PARTIES: TOURISM HOLDINGS LTD
and
TOURISM HOLDINGS AUSTRALIA PTY LTD
and
COMMISSIONER OF TAXES
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY
JURISDICTION
FILE NO: 53 of 2001 (20103814)
#DATE 09:01:2002
HEARING DATE: 13 December 2001
JUDGMENT OF: BAILEY J
TAXES AND DUTIES - Stamp duties - Appeal against assessment - preliminary
questions - Commissioner has no duty to consider requests to amend Assessments
- Commissioner has no duty to exercise discretion conferred under the Act to
amend or refuse to amend an Assessment - s 97(1)
Grice Holdings Pty Ltd and Grice Investments Pty Ltd (No. 2) v Commissioner
of Taxes (2001) NTSC 88, Supreme Court of the Northern Territory,
unreported, delivered 18 October 2001 - Followed
TAXES AND DUTIES - Commissioner has no power to grant an extension of time in
which to lodge an objection against an Assessment - s 117
Taxation (Administration) Act - ss 56 , 56A, 56B, 101
Grain Elevators Board (Vic) v Dunmunkle Corp (1946) 73 CLR 70 -
Considered
TAXES AND DUTIES - Extension of time in which to lodge an Application - under
s 100(7) - Commissioner has the power to grant an extension of time -
Commissioner must be satisfied that there was a reasonable excuse for not
lodging an objection within the 30 day prescribed period
Taxation Administration Act - s 100(1)
Maxwell v Murphy (1957) 96 CLR 261 - Applied
Rodway v R (1990) 169 CLR 515 - Applied
Pfeiffer v Rogerson (2000) 172 ALR 625 - Applied
George Hudson Ltd v Australian Timber Workers Union (1923) 32 CLR 413 -
Considered
Revenue (Victoria) v Royal Insurance Australia Ltd (1994) 182 CLR 51 -
Considered
Worrall v Commercial Banking Co of Sydney Ltd (1917) 24 CLR 28 -
Considered
Doro v Victorian Railways Commission (1960) VR 84 - Considered
Lighthouse Philatelics Pty Ltd v Commissioner of Taxation (1991) 32 FCR
148 - Referred
Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd
(1994) 182 CLR 51 - Referred
See para 48.
Counsel:
Plaintiffs: D Russell QC and B O'Loughlin
Defendant: J Kelly
Solicitors:
Plaintiffs: Ward Keller
Defendant: Morgan Buckley
Judgment category classification: B
Judgment ID Number: bai02001
Number of pages: 22
bai02001
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
BETWEEN:
TOURISM HOLDINGS LTD
First Plaintiff
and
TOURISM HOLDINGS AUSTRALIA PTY LTD
Second Plaintiff
AND:
COMMISSIONER OF TAXES
Defendant
CORAM: BAILEY J
(Delivered 9 January 2002)
Background [2] On 11 May 2000, the defendant Commissioner issued a Notice of Assessment
of Stamp Duty to the second plaintiff, as purchaser of the Australian assets,
assessing duty on the Agreement at $775,417.60 ("the assessment").
[3] By a letter dated 9 June 2000 Freehill Hollingdale and Page as solicitors
for the first plaintiff, lodged what purported to be an objection against the
assessment.
[4] By letter dated 12 January 2001, the Commissioner replied to Freehills that
he had no power or authority to consider the purported objection on the basis
that the first plaintiff was not "a person aggrieved by an assessment made in
relation to him" under s 100(1) of the Taxation (Administration)
Act ("the Act"). Consequently, the first plaintiff had no standing to
object to the assessment.
[5] By a letter dated 19 January 2001 Freehill Hollingdale and Page as
solicitors for the first and second plaintiffs, requested inter alia, that the
Commissioner grant an extension of time pursuant to s 100(7) of the Act
within which to lodge an objection.
[6] By letter dated 22 January 2001, the Commissioner replied to Freehill
Hollingdale and Page advising that as s 100(7) of the Act commenced
operation on 1 July 2000, and the second plaintiff's right to object had
expired on or about 12 June 2000, s 100(7) did not give the Commissioner
power to revive the second plaintiff's rights of objection.
