Vontap Pty Ltd v Commissioner of State Revenue
[2005] VSC 322
•15 August 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
VICTORIAN TAXATION APPEALS
No. 5305 of 2005
| VONTAP PTY LTD | Plaintiff |
| (ACN 007 195 628) | |
| v | |
| COMMISSIONER OF STATE REVENUE | Defendant |
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JUDGE: | Hollingworth J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 June 2005 | |
DATE OF JUDGMENT: | 15 August 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 322 | |
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STAMP DUTY – Transfer of dutiable property – Objection to assessment – Commissioner requested further and better particulars of objection – Taxpayer did not provide further and better particulars – Whether Commissioner’s request was valid exercise of power conferred by s107(1) of Taxation Administration Act 1997 (Vic) - Whether taxpayer’s failure to provide such particulars prevented Commissioner from causing matter to be set down for hearing.
STATUTE INTERPRETATION – Meaning of “further and better particulars of objection” within the meaning of s107(1) of the Taxation Administration Act 1997 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Dr C L Pannam QC Mr P Zappia | Aitken Walker & Strachan |
| For the Defendant | Mr C Horan | Solicitor for the Commissioner of State Revenue |
HER HONOUR:
Introduction
This case concerns the nature and extent of the defendant Commissioner’s power under s.107(1) of the Taxation Administration Act 1997 (Vic) ("the Act") to require a taxpayer to give further and better particulars of an objection to assessment of duty.
On 6 January 2005 the Commissioner served a notice which purported to exercise that statutory power to request further and better particulars. The plaintiff taxpayer challenges the validity of the notice. By originating motion and summons filed on 7 April 2005, the plaintiff seeks an order that the Commissioner treat the plaintiff’s objection to an assessment of duty as an appeal, and refer it to be set down for hearing in this court.
The Commissioner says the notice is valid and he is therefore prevented by s.107(2)(b) of the Act from causing the objection to be set down for hearing, because the plaintiff did not provide particulars within 30 days after the Commissioner’s notice.
Background
By a contract of sale dated 23 December 1998, Pacific Cyprus Inc ("PCI") bought the property at 607 Collins Street, Melbourne for $1,650,000.
By a transfer of land dated 19 January 2004, PCI transferred the property to the plaintiff. The consideration for the transfer was expressed as being "in consideration of the entitlement in equity of the transferee to be registered as proprietor". The transfer was submitted to the Commissioner for the assessment of duty.
On 26 February 2004, pursuant to s.8(1) of the Act, the Commissioner issued Notice of Assessment No. A147882, by which the plaintiff was assessed to a tax liability of $165,000 in respect of the transfer. The plaintiff paid the assessed amount.
On 26 April 2004, the plaintiff objected to the assessment on the basis that the transfer was exempt from duty pursuant to s.34(1)(a)(i) of the Duties Act 2000 (Vic) (“Duties Act”).[1] The objection was made by way of a letter from the plaintiff's solicitors dated 26 April 2004, which enclosed and expressly referred to a supporting statutory declaration of Luigi Grollo, dated 26 April 2004. Mr Grollo was a director of the plaintiff.
[1]Section 34(1)(a)(i) provides that no duty is chargeable in respect of a declaration of trust made by an apparent purchaser in respect of dutiable property vested in the apparent purchaser upon trust for the real purchaser who provided the money for the purchase of the property.
Paragraphs 7 and 8 of the statutory declaration set out the essence of the plaintiff's objection, namely:
“7. The property was purchased by PCI at the request of and on trust for [the plaintiff]. For reasons of commercial sensitivity, it was important that the identity of [the plaintiff] be kept confidential during negotiations for the acquisition of the property.
8. No written agreement was entered into between [the plaintiff] and PCI in relation to the appointment of PCI to acquire the property as trustee for [the plaintiff]. [The plaintiff] and PCI subsequently entered into a confirmatory deed, a copy of which is now produced …".
The statutory declaration went on to explain by whom and how the funds which comprised the original purchase price were provided.
On 13 October 2004, the Commissioner issued a notice of determination, disallowing the objection. The notice of determination said that s.34(1)(a)(i) did not apply as the Commissioner “has not sought to charge duty on any such declaration of trust. The document on which duty was assessed and which is the subject of [the assessment] is the transfer dated 19 January 2004 from PCI to [the plaintiff]”.
