Pursuant to Section 71(5) of the Victorian Civil and Administrative Tribunal Act 1998 I confirm the Principal Registrar's rejection of this application.

Mr N. Kotros , Solicitor of the Solicitor to the Commissioner of State Revenue

1. Mr Baranov entered into a contract of sale on 26 September 2003 with Gatecall Pty Ltd to purchase a property known as 21 Lexington Avenue, Shoreham for $1.8M. A special condition of that contract provided for a simultaneous settlement of that contract with a purchase of 39 storage units at 601-611 Collins Street, Melbourne in which Gatecall was purchaser and Beluga Developments Pty Ltd was vendor. According to Mr Baranov, Beluga was 'a company related to myself'. The land transfer instrument for the Shoreham property was executed on 11 December 2003 and stamped on 13 January 2004 with duty in the sum of $99,000 calculated it would seem on the consideration of $1.8M shown in the contract.
2. Following an approach to the State Revenue Office in mid-2006 by Gatecall, the office sent Mr Baranov a letter dated 4 August 2006 stating that he, Mr Baranov, had been 'selected' for an investigation under Section 73 of the Taxation Administration Act 1997. The investigation was intended:

To assess compliance with the Duties Act 2000 ... for the acquisition of 21 Lexington Avenue, Shoreham'

1. Mr Baranov says that he, his wife and Beluga and another company of his 'Bar Um Storage Pty Ltd' had been sued by Gatecall in the Federal Court seeking damages. Mr Baranov says that Gatecall's approach to the State Revenue Office:

Was made when the proceeding was still on foot and as made, I believe, for the sole purpose of creating financial embarrassment to me and hope that it would assist Gatecall in the proceeding.

1. It seems that Gatecall had provided the Commissioner with a valuation of the subject property as at 16 September 2003 showing a valuation of $2.7M. Mr Baranov provided the Commissioner with a valuation by a different valuer as at 1 November 2003 setting the value at $2.2M.
2. On 8 November 2006 the Commissioner issued a valuation under Section 8 of the Taxation Administration Act assessing the relevant transfer for an additional $44,000 in duty, levying a penalty at $33,000 and requiring payment of interest in the sum of $15,734.22. The total payable under the assessment therefore was $92,734.22.
3. By letter dated 15 January 2007 solicitors acting for Mr Baranov lodged an objection to the 8 November assessment. Correspondence between Mr Baranov's solicitors and the Commissioner's office then ensued. Eventually by letter dated 5 July 2007 to Mr Baranov's solicitor, the Commissioner provided his response to Mr Baranov's notice of objection. The Commissioner first noted that the objection was not lodged:

Within the 60 day period prescribed under Section 99(1) of the Taxation Administration Act 1997.

1. The Commissioner nevertheless determined to grant an extension of time for the lodgement of the objection. The Commissioner allowed the objection only partially. The interest assessed was reduced to $6,434.29 but the assessment was otherwise confirmed. Amongst the findings made by the Commissioner was one:

That Mr Baranov was aware that the market value of the property and the storage units was approximately $2.5M.

1. Mr Baranov denied the correctness of that finding which according to the Commissioner was based on 'further investigations'. Mr Baranov's solicitors by letter dated 31 July 2007 sought production under the Freedom of Information Act of:

Copies of all the documents including but not limited to, correspondence by and to the SRO [State Revenue Office], initial assessment by the SRO and any subsequent assessment by the SRO in relation to the Storage Units on the Property.

1. The Commissioner responded by letter dated 14 September 2007 granting access to some documents but denying access to many of the documents including documents relating to Gatecall's approach to the Commissioner. According to Mr Baranov:

I was therefore unable to defend myself against the grounds for the Determination in respect of the principle and interest.

1. Meanwhile on 20 September 2007 the Federal Court proceedings between Mr Baranov and his interests and Gatecall and its associates was settled. According to Mr Baranov:

This settlement, in effect, amounted to a capitulation of Gatecall's claim ... which instigated the SRO's investigation and which formed the basis for the Determination.

