1. The applicant commenced its oral submissions with the contention that the substance of its application was that 'there has not yet been a determination of the [applicant's] case upon a consideration of the real strength of the body of evidence it presented'. It then submitted that there 'must be a new trial at which this consideration will be undertaken'. The following assertions were then made, namely:
   • the judge 'failed to give adequate or sufficient reasons for his non-acceptance of the evidence of Mr Apswoude';
   • the judge's conclusions on credit were 'confusing' and 'unclear';
   • the judge 'failed to give any or any adequate reasons for the rejection of ample corroborative evidence';
   • the judge's 'unattributed copying of the submissions of the respondent ... did not represent the independent assessment of the applicant's case to which it was entitled'; and
   • the Reasons are 'internally inconsistent in a number of respects'. In this regard, the applicant's complaints included the judge referring to three businesses and, later, four businesses being carried out on the Land; and changes in descriptors said to have been used by the judge ('modest' to 'significant'; and in respect of the land development business, at one stage, 'main').
2. In oral argument, the applicant again made complaint about the judge's failure to refer to the New South Wales Court of Appeal decision in Metricon.[84] The applicant submitted that the principle of law for which Metricon stands is that 'inactivity is not activity'. Put less delphically, the submission appeared to be that, as a matter of law, one could not engage in the business of land development 'until the first clod of soil is turned'. It was thus submitted that, as no physical activity had taken place on the Land prior to 31 December 2015, the judge's conclusion that the applicant engaged in the business of land development on the Land during the relevant tax years was wrong and could not be permitted by this Court to stand.
3. The applicant attacked the judge's credit finding in relation to Mr Apswoude, making the following points:

(1) Any adverse credit finding made by the judge was not justifiable, in circumstances where the cross-examination upon which it was based, when read in full, disclosed that there was a misunderstanding between Mr Apswoude and the cross-examiner. Properly analysed, there really was no proper basis for an adverse credit finding against Mr Apswoude, even in relation to his creation of the reconstructed business plan documents.

(2) While the judge's conclusions with respect to Mr Apswoude's credit about the reconstructed business plan documents at Reasons [24] appears to be limited (alternatively, should have been limited) to Mr Apswoude's evidence about those documents, in later passages in the Reasons, the judge appears to have rejected other parts of Mr Apswoude's evidence on other topics. It was submitted that such an approach was in direct conflict with the High Court's decision in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd.[85]

1. The balance of the applicant's oral submissions in this Court consisted of taking the Court again to the evidence said to have been overlooked, shunted aside or ignored by the judge. In the course of these submissions, we were taken to many paragraphs in the Reasons, and individual criticisms were made of particular sentences and findings. Comparisons were also made between the text of the Reasons and the text of the CCS which, it was submitted, showed that the judge had failed to give independent consideration to the issues in dispute between the parties.

1. In answer to the applicant's assertions that the judge failed to have regard to its submissions (including authorities relied on by the applicant) or to certain evidence (asserted by the applicant to have been 'peremptorily shunted aside'), in his written case in this Court, relying upon the High Court's decision in Whisprun Pty Ltd v Dixon,[86] the respondent submitted that the judge's reasons were not required to mention every fact or argument relied on by the losing party. As the respondent observed, the plurality[87] in Whisprun warned that judgments of trial judges would soon become longer than they already are if a judge's failure to mention particular facts and arguments 'would be evidence that he or she had not properly considered the losing party's case'.[88] The respondent submitted that the sorts of facts and arguments that a trial judge need not mention include: (1) evidence that is of little probative value because, for example, it concerns events outside the relevant time period; (2) evidence or submissions that concern a particular line of argument that is foreclosed by the judge's finding or holding on another issue; and (3) evidence that only corroborates and does not significantly add to other evidence.
2. The respondent noted that the applicant alleges that the judge made many errors in the nature of 'peremptorily shunting aside' certain evidence it (the applicant) relied upon. The respondent contended that the examples given by the applicant were, however, not made out. The respondent submitted that the judge was careful to set out in detail the submissions made by the parties on the evidence. It contended that in Reasons [33]-[63], the judge set out the parties' submissions 'one after the other, and then analysed the evidence'. Having undertaken that task, at Reasons [64]-[83], his Honour then applied his conclusions on the evidence to the statutory questions raised by s 67 of the LTA. As the respondent put it, this section (Reasons, [64]-[83]) 'does not deal in detail with all of the evidence, because that task had already been undertaken in the earlier section'.[89]
3. The respondent submitted that a fair reading of the Reasons discloses that the judge 'had careful regard to the submissions (and, in particular, the closing written submissions) of both parties and took them into account in reaching his conclusions'. The respondent contended that the 'shunting aside' allegations made by the applicant came down to no more than that the judge, having set out the evidence relied on by each side, preferred the submissions of the Commissioner. That, it contended, 'is no error'.
4. The respondent conceded that there was one aspect of the evidence that the judge did not consider in any detail - namely, the 'large amount of evidence of the growing, sowing and selling of Cassinia that took place after the relevant years'. The respondent submitted that this did not involve any error on his Honour's part because 'such evidence was of no assistance in resolving the issues before the Court'.
5. The respondent submitted that the applicant's complaints about the judge's treatment of the issue of 'land development' are misconceived because the statutory questions required to be resolved concerned the issue of primary production and not land development. The respondent submitted that the relevance of the occurrence of land development was that it may have meant that there was insufficient primary production to satisfy the relevant statutory tests.
6. The respondent submitted that the judge was correct to observe that there was very little documentary or other evidence to corroborate the primary production activities deposed to by Mr Apswoude and Mr Tran. It submitted that such corroborative evidence as was relied upon was 'small in both amount and probative value'. Specifically, while the aerial satellite images and video footage showed Cassinia on the Land, it did not show that it was grown for the purpose of sale, an element of the definition of 'primary production' in s 64(1) of the LTA. Moreover, Mr Foley's evidence on that issue was one sentence, which the judge set out in full in footnote 71 of the Reasons - the relevant part of which was:

A couple of years later, David mentioned to me that he was planting Cassinia trees, and that the produce of these Cassinia trees could be used for all manner of things, especially as a competitor to existing products used for brush fencing.

1. The respondent submitted that, as corroboration goes, Mr Foley's evidence was 'very little' - so too, the fact that Cassinia was shown as trading stock in the applicant's accounts. The respondent submitted that the bulk of the 'corroborative evidence' referred to by the applicant concerned matters occurring after 31 December 2015 (noting the evidence was that the first sale of Cassinia occurred in November 2016; and that there was no evidence that any sales were ever made in Caroline Springs), and that the judge did not err in giving little or no weight to events that occurred months and years after the relevant tax years.
2. The respondent contended that, on the question of the use of the Land, the judge was left with the oral evidence of Mr Apswoude and Mr Tran. His Honour referred to that evidence and explained the reason why he did not accept that the Land was used primarily for the business of primary production. Those reasons included that there was only a very modest record of commercial Cassinia activity and no business plans.[90] The respondent submitted that these conclusions were 'reached in the context of the judge having drawn conclusions about the credit of these two witnesses'. We interpolate that, while the judge drew conclusions about the credit of Mr Apswoude, there do not appear to be any findings in the Reasons adverse to the credit of Mr Tran (merely the incorrect recitation of a submission, said to have been made by the Commissioner, but which was not in fact made).[91]
3. The respondent submitted that the applicant's reliance on evidence that land development did not take place until 2022, and only on 4.7% of the Land, with 60% of the Land never having been the subject of any development application, 'misses the point'. It was submitted that the judge did not have to decide if 'land development' was actually taking place on the Land during the relevant years. The judge was entitled to consider evidence that suggested that the applicant intended to develop the Land as part of his consideration of whether the applicant's principal business was primary production. There was no error in the judge's rejection of Mr Apswoude's evidence that he did not intend to develop Lot 1. The judge rejected that evidence for reasons which the respondent said were 'cogently explained'.[92]
4. The respondent contended that, on the question of land use, the judge did not determine that the applicant was not carrying on a business of primary production; rather, he found that, even if it was, the fact that it was also carrying on other significant businesses precluded a conclusion that primary production was its principal business.[93]
5. The respondent submitted that Metricon was of no assistance in the analysis of the issues raised in the present case, with Metricon concerned with whether land was used for primary production. There was no requirement in that case that it be used for the business of primary production. As the respondent put it:

The Court held that holding land for future development is not a current use of the land that can be taken into account in determining if the land is used primarily for primary production. The emphasis in Metricon was on the physical deployment of the concrete physical mass of the land. That consideration is of little assistance in determining the business use (as opposed to physical use) to which the land is put.

