E-Synergies.Com Pty Ltd v Chief Commissioner of State Revenue

Texts Cited: None

Category: Principal judgment

Parties: E-Synergies.Com Pty Ltd (Appellant)
Chief Commissioner of State Revenue (Respondent)

Representation: Appellant (Self-represented)
Solicitors:
Crown Solicitor (Respondent)

File Number(s): 2025/00451377

Publication restriction: Nil

REASONS FOR DECISION

1. The issue underlying this appeal is whether the use of the appellant’s land (the land) during the relevant period satisfied what we refer to as the primary production exemption, contained in s 10AA of the Land Tax Management Act 1956 (NSW). The primary production exemption applies when the dominant use of land during a land tax year is for primary production purposes, as identified in s 10AA(3) of the Land Tax Management Act.

2. The problem which confronted the appellant was that the land, during the relevant period, was used for multiple purposes, some of which were not primary production purposes, such as: a residential leasing use, the operation of a café, and the bottling of mineral water. At first instance, the Tribunal considered the nature, extent and intensity of the various uses of the land, and found that the appellant failed to discharge its onus of proving that the dominant use of the land was for primary production purposes (E-Synergies.com Pty Ltd Pty Ltd ATF the Num-Num Trust v Chief Commissioner of State Revenue [2025] NSWCATAD 262 (the Decision)).

3. The appellant contends that this case raises important issues of principle because the rural sector is facing an increasingly globally competitive market with increasing climate impact, where farmers are often faced with hardships such as, in the appellant’s case, COVID and natural disasters (including two floods), as a result of which “on-farm value-adding” is engaged in to ensure ongoing financial viability. Further, where there is no clear guidance as to what level of primary production satisfies the exemption, or as to how the dominant use of land is determined when there are multiple uses, the disadvantages suffered by a self-represented litigant in objecting to and reviewing assessments, loom large. In that context, the appellant contends that the Tribunal breached procedural fairness and made errors of fact and law which warrant orders in the appellant’s favour.

4. Whilst we acknowledge the difficulties which the appellant adverted to, the Appeal Panel is satisfied that there was no material breach of procedural fairness or other error on a question of law here; and leave to extend the appeal to the merits is refused, as despite accepting that hardships adverted to by the appellant exist, the appeal does not raise important principles of wider import than to this case, and there is a lack of more than reasonable prospects to the grounds of appeal.

5. We explain our reasons below.

Statutory framework

6. The Tribunal outlined the relevant legislative provisions in the Decision at [23]:

“Land tax is to be levied and paid on the taxable value of all land situated in New South Wales which is owned by taxpayers, other than land which is exempt from taxation under the Land Tax Management Act 1956 (NSW) (“LTMA”) (s 7). The rates of land tax payable are set out in the Land Tax Act 1956 (NSW).”

7. As there is no dispute that the land is zoned rural land (Decision at [25]), the relevant parts of the primary production exemption are found in ss 10AA(1) and (3) of the Land Tax Management Act, which provide as follows:

10AA Exemption for land used for primary production

(1) Land that is rural land is exempt from taxation if it is land used for primary production.

(2) …

(3) For the purposes of this section, land used for primary production means land the dominant use of which is for—

(a) cultivation, for the purpose of selling the produce of the cultivation, or

(b) the maintenance of animals (including birds), whether wild or domesticated, for the purpose of selling them or their natural increase or bodily produce, or

(c) commercial fishing (including preparation for that fishing and the storage or preparation of fish or fishing gear) or the commercial farming of fish, molluscs, crustaceans or other aquatic animals, or

(d) the keeping of bees, for the purpose of selling their honey, or

(e) a commercial plant nursery, but not a nursery at which the principal cultivation is the maintenance of plants pending their sale to the general public, or

(f) the propagation for sale of mushrooms, orchids or flowers.

(4) …

8. The appellant’s claim of exemption relied upon s 10AA(3)(a) “cultivation, for the purpose of selling the produce of the cultivation” and s 10AA(3)(b) “the maintenance of animals (including birds), whether wild or domesticated, for the purpose of selling them or their natural increase or bodily produce”.

Assessments

9. The land tax assessments under review were as follows:

10. Land tax notice of assessment issued to the Applicant on 18 October 2024 for the 2020 to 2024 land tax years (the 2020-2024 Assessment).

11. Land tax notice of assessment issued to the Applicant on 14 January 2025 for the 2025 land tax year (the 2025 Assessment).

12. Together, we refer to the 2020-2024 Assessment and the 2025 Assessment as the Assessments. Additionally, the appellant, in its submissions, refers to a land tax assessment for the 2019 tax year (the 2019 Assessment) which was not the subject of the administrative review.

