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1. There is no express provision in the legislation that the statutory provisions constitute an exclusive code so as to preclude an action under the general law. Reference is made to the decision of the Full Court in Comptroller-General of Customs (NSW) v Kawasaki Motors (No.2) (1991) 32 FCR 243. In that case, the Court held that s167 of the Customs Act, 1901 (Cth) provided the only method whereby an action for recovery of overpaid customs duty can be brought, where there is dispute between the owner and the Collector as to liability. The relevant provision was s167(4) which provided: "167(4) No action shall lie for the recovery of any sum paid to the Customs as the duty payable in respect of goods, unless the payment is made under protest in pursuance of this section and the action is commenced within the following times: ...." (Emphasis added). This language is express and unequivocal.
2. Nor can it be said, in the present case, that the common law remedy has been removed as a matter of necessary implication or clear language.
3. The statement of Spender J in Precision Pools Pty Limited v Commissioner of Taxation (1992) 37 FCR 554 at 565 is directly in point and ought to be applied to the present case. At that page his Honour said in relation to s26 of the 1930 Act: "First, in my opinion s26, unlike s12A of the Procedure Act, is not expressed in terms limiting a right to recover. It is expressed in terms of facilitating a refund in certain circumstances and conferring a discretion on the Commissioner to refund an amount of tax in certain circumstances. One would expect clearer words if the section were to have the effect of limiting a right under the general law to be repaid moneys either pursuant to an agreement or in circumstances where the payments were not made voluntarily but under compulsion, the recovery being sought as money had and received."
4. As the provisions are remedial in nature, the Court should approach the question on the basis that the provisions were designed to grant rights and not to exclude them.
5. The approach of Lindgren J fails to take into account the developing and fluid nature of the common law. The provisions under consideration should not be read so as to exclude rights which may subsequently be revealed as part of the general law. This submission rests on the consideration that both legislative regimes predated the High Court decision in David Securities (supra), which was delivered on 7 October 1992. That case altered the general law of Australia so as to recognise that money paid under a causative mistake of law could be recovered subject to certain defences and on certain conditions. As this development had not taken place when each of the legislative regimes came into existence they cannot be read as designed to preclude recovery arising from a subsequent development in the general law recognising a right to recovery for money paid under a causative mistake of law. Cf Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319 at 322-323, per Brennan J.
6. Any right under the general law to recover overpaid sales tax would be an action by the taxpayer against the Commonwealth of Australia and not the Commissioner of Taxation. Sections 26(1), (1A) and section 12C, of the Procedure Act 1934 restrict themselves to circumstances in which "the Commissioner" is to refund an amount of overpaid sales tax. Hence they do not apply to an action under the general law against the Commissioner.
7. In 1995 a Bill was proposed which included a provision excluding refunds not expressed and provided for. This Bill has never been passed. Notwithstanding this, the appellant submits that the proposed provisions would have been pointless if the pre-existing law was that there was no general law right to recover sales tax and this was to be excluded by the proposed amendments.
8. The circumstance that a comprehensive range of review and appeal procedures were available to a taxpayer under the statutory regimes is not to the point and cannot be invoked to support an argument that the general law right has been excluded.
