Vicinity Funds Re Ltd v Commissioner of State Revenue

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2021 0128

VICINITY FUNDS RE LTD (ACN 084 098 180) & ORS (ACCORDING TO THE SCHEDULE)	Applicants
v
COMMISSIONER OF STATE REVENUE	Respondent

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JUDGES:	KYROU, SIFRIS and WALKER JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	2 August 2022
DATE OF JUDGMENT:	24 August 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 176
JUDGMENT APPEALED FROM:	[2021] VSC 687 (Nichols J)

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TAXATION – Statutory construction – Taxation Administration Act 1997 – Applicants lodged objections following notices of assessment – Objections remained undetermined for over two years – Objections set down as appeals in Supreme Court pursuant to s 106(1)(b) – Commissioner disallowed objections – Applicants thereafter requested referrals to Victorian Civil and Administrative Tribunal pursuant to s 106(1)(a) – Whether Commissioner under duty to make referrals after having already set down objections as appeals – Section 106(1) affords taxpayer with one request as to appeal or review – Appeal dismissed.

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Counsel
Applicants:		Mr DJ McInerney QC with Ms K Chan
Respondent:		Mr R Merkel QC with Mr E Nekvapil and Ms R Amamoo
Solicitors
Applicants:	King Wood & Mallesons
Respondent:	Solicitor for the Commissioner of State Revenue

KYROU JA
SIFRIS JA
WALKER JA:

Introduction and summary

In 2007, the applicants acquired the leases to two parcels of land in Melbourne’s city centre on which two large shopping centres, Myer and Emporium, are now located. The lease agreements included call options which gave the applicants the right to purchase each parcel of land for $1. In March 2018, the applicants exercised their call options and acquired the lands. Soon after, the applicants requested an urgent assessment from the Commissioner of State Revenue as to the duty payable on their recent acquisitions.
In late April 2018, the Commissioner issued two notices of assessment pursuant to s 8(1) of the Taxation Administration Act 1997 (‘TAA’ or ‘the Act’) which assessed the total duty payable as being approximately $82 million. The applicants were dissatisfied with that assessment and lodged notices of objection with the Commissioner pursuant to s 96(1) of the TAA. They paid the assessed amount under protest.
After more than two years, the applicants’ objections remained undetermined by the Commissioner. On 30 September 2020, the applicants served notices on the Commissioner under s 106(1)(b) of the TAA requesting the Commissioner to treat the objections as appeals and cause each objection to be set down for hearing before the Supreme Court. On 11 January 2021, the objections were set down for hearing as appeals.
On 2 March 2021, before the hearing of the appeals commenced, the Commissioner disallowed the objections and provided written notice of the determinations to the applicants. On 29 April 2021 the applicants requested, pursuant to s 106(1)(a) of the TAA, that the Commissioner refer each determination to the Victorian Civil and Administrative Tribunal (‘VCAT’ or ‘the Tribunal’) for review. The Commissioner advised the applicants that he did not consider there to be a proper basis for the exercise of the power under that section and declined to refer the determinations to the Tribunal. The applicants then commenced a further proceeding in the Supreme Court, seeking an order in the nature of mandamus directing the Commissioner to refer the determinations to the Tribunal for review.
The trial judge concluded that the Commissioner had no power or duty to refer the determinations to the Tribunal and ordered that that application be dismissed.[1]
[1]Vicinity Funds Re Ltd v Commissioner of State Revenue (No 2) [2021] VSC 687 (‘Reasons’).
The applicants now seek leave to appeal from the trial judge’s decision on to the following proposed grounds:
1. The trial judge incorrectly construed s 106 of the Taxation Administration Act 1997 (TAA) and thereby erred in concluding that the Commissioner was not under a duty to refer the matters to the Victorian Civil and Administrative Tribunal (VCAT) consequent upon the requests made by the applicants under s 106(1)(a) of the TAA, and had no power to make such referrals.
2.The trial judge should have concluded that the Commissioner was under a duty to refer the matters to VCAT consequent upon the requests made by the applicants under s 106(1)(a) of the TAA.[2]
[2]The proposed grounds will be referred to as grounds, for convenience.
As can be seen, the grounds of appeal are directed to the construction of s 106(1) of the TAA. The applicants contend that, by virtue of sub-sections (1)(a) and (1)(b), a taxpayer is afforded two distinct entitlements to have the same objection referred to the Tribunal and the Supreme Court. In contrast, the Commissioner contends that the legislative regime does not allow a taxpayer to twice elect between an appeal and a review. According to the Commissioner, once he had discharged his duty under s 106(3) to act upon the applicants’ initial requests under s 106(1)(b) to have their objections set down as appeals in the Supreme Court, he was not compelled or empowered to act on a subsequent request to have the matter referred to the Tribunal.
Furthermore, by notice of contention the Commissioner contends that, even if s 106 were construed in the manner for which the applicants contend, an order in the nature of mandamus ought to be refused on discretionary grounds.
For the reasons that follow, we would grant leave to appeal but dismiss the appeal. In short, the trial judge was correct to hold that s 106(1) of the TAA does not confer upon taxpayers two distinct entitlements to pursue an appeal to the Court and a review in the Tribunal in relation to an objection. Rather, once a taxpayer has elected a forum in which to pursue an appeal or review, s 106(1), construed by reference to its text, context and purpose, is spent and s 106(3) does not permit or require the Commissioner to refer a matter concerning the same objection to a second forum.

The legislative regime

The purpose of the TAA is, relevantly, to make general provision for the administration and enforcement of taxation laws.[3] In furtherance of this purpose, the Commissioner has a general power to make an assessment of a tax liability of a taxpayer.[4] ‘Assessment’ is defined to mean an assessment made by the Commissioner under pt 3 of the Act.[5] The Commissioner must serve a notice of assessment on the taxpayer,[6] and the taxpayer must pay the amount assessed as provided for in the relevant taxing statute.

Pt 10 of the TAA: Objections, reviews and appeals

[3]TAA, s 1.

[4]TAA, s 8.

[5]TAA, s 3(1).

[6]TAA, s 14(1).