13. The appellant sought administrative review of the 2020-2024 Assessments with the Tribunal on 2 May 2025, which was amended to include the 2025 Assessments (Decision at [17]). The essence of the appellant’s submissions in the administrative review application was that the elements of the primary production exemption under s 10AA of the L**and T**ax M**anagement A**ct were met for each of these years.

Decision at first instance

12. The Tribunal identified, correctly, the question for determination as follows (Decision at [30]):

“The question for determination is what was the ‘dominant use’ of the land. If it was a ‘use’ that fell within ss 10AA(3)(a) or (b), the Applicant’s will succeed in its claim for exemption from land tax.”

13. The Tribunal noted that “use” of land within the meaning of s 10AA(3) of the Land Tax Management Act is to be determined having regard to the physical use of the land, citing the decision in Chief Commissioner of State Revenue v Metricon Qld Pty Ltd [2017] NSWCA 11 at [61] for this proposition (Decision at [31]). Further, the Tribunal identified that its task was to determine, objectively, the dominant use of the land (Decision at [30]) and undertook a factual analysis of the various activities on the land on a year-by-year basis.

14. The activities on the land included the following (Decision at [42]):

15. Growing of bamboo and native forest trees.

16. Growing fruit, vegetables, herbs and roots.

17. Grazing cattle for breeding or sale.

18. Keeping chickens.

19. Extracting and bottling mineral water for sale.

20. Operating a café/restaurant.

21. Residential leasing of the cottage and villa.

22. The Tribunal considered each of these activities and found as follows:

23. The operation of a café/restaurant, the production of bottled water, and residential occupancy, were uses of the land that did not fall within s 10AA(3) of the L**and T**ax M**anagement A**ct (as summarised in the Decision at [71]).

24. The growing of fruit and greens, and the maintenance of cattle, constituted uses which fell within s 10AA(3)(a) (Decision at [61]) and s 10AA(3)(b) (Decision at 65]), respectively.

25. The maintenance of chickens did not, on the evidence before the Tribunal, satisfy a use identified within s 10AA(3)(b) (Decision [70]).

26. There was insufficient evidence to show that the land was cultivated for the purpose of selling timber and bamboo (Decision at [74]).

27. With respect to the question of what constituted the dominant use of the land, the Tribunal had regard to the land area deployed for each use (Decision at [76]-[82]), the nature, extent, and intensity of each use (Decision at [83]-[94]), the time and labour involved in each use (Decision at [95]-[96]), and the financial return on each use (Decision at [97]-[98]). The Tribunal concluded as follows:

28. During the years 2020-2021, the café-restaurant was the dominant use (Decision at [110]).

29. During the years 2022-2025, the residential leasing of the cottage and villa was the dominant use (Decision at [111]).

30. Insofar as is relevant to the appeal, the Tribunal rejected other submissions of the appellant, as follows:

31. There was no power to assess land tax retrospectively for the 2020 to 2024 land tax years. The Tribunal rejected this submission, noting that there is no limitation as to when the respondent can issue an assessment of land tax “set out in the LTMA or the Administration Act” (Decision at [115]-[116]).

32. That the land tax should be refunded and payment deferred until the sale of the land for hardship reasons. The Tribunal noted that it did not have jurisdiction to determine the matter on the basis of hardship, citing Loomes v Chief Commissioner of State Revenue [2014] NSWCATAD 133 for this proposition (Decision at [127]-[128]).

Jurisdiction of the Appeal Panel

18. An appeal may be brought, under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), on a question of law, or with leave of the Appeal Panel, on any other grounds.

19. As identified in several Appeal Panel decisions, the question of law must be a pure question of law; and must be articulated with precision as, absent leave to appeal being granted, it is the subject matter of the appeal: Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 (Unique) at [25]; Wollondilly Shire Council v Styles [2024] NSWCATAP 104 at [23]. This is consistent with the way that s 83 of the NCAT Act, which is in similar terms, has been construed by the Supreme Court of NSW: Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416 (Targeted Property) at [33].

20. Here, the appeal is brought by the appellant, E-Synergies.Com Pty Ltd, by way of its sole director, Mr Toneguzzo, who is not a lawyer. Even so, it is necessary to identify the question of law with precision. Subject to affording procedural fairness to the respondent, the Appeal Panel may, itself, consider the grounds of appeal to discern the questions of law.