The notice of determination then went on to consider and reject the applicability of s.34(1)(b) of the Duties Act, even though the plaintiff had not sought to rely on that particular exemption. The Commissioner noted that s.34(1)(b) exempts from duty a transfer from an apparent purchaser to the real purchaser in a case where the dutiable property is vested in the apparent purchaser on trust for a real purchaser who provided the money for the purchase. The Commissioner expressed the view that the exemption required the real purchaser to have provided all of the purchase money. As the plaintiff had only provided part of the purchase money in this case, it was not entitled to an exemption under s.34(1)(b).
By letter dated 7 December 2004, the plaintiff's solicitors requested that the Commissioner treat the objection as an appeal and set the matter down for hearing at the next sittings of this court. The Commissioner acknowledged receipt of that letter and said that the plaintiff’s solicitors would be contacted in due course by the relevant legal officer.
On 6 January 2005, purportedly acting pursuant to s.107(1) of the Act, the Commissioner requested the plaintiff to provide the further and better particulars of the objection which were set out in the attached document ("the request'). The request sought the following:
“1.With reference to the Objection, where it is asserted that a “Declaration of Trust” was made by the apparent purchaser in respect of the identified dutiable property, please give full and precise details as to the date that such a Declaration of Trust was made, and the parties thereto (and provide a copy thereof).
2.Having regard to the Confirmatory Deed dated 19 January 2004 made between PCI and [the plaintiff] referred and annexed to in the [statutory declaration] please:
(a)give full and precise details as to the reason why the Confirmatory Deed was made more than 5 years after the date of the Contract; and
(b)provide a copy of the duly stamped Transfer of Land whereby PCI allegedly became registered proprietor of the Property on 30 April 1999.
3.With reference to paragraph 10 of the [statutory declaration], where it is claimed that the deposit monies for the Property paid by BL and M Grollo Holdings Pty Ltd on 22 December 1998 were a “loan” to [the plaintiff] and remain a liability of [the plaintiff], please provide copies of the financial statements prepared in respect of the period 1 July 1998 to 30 June 1999 for the following companies:
(i) B L and M Grollo Holdings Pty Ltd; and
(ii) [the plaintiff].
4.With reference to the letter of offer relating to the Facility from the Bank to the Directors of Castlefield Hotels Pty Ltd, [the plaintiff] and PCI dated 29 April 1999 provided in support of the Objection, please provide copies of:
(i)BankWest's General Terms and Conditions dated 29 April 1999; and
(ii)BankWest’s Additional Terms and Conditions applying to Commercial Bills.”
“Full and precise details” were defined in paragraph 12 of the request as follows:
“Whenever you are asked to “give full and precise details” of each act, fact, matter, circumstance or thing whereby some allegation is made, or for which reason any information or material in support of the Objection was provided, without limiting the generality of those words you are required to include identifying details of the working papers and/or any other documentary material and/or oral conversations used in arriving at the reason or belief upon which the allegation, information or material is based together with the source of such documentary material or conversations, the names of those persons engaged in its compilation or in the conversations; and either produce such working papers and documentary material or specify where they or a copy of them may be inspected and obtained, including those not currently in your possession. If any document has been lost or destroyed, you are required to set out the substance of each such document as well as it can be recollected.”
The request also noted that "should the particulars requested not be received within 30 days after the date of the receipt of this notice, the Commissioner is prevented by s.107(2)(b) of the [Act] from causing the objection to be set down for hearing.”
By letter dated 4 February 2005, the plaintiff's solicitors said they expected to be in a position to provide particulars by 25 February 2005. At that time, they expressed no objection to the form or contents of the request.
On 14 February 2005, the Commissioner's solicitor wrote to the plaintiff's solicitors noting that the time for providing the requested particulars had expired on 7 February 2005 and the Commissioner was therefore prevented by s.107(2)(b) of the Act from causing the objection to be set down for hearing.
By letter dated 17 February 2005, the plaintiff's solicitors asserted that the request was not in fact a request for better and further particulars, because:
(a)The information requested by request 1 had already been provided.
(b)The other paragraphs of the request were either requests for evidence or discovery and therefore not proper requests for particulars.
There is no dispute that the plaintiff did not provide the information and documents requested by the Commissioner within 30 days of the request.