The avenues by which a taxpayer may object to, seek review of, or appeal from an assessment are governed by pt 10 of the TAA.
Division 1 of pt 10 sets out the process by which objections are made by the taxpayer and determined by the Commissioner. Relevantly, s 96(1)(a) provides as follows:
A taxpayer may lodge a written objection with the Commissioner if the taxpayer is dissatisfied with—
(a)an assessment, other than a compromise assessment;…
Section 96(2) provides as follows:
No court or administrative review body, including the Tribunal, has jurisdiction or power to consider any question concerning an assessment or decision referred to in subsection (1), except as provided by this Part.
Section 96(2) is a privative clause that is designed to ensure that pt 10 operates as an exclusive code for the matters with which it deals.[7]
[7]Commissioner of State Revenue Victoria v Gas Ban Pty Ltd (in liq) (2011) 31 VR 397, 409 [53], 409–10 [55] (Nettle and Mandie JJA and Hargrave AJA); [2011] VSCA 89, applying FJ Bloeman Pty Ltd v Commissioner of Taxation (Cth) (1980) 147 CLR 360, 375 (Mason and Wilson JJ); [1981] HCA 27 to pt 10 of the TAA. Section 135(1) of the TAA provides that it is the intention of s 96(2) to alter or vary s 85 of the Constitution Act 1975.
The taxpayer must state the grounds for the objection fully, in detail and in writing;[8] and the objector has the onus of proving their case.[9] An objection must be lodged with the Commissioner within 60 days after the date of service of the notice of the assessment or decision on the taxpayer, except as provided by section 100.[10]
[8]TAA, s 97(1).
[9]TAA, s 98.
[10]TAA, s 99(1). Section 100 governs objections lodged out of time; it is not presently relevant.
Section 101 is headed ‘Determination of objection’ and provides as follows:
(1)The Commissioner must consider an objection and either allow the objection in whole or in part or disallow the objection.
(2)The Commissioner may determine an objection that is subject to a right of review or appeal at any time before the hearing of the review or appeal proceedings commences.
The parties agreed, and we accept, that s 101(2) operates as an ultimate ‘statutory deadline’ for the Commissioner to determine an objection in cases in which a review or appeal is on foot under s 106.
Section 102 provides for suspension of the determination of an objection by the Commissioner. Section 102(1) provides for suspension if the Commissioner has required or requested a person to provide information relevant to the objection.[11] Section 102(3) provides for suspension at the request of the objector, pending the outcome of legal proceedings relating to a tax liability of the same kind as that the subject of the objection. A suspension under s 102 affects the calculation of time limits in other sections within pt 10.
[11]Under this section, the Commissioner may also suspend a determination if the matter has been referred for valuation under s 100A.
Section 103 provides that the Commissioner must give notice to the objector of the determination of the objection. If the objection is disallowed, or allowed in part only, the Commissioner must give reasons for doing so.
Under s 104, the fact that an objection, review or appeal is pending does not in the meantime affect the assessment or decision to which the objection, review or appeal relates, and tax may be recovered as if no objection, review or appeal were pending.
Division 2 of pt 10 sets out the manner in which determinations are reviewed or appealed. Section 106 provides as follows:
(1) If—
(a) a taxpayer is dissatisfied with the Commissioner’s determination of the taxpayer’s objection; or
(b) 90 days (not including any period of suspension under section 102) have passed since a taxpayer’s objection was received by the Commissioner and the Commissioner has not determined the objection—
the taxpayer, in writing, may request the Commissioner to refer the matter to the Tribunal or to treat the objection as an appeal and cause it to be set down for hearing at the next sittings of the Supreme Court.
(2) The taxpayer’s request—
(a) in the circumstances referred to in subsection (1)(a), must be made within 60 days after the date of service on the taxpayer of the notice of the Commissioner’s determination of the objection; or
(b) in the circumstances referred to in subsection (1)(b), may be made at any time after the 90 day period (not including any period of suspension under section 102).
(3) Subject to section 107, within 60 days after the request, the Commissioner must refer the matter for review or cause the objection to be set down for hearing accordingly.
A taxpayer may make a request under s 106(1) whether or not the tax to which it relates has been paid.[12]
[12]TAA, s 108(1). If a taxpayer makes a request before the tax has been paid, the Commissioner may apply to the Supreme Court for an order that the tax (or a specified part of it) be paid before the review or appeal proceed. However, the Supreme Court may only make such an order if satisfied that it is reasonably likely that, unless the order is made, any tax payable by the taxpayer in accordance with the determination of the review or appeal would not be paid within the required period: s 108(2)–(4).
Section 107 provides that, within 30 days after receiving a request under s 106, the Commissioner may require the taxpayer to give further and better particulars of the objection. If particulars are given within 30 days, the Commissioner is not bound to refer the matter or cause the objection to be set down for hearing until 30 days after receiving full details of the objection. If particulars are not provided to the Commissioner within 30 days, the Commissioner must not refer the matter or cause the objection to be set down for hearing.
Under s 109, on a review or appeal the taxpayer’s case is limited to the grounds of the objection and the Commissioner’s case is limited to the grounds on which the objection was disallowed, unless the Tribunal or the Court orders otherwise.
Section 110 provides that on a review or an appeal, the taxpayer has the onus of proving their case.
Sections 111 and 112 deal with referrals to the Tribunal and appeals to the Supreme Court, respectively.
(a)Under s 111, the Tribunal must review a matter referred to it and may confirm, reduce, increase or vary the assessment or decision; however, if the taxpayer does not appear before the Tribunal, the Tribunal must confirm the assessment or decision.[13]
(b)Under s 112, on the hearing of an appeal by the Supreme Court, the Court may make any order it thinks fit regarding the assessment or decision and may by order confirm, reduce, increase or vary the assessment or decision.
[13]However, if good cause is shown, the Tribunal may re-open and review the matter within six weeks of the assessment or decision being confirmed: TAA, s 111(2); Taxation Administration Regulations 2017, reg 8.
By s 114, the Commissioner must take any action that is necessary to give effect to the decision on review or appeal within 60 days after it becomes final.[14]
[14]A decision is taken to be ‘final’ if no appeal has been instituted in a court within 30 days after the decision is made: s 114(2).

Factual background

In 2007, the applicants acquired two 299-year leases to two parcels of land at Lonsdale and Bourke Streets,[15] Melbourne, on which the Emporium and Myer shopping centres are now located, for consideration of approximately $436 million and $150 million, respectively.[16] The leases included call options which were each exercisable by the applicants for $1.
[15]The leases were acquired by interests within the corporate group of the applicants (Reasons, [6]) but, for convenience, we refer to those interests throughout these reasons as ‘the applicants’.
[16]We refer to those parcels of land as the ‘Emporium land’ and the ‘Myer land’ throughout the balance of this judgment.
In 2015, the applicants requested a private ruling from the Commissioner in relation to the proposed exercise of the call options. A key issue to be addressed in the private ruling concerned the application of s 22 of the Duties Act 2000, which defined the ‘unencumbered value’ of dutiable property for the purposes of calculating the duty payable upon transfer. Under s 22(2), certain interests or agreements in respect of the land that had the effect of reducing the value of the land were to be disregarded in determining the unencumbered value. However, under s 22(3) an interest or agreement was not to be disregarded if the Commissioner was satisfied that it was not granted or made as part of an arrangement or scheme with a collateral purpose of reducing duty otherwise payable on the transfer of the land. The applicants sought confirmation that the Commissioner would be satisfied as required under s 22(3), such that he would not disregard the leases for the purposes of assessing duty.
The Commissioner provided the applicants with a private ruling in April 2016. The ruling stated that the Commissioner was not satisfied that the leases were not granted or made as part of an arrangement or scheme with a collateral purpose of reducing duty otherwise payable on the transfer of land. The consequence was that, if the call options were exercised, the leases would be disregarded when determining the unencumbered value of the Emporium land and Myer land.
In March 2018, the applicants exercised their call options to acquire the two parcels of land for $1 each.

The assessments

On 13 April 2018 the applicants requested the Commissioner to issue an urgent assessment for the transfer of the Emporium and Myer lands. That request:
(a)submitted that the duty payable on the transfers of land was nil, because the consideration paid for each parcel of land was $1 and, due to the leases, the unencumbered value of each parcel was also $1 (contrary to the Commissioner’s private ruling in 2016);
(b)in the event the Commissioner held a contrary view, valued the relevant parts of the Emporium and Myer lands at approximately $1 billion and $480 million each and enclosed a cheque for $82 million, representing the estimated duty payable;
(c)stated that the $82 million was paid under protest, without admitting that duty was payable or waiving their rights; and
(d)noted that, if the Commissioner disagreed that the duty payable was nil, the applicants intended to object to the Commissioner’s assessment once the duty had been paid.
On 26 April 2018, the Commissioner issued notices of assessment to the first and second applicants under s 8(1) of the TAA. The Commissioner assessed the total duty payable as being approximately $82 million.