21. The Appeal Panel’s approach to identifying questions of law is one taken by several Appeal Panels in relation to self-represented appellants. It was referred to in John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast), where the Appeal Panel said at [12]:

“In circumstances where the appellants are not legally represented, it is apposite for the Tribunal to approach the issue by looking at the grounds of appeal generally. It is necessary for the Appeal Panel to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent.”

22. This approach was referred to with approval in Targeted Property, at [33(9)].

23. The appellant’s submission that we might go further than is suggested in Prendergast is addressed below, under the heading “approach of the Appeal Panel”.

Appellant seeks leave to rely on additional evidence

24. Here, the appellant seeks leave to rely on evidence that was not before the Tribunal at first instance. The appellant carefully outlined for the Appeal Panel, what aspects of that evidence was reasonably available at the time of the first instance hearing, and other aspects of the additional evidence that might be regarded as “fresh” or new evidence, in the sense that it has come to light since the first instance hearing.

25. The additional evidence which was reasonably available at the hearing comprises a complete record of the general ledger.

26. With respect to the additional evidence which might described as new or fresh evidence, this comprises:

27. profit and loss statements for the years 2024 and 2025 for the Exotic Organics Trust and the Num-Num Trust, preparation of which had been delayed to await the outcome of the first instance proceedings to avoid double handling and reduce accounting costs;

28. a letter from the appellant’s accountant;

29. a table attached to the letter from the appellant’s accountant; and

30. 2020-2025 profit and loss summary from the appellant’s accountant, with annotations by the accountant.

31. The director of the appellant contends that he “believed the Tax Returns and supporting information, Annual Accounts, Income Statements, and General Ledger extracts in conjunction with witness statements, photographs, farm plans and much more evidence would be sufficient to demonstrate primary production” (emphasis added), and given that he is neither a lawyer nor an accountant, he had not appreciated that the full general ledger was required. He contends that he could not have foreseen that the evidence from his accountant would not be accepted as sufficient. The appellant contends that, as there is no clear guidance on what evidence will suffice to discharge the burden of proof that the dominant use of land is primary production, then it was reasonable to rely, as he did, on the extracts and to delay preparing the accounts to await the outcome of the proceedings. As a corollary, it is reasonable to allow the appellant to now rely on the additional material.

32. The respondent objected to the Appeal Panel receiving the additional evidence, primarily on the basis of prejudice. It is said that to properly test the evidence, it may be necessary to issue several summonses and to cross examine the director. Further, the respondent contends that, in any event, the additional evidence does not materially assist. At its heart, the problem is that the appellant conducted many activities, and neither the accounts not the general ledger sufficiently break down expenses between uses. Where, for instance, there is an expense from Bunnings, or Mitre 10, or fuel, it is not apportioned by use or activity. It is not possible to match, from looking at the financial records alone, the expense to the activity. The receipt of the additional evidence would, in effect, require an entire re-run of the hearing at first instance.

33. In reply, the appellant contends that, at least after 2021, the café was no longer in operation; and therefore, as a matter of logic, the expenses must be taken to have belonged to the primary production activities.

Determination in relation to additional evidence

30. As canvassed in Yuen v Thom [2016] NSWCATAP 243 (at [14]-[22]), which has been followed by numerous Appeal Panels including FTB v Children*’*s Guardian [2024] NSWCATAP 174 at [12] and YLE v YLF [2025] NSWCATAP 75 at [45]-[48], an Appeal Panel may determine an appeal by way of a new hearing: NCAT Act, s 80(3). In such a case, the Appeal Panel may receive additional evidence.

31. We are not satisfied that, in this case, the grounds of appeal warrant a new hearing. Some principles that apply to a new hearing were identified in ZBG v NSW Trustee and Guardian [2023] NSWCATAP 47 at [41]-[42]:

“41 …Section 80(3) of the NCAT Act permits the Appeal Panel ‘to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing’ and to ‘permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances’.

42 Establishing a question of law is not a pre-condition to the exercise of the discretion conferred by s 80(3) of the NCAT Act to deal with the appeal by way of a new hearing and to take into account fresh evidence: see, Sheehy v NSW Police Force; Rapisarda v NSW Police Force; Housego v NSW Police Force [2018] NSWCATAP 307 at [18]; DHQ v DHR [2018] NSWCATAP 128 at [60]. Nonetheless, where, as here, the proposed appeal does not raise a question of law, there must be a compelling reason to warrant the exercise of that discretion.”

32. An example where an Appeal Panel exercised its discretion to determine the appeal by way of a new hearing was in McNally v Resolution Life Australasia Limited [2025] NSWCATAP 116, where jurisdictional error by the Tribunal was plain. This required the matter to be reconsidered, and, having regard to the very confined nature of the appeal, it was appropriate for the Appeal Panel to determine the appeal by way of a new hearing.