9. In the alternative, if the statutory regimes constitute a code excluding the common law right, then the taxpayer should be afforded an opportunity to refund to its customers the amount paid on and the court should make orders accordingly. Any argument to the contrary involves, it is said, a "capricious" application of the legislation and should not be accepted, because the taxpayer would be forced to run a commercial risk of refunding the amount passed on to customers in advance of having the entitlement to a refund determined. Case Law In Otto Australia Pty Limited v Commissioner of Taxation (1991) 28 FCR 477, the Full Court considered the question whether sales tax passed on to customers in the form of an undisclosed component of the sale price, as opposed to it being specified as a separate element apart from the sale price, could be said to have been "passed on within section 11(1) and (1)(A) of the Sales Tax Assessment (No.5) 1930 (which were in identical terms to subs26(1) and (1A) of the 1930 Act). Sheppard J considered that the sales tax had been "passed on" and went on to say at 480-481: "In those circumstances, the Commissioner could not have been satisfied that the tax had not been passed on with the consequence that s11(1) could not have any application." Burchett J said at 483: "... I agree with Sheppard J that s11(1A) of the Sales Tax Assessment Act (No 5) 1930 (Cth) provides an insuperable obstacle to the appellant's success." In that case, the question as to whether there was a co-existent right under the general law to the refund of sales tax, in addition to the right under the legislative scheme was not argued. Nevertheless, the observations of their Honours provide some guidance with respect to the questions presently before the Court. The judgments of Hill and Heerey JJ In Kawasaki (supra) enunciate, in my view, an appropriate approach to the interpretation of the statutory schemes. In that case, their Honours were considering whether the statutory scheme relating to recovery of an overpayment of import duties under s167 of the Customs Act 1901 (Cth) precluded an action at general law. At page 263 their Honours said: "If s167 were but an alternative procedure, it is hard to see, assuming that an action for money had and received could be brought against the Comptroller, why any person would adopt the procedure in s167, which would seem to be greatly more restrictive that applicable at common law. Further, the Comptroller has the advantage of the deeming of the duty to be correct in the statutory context of a s167 action. There would be no such deeming provision applicable to a common law action. As noted above in the Kawasaki case, s167(4) provided "no action shall lie ... unless the payment is made under protest in pursuance of this section". Accordingly, it was not necessary for the court to consider whether there was an exclusion of an action under the general law, by necessary implication. The issue before Spender J in Precision Pools Pty Limited v Commissioner of Taxation (supra), relied on by the applicant in this proceeding, was whether an agreement between the Commissioner and the claimant as to the repayment of tax could be enforced. It was decided that the Commissioner was obliged under the agreement to repay the moneys. His Honour's remarks in relation to the operation and effect of s26 of the 1930 Act in relation to recovery rights under the general law were clearly obiter. It appears from his conclusion that he considered the agreement was enforceable independently of statute and was not to be read as "subject to" s26. In Woolwich Equitable Building Society v Inland Revenue Commissioners [1993] AC 70, the House of Lords held that the law of restitution should be reformulated so as to recognise a prima facie right of recovery based solely on payment of money pursuant to an ultra vires demand by a public authority. In that case, tax was paid under regulations without prejudice to the taxpayer's right to recover the sums if the regulations were void. The regulations were subsequently held void and a claim was brought for recovery of the moneys paid. It is significant that, in that case, the taxpayer's claim fell outside the statutory framework governing repayment of overpaid tax so that there was no statutory right to recover. A majority of their Lordships held that the taxpayer was entitled at common law to repayment of the sums from the dates of payment and to interest thereon. In the House of Lords, Lord Goff at 177 said: "I would therefore hold that money paid by a citizen to a public authority in the form of taxes or other levies paid pursuant to an ultra vires demand by the authority is prima facie recoverable by the citizen as of right. As at present advised, I am inclined to the opinion that this principle should extend to embrace cases in which the tax or other levy has been wrongly exacted by the public authority not because the demand was ultra vires but for other reasons, for example, because the authority has misconstrued a relevant statute or regulation. It is not however necessary to decide the point in the present case, and in any event cases of this kind are generally the subject of statutory regimes which legislate for the circumstances in which moneys so paid either must or may be repaid." (Emphasis added) At page 200 Lord Slynn remarked: "I do not consider that the fact that parliament has legislated extensively