1. According to Mr Baranov that showed that Gatecall's claims 'had always been baseless'. Then Mr Baranov's solicitors received an invoice for the valuation fees incurred by the Commissioner upon his reference of the property valuation through the Valuer General in the sum of $4,000 plus $400 Goods and Services Tax. By letter dated 1 November 2007 Mr Baranov's solicitors narrated the history and certain matters including the settlement of the Federal Court proceedings concluding:

Accordingly, we request a reconsideration of the valuation and the invoice adjusted accordingly.

1. The Commissioner responded by letter dated 14 November 2007 advising that in accordance with the time limits in the Taxation Administration Act 1997 any request for the matter to be referred either to this Tribunal or to the Supreme Court of Victoria needed to be made within 60 days of Mr Baranov's receipt of the determination. Since that time limit had expired, according to the Commissioner, the matter was closed.
2. There matters rested over the Christmas New Year break with Mr Baranov's solicitors closed for holidays. According to Mr Baranov:

In mid-January [2008], instructions were given to my lawyers to prepare an application to VCAT for an extension of time.

1. An application for review was prepared and together with an application for extension of time under Section 126 of the Victorian Civil and Administrative Tribunal Act 1998 was submitted to the Tribunal for registration. The Principal Registrar determined not to register these documents being of the view that without a reference from the Commissioner, the Tribunal lacked jurisdiction to entertain either a review proceeding or any application for extension of time.
2. Pursuant to Section 71 of the Victorian Civil and Administrative Tribunal Act 1998 Mr Baranov seeks a review of the Principal Registrar's determination to reject his proposed proceeding. That application pursuant to Section 71 has come on for hearing before me.

1. Mr Grace of Counsel represented Mr Baranov. He submitted first, that the power to extend time for the commencement of a proceeding granted to the Tribunal by Section 126(1) of the Victorian Civil and Administrative Tribunal Act:

Applies, and was intended to apply, to matters which may be referred to VCAT under the TAA [Taxation Administration Act]. The VCAT Act does not limit the application of Section 126 to proceedings under the TAA: refer to Part 9 of Schedule 1 to the VCAT Act.

1. This reference is to Clause 65 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act which modifies and in some instances excludes the Tribunal's power to extend time with respect to what are described as 'planning enactments', that is, principally those review proceedings allocated to the Tribunal under the Planning and Environment Act 1987. He said the purpose of Section 126 was 'to enable justice to be done'. He referred to Freedman Developments Pty Ltd v Knox City Council [2002] VCAT 1263 [19]. He said the section was intended to enable:

Matters to be determined, rather than avoided, and determined on their real and substantial merits, not on the basis of technical points or slip-ups.

1. He referred to Ritchie's Stores Pty Ltd v Bass Coast Shire Council (2003) 14 VPR 82, 85 [8]. He submitted the section should be given a construction that would promote the purpose or object underlying it. He referred to Section 35 of the Interpretation of Legislation Act 1984.
2. According to Mr Grace a proceeding in this Tribunal is commenced relative to a matter under the Taxation Administration Act:

When two integrated, inter-dependent steps have been completed.

(a) The making of a valid request by a taxpayer for a referral of the matter pursuant to Section 106(1) and 106(2)(a) of the Taxation Administration Act following the adverse determination of an objection by the Commissioner; and

(b) The resultant referral of that matter by the Commissioner in response to the taxpayer's request, pursuant to Section 106(3), or 107, of the Taxation Administration Act.

1. He referred to the decision of Mr Gibson in Springvale Turkish Islamic and Cultural Society v Commissioner of State Revenue (1998) 20 ATR 3653, 3659 where under similar provisions under the Stamps Act 1958 Mr Gibson said:

The jurisdiction of the Tribunal depends on there being a valid request for reference of a decision on a valid objection.