33. Here, the grounds do not lend themselves to a new hearing, as they traverse the entire first instance proceedings by way of, in effect, merits review. In a case where error is made out, an Appeal Panel may remit the matter to a first instance Tribunal, where it may be open to an appellant to seek to adduce further evidence. A first instance Tribunal is better equipped than an Appeal Panel to decide issues involving extensive evidence and the testing of evidence in a just, quick, and cheap manner; which is in keeping with the objects of the Tribunal: NCAT Act, s 3(d). An appeal is not an opportunity to re-run a first instance case: Marjanac v Plavsic [2014] NSWCATAP 63 at [29]; MS Noun Construction Pty Ltd v Baker [2022] NSWCATAP 251 at [17].

34. We decline to determine the appeal by way of a new hearing.

35. However, even without a new hearing, an Appeal Panel may receive additional evidence on the hearing of an internal appeal where to do so would facilitate the avoidance of “errors which cannot be otherwise remedied by the application of the conventional appellate procedures” (CDJ v VAJ (No 1) (1998) 197 CLR 172; [1998] HCA 67 at [109] (McHugh, Gummow and Callinan JJ) quoted in Engelbrecht v DPP (NSW) [2016] NSWCA 290 at [61]).

36. Without limiting the factors which might be taken into account in determining whether or not to receive additional evidence, regard may be had to the reason that the evidence was not adduced at first instance, the utility of admitting the additional evidence, and any prejudice to the respondent.

37. Whilst the appellant’s contention regarding the café may address some concerns with respect to some expenses, it is not a universal solution; as there were other uses of the land that did not meet the description of primary production uses. Accordingly, we accept that to properly test the evidence, there must be an opportunity for the respondent to issue summonses and cross examine the director. That is not the usual course in an appeal. In any event, we accept that the additional material does not sufficiently advance the appellant’s case, due to the lack of specificity.

38. Whilst we accept that it is not always necessary to descend into the minutiae of the details, where, as here, there are multiple uses of land over multiple years, it is appropriate to allow the respondent an opportunity to test the additional evidence. To allow the appellant to rely on the additional evidence at this point would be to the prejudice of the respondent. Even where, as here, there is an explanation for why this material was not before the Tribunal at first instance, we do not consider this warrants the receipt of the additional evidence on an appeal.

39. Leave to rely on the additional material is refused.

Grounds of appeal

40. The notice of appeal identifies several topics, which, when read with the written submissions, can be seen to constitute the grounds of appeal. These are as follows:

41. Errors of fact

42. Denial of procedural fairness due to lack of legal representation

43. Duty of care

44. Points of law raised but not addressed

Approach of the Appeal Panel

41. As noted above, it is appropriate, subject to affording procedural fairness to the respondent, to review the notice of appeal and supporting submissions to discern if a sufficiently precise question of law has been articulated. However, contrary to the appellant’s submissions to the effect that the Appeal Panel should not only attempt to identify what the litigant is trying to get at, but also what the litigant “should be” trying to get at, we do not consider that that is the role of the Appeal Panel. The appellant relies on a speech titled ‘Communicating the law: self-represented litigants in the Court of Appeal’, which was delivered by the Honourable MJ Beazley AO, President of the Court of Appeal (as her Excellency then was) at the NCAT Annual Conference on 29 October 2015. The appellant also relies on Mahoney JA in Rajski v Scitec Corporation Pty Ltd (Court of Appeal, 16 June 1986, unrep).

42. However, recently the Court of Appeal has said in Chalik v Chalik [2025] NSWCA 136 at [70] (Bell CJ, Payne and Free JJA):

“In Bauskis v Liew [2013] NSWCA 297 at [69], Gleeson JA (Beazley P and Barrett JA agreeing) noted that the duty of a trial judge to assist an unrepresented litigant ‘does not extend to advising the litigant as to how his or her rights should be exercised. That is, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant’. In Cicek v Estate of late Solomon [2014] NSWCA 278 at [130], Ward JA (Meagher and Barrett JA agreeing) held that none of the cases her Honour had reviewed:

‘suggests that the primary judge in the present case had a duty to advise the appellants as to the inadequacies in their evidence having regard to the pleaded case or to adjourn the proceedings in order to permit them further time to re-plead their case in order for it to accord with the statement being made from the bar table as to the forgery complaints. A duty to provide information in order to attempt to overcome the procedural disadvantages faced by a self-represented litigant is not a duty to run the case for him or her.’”

43. As explained in Unique at [69