in this area means that no principle of recovery at common law can or should at this stage of the development of the law be found to exist. If the principle does exist that tax paid on a demand from the Crown when the tax was the subject of an ultra vires demand can be recovered as money had and received then, in my view, it is for the courts to declare it. In so doing they do not usurp the legislative function. I regard the proper approach as the converse. If the legislature finds that limitations on the common law principle are needed for reasons of policy or good administration then they can be adopted by legislation, e.g. by a short limitation period, presumptions as to the validity..." (Emphasis added) Lord Keith, dissenting said at 161: "To give effect to Woolwich's proposition would, in my opinion, amount to very far reaching exercise of judicial legislation. That would be particularly inappropriate having regard to the considerable number of instances which exist of Parliament having legislated in various fields to define the circumstances under which payments of tax not lawfully due may be recovered and also in what situations and upon what terms interest on overpayments of tax may be paid.... It seems to me that formulation of the precise grounds upon which overpayments of tax ought to be recoverable and of any exceptions to the right of recovery, may involve nice considerations of policy which are properly the province of Parliament and are not suitable for consideration by the courts." (Emphasis added) In the Woolwich case the common law claim was not excluded by any statutory regime. As can be seen some members of the House of Lords referred to the adoption of legislative regimes to cover and control the grounds on which, and the procedures by which, repayments could be claimed. These observations are consistent with the view that a detailed statutory regime may appropriately create, exclude, limit and control the exercise of rights to repayment and to preclude any general law rights to repayment freed of such restraints. Similar remarks were made in the Court of Appeal in that case. Cf 1993 AC at 101F per Glidewell LJ, Ralph-Gibson LJ (dissenting) at 124-125 and 132. Cf also Butler-Sloss LJ at 141-142. In the present case, it is contended for the appellant that there are two concurrent and alternative rights to repayment, each of which is independently available to the claimant. In the Royal Insurance case, s111(1) of the Stamps Act 1958 (Vict.) provided: "Where the [Commissioner] finds in any case that duty has been overpaid, .... he may refund to the company, person or firm of persons which or who paid the duty the amount of duty found to be overpaid." (Emphasis added) In that case, Royal Insurance paid amounts of tax which it believed to be due under the Stamps Act (Vict) but which were not legally due. The Court held that the Comptroller was bound to refund the amounts mistakenly overpaid under the general law of restitution. The Court held that once it was found that there had been an overpayment s111(1) conferred a discretionary power on the Comptroller to refund money overpaid but created no duty to make a refund. However, there was no residual discretion to refuse a refund under the section once the finding of overpayment had been made and there was a legal liability, subject to general law defences, to refund under the general law. As a result, the remedy granted in that case took the form of a direction to the Commissioner of State Revenue, the Comptroller's successor, to exercise the discretion in favour of the taxpayer and refund the amount in question. In the present case, it is significant that s26(1) of the 1930 Act is mandatory. It provides that where the Commissioner finds that tax has been overpaid the Commissioner shall either refund or apply the overpaid tax against any liability of the taxpayer. It is not a case of discretion. In its earlier form, prior to the 1984 Amendment, s26(1) was framed in discretionary terms, and the word "may" was used rather than "shall" . The amendment was made by Act No 123 of 1984. In Royal Insurance there was a converse history. The predecessor to s111(1) provided that the Comptroller of Stamps upon being satisfied that an overpayment was made shall apply to the Treasurer for a refund and the Treasurer shall without further or other authority than the Act refund the amount. That section was amended to provide for the discretion presently embodied in s111. The 1992 Act, of course, speaks simply in terms of "entitlement" and there is no question of any finding or discretion being a requisite element under that Act. The Present Case Firstly, I will consider the position under the previous legislation. In his judgment, Lindgren J classifies the overpayments in question as a "mere overpayments" as distinct, for example, from payments made on a demand under colore officii (as in Mason v The State of New South Wales (1959) 102 CLR 108),or payment made pursuant to ultra vires legislation as in Woolwich (supra). His Honour considered that, in the case of "mere overpayment" used in the above sense, the legislative provisions in force during each period were exhaustive and operated to exclude any general law right of recovery. His Honour did not consider the question whether all types of overpayment were so exhaustively and exclusively covered by the legislation but limited his reasoning to "mere overpayment".

