2 On 14 May 2004, the Tribunal received an application by Di Dio for an order under s 127 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) that the applicant's objections to land tax assessment Numbers 031563170 and 026925430 be amended so that they refer to :

as land in respect of which an exemption from land tax is claimed on the grounds in those objections.

3 At a Directions Hearing on 14 May 2004, the Tribunal set that application down for hearing as a preliminary issue, and the matter came on before me on 29 June 2004.

4 Under the Land Tax Act 1958 (the Act) land tax is assessed for each year on the total unimproved value of all lands of which each owner is the owner at midnight on 31 December immediately preceding the year for which such tax is assessed. (s 8).

5 Section 9 of the Act exempts from land tax certain lands, including certain lands used for primary production.

6 The mechanism for making objections to assessments is set out in s 24A of the Act, and sub-section (1) states as follows :

(1) Any person who is dissatisfied with the assessment of the Commissioner may give to the Commissioner within 60 days after service of the notice of the assessment an objection in writing against the assessment stating fully and in detail the grounds on which he relies but the Commissioner must not entertain any objection relating to the unimproved value of land where the assessment is based on a valuation made under the Valuation of Land Act 1960.

7 If a taxpayer is dissatisfied with the Commissioner's decision on an objection, s 25 sets out a mechanism for requesting the Commissioner to refer the decision to this Tribunal. Section 25 states :

(1) If the taxpayer is dissatisfied with the decision of the Commissioner on the objection he may within 60 days after notice of the Commissioner's decision has been given to him (except in the case of an objection relating to the amount at which the unimproved value of any land has been assessed by a rating authority within the meaning of the Valuation of Land Act 1960 not being the Commissioner) -

(a) in writing request the Commissioner to refer the decision to the Victorian Civil and Administrative Tribunal for review; or

(b) in writing request the Commissioner to treat his objection as an appeal and to cause it to be set down for hearing at the next sittings of the Supreme Court.

(2) If within 30 days the Commissioner does not refer the decision or cause the objection to be set down for hearing (as the case may be) the person making the request may at any time thereafter give him notice in writing to do so, and the Commissioner shall within 30 days after receiving the notice refer the decision or cause the objection to be set down for hearing accordingly.

(3) Notwithstanding the provisions of sub-section (2), the Commissioner may within 30 days after receiving a request to refer a decision for review or treat an objection as an appeal require the taxpayer by notice in writing to give further and better particulars of his objection and if, within 30 days after the giving of the notice -

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

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

8 In brief then, a person has 60 days to lodge an objection to an assessment and after notification of decision on the objection, has a further period of 60 days to request a referral to the Tribunal. If a request for a referral is made s25(2) and (3) then apply. There is no provision in the Act itself for the period of 60 days to request a referral to be extended.

9 Di Dio was the owner of four adjacent parcels of land at the time relevant for both the 2001 and 2002 assessments. In both assessments each parcel of land is separately identified by reference to an address and a land 1d number.

10 On 13 July 2001, the Commissioner issued assessment No 026925430 land 1d number regarding the four properties (2001 assessment). The assessment was made with respect to all lands owned as at midnight on 31 December 2000. Lots A, B and C were assessed for land tax but, 450 Derrimut Road was exempted on the basis, as I understand it, that it was primary production land and as such, exempt from land tax.

11 On 26 July 2001 Di Dio, through its accountants, lodged an objection to assessment No 026925430 in respect of the lots assessed for land tax, ie Lots A, B and C.

12 On 15 May 2002, the Commissioner disallowed the objection to the assessment in respect of Lots A, B and C.

13 No request was received by the Commissioner to have the decision on that objection referred to the Tribunal within the 60 days as provided under s 25A of the Act.

14 On 26 July 2002, the Commissioner issued an amended 2001 assessment. The amended 2001 assessment (amended 2001 assessment) again identified the four parcels of land separately, but the Commissioner had withdrawn the exemption in respect of 450 Derrimut Road. That amended 2001 assessment gave rise to a new right of objection, but solely with respect to Lot 450 Derrimut Road. This is so because of the operation of s 19 of the Act which provides that

The Commissioner may from time to time amend an assessment by making such alterations or additions to it as he thinks necessary to ensure its completeness and accuracy, and shall notify to the taxpayer affected every alteration or addition which has the effect of imposing any fresh liability or increasing any existing liability and unless made with the consent of the taxpayer every such alteration or addition shall be subject to objection in the same manner and to the same extent as the original assessment but the validity of an assessment shall not be affected by reason only that any of the provisions of this Act have not been complied with.

15 Di Dio through its solicitors lodged an objection to the amended 2001 assessment, claiming that 450 Derrimut Road (Land 1d reference 012750299) was exempt land.

16 On 15 April 2003, the Commissioner disallowed the objection in respect of 450 Derrimut Road.

17 On 13 May 2003, within the 60 day period provided under s 25A, Di Dio, through its solicitors wrote to the Commissioner referring to the decision on the objection and requesting the Commissioner to refer the decision to this Tribunal for review. By letter dated 3 June 2003, within 30 days of the receipt of the request for referral, the Commissioner forwarded to Di Dio's solicitors, pursuant to s 25(3) of the Act, a request for further and better particulars of objection to Amended Land Tax Assessments 026925430 and 031563170. It was referred to the Tribunal and received on 29 March 2004 and is the subject of application T19/2004.

18 The second Application, number T20/2004 concerns assessment No 0131563170. That assessment was issued on 26 July 2002 (the 2002 assessment). It is titled "Amended 2002 Land Tax Assessment Notice" and relates to lands owned at midnight on 31 December 2001. It separately identified the four parcels of land. Apparently, there is no earlier 2002 Land Tax Assessment Notice.

19 The 2002 assessment, assessed all four lots; 450 Derrimut Road and Lots A, B and C.

20 On 30 September 2002, Di Dio through its solicitors lodged an objection to the assessment. The objection only referred to the land at 450 Derrimut Road, giving its land 1d reference. The objection did not mention the other three parcels of land, Lots A, B and C, or their land 1d references. The objection specified "cattle raising" as the category of land use for which exemption was claimed.

21 On 15 April 2003, the Commissioner disallowed the objection in respect of 450 Derrimut Road. It will be noted that the Commissioner disallowed the objection to the 2002 assessment on the same day as the Commissioner had disallowed the objection to the 2001 assessment.

22 On 13 May 2003, Di Dio through its solicitors, requested the Commissioner to refer the decisions of 15 April 2003 disallowing its client's objections to assessments 026925430 and 013563170 to this Tribunal.

23 By letter dated 3 June 2003, within 30 days of the receipt of the request for referral, the Commissioner forwarded to Di Dio's solicitors, pursuant to s 25(3) of the Act, a request for further and better particulars of objection to Amended Land Tax Assessments 026925430 and 031563170.

24 As will be recalled, the Tribunal received the referrals on 29 March 2004.

25 Di Dio has applied under s127 of the VCAT Act to amend the objections to both assessments, so that all four parcels of land are included in the objections referred to the Tribunal

(1) At any time, the Tribunal may order that any document in a proceeding be amended.

(2) An order under sub-section (1) may be made on the application of a party or on the Tribunal's own initiative.

27 The affidavit of Gerard Bean, filed in support of the application before me sets out the reasons for the application. So far as is relevant, it states :

1. I am a partner of Phillips Fox and have supervised the conduct of this matter on behalf of our client, Di Dio Nominees Pty Ltd.

2. Phillips Fox prepared and lodged objections to Land Tax Assessments No 031563170 and 026925430 the subject of this reference to the Tribunal.

3. The objections referred to above have not included all relevant parts of the land subject to Assessments No 031563170 and 026925430.

4. As they stand, the objections state that the exempt land is 450 Derrimut Road. However, the objections should refer to all assessed lands referred to in the assessment as being exempt from land tax, and accordingly, should refer to :

* Lot A, Derrimut Road, Wyndham - 027933268, A S404251;

* Sayers Road, Wyndham - 027933292, B S404251; and

* Lot C, Sayers Road, Wyndham - 027933323, C S404251

5. At the relevant times, the Farm land referred to above was part of a farm known by our client as the Lamiro Stud Farm, which abutted Derrimut Road on one side and Sayers Road on the other side.

6. In our office, we have been referring to the Farm Land as the Derrimut Road land. The land has over a period of time been subdivided and some parts of the land have been sold.

7. The first objection that we lodged on behalf of our client was Land Tax Assessment number 031565148 and this objection solely related to 450 Derrimut Road. The grounds of objection for each other assessment have been the same as for the first objection for 450 Derrimut Road. We appear to have been confused by using our generic internal reference to the Derrimut Road land. When we completed the objections for the other assessment, we carried over not only the same grounds of objection but also the same reference to 450 Derrimut Road, rather than also adding in the part of the Farm Land.

8. It was our client's intention to claim exemption over all the parts of the Farm Land, not simply the part with the address of 450 Derrimut Road, as these parts of the Farm Land had all formed part of the same Lamiro Stud Farm.

9. I am informed by our client's accountant that the Farm Land is fenced but the fencing of the Farm Land does not reflect the different titles of the different parts of the Farm Land.

28 The applicant submitted that the Tribunal has power under s 127 of the VCAT Act to order that any document in a proceeding be amended.

29 Mr Bornstein, counsel for the applicant, referring to Dr Bean's affidavit, submitted that the four titles made up a single property and that the applicant intended its objections to relate to the entire property and was not responsible for the error; the error being the solicitor's error in preparing the objections so that they related to only the one title.

30 Mr Bornstein submitted that the Commissioner's decision with respect to the objections applied equally to all four titles, and that the Commissioner would not be prejudiced by the amendment, because the issues with respect to the title the subject of the objections lodged were no different with respect to the other three titles.

31 Counsel submitted that making the order requested would promote consistency in the event the applicant was successful. If one title was found to be exempt, then all four should be exempt as together they formed a single property. Such an inconsistency should not be permitted where the sole reason for it is an error on the part of the applicant's solicitors in preparing the objections and where the Commissioner would suffer no prejudice were the amendment allowed.

32 Mr Bornstein submitted that the Tribunal had power under s 126 of the VCAT Act to extend time for requesting a referral under s 25(1) of the Act. He also referred to the provision of the Taxation Administration Act 1997 (Vic) and in particular s 7(1)(h) and s 100 which gives the Commissioner power to permit a person to lodge an objection after the 60 day period, suggesting it had application.

33 Mr Cosgrave, counsel for the Commissioner, submitted that the Tribunal had no power to allow the amendments sought, and that what Di Dio was seeking to do by its application was to seek review "out of time".

34 In support of his submissions, Counsel drew my attention to the reasons given in The Springvale Turkish Islamic Cultural Society of Victoria v Comptroller of Stamps (Vic) a decision of the Administrative Appeals Tribunal on 3 August 1988.

35 Mr Cosgrave referred first to the 2002 assessment. He submitted that where there had been no objections made to the assessments for Lots A, B and C, the Tribunal simply had no power to deal with the matter. What was really sought here, he submitted was an extension of the 60 day time limit under s 24A of the Act within which one could lodge an objection.

36 He submitted that unlike the provisions of the Commonwealth Income Tax Assessment Act together with the Taxation Administration Act 1953, which allowed for the possibility of the Commissioner agreeing to extending time to lodge an objection, there were no similar powers under the relevant Victorian legislation.

37 So far as the 2001 assessments were concerned, Mr Cosgrave pointed out that the request for referral made by Di Dio related to an amended assessment issued not the original assessment issued for 2001. He submitted that in these circumstances, s 19 of the Act operated to give rights of review only to the fresh liability created by that amended assessment. It did not give any fresh rights to request a referral for Lots A, B and C. Where Di Dio had not requested a referral of the decision on the objections to Lots A, B and C within the 60 days provided in s 25, he submitted that the Commissioner was entitled to treat the original assessment as having been accepted for Lots A, B and C.

38 Counsel submitted that even though objections had been made to the assessments for Lots A, B and C, the Tribunal could not use s 126 of the VCAT Act to extend the 60 day period within which one could request the Commissioner to refer the decision or the objection to the Tribunal under s 25 of the Act.

39 This was so Mr Cosgrave submitted, because s 126 of the VCAT Act could not apply to s 25(1) of the Act . Whilst s 126 gave the Tribunal discretion to extend the time to commence a proceeding, here there was no proceeding for Lots A, B and C and the making of a request under s 25(1) could not commence one. He submitted that when one read s 25 as a whole, the making of a request was an anterior step. It was the referral by the Commissioner that commenced the proceeding, not the request.

40 Mr Cosgrave submitted that the provisions of the Taxation Administration Act 1997 (Vic) referred to by Mr Bornstein did not apply to the Land Tax Act 1958. He referred to s 4 of the Taxation Administration Act 1997 (Vic) which defined the taxation Acts to which that Act refers, pointing out that there was no reference in s 4 to the Land Tax Act 1958. Any reference in s 7 of the Taxation Administration Act 1997 (Vic) to "objections, reviews and appeals", he submitted, had to be read in the context of it being referable to the legislation as defined in s 4.

41 The objections before the Tribunal for review clearly concern objections only to the Assessment of 450 Derrimut Road. It is clear on the assessment notices that each of Lots A, B and C and 450 Derrimut Road have always been separately identified and listed; each having different addresses and different valuations.

42 Is there any basis upon which the Tribunal can amend the objections to include Lots A, B and C the effect of which would be to give the Tribunal power to entertain a review of the assessment of Lots A, B and C where otherwise the Tribunal would not have that power?

43 In my view, there is no basis for amending either objection. My reasons for forming that view are different for each matter before the Tribunal.

44 Starting with the 2002 assessment. It is titled "Amended 2002 Land Tax Assessment Notice", although there is no other assessment for the year ending 31 December 2001.

45 The difficulty faced by Di Dio with respect to this assessment is that no objection was lodged to the assessments for Lots A, B and C within the 60 days after service of the assessment as required by s 24A(1) of the Act.