The objections and appeals

As foreshadowed, the applicants were dissatisfied with the Commissioner’s assessments and, on 6 June 2018, they lodged notices of objection pursuant to s 96(1). The notices of objection made similar contentions to those contained in their letter of 13 April 2018. Communications between the parties regarding the determination of the objections followed over the next two years. In summary:
(a)On 2 July 2018, a delegate of the Commissioner acknowledged receipt of the objections. Subsequently, the applicants received no communication from the Commissioner for eight months.
(b)On 21 March 2019, the delegate verbally informed the applicants that the Commissioner was seeking to determine the objections in April or May 2019.
(c)On 7 May 2019, the delegate sent a letter to the applicants requiring that further information be provided to the Commissioner. The applicants provided the requested information on 27 June 2019.
(d)On 7 October 2019, the delegate verbally informed the applicants that the Commissioner was aiming to finalise his decision by the end of November 2019.
(e)On 26 November 2019, the applicants received an email from the delegate advising that the matter would not be finalised by the end of that month as previously indicated, and that because the delegate was going on leave, the objections were being allocated to a different delegate.
(f)In January 2020, the applicants contacted a delegate of the Commissioner, who informed them that the objections had not yet been allocated to another delegate. In February 2020, the applicants were informed that the objections would be allocated to another delegate by the end of that month, and that the new delegate would be requested to expedite the determination. On 26 March 2020, the applicants were informed that the objections had been allocated to a new delegate, and that the expected completion of the determination was the end of April 2020.
(g)On 7 April 2020, the new delegate requested further information from applicants, which was provided the following day.
(h)On 5 May 2020, the delegate requested further information from the applicants, which was provided on 26 May 2020.
(i)On 23 June 2020 the applicants’ solicitors had a conversation with the delegate concerning the information provided in May. There was no further communication between the applicants and the Commissioner from June 2020 to September 2020.

On 30 September 2020, the applicants served notices on the Commissioner pursuant to s 106(1)(b) of the Act requesting that the Commissioner treat the objections as appeals and cause each objection to be set down for hearing before the Supreme Court. As noted above, s 106(3) provides that the Commissioner must cause an objection to be set down for hearing within 60 days after such a request.
On 10 December 2020, the Commissioner sent a letter to the applicants noting that he had commenced considering (but had not yet formed a conclusion as to) whether, by exercising the call options, the applicants had participated in a tax avoidance scheme pursuant to s 69B of the Duties Act. Given the potential overlap between that issue and the applicants’ objections, the Commissioner noted that there would be merit in pausing the setting down of the objections as appeals, and suggested that the parties agree that he not cause the objections to be set down for hearing until the issue had been resolved. The letter noted that the issue would be resolved either by the Commissioner not making any further assessment or, if the Commissioner did make a further assessment, by the process under pt 10 of the TAA, including any appeal.
On 23 December 2020, the applicants confirmed their request that the Commissioner cause the objections to be set down for hearing as a matter of urgency, ‘[g]iven the general delays in this matter and the fact that the statutory deadline set down by section 106 of the Taxation Administration Act 1997 has already passed’.
On 11 January 2021, the Commissioner set down each of the objections for hearing in the Supreme Court (the ‘appeal proceedings’), in accordance with r 7.05 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018.
It became apparent in the course of the parties’ preparation for the hearing of the appeal that the applicants considered that the appeal would be a hearing de novo, at which they could call evidence; whereas the Commissioner held a different view. On 2 March 2021, the Commissioner submitted that the Court should determine a preliminary question concerning the nature of an appeal under s 106. On 15 April 2021, the trial judge ordered that the following question be tried as a separate question:
Is the appeal in this matter under s 106(1)(b) of the Taxation Administration Act 1997 involving sections 22(2)–(4) and 22A of the Duties Act 2000 an appeal by way of:
(a)      a hearing de novo; or
(b)      judicial review of the decision; or
(c)      some other form of appeal?
Following receipt of the Commissioner’s submissions on the separate question, the applicants accepted that the appeals should proceed by way of judicial review. Thus, on 17 May 2021, the trial judge answered the question as follows:
Each appeal before the Court under s 106(1)(b) of the Taxation Administration Act 1997, in so far as it concerns the [Commissioner’s] state of satisfaction or nonsatisfaction under section 22(3) or, if and to the extent it arises, section 22A(2) of the Duties Act 2000, should proceed by way of judicial review.[17]

The determinations and referral request

[17]Reasons, [10].

Also on 2 March 2021, the Commissioner determined the objections by written notice, disallowing them. Among other things, the Commissioner did not accept that the dutiable value of each parcel of land was $1. He was not satisfied that the leases were not granted or made as part of an arrangement or scheme with a collateral purpose of reducing the duty otherwise payable on the transfers of land. In this respect, the determinations were consistent with the Commissioner’s private ruling of April 2016. The Commissioner concluded that duty of $82 million had been correctly assessed and the assessments would not be set aside.
On 29 April 2021 the applicants, pursuant to s 106(1)(a) of the TAA, advised the Commissioner that they were dissatisfied with the determinations and requested that the Commissioner refer each determination to the Tribunal for review. On 4 May 2021, the Commissioner advised the applicants that he did not consider there to be a proper basis for the exercise of the power under that section.

The Trial Division proceeding

On 28 May 2021, the applicants issued the judicial review proceeding which led to the decision the subject of this application for leave to appeal,[18] seeking an order in the nature of a writ of mandamus directing the Commissioner, pursuant to s 106(3) of the TAA, to refer each of the determinations to the Tribunal for review.
[18]The application for leave to appeal will be referred to as the appeal, for convenience.
In summary, the applicants argued that, having received the requests of the applicants for referral of the matters to the Tribunal, the Commissioner’s duty to refer the matters arose on a plain reading of s 106. The fact that, in the absence of receiving a decision on their objections for over two years, the applicants had earlier requested that the objections be set down for hearing before the Supreme Court, did not excuse the Commissioner from performance of his duty.
The Commissioner opposed the application on the basis that, once he had caused the objections to be set down for hearing in the Supreme Court the applicants, having made an election under s 106(1)(b), had no entitlement to make a further election in relation to the same objection relying on s 106(1)(a). Additionally, he contended that he had no power or duty under s 106(3) to refer to the Tribunal a matter concerning an objection already referred to the Court. In addition he argued that, even if the applicants had an entitlement to a further election, mandamus ought be refused on discretionary grounds.