1. Mr Grace said that the limits for the two steps were as follows: the taxpayer's request must be made within 60 days, notice of the determination and the Commissioner must refer the matter to the Tribunal within 60 days of receiving the taxpayer's request. Accordingly he said:

The time limit for the commencement of a proceeding in relation to a matter arising under the [Taxation Administration Act] is therefore to be determined by reference to the adverse determination of the objection by the Commissioner.

VCAT has the power to extend any time limit for the commencement of a proceeding; in this case, there were two separate time limits which together constitute the time limit for the commencement of a proceeding:

(i) the 60 day period which the taxpayer has to request or referral;

(ii) the 60 day period which the Commissioner has to act on that request and refer the matter to VCAT.

1. Hence he said the Tribunal has power to extend the 60 day period 'in which the taxpayer may request a referral'. He submitted that such date should be extended. Next he contended that the Tribunal's decision in Di Dio Nominees Pty Ltd v Commissioner of State Revenue [2004] VCAT 1824 should not be regarded as determining the issues because the member 'did not appear to have the benefit of any submissions on behalf of the taxpayer'. He referred to [57]. Hence he submitted Di Dio should be regarded as wrongly decided. He also observed that in so far as the reasons in Di Dio make reference in a number of places to there being no proceeding on foot and placed reliance on that fact to reject the application, such reasoning was misconceived. In any circumstance where Section 126 of the Victorian Civil and Administrative Tribunal Act was invoked, he said necessarily there would be no proceeding on foot unless and until the necessary extension of time were granted.
2. The effect of the Commissioner's position, he said, was that:

It is the Commissioner who determines, or controls, whether a matter is referred to VCAT and ... neither the Commissioner nor VCAT has the power to extend the time in which a taxpayer may request a referral.

1. This view he said failed to appreciate the purpose of the Victorian Civil and Administrative Tribunal Act which he said was to 'enable substantive issues to be heard and determined, rather than avoided on technical grounds'.
2. According to Mr Grace were the Commissioner to refer a matter to VCAT without a valid objection and a valid request from the taxpayer, the Tribunal would have no jurisdiction. That was necessarily the effect of Mr Gibson's decision in Springvale Turkish Islamic and Cultural Society. In that case the initial objection was not made within time and Mr Gibson considered that that deprived the Tribunal of jurisdiction to deal with any purported referral made thereafter. Mr Grace said, since the objection was an integral part of the process establishing the Tribunal's jurisdiction:

A Fortiori, the request that the matter be referred must also be an integral part of the process [by which] proceedings are commenced.

Hence, the referral in itself is not sufficient to ground the Tribunal's jurisdiction. Since two steps are necessary to invoke jurisdiction, namely the making of the request and the making of the referral:

VCAT has the power under Section 126 of the Victorian Civil and Administrative Tribunal Act, to extend the time limits for both of these procedural steps.

The Commissioner stands subject to the VCAT, not visa versa.

Hence, he submitted any construction which would put the issue of the commencement of a proceeding for review of one of the Commissioner's determinations solely in the power of the Commissioner must be wrong. He continued:

Further, it is submitted that proportionality ought to play a part in the construction of provisions such as Section 126. If the Commissioner is correct, the mere fact that the taxpayer's request did not comply with a technical requirement has the consequence that that taxpayer's right to challenge the Commissioner's adverse decision is forever lost. It is submitted that this is a disproportionate sanction, or penalty, for technical non-compliance. Further, it is far from consistent with the purpose of the VCAT Act to visit such penalties upon citizens for a technical non-compliance.

1. Mr Grace contended that insofar as the Tribunal's decision in Di Dio Nominees depended upon Section 48 of the Victorian Civil and Administrative Tribunal Act that section was not relevant. Section 126 the provision relied upon creates a power to extend time 'for the commencement of a proceeding'. Section 48 of the Act does not in terms employ that phrase. He continued:

Even if Section 48 was considered relevant to the issue, Section 126 should not be construed in a manner which was [in] consistent with its intended purpose - which was to enable substantive issues to be determined, not avoided.

