissions in relation to the Grant Application and in support of the Review Application.
(17) 29 July 2014 the Tribunal ordered that this matter be determined on the papers.
Powers of Tribunal on review
In accordance with s 46 of the RRG Act, on a review the Tribunal may confirm, vary or reverse the Decision and make any further orders as to costs or otherwise that it thinks fit. In addition s 63 of the Administrative Decisions Review Act 1997 ("the ADR Act") provides that the Tribunal may affirm, vary or set aside the Decision or make a decision in substitution for the Decision or remit the matter for reconsideration by the Chief Commissioner in accordance with any directions or recommendations of the Tribunal.
The law
The Regional Relocation (Home Buyers Grant) Act 2011 ("the HBG Act") took effect on 22 June 2011. The object of the HBG Act was to provide assistance to persons who purchased homes in regional areas and did so as part of relocating from a metropolitan area. The assistance took the form of a grant of $7,000 in respect of an eligible home relocation. In 2013 the Regional Relocation (Home Buyers Grant) Amendment Act 2013 caused several changes to the grant legislation to take effect from 1 January 2014 including:
(1) The HBG Act was renamed the Regional Relocation Grants Act 2011.
(2) The operation of the grants legislation was extended to permit grants to be made available to persons who relocated from metropolitan areas to regional areas for the purposes of employment, self-employment or purchasing a home, whether or not those persons owned the metropolitan homes in which they resided.
(3) The 100 km Distance Requirement applied unless the Chief Commissioner had already received a grant application.
(4) The relevant Minister was authorised to specify circumstances in which a relocation was taken to be eligible despite a Distance Requirement not being met.
On 12 May 2014 the Minister exercised the power referred to in the previous paragraph subject to certain conditions. Relevant details are at [22] below.
Relevant excerpts from the RRG Act, including those with effect 1 January 2014 are:
Regional Relocation Grants Act 2011
Part 2 Regional relocation grants
Subdivision 2 Eligible home relocation
Eligible home relocation
The purchase of a home by an applicant is an eligible home relocation if the requirements set out in this Subdivision are satisfied.
11 Purchase must be completed
(1) The purchase of the regional home must be completed.
(2)For the purposes of this Act, a purchase of a regional home is completed when the applicant becomes entitled to possession of the land purchased and, if the interest in the land acquired by the applicant is registrable under a law of the State, the interest is so registered.
15 Applicant must relocate from metropolitan area
(1)....
(2) Home owners in metropolitan areas
An applicant relocates from a metropolitan area if:
(a)...and
(a1) the metropolitan home is at least 100 kilometres in a straight line from the regional home,
Part 3 Application for grant
23 Making of applications
(1) An application for a regional relocation grant is to be made to the Chief Commissioner in an approved form.
(2) An application for a regional relocation grant is to be accompanied by such documents or other evidence as may be required by the Chief Commissioner to demonstrate the applicant's eligibility for the grant.
(3) An application for a regional relocation home buyers grant cannot be made before the purchase of the regional home is completed but may be made before the applicant has used and occupied the regional home as a principal place of residence for the period required by section 16 (1).
(4)...
26 Chief Commissioner to decide application
(1) The Chief Commissioner is to decide whether a regional relocation grant is payable in respect of an application.
(2) A regional relocation grant is to be paid on an application only if the Chief Commissioner authorises payment of the grant.
26A Grant may be paid despite relocation being less than 100 kilometres
(1) In this section:
distance requirement means, in respect of an eligible relocation, a requirement that any of the following be at least 100 kilometres from a specified place in a metropolitan area:
(a) a regional home,
(b) a principal place of residence, principal place of employment or principal place of business in a regional area.
eligible relocation means an eligible home relocation, an eligible employment relocation or an eligible self-employment relocation.
(2) The Minister may by order published on the NSW legislation website specify circumstances in which a relocation is taken, for the purposes of this Act, to be an eligible relocation despite a distance requirement not being met.