The trial judge’s reasons

On 22 October 2021, the trial judge refused the application for an order in the nature of mandamus and dismissed the judicial review proceeding.[19]
[19]Reasons, [40].
Her Honour noted that the applicants had submitted that, by s 106(3) of the TAA, the Commissioner is required to refer a matter when requested to do so, provided the conditions in ss 106(1) and (2) have been met, regardless of when they have been met.[20] Although the applicants’ case was directed to the Commissioner’s duty under s 106(3), their argument concentrated on the rights of the taxpayer to make requests to the Commissioner conferred by ss 106(1)(a) and (b), on which requests the Commissioner was bound by s 106(3) to act.[21] The applicants had argued that ss 106(1)(a) and (b) conferred upon them two distinct entitlements to request that a matter be treated as an appeal to the Supreme Court or be referred to the Tribunal: an ‘informed entitlement’ pursuant to paragraph (a), arising after the Commissioner has determined the objection; and an ‘uninformed entitlement’, arising before the Commissioner has determined the objection but after the effluxion of 90 days. The applicants argued that the exercise of one entitlement did not preclude the later exercise of the other.[22] Accordingly, even though the applicants had exercised the uninformed entitlement and requested that the objections be set down to be heard as appeals before the Supreme Court, once they later exercised the informed entitlement and had requested that the Commissioner refer the matter to the Tribunal within the 60 days allowed by s 106(1)(a), the Commissioner was obliged to refer the matter under s 106(3). Mandamus lay, it was submitted, because the Commissioner had refused to perform that duty.[23]
[20]Reasons, [31].
[21]Reasons, [33].
[22]Reasons, [34].
[23]Reasons, [35].
As for the Commissioner, the trial judge noted his submission that the proper construction of s 106(1) provided a choice of two pathways to a taxpayer as to the forum for review of the Commissioner’s assessments. He submitted that the resolution of a controversy created by a taxpayer’s objection to an assessment arose as follows:
(a)If more than 90 days have elapsed since lodging an objection, the taxpayer may, under s 106(1)(b), either request the Commissioner to refer the matter to the Tribunal or to have the objection set down as an appeal. Alternatively, the taxpayer may await the Commissioner’s determination before making any request for appeal or review. If the Commissioner determines the objection within 90 days, the occasion for the taxpayer making that choice will not arise.
(b)Next, when making a request under s 106(1)(a) or (b), the taxpayer must elect whether to request a referral to the Tribunal, or a setting down of the objection for hearing as an appeal in the Supreme Court.[24]
[24]Reasons, [36].
The Commissioner described the path through pt 10 of the TAA as linear: Parliament did not intend that a taxpayer may elect one route and, if dissatisfied with its course, choose a second route in addition. Accordingly, it was submitted, the applicants were not entitled — and nor was the Commissioner empowered — to have the matters referred to the Tribunal once he had caused the objections to be set down for hearing in the Supreme Court. As a consequence, the Court had no jurisdiction to grant an order in the nature of mandamus directing him to do so.[25]
[25]Reasons, [37].
The trial judge summarised her decision as follows:
Having caused the [applicants’] objections to be set down as appeals in this Court pursuant to requests made by the [applicants] under s 106(1)(b), the Commissioner was not under a duty to refer the matters to VCAT consequent upon requests purportedly made under s 106(1)(a), and had no power to make such referrals. Section 106 did not confer on the [applicants] two ‘distinct entitlements’ to seek an appeal or review in the sense that they were entitled to successively exercise those entitlements, requiring the Commissioner to set their objections down as an appeal in this Court, and then requiring him to refers [sic] the matters to VCAT.[26]
[26]Reasons, [40].
That conclusion rested upon a number of textual and contextual indicators which the trial judge said fortified the Commissioner’s construction as ‘unforced’ and ‘sympathetic to its context’.[27] Those indicators may be summarised as follows.[28]
[27]Reasons, [43].
[28]As with the notice of contention in the present application, the Commissioner also argued at trial that, if the applicants’ construction of s 106 of the Act were correct, mandamus should nevertheless be refused on discretionary grounds. However, the trial judge’s conclusion turned on the construction of s 106, and it was therefore unnecessary to determine the Commissioner’s alternative argument: Reasons, [41].
First, the applicants’ textual analysis of s 106(1) meant that paragraphs (a) and (b) must be read in parallel, not cumulatively. The applicants submitted that the taxpayer’s two distinct entitlements arose partly due to the word ‘or’ separating the paragraphs. The trial judge held that while such a reading stated the obvious — that s 106(1) provides two alternative grounds upon which a taxpayer may seek a referral or an appeal — it did not follow that a taxpayer is entitled to make a further request should the conditions specified for the alternative basis subsequently become satisfied.[29]
[29]Reasons, [44]–[46].
Relatedly, the applicants argued that construing the statute as confining a taxpayer to a single exercise of a choice (between a review or appeal) was to deprive the taxpayer of rights that the legislature intended to confer on the taxpayer; such that where the taxpayer makes a request under s 106(1)(b), they would be forced to proceed with that choice if not permitted to make a second request after having received the Commissioner’s determination.[30] The trial judge rejected this argument: the legislative route was entirely a matter for the taxpayer,[31] and the submission mischaracterised the significance of the determination in the legislative scheme. It is the objection that is treated as an appeal and set down before the Supreme Court, and the determination accordingly fulfils a role akin to a defence.[32]
[30]Reasons, [50].
[31]Reasons, [53].
[32]Reasons, [54]–[58].
Secondly, the trial judge held that the applicants’ construction could not be drawn from the statutory history of the TAA. The applicants had argued that the Act did not evince an intention to deprive the taxpayer of an entitlement to seek referral once finally in possession of the Commissioner’s determination. However, although one of the Act’s predecessors, the Stamps Act1958,[33] included a similar objection process, a referral or appeal under that legislation could only be sought after the taxpayer had received the Commissioner’s determination.[34] Furthermore, before the TAA there was no timeframe within which the Commissioner had to make a determination, a mischief which the TAA was intended to remedy.[35] Therefore, compared with the position prior to the introduction of s 106(1)(b), the taxpayer loses nothing by the provision of the option to request a referral or appeal without waiting for a determination.[36]
[33]Which was replaced by the Duties Act 2000.
[34]Reasons, [63].
[35]Reasons, [64].
[36]Reasons, [65].
Thirdly, the Commissioner’s case was fortified when regard was had to the consequences of the competing constructions on the overall coherence of pt 10 of the TAA. The trial judge characterised the right conferred upon the taxpayer by s 106 as one to make a request to the Commissioner by choosing between two different and inconsistent alternatives for reviewing the taxpayer’s tax liability. The consequence of affording the taxpayer two distinct entitlements — that is, to have the matter heard by the Tribunal and the Supreme Court — would mean, among other things, that two bodies with different powers and functions would have the jurisdiction and power to resolve the same controversy in respect of the same subject matter, in parallel but with different hearing and review procedures. That construction is unlikely to have been intended by Parliament.[37]
[37]Reasons, [69]–[79].
Fourthly, the trial judge rejected an argument by the applicants that the ‘distinct entitlements’ characterisation of s 106(1) should be preferred because it is a broader reading of a beneficial provision which should not be read down.[38] The applicants argued that the context of s 106 shows that the Commissioner is largely in control of the review process, and that the taxpayer’s choice of forum is one of the few rights afforded to the taxpayer in the pt 10 scheme. But the trial judge held that her reading of s 106 and pt 10 did not result in a denial of taxpayer access to review in any relevant sense.[39]
[38]Relying on Commissioner of Stamps v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453, 465 (Brennan CJ, Dawson and Toohey JJ), 467–8 (McHugh and Gummow JJ).
[39]Reasons, [80]–[85].
Fifthly, the trial judge accepted the Commissioner’s submission that the binary choice of forum afforded by s 106 is a form of election between the Supreme Court or the Tribunal. Once an election was made by the applicants, they had no entitlement to make a further election under s 106(1)(a), and the Commissioner had no power to refer a matter comprising the same objection to the Tribunal under that section.[40]
[40]Reasons, [86]. Her Honour eschewed any reliance on the common law doctrine of election; rather, she used the term ‘election’ as an apt description of the choice given to the taxpayer in s 106(1).
The trial judge concluded that where, under s 106(1)(b), a taxpayer has requested the Commissioner to cause an objection to be set down as an appeal to the Supreme Court (or to refer the matter to the Tribunal for review), the Commissioner is not compelled or empowered, pursuant to s 106(3), to refer or set down the matter in response to a subsequent request of the taxpayer purportedly made under s 106(1)(a), selecting a different forum from that chosen in the first instance.[41]
[41]Reasons, [91].

The parties’ submissions on the appeal

The parties advanced broadly the same submissions on the appeal as they had advanced at trial.
In summary, the applicants contended that s 106(1) conferred two distinct entitlements on them to request a review or appeal:
(a)one that arose under s 106(1)(b), when the Commissioner failed to determine their objections within 90 days; and
(b)one that arose under s 106(1)(a) when the Commissioner later determined their objections.
They contended that this construction of s 106 was supported by the statutory text, the statutory context, the legislative history and the purpose of s 106, which they contended was remedial and beneficial in nature. An important aspect of their submissions was that, at the time of a request under s 106(1)(b), the taxpayer would have no information about the basis on which the Commissioner determined the taxpayer’s objection. That lack of information was cured, however, if s 106 was construed so as to permit the taxpayer to make a second request, under s 106(1)(a), once the taxpayer had notice of the Commissioner’s reasons for disallowing the objection (which, they pointed out, might differ from the Commissioner’s initial reasons for the assessment).
The applicants further submitted that a taxpayer who wished to make an informed request under s 106 ought not be placed in the position of waiting for the Commissioner to determine the objection, given that there is no time limit imposed by the TAA and given that the taxpayer has, in the meantime, had to pay the tax assessed. They submitted, ‘it could not have been Parliament’s intention for s 106(1) to set, as an acceptable “cost”, delay amounting to constructive failure to exercise jurisdiction’.[42]
[42]Emphasis in original.
The applicants also relied upon s 40(a) of the Interpretation of Legislation Act 1984 (‘ILA’), which provides as follows:
Unless the contrary intention appears, where an Act or subordinate instrument confers a power or imposes a duty, the power may be exercised and the duty shall be performed—
(a) from time to time as occasion requires; …
They contended that, although s 40(a) did not ‘get [them] over the line’, it nonetheless supported their construction of s 106.
They further submitted that the fact that the construction for which they contended would result in two proceedings concerning the same matter being on foot in two different tribunals was neither ‘surprising [nor] perverse’, and could be managed by reliance on the inherent powers of the Court and/or the statutory powers of the Tribunal.
In contrast, the Commissioner contended that the trial judge had correctly construed s 106, largely for the reasons her Honour gave. He submitted that the text of s 106, understood in the context of pt 10, is clear, and ‘the path through pt 10 is linear’: Parliament did not intend that ‘a taxpayer can elect to pursue one route and then, if it does not like where that route is headed, change its mind and choose the other route as well as, or instead of, the route previously chosen’. The Commissioner further submitted that, once he has acted on a request, as required by s 106(3), his function is spent. He, too, relied on the legislative history of the provision.
As for the beneficial purpose of s 106, the Commissioner observed that a purpose may be articulated at a level of generality that makes it unhelpful when construing a particular provision;[43] and that the trial judge correctly observed that to say that pt 10 is beneficial to taxpayers ‘is simply to recognise that it plays a remedial function in allowing the taxpayer to seek review or appeal of its assessment of tax liability. But reference to the general function of the statute is not sufficient to displace the clear import of the statutory terms’.[44]
[43]Referring to MyEnvironment Inc v VicForests (2013) 42 VR 456, 462 [16] (Warren CJ); [2013] VSCA 356.
[44]Reasons, [84].

In relation to s 40(a) of the ILA, the Commissioner contended that that section falls to be applied only after the power in question has been construed.[45] In the present context, the Commissioner contended, when s 106 is properly construed it is apparent that the exercise of the power is spent once the Commissioner has caused an objection to be set down following a request by the taxpayer. Thus s 40(a) has no operation.
[45]Relying on Minister for Indigenous Affairs v MJDFoundation Limited (2017) 250 FCR 31; [2017] FCAFC 37 (‘MJD’) and Minister for Immigration and Border Protection vMakasa (2021) 270 CLR 430; [2021] HCA 1 (‘Makasa’).
In their written submissions, and in oral argument, both parties accepted that mandamus would lie against the Commissioner in relation to the duty imposed on him to determine an objection under s 101(1).[46] The Commissioner contended that this was an answer to the ‘information asymmetry’ on which the applicants relied, because mandamus provided the applicants with an avenue to ensure that they had the information necessary for them to make an informed choice under s 106, without simply having to wait for the Commissioner to make a determination at his leisure.
[46]See [79] below.

Did the trial judge err in her construction of s 106?

The trial judge’s reasons were careful and thorough and, in our opinion, correct. However, in recognition of the importance of the issue and the detailed submissions advanced in this Court, it is appropriate to set out our own reasons for accepting that s 106 is to be construed as providing for a single request by a taxpayer for an objection to be dealt with by way of appeal or review.

Relevant principles

The starting point in any exercise of statutory construction is the text of the provision. However, the text is to be considered in light of its context and purpose.[47] Context includes the legislative context, because the meaning of a provision must be determined by reference to the entire Act.[48] Consideration of purpose is further reinforced by s 35(a) of the ILA, which provides as follows:
A construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object.
[47]SAS Trustee Corporation v Miles (2018) 265 CLR 137, 149 [20] (Kiefel CJ, Bell and Nettle JJ), see also 157 [41] (Gageler J), 162–3 [64] (Edelman J); [2018] HCA 55. See also Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, 46–7 [47] (Hayne, Heydon, Crennan and Kiefel JJ) and the cases there cited at n 105; [2009] HCA 41.
[48]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381 [69] (McHugh, Gummow, Kirby and Hayne JJ); [1998] HCA 28 (‘Project Blue Sky’).
It is permissible to have regard to extrinsic materials in resolving the meaning of the text, particularly in cases of ambiguity.[49] However, legislative history and extrinsic materials cannot displace the meaning of the statutory text.[50] It is also permissible, in determining which of two competing interpretations of a statute ought to be adopted, to have regard to the consequences of each interpretation.[51]

The text of s 106(1)

[49]ILA, s 35(b).

[50]Commissioner of Taxation (Cth) v Consolidated Media Holdings Ltd (2012) 250 CLR 503, 519 [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ); [2012] HCA 55.

[51]R v Young (1999) 46 NSWLR 681, 687–8 [15] (Spigelman CJ); [1999] NSWCCA 166. See also Project Blue Sky (1998) 194 CLR 355, 384 [78] (McHugh, Gummow, Kirby and Hayne JJ); [1998] HCA 28; CTM v The Queen (2008) 236 CLR 440, 509 [237] (Heydon J); [2008] HCA 25. See generally the discussion in Dennis Pearce and Robert Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 8^th ed, 2014) 79–83 [2.38]–[2.40].

The trial judge considered that the construction for which the applicants contend is one that is open on the bare text of s 106(1).[52] We agree. That is, it is possible to read s 106 as meaning that if the events in sub-section (1)(a) occur (ie the Commissioner makes a determination, and the taxpayer is dissatisfied with it), the taxpayer may request a review or appeal, or if the event in sub-section (1)(b) occurs (ie the Commissioner has not made a determination within the statutory period), the taxpayer may request a review or appeal, the latter being unqualified by any request already made under sub-section 1(a).
[52]Reasons, [47].
However, we consider that this reading of s 106(1) is strained, and is not the ordinary or natural reading of the provision. In our opinion, the more natural way to read s 106 is that, if either sub-section (1)(a) or sub-section (1)(b) is satisfied, then the taxpayer may make one of the two requests for which s 106(1) provides. That is, the taxpayer is given a single choice, exercisable if one of the two events occurs. In that regard, we accept the respondent’s submission that the syntax of s 106(1), as drafted, is ‘if A or B, then X’, not ‘if A then X, or if B then X’. In other words, as the trial judge held, sub-section (1)(a) and sub-section (1)(b) are alternative pathways to arrive at a single end, namely the choice between a referral to the Tribunal and an appeal to the Court.
We also accept that, once the taxpayer has made a request under s 106(1), and the Commissioner has complied with that request pursuant to his duty in s 106(3), his function is spent. We do not consider that, properly construed, s 106(3), read with s 106(1) is a duty that falls to be performed ‘from time to time’ in relation to the same taxpayer and the same objection.[53] That conclusion is compelled once it is accepted that s 106(1) provides the taxpayer with but a single choice; in those circumstances, the duty under s 106(3) cannot fall to be exercised again, because there cannot be a further request made under s 106(1).
[53]ILA, s 40(a).
In that regard, we reject the applicants’ reliance on s 40(a) of the ILA (which was somewhat ambiguous in light of their concession that s 40(a) did not ‘get [them] over the line’). Section 40(a) does not alter the incidents of the statutory power or duty to which it applies,[54] or require the power or duty to be exercised more often than the section permits.[55]
[54]Makasa (2021) 270 CLR 430, 445 [45]–[46] (Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ); [2021] HCA 1. That case concerned the nearly identical s 33(1) of the Acts Interpretation Act 1901 (Cth).
[55]MJD (2017) 250 FCR 31, 71 [168] (Mortimer J); [2017] FCAFC 37, quoting Minister for Immigration and Multicultural and Indigenous Affairs vWatson (2005) 145 FCR 542, 559–60 [117] (Lander J); [2005] FCAFC 181.
We note at the outset that s 40(a) is directed to provisions that confer powers or duties (such as s 106(3)); in our opinion it has no bearing on the construction of s 106(1), concerning the taxpayer’s ability to request the Commissioner to take a particular step. Section 106(1) is in substance a provision that permits a person to make an application to a decision-maker; it cannot be said to confer a ‘power’ on the taxpayer so as to engage s 40(a).
In so far as the duty found in s 106(3) is concerned, it is a ‘from time to time’ duty in the sense of falling to be performed from time to time in respect of different taxpayers who make requests under s 106(1), or in respect of the same taxpayer but in relation to a different request concerning a different objection.[56] But once s 106(1) is construed as offering but a single choice to a taxpayer, as explained above, there is no further opportunity for performance of the duty under s 106(3) that could engage s 40(a) in relation to the same taxpayer and the same objection. In that sense the legislation manifests a contrary intention; thus s 40(a) simply has no application.

The legislative context in which s 106(1) appears

[56]The better view is that that conclusion results from the construction of s 106, rather than from the operation of s 40(a). That is, the subject matter, scope and purpose of s 106 reveal that Parliament intended the duty in s 106(3) to be exercisable in relation to different taxpayers or different objections. See MJD (2017) 250 FCR 31, 42 [36] (Perram J, dissenting); [2017] FCAFC 37 (that case, too, concerned s 33(1) of the Acts Interpretation Act 1901 (Cth)). But it is not necessary to resolve that question in the present context.

The trial judge’s construction of s 106 is further supported by the legislative context in which the section appears. That context includes the location of s 106 in pt 10, which as discussed above provides an exclusive regime by which a taxpayer may challenge an assessment. We accept the Commissioner’s submission that, within pt 10, there may be discerned a single linear pathway that leads to a single choice by the taxpayer as to the venue for review, and a single entity — either the Court or the Tribunal (but not both) — undertaking a review or appeal of the Commissioner’s determination of the taxpayer’s objection. That pathway can be discerned in the provisions set out in more detail earlier in these reasons. In short, the regime in pt 10 operates in relation to an assessment as follows:
(a)first, the taxpayer makes an objection to the assessment, under s 96;
(b)the Commissioner is then under a duty to determine the objection, by reason of s 101(1);
(c)the Commissioner is also under a duty to give notice of his determination to the taxpayer, under s 103;
(d)if the Commissioner has determined the objection and the taxpayer is dissatisfied with the determination, or if the Commissioner has failed to determine the objection within the statutory timeframe, the taxpayer can request an appeal in the Court or referral to the Tribunal and the Commissioner must set the matter down as an appeal or refer it, as the case may be (s 106);
(e)if there is an appeal or review on foot, and the Commissioner has not yet determined the objection, he must do so no later than the hearing of the appeal or review commences: s 101(2);[57]
(f)the fact that a review or appeal is pending is not a basis for non-payment of the tax: s 104;
(g)section 109 limits the taxpayer’s case on a review or appeal to the grounds set out in the objection, and limited the Commissioner’s case to the grounds set out in the determination, unless the Court or the Tribunal otherwise orders;
(h)on a review or appeal, the taxpayer bears the onus: s 110;
(i)section 111 provides that the Tribunal must review a matter referred to it, and authorises it to confirm, reduce, increase or vary the assessment (save that if the taxpayer does not appear the Tribunal must confirm the assessment);
(j)section 112 provides that on the hearing of an appeal, the Supreme Court may make any order it thinks fit and may by order confirm, reduce, increase or vary the assessment (and a necessary consequence of conferring jurisdiction on the Court is that the Court has a duty to exercise the jurisdiction[58]);
(k)section 114 then requires the Commissioner to give effect to the decision on review or appeal.
[57]See [89] below.
[58]Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197, 234 (Brennan J); [1988] HCA 32, citing Ashby v White (1703) 2 Ld Raym 938, 956; (1703) 92 ER 126, 138; Browne v Commissioner for Railways (1935) 36 SR (NSW) 21, 28–9.
It is plain that pt 10 presupposes but one review or appeal, and that the provisions consistently refer to ‘review or appeal’ in a binary disjunctive fashion in relation to the different scenarios contemplated by s 106(1).
The inclusion of s 101(2) in the regime for which pt 10 provides warrants further mention. In our opinion it provides further, distinct textual support for this construction of s 106. That section provides that the Commissioner may determine an objection that is subject to a right of review or appeal at any time before the hearing of the review or appeal commences. As observed above, notwithstanding the use of the word ‘may’, s 101(2) is to be understood as requiring the Commissioner to determine the objection no later than the commencement of the hearing of the review or appeal.[59] Thus it operates to impose an ultimate statutory time limit on the Commissioner in relation to an objection that has been set down as an appeal or referred to the Tribunal. Section 102(2) will have relevance only in relation to an appeal or review initiated under s 106(1)(b), because there will already be a determination for an appeal or review initiated under s 106(1)(a).
[59]See [89] below.
We accept the respondent’s submission that, by specifically providing the time in which the Commissioner is to make the determination by reference to the timing of the hearing of the appeal or review, s 101(2) indicates that the determination is a step to be taken within the linear pathway set in motion by the request made under s 106(1)(b), not a step that permits the taxpayer to decide to move onto a different, alternative pathway. And, although we accept the applicants’ submission that the determination is not simply to be analogised to a defence, we do not consider that that alters the significance of s 101(2) or the proper construction of s 106(1). Rather, the significance of the determination in the review or appeal process supports the Commissioner’s submission that the purpose of s 101(2) is to ensure that the determination is available for the purposes of the judicial review in which the Court will engage on an appeal or the review in which the Tribunal will engage on a referral. That is, the requirement for the provision of the determination suggests that the proceeding that is on foot is to continue on foot, rather than being replaced by a different proceeding.
In addition, we observe that the duty imposed by s 101(2) would mean that, if the applicants are correct, in every case a taxpayer who had made a request pursuant to s 106(1)(b) would be entitled to make a further request under s 106(1)(a). That would be so even in cases where the appeal or review had been on foot for some time, and the parties had taken steps and incurred costs preparing for the hearing, prior to the Commissioner’s determination pursuant to s 101(2). Yet there is simply no indication in the legislation that, by requiring the Commissioner to determine the objection before the commencement of the hearing, Parliament contemplated that it was triggering the ability for the taxpayer then to revisit the choice made under s 106 and to make a further, different request of the Commissioner under that section, using the pathway under s 106(1)(a).
In support of their argument that there was nothing odd about interpreting s 106 as permitting the taxpayer to make a second request, the applicants drew to the Court’s attention provisions in the New South Wales taxation administration legislation that expressly provide for a taxpayer who had proceeded with judicial review to abandon that course and pursue merits review in the New South Wales Civil and Administrative Tribunal instead, and vice versa.[60] However, in our opinion those provisions reflect the kind of provision that one would expect to find in the TAA if Parliament had intended a taxpayer to be able to make a second request under s 106, invoking a different form of review. The absence of such provisions in pt 10 is a further aspect of the legislative context that undermines, rather than supports, the construction for which the applicants contend.

The purpose of s 106 and the extrinsic materials

[60]Taxation Administration Act 1996 (NSW) ss 96(3), 97(2).

It is convenient to deal with the purpose of s 106 and the extrinsic materials together, because the latter were relied upon by the applicants in support of their argument as to the purpose of s 106.
As observed above, the applicants relied on the beneficial and remedial purpose of s 106(1)(b) in support of their construction. They contended that s 106(1)(b) had been enacted in order to deal with a particular ‘mischief’, namely that, under the previous regime,[61] a taxpayer could only request a review or appeal once the Commissioner had made a determination in relation to the taxpayer’s objection. However, there was no time period in which the Commissioner was required to make a determination. Thus the taxpayer, who may well have paid the tax or duty, was left to await the Commissioner’s determination before they could institute a review or appeal. Section 106(1)(b) and s 101(2) were introduced with the stated purpose of placing ‘a stricter requirement on the Commissioner to deal with objections expeditiously’.[62] They did so by ensuring that, once a request for a review or appeal was made under that sub-section, the Commissioner would be required to determine the objection before the hearing of the review or appeal commenced.
[61]The previous regime included the Stamps Act 1958, ss 33A–33G, inserted by the Taxation Appeals Act 1972, s 19.
[62]Victoria, Parliamentary Debates, Legislative Assembly, 10 April 1997, 654.
The applicants submitted that while a taxpayer could make a request under s 106(1)(b) in the absence of a determination, if they did so they would not have available to them important information relevant to the choice of avenue. For example, the Commissioner might have adopted a different basis for the assessment than originally communicated to the taxpayer (if any such information had been communicated); or the Commissioner might have varied the assessment in some way. Such differences could bear upon which forum a taxpayer might prefer to utilise for a review of the Commissioner’s determination. Thus, the applicants contended, if the Commissioner’s construction was correct, and the taxpayer wished to make an informed choice about which review avenue to pursue, they would still need to await the Commissioner’s determination before making a request under s 106. Thus taxpayers would be discouraged from exercising their entitlements under s 106(1)(b), which would defeat or undermine the statutory purpose. This, the applicants submitted, supported their construction of s 106, which would better promote the statutory purpose.
We do not accept the applicants’ argument that their construction would better serve the statutory purpose than the Commissioner’s construction, nor that the Commissioner’s construction would undermine the statutory purpose. That purpose was to provide a mechanism by which a taxpayer could trigger the ultimate statutory deadline for the making of a determination by the Commissioner.[63] The taxpayer remains able to do so, consistently with that purpose, on the Commissioner’s construction.
[63]See [89] below.
It may be accepted that a taxpayer may not wish to choose between the Court and the Tribunal under s 106, so as to trigger the ultimate statutory deadline for the Commissioner’s determination of the taxpayer’s objection, while they lack the information that would be found in the Commissioner’s determination. But it does not follow that the solution to that concern is to be found in a strained reading of the statutory text so as to provide the taxpayer with a second opportunity to request the Commissioner to set down the objection as an appeal or refer the matter to the Tribunal. Rather, the solution to this concern is that a taxpayer who wishes to have available to them the Commissioner’s determination before making the choice offered by s 106, in circumstances where the Commissioner is dilatory in providing his determination, may seek mandamus to require the Commissioner to perform his duties under s 101(1) and s 103.

As already noted, both parties accepted that mandamus is available in relation to the duties in ss 101(1) and 103. We accept that that is correct and, in particular, that a proceeding for mandamus to enforce those duties is not excluded by s 96(2) of the TAA. Although, by reason of s 96(2), pt 10 is the exclusive regime by which a taxpayer may challenge an assessment, it does not follow that the very duties for which that exclusive regime provides cannot be enforced in a proceeding for mandamus. To the contrary, it must follow that those duties can be so enforced. In that regard, we note that, unlike s 18 of the TAA, s 96(2) does not expressly exclude proceedings seeking relief in the nature of mandamus.[64]
[64]Contrast Commissioner of State Revenue v ACN 005 057 349 Pty Ltd (2017) 261 CLR 509, 535 [71]–[74] (Bell and Gordon JJ, Kiefel and Keane JJ agreeing at 515 [1]), [95], [107] (Gageler J); [2017] HCA 6. That case concerned an application for mandamus for the refund or recovery of tax paid under the Land Tax Act 1958. That Act contained s 90AA, an equivalent of s 18 of the TAA, which expressly precluded proceedings for mandamus. The Court held that mandamus was not available, both because of the terms of s 90AA and because the Commissioner was not under a duty in relation to which mandamus would issue.
Once it is accepted that mandamus is available for a constructive refusal to perform the duties conferred by ss 101(1) and 103, it follows that a taxpayer who considers that, before they exercise the choice given to them by s 106, they should have the Commissioner’s determination of their objection and his reasons for the determination, has the ability to obtain that material by seeking mandamus. The Commissioner accepted in oral argument that the duty imposed by s 101(1) is attended by an implication that it be performed within a reasonable time, subject to the power to suspend the determination under s 102.[65] The Commissioner also accepted that the 90-day time limit referred to in s 106(1)(b) (as extended by any suspension under s 102) is relevant to the assessment of what is reasonable in a given case, although it does not provide a strict time limit. Thus a taxpayer confronted with the opportunity to request that their objection be set down as an appeal or referred for review under s 106(1)(b) also has the option of seeking to compel the Commissioner to make a determination and then making an informed request under s 106(1)(a).
[65]As to the implication that a duty be performed within a reasonable time, see Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179, 189–90 [37] (Crennan, Bell, Gageler and Keane JJ); [2014] HCA 24; Re O’Reilly; Ex parte Australena Investments Pty Ltd (1983) 58 ALJR 36, 36 (Murphy J); (1983) 50 ALR 577; Shahi v Minister for Immigration and Citizenship (2011) 246 CLR 163, 174 [28] (French CJ, Gummow, Hayne and Bell JJ); [2011] HCA 52.
For these reasons, in our view the applicants’ resort to the purpose of s 106 in support of their construction is unpersuasive.
We note for completeness that, other than the statement identified above concerning the purpose of s 106(1)(b), we do not consider that the extrinsic materials shed any real light on the construction of s 106.

The consequences of the two interpretations

Finally, it is important to consider the consequences of the two constructions advanced by the parties.
(a)On the Commissioner’s construction, there is but one proceeding on foot in relation to an objection: either an appeal in the Court, or a review proceeding in the Tribunal.
(b)In contrast, on the applicants’ construction there will be, at least immediately after the Commissioner accedes to the second request under s 106, and performs his duty under s 106(3), two proceedings on foot in different forums in relation to the same objection to an assessment.
The circumstance that, upon the making of the second request under s 106(1) and the second performance of the duty under s 106(3), there will be two proceedings on foot in different forums in relation to the same objection to an assessment is plainly an unacceptable position, as the applicants conceded. It has the potential to produce conflicting decisions from different bodies about the same matter. The applicants also accepted that there was no automatic mechanism in the TAA or elsewhere that would bring one set of proceedings to an end.
However, the applicants submitted that that unacceptable position was capable of being cured by the exercise of one or more of the express, inherent or implied powers of the Court or the Tribunal, as the case may be. They further submitted that implicit in their construction of s 106 was the proposition that in all cases, the later-in-time request would stand, and the initial request would be disposed of in some way. For example:
(a)If the taxpayer had first requested an appeal to the Court, and later requested a referral to the Tribunal, as in the present case, then some step would be taken to bring the appeal to an end. That could occur by the consent of the parties or, if consent was not forthcoming, by the proceeding being discontinued by the taxpayer, with leave of the Court, pursuant to r 25.03 of the Supreme Court (General Civil Procedure) Rules 2015.
(b)If the taxpayer had first requested a referral to the Tribunal, and later requested an appeal to the Court, then the proceeding in the Tribunal could be struck out under s 77 of the Victorian Civil and Administrative Tribunal Act 1998 on the basis that there was a more appropriate forum. Alternatively the Court could stay the Tribunal proceeding for abuse of process.[66]
(c)If the taxpayer had first requested an appeal to the Court, and later requested a referral to the Tribunal, and then later decided that they preferred the Court after all, and thus declined to discontinue their appeal, the Commissioner could seek to have the appeal stayed as an abuse of process.
[66]The applicants referred to XG v Medical Board of Australia [2011] VSC 638. In that case Kyrou J held at [7] that the Supreme Court ‘has an inherent power to make an order staying a proceeding in a statutory tribunal on the ground that the proceeding constitutes an abuse of the tribunal’s process’, citing Walton v Gardiner (1993) 177 CLR 378, 395; [1993] HCA 77; XD v Johnson (No 2)(2002) 6 VR 381, 383–5 [3]–[10]; [2002] VSC 351; and Batistatos v Roads and Traffıc Authority (NSW)(2006) 226 CLR 256, 264 [6]; [2006] HCA 27.
We accept that, if the legislation were to be construed in a manner that produced two proceedings on foot in relation to the same objection, the Court and/or the Tribunal would have available to it general powers that would permit the termination of one of the proceedings. However, that does not address fully the difficulty that confronts the applicants. That difficulty is that it is entirely improbable that Parliament intended that two proceedings would be on foot in different forums in relation to the same objection, without making express provision in that regard. Rather, we consider that had Parliament intended that a taxpayer could avail themselves of a second choice in relation to the forum for review, it would have made express provision for that second choice in such a way as to avoid there being a duplication of proceedings, such as is found in the New South Wales taxation administration legislation to which we referred above.[67]

Conclusion on the applicants’ grounds of appeal

[67]Taxation Administration Act 1996 (NSW), ss 96(3), 97(2).

For these reasons, we consider that the applicants’ grounds of appeal are not made out.

The notice of contention

The Commissioner filed a notice of contention to the effect that, if the applicants were correct in their construction of s 106, nonetheless mandamus ought to be refused on discretionary grounds. In light of our conclusion as to the correct construction of the legislation, it is not strictly necessary to deal with the notice of contention. However, we make the following brief observations.
The Commissioner submitted that the Court should refuse mandamus because it is just to do so. This was said to arise at three levels: first, in relation to the application for leave to appeal; secondly, in relation to the recognised broad discretion to deny the writ of mandamus if it is just to do so, even where the applicant has made out a good case; and thirdly because the outcome of the mandamus would be two proceedings properly commenced in relation to the same matter in different forums, and the just resolution of that unacceptable outcome would, in the present case, be to decline to grant the remedy. In support of these arguments, the Commissioner relied upon the following matters:
(a)First, at the time they made their requests under s 106(1)(b) the applicants were not uninformed as to the reasons for the Commissioner’s assessments because they had already had the benefit of the private ruling, and the determinations were consistent with the private ruling.
(b)Secondly, the applicants continued to prosecute their appeals after they received the determinations. It was only after they understood that the appeals were to proceed by way of judicial review, and not by way of a de novo hearing, that they made their requests for a referral to the Tribunal.
(c)Thirdly, even after they had made their requests for a referral to the Tribunal, they continued to take steps towards the hearing of the appeals in the Court.
The Commissioner submitted that the applicants’ conduct could be characterised in several different ways, each of which renders it just for this Court to refuse relief:
(a)as approbation and reprobation — continuing to seek, but later rejecting, the Supreme Court as the venue for their appeals;
(b)as acquiescence, by continuing to pursue their appeals in March, April and May 2021, after receiving the determinations;
(c)as waiver — seeking a de novo hearing in the Supreme Court in the first instance, rather than applying for that hearing by referral to VCAT; and/or
(d)as undue delay in making the requests for a referral to VCAT.
In our opinion none of these matters would warrant a refusal of relief, had we accepted the construction for which the applicants contend. That construction would have conferred on the applicants an entitlement to make the second requests, and a duty on the Commissioner to give effect to those requests. They made the second requests comfortably within the 60-day time limit imposed by s 106(2). Further, once the Commissioner advised them that he would refuse to refer the matters to the Tribunal, they acted promptly in commencing the current proceeding seeking to compel the Commissioner to refer the matters. Thus it cannot be said that they engaged in any ‘undue delay’.
Further, we do not consider that the reasons why the applicants chose to exercise their entitlement to make the second requests would have been relevant to the question whether the Commissioner should be compelled to perform his duty. That is, regardless of whether there was any material difference between the Commissioner’s determination and the information the applicants already had, or whether they made the second requests because of their changed understanding of the nature of the appeals, they would have been entitled to make the requests and the Commissioner would have been required to give effect to them.
As for the contentions that the applicants engaged in approbation and reprobation, acquiescence or waiver, those contentions cannot be sustained. The applicants’ entitlement to make the second requests would not have arisen until the Commissioner had provided them with the determinations on 2 March 2021; thus steps they took prior to that date to prosecute their appeals could not disentitle them to relief. Further, once they made the second requests, the Commissioner declined to perform his putative duty under s 106(3). There was thus a dispute about the availability of that course, and there were not two proceedings on foot that required some step to be taken to bring that circumstance to an end. Indeed, if it transpired that the Commissioner was correct, then the appeals would remain on foot. We accept that, as the applicants submitted, in those circumstances a prudent party would continue taking steps towards the hearing of the s 106 appeals, pending the outcome of the present appeal. There was no evidence before us that the Commissioner objected to that course before the trial judge.
Finally, although the Commissioner is correct that, if mandamus were to be granted there would be two proceedings on foot, and that that situation would need to be resolved by staying or dismissing one of the proceedings, we do not accept that it would be the Tribunal proceeding that would be so terminated, leaving the Supreme Court appeals on foot. Rather, if s 106 were to be interpreted in the manner for which the applicants contend, then the more likely course would be for the Supreme Court appeals to be discontinued with leave of the Court.
For these reasons, we would have dismissed the notice of contention, if it fell to be decided.

Conclusion

In light of the importance of the question of statutory construction, we would grant leave to appeal. However, for the reasons given above, we would dismiss the appeal.
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SCHEDULE OF PARTIES

VICINITY FUNDS RE LTD (ACN 084 098 180)	First applicant
RECO BOURKE PRIVATE LIMITED	Second applicant
THE TRUST COMPANY LTD (ACN 004 027 749)	Third applicant
and
COMMISSIONER OF STATE REVENUE	Respondent

[2022] VSCA 176

24 August 2022