The plaintiff does not dispute that if a taxpayer does not give particulars within 30 days after the Commissioner gives a valid notice under s.107(1) of the Act, the Commissioner is prevented by s.107(2)(b) of the Act from causing the objection to be set down for hearing.
The question before me is whether the Commissioner's request for further and better particulars of the objection was a valid exercise of the power conferred by s.107(1) of the Act.
The relevant statutory scheme
Sections 106 and 107 of the Act provide as follows:
"106. Right of review or appeal
(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 s.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 sub-section (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 sub-section (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.
107. Request for further and better particulars
(1)Within 30 days after receiving a request to refer a matter or treat an objection as an appeal, the Commissioner may require the taxpayer to give further and better particulars of the objection.
(2)If, within 30 days after giving the notice –
(a)particulars are given, the Commissioner is not bound to refer the matter or cause the objection to be set down for hearing until 30 days after the Commissioner has received full details of the objection; or
(b)particulars are not given, the Commissioner must not refer the matter or cause the objection to be set down for hearing."
It is not disputed that the effect of these provisions is to impose strict time limits on a taxpayer’s review or appeal rights.
Section 106(2)(a) imposes a 60 day time limit within which a taxpayer may request the Commissioner to treat an objection as an appeal. There is no power to waive or extend this time limit.[2]
[2]Cf. Di Dio Nominees Pty Ltd v Commissioner of State Revenue (Victorian Civil and Administrative Tribunal, 14 July 2004, unreported); Springvale Turkish Islamic & Cultural Society of Victoria v Comptroller of Stamps (Vic) (1988) 20 ATR 3653; Chadwick v Commissioner of Stamp Duties (NSW) (1976) 6 ATR 613 at 615-616 (Helsham J); Chadwick v Commissioner of Stamp Duties (NSW) [1977] 1 NSWLR 151 at 154-155 (Hutley JA, with whom Samuels JA agreed); Mutual Acceptance Ltd v Commissioner of Stamp Duties (Qld) (178) 8 ATR 722 at 726-727 (Campbell J); Harris v Commissioner of Succession Duties [1941] SASR 173 at 177 (Murray CJ); In the Matter of Stamp Acts; ex parte Carpenter [1914] VLR 53.
If particulars are not given within 30 days after the Commissioner gives a notice under s.107(1) requiring the taxpayer to give further and better particulars of the objection, s.107(2)(b) provides that the Commissioner must not refer or set down. Section 107(2)(b) is expressed in mandatory language. Compliance by the taxpayer with the requirement to give particulars is a precondition to the commencement of review or appeal proceedings. Section 107 imposes a strict time limit within which the particulars must be given, which cannot be waived or extended.[3]
[3]Cf. s.100 of the Act, which empowers the Commissioner to permit an objection to be lodged outside the 60 day time limit.
Section 107(2)(b) manifests a clear legislative intention that compliance with the requirement is essential to the validity of a referral or setting down.[4] The relevant explanatory memorandum said that the provision:
"allows the Commissioner within 30 days of the request to refer or treat an objection as an appeal to require the appellant to give further and better particulars of the objection. Where such particulars are given within 30 days, the Commissioner has 30 days to refer the matter or cause the objection to be set down for hearing. If further particulars are not given within the 30 days the Commissioner cannot refer the matter to review or appeal and all proceedings to review the objection end." [Emphasis added]
[4]See generally Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 388-390.
Accordingly, a taxpayer who fails to give required particulars within 30 days is in a similar position to a taxpayer who fails to request the Commissioner to refer or set down within 60 days of the determination of the objection. In each case, there can be no further proceedings on the objection.
The meaning of “further and better particulars”
The plaintiff’s submissions
The plaintiff says that the expression “further and better particulars” in s.107(1) should carry the well-established meaning which is ascribed to it in the context of court pleadings. That meaning is informed by the function of particulars, which is to control the generality of pleadings so as to define the questions for trial with sufficient detail to enable the other party to know the case it has to meet and to limit the issues to be considered by the court.[5]
[5]Rule 13.10(2) of the Supreme Court (General Civil Procedure) Rules 1998. Bruce v Odhams Press Ltd [1936] 1 KB 697 at 712; and Bailey v Federal Commissioner of Taxation (1977) 136 CLR 214 at 219 per Gibbs J, 220 per Mason J, 221 per Jacobs J and 227 per Aickin J; Goldsmith v Sandilands (2002) 190 ALR 370 at 371 per Gleeson CJ.