1. Mr Grace asked what operation Section 126 would have with regard to taxation proceedings. As a matter of practice the Commissioner would never need to seek an extension of the 60 day period within which he has to refer a matter to the Tribunal. Had Parliament intended that Section 126 not apply to taxation matters at all it could have provided in Schedule 1 of the Act which makes special provision for particular jurisdictions that the section did not apply. No such provision is to be found.

1. The Tribunal's review jurisdiction under the Duties Act is governed by the Taxation Administration Act 1997. Section 106 of that Act is central to the present dispute and the following section is also relevant hence I will set them out in full:
   1. Right of review or appeal

(a) a taxpayer is dissatisfied with the Commissioner's determination of the taxpayer's objection; or

(b) 90 days (not including any period of suspension under section 102) have passed since a taxpayer's objection was received by the Commissioner and the Commissioner has not determined the objection -

the taxpayer, in writing, may request the Commissioner to refer the matter to the Tribunal or to treat the objection as an appeal and cause it to be set down for hearing at the next sittings of the Supreme Court.

(a) in the circumstances referred to in subsection (1)(a), must be made within 60 days after the date of service on the taxpayer of the notice of the Commissioner's determination of the objection; or

(b) in the circumstances referred to in subsection (1)(b), may be made at any time after the 90 day period (not including any period of suspension under section 102).

(3) Subject to section 107, within 60 days after the request, the Commissioner must refer the matter for review or cause the objection to be set down for hearing accordingly.

(1) Within 30 days after receiving a request to refer a matter or treat an objection as an appeal, the Commissioner may require the taxpayer to give further and better particulars of the objection.

(a) particulars are given, the Commissioner is not bound to refer the matter or cause the objection to be set down for hearing until 30 days after the Commissioner has received full details of the objection; or

(b) particulars are not given, the Commissioner must not refer the matter or cause the objection to be set down for hearing.

1. It will be seen that the structure of the review jurisdiction entails a dissatisfied taxpayer first lodging an objection and such objection being wholly or partially rejected, allowing the taxpayer to request referral of his objection either to this Tribunal or to the Supreme Court within 60 days after service of the notice of the Commissioner's determination upon him.
2. This structure of objection followed by referral at the election of the taxpayer either to the Supreme Court or to an administrative Tribunal is ultimately based upon the structure for appeals and reviews originally provided for in the Commonwealth Income Tax Assessment Act 1936. That structure was adopted at the State level when the Taxation Appeals Act 1972 established the Victorian Taxation Board of Review upon the model of the Commonwealth Taxation Boards of Review. The same structure was adopted when the Victorian Taxation Board of Review was abolished and its jurisdiction incorporated into the new Administrative Appeals Tribunal established by the Administrative Appeals Tribunal Act 1984 and finally when that jurisdiction was given to this Tribunal under the Victorian Civil and Administrative Tribunal Act. The present structure is as previously noted set out under the Taxation Administration Act.
3. It was long established that under the Commonwealth regime the time limit for the lodgement of an objection to assessment and for the referral of an objection to the Court or to the Board of Review was mandatory. Ryan, Manual of the Law of Income Tax in Australia (1st ed 1965) 220; FCT v Hoffnung (1928) 42 CLR 39, 53. The Commissioner had no power to enlarge these time limits nor did any Court or the Board of Review. The same regime was in force when Mr Gibson decided the Springvale Islamic case. Section 100 of the Taxation Administration Act now however gives the Commissioner the power to enlarge the 60 day time limit within which an objection to an assessment may be lodged. It will be recalled that the Commissioner exercised this power favourably to Mr Baranov in the present case.
4. Mr Baranov's application is based on Section 126 of the Victorian Civil and Administrative Tribunal Act 1998 and so I will set it out in full:

126. Extension or abridgment of time and waiver of compliance

(1) The Tribunal, on application by any person or on its own initiative, may extend any time limit fixed by or under an enabling enactment for the commencement of a proceeding.

(2) If the rules permit, the Tribunal, on application by a party or on its own initiative, may-

(a) extend or abridge any time limit fixed by or under this Act, the regulations, the rules or a relevant enactment for the doing of any act in a proceeding; or

(b) waive compliance with any procedural requirement, other than a time limit that the Tribunal does not have power to extend or abridge.