It is of even less assistance in determining the principal business of the landholder, the second matter for determination by the judge. His Honour held that where a company conducts more than one business, the question of which, if any, is principal involves a consideration of factors including income, use of labour and deployment of capital. Contrary to [the applicant's submissions], the judge did not conclude that there was no primary production business carried on on the Land, but he did find that it was not principal. Given the evidence of the other business activities of the applicant, their deployment of its capital and their income, that conclusion was not only open but inevitable.

1. The respondent contended that there was no merit in the applicant's complaint about the judge's copying from the CCS. While acknowledging the applicant's complaint that 37 of the substantive paragraphs in the Reasons were copied or largely taken from the CCS, it contended that the 'key' was the many paragraphs of the Reasons which were not taken from the CCS. It submitted that these paragraphs, described as 'the balance', 'are paragraphs where the judge explained why he preferred one submission over the other (or found both equally unhelpful)'. The respondent also observed that 'extensive text' in the Reasons, 'set out' or 'adopted' by the judge', had been taken from the applicant's closing written submissions.
2. While the respondent acknowledged that the section of the Reasons headed 'Section 67 - the primary production exemption' (Reasons, [64]-[83]) was largely taken from the CCS, it submitted that much of this part of the Reasons was 'devoted to uncontroversial recitation of the legislation and relevant authorities', the balance being properly understood as 'drawing together the conclusions on the submissions reached earlier in the Reasons to explain why the three relevant elements of the statutory test were not met'.
3. Ultimately on this issue, the respondent contended:

When read as a whole, the Reasons disclose that the judge took a balanced approach to the submissions put to him but reached a conclusion that comprehensively favoured one party. He did not simply adopt the Commissioner's case and in a number of places did not accept the Commissioner's position.

1. More specifically, the respondent submitted that the Reasons could be analysed in three sections as follows:

(1) The first 32 paragraphs introduced the proceeding and its issues, and addresses evidentiary matters that applied in the proceeding generally. In these paragraphs, the judge adopted passages from both parties' submissions. In the course of doing so, the judge expressed his conclusion that Mr Apswoude's evidence in relation to the reconstructed business plan documents did not reflect well on his credibility.[94]

(2) The second section of the Reasons (going from [33] to [63]) consists of the submissions of the parties on various factual issues. While the judge adopted much of the parties' language, by the use of expressions such as 'the appellant contends that' and 'as the Commissioner submits', the judge attributed the submissions to their authors. Moreover, in the course of setting out the parties' submissions, the judge analysed them and explained his conclusions.

(3) The balance of the Reasons ([64] to [89]) set out the judge's conclusions on the legal and factual questions considered by him to be relevant to his path of reasoning to his conclusions by applying his findings of fact to the statutory tests. Since the judge accepted the substance of the Commissioner's arguments on each of the four main issues, it is not surprising that this part of the Reasons adopts much of the language of the CCS. Again, 'in a number of instances', the judge attributed these submissions by the use of language such as, 'as submitted by the Commissioner' or, 'as the Commissioner contends'. Additionally, by the use of the expressions, 'I accept that', 'in my view', 'I am of the view that' and 'I have found that', the judge 'made it clear that the conclusions he reached were his own conclusions based on his reasoning as set out in the Reasons'.

1. The respondent submitted that Atanaskovic was 'plainly distinguishable from the present case' because, in Atanaskovic, the Full Court of the Federal Court accepted that '[n]ot a single written or oral submission or contention of [the appellant] on the merits of the cross-claims, nor any of the extensive evidentiary references in writing, were referred to, analysed or considered and rejected (let alone accepted) by [the primary judge]'.[95] This is to be contrasted to the extensive references in the Reasons to the submissions of both parties and the detailed reasoning provided by the judge as to how he came to his conclusions.
2. Finally, so far as his written case in this Court is concerned, the respondent noted that the applicant's written case on s 67 only addressed two of the three issues that the judge decided against it, and that the applicant had not sought to demonstrate any error in the conclusion that Mr Apswoude was not substantially engaged in a full-time capacity in the business of primary production. It was then submitted that, even if the applicant persuaded this Court that the judge erred on the other two issues about which the applicant makes complaint, the applicant would still fail on this third issue. In those circumstances, it was submitted that 'this Court must dismiss the appeal on the s 67 ground'.
3. In oral argument, the respondent observed that the appeal concerns three assessments totalling $2.022 million - assessments made on the basis of valuations of the Land, as urban zoned land, of $33.9 million as at 31 December 2013, $30.1 million as at 31 December 2014 and $30.6 million as at 31 December 2015.[96] This all in respect of the Land having been purchased by the applicant for $1.8 million in 2003.
4. The respondent submitted that much of the evidence relied upon by the applicant as 'highly corroborative', or 'critical' so far as the applicant's case was concerned, was largely irrelevant for two reasons:

(a) First, while much of this evidence went to whether Cassinia was grown on the Land during the relevant years, the primary production exemption in s 67 of the LTA required proof, not merely of cultivation, but of 'cultivation for the purpose of selling the produce of cultivation'. This important element (cultivation for the purpose of selling) was, so the respondent submitted, largely overlooked in much of the applicant's submissions.

(b) Secondly, much of the so-called critical evidence was evidence of what had occurred after the relevant date of assessment for the third of the tax years (namely, 31 December 2015). As this Court held in Rainn Pty Ltd v Commissioner of State Revenue,[97] s 36(1) of the LTA makes it 'unambiguously clear that the question of the taxable status of the land in question is to be determined as at the assessment date',[98] the last of which in this case was 31 December 2015.

1. Noting that 31 December 2015 was the 'cut-off date', the respondent submitted that, as at that date, 'there were no sales, no sales in prospect, no marketing and no plan for sales', and thus there was no business (let alone, principal or primary business) of cultivating Cassinia on the Land for the purpose of sale.
2. As to the relevance of any intention to engage in the business of primary production, the respondent submitted that the purpose of any activities in question had to be viewed objectively, and that any subjective intention (specifically, Mr Apswoude's subjective intention) was irrelevant.
3. By reference to the evidence which the respondent said was relevant to the issues in dispute, the respondent submitted that, as at the assessment dates, the principal business carried on by, and the main undertaking of, the applicant was not established to be the business of primary production as defined in the LTA. Additionally, and by reference to the same evidence, the respondent submitted that, as at the assessment dates, the Land was not established to have been used by the applicant primarily for the business of planting and cultivating Cassinia for sale. Moreover, and again by reference to the same evidence, the respondent submitted that the applicant failed to establish that Mr Apswoude was normally engaged in a substantial full-time capacity in the business of primary production.
4. Finally, in its oral submissions, the respondent contended that, on a fair reading of the Reasons, no Atanaskovic error (nor any other appellable error) was made by the judge.

