Appellant v Respondent

1. Section 68 of the Land Tax Act 2005 (Vic) (LT Act) provides an exemption from land tax for land which is 'being prepared for use primarily for primary production' and where the land will become exempt under section 65 (or certain other provisions) 'within 12 months after the day on which the preparation ... commenced'. Relevantly, there is a discretion, vested in the Commissioner, to extend the period of time by which the land must become exempt by a further 12 months (ie. a total period of up to 24 months).
2. It is not disputed that the Relevant Property began to be used primarily for primary production within 24 months of its acquisition (ie. by virtue of the Share Farming Agreement) and has been exempt from land tax under section 65 of the LT Act since the 2018 land tax year.[3] Of course, the nature of the primary production activities (ie. crop cultivation) differs from those to which MPL's preparatory activities were directed (ie. cattle farming).
3. Noting that the Commissioner of State Revenue (Commissioner) concedes that there is some evidence that MPL engaged in preparing the land for primary production, the key issues to be addressed are whether:

• the discretion to extend the time for the property to become exempt should be exercised; and
• the Tribunal can be satisfied that, as at 31 December 2015 or 31 December 2016, the Relevant Property would become exempt from land tax within 12 or 24 months from the date the land preparation commenced.

(a) I have determined that I should exercise the discretion to extend the time allowed under section 68(2) for the Relevant Property to become exempt from land tax to 30 September 2017; and

(b) I am satisfied that MPL has discharged its onus of proving that, as at 31 December 2015, the Relevant Property would become exempt by 30 September 2017; but

(c) I am not satisfied that MPL has discharged its onus of proving that, as at 31 December 2016, the Relevant Property would become exempt by 30 September 2017.

4 Mintfield filed a Notice of Appeal dated 14 July 2022 ("the Notice of Appeal") seeking to appeal the Orders of the Tribunal pursuant to s 148 of the VCAT Act.

A party to a proceeding may appeal on a question of law from an order of the Tribunal in the proceeding -

(a) if the Tribunal was constituted for the purpose of making the order by the President or a Vice President, whether with or without others, to the Court of Appeal with leave of the Court of Appeal; or

...

(b) in any other case, to the Trial Division of the Supreme Court with leave of the Trial Division.

It follows from this provision that any appeal is dependent upon two important qualifications. First, that the appeal be on a question of law, and secondly, that the Court gives leave to appeal. The legislative policy underlying these provisions is that "VCAT decisions should not generally be disturbed where cases have been decided in that forum other than on questions of law and where there is something about the decision bearing upon the question of law which warrants a grant of leave to appeal".[4] It follows that "[t]his Court is not entitled to enter into the fact finding exercise which the legislature has deliberately entrusted to a specialist tribunal".[5]

6 The leave requirement under s 148(1) of the VCAT Act is designed to maintain this position. As Pagone J said in Commissioner of State Revenue v Frost:[6]

The requirement for leave under s 148(1) of the [VCAT Act] "is a safeguard that the appeal is on a pure question of law and that the grounds supporting the question of law articulated for determination by the court do found the subject matter of the appeal".[7] It also confers a discretion about whether to grant leave[8] which an applicant must persuade the court to exercise in its favour. What must be shown will depend upon the particular case bearing in mind the statutory criteria being a grant of leave and not special leave.[9] It will ordinarily be necessary (in addition to a clearly articulated question of law)[10] for an applicant to make out a prima facie case[11] and in an appropriate case it may be necessary for the applicant to show that the question upon which leave is sought has public or general importance.[12]

7 An additional safeguard has since been imposed. Effective from 1 May 2018, the VCAT Act was amended to include s 148(2A).[13] The section provides:

The Trial Division of the Supreme Court may grant an application for leave to appeal under this section only if it is satisfied that the appeal has a real prospect of success.

8 This amendment sees the replacement of the requirement that an applicant seeking leave to appeal from VCAT to the trial division of the Supreme Court must show that there is a real or significant argument to be put that an error below exists,[14] sometimes referred to as the Hulls test.[15] Instead, all applicants under s 148 are now subject to the same and more burdensome requirement: they must demonstrate that the appeal has a real prospect of success.[16] With respect to applications subject to the same test,[17] the Court of Appeal has said:[18]

the test under s 63 of the Civil Procedure Act should be construed as one of whether the respondent to the application for summary judgment has a "real" as opposed to a "fanciful" chance of success; that the "real chance of success" test is to some degree a more liberal test than the "hopeless" or "bound to fail" test; and that, as the law is at present understood, the real chance of success test permits of the possibility that there may be cases, yet to be identified, in which it appears that, although the respondent's case is not "hopeless" or "bound to fail", it does not have a real prospect of succeeding.

9 The new requirement of s 148(2A) makes express the restraint this Court ought exercise when reviewing decisions of VCAT; a restraint long and more generally recognised in case authority. In considering applications of this nature, courts have been concerned to respect the role entrusted by the legislature to the particular tribunal and not, in effect, subvert this position by seeking out error. Thus, Kirby J in Roncevich v Repatriation Commission said:[19]

Courts conducting this form of review have been repeatedly enjoined by this Court to avoid overly pernickety examination of the reasons.[20] The focus of attention is on the substance of the decision and whether it has addressed the "real issue" presented by the contest between the parties.

Similarly, in Vegas Nominees Pty Ltd v Werribee Sports & Community Club Inc,[21] Ashley J said:[22]

This Court has said more than once that it should not examine briefly stated reasons by an expert Tribunal in an over-legalistic manner or by the over‑zealous drawing of inferences in order to disclose some supposed error; although where unambiguous language is used, the user should be taken to mean what the words say. I should add that the Court is not entitled to interfere with the Tribunal's decision unless it is satisfied that there was in fact a vitiating error of law. It is not enough for the appellant to show that the Tribunal's reasons for its decision are so expressed as to suggest the possibility that it proceeded upon a wrong view of the law. In support of the several propositions that I have just stated I refer to Portland Properties Pty Ltd v Melbourne & Metropolitan Board of Works,[23] Michaelis Bayley (Vic) Pty Ltd v Melbourne & Metropolitan Board of Works[24] and Teston Investments Pty Ltd v Melbourne & Metropolitan Board of Works.[25]

Additionally, Osborn J in The Gombac Group Pty Ltd v Vero Insurance Ltd[26] said that "[o]n appeal this Court must recognise the forensic realities of the way in which the case was put to the Tribunal. It is these realities to which a Tribunal must respond in its reasons."[27]

10 In terms of the parties' submissions, it is clear from the authorities to which reference has been made that the role of a specialist tribunal, such as VCAT, is not to be usurped by the Court and that a decision of such a tribunal is not to be interfered with absent a vitiating error of law.

11 Moreover, the authorities also indicate and emphasise that it is not the function of the Court on an application under s 148 of the VCAT Act to substitute its own views on the evidence which is before the Tribunal, its relevance, significance and inferences which might be drawn from it. Thus, the Court of Appeal in Hoskin v Greater Bendigo City Council[28] said, with respect to an appeal pursuant to s 148 of the VCAT Act:[29]

1. Such an appeal is limited to an appeal on questions of law.[30]
2. It is not open to this Court to entertain further debate as to the merits of the Tribunal's decision on the facts. It is only if a conclusion on the facts was not open to it that an error with respect to factual matters will involve a question of law.[31]
3. This Court's function is limited to the exercise of a supervisory jurisdiction intended to ensure that the merits review which the Tribunal carried out was undertaken in accordance with its statutory obligations.

12 For the reasons which follow, I am not satisfied that the appellant has established any proper basis upon which leave to appeal should be granted. Moreover, as these reasons indicate, any appeal would, in my view, have been "bound to fail"[32] and not have had any "real prospect of success"[33] in any event, even if leave to appeal were to have been granted.

13 Leave to appeal is sought with respect to the following question of law as put by the appellant in the Notice of Appeal:

In determining under section 68(1)(b) of the Land Tax Act 2005 (Vic) whether, as at 31 December 2016, it was more likely than not that the appellant's land would become primary production land by September 2017 (as in fact happened), did the Tribunal ask itself the wrong question, being whether the land would become a cattle farm?

14 The grounds relied upon in support of the appeal are as follows:

Having found that -

1. Mr Huynh and Ms Nguyen ran two existing 'primary production lands' (within division 2 of part 4 of the Land Tax Act 2005 (LT Act));

2. Mr Huynh and Ms Nguyen (via the Appellant) bought 331‑357 Horseshoe Bend Road, Armstrong Creek in September 2015 also to derive income from primary production (rather than, as the Respondent speculated, to profit by reselling the land for housing development);

3. to that end, Mr Huynh and Ms Nguyen worked hard to prepare the land, from its acquisition until March 2017 when primary production began;

4. the one‑year preparation period allowed by section 68(1)(b) of the LT Act should be extended to two years under section 68(2) of the LT Act;

5. considered as at 31 December 2015, it was more likely than not that the land would become primary production land by September 2017 (being two years from the start of the preparation);

6. by 31 December 2016, the appellant's intended form of primary production had changed, for health and other reasons, from cattle farming to cropping -

the Tribunal then erred in reasoning that this change meant that the land was no longer likely to become primary production land by September 2017. Indeed, that prospect was then even more likely (than it was a year earlier). The Tribunal should have so held. In effect, the Tribunal asked and answered the wrong question, being whether the land would become a cattle farm (rather than whether it would become primary production land).

1. The Appellant is given leave to appeal.
2. The appeal is allowed.
3. Order 2 of the orders made by the Victorian Civil and Administrative Tribunal in matter no. Z283/2020 on 16 June 2022 is set aside and, in its place, it is ordered:

1. The 2017 land tax assessments issued by the Respondent to the Appellant on 15 June 2018 and 13 March 2020 are set aside.
2. The matter is remitted to the Respondent for any further assessment on the basis that the land at 331‑357 Horseshoe Bend Road, Armstrong Creek was for 2017 exempt land under section 68 of the Land Tax Act 2005.

1. The Respondent pay the Appellant's costs of this proceeding, including any reserved costs.

Land Tax Act

16 Reliance was placed by the parties on various provisions of the Land Tax Act, which are as follows:

64 Definitions

...

"primary production" means -

(a) cultivation for the purpose of selling the produce of cultivation (whether in a natural, processed or converted state); or

(b) the maintenance of animals or poultry for the purpose of selling them or their natural increase or bodily produce; or

(c) the keeping of bees for the purpose of selling their honey; or

(d) commercial fishing, including the preparation for commercial fishing or the storage or preservation of fish or fishing gear; or

(e) the cultivation or propagation for sale of plants seedlings mushrooms or orchids;

...

1. Exemption of primary production land outside greater Melbourne

(1) Land outside greater Melbourne that is used primarily for primary production is exempt land.

(2) If a part of any land outside greater Melbourne is used primarily for primary production that part is exempt land even if an activity other than primary production is carried on on any other part of the land.

...

68 Exemption of land being prepared for use for primary production

(1) Land is exempt land for a tax year if the Commissioner is satisfied that -

(a) the land is being prepared for use primarily for primary production; and

(b) the land will become exempt land under section 65, 66 or 67 within 12 months after the day on which the preparation referred to in paragraph (a) commenced.

(2) The Commissioner may extend the period referred to in subsection (1)(b) by a further period of 12 months.

17 The broad factual overview with respect to this matter has been set out as introduced in the Tribunal's Reasons.[34]

18 Mintfield is the trustee of the self-managed superannuation fund,[35] having two directors, Mr Ngoc Lam Huynh ("Mr Huynh") and his wife, Ms Thi Thanh Nga Nguyen ("Ms Nguyen"). It signed a contract to acquire the Property in August 2010, at which time the vendor was running cows and lambs on the Property.[36] It is common ground that, by the time of settlement in September 2015, the Property needed significant work as a farming property, as the vendor had become unwell with cancer and had let it fall into disrepair.[37] Mr Huynh and Ms Nguyen undertook this work themselves, while working also at their two other farms.[38] They began work shortly after the settlement of the purchase of the Property on 30 September 2015, and worked almost continuously until 30 March 2017.[39] Their work included hand‑spraying weeds, filling holes, removing rocks with their tractor, clearing fallen branches, cutting overgrown grass, and replacing electrical and paling fences.[40] Their work was, at least initially, undertaken "with a reasonable degree of intensity",[41] however it appears that they underestimated the degree and difficulty of the work required.[42]

19 It appears that by early 2017, Mr Huynh and Ms Nguyen were exhausted, their equipment was breaking down and needing repair, and Ms Nguyen's health was suffering. More particularly, as set out in the Tribunal's Reasons:[43]

In his further witness statement, Mr Huynh explains that, by early 2017, he and Ms Nguyen 'were exhausted'.[44] Equipment was breaking down and needing repair, and Ms Nguyen was suffering from arthritis in her knees (which was getting worse) and has also developed a sore back from the labour.[45] They did not have enough money for the further materials required, and also needed income.[46] It was for this reason that they took up the suggestion of an adviser to engage in cropping instead of cattle farming.[47]

20 The process of transition from plans for cattle farming to plans for cropping the Property were not documented, as observed by the Tribunal:[48]

There is no evidence that [Mintfield] (or Mr Huynh and Ms Nguyen) ever documented any plan regarding the preparation of the land for cattle farming. It is fair to say that there is a limited amount of documentary material to support the exemption claim, being limited to evidence of 'farm insurance' taken out from the time [Mintfield] acquired the property[49] and receipts for diesel fuel.[50]

21 Having regard to the lack of documentary material Mintfield made reference to, the inferences said by Mintfield to have been drawn by the Tribunal with respect to the transition are as follows:[51]

Lam's [Mr Huynh's] recollection was that this 'transition' towards cropping began in 'early 2017'.[52] However, the Tribunal seems to have inferred that it had already begun by midnight on 31 December 2016 (being the relevant time for the assessment of land tax for 2017). Specifically, the Tribunal said:[53]

By 31 December 2016, Mr Huynh and Ms Nguyen had been undertaking preparatory work for some 15 months. There is no suggestion or evidence that they had completed everything necessary. Further, despite it being a critical element before cattle farming could commence, there is no evidence that they had even started planning the cattle yard or run (such as getting quotes for the work or seeking to raise the funding required).

While there is no medical evidence regarding exactly when Ms Nguyen's knee arthritis became worse or her back problems emerged, it is reasonable to infer that those conditions became evident over a period of time. (Conversely, it would not be reasonable to infer - in the absence of medical evidence - that the conditions only became evident sometime between January and March 2017.)

Likewise, the Share Farming Agreement did not materialise overnight. On his own evidence, Mr Huynh was introduced to Mr Donald through his advisor who had recommended changing course in early 2017. There would have been a period of time required for Mr Donald to satisfy himself that the Relevant Property could be used for cropping activities, and to negotiate the terms of the arrangements between them (noting that there are differences in the profit split between the Share Farming Agreement relating to the Relevant Property and the similar arrangement relating to the Groves Rd Property).

In my view, this all rather suggests that the commitment to the preparatory work for cattle farming had well and truly diminished (if not ceased) by 31 December 2016.

However, for the reasons which follow I do not accept that it is an accurate understanding of the Tribunal's Reasons to say that it did make the inference that the transition had already begun by midnight on 31 December 2016. Rather, the position is more accurately stated in subsequent observations in Mintfield's Submissions:[54]

1. Having turned towards cropping, not too long afterwards, on 30 March 2017, Lam [Mr Huynh] and Nga [Ms Nguyen] signed a cropping agreement with a local share farmer (Mr Donald).[55] The land thus became primary production land within section 65 of the Act (being land outside greater Melbourne used primarily for primary production).[56]
2. Similarly, Lam [Mr Huynh] and Nga [Ms Nguyen] transitioned in 2017 from cattle farming to cropping at their Groves Road farm.[57]

Mintfield's Reply Submissions contend that there was a gradual transition to crop farming rather than an hiatus with respect to intention as to the nature of primary production being pursued.[58] However, in my view, the evidence before the Tribunal and its factual findings do not support this position.

22 The Commissioner also made reference to the Tribunal's Reasons which Mintfield contended supported the inference that the transition to cropping had already begun by midnight of 31 December 2016, observing that:[59]

Three factual matters from this passage must be emphasised, two of them findings of fact, and one a matter on which no finding was made:

(a) first, the Tribunal raised the possibility that the Appellant's commitment to preparing the Property for cattle farming had ceased by 31 December 2016, but expressly left open the possibility that it had not;

(b) secondly, the Tribunal found that it was in March 2017 that "the decision was made to switch course and move to crop farming under the Share Farming Agreement with Mr Donald";[60] and

(c) thirdly, the Tribunal found that Mr Huynh's advisor recommended changing course in early 2017 and introduced Mr Huynh to Mr Donald.[61]

23 Reference is made to ss 65 and 67 of the Land Tax Act which exempt from the imposition of land tax, subject to conditions, land that is used primarily for primary production. "Primary production" is relevantly defined in s 64 to include both cultivation for the purpose of selling the produce of cultivation (in paragraph (a)), and the maintenance of animals or poultry for the purpose of selling them or their natural increase or bodily produce (in paragraph (b)). As observed in the submissions, if, when considered at midnight on 31 December 2016, both of the requirements in s 68(1) were satisfied in respect of the Property, then it would be exempt from land tax for 2017.

24 More particularly, it is submitted that the first requirement (in s 68(1)(a)) was satisfied because, on the facts as found by the Tribunal, Mr Huynh and Ms Nguyen were preparing the Property for primary production almost continuously from after settlement in September 2015 until handing it over to the share farmer in March 2017. It is said that it matters not whether, at midnight on 31 December 2016, Mr Huynh and Ms Nguyen still had in mind putting cattle on the Property, or whether, as the Appellant says the Tribunal seems to have inferred,[62] their intention had by then changed in favour of cropping. But the latter submission does not, in my view, reflect an accurate understanding of the Tribunal's Reasons.[63]

25 Moreover, it is said that both forms of primary production, being cattle farming and crop cultivation, are not as different as one might assume, as they both require rocks and branches to be cleared on the Property, fences to be in order and the like. The key point, it is said, is that there was no hiatus period in respect of the work or its purpose. That is, it is emphasised, there was no substantial period of time when Mr Huynh and Ms Nguyen either stopped working or began working towards something other than primary production. However, as indicated in the reasons which follow, this proposition fails to appreciate that the definition of "primary production" in s 64 of the Land Tax Act is not general and global; it is not merely in the nature of a dictionary definition in terms of ordinary English usage - it is, rather, a mosaic of quite specific types of primary production, one or more of which must be applicable.[64]

26 Further, it is submitted that the Tribunal appears to have treated the satisfaction of s 68(1)(a) as having been largely "conceded" by the Commissioner.[65] This, it is said, is not entirely fair to the Commissioner, because as well as contending that the real purpose of Mr Huynh's and Ms Nguyen's work was to improve or maintain the Property for resale, the Commissioner had contended that their work was "spasmodic" and of insufficient "intensity".[66] In any event, Mintfield submits, neither contention found favour with the Tribunal.[67] Thus, it is said that the only conclusion open to the Tribunal was that s 68(1)(a) of the Land Tax Act applied.

27 The second requirement of the preparation exemption provided for in s 68(1)(b) of the Land Tax Act was, it is submitted, affected by the Tribunal's decision under s 68(2) to extend to two years the maximum period of preparation allowed by s 68(1)(b). Also informing the application of s 68(1)(b), it is said, was the fact that the Property is outside greater Melbourne, with no immediate prospect of this changing, such that the relevant prospective primary production exemption was s 65 of the Act. This exemption requires the land to be "used primarily for primary production". Accordingly, Mintfield contends, the critical question became whether, considered as at 31 December 2016, the Property would, on the balance of probabilities, become land used primarily for primary production by (about) 30 September 2017 - that is, within a further nine months 31 December 2016. Mintfield submits that, on the facts as found, that question was bound to be answered in the affirmative, noting, in particular, that if Mr Huynh and Ms Nguyen had had already put in 15 months of hard work to restore the Property, if they were in real need of income and if selling was never on the cards, then it is not surprising that primary production began after three more months. The fact that primary production began relatively soon after the relevant date does not itself answer the statutory question, but is said to be persuasive because it confirms Mr Huynh's and Ms Nguyen's commitment remained at all times to primary production with respect to the Property, no less than their other two farms. Again, these submissions rely on construing the definition of "primary production" in s 64 of the Land Tax Act "globally".[68]

28 Why, Mintfield asks rhetorically, did the Tribunal deny the exemption? The critical passages in the Tribunal's Reasons[69] have been substantially set out in the preceding paragraphs.[70] As indicated previously, it is said that the Tribunal in those passages makes an inference that it was already by 31 December 2016 that Mr Huynh's and Ms Nguyen's original aim of cattle farming had changed. Then, Mintfield sets out in submissions the Tribunal's conclusions in this respect:[71]

In my view, this all rather suggests that the commitment to the preparatory work for cattle farming had well and truly diminished (if not ceased) by 31 December 2016. In those circumstances, it was not reasonable to believe (and I am not satisfied) that, when assessed as at 31 December 2016 (for the 2017 land tax year), the Relevant Property would become exempt by 30 September 2017 (ie. within 24 months of commencing the preparation of the land).

On this basis, Mintfield says that the Tribunal treats its conclusion that the Property was no longer likely to become a cattle farm as determinative of whether the Property was likely to become primary production land. For the reasons which follow, I am of the view that these conclusions reflect an accurate understanding on the Tribunal's part of the "non-global" nature of the definition of "primary production" definition in s 64 of the Land Tax Act.[72]

29 Mintfield contends that the Tribunal's conclusion in this respect was erroneous insofar as it contemplated only whether the Property would become a cattle farm, a position apparent also from earlier parts of its Reasons, including the heading "Were preparatory activities for cattle farming being undertaken?".[73] It is said that the right question here was, rather, "Were preparatory activities for primary production being undertaken?".

30 More particularly, in this respect Mintfield contends that to say that the Property is not likely to become a cattle farm is not to answer whether it is likely to become primary production land on some other basis. Consequently, as maintained by the Appellant's sole ground of appeal, it is said that the Tribunal "asked and answered the wrong question". Put differently, it is said, the Tribunal failed to ask itself whether the Property would become used for cropping which, it is said, was a question that arose squarely on its findings. Further, it is submitted that although the Tribunal recognised that "the Share Farming Agreement did not materialise overnight",[74] the Tribunal appeared to be oblivious to the import of this, as well as to its acceptance of Mr Huynh's evidence that he and Ms Nguyen worked almost continuously towards primary production from after settlement in September 2015 until handing the Property over to the share farmer in March 2017. For the reasons indicated, the propositions put by the Appellant in this respect do not reflect the proper application or understanding of the "primary production" definition in s 64 of the Land Tax Act.[75]

31 The Commissioner submits that there are two preliminary matters which need to be considered in this appeal. The first is that the proposed ground of appeal unnecessarily brings in a comparison between the position as at September 2017 and that a year earlier. The Commissioner contends that the Tribunal did not, on any view, err in not holding that the prospect of the Property becoming exempt land was "even more likely" in September 2017 than in September 2016. It is said that this may be one way to describe what the Tribunal did, but that does not make it an error since the Tribunal was not required to undertake such a comparison. The second matter is that the proposed ground misstates the Tribunal's reasoning, in that it did not reason that Mintfield's changed intention with respect to the Property meant that it was no longer likely to become primary production land by September 2017. It is said that there was no finding that the changed intention had occurred by December 2016, and so the Tribunal could not have found that the changed intention had any impact on what, viewed as at 31 December 2016, would happen to the Property in the next nine months. Moreover, it is said that, read in their entirety, the Tribunal's Reasons[76] disclose that there were a number of matters that, taken together, suggested that the commitment to the preparatory work for cattle farming had well and truly diminished by 31 December 2016 such that it was not reasonable to believe at that time that the Property would become exempt within the next nine months. One of those matters involved looking forward to the events of 2017, when the decision to change to crop farming was taken, and reasoning that this decision was preceded by other events including receiving advice from an advisor in early 2017 to make the change. Consequently, the Tribunal concluded that the commitment to cattle farming cannot have been sufficiently strong at the end of 2016 to make it likely that the Property would be exempt nine months later, at least not when taken with the other matters referred to in the Tribunal's Reasons.

32 The central issue raised by the Notice of Appeal is, the Commissioner contends, whether the Tribunal erred by asking whether, as at 31 December 2016, the Property would be, by September 2017, exempt under s 65 of the Land Tax Act because it would then be being used as a cattle farm, as opposed to asking whether it would be exempt under s 65 for any other reason. More particularly, it is submitted that there are three related reasons why the Tribunal did not err in this respect. First, the Tribunal did not make the alleged error. Secondly, on the evidence, there was no basis for the Tribunal to ask, as at 31 December 2016, whether the Property would be exempt by 30 September 2017 for any reason other than cattle farming. Thirdly, even if the Tribunal had expressly asked itself whether it was satisfied that the Property would become exempt because of future cropping activities, it could only have answered that question in the negative. Moreover, the Tribunal in its Reasons[77] made a finding that it was not satisfied that the Property would become exempt by 30 September 2017. It made no reference to a cattle farm which, the Commissioner submits, indicates that the Tribunal knew what the correct test was.

33 The Commissioner also contends that not only was the Tribunal aware of the correct test under the Land Tax Act, but that it applied that test. It is conceded that it is true that the Tribunal did not expressly say that it was not satisfied that the Property would become exempt because of growing crops. Nor did it consider and then dismiss any other primary production activity. It is said, however, that the reason for this is entirely understandable because there was no suggestion, as at 31 December 2016, that the Property would be used by Mintfield for any purpose other than cattle farming. The earliest time, it is said, at which there was any suggestion that the Property would be used for crop growing was when Mr Huynh spoke to the advisor in early 2017. Given that, it was not necessary for the Tribunal to state that it was not satisfied that the Property would become exempt because it would be used for crop growing.

34 Additionally, the Commissioner submits that had the Tribunal expressly considered whether it was satisfied that the Property would become exempt because of future cropping activities, it could not have been so satisfied. In this respect, it is observed that the Tribunal made a finding that Mintfield had been preparing the Property for use as a cattle farm from September 2015 and then switched course in March 2017 to move to crop farming. There is no finding of fact that any step had been taken to move to, or even consider, crop farming by 31 December 2016. It is said that it follows, in those circumstances, that the Tribunal could not have been satisfied that the Property would be exempt as a crop farm by 30 September 2017. Indeed, the Tribunal expressly considered, although in a slightly different context, the steps that would need to be undertaken before cropping could be conducted on the Property:[78] that Mintfield first had to identify a share farmer; that the share farmer then had to satisfy himself that the Property could be used for cropping activities; and that it would then be necessary to conclude an agreement, including by negotiating the profit split. Given that none of these steps had even been contemplated by the end of 2016, the Tribunal could not have been satisfied that the Property would be become exempt within nine months. In my view, and having regard to the nature of the "primary production" definition is s 64 of the Land Tax Act and its specific elements, the position contended for by the Commissioner is correct.[79]

35 Moreover, the Commissioner emphasises that it is important to have regard to the words "will become" as used in s 68(1)(b) of the Land Tax Act. The Commissioner, under these provisions, must be satisfied not that the land in question "could" or "might" be used necessarily for primary production by the relevant date, but that it "will" be so used by then. Thus it is said that the position confronting the Commissioner on 31 December 2015 was as follows:[80]

... The Appellant had spent 15 months preparing the Property for use as a cattle farm.[81] It was still some distance from achieving that goal, with there being no evidence that it had even started planning the cattle yard or run.[82] One of the two people undertaking preparation work was suffering from medical problems.[83] They were short on money.[84] But despite all of these difficulties, there was no evidence that Mr Huynh or Ms Nguyen had yet turned their minds to undertaking any other farming activity on the Property. In those circumstances, there was no basis to conclude that the farm would be turned around and put to any productive use by September 2017.

36 As indicated in the preceding reasons, I do not accept Mintfield's submissions with respect to inferences it contends that the Tribunal made that the transition towards cropping had begun prior to midnight on 31 December 2016.[85] Rather, as indicated, I take a contrary view with respect to the Tribunal's approach and Reasons. In this respect, I accept the Commissioner's submissions with respect to the critical issues for the reasons set out in those submissions.

37 In my view, a critical point which supports the Tribunal's Reasons and approach is that the definition of "primary production" in s 64 of the Land Tax Act is not something of a global dictionary definition of the expression "primary production" at large, and according to ordinary English usage. This definition has, rather, particularised elements, one or more of which must be satisfied specifically for the definition to be enlivened. Consequently, it is not to the point that, as Mintfield submits, there was some general intention to use the Property for primary production at 31 December 2016 (even if the evidence could be said to support this position, though in my view this position is not clear in any event); it is instead necessary for the Appellant to satisfy one of the specific elements in the definition of "primary production" in s 64.

38 Approaching s 64 and the definition of "primary production" in this way, I am of the view that, on the basis of the evidence before the Tribunal and its reasons, it is correct to say there was an hiatus in a relevant specific "primary production" intention in terms of those statutory provisions. Thus, there was properly found to be an intention to cattle farm which was spent prior to 31 December 2016, and there was no other specific intent with respect to "primary production" properly found to exist until early 2017, being for crop cultivation. For these reasons, I find no error in the Tribunal's Reasons and finding that, as at midnight on 31 December 2016, the definition of "primary production" in s 64 of the Land Tax Act was not satisfied with respect to the preparatory activities being conducted with respect to Property, and neither was there any evidence upon which the Tribunal could find that the Property would become exempt within the next nine months on any basis: cattle farming, cropping or otherwise.

39 For the preceding reasons leave to appeal is refused.

40 The parties are to bring in orders to give effect to these reasons. I reserve the question of costs and will hear the parties on this issue as required.

[1] Mintfield Pty Ltd v Commissioner of State Revenue (Review and Regulation) [2022] VCAT 671 ("Tribunal Reasons" or "Tribunal's Reasons").

[3] The Tribunal noted that there is, apparently, some ongoing dispute between the parties regarding a more recent land tax year.

[4] Commissioner of State Revenue v Frost (2011) 83 ATR 832, 834 [5] citing Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331 ("Hulls"), 335-6 [11] (Phillips JA) and Myers v Medical Practitioners' Board (Vic) [2007] VSCA 163; (2007) 18 VR 48 ("Myers"), 55-6 [28] (Warren CJ).

[5] Boucher v Dandenong Ranges Steiner School Inc [2005] VSC 400; (2005) 145 LGERA 21, 26 [15] citing Spurling v Development Underwriting (Vic) Pty Ltd [1973] VicRp 1; [1973] VR 1 and Whitehorse City Council v Golden Ridge Investments Pty Ltd [2005] VSCA 198; (2005) 13 VR 275.

[6] (2011) 83 ATR 832, 833-4 [3].

[7] Commissioner of State Revenue (Vic) v STIC Australia Pty Ltd (2010) 2010 ATC 20-232, 11,839 [10] (Davies J).

[8] Hulls [1999] VSCA 117; [1999] 3 VR 331; Al-Hakim v Monash University (unreported, Court of Appeal, Vic, No 3707 of 2003, 28 March 2003); Myers.

[9] See Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454, 475 (Dawson J).

[10] Osland v Secretary to the Department of Justice [No 2] [2010] HCA 24; (2010) 241 CLR 320, 333 [21] (French CJ, Gummow and Bell JJ).

[11] Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454, 475 (Dawson J); Hulls [1999] VSCA 117; [1999] 3 VR 331, 335 [10] (Phillips JA).

[12] Hulls [1999] VSCA 117; [1999] 3 VR 331, 335-6 [11] (Phillips JA); Commissioner of State Revenue v Challenger Property Nominees Pty Ltd [2006] VSC 203; (2006) 63 ATR 65, 69 [20], 77 [65] (Hollingworth J).

[13] Justice Legislation Amendment (Court Security, Juries and Other Matters) Act 2017, s 31(3).

[14] Myers [2007] VSCA 163; (2007) 18 VR 48, 55 [28] (Warren CJ), citing Hulls [1999] VSCA 117; [1999] 3 VR 331, 335 (Phillips JA).

[15] See Emrys Nekvapil, Pizer's Annotated VCAT Act (Thomson Reuters, 6th ed, 2017) ("Pizer's Annotated VCAT Act"), 871.

[16] The same requirement is imposed upon applicants for leave to appeal a VCAT decision before the Court of Appeal under s 148(1)(a) of the VCAT Act, with the additional requirement to such an application set out at s 14C of the Supreme Court Act 1986; see Pizer's Annotated VCAT Act, 874-7.

[17] Section 63(1) of the Civil Procedure Act 2010 empowers a court to give summary judgment in a civil proceeding if the defence, inter alia, has "no real prospect of success".

[18] Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158; (2013) 42 VR 27 ("Lysaght"), 39 [29]. See also Kennedy v Shire of Campaspe [2005] VSCA 47, [3]-[14].

[19] [2005] HCA 40; (2005) 222 CLR 115, 136 [64].

[20] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, 575, 597; cf Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323, 348 [74].

[21] (Supreme Court of Victoria, Ashley J, 21 December 1994).

[23] (1971) 38 LGRA 6, 18.

[24] (1980) 44 LGRA 65, 67-8.

[25] (1985) 62 LGRA 346, 349-50.

[26] The Gombac Group Pty Ltd v Vero Insurance Ltd [2005] VSC 442.

[28] [2015] VSCA 350; (2015) 48 VR 715.

[29] Ibid, 720 [9]-[11]. See also Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176, 6 [22] (CA); Cosmopolitan Hotel (Vic) Pty Ltd v Crown Melbourne Ltd [2014] VSCA 353; (2014) 45 VR 771, 782 [41], 805 [162], [165] (CA); and Maund v Racing Victoria Ltd [2016] VSCA 132, [67].

[30] Transport Accident Commission v Hoffman [1989] VicRp 18; [1989] VR 197, 199; Myers [2007] VSCA 163; (2007) 18 VR 48, 59 [44] (Warren CJ).

[31] S v Crimes Compensation Tribunal [1998] 1 VR 83, 88-93; Myers [2007] VSCA 163; (2007) 18 VR 48, 59 [44] (Warren CJ).

[32] Lysaght [2013] VSCA 158; (2013) 42 VR 27, 39 [29].

[39] Ibid, [18], [65]. See also the matters discussed below, [21].

[44] Appellant, 'Further Witness Statement of Ngoc Lam Huynh' (25 November 2021), [13].

[51] Appellant's Submissions (4 October 2022), [9].

[52] Appellant, 'Witness Statement of Ngoc Lam Huynh' (29 July 2021), [14].

[54] Appellant's Submissions (4 October 2022), [10], [11]; see also Respondent's Submissions (31 October 2022), [13].

[58] Appellant's Reply Submissions (24 November 2022), [6] and following, particularly [9].

[59] Respondent's Submissions (31 October 2022), [14], referring to Tribunal Reasons, [67]-[71].

[65] Tribunal Reasons, [6], [33], [72].

[67] Ibid, [25], [34], [37], [53]-[54], [65].

[75] See above, [28], and below, [37].

[80] Respondent's Submissions (31 October 2022), [29].