46 Essentially, I agree with the submissions made by Mr Cosgrave that in those circumstances the Tribunal has no power to make the amendment sought.

47 A similar situation was considered by Member Gibson, sitting as a member of the Administrative Appeals Tribunal in the Springvale Turkish case. Whilst that case involved a consideration of the provisions of the Stamps Act 1958, the provisions concerning objections and appeals in that legislation are substantially similar to the procedures for objections and reviews before me in the Land Tax Act 1958.

48 One of the issues Member Gibson considered in that case was whether there must be a valid objection before you could have a valid appeal to the Administrative Appeals Tribunal. He found that :

..., the legislative scheme is that for a taxpayer to have a right of appeal under sec. 33B, there must first be an objection that complies with sec. 33A; the jurisdiction of this Tribunal depends on there being a valid request for reference of a decision on a valid objection.

49 Given that there has been no objection to the Assessments for Lots A, B and C, I am satisfied that the Tribunal has no jurisdiction. In those circumstances, I cannot make the order sought amending the objection currently before the Tribunal to include Lots A, B and C.

50 The facts surrounding the 2001 assessment are different. Di Dio did lodge objections to the "original" 2001 assessments of Lots A, B and C within the 60 days provided under s 24A. The Commissioner made a decision on those objections. However, no request for referral of that decision was made within the 60 day time limit in s 25(1).

51 Separately of course, there was a request for referral of the decision on the objection to the amended 2001 assessment issued, which it will be recalled, removed the exemption for 450 Derrimut Road, and which is the subject of the referral in T19/2004.

52 I agree with Mr Cosgrave that the request for referral before me relates to the amended 2001 assessment and that s 19 of the Act operates only to give rights of review of any fresh liability, and does not give any fresh rights of review for Lots A, B and C. I also agree with his submissions that in effect Di Dio is seeking a review "out of time".

53 Is there any power to extend the 60 day time limit provided in s 25 of the Act so that Di Dio can make a request to refer?

54 Section 25 imposes a statutory limitation on the time within which one may request a referral of a decision on an objection to the Tribunal. Unlike the provisions, for example, of the Taxation Administration Act 1997 (Vic), there is no power under the Act conferred on the Commissioner to extend that time. For the reasons submitted by Mr Cosgrave, I am satisfied that the Taxation Administration Act 1997 (Vic) has no application to matters which arise under the Land Tax Act 1958.

55 Does the Tribunal have power under s 126 of the VCAT Act to extend the time within which a person may request a referral under s 25? I am satisfied that it does not have that power.

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 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.

57 Mr Bornstein simply submitted that s 126 did apply in these circumstances.

58 Mr Cosgrave submitted that s 126 gave the Tribunal power to enlarge the time fixed for the commencement of a proceeding, but that the making of a request contemplated in s 25, was not what commenced a proceeding at the Tribunal and where there was no proceeding, the power under s 126 could not be invoked.

59 Is there a proceeding? Section 48 of the VCAT Act sets out how the Tribunal's review jurisdiction is invoked. It states :

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.

60 I agree with Mr Cosgrave that the making of a request to refer a decision or an objection is not what commences a proceeding at the Tribunal. Under s 48 of the VCAT Act, where matters are "referred", the jurisdiction is invoked by a decision-maker referring a decision to the Tribunal under an enabling enactment in accordance with s 69 for review of the decision.

61 Section 69 of the VCAT Act sets out the procedure where a matter is referred.

62 Those sections make it clear that the Tribunal's jurisdiction is invoked when the decision-maker actually refers the decision to the Tribunal.

63 When one looks at s 25 of the enabling enactment, it provides a somewhat complicated procedure which makes it clear that the making of the request does not oblige the Commissioner to refer the decision to the Tribunal. After there has been a request, sub-section (2) provides that if within 30 days the Commissioner does not refer the decision, the person making the request may give the Commissioner notice in writing to do so. Under sub-section (3), notwithstanding the provisions in sub-section (2), the Commissioner can request further and better particulars and is not bound to refer a decision until after full details are given and if they are not given, the Commissioner shall not refer the decision. As Mr Cosgrave submitted when one looked at s 25 as a whole, the making of a request is simply an anterior step.

64 The Tribunal's jurisdiction where a matter is referred is invoked by the decision-maker referring a decision. It is different from one commenced by a person making an application to the Tribunal where they are entitled to do so.

65 So where there is no proceeding, I agree with Mr Cosgrave that the 60 day time limit within which to request a referral of a decision is not a time limit that the Tribunal has jurisdiction to extend under s 126 of the VCAT Act and therefore I have no jurisdiction to entertain the application to amend the objection.

66 It follows that the power of amendment under s127 of the VCAT Act cannot be used to outflank an absolute time limit [see Bell v TAC [1998] 3 VR 288, 292-3 per Phillips JA].