As the question as to the existence of an exclusive code is one of statutory construction it is not appropriate, in my view, to approach the matter on the basis that the legislation constitutes an exhaustive code at least in some overpayment situations, but not necessarily in others. Section 26(1) simply refers to tax which has been "overpaid". There are no words which limit the Commissioner's duty to any particular type of overpayment or any particular circumstances of overpayment. This consideration is, in my view, central to the resolution of the questions posed. In my opinion, subs26(1) gives a right in all situations in which sales tax has been overpaid. Overpayment means the payment of a greater amount of tax than was lawfully payable. The subsection does not focus on the reasons which give rise to the overpayment, but rather on the circumstance that there has been in fact an overpayment, of tax. If one adopts a literal or natural reading of the words used, free from authority, s26 would operate immediately there has been an overpayment found by the Commissioner. The reason, ground or form of the overpayment is irrelevant. Accordingly, it is appropriate, as a matter of statutory construction, to consider whether the legislation in each period excludes all overpayments and not just whether it excludes one or more classes of overpayment. To properly carry out the statutory construction exercise involved in deciding whether there is an exhaustive and exclusive code it is relevant to consider whether all overpayments are covered by the legislation and not just whether one or more specific types of overpayment. As his Honour points out the words "in any case" in subs26(1) support the conclusion that the statutory right is to be given a wide reading. In other words, it is directed to overpayment made in any case or in every case where there has been a greater amount paid than that which is legally due, regardless of the circumstances leading to or the nature of the overpayment. As subs26(1) always operates whenever there is an overpayment found by the Commissioner, it would clearly include overpayments under a mistake of law, such as the present case. Accordingly, once there is admitted payment under a mistake, the Commissioner is under a duty to refund. Where applicable, s26(1A) provides a defence. The legislature has specifically addressed the circumstances where tax has been passed on and not refunded. In such circumstances, there shall be no recovery under s26(1). As enacted in 1930, subsection 26(1) provided: "26-(1) Where the Commissioner finds in any case that tax has been overpaid, he may refund the amount of tax found to be overpaid." (Emphasis added) The section has been the subject of several amendments but as originally enacted it was sufficiently wide to cover circumstances where the refund claim was made on the ground of a mistake of fact or law. Indeed, it was wide enough to cover every case or instance of recovery of overpaid tax. To this extent it went beyond the general law in Australia, as it was then understood. On 7 October 1992, the High Court handed down its judgment in David Securities. Until 7 October 1992 then the general law of Australia, as understood and declared by the Courts, did not permit recovery for money paid under a mistake of law. Two results flow from this. First, it does not matter in the present case for the purpose of considering the effect of the statutory scheme that the general law did not permit recovery of moneys paid under a mistake of law, because the statute always provided, from its inception in 1930, for recovery of overpayment, regardless of the type of overpayment. Second, the statute provided a new and additional remedy which was not then understood to exist under the general law. In creating this additional statutory right, the statute imposed specific conditions, limitations and exclusions in relation to the availability and machinery for exercising that right. In my view, the effect of the Act in 1930 was to transform all common law rights as then understood, into statutory rights and to exclude the common law rights. The 1930 Act went further. It added new and broader statutory rights which went beyond the common law. In particular, it gave a statutory right to recover for a mistake of law. As a result, not only was the field of recovery at common law for overpayments made by mistake, or for any other reason comprehensively "covered", but the section went beyond this and created new rights and controlled these rights by specific statutory exclusions, limitations and procedures set out in the legislation. The Procedure Act is also important. Section 12B expressly limits the right to a refund of sales tax where the action is not brought in accordance with the time limit set out in the section. Also directly applicable to a claim for a refund under subs26(1) is s12C of the Procedure Act which directs the Commissioner not to make a refund for an overpayment of tax, unless within 3 years from the date of payment he finds that a person has made an overpayment of tax, or unless a written request is made, and a return lodged with the Commissioner within 3 years. The time period runs from the date on which the tax was overpaid. Although the above provisions were enacted after the 1930 Act, nevertheless they impose specific conditions and limitations on the recovery of overpaid sales tax which is provided for by subs26(1) and they form an important part of the statutory regime in force at the time and the overpayments were made.