[7] By a letter dated 2 February 2001 Freehill Hollingdale and Page as
solicitors for the first and second plaintiffs, requested inter alia, the
Commissioner to issue an amended assessment pursuant to s 97(1) of the
Act.
[8] By letter dated 15 February 2001, the Commissioner replied to Freehill
Hollingdale and Page advising that he "declined to consider whether or not to
exercise the discretion under s 97(1) of the Act to amend the
assessment".
[9] On 13 February 2001, the plaintiffs filed a Notice of Appeal (Proceeding
No LA3 of 2001) purporting to appeal against the following decisions of
the Commissioner:
a. the assessment;
b. the decision to refuse to consider the purported objection referred to at
para [3] above.
[10] On 14 March 2001, the plaintiffs commenced the present proceedings
seeking:
(a) An Order in the nature of mandamus requiring the Commissioner to determine
the objection lodged by the plaintiffs on 9 June 2000 (para [3] above)
against the assessment which objection the Commissioner has refused to
determine.
(b) In the alternative a declaration that the objection lodged by the
plaintiffs (or alternatively by the first named plaintiff on its own behalf
and/or on behalf of the second named plaintiff) against the assessment is an
objection which complies with s 100 of the Act which objection the
Commissioner is required by law to determine.
(c) In the alternative, the plaintiffs apply for an order in the nature of
mandamus that the Commissioner consider whether or not to exercise its
discretion conferred upon him by s 97(1) of the Act to the assessment by
either amending it or refusing to amend it in relation to the plaintiffs'
letter of 2 February 2001 (para [7] above) requesting the
Commissioner amend the assessment.
(d) Alternatively an order in the nature of mandamus that the Commissioner
exercise the discretion conferred upon him by s 97(1) of the Act to
amend the assessment by either amending it or refusing to amend it.
(e) Alternatively an order in the nature of mandamus that the Commissioner
exercise the discretion conferred upon him by s 97(1) of the Act to amend
the assessment by amending it according to law.
(f) Further and/or in the alternative the plaintiffs seek an order in the
nature of mandamus requiring the Commissioner to exercise the discretion
conferred upon him pursuant to s 100(7) of the Act to extend time to
permit the issue or re-issue by the plaintiffs of an objection that is in the
name of a person aggrieved.
(g) In the further alternative, the plaintiffs seek an order in the nature of
mandamus requiring the Commissioner, or alternatively a declaration that the
Commissioner is to exercise the discretion conferred upon him pursuant to
s 117(1) of the Act to extend time to permit the issue or re-issue by the
plaintiff of an objection that is in the name of a person aggrieved.
[11] The parties have identified four preliminary issues to be addressed before
the trial of the proceeding:
(a) Does s 100(7) of the Act empower the Commissioner to grant to the
second plaintiff an extension of time within which to lodge an objection
against the assessment of stamp duty issued to the second plaintiff on
11 May 2000?
(b) Does s 117 of the Act empower the Commissioner to grant to the second
plaintiff an extension of time within which to lodge an objection against the
assessment?
(c) Does the Commissioner have a duty to consider the plaintiffs' request by
letter dated 2 February 2001 that he amend the assessment?
(d) Does the Commissioner have a duty to exercise the discretion conferred on
him by s 97 of the Act by either amending or refusing to amend the
assessment?
[12] It is convenient to address ss 100(7), 117 and 97 of the Act in the
reverse order to that suggested by the four preliminary questions.