Part 5 Objections and reviewsDivision 2 Reviews
45 Administrative reviews by Civil and Administrative Tribunal
(1) An objector may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision (the original decision) to which the objection was made if:
(a) the objector is dissatisfied with the Chief Commissioner's determination of the objection, or...
(2) The applicant's and respondent's cases on an application for an administrative review are not limited to the grounds of the objection.
(3) The applicant has the onus of proving the applicant's case in an application for an administrative review.
Schedule 1 Savings, transitional and other provisions
Part 3 - Provisions consequent on Regional Relocation (Home Buyers Grant) Amendment Act 2013
"7 Metropolitan home must be at least 100 kilometres from regional home
(1) Section 15 (2) (a1), as inserted by the amending Act, applies in respect of the purchase of a regional home that occurred before the commencement of that paragraph but not if the Chief Commissioner has already received an application for the payment of a grant in respect of the purchase.
(2) Section 26A, as inserted by the amending Act, applies in respect of the purchase of a regional home if section 15 (2) (a1) applies in respect of the purchase."
The Applicant's Case
The Applicants relied on:
(1) the Grant Application and the Review Application;
(2) letters / facsimiles to the OSR from East Coast Conveyancing dated 31 January 2014 ("AS2") and 18 February 2014 ("AS3") and from East Coast Law dated 1 April 2014 ("AS1");
(3) letters / facsimiles from the Applicants to the OSR on 19 February 2014 ("AS5") and 28 February 2014 ("AS4") and to the Tribunal received 29 May 2014 but undated, received 2 July 2014 dated 29 June 2014; and
(4) telephone submissions by Mr Steber to the Tribunal on 3 June 2014 ("AS4").
The grounds put forward for the Applicants by East Coast Law Pty Ltd were:
(1) the Applicants satisfied all requirements for the grant by the end of 2013 other than lodging the Grant Application before 1 January 2014.
(2) Settlement of the purchase of the regional home occurred 10 December 2013 and the certificate of title was registered 30 December 2013 "making it impossible to lodge the application by the due date".
(3) The office of East Coast Law was closed from 20 December 2013 to 6 January 2014.
(4) After East Coast Law returned to work they received the certificate of title, obtained a title search and sent the Grant Application to the OSR. East Coast Conveyancing was "not physically able to lodge the Application until we return to work after the Christmas closure in January 2014" (AS3).
(5) It is unfair for the grant not to be approved because the only requirement not satisfied was "lodging the application by 31 January 2013 due in part to the extremely busy Christmas period" (AS1) and the "transfer had to be sent for registration to the LPI in the busiest time of the year" (AS2) .
(6) It is grossly unfair for the Grant Application to be disallowed because the OSR "in the past had always used the date of the contract to determine deadlines" (AS1).
(7) As at the time of both settlement and registration of purchase of the regional home the Applicants satisfied the criteria in the RRG Act.
(8) It was not the fault of the Applicants that the Grant Application was not lodged in time.
(9) "In accordance with s26 and s26A of the Relocation Grants Act 2011 (sic) the grant may be paid by discretion by the Commissioner if the distance is less than 100 kilometres" (AS3).
The grounds put forward by the Applicants were:
(1) They find the "new law totally discriminative to anyone that settled on a property and was eligible for the relocation grant under the ruling 2013 as we did nearing the end of 2013. At that time of the year companies have increased workloads and also close for the holidays" (AS4).
(2) The "ruling was made without consideration of anyone that bought late in the year as the Land and Titles Office (sic) another government department that can take up to six weeks to register a transfer. This amount of time was not taken into account when the new ruling was made" (AS4).
(3) They "relied on East Coast Conveyancing to submit all necessary documents for the grant in a timely manner" (AS4).
(4) Their decision to relocate to the regional home was made "with the grant in mind" (AS5).
(5) When they settled the purchase on 10 December 2013 "there was no mention to any changes to the grant"(AS5).
(6) There was a mini land boom at the time of regional home purchase and Mr Steber was informed that the Lands Department was "inundated with title transfers". (AS5)
(7) Unusual circumstances including the approaching holidays and the real estate boom were outside their control and they feel they are being discriminated against.
(8) "The OSR has a duty of care... and... anyone that settled before the 1st January 2014 that met the criteria of 2013 should be eligible for the grant, even if the application was received after the 1st January, 2014. This would show equal opportunity on the part of the OSR for all eligible applicants in 2013 to receive the grant. The new law is discriminating against Australian citizens and was made without consideration of other government departments that are involved in preparing the application."(AS4)
(9) "The OSR website still showed the 2013 criteria on the last update 23rd of December 2013. Is that really fair to still advertise criteria that applicants could not possibly meet the deadline with." (AS4)
(10) They recently found out that their chronically ill daughter was in worse health than they were previously aware and expensive treatment was being considered.
The Respondent's case
The Respondent relied on the bundle of section 58 documents comprising 49 pages received at the Tribunal on 5 June 2014 and submissions by Mr L.J. Byrne dated 15 July 2014 received at the Tribunal on 16 July 2014 ("RS").
In summary the Chief Commissioner's position as set out at [2] in RS is
(a) "the only reviewable decision involved was his refusal of the Stebers' regional relocation grant application;
(b) the Chief Commissioner was obliged to refuse that application by the terms of the RRG Act; and
(c) the Chief Commissioner's decision cannot now be disturbed".
Mr Byrne provided background reasoning in RS some of which is referred to below.
Consideration
Issues
There is no real dispute between the parties as to the relevant facts, including the events detailed at [2] above. The issues before the Tribunal and the statutory questions to be answered are whether the Applicants complied with the conditions for the Grant; if not, whether the Chief Commissioner had a discretion which he could have exercised in favour of the Applicants; and is the exercise of that discretion reviewable by the Tribunal.
Onus and standard of proof
In accordance with s 45(3) of the RRG Act "The applicant has the onus of proving the applicant's case in an application for administrative review." Section 45(2) provides that in such an application the cases for both parties are not limited to the grounds of the objection originally raised by the Applicant with the Respondent. This decision has regard to issues raised by the parties in submissions and the documents referred to from [7] to [11] above.
The requisite standard of proof in reviews by the Tribunal is the "balance of probabilities". Cornish Investments Pty Limited v Chief Commissioner of State Revenue (RD) [2013] NSWADTAP 25 at [31] and B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187, (2008) 74 NSWLR 481 at [104]. In order for the Applicants to succeed it is necessary for them to establish the facts on which they rely (B & L Linings at [87]).
Did the Applicants comply with the eligibility conditions for the grant?
Section 8 of the RRG Act states that a purchase is only an eligible home relocation if the requirements set out in Subdivision 2 of Part 2 of that Act are satisfied. If the Grant Application had been lodged with the OSR on or before Tuesday, 31 December 2013 there seems little doubt that the Applicants would have been eligible to receive the Grant.
For applications lodged from 1 January 2014 the grant requirements included a condition, at s 15(2)(a1) of the RRG Act, that the metropolitan home and the regional home must be at least 100 kilometres apart.
At page 36 of the s 58 documents, the OSR Regional Relocation Grant Objection Determination Report ("the Determination Report") states with some precision that the distance between the metropolitan home and the regional home is 22.211 kilometres. This is described more broadly at [8] and [19] in RS as a distance of about 30 kilometres. The Applicants have not disputed these distances. At the time of lodging the Grant Application the Applicants failed to comply with the Distance Requirement in s 15(2)(a1). Accordingly they were not eligible applicants for the grant.
The 100 km Distance Requirement was reduced on 12 May 2014 by the Regional Relocation Grants Order 2014 to a distance of 50 km [4(3)(a)] subject to several conditions including that the grant application was not made before 12 May 2014 [4(2)]. The Applicants are unable to benefit from the Order because they did not comply with the 50 km distance requirement and their application was received by the Chief Commissioner before 12 May 2014.
The Chief Commissioner's Discretion
In AS3 East Coast Law submitted that "the grant may be paid by discretion by the Commissioner if the distance is less than 100 kilometres" in accordance with s 26 and s 26A of the RRG Act.
Section 26, which is set out at [6] above provides the mechanism by which grant applications are to be dealt with. It does not provide a discretionary power to the Chief Commissioner to disregard statutory requirements..
Section 26A makes no reference to the Chief Commissioner and does not provide him with any discretion. The section refers to the 100 km Distance Requirement and enables the Minister (not the Chief Commissioner), by following a statutory procedure, to specify circumstances in which a relocation is to be regarded as an eligible relocation "despite a distance requirement not being met". The Review Application is an application concerning the decision of the Chief Commissioner to disallow the Grant Application. It is not an application for the Tribunal to review any decision by the Minister.
No notice of changes to the grant requirements and lack of time to act
The Applicants submitted that when they settled the purchase on 10 December 2013 "there was no mention to any changes to the grant" (AS5).
The submission is not correct. The legislation which created the 100 km Distance Requirement was introduced to the Legislative Assembly on 30 October 2013. By 13 November 2013 the legislation had passed both Houses of Parliament and was assented to on 20 November 2013. Accordingly the law providing for the 100 km Distance Requirement with effect from 1 January 2014 and the requirement that grant applications had to be lodged before that date in order to avoid the Distance Requirement were a matter of public record for nearly 3 weeks before settlement of the purchase and more than 5 weeks before the changes took effect.
It was submitted for the Applicants that in 2013 there was an "extremely busy Christmas period" (AS1), the transfer was "sent for registration to the LPI in the busiest time of the year" (AS2), and the LP was "inundated with title transfers" (AS5). The fact is that it is not unusual for completion of settlements of property transactions to have a seasonal peak in December each year. This is not a sufficient reason to fail to comply with a statutory time limit.
The Applicants submitted that their decision to relocate to the regional home was made "with the grant in mind" (AS4). It may be that the Applicants informed East Coast Conveyancing of this intention some time before settlement as the Grant Application form was apparently signed on 5 December 2013. It may also be that either the Applicants or East Coast Conveyancing attempted to bring forward the date of settlement, or to expedite registration of the transfer of the regional home by the LPI or to use the services of an agent in Sydney who could lodge the Grant Application with the OSR as soon as registration had occurred. However there is no evidence before the Tribunal that any of these attempts were made. Nor is there any evidence as to when the transfer documents were lodged with LPI. Rather the evidence is that settlement of the purchase took place some 8 weeks after exchange of contracts and East Coast Conveyancing closed its office for holidays from 20 December 2013 to 6 January 2014 and sought to deal with the Grant Application after returning from holidays, when the change of law had already taken effect.
OSR website as at 23 December 2013
The Applicants stated "The OSR website still showed the 2013 criteria on the last update 23rd of December 2013" (AS4).
At [11] and [27(a)(i)] in RS, counsel for the Respondent referred to the Applicants' claim concerning the website. The Chief Commissioner did not deny the accuracy of the claim and the website is not otherwise referred to in any submissions for the Chief Commissioner. For the purpose of this decision I am prepared to accept that the OSR website at 23 December 2013 made no reference to the impending change to relocation grant conditions.
There is no submission that the website did not correctly state the relevant law and procedure as at 23 December 2013. The Applicants submit that it was not fair to advertise criteria that applicants could not possibly meet. In the case of the Applicants in this matter there is no evidence that it was not physically possible for an appropriate application to have been lodged with the OSR by close of business on Tuesday, 31 December 2013.I appreciate that the available time to lodge the Grant Application after registration of the transfer was very short. However there is no evidence nor any submission that any attempt was made to expedite settlement or registration or lodgement of the application nor is there evidence as to the date the transfer documents were lodged with LPI. There is no evidence as to when the Applicants or their then legal advisers became aware of the change in legislation.
It would no doubt have been preferable for the website to have contained details of the impending change to the grant requirements. It may be that the apparent failure of the website to contain such details was an error on the part of the OSR. What is the legal effect of such an apparent error? Does it require the Chief Commissioner to disregard the clear wording of the RRG Act? In Stature Pty Ltd -v- Chief Commissioner of State Revenue [2002] NSWADT 271 Verick JM said at [11] "the doctrine of estoppel does not apply to prevent the Chief Commissioner from attending to his statutory duties". In the High Court decision of FC of T v Wade (1951) 84 CLR 104 Kitto J said at [7] "it is clear that no conduct on the part of the Commissioner could operate as an estoppel against the operation of the Act". These 2 decisions dealt respectively with land tax and income tax. However in my opinion the principles apply to the administration of the RRG Act where the law has not given the Chief Commissioner a relevant discretion.
Prior inconsistent conduct by the OSR
East Coast Conveyancing submitted at AS1 that it was grossly unfair for the Grant Application to be disallowed because the OSR "in the past had always used the date of the contract to determine deadlines".
No evidence was provided to support this submission nor was it expressly stated that the date of the contract was used to determine deadlines in relation to Grant Applications in comparison with the date of the contract being used for other matters such as determining the relevant date for the imposition and payment of stamp duty on the purchase of property. The submission is rejected both for the lack of supporting evidence and having regard to the principles set out in [30] above.
General unfairness and discrimination
The Applicants submitted that the new law discriminates against Australian citizens, does not consider delays by government departments, and does not consider the circumstances of persons who were eligible for the relevant for a relevant grant in 2013 but did not lodge an application until after the legislation changed.
The OSR letter of 10 March 2014 to East Coast Conveyancing pointed out that to approve the Grant Application when the Applicants did not satisfy the eligibility criterion prescribed by s 15(2)(a1) of the RRG Act would be inequitable to other applicants who have not received the grant in similar circumstances. I note that it would also be inequitable to applicants who may have taken steps to expedite their settlement dates, registration of transfers or lodgement of applications in order to comply by 31 December 2013 with the change in law which was on the public record from at least 20 November 2013.
Mr Byrne submitted at [34] - [37] in RS that s 63(1) of the ADR Act requires the Tribunal "to decide what the correct...decision is having regard to ...any applicable written or unwritten law". He referred to the decision of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 in which McHugh, Gummow, Kirby and Hayne JJ, comprising a majority of the court said at [91]:
"An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition."
Their Honours then said at [100] that even if the relevant act was not invalid, such an act would be "a breach of the Act and therefore unlawful".
Accordingly Mr Byrne submitted that if the Tribunal set aside the decision of the Chief Commissioner to disallow the Grant Application, the action of the Tribunal would result in a decision that did not comply with the law and would not be "correct".
I accept Mr Byrne's submission.
Special unfairness and discrimination and no fault on the part of the Applicants
The Applicants submitted that they recently found out that their chronically ill daughter was in worse health than they were previously aware and they were considering expensive treatment. This may well be the case and the Tribunal can only sympathise with them and their daughter. However this Tribunal has no jurisdiction which would enable it to assist in the circumstances.
It was submitted by East Coast Conveyancing that it was not the fault of the Applicants that the Grant Application was not lodged on time and the Applicants submitted that they "relied on East Coast Conveyancing to submit all necessary documents for the grant in a timely manner" (AS4)
These submissions may well be correct. However neither the Applicants nor East Coast Conveyancing have produced evidence of any relevant discretion which the Chief Commissioner failed to exercise in their favour and which might form the basis of a favourable decision by this Tribunal.
Decision
Having regard to the above findings on the material before me, the Applicant has not satisfied me that it is more likely than not that the Chief Commissioner had a discretion which he could have exercised in favour of allowing the Grant Application.
The correct and preferable decision of this Tribunal is that the decision of the Chief Commissioner under review is affirmed.
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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
Decision last updated: 10 September 2014
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