It is clear that s26(1A) is designed to preclude recovery of overpaid sales tax to the extent that the sales tax has been passed on and has not been refunded. The detailed express and specific provisions would be unnecessary if a claimant was entitled to claim a refund of overpaid sales tax under the general law right, freed of the specific constraints referred to above. The Court will be reluctant to apply such an interpretation where there is a viable and reasonable alternative interpretation which avoids this result. It must be borne in mind that the obligation to pay sales tax and the procedures by reference to which such tax is to be assessed, paid, collected and adjusted, arises from statute and not from agreement or from the general law. The subject matter of the tax is a statutory debt. The whole regulatory framework is legislative and not consensual in character. Against this background it is not inappropriate that the statutory regime should be interpreted to cover the field and not allow actions under the general law where the result would be to bypass carefully formulated legislative controls. The 1930 Act in its original form provided,in Part VII,for procedural machinery by way of objection, review and appeal in respect of some decisions by the Commissioner which a taxpayer wished to challenge. As originally enacted in 1930, these provisions (ss40-44) did not provide for a challenge to a s26(1) decision not to make a refund. However, as the result of a series of amendments, the review and appeals structure originally set out in Part V11 of the 1930 Act was replaced in 1986 as result of the Taxation Boards of Review (Transfer of Jurisdiction) Act 1986 (Cth), which provided a comprehensive procedure in relation to include a decision not to make a refund under s26(1). This regime, was later superseded by the provisions of Part IVC of the Taxation Administration Act 1953 (Cth) ("the Administration Act"), inserted by Act No. 216 of 1991. That Part provided for an elaborate system of review which included inter alia decisions of the Commissioner, relating to a taxpayer's claim for credit under s51 of the 1992 Act. An extensive summary of the relevant objection, review and appeal procedures is set out in the judgment of Lindgren J and it is not necessary to repeat them. Suffice it to note, that there have been at all relevant times, detailed specific statutory review procedures in place to define and regulate the way in which challenges can be made and pursued in respect of decisions made by the Commissioner which included decisions relating to claims for the refund of amounts of sales tax which have been overpaid. The existence of these entitlements, conditions and procedures also lends support to the conclusion that the legislative regime under the 1930 Act as amended was intended to be exhaustive as to the way in which, and the basis on which, claims for refunds of overpaid sales tax could be obtained. It is unlikely, to say the least, that these procedures and entitlements, would be cast in such a comprehensive and detailed form, if it was envisaged that alternative rights under the general law could also be availed of with the consequence that the procedural machinery was bypassed. In my view, it is permissible to take account of the statutory objection, appeal and review machinery as it stood at the time when the tax was overpaid, in order to ascertain whether the legislation was intended to cover the field and exclude any alternative avenues of recovery under general law. Having regard to the above considerations I am of the opinion that in the first period the general law right of recovery was by necessary implication excluded by the statutory regime then in place. Second Period Under the 1992 Act, the conclusion that the statutory regime is exclusive and exhaustive of a general law right to a refund of sales tax, in my view, is even clearer than under earlier legislation. The 1992 provisions were also enacted at a time when there was no acknowledged common law right of recovery for mistaken overpayments. The 1992 Act was assented to on 30 September 1992, 7 days before the High Court decision in David Securities. The 1992 Act is exclusive in its express terms and embodies an exhaustive statement of recovery rights in circumstances. (Section 51(1) refers to Table 3 which sets out "the" circumstances in which a claimant is entitled to a credit). This is the language of exclusion and not of collateral or alternative remedy. Like the earlier legislative scheme, s51(1) focuses on the fact of overpayment and is not concerned with the type or nature of the overpayment. It is designed to cover all instances of overpayment. It defines limits and defences. Moreover, it does not require the Commissioner to make a finding nor does it provide for any exercise of discretion by the Commissioner. Section 51(1) speaks in terms of "entitlements". Further, in relation to disputes or challenges the detailed appeal and procedures set out in the Administration Act apply. General As the term "overpayment" used in s26(1), as originally enacted is sufficiently extensive to cover all types of overpayment, it is not necessary to enter into a discussion of the appropriate judicial effect of the