A request for particulars is not designed to elicit evidence or the mode by which the case is to be proved. Accordingly, s.107(1) of the Act gives the Commissioner no power to require the production of documents or seek particulars that are in the nature of interrogatories or requests for evidence.
The Commissioner’s submissions
Section 107 confers on the Commissioner a broad power to obtain "full details" of the taxpayer's objection.[6] The purpose of the power is to assist in defining the issues in dispute, and to obtain full information about the matters in issue, before the objection is referred or set down for hearing. The position of particulars may also give the Commissioner an opportunity to resolve the matter, for example by exercising his powers to amend or withdraw the assessment.
[6]Section 107(2)(a) of the Act. cf. Royal Banks Canada v Inland Revenue Commissioners [1972] 1 Ch 665 at 675 (Megarry J). See Bailey v Federal Commissioner of Taxation (1977) 7 ATR 251 at 254, 259-260.
The power to request particulars under s.107 can extend to the provision of documents. The power should not be construed by reference to any distinction between "particulars" and "evidence" in the context of the principles governing pleadings in civil proceedings. Nor should the power be read down so as not to include "discovery".
The Commissioner’s powers to obtain information
Prior to the commencement of review or appeal proceedings
In considering the information to which s.107(1) is directed, it is useful to consider what other powers the Commissioner has to gather relevant information or documents.
At the time of lodging the relevant instrument for assessment, a taxpayer must provide to the Commissioner “all information necessary for the proper assessment of the tax liability of the taxpayer in respect of the instrument.”[7] There are serious penalties for not doing so.
[7]Section 10(1) of the Act.
The Commissioner may make an assessment from any information provided to him, and if he has insufficient information to make an exact assessment, he can make “an assessment by way of estimate.”[8]
[8]Section 11 of the Act.
The Commissioner also has very broad investigative powers under Part 9, Division 2 of the Act, which may be exercised “only for the purposes of a taxation law”(which includes the Act). These investigative powers can be exercised at any time. They include the power to require by written notice a person:
“(a) to provide to the Commissioner (either orally or in writing) information that is described in the notice;
(b) to attend and give evidence before the Commissioner or another authorised officer;
(c) to produce to the Commissioner a document or thing in the person’s custody or control that is described in the notice.”[9]
[9]Section 73(1) of the Act.
Once again, there are serious penalties for failing to comply with such a written notice within the period specified in the notice.[10]
[10]Section 73(8) of the Act.
The Commissioner also has various investigative powers in relation to search warrants, the entry of premises and the seizure of documents and things.[11]
[11]For example, ss. 77and 81 of the Act.
The Commissioner has additional powers at the objection stage. If a taxpayer lodges an objection to the Commissioner’s assessment, the Commissioner may suspend the determination of an objection for any period “during which the objector, or another person having information relevant to the objection, fails to provide information relevant to the objection that the Commissioner has requested under a taxation law.”[12] This is another very significant power for the Commissioner.
[12]Section 102(1) of the Act.
The existence and terms of these provisions impact in several ways on the meaning to be given to “further and better particulars of the objection” in s.107(1).
The Commissioner already has extensive powers to require information for the purposes of enabling him to determine assessments and objections. Therefore, the fact that s.107 is located in a division which is headed “Reviews and Appeals”[13] is of some significance. By the time the Commissioner comes to exercise his power under s.107(1), the taxpayer has already expressed its dissatisfaction with the Commissioner’s determination of the objection, and its desire to go through either a review or appeal process. VCAT or Supreme Court proceedings are inevitable, as long as the relevant time limits are met. Accordingly, a request for further and better particulars pursuant to s.107(1) is only made in the context of anticipated curial proceedings.
[13]Division 2 of Part 10 of the Act.
On a review or appeal, the taxpayer’s case is limited to the grounds of objection, and the Commissioner’s case is limited to the grounds on which the objection was disallowed, unless the tribunal or court otherwise orders.[14] The notices of determination and objection effectively define the issues in a taxation appeal or review, in much the same way that the pleadings would in other cases. Certainly, in the case of taxation appeals to this court, there are no formal pleadings. Therefore, a Commissioner’s request for further and better particulars of the objection serves the same purpose as a request for further and better particulars of a statement of claim. The Commissioner's power to require further and better particulars arises only where the taxpayer's notice of objection is inadequate to enable the Commissioner to know with sufficient detail the case he has to meet and to limit the issues to be considered by the tribunal or court.
[14]Section 109 of the Act.
The fact that the particulars can be requested before the proceeding is commenced may – as the Commissioner argues - give the Commissioner one last chance to decide whether to continue to fight the taxpayer, but that does not detract from what appears to be the primary purpose of the request for particulars.
Where, as in this case, the Commissioner has made a detailed determination on the objection[15], it may be that the circumstances in which the power to request particulars will arise will be rare. This is particularly so having regard to s.97(1) of the Act, which requires the taxpayer's grounds of objection to be stated "fully and in detail", and ss.73 and 102(1) of the Act respectively, which empower the Commissioner to obtain information about the objection and to suspend the determination of the objection until such information is provided.
[15]Cf. s.106(b) of the Act which deals with a request to treat the objection as an appeal when no determination has been made by the Commissioner within 90 days of receiving the objection.
The Commissioner’s various powers are also relevant because of the different wording employed by Parliament. For example, the language used in s.73, namely, “to provide information”, “to produce documents or things” or “to attend and give evidence”, stands in stark contrast to the more specific language in s.107(1). I agree with the plaintiff that it should be presumed that had Parliament intended to empower the Commissioner by s.107(1) to require an objector to give evidence or produce documents, it would have expressly said so.[16]
[16]See Pearce & Geddes, Statutory Interpretation in Australia (5th ed, 2001) at [4.4].
After the commencement of an appeal
Once an appeal has been commenced in this court, further information may be provided under the relevant rules of court.
For example, r.7.07 of chapter 2 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 1998, provides that once a taxation objection is set down for hearing before the Court, the objector is required to file an affidavit "setting out the acts, facts, matters and circumstances" relating to the assessment to which the objection was made and the ground(s) on which the objector relies.
The court also has general powers in appropriate cases to make orders for further and better particulars, discovery and interrogatories.[17]
[17]Rule 1.07 of Supreme Court (Miscellaneous Civil Proceedings) Rules 1998 provides that, except so far as is otherwise provided, chapter 1 of the Rules and the general practice of the court apply so far as practicable. See also Bailey v Federal Commissioner of Taxation (1977) 136 CLR 214 at 227 per Aickin J (courts hearing tax appeals have inherent power to require parties, including the Commissioner, to give particulars if it appears just to do so); Ansett Transport Industries (Operations) Pty Ltd v Comptroller of Stamps (Vic) (1981) 12 ATR 381.
The existence of such powers does not detract from the interpretation for which the plaintiff contends.
Technical legal meaning
“Further and better particulars” has acquired a technical legal meaning. I agree with the plaintiff that Parliament should be presumed to have intended to give that expression, as it appears in s.107(1), its well-established technical legal meaning.[18] For the reasons already given, the context in which the expression appears confirms that presumption.
[18]Pearce & Geddes at [4.11], citing the statement of O'Connor J in Attorney-General (NSW) v Brewery Empires of New South Wales (1908) 6 CLR 469 at 531: "Where words have been used which have required a legal meaning it will be taken, prima facie, that the legislature has intended to use them with that meaning, unless a contrary intention clearly appears from the context."
That meaning is informed by the function of particulars, which is to control the generality of pleadings so as to define the question for trial with sufficient detail to enable the other party to know the case it has to meet and to limit the issues to be considered by the court.[19]
[19]Rule 13.10(2) of the Supreme Court (General Civil Procedure) Rules 1998; Bruce v Odhams Press Ltd [1936] 1 KB 697 at 712; Bailey v Federal Commissioner of Taxation (1977) 136 CLR 214 at 219 per Gibbs J, 220 per Mason J, 221 per Jacobs J and 227 per Aickin J; Goldsmith v Sandilands (2002) 190 ALR 370 at 371 per Gleeson CJ.
A request for particulars is not designed to elicit evidence or the mode by which the case is to be proved. It is to be distinguished from the interlocutory processes of discovery and interrogation, which do serve such a purpose. Relevantly, the provision of particulars will identify more precisely the questions in issue between the parties and thus inform the scope of discovery and interrogation.
Whilst the distinction between material facts and evidence is sometimes blurred in its application, I agree with the plaintiff that s.107(1) of the Act does not give the Commissioner power to require the production of documents or to seek information in the nature of interrogatories or a request for evidence.
The request
The plaintiff submits that its notice of objection was sufficiently detailed to enable the Commissioner to know the case put by the plaintiff; therefore the power to require the provision of further and better particulars did not arise at all.
I do not accept that submission. In my opinion, a valid request for further and better particulars might have been prepared and served by the Commissioner. However, for the following reasons, the request which was in fact prepared was not a valid one.
Request 1
The first request was to give "full and precise details” as to the date that the declaration of trust referred to in the plaintiff's objection was made and the parties thereto and to provide a copy thereof. “Full and precise details” is the term that is defined in paragraph 12 of the request.
The statutory declaration said that the property was purchased by PCI at the request of and on trust for the plaintiff and that "[n]o written agreement was entered into between [the plaintiff] and PCI in relation to the appointment of PCI to acquire the property as trustee for [the plaintiff].”
The plaintiff argues that no further and better particulars of the date or the parties to the declaration of trust were necessary to further define that aspect of the plaintiff's case. Whilst the parties may have been identified sufficiently, I do not agree that the date of the declaration has been identified with sufficient particularity. One might infer from the statutory declaration that the declaration of trust was made at some time prior to the original purchase, but the Commissioner would have been entitled to ask for greater specificity than that.
Even if the requirement to provide "full and precise details" of the date of the declaration of trust might otherwise be considered a proper request for particulars, I agree that it is vitiated by the terms of paragraph 12 of the notice, for several reasons.
First, paragraph 12 is so poorly drafted as to be virtually incomprehensible. A lawyer who was familiar with the use of requests for particulars might be able to pull out some words or phrases which were meaningful and relevant to the particular information sought by the request. Even then, the lawyer would have to put a line through or ignore large parts of the definition. A lay person would have little, if any, prospect of understanding what was being asked of them by paragraph 12. Given that taxpayers lose all rights of review or appeal if they do not provide particulars within the specified time, it is imperative that any request by the Commissioner is reasonably capable of comprehension.
Secondly, paragraph 12 requires the plaintiff, when asked to give the "full and precise details" of any fact, matter, circumstance or thing, to "either produce such working papers and documentary material or specify where they or a copy of them may be inspected and obtained, including those not currently in your possession …" Consequently, the requirement to "give full and precise details" cannot be severed from the improper request for documents and the whole of request 1 is therefore an improper request for particulars.
The separate requirement in request 1 to provide a copy of the declaration of trust constitutes a request for discovery and not particulars. In any event, it was apparent from the plaintiff's objection, including the statutory declaration, that no such document existed.
Request 2
The request for the plaintiff to provide “the reason why” the confirmatory deed was made more than 5 years after the original purchase, is not a proper request for particulars; it is a request in the nature of an interrogatory.
The requirement to provide a copy of the transfer of land whereby PCI became the registered proprietor is a request for discovery and not particulars.
Requests 3 and 4
These both requested the plaintiff to produce documents. No other information was sought. For the reasons set out above, these were not proper requests for particulars.
Effect of invalidity of the request
For the reasons set out above, the request was not a valid exercise of the Commissioner’s power under s.107(1) of the Act.
There was no dispute between the parties as to the effect of serving a document which did not comply with s.107(1). It was common ground that if the Commissioner had no jurisdiction or lawful basis on which to require the plaintiff to provide the information and material sought by the request, the request would be ultra vires and a nullity.[20]
[20]Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 614-615 [51] per Gaudron and Gummow JJ, 618 [63] per McHugh J and 626 [152] per Hayne J; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 506 [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
Consequently, the Commissioner would be treated as having not exercised the discretion granted by s.107(1) of the Act to require the plaintiff to give further and better particulars of its objection within 30 days of receiving the plaintiff's request to treat the objection as an appeal. Section 107(1) not having been validly invoked, the Commissioner would be bound by s.106(3) to cause the plaintiff's objection to be set down for hearing at the next sittings of this court.
I will hear from the parties as to the precise form of orders to be made.
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