(3) The Tribunal may extend time or waive compliance under this section even if the time or period for compliance had expired before an application for extension or waiver was made.

(4) The Tribunal may not extend or abridge time or waive compliance if to do so would cause any prejudice or detriment to a party or potential party that cannot be remedied by an appropriate order for costs or damages.

relevant enactment means an enactment specified in the rules to be a relevant enactment for the purposes of this section.

1. Rule 4.19 of the Tribunal's Rules makes all the statutes conferring jurisdiction on the Tribunal and set out in Schedule 1 to the rules 'relevant enactments'.

1. In my view Mrs Coghlan was correct when in circumstances similar to these she determined in the Di Dio Nominees case that no proceeding could be commenced in the Tribunal whether with or without the assistance of Section 126 of the Victorian Civil and Administrative Tribunal Act where the taxpayer had not requested a referral to VCAT within the 60 day time limit stipulated in the Taxation Administration Act.
2. Mr Grace conceded that a taxpayer who in such circumstances was seeking a referral to the Supreme Court would have no entitlement to an enlargement of time. On the other hand he submitted, and this was not denied by Mr Kotros who appeared for the Commissioner, that under the present regime for Commonwealth taxation appeals a time limit missed on the way to a review application to the Administrative Appeals Tribunal could be enlarged by the Tribunal but a similar time breach could not be enlarged by the Federal Court. Accordingly, the fact that a failure to meet the time limit for a referral request would be fatal to an attempt to have the matter referred to the Supreme Court cannot as a matter of logic mean that the same fate must meet a late request to refer a matter to this Tribunal.
3. There is a fallacy in the submission that since the Tribunal's jurisdiction in taxation review matters depends first, upon the request of the taxpayer and secondly upon the Commissioner's referral, therefore it must be possible to obtain an enlargement of the time for both steps pursuant to Section 126 of the Victorian Civil and Administrative Tribunal Act.
4. A review application with regard to an assessment under the Duties Act is a matter within the Tribunal's review jurisdiction. Section 48 of the Victorian Civil and Administrative Tribunal Act provides as follows:
   1. How is review jurisdiction invoked?

The review jurisdiction of the Tribunal is invoked-

(a) by a person who is entitled to do so by or under an enabling enactment applying to the Tribunal in accordance with section 67 for review of a decision under that enactment; or

(b) by a decision-maker referring a decision to the Tribunal under an enabling enactment in accordance with section 69 for review of the decision; or

(c) in any other way permitted or provided for by the enabling enactment.

1. In Di Dio Nominees Mrs Coghlan concluded that the regime under the Taxation Administration Act with which we are here concerned, fell within Section 48(b) and that it was the Commissioner's act of referral which commenced such a proceeding. Mr Grace observes that Section 126 provides for the enlargement of time 'for the commencement of a proceeding' whereas Section 48 describes how the Tribunal's review jurisdiction is 'invoked'. In my view however this is a distinction without a difference and the reference in Section 48 to the Tribunal's review jurisdiction being invoked is synonymous with the concept of a review application being 'commenced' in the Tribunal. Further, insofar as Mr Grace submitted that a taxpayer in the present circumstances, assuming that he breached no time limit, would be invoking the Tribunal's jurisdiction under Section 48(c) must be rejected. The regime under the Taxation Administration Act is the classic example of a review jurisdiction dependent upon reference and is correctly described in Section 48(b). In Di Dio Mrs Coghlan decided therefore that the taxpayer's making of a request to refer within time or outside time was merely an anterior fact and not something which was part of the act of commencing a proceeding. I respectfully agree with her.
2. I reject any contention that the fact that some preliminary step or process is a necessary part of the Tribunal's jurisdiction necessarily entails the view that Section 126 of the Victorian Civil and Administrative Tribunal Act gives this Tribunal power to enlarge the time for the taking of that step. In the Springvale Islamic case the lodgement of a valid objection within the relevant time limit was a necessary ingredient in the Tribunal's jurisdiction. Mr Gibson found that since this step had not been taken within the mandatory time limit and the Commissioner had no power to enlarge, the Tribunal had no jurisdiction. The Administrative Appeals Tribunal of Victoria in which Mr Gibson was sitting when he made his determination in the Springvale Islamic case had power under Section 31(2) of the Administrative Appeals Tribunal Act 1984 to enlarge time in terms substantially similar to the power which this Tribunal has under Section 126; yet there was no thought in Mr Gibson's mind that the jurisdictional problem which he encountered could have been resolved by his enlarging the time for the anterior step, namely the lodgement of the valid objection.
3. When one looks at the provisions of Sections 106 and 107 of the Taxation Administration Act and earlier provisions such as Section 100 dealing with objections it is clear that this statute which is an 'enabling enactment' for the purposes of the Victorian Civil and Administrative Tribunal Act lays down a code for the necessary procedural steps for a taxation review in this Tribunal. The jurisprudence of Section 109 of the Commonwealth Constitution which provides that Commonwealth law prevails over a State law even if both are otherwise valid shows that where a Federal statute seeks to make exhaustive provision for a particular set of circumstances the Commonwealth Parliament is regarded as seeking to 'occupy the field' and any State legislation on the same subject is for that reason alone regarded as inconsistent and overridden by Section 109 of the Constitution. Similarly here, Section 126 of the Victorian Civil and Administrative Tribunal Act makes provision for an extension of time which simply does not fit the regime laid down for taxation review proceedings in the Taxation Administration Act. The possibility of inconsistency of this and other types between the Victorian Civil and Administrative Tribunal Act and enabling enactments is catered for in Section 159 of the which provides as follows:

If a provision of this Act, the regulations or the rules is inconsistent with a provision of an enabling enactment, the provision of the enabling enactment prevails to the extent of the inconsistency

1. In my view the Taxation Administration Act Section 106 lays down an exhaustive code for the commencement of taxation review proceedings in the Tribunal or if one prefers to use the terminology of Section 48 of the Victorian Civil and Administrative Tribunal Act the invocation of the Tribunal's review jurisdiction with respect to taxation enactments. That being the case any provision of the Victorian Civil and Administrative Tribunal Act which seeks to deal with these matters as Section 126 might be regarded as doing is inconsistent with the Taxation Administration Act and the Taxation Administration Act prevails.
2. The situation stands in contrast to the one confronting the Court of Appeal in Bell v Transport Accident Commission [1998] VR 288 where the power to enlarge time for the commencement of a review proceeding commenced by a procedure similar to the one laid down in Section 48(a) of the Victorian Civil and Administrative Act was found to be in no way inconsistent with the enabling enactment, in that case Section 77 of the Transport Accident Act 1986. Here Section 126 and the provision for referral simply do not fit together. The fairness of this system and the proportionality of its results are matters for Parliament to determine.
3. This view of things is reinforced by a comparison of the regime existing now with the one which Mr Gibson considered in the Springvale Islamic case. There, he complained of the injustice entailed in the lack of power to enlarge time within which a taxpayer could lodge a valid objection. Section 100 of the Taxation Administration Act now removes this injustice. It is significant and noteworthy that no such power has been given either to the Commissioner or in terms to the Tribunal to enlarge the time within which a taxpayer may make a valid request for referral. Even although the maxim expressio unius est exclusio alterius must be used cautiously, it may be dangerous at times Daniels Corporation International v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543, 560; Davidson v Victorian Institute of Teaching [2006] VSCA 193 [13] per Neaue JA; nevertheless here we are drawing contrasts between provisions of the same statute which are part of an integrated whole prescribing a particular procedure. In my view this is one of the occasions when the maxim is properly invoked and provides proper guidance.
4. Pursuant to Section 71(5) of the Victorian Civil and Administrative Tribunal Act 1998 I confirm the Principal Registrar's rejection of this application.