decision in David Securities, which might otherwise arise as a result of the fact that it was not until 7 October 1992, 7 days after the 1992 Act came into force on 30 September 1992, that the general law of Australia first acknowledged a right to recover an overpayment arising from a causative mistake of law in certain circumstances and subject to certain defences. There is no substance, in the argument that the 1930 and 1992 Acts only apply to a claim against the Commissioner, whereas the general law right applies to a claim against the Commonwealth. Authority makes it clear that the Commissioner is acting as an officer of the Commonwealth and therefore nothing turns on this suggested distinction. Cf James v Federal Commissioner of Taxation (1957) 97 CLR 23 at 35. In the judgment under appeal, his Honour declined to exercise his discretion to grant a declaration based on an undertaking by the claimant to refund in certain circumstances. It is not necessary to consider whether his Honour was correct in so doing, as it is common ground that the only matter presently before this Court is whether his Honour was correct in the answers which he gave to the questions in the Stated Case. The appellant advanced an argument based on Clause 130A of the proposed Bill which was not passed, entitled "Taxation Laws Amendment (Budget Measures) Bill 1995. Clause 130A(1). This clause proposed that if the Commonwealth would be liable to refund a payment of an amount paid as sales tax that was not legally payable and the liability would arise because of the common law or for any other reason, then the Commonwealth should not be liable to refund the payment. It is submitted that this provision would have been unnecessary if Parliament considered that there was no common law right. There are two answers to this. First, a Bill which has not been passed can be of no assistance in determining the construction of an Act of Parliament. Second, such a provision is equally consistent with an intention to declare and clarify pre-existing law and not to change it. Conclusions In my view, the statutory regimes in place in the first and second period are exhaustive and exclude any rights at general law to recover overpaid tax in the present case. Accordingly, I would dismiss the appeal with costs. I certify that this and the preceding twenty-eight (28) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Tamberlin. Associate: Date: 26 February 1996

IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) GENERAL DIVISION ) No. NG650 of 1995

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: CHIPPENDALE PRINTING CO PTY LIMITED Appellant AND: THE COMMONWEALTH OF AUSTRALIA First Respondent THE COMMISSIONER OF TAXATION Second Respondent CORAM: Sheppard, Tamberlin and Lehane JJ PLACE: Sydney DATE: 26 February 1996 REASONS FOR JUDGMENT LEHANE J: The appellant (to which I shall refer as Chippendale) seeks to recover from the respondents certain amounts which it paid to the second respondent (to whom I shall refer as the Commissioner) as sales tax. Chippendale claims that the Commissioner (or the first respondent, to which I shall refer as the Commonwealth) is obliged to repay the amounts in question because they exceeded the amount owing by Chippendale to the Commissioner for sales tax, having been paid by Chippendale under a misapprehension of the extent of its liability to tax: that is, under a causative mistake of law.

Questions for separate determination Lindgren J ordered that two questions be decided separately from any other question in the proceedings. His Honour's order for separate decision made on 5 May 1995, as varied by orders made by his Honour on 4 August 1995, is as follows: AN ORDER THAT, the facts in paras (a), (b), (d), (e), (f) and (g) below ("the Agreed Facts") being agreed to by the parties, questions 1 and 2 below be decided separately from any other question in the proceedings on the assumption that the facts alleged by the applicant and referred to in para (c) below are true ("the Assumption"): (a) The applicant was during the period 1 July 1991 to 31 December 1992 ("the first period") and during the period 1 January 1993 to 30 June 1994 ("the second period") a manufacturer of goods ("the subject goods") which it sold by retail. (b) In respect of the sales of the subject goods made during each of the first period and the second period the applicant paid sales tax to the second respondent. (c) The applicant alleges that by reason of a mistake on its part the applicant paid to the second respondent in each of the first period and the second period an amount of sales tax which, by an amount ("the overpaid sales tax"), was in excess of the amount which under applicable sales tax legislation it was required to pay in respect of its sales of the subject goods. (d) The sales tax so paid by the applicant to the second respondent (including the allegedly overpaid sales tax) was passed on by the applicant to the purchasers of the subject goods and has not been refunded by the applicant to the purchasers to whom it was passed on. (e) The basis upon which the applicant calculated its sales tax liability in respect of the subject goods was not at the time of payment disclosed or known to the second respondent.