Section 97 : Preliminary Issues (c) and (d)
[13] Section 97(1) of the Act provides: [14] In brief terms, the submission of the plaintiffs is that
the Commissioner is under a duty to exercise, or alternatively, to consider
exercising the discretion provided by s 97(1) and accordingly mandamus
will lie. Similar submissions were considered in Grice Holdings Pty Ltd and
Grice Investments Pty Ltd (No 2) v Commissioner of Taxes [2001] NTSC 88,
Supreme Court of the Northern Territory, unreported, delivered 18 October
2001. In that case, Riley J held, at para [10] of his reasons for
judgment, that s 97(1): [15] His Honour also held at para [13] and following: [14] In my view s 97(1) of the Taxation (Administration) Act
does not impose a duty upon the Commissioner of the kind suggested by the
plaintiffs. It follows that there is no duty upon him to take into account the
plaintiffs' submissions on the merits of the original assessment. The matter
is one entirely for his discretion."
[16] With respect, I agree with the conclusions reached by
Riley J as to the nature of the Commissioner's discretion under
s 97(1) and the reasons advanced by His Honour in support of those
conclusions. Mr Russell QC submitted that the decision of
Riley J in Grice Holdings (No 2) was inconsistent with relevant
authorities and should not be followed. The principal authorities relied upon
by the plaintiffs and the Commissioner in the present case were the same as
those considered extensively by Riley J. Nothing is to be gained by my
repeating the opposing submissions in circumstances where I am in complete
agreement with the reasoning and conclusions of His Honour.
[17] Before leaving the Commissioner's discretion under s 97(1), I should
refer to one basis upon which Mr Russell sought to distinguish the present
case from Grice Holdings (No 2), supra. At para [14] of his
reasons for decision, His Honour said: [18] Mr Russell submitted that there was no suggestion in the
present case that the Commissioner had considered the plaintiffs' submissions
as to why he should alter the assessment. A comparison between the
Commissioner's letter of 15 February 2001 to the plaintiffs' solicitors
and the letter sent to the plaintiffs in Grice Holdings (No 2) (the
terms of which are referred to in para [3] of Riley J's judgment) reveals
that the two letters were in substantially the same terms. I too consider that
it is likely that the Commissioner did consider the plaintiffs' submissions in
deciding to decline to consider the exercise of his discretion. However,
whether he did so or not, I am satisfied that he was under no duty to do so and
cannot be compelled to exercise his discretion under s 97(1) in any
particular manner.
Section 117 : Preliminary Issue (b)
[19] Section 117 of the Act provides: (a) allow a further period or extend the time for the doing of the act or
thing, notwithstanding that the specified period has expired; or
(b) vary the specified period in respect of which or the time within which
that person is required to do that act or thing,
and that person shall do that act or thing accordingly."
[20] The Commissioner's discretion pursuant to s 117 to
extend time limits prescribed by the Act is expressed to apply to an act or
thing "required" by or under the Act to be done within a specified time. In
the plaintiffs' submission, the word "required" is to be construed in its
temporal context, ie - where the Act prescribes a particular time limit for the
doing of some act or thing, the Commissioner is to have a general discretion to
extend time for the doing of that act or thing. Accordingly, in the
plaintiffs' submission, the provision is applicable to the 30-day time limit
for the lodging of objections to assessments prescribed by s 100(1).
[21] Section 100(1) of the Act provides: [22] In substance, the plaintiffs' submission is that where a
person chooses to make an objection to an assessment, he is required by the Act
to post the objection to, or lodge the objection with, the Commissioner within
the 30-day period, subject to the Commissioner's discretion to extend that
period under s 117.
[23] On behalf of the Commissioner, Ms Kelly submitted that on its terms,
the power to extend time under s 117 is limited to situations where a
person is "required by or under" the Act to do an act or thing within a
prescribed time or period. In short, it is submitted that the power under
s 117 is confined to provisions which require a person to do
something (within a prescribed time) and has no application to situations where
a person may do something, such as lodging an objection, or an appeal,
or applying for a refund of stamp duty, but is not obliged to do so by the
Act.
[24] Ms Kelly submitted that if s 117 was interpreted in the manner
suggested by the plaintiffs and an extension of time was granted, for example,
to lodge an objection or appeal, or apply for a refund of stamp duty,
s 117 would produce the curious result that a person would be obliged to
lodge an objection or appeal or apply for a refund within the further period of
extension of time allowed by the Commissioner. Such an anomalous result would
flow from the concluding words of s 117 providing that a person "shall" do
the act or thing in accordance with the extension of time allowed by the
Commissioner. Ms Kelly submitted that such a result could not have been
intended by the Legislature. Mr Russell's response was to submit that,
where granted, an extension of time would not oblige a person to do a
permissive act or thing, but only require that if it was done that it be done
within the further period or extension of time allowed by the Commissioner.
[25] If s 117 of the Act is read in isolation, the submissions on behalf
of the plaintiffs might be thought to have some merit despite involving some
torture to the ordinary and natural meaning of the provision. However, it is,
of course, necessary to approach s 117 in the context of the Act read as a
whole. I think it is clear that, looking at the scheme of the Act, where the
Legislature intended the Commissioner to have power to extend the time within
which a person may do something which is permitted (rather than
required), the Legislature has enacted a specific power. For
example:
(a) Section 101 of the Act permits a person who is dissatisfied with a decision
of the Commissioner on an objection to an assessment "within 30 days after
service on him of notice of that decision or within such further time as the
Commissioner may allow, appeal to the Supreme Court" (emphasis added).
(b) Sections 56 and 56A permit a person in specified circumstances to apply for
a refund of stamp duty within 90 days of specified events. Section 56B
provides: (c) Section 100(1) permits a person who is aggrieved by an
assessment within 30 days after the date on which he is informed of the
assessment to make an objection to the assessment. Section 100(7) provides: [26] Sections 56B and 100(7) were enacted by the Taxation
(Administration) Amendment Act 2000 and came into operation on 1 July
2000 (ie after the 30-day period during which the second plaintiff had a right
to object to the assessment expired on or about 12 June 2000). If the
plaintiffs' construction of s 117 is correct, it would, of course, have
been entirely unnecessary to enact subsection (7) of s 100. Mr Russell
submitted that the Legislature may have acted to remove any doubt or ambiguity
about the application of s 117 to acts or things permitted rather than
required by the Act. On this approach, the Legislature would have produced the
rather curious result of enacting a narrower discretion to extend time (by
requiring a reasonable excuse for delay) than that which already existed under
s 117.
[27] It is appropriate to exercise caution in interpreting legislative
provisions by reference to amending legislation : see Grain Elevators Board
(Vic) v Dunmunkle Corp (1946) 73 CLR 70 and Pearce & Geddes,
Statutory Interpretation in Australia 4th ed, 1996, para [3.18].
However, in the present case, I consider that the text of s 117 is clear
and unambiguous and that there is no need to refer to the new provisions of
ss 56B and 100(7) for assistance with its proper construction. I am
satisfied that the submissions made by Ms Kelly on behalf of the
Commissioner are correct and that s 117 is confined to situations where a
person is required by or under the Act to do an act or thing, see, for
example ss 9, 42, 52, 56D, 75 and 81. Such an interpretation is
consistent with the direction that where an extension is granted, the person
"shall do that act or thing accordingly".
Section 100(7) : Preliminary Issue (a)
[28] The terms of s 100(7) of the Act are set out at para 25(c)
above. It has also been noted that this subsection came into operation on 1
July 2000.
[29] The assessment was notified to the second plaintiff on or about
11 May 2000. Accordingly, pursuant to s 100(1) (as to the terms of
which, see para [21] above), the time for lodgment of an objection by the
second plaintiff expired on or about 12 June 2000.
[30] In brief terms, it is the submission of the Commissioner that
s 100(1) of the Act confers a right to object to the assessment on the
second plaintiff. In accordance with the terms of s 100(1) that right of
objection endured for 30 days from the date upon which the second
plaintiff was informed of the assessment and then ceased to exist. In
Ms Kelly's submission, the 30-day time limit in s 100(1), being a
matter affecting the existence of a right of the second plaintiff (ie the right
to object to the assessment) and a duty of the Commissioner (ie the duty to
consider any objection lodged within time : s 100(3)) is a matter of
substance, not procedure. Accordingly, the common law presumption against the
retrospective operation of the amendment applies and it follows that
s 100(7) does not confer a power on the Commissioner to extend time for a
person to lodge an objection in circumstances where that person's right to
object has been extinguished prior to the commencement of operation of the
subsection.
[31] Mr Russell, for the plaintiffs, submitted that s 100(7) confers
a power upon the Commissioner which is exercisable at any time after the
amendment came into effect. In his submission, neither expressly or by
necessary implication is the power conferred upon the Commissioner limited to
objections in relation to instruments executed after the date of commencement
of the amending legislation. It was submitted that the amendment was concerned
with matters of procedure, not substantive rights, and accordingly the
presumption against retrospectivity had no application. Alternatively, it was
submitted that the presumption against retrospectivity (if it would otherwise
apply) should in this case give way to the presumption that beneficial
legislation should be given a wide meaning consistent with the Legislature's
objectives. Under the amendment, the Commissioner was only required to
consider a late objection if he was satisfied that there was a reasonable
excuse for not lodging an objection within the 30-day period. In such
circumstances and against the background that the objective of revenue
legislation is to collect the correct amount of tax due, not whatever can be
secured from the taxpayer, it was submitted that it could not seriously be
suggested that the Legislature would have intended to deny any consideration of
a person's objection to an assessment on the basis that the 30-day period had
expired before commencement of the amendment.
[32] In Maxwell v Murphy (1957) 96 CLR 261 at p 267, Dixon CJ
stated the general presumption against retrospective operation of legislation
in the following terms: [33] His Honour, however, added a note of caution immediately
after the above passage: [34] The particular problems posed by amendment of statutes of
limitation (which historically have been classified as procedural rather than
substantive) was addressed in the unanimous judgment of the High Court in
Rodway v The Queen (1990) 169 CLR 515 at p 518-9: Where a period is limited by statute for the taking of proceedings and the
period is subsequently abridged or extended by an amending statute, the
amending statute should not, unless it is clearly intended, be given a
retrospective operation to revive a cause of action which has become barred or
to deprive a person of the opportunity of instituting an action which is within
time. If it were given a retrospective operation, the amending legislation
would operate so as to impair existing, substantive rights - either the right
to be free of a claim or the right to bring a claim - and such an operation
could not be said to be merely procedural. This distinction was recognized by
Williams J in Maxwell v Murphy (1957) 96 CLR 261 at p 278, and his
remarks were adopted by the Privy Council in Yew Bon Tew v Kenderaan Bas
Mara [1983] 1 AC 553 at p 562. Gibbs J re-examined the question in
Yrttiaho v Public Curator (Q) (1971) 125 CLR 228 at p 242
and he expressed his view as follows:
`Limitations may be regarded as being only of a procedural nature and,
therefore, unless a contrary intention appears, retrospective in operation, if,
being an amendment enlarging time, it took effect before the right sought to be
enforced had become finally barred by lapse of time, and if, being an amendment
reducing time, it left time after its commencement within which an action might
be brought.'
It was recognition of the fact that the simple classification of a statute
as either procedural or substantive does not necessarily determine whether it
may have a retrospective operation which no doubt led Dixon CJ in Maxwell v
Murphy to formulate the general rule in terms which did not rest simply
upon that classification."
[35] More recently, in a case concerning conflict of laws
rather than questions of retrospectivity, the High Court has offered some
guidance on the nature of legislation providing for limitation periods. In
Pfeiffer v Rogerson (2000) 172 ALR 625 at p 651, Gleeson CJ,
Gaudron, McHugh, Gummow and Hayes JJ held: [36] In a separate judgment, Kirby J at p 667 held: [37] The three High Court authorities of Maxwell,
Rodway and Pfeiffer, supra provide very strong support for the
submissions made on behalf of the Commissioner that s 100(7) of the Act is
concerned with matters of substance not procedure and accordingly, prima facie,
the presumption against retrospectivity is applicable. On this basis, the
second plaintiff's right to object to the assessment expired at the end of the
30-day period for objections provided by s 100(1) and was not revived by
the introduction of s 100(7). However, in the present case, I consider
that it would be erroneous to adopt too readily the approach that
because s 100(7) is concerned with matters of substance, not
procedure, therefore the presumption against retrospectivity must be
given full effect and the second plaintiff is to be barred from objecting to
the assessment regardless of the reasons for its failure to object within time
and regardless of the merits of its objection.
[38] The rationale for the presumption against retrospectivity is often said to
be that stated in Maxell on Statutes 6th Ed at p 381: [39] In George Hudson Ltd v Australian Timber Workers'
Union (1923) 32 CLR 413, Issacs J after citing this passage continued
(at p 434): [40] The presumption against retrospectivity is rebuttable. In
the absence of express provision, the presumption will be rebutted if a
necessary intendment can be spelt out that the legislation is to operate
retrospectively. In Worrall v Commercial Banking Co of Sydney Ltd
(1917) 24 CLR 28, Barton J delivering the judgment of the High Court held at
p 32: [41] In Doro v Victorian Railways Commissioners [1960]
VR 84, Adam J after referring to the passage from Maxwell set out
at para [38] above, continued (at p 86): [42] In the present case, it is difficult to see what
"injustice" the Commissioner would suffer if s 100(7) is held to apply to
those who wish to object to an assessment in circumstances where the 30-day
period under s 100(1) has expired. To succeed with an objection, such a
person would need to satisfy the Commissioner not only as to the merits of his
objection, but also that there was a reasonable excuse for not lodging the
objection within the 30-day period. In my view, it is legitimate to ask what
possible injustice can there be to the Commissioner in allowing a person the
opportunity to argue that he has both a reasonable excuse for delay and a
meritorious objection to an assessment. On the other hand, to deny a person
who has both a reasonable excuse for delay and a meritorious objection even the
opportunity to argue his case would be to impose a manifest injustice upon
him.
[43] Ms Kelly for the Commissioner submitted that the second plaintiff had lost
its vested right to object to the assessment at the expiry of the 30-day period
for lodgment of objections. Mr Russell for the plaintiffs submitted that,
in reality, the Commissioner was claiming a vested right to assess duty wrongly
at excessive amounts and deny any remedy to the plaintiffs. Ms Kelly on
behalf of the Commissioner denied any such claim in strong terms. However, the
practical effect of upholding the Commissioner's submissions as to the
application of s 100(7) would be that any assessment in respect of which
the 30-day period had expired before 1 July 2000 would be unchallengable
irrespective of whether the assessment was right or wrong.
[44] The Commissioner's "task is to ensure that the correct amount of tax is
paid, `not a penny more, not a penny less'" (Lighthouse Philatelics Pty Ltd
v Commissioner of Taxation (1991) 32 FCR 148 at 155). In Commissioner
of State Revenue (Victoria) v Royal Insurance Australia Ltd (1994)
182 CLR 51 at 64, Mason CJ observed: [45] Lighthouse Philatelics and Royal Insurance
deal with taxation issues which are not raised by the present case. However,
both cases are of indirect relevance in emphasising the objective of revenue
legislation is to collect the correct amount of duty payable, not whatever can
be secured from the taxpayer.
[46] The addition of subsection (7) to s 100 was legislation of a remedial
character. The amendment permits a person aggrieved by an assessment an
opportunity to have his objection considered by the Commissioner only where the
Commissioner is satisfied that the person has a reasonable excuse for not
lodging an objection within the 30-day period prescribed by s 100(1). The
absence of s 100(7) before 1 July 2000 was capable of working a grave
injustice to a person who had a reasonable excuse for lodging a (valid)
objection out of time. Formerly, such a person was to be refused a hearing,
not on the merits, but simply because of a defective objection. The
Legislature has moved to remedy this defect in the law.
[47] In all the circumstances, I consider s 100(7) must be construed in
accordance with the well-established principles relating to ameliorating
legislation. Application of s 100(7) to persons for whom the time for
objecting had expired prior to 1 July 2000 has the potential to save them
from serious injustice while causing no injustice at all to the Commissioner.
Notwithstanding the presumption against retrospectivity, I consider that the
Legislature must have intended the amendment to have retrospective effect.
Answers to Preliminary Issues
[48] For the reasons I have endeavoured to express, I answer the four
preliminary questions as follows:
(b) No - s 117 does not empower the Commissioner to grant to the second
plaintiff an extension of time within which to lodge an objection against the
assessment;
(c) No - the Commissioner has no duty to consider the plaintiffs' request by
letter dated 2 February 2001 that he amend the assessment; and
(d) No - the Commissioner has no duty to exercise the discretion conferred on
him by s 97 by either amending or refusing to amend the assessment.
[49] I will hear the parties as to the question of costs.
DELIVERED: 9 January 2002"(1) The Commissioner may, at any time within a period of three
years after the date of an assessment by him of duty, amend the assessment by
making such alterations or additions to it as he thinks necessary."
"... does not impose any duty or obligation upon (the Commissioner)
to make an amended assessment. It is his opinion alone that is applicable. In
my view he cannot be compelled to exercise the power created by the section."
"... the submission of the plaintiffs requires the exercise of the
power under s 97(1) to be divided into two parts the first being a
decision to decide whether to amend and the second a decision in fact to amend.
That is not the effect of the section, it simply permits the Commissioner to
amend an assessment if he thinks it necessary. It is not a two stage process.
"I should add that I am not convinced that the Commissioner did not
take into account the plaintiffs' submissions when he decided to decline to
consider whether or not to exercise his discretion under s 97(1) of the Act.
Although it is not clear from the text of the letter it is possible, indeed
more probable than not, that he did so."
"Where a person is required by or under this Act to do an act or
thing in respect of a specified period or within a specified time, the
Commissioner may, by instrument served on that person -
"(1) A person who is aggrieved by an assessment made in relation
to him under this Act may, within 30 days after the date on which he is
informed of the assessment, post to, or lodge with, the Commissioner an
objection in writing to the assessment."
"The Commissioner may allow a further period to furnish an
application or information under section 56 or 56A if satisfied that there is a
reasonable excuse that prevented a person from furnishing the application or
information within the 90-day period."
"If the Commissioner is satisfied that a person has a reasonable
excuse for not lodging an objection within the 30-day period, the Commissioner
may extend the time for lodging the objection."
"The general rule of the common law is that a statute changing the
law ought not, unless the intention appears with reasonable certainty, to be
understood as applying to facts or events that have already occurred in such a
way as to confer or impose or otherwise affect rights or liabilities which the
law had defined by reference to the past events. But, given rights and
liabilities fixed by reference to past facts, matters or events, the law
appointing or regulating the manner in which they are to be enforced or their
enjoyment is to be secured by judicial remedy is not within the application of
such a presumption. Changes made in practice and procedure are applied to
proceedings to enforce rights and liabilities, or for that matter to vindicate
an immunity or privilege, notwithstanding that before the change in the law was
made the accrual or establishment of the rights, liabilities, immunity or
privilege was complete and rested on events or transactions that were otherwise
past and closed. The basis of the distinction was stated by Mellish LJ in
Republic of Costa Rica v Erlanger (1876) 3 Ch D 62 at p 69,
`No suitor has any vested interest in the course of procedure, nor any right to
complain, if during the litigation the procedure is changed, provided, of
course, that no injustice is done.'"
"The distinction is clear enough in principle and its foundation in
justice is apparent. But difficulties have always attended its application."
"The rule at common law is that a statute ought not be given a
retrospective operation where to do so would affect an existing right or
obligation unless the language of the statute expressly or by necessary
implication requires such construction. It is said that statutes dealing with
procedure are an exception to the rule and that they should be given a
retrospective operation. It would, we think, be more accurate to say that
there is no presumption against retrospectivity in the case of statutes which
affect mere matters of procedure. Indeed, strictly speaking, where procedure
alone is involved, a statute will invariably operate prospectively and there is
no room for the application of such a presumption. It will operate
prospectively because it will prescribe the manner in which something may or
must be done in the future, even if what is to be done relates to, or is based
upon, past events. A statute which prescribes the manner in which the trial of
a past offence is to be conducted is one instance. But the difference between
substantive law and procedure is often difficult to draw and statutes which are
commonly classified as procedural - statutes of limitation, for example - may
operate in such a way as to affect existing rights or obligations. When they
operate in that way they are not merely procedural and they fall within the
presumption against retrospective operation. But when they deal only with
procedure they are apt to be regarded as an exception to the rule and, if their
application is related to or based upon past events, they are said to be given
a retrospective operation provided that they do not affect existing rights or
obligations.
"... matters that affect the existence, extent or enforceability of
the rights or duties of the parties to an action are matters that, on their
face, appear to be concerned with issues of substance, not with issues of
procedure ... the application of any limitation period, whether barring the
remedy or extinguishing the right, would be taken to be a question of substance
not procedure ..."
"(1) A law which in substance affects the existence, extent or
enforcement of the rights and obligations of both parties shall not be
classified as `procedural'. Without limiting the generality of this statement,
a law providing for the limitation of actions or a limitation on the recovery
of damages shall be classified as `substantive'; and (2) Other laws, which are
concerned with the actual conduct of court proceedings shall be classified as
`procedural'."
"Upon the presumption that the Legislature does not intend what is
unjust rests the leaning against giving certain statutes a retrospective
operation."
"That is the universal touchstone for the Court to apply to any
given case. But its application is not sure unless the whole circumstances are
considered, that is to say, the whole of the circumstances are considered, that
is to say, the whole of the circumstances which the Legislature may be assumed
to have had before it. What may seem unjust when regarded from the standpoint
of one person affected may be absolutely just when a broad view is taken of all
who are affected. There is no remedial Act which does not affect some vested
right, but, when contemplated in its total effect, justice may be
overwhelmingly on the other side."
"Necessary intendment only means that the force of the language in
its surroundings carried such strength of impression in one direction, that to
entertain the opposite view appears wholly unreasonable."
"The strength of the presumption against retrospectivity in any
particular case, and accordingly the ease or difficulty with which it may be
overcome, must, I would think, depend on the nature and degree of the injustice
which would result from giving a statute a retrospective operation. Where a
palpable injustice would result, the presumption should be given its fullest
weight. In such a case it is but common sense to require the clearest
indication of legislative intention that such an unjust result was intended.
On the other hand, where to give retrospective operation to a statute might be
considered to work some injustice to one party, but is clearly required to
rectify a manifest injustice to others, there would, on principle, seem little
reason for giving much weight to the presumption. In such a case, where the
Legislature has used language which is apt to give to its statute retrospective
operation, it would appear to be a matter of conjecture to presume that it
preferred the interests of the one to the others."
"In approaching that question, the first and foremost consideration
is that the Act is a taxing Act and that in terms it confers no authority upon
the Commissioner to levy, demand or retain any moneys otherwise than in payment
of duties and charges imposed by or pursuant to the Act. In that context,
there is no persuasive reason why the grant of a positive discretionary power
to make a refund, once an overpayment of duty has been found by the
Commissioner to have taken place, should be treated as a source of authority in
the Commissioner to retain the overpayment in the absence of circumstances
disentitling the payer from recovery. Nothing short of very clear words is
sufficient to achieve such a remarkable result. The Court should be extremely
reluctant to adopt any construction of s 111 which would enable the
Commissioner by an exercise of discretionary power to defeat a taxpayer's
entitlement to recover an overpayment of duty."
(a) Yes - s 100(7) empowers the Commissioner to grant to the second
plaintiff an extension of time within which to lodge an objection against the
assessment provided that the Commissioner is satisfied that the second
plaintiff has a reasonable excuse for not having lodged an objection within the
30-day period prescribed by s 100(1);