Adequacy of reasons for judgment and copying from a party's submissions into reasons for judgment: relevant authority

1. Given the applicant's reliance upon this Court's decisions in Fletcher and Hunter, and the decision of the Full Court of the Federal Court in Atanaskovic, it is necessary to summarise the relevant parts of those decisions before proceeding further.
2. In Fletcher, this Court identified three purposes underlying the judicial obligation to give reasons as follows:

(a) first, a court of appeal must be in a position to determine whether the decision of the trial judge contains appealable error;

(b) secondly, an adequate statement of the trial judge's 'reasons "provides the foundation for the acceptability of the decision by the parties and the public ...", [on the basis that] the main object of a reasoned judgment "is not only to do but to seem to do justice"'; and

(c) thirdly, an adequate statement of the reasons furthers judicial accountability guarding 'against the birth of an unconsidered or impulsive decision'.[99]

The duty to deal with facts or evidence is not absolute. The evidence must be significant in the sense that, unless disposed of, it stands in the way of the court's conclusions. The court need not deal in terms with evidence when its importance falls away because of the manner in which the court disposes of the case. Nevertheless, if evidence is significant, it is not to be peremptorily shunted aside or ignored.[100]

1. In Hunter, in the course of describing what should be dealt with in reasons for judgment, Nettle JA (with whom Batt and Vincent JJA agreed) said:

But, ordinarily, where a judge rejects or excludes from consideration evidence or other material which is relevant and cogent, it is simply not possible to give fair and sensible reasons for the decision without adverting to and assigning reasons for the rejection or exclusion of that material. Similarly, while it is not incumbent upon the judge to deal with every argument and issue that might arise in the course of a case, where an argument is substantial or an issue is significant, it is necessary to refer to and assign reasons for the rejection of the argument or the resolution of the issue.[101]

1. Atanaskovic was an appeal from two judgments delivered by different primary judges, referred to as 'the first primary judge' and 'the second primary judge'. It is the judgment of the first primary judge against the appellants on their cross-claims that is relevant for present purposes. The central complaint made by the appellants was that the entirety of the first primary judge's analysis of the cross-claims (which analysis appeared under the heading 'CONSIDERATION') was a 'near verbatim copy, without attribution' of the respondent's closing submissions below.[102] The Court (Collier, Logan and Goodman JJ), in three separate judgments, upheld the appellants' appeal, set aside the first primary judge's orders on the cross-claims, and ordered the proceedings to be remitted for retrial.
2. After making detailed references to the analysis of principles relating to judicial copying of submissions in the judgment of the Court of Appeal of the Australian Capital Territory in Porter v The Queen,[103] Collier J concluded that the 'unattributed replication of [the respondent's] submissions by the first primary judge ..., to such a significant degree, was such that it should be inferred that his Honour did not make an independent decision on the whole of the evidence and the law'.[104]
3. Collier J went on to say that, while it 'may very well be that the first primary judge preferred the case of [the respondent] to that of the appellants ..., the appellants were entitled to have their submissions and evidence considered by his Honour in ultimately reaching such a preference'. Her Honour said that she was satisfied that, 'in simply adopting the submissions of [the respondent] to such a significant degree, without attribution or explanation, the first primary judge did not consider the submissions and evidence of the appellants, and did not bring an active, independent and impartial mind to the resolution of issues before the Court in respect of the cross-claims'.[105]
4. Logan J noted that the first primary judge's analysis of the cross-claims had been 'copied, almost verbatim, from [the respondent's] written closing submissions' filed in the Circuit Court.[106] There were no differences of substance. Instead, the differences could be summarised as the removal 'of in-text references' in the respondent's written closing submissions, to evidence (which was sometimes deleted, or sometimes moved to a footnote); the adoption of 'slightly different short-titling conventions'; the removal of selected words; changes of tense; slight changes of expression; the removal of references in the closing submissions to earlier paragraphs of those submissions; and the insertion of the expression 'in my view'.[107]
5. Logan J said that the end to which a comparison between the submissions and the judgment was directed was 'qualitative, in relation to whether there has been an exercise of the judicial function, not quantitative'. His Honour said, however, 'in combination with an absence of any related judicial analytical content, quantitative measures may, in context, evidence a qualitative failure'.[108]
6. Logan J concluded that the first primary judge did not fail to give reasons in respect of his dismissal of the cross-claims. His Honour said that the reasons, however, gave no indication that the submission of the appellants 'had been considered at all, let alone understood'. His Honour described the reasons as, '[on] their face ..., in substance, an uncritical, wholesale "cut and paste", without attribution, analysis or even just expression of agreement, of [the respondent's] written, closing submissions'; and that a reader thereof, 'cognisant of the written submissions made by [the appellants] ..., might, with respect, reasonably form the view that the first primary judge was but a cypher for [the respondent]'.[109]
7. Logan J identified what he described as 'two schools of thought [having] developed in the exercise of appellate jurisdiction as to the vice presented by extensive, unattributed cutting and pasting into reasons for judgment the written submissions of a party'.[110] The first was that the reasons given for the orders under challenge in the appeal were inadequate because there is no adequate explanation given for the making of those orders;[111] and the second was that 'such reasons evidence that justice has not been seen to be done'.[112] His Honour then said:

On analysis, these schools of thought are, in my view, but different sides of the same coin of a valid exercise of judicial power, which does not occur if justice is not seen to be done, with that manifested if reasons for judgment do not, in explaining why particular orders have been made, make some reference at least to why the submissions of a party that such orders not be made have been rejected. Further, justice will not be seen to be done if the reasons given by a judicial officer do not, reasonably viewed, evidence judicial independence, a hallmark of any exercise of judicial power. The wholesale, unattributed copying and pasting of the written submissions of one party, in combination with an absence of any reference to the submissions to the contrary of an opposing party, may reasonably suggest partiality on the part of a judicial officer. And that is so even if the judicial officer concerned was in fact scrupulously independent, just time-poor. Put another way, such reasons for judgment may give rise to a reasonable apprehension of bias, even if there can be no suggestion of actual bias. These are all but different ways of describing a failure to observe essential features of a valid exercise of judicial power.[113]

1. Logan J then referred to and analysed a number of decisions dealing with these issues, including the New South Wales Court of Appeal's decision in Li v Attorney-General for New South Wales,[114] the Queensland Court of Appeal's decision in King v Australian Securities and Investments Commission,[115] and this Court's decision in Fletcher.[116] Logan J noted this Court's deprecation, in Fletcher, of the extensive adoption by the primary judge in Fletcher of the respondent's submissions without attribution.[117]
2. Logan J then said:

Context is most important in relation to whether wholesale copying vitiates a judgment given at trial. In this regard, context is broader than just the part copied in the context of the reasons for judgment as a whole, but also the issues in the case as apparently addressed by the passage copied. Each is part of a qualitative assessment.[118]

1. Later, his Honour said that the vice in the unattributed wholesale copying of a party's submission 'is not plagiarism per se', but rather, in context, the extensive, unattributed copying may, in the circumstances of the particular case, 'give rise to an apprehension of an absence of independent judicial assessment'. As his Honour said:

That, in context, can be the consequence of an absence of a reasoned explanation as to why the arguments found in the copied submissions are being preferred to competing, unarticulated submissions.[119]

1. Ultimately, Logan J concluded that, in the circumstances of the case he was deciding, there had been a failure in the judicial function in relation to the determination of the cross-claims.[120]
2. Goodman J delivered a short judgment concurring with both Collier and Logan JJ, observing that courts in Australia and overseas have disapproved of reasons which simply adopt one party's submissions as the court's judgment, 'because the practice of copying "raises the spectre that the judge has not independently considered the evidence or reached their own independent conclusions of fact or law"'.[121]
3. After referring to the descriptions given by Collier and Logan JJ of the first primary judge's 'wholesale copying of the respondent's written submissions', Goodman J said:

Of course, such wholesale copying is not, of itself, sufficient to vitiate the Liability Judgment: see Porter at 130 [35]. It is necessary to consider whether the primary judge applied an independent mind in all of the circumstances.

Although the relevant circumstances have a quantitative dimension (ie, the degree or extent of the copying), the court's assessment of the circumstances is primarily a qualitative exercise, in which consideration is to be given to factors such as manner and nature of the copying, including the subject matter of the reproduced text, and its relationship to the remainder of the reasons for judgment. In this regard, an inference that a judge has failed to bring and apply an independent mind may more readily be drawn if the reproduced text concerns matters of controversy between the parties (eg, the credit of witnesses, or findings which resolve factual disputes), than if the reproduced text concerns matters in respect of which there is or ought be no controversy (eg, undisputed background facts, or summaries of statutory provisions).[122]

1. Thus, all three judges in Atanaskovic overturned the first primary judge's judgment on the basis that the judge had not given independent consideration to the appellants' cross-claims. As was observed in Atanaskovic, the possibility that reasons might be held to be inadequate if, by extensive and unattributed copying, justice is not seen to be done,[123] has not yet commanded majority support as can be seen from the decisions in Li itself, Porter and King. In any event, that question does not arise for determination in the present case as, in oral argument, the applicant eschewed any reliance upon a 'justice must be seen to be done' type argument - confining itself to an argument that the copying in this case shows that the judge did not perform his judicial function because he did not give independent consideration to the issues, evidence and submissions before him.

Applicant's complaints about copying and shunting aside of evidence

1. It is convenient to commence our analysis with the applicant's interrelated complaints about the copying of significant parts of the CCS into the Reasons and the 'shunting aside' of evidence by the judge.
2. The applicant is correct to observe that 19 of the headings in the CCS were reproduced as headings in the Reasons. It was also correct to observe that 50[124] substantive paragraphs appear to have been copied, or largely taken from the CCS. However, that is not the end of the matter. As has been said before,[125] it is not plagiarism per se which is the vice. The issue is whether, in context, the extensive, unattributed copying from a party's submissions may, in the circumstances of the particular case, demonstrate an absence of independent judicial assessment.
3. The reasons of the first primary judge in Atanaskovic were deservedly the subject of serious criticism for the unattributed copying of the respondent's submissions as the first primary judge's own analysis of the cross-claims. We should say immediately that the present case is nothing like Atanaskovic:

(1) First, the Reasons contain many references to the applicant's submissions as well as particular details of the evidence relied upon by the applicant. Specifically, the judge identified and set out extensive parts of the applicant's submissions in some 13 paragraphs of the Reasons,[126] an exercise not engaged in by the first primary judge in Atanaskovic.

(2) Secondly, throughout the Reasons there are attributions to the Commissioner's submissions by the use of phrases such as 'As submitted by the Commissioner'. While the judge did not identify the source of every word he took from the CCS, the attributions he made to the Commissioner's submissions prevents the Reasons from being described as a wholesale unattributed copying from those submissions.

1. Moreover, to the extent that the applicant submitted that there was a 'wholesale shunting aside' (or 'ignoring') of the evidence relied upon by the applicant in support of its claimed exemptions, that submission must similarly be rejected.
2. The Reasons do not explicitly refer to all of the evidence called on behalf of the applicant. But nor could they be expected to. More particularly, significant aspects of the evidence, which the applicant contends was shunted aside (and/or not dealt with) were in fact the subject of explicit reference and analysis in the Reasons. So, for example, to the extent that the applicant submitted that the judge overlooked 'the unchallenged evidence of Mr Foley' that he and Mr Apswoude had discussed the proposed cultivation of Cassinia on the Land in the early 2000s, that submission must be rejected. His Honour made explicit reference to that evidence at Reasons [37], [38] and [40], setting out the relevant evidence in footnotes 71 and 72.
3. Similarly, to the extent that the applicant submitted that the judge overlooked the evidence of relevant financial statements showing Cassinia as trading stock, that submission must be rejected.[127] The amounts for Cassinia trading stock shown in the applicant's financial accounts for the relevant years - nothing for FY14; $5,890 for FY15; $8,760 for FY16 - do not go far to support a finding that the cultivation of Cassinia for the purpose of sale was the principal business of the applicant on 31 December in the relevant calendar years. The Reasons suggest that the judge considered that evidence, but did not regard it as carrying significant weight.[128] Likewise, any suggestion that the judge overlooked the evidence of sales of Cassinia brush-fencing between November 2016 and July 2023, or the evidence in relation to the Caroline Springs fencing project, that suggestion must be rejected.[129] In any event, as the respondent pointed out in his oral submissions, there was no evidence of any sales of Cassinia during the period relevant to the objections.[130]
4. The applicant's complaint that the judge erred when he said that there was very little documentary or corroborative evidence of primary production activities by the applicant is, in truth, a complaint that evidence which the judge expressly referred to in the Reasons was not accepted as sufficient in all the circumstances to establish that during the relevant tax years the applicant was using the land solely or primarily for the business of primary production. The issue for the judge was whether, on the whole of the evidence, the applicant had established the matters it was required to establish under the relevant provisions of the LTA. Fairly read, the Reasons disclose that the judge did not ignore or improperly shunt aside any of the applicant's evidence.[131]
5. Of course, one of the difficulties about copying from a party's submissions into the reasons for judgment is the possibility that miscopying may occur. Reasons [34] is largely taken from two paragraphs in the CCS.[132] The problem is that in the CCS, the Commissioner submitted that:

Mr Apswoude's evidence must be treated with considerable caution for the reasons given above.

On that basis, the Commissioner contends that Mr Tran's evidence must be treated with considerable caution.

1. In fact, the Commissioner made no submission to the judge about any need for Mr Tran's evidence to be treated with caution. Moreover, there is a further difficulty with respect to this part of the Reasons because, at no point in the Reasons, does the judge say whether or not he accepted this proposition and/or treated Mr Tran's evidence with any particular caution. From the tenor of the Reasons, it might be thought that the judge accepted the supposed submission about the need for caution in relation to Mr Tran's evidence.[133] That said, we note that when Mr Tran was cross-examined, his evidence was not the subject of any serious challenge by the Commissioner.
2. Returning to the structure of the Reasons as a whole, as was submitted by the respondent, they can be analysed in three sections: the first 32 paragraphs, about which the applicant's only copying and pasting complaint concerns the judge's use (adoption) of the headings in the CCS; and the second and third sections (respectively, Reasons [33] to [63] and Reasons [64] to [89]) containing the 50 paragraphs of the Reasons which the applicant complains have been copied from the CCS.
3. In our view, there is a relevant difference between the second section of the Reasons and the third section. It is in the second section that one finds significant references to the applicant's submissions[134] in respect of issues that the judge was required to determine before concluding whether the applicant had made out the exemption he claimed under s 67 of the LTA.
4. The third section of the Reasons, however, purports to contain the judge's specific analysis of whether the applicant's case under s 67, or its former alternative case under s 68, of the LTA has been made out. In the words of Logan J in Atanaskovic, that section of the Reasons 'has been copied, almost verbatim, from the [CCS]'.[135] 'There are no differences of substance'.[136] Instead, the differences may be summarised as follows:

(a) changing individual words, such as 'the Property' to 'the Land' and 'amounts' to 'sums';

(b) changing the words in small clauses, such as from 'Kirk JA recognised that' to 'Kirk JA said, in this respect';

(c) the insertion of expressions such as 'In the present proceedings', 'In this case', 'As submitted by the Commissioner' and 'In my view, for the reasons indicated previously'; and

(d) the insertion of some additional footnotes to transcript, some additional words and an additional citation.

1. The parties helpfully provided this Court with coloured versions of the Reasons, colouring red those parts of the Reasons which were taken from the CCS, colouring blue those parts of the Reasons which were taken from the applicant's closing submissions, and leaving in black the words which were not taken from either party's submissions. When one looks at those documents in respect of the judge's analysis of the s 67 and s 68 issues at Reasons, [64] to [89], one sees a sea of red, with only islands of black.
2. As we have already noted, the respondent acknowledged that Reasons [64] to [83] was largely taken from the CCS, but submitted that the reasoning of the judge in these paragraphs involved the 'drawing together [of] the conclusions on the submissions reached earlier in the Reasons to explain why the three relevant elements of the statutory test [s 67 of the LTA] were not met'. We accept that the judge's findings at Reasons [37], [42]-[46], [50]-[51], [55]-[57] and [63], to which we have already referred, are capable of independently supporting the judge's finding that the applicant had failed to establish that the Land was used solely or primarily for the business of primary production,[137] the first element of the s 67 exemption. It might be accepted that there were few findings in this earlier section of the Reasons[138] which specifically dealt with the second or third elements of the s 67 exemption, dealing with whether the applicant's principal business was primary production of the type carried on on the Land, and whether Mr Apswoude was normally engaged in a substantially full-time capacity in that business. The Reasons do, however, include certain findings that were relevant to the second question, even if not specifically identified in that way. The judge's findings in relation to other business activities of the applicant at Reasons [55], [56] and [57], relating to the Vespas owned by the applicant being used in a café business in St Kilda, and the applicant's dealings with HRE, are relevant to the applicant's business and the question of whether primary production of the type carried out on the Land was its principal business. Reasons [51]-[52] also referred to the evidence as to agistment activity on the Land in such a way as to indicate the judge's conclusion that the agistment activity was in fact a business of the applicant.
3. That said, the Reasons are not to be analysed piecemeal. Paragraphs [64] to [83] contain reasoning and analysis that supports the conclusions the judge ultimately arrived at. When one reads the whole of the Reasons in the context of the particular facts and circumstances in this case, we see little reason to doubt that the reasoning and analysis in these paragraphs was the product of his Honour's independent consideration of all of the evidence and submissions made to him. The preceding paragraphs of the Reasons contain what is obviously his Honour's own analysis of the evidence and submissions. The suggestion that, upon reaching paragraph [64] of the Reasons, the judge terminated his independent analysis, and stopped performing his judicial function, is without merit.
4. Moreover, we also reject as fatuous the submission made in reply by the applicant that somehow it could be inferred that the judge failed to give independent consideration to the matter before him because the trial concluded on 30 November 2023 and judgment was delivered on 13 December 2023 - described by the applicant as being 'eight business days later'.[139]
5. Extensive copying of the winning party's submissions into reasons for judgment has the propensity to cause a losing party to think that their submissions, and the issues in dispute, have not been given a fully independent consideration by the presiding judicial officer. Such a concern may even be heightened in circumstances where the judicial officer appears to adopt, as his or her own words, the precise words of the winning party's submissions - rather than setting them out in a quote and then explaining why submissions in those terms have been accepted. For that reason, a judicial officer is generally on safer ground taking the latter approach (quoting the words used in the winning party's submission and then giving reasons for accepting that submission) if, after giving independent consideration to the issues, he or she concludes that one party's submissions should be accepted almost (if not wholly) in their entirety.
6. That said, a fair reading of the Reasons in this case leads us to conclude that there is no substance in the applicant's contentions that the judge failed to have regard to any relevant evidence and/or failed to give independent consideration to the evidence tendered and the submissions made by the parties. To the contrary, read as a whole, the Reasons disclose that the judge well and truly understood the ambit and relevance of the evidence tendered before him and the competing submissions of the parties, save for his Honour's reference to there being a submission made by the Commissioner that Mr Tran's evidence had to be treated 'with considerable caution'. We will address that issue when dealing with the question of whether the judge erred in concluding that the applicant had not made out its case under s 67 of the LTA. Otherwise, for the reasons given above, the applicant's complaints about copying and shunting aside evidence must be rejected.

Applicant's complaints about internal inconsistencies in the Reasons

1. As we have already observed, the applicant submitted that the Reasons were internally inconsistent in several respects. In particular, it submitted that there was 'a conclusion that there were three businesses being carried out on the Land, then there [was] a conclusion that there were four', and that a 'description changed from modest to significant', and the Land development business was also held (at one stage) to be 'main'. The applicant did not direct us to the paragraphs of the Reasons which it said gave rise to these alleged inconsistencies, nevertheless, we will endeavour to deal with each of them in turn.

1. There is no reference in the Reasons to 'three businesses'[140] or 'four businesses' in those terms. At Reasons [68], dealing with 'the competing uses of the Land', the judge noted the Commissioner's submission 'to be some agistment of cattle, the growing of Cassinia and also land development'. After referring to Crockett J's judgment in Abbott v Commissioner of Land Tax,[141] the judge noted the Commissioner's submission that the reasoning in Abbott (dealing with a case where there are two uses that are substantial) applied a fortiori where there are 'three uses'.[142]
2. Reasons [68] and [69] (which deal with the Commissioner's contentions there were three businesses being conducted on the Land) are in that part of the Reasons dealing with the first matter which the applicant was required to establish under s 67 of the LTA - namely, whether the Land was used solely or primarily for the business of primary production. The judge then turned to consider the second matter the applicant was required to establish, namely, whether its principal business was primary production of the type carried on on the Land. In the course of considering that issue, the judge said at Reasons [78]:

As the Commissioner contends, even if there was a business of primary production carried on on the Land, it was only one of a number of businesses carried on by the Appellant. Other significant businesses were agistment, the café and there was also the development of the Land which, whether or not it might be characterised as a separate business, does, as indicated previously, detract from assertions that the Land was primarily used for the business of primary production or that production was the Appellant's principal business.

1. Read fairly, what his Honour said in this passage was not that there were four businesses being conducted on the Land, but rather that there were four businesses being carried on by the applicant - the issue then under consideration being whether the applicant's principal business was primary production of the type carried out on the Land. At no stage in the Reasons did the judge say that the café (being the fourth business) was a business carried on on the Land. To the contrary, as is made plain in the Reasons,[143] the café was a business which was run in St Kilda.
2. It follows that, while the judge referred to three businesses being carried on by the applicant on the Land, and four businesses being carried on by the applicant, he did not refer to four businesses being carried out on the Land. There is thus no substance in the applicant's first alleged inconsistency.

The applicant's complaint about the change from 'modest' to 'significant'

1. The word 'modest' appears four times in the Reasons: at Reasons [41], referring to 'a very modest record of commercial activity and exploitation with respect to the Cassinia product'; at Reasons [70], referring to 'a modest income from selling Cassinia at some point in the future'; at Reasons [74], referring to the 'modest income from agistment'; and at Reasons [76], referring to 'a modest agistment business'.
2. The word 'significant' appears many more times in the Reasons. Relevantly for present purposes:

(a) at Reasons [51], the judge records the Commissioner's contention that there were 'at least two significant activities taking place on the Land' - namely, the agistment of cattle and land development;

(b) at Reasons [68], the judge refers to 'a significant aspect of the activities done on and in respect of the Land [being] directed to future development' and to planning permits being obtained 'in respect of a significant part of the land';

(c) at Reasons [74], the judge refers to 'a significant amount of cassinia growing on the Land ... [but] scant evidence that it was being cultivated to the requisite degree, extent and intensity'; and

(d) at Reasons [78], the judge refers to '[o]ther significant businesses ...' as being 'agistment, the café and there was also the development of the Land'.

1. In our view, there is nothing internally inconsistent in these references. Specifically, a reference to the agistment business being 'modest' does not preclude that business being described as 'significant' for the purpose of determining whether the applicant's principal business was primary production of the type carried on on the Land as required by s 67(3)(a) of the LTA. We understand the reference to 'significant' to be in the sense of significant or material to the analysis of what the primary business was, in the context of more than one business being conducted. When one reads the Reasons fairly, and looks at the context in which the judge used the words 'modest' and 'significant', one sees that there is no substance in the applicant's second alleged inconsistency.

The applicant's complaint about the judge's description of the land development business as 'main'

1. At Reasons [87], the judge holds that any business of primary production which the applicant was preparing to conduct could only have ever been secondary to 'the main business of property development'. At earlier points in the Reasons, the judge refers to land development activities conducted by the applicant on or in respect of the Land as being 'significant'.[144]
2. In our view, there is nothing inconsistent in describing activities, which might constitute a business, as significant, and at the same time holding that that business is a person's 'main business'. Again, read in context, we see nothing inconsistent in the various descriptions given by the judge to the applicant's land development activities as significant and its business of land development being its main business. There is thus no substance in the third of the applicant's alleged inconsistencies.

1. At the risk of repetition, the judge concluded that the evidence Mr Apswoude gave about the reconstructed business plan documents did not reflect well on his credibility. However, his Honour did not find it necessary to make any findings about whether or not there was some intention to misrepresent matters to the Commissioner.[145] Nevertheless, the applicant submitted that, in truth, the judge made adverse findings about Mr Apswoude's credit, which he then used, contrary to the High Court's decision in State Rail,[146] to reject the applicant's case in the face of the body of objective and corroborative evidence tendered by it at trial, and on which it relied (both before the judge and in this Court).
2. State Rail involved a claim by the appellant, the State Rail Authority of New South Wales ('SRA') that it made payments to two of its contractors in reliance upon work dockets containing materially false entries. The trial judge made adverse findings of credibility against SRA's principal witness, and rejected the bulk of SRA's claims. An appeal by SRA to the Court of Appeal was dismissed. The High Court subsequently allowed SRA's appeal. In allowing the appeal, the plurality[147] said:

It is true that the trial judge, in determining whether to accept the evidence of Mrs Page, was heavily swayed by his impression of her whilst giving oral evidence. However, this circumstance does not preclude a court of appeal from concluding that, in light of other evidence, a primary judge had too fragile a base to support a finding that a witness was unreliable. The documentary evidence in this case, comprising unchallenged affidavit material of Mrs Meek and Ms Packham, the wage records and related documents of Earthline and Nuline, the list of plant (at least in relation to machine No 59) and the analysis of Coopers & Lybrand (in respect of the duplicity claims), provides significant support to the allegations made by Mrs Page.

As Kirby J and Callinan J point out in their reasons for judgment, these were matters to which weight was not given either by the trial judge or the Court of Appeal. The substance of the matter is that there has not yet been a determination of the SRA's case upon a consideration of the real strength of the body of evidence it presented. There must be a new trial at which this consideration will be undertaken.[148]

Yet even when the trial judge has expressed conclusions as to the credibility of a particular witness, that does not represent the end of analysis by the appellate court. It is only the beginning of a particular analysis which is then required. In many appeals, such a credibility finding will be far from conclusive of the proper outcome of the entire trial, and hence of the appeal.[149]

His Honour then proceeded to give a number of examples of cases where an adverse credibility finding would not relieve a trial judge or an appellate court from conducting further analysis with a view to determining whether a particular finding should be made notwithstanding the adverse credit finding.[150]

1. In our view, there was no error in the judge's analysis of Mr Apswoude's credit, nor in the way in which his Honour used the credit findings he made. When one reads the entirety of Mr Apswoude's cross-examination, one sees that he was a difficult witness. At times he did not answer questions. At times he made speeches. And at times he resisted making appropriate concessions. The judge was entitled to conclude that his cross-examination on the reconstructed business plan documents did not reflect well on his credit;[151] and then to treat with some caution Mr Apswoude's evidence about the extent of the applicant's primary production business (relevantly being the cultivation of Cassinia for the purpose of selling) during the relevant tax years.
2. In the present case, the judge did not dismiss the applicant's claims merely because of some conclusion he had made that Mr Apswoude was an unreliable witness. He dismissed the applicant's claims having analysed all of the evidence - including that described by the applicant as the objective and corroborative evidence that had allegedly been 'shunted aside'. State Rail was a different case, decided on a very different factual matrix. There is no basis for attributing to the judge in the present case the errors identified by the High Court in State Rail. The judge's reasoning in the present case, involving as it did a detailed analysis of the evidence and submissions, cannot be characterised as one where his Honour rejected the primary witness's evidence and then failed to conduct the necessary analysis of the balance of the evidence in order to determine the proper outcome of the proceeding. Again, a fair reading of the Reasons discloses to the contrary.
3. For the above reasons, the applicant's complaints about the judge's credit finding and his consequential treatment of the applicant's evidence must be rejected.

The applicant's complaints about the judge's failure to refer to relevant authorities

1. As we have already observed, the applicant made complaint about the judge's failure to refer to a number of decisions, including Ferguson,[152] Stone,[153] Walker,[154] Inglis,[155] Magna Alloys,[156] and Thomas.[157] Additionally, while the judge referred to Tweddle,[158] as we have also observed, the applicant contended that the judge misapplied this decision.
2. There is no substance in any of these submissions. Each of these cases involved statutory provisions different from s 67 of the LTA. Specifically, what was in issue in those cases was whether the taxpayer engaged in a particular business - not whether the land owned by the taxpayer 'was used solely or primarily for the business of primary production'.[159] In the present case, the judge was prepared to accept that the Land was 'used for a number of purposes, among which the cultivation of Cassinia was not the primary one'.[160] As a result of that conclusion, there was no necessity for his Honour to refer specifically to the judgments in Ferguson, Stone, Walker, Inglis, Magna Alloys and Thomas. Similarly, as the judge correctly observed, the judgment of Williams J in Tweddle,[161] was not to the point on the question of whether the Land was used solely or primarily for the business of primary production.
3. Different considerations apply in relation to the applicant's submissions about the judge's treatment of the decision of the New South Wales Court of Appeal in Metricon.[162] The first point to be made is that, contrary to the applicant's assertion that the judge failed to refer to Metricon, the judge in fact dealt with the decision_,_ and the applicant's submissions in respect of it, at Reasons [49].[163]
4. Secondly, and consistently with the judge's conclusion at Reasons [46] that the 'nursery' which the applicant built on the Land was probably constructed for the purpose of being used as a sales office for land sales on the Land, Metricon (where no physical work associated with land development had then been performed on the land the subject of that case) can be distinguished from the present case.
5. Thirdly, and in any event, even if it could be said that the judge should have concluded that Metricon stood against a finding that the Land was used for the business of land development,[164] for the reasons given by the judge, the applicant would not have established that its principal business (or, if one were to use the words of s 67(3)(a) of the LTA, 'main undertaking')[165] was primary production of the type carried on on the Land. That is because, whether or not the land development business was carried on on the Land, the existence of the applicant's land development business as found by the judge would have weighed against such a finding.
6. Putting to one side the question of whether Mr Apswoude was normally engaged in a substantially full-time capacity in the business of primary production, the central issues for the judge in this case were whether the Land was used solely or primarily for the business of primary production, and whether the applicant's principal business was primary production of the type carried on on the Land; not whether the Land was merely used for the business of primary production, nor whether the applicant was merely engaged to some extent in the business of primary production. Once that distinction is borne in mind, it becomes readily apparent that the authorities relied upon by the applicant, in which other taxpayers were found merely to have engaged in a particular business, offer little assistance in the resolution of the present case.
7. In those circumstances, there could hardly be any criticism of the judge for failing to specifically refer to those authorities. Moreover, the one authority that was potentially relevant (although distinguishable on the facts) - Metricon - was in fact dealt with by the judge.
8. For the reasons given above, there is no substance in the applicant's complaints about the way the judge dealt with the authorities upon which it relied in the court below.

Did the judge err in failing to find that the Land was exempt under s 67?

1. At the risk of repetition, in order for the applicant to succeed under s 67 of the LTA, it had to show that the Land was used solely or primarily for the business of primary production; and that the applicant's main undertaking (or, to use the words used at trial, 'principal business') was primary production of the type carried on on the Land; and that Mr Apswoude was normally engaged in a substantially full-time capacity in the business of primary production. In the circumstances of this case, the business of primary production which the applicant had to establish was the cultivation of Cassinia for the purpose of sale (not land remediation or any other purpose).[166] The applicant had to establish all three elements of s 67 - failing to establish any one of these elements being necessarily fatal to the applicant's claim.
2. Having conducted a real review of the evidence for ourselves,[167] we are unable to see any error in the judge's conclusions that none of the three elements of the s 67 exemption were made out by the applicant. In arriving at that conclusion, we would observe the following:

(1) The question of the taxable status of the Land fell to be determined as at the assessment date for each of the relevant tax years, namely, 31 December 2013, 31 December 2014 and 31 December 2015.[168] As such, evidence of what was occurring on the assessment dates was significantly more probative than evidence of activities that may have occurred in the months and years following the last of the assessment dates (31 December 2015).

(2) While the decisions of Ferguson,[169] Stone,[170] Walker,[171] Inglis,[172] Magna Alloys[173] and Thomas[174] (which were relied upon by the applicant) may have provided support for the proposition that the applicant was engaged in the business of primary production on the Land during the relevant tax years, those decisions said nothing about whether a particular business might be regarded as the primary or principal business or main undertaking of the taxpayer - these being the critical issues which fell for determination under s 67 of the LTA in this case.

(3) The question of whether a business exists, and the extent of any such business, is a matter of fact and degree. While no one factor is necessarily determinative, the existence and extent of a business (whether it is an entity's primary or principal business) will depend on a number of indicia which must be considered in combination and as a whole. These include the existence of a profit-making purpose; the scale of activities; the commercial character of the transactions; and whether the activities are systematic and organised and/or carried out in a business-like manner.[175]

(4) While the parties conducted this case at first instance as if the second element of s 67 of the LTA required the applicant to show that its principal business was primary production of the type carried on on the Land, as we have already observed, s 67(3)(a) provides that the taxpayer company's 'principal business' is not primary production of the type carried on on the land unless the 'main undertaking' of the company is primary production of that type. The word 'undertaking' is not defined in the LTA. However, it has been held 'to embrace the property which is used in connection with the undertaking as well as the debts and liabilities which have arisen in relation thereto'.[176] On any view, what is encompassed by the 'undertaking' of an entity must be at least as wide as what might be encompassed by the descriptor or concept of the 'business' of that entity. Having regard to the way the case was conducted at first instance, we will proceed on the basis that what is encompassed by the expression 'main undertaking' is no more or less than what is encompassed by the expression 'principal business'.

(5) During the three relevant tax years, the taxable value of the Land exceeded $30 million; the applicant's borrowing costs on amounts borrowed against the value of the Land ranged from a little over $1 million in 2014 to a little over $2 million in 2016; Cassinia closing stock recorded in the financial statements ranged from $0 to $8,760; no Cassinia was sold by the applicant; and significant work was done by the applicant in relation to the obtaining of planning permits for the development of the Land.

1. When one examines the whole of the evidence, one is driven to the conclusion that whatever business of primary production the applicant was undertaking during the relevant tax years, the applicant did not establish at trial that this was its principal business or main undertaking. That conclusion alone disposes of the applicant's contention that the Land should have been held to be exempt under s 67 of the LTA. That said, we see no reason to disagree with the judge's conclusions that the applicant also failed to establish that the Land was used primarily for the business of primary production, or that Mr Apswoude was normally engaged in a substantially full-time capacity in the business of primary production.
2. In supplementary written submissions, the applicant submitted that the Court should not entertain the respondent's argument that the cultivation of Cassinia for sale was not the applicant's 'main undertaking', as the respondent's case below was at no stage based on the proposition that the applicant's 'main undertaking' did not satisfy s 67(3)(a). While we observe that the respondent disallowed the applicant's objections to the assessments on the basis that he did not consider that s 67(3)(a) had been satisfied, we accept that the applicant's principal business and its main undertaking were effectively treated as one in the proceeding below. We have done likewise. The legislation effectively demands that we do so.
3. In treating the applicant's principal business and main undertaking as the same thing, we have identified no error in the judge's conclusion, based on the evidence before him, that the cultivation of Cassinia for sale was not the applicant's principal business or main undertaking for the purposes of assessments carried out on 31 December in each of 2013, 2014 and 2015. The evidence of sales of Cassinia during the relevant years was seriously deficient (indeed, there were no sales of Cassinia until November 2016, according to the aide memoire provided), and the meagre amounts of Cassinia stock recorded in the accounts did very little to improve the position. As the respondents pointed out in oral submissions, even the vespas were worth considerably more than the stocks of Cassinia recorded in the accounts.
4. We reject the contention that reference to the applicant's 'main undertaking' involves a new argument that the Court is precluded from considering. The Court is bound to carry out its appellate function by applying the law. Section 67(3)(a) of the Act determines whether the exemption in s 67 is to apply where the owner of the land is a proprietary company.
5. We do not accept that in determining whether the cultivation of Cassinia for the purpose of sale was the applicant's principal business or main undertaking the relevant years, the value of the Land was irrelevant. The assets of the applicant that were available to it to generate income and meet its debts were relevant to determining what was its principal business or main undertaking on the assessment dates for the purposes of s 67 of the Act. Viewed objectively, and in the context of the steps that were actively being taken in the relevant years to secure the Land for residential subdivision, the Land was a valuable asset forming part of the applicant's business undertaking.
6. There remains one issue to be considered - the judge's incorrect assertion that the Commissioner had submitted that Mr Tran's evidence had to be treated with considerable caution.[177] In our view, this error was of no consequence so far as the ultimate outcome of the proceeding was concerned. Mr Tran's evidence was mainly concerned with the extent of Cassinia cultivation on the Land between July 2014 and January 2018. Acceptance of his evidence in its entirety would not (when coupled with the rest of the evidence) justify a conclusion that during the relevant tax years the applicant's principal business (main undertaking) was primary production of the type carried on on the Land.

1. For the reasons given above, we are not satisfied that the applicant's appeal has a real prospect of success. Accordingly, leave to appeal must be refused.

[1] But often referred to in the evidence given by the applicant's witnesses as 'the Farm'.

[2] The paddock sizes vary, with the smallest being paddock 9, the area of which is 1.0 hectares; and the largest being paddock 2, the area of which is 23.6 hectares.

[3] Again, the paddock sizes varied, with the smallest being paddocks 12 and 13, the area of each being 0.6 hectares; and the largest being paddock 16, the area of which is 35.1 hectares.

[4] Section 36(1) of the Land Tax Act 2005 provides that land tax is assessed in respect of land owned by a taxpayer as at midnight on 31 December of the year preceding the tax year. The total of the three assessments made in conformity with s 36(1) amounted to a little over $2 million.

[5] Australian Investment & Development Pty Ltd v Commissioner of State Revenue [2023] VSC 741 ('Reasons').

[6] During the course of the hearing, the applicant indicated that it would no longer pursue its claim under s 68 of the LTA, saying 'Our attack is on s 67'. As a consequence, the applicant abandoned proposed ground 5 which had alleged that the judge erred in failing to conclude that the Commissioner's discretion under s 68 of the LTA had miscarried.

[8] The respondent also attached the applicant's solicitors' letter dated 18 June 2021 which had enclosed the notice of objections, together with a document headed 'Factual submissions in support of notice of objection dated 18 June 2021'.

[9] See s 67(1)(a)(iii) of the LTA.

[10] See s 67(3)(a) of the LTA, noting that at first instance the parties conducted the case on the basis that this section of the LTA used the words 'principal business' - whereas, as the respondent (over the objection of the applicant) submitted in this Court, the actual words in s 67(3)(a) are 'main undertaking'.

[11] See s 67(3)(b)(ii) of the LTA.

[12] In evidence, Mr Tran gave his full name as Man Tran. In his witness statement tendered at trial, however, his full name was set out as Man Tran Huu. In his evidence, Mr Tran explained that Huu was his middle name.

[14] Mr Apswoude agreed that the name Davis Vineyard was derived from the name of two roads which were quite close to the Land: Davis Road and Vineyard Road.

[15] As at 30 June 2015, the applicant's borrowings in relation to the land exceeded $15.5 million.

[16] In fact, in the financial statements for the years ended 30 June 2014, 2015 and 2016, Cassinia closing stock was recorded as $0, $5,890 and $8,760 respectively; whereas, in each of those years, property, plant and equipment (which included the Land as its main component) was recorded as a non-current asset in the amounts of $12,203,118, $12,165, 429 and $12,323,459.

[17] Paddocks 1 to 3, 5 and 10 on Lot 1; and paddocks 15 and 17 on Lot 4.

[18] Being six of the seven paddocks for the two previous years, but with paddock 10 now being described as 'scattered at low density'.

[19] The June 2017 video footage also showed a Cassinia brush-fence being constructed near the building described by Mr Apswoude as 'the nursery'.

[20] While the planning permit was dated 12 April 2016, the letter from the City of Melton in which it was enclosed was dated 11 April 2016.

[22] See n 10 above as to the replacement by the parties of the statutory words 'main undertaking' in s 67(3)(a) of the LTA with the words 'principal business'.

[27] [1959] HCA 8; (1959) 101 CLR 298.

[37] (2017) 105 ATR 11; [2017] NSWCA 11 ('Metricon').

[43] Tweddle v Federal Commissioner of Taxation [1942] HCA 40; (1942) 180 CLR 1, at 7 (Williams J).

[44] Reasons, [55] (footnote in original).

[52] [1942] HCA 40; (1942) 180 CLR 1, 7 ('Tweddle').

[58] Lavender Rain Pty Ltd v Commissioner of State Revenue [2022] VCAT 1264 at [108].

[60] Ibid [78] (footnotes in original).

[65] [2002] VSCA 189; (2002) 6 VR 1 (Charles, Buchanan and Chernov JJA) ('Fletcher').

[66] (2005) 43 MVR 130; [2005] VSCA 1 (Batt, Vincent and Nettle JJA) ('Hunter').

[68] Which descriptions, as we have already observed, ranged from 'present but very sparse' to 'widespread' for each paddock on all three dates.

[69] Borrowing from the language used in Fletcher when this Court said, at [157], that 'if evidence is significant, it is not to be peremptorily shunted aside or ignored'.

[70] [1979] FCA 29; (1979) 37 FLR 310 ('Ferguson').

[72] (1985) 16 ATR 331 ('Walker').

[73] [1979] FCA 106; (1979) 10 ATR 493 ('Inglis').

[74] [2021] VSC 388; (2021) 113 ATR 379 ('Lotus Oaks').

[75] [1980] FCA 180; (1980) 49 FLR 183 ('Magna Alloys').

[76] (1972) 46 ALJR 397; 3 ATR 165 ('Thomas').

[77] Metricon [2017] NSWCA 11; (2017) 105 ATR 11, 31-32 [70]-[71] (Barrett AJA, with whom MacFarlan and Ward JJA agreed).

[78] Thomas (1972) 3 ATR 165, 169.

[79] Stone (2005) 222 CLR 289, 305 [55].

[80] Income Tax Assessment Act 1936 (Cth).

[81] Tweddle [1942] HCA 40; (1942) 180 CLR 1, 7.

[82] Ferguson [1979] FCA 29; (1979) 37 FLR 310, 314.

[83] [2024] FCAFC 137 (Collier, Logan and Goodman JJ) ('Atanaskovic').

[84] But see the judge's references to Metricon at Reasons [49].

[85] (1999) 160 ALR 588; [1999] HCA 3 (Gaudron, Gummow, Kirby, Hayne and Callinan JJ) ('State Rail').

[86] [2003] HCA 48; (2003) 77 ALJR 1598, 1610 [62] (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ) ('Whisprun').

[88] Whisprun [2003] HCA 48; (2003) 77 ALJR 1598, 1610 [62].

[93] See, in particular, Reasons, [78].

[95] Atanaskovic [2024] FCAFC 137, [24], [97], [101].

[96] Noting that s 127 of the TAA operates to make those values conclusive evidence in this proceeding - there being no evidence to the contrary.

[97] [2016] VSCA 338 (Maxwell P, Santamaria JA and Riordan AJA) ('Rainn').

[99] Fletcher [2002] VSCA 189; (2002) 6 VR 1, 31 [100] (footnotes omitted). See also the Court's reference at 32 [102] to Gray J's judgment in Sun Alliance Insurance Ltd v Massoud [1989] VicRp 2; [1989] VR 8, wherein his Honour said that reasons would be inadequate if 'the appeal court is unable to ascertain the reasoning upon which the decision is based ... or ... justice is not seen to have been done'.

[100] Fletcher [2002] VSCA 189; (2002) 6 VR 1, 43 [157].

[101] Hunter [2005] VSCA 1, [21] (footnotes omitted).

[102] Atanaskovic [2024] FCAFC 137, [24], [97], [160].

[103] [2024] ACTCA 9; (2024) 21 ACTLR 122 ('Porter').

[114] [2019] NSWCA 95; (2019) 99 NSWLR 630 (Basten and White JJA, Brereton JA dissenting) ('Li').

[115] (2018) 134 ACSR 105; [2018] QCA 352 ('King').

[123] The view expressed by Brereton JA in Li [2019] NSWCA 95; (2019) 99 NSWLR 630, 657, [116], in dissent.

[125] Porter [2024] ACTCA 9, [34]-[35]; King [2018] QCA 352, [65]; Atanaskovic [2024] FCAFC 137, [32]-[33], [145].

[126] See Reasons, [13], [20], [22], [23], [37]-[40], [48], [50], [52], [54] and [62].

[130] We note that the profit and loss statement in the accounts for the year ended 30 June 2014 shows farm income from Cassinia sales of $18,182. This is not reflected in the aide memoire prepared by the applicant itemising the sales of Cassinia upon which it relied.

[131] See in particular Reasons, [23], [33]-[35], [37]-[40], [48] and [50].

[132] In fact, CCS [35] and [36], which have been combined together.

[133] After all, why would the judge otherwise set out this supposed submission, without any indication that he rejected it, in a judgment where almost all (if not all) of the evidence critical to the possible success of the applicant's case was rejected by the judge. Moreover, the single reference to Mr Tran's evidence after the observation that it was to be treated with caution (see Reasons [36]), did not make it clear whether it was accepted in whole or in part.

[134] See reasons [37]-[40], [48], [50], [52], [54] and [62].

[135] Atanaskovic [2024] FCAFC 137, [97].

[138] That is, before Reasons, [64] and following.

[139] The relevance of this descriptor is illusive, unless it contained some implicit assertion that judges only give independent consideration to relevant matters on business days to the exclusion of non-business days.

[140] Save for a reference not relevant to the present issue at Reasons, [56] where his Honour referred to three businesses (the applicant, HRE and 'Vespa' in an invoice sent by Ms Apswoude-Hardacre to HRE).

[141] [1985] VicRp 15; [1985] VR 164, 166 ('Abbott').

[143] See in particular Reasons, [55].

[144] See, for example, Reasons [51].

[146] [1999] HCA 3; (1999) 160 ALR 588.

[148] State Rail[1999] HCA 3; , (1999) 160 ALR 588, 607 [63]-[64] (citations omitted).

[150] See further, Callinan J's judgment at 636 [154].

[152] [1979] FCA 29; (1979) 37 FLR 310.

[154] (1985) 16 ATR 331.

[155] [1979] FCA 106; (1979) 10 ATR 493.

[156] [1980] FCA 180; (1980) 49 FLR 183.

[157] (1972) 46 ALJR 397.

[158] [1942] HCA 40; (1942) 180 CLR 1.

[161] [1942] HCA 40; (1942) 180 CLR 1, 7.

[162] (2017) 105 ATR 11; [2017] NSWCA 11.

[164] Section 67(1)(a)(iii) of the LTA.

[165] But noting that the applicant objects to the Commissioner now being allowed for the first time in this Court to make any submissions about the words 'main undertaking', having not made any such submissions before the judge.

[166] See, for example, the evidence of Mr Apswoude, given in cross-examination, and set out in paragraph [36] above, about the 'best part of Bill Mollinson's proposal' being that the planting of a 'deep-rooted plant [Cassinia]' would 'improve the soil immediately', 'making the Land productive again' and obviating the need to spend 'tens of millions of dollars' to remediate the Land.

[167] See Lee v Lee [2019] HCA 28; (2019) 266 CLR 129, 148-149 [55] (Bell, Gageler, Nettle and Edelman JJ).

[168] See s 36(1) of the LTA and Rainn [2016] VSCA 338, [15].

[169] [1979] FCA 29; (1979) 37 FLR 310.

[171] (1985) 16 ATR 331.

[172] [1979] FCA 106; (1979) 10 ATR 493.

[173] [1980] FCA 180; (1980) 49 FLR 183.

[174] (1972) 46 ALJR 397.

[175] See Spriggs v Federal Commissioner of Taxation [2009] HCA 22; (2009) 239 CLR 1, 19-20 [59] (French CJ, Gummow, Heydon, Crennan, Kiefel and Bell JJ).

[176] Top of the Cross Pty Ltd v Federal Commissioner of Taxation (1980) 50 FLR 19, 36 (Woodward J).