(f) The applicant has made an application to the second respondent under the Sales Tax Legislation applicable during each of the first period and the second period for a refund of the overpaid sales tax. (g) The applicant has tendered to the Court the undertaking comprised in the Affidavit of 1 March 1995 of Edwin Murrell Gardiner and in paragraph 35 of his affidavit of 30 November 1994, copies of which are attached.

1. On the basis of the Agreed Facts and the Assumption, do the provisions of the sales tax legislation applicable to sales of the subject goods during the first period deny to the applicant any entitlement it may have to a refund or to recovery from the respondents or either of them of the overpaid sales tax paid in respect of the subject goods sold by the applicant in the first period?
2. On the basis of the Agreed Facts and the Assumption, do the provisions of the sales tax legislation applicable to sales of the subject goods during the second period deny to the applicant any entitlement it may have to a refund or to recovery from the respondents or either of them of the overpaid sales tax paid in respect of the subject goods sold by the applicant in the second period? The affidavits referred to in the order are those of the managing director of Chippendale; the relevant paragraphs of the affidavits comprise undertakings that if it is found that overpayments of sales tax have been made, but that it is "a pre‑condition of Chippendale receiving a refund" that it has first refunded the amounts which it has passed on, Chippendale will refund the amounts passed on "before it receives the refund from the Commissioner". Lindgren J answered each of the questions for separate decision "yes" and refused, in the exercise of his discretion, to make a declaration as to overpayment or as to the amount of any entitlement (i.e. to a refund from the Commissioner) which Chippendale might be found to have if it should first refund the amounts of overpaid tax which it had passed on. Accordingly, his Honour dismissed Chippendale's application. Chippendale now appeals against his Honour's decision. The legislation Paragraph (a) of the order for separate decision refers to two periods. The significance of that is that the sales tax legislation applicable until the end of the first period was then replaced by new legislation, principally the Sales Tax Assessment Act 1992 (to which I shall refer as the 1992 Act): the 1992 Act applied throughout the second period. The principal provision relevant to this appeal, applicable during the first period, is s 26 of the Sales Tax Assessment Act (No. 1) 1930 (to which I shall refer as the No. 1 Act); s 12C of the Sales Tax Procedure Act 1934 (the Procedure Act) is relevant also. Sub‑sections 26(1) and (1A) of the No. 1 Act are as follows: 26(1) Subject to sub‑section (1A), where the Commissioner finds in any case that tax has been overpaid by a person, the Commissioner shall -- (a) refund the amount of any tax overpaid; or (b) apply the amount of any tax overpaid against any liability of the person to the Commonwealth, being a liability arising under, or by virtue of, an Act of which the Commissioner has the general administration, and refund any part of the amount that is not so applied. 26(1A)Sub‑section (1) does not apply in relation to any tax paid by a person unless the Commissioner is satisfied that the tax has not been passed on by the person to another person, or, if passed on to another person, has been refunded to the other person. Sub‑section 12C(1) of the Procedure Act reads: 12C(1)Where the Commissioner finds that any person has made an overpayment of tax, the Commissioner shall not make any refund to that person in respect of that overpayment unless he so finds -- (a) within a period of three years; or (b) on consideration of a claim in writing for that refund lodged with the Commissioner within a period of three years, from the date upon which the overpayment was made.

For the second period, the crucial provision is s 51 of the 1992 Act, which is as follows: 51(1) Table 3 sets out the situations in which a claimant is entitled to a credit. 51(2) A claimant is not entitled to a credit for an amount of tax for which a credit entitlement has previously arisen (whether for the claimant or another person). 51(3) A claimant is not entitled to a credit unless the claim for the credit is lodged within 3 years after the time when the credit arises. 51(4) A claim for a credit must be made in the form and manner approved by the Commissioner, and must be accompanied by such supporting evidence as the Commissioner requires.

The item in Table 3 referred to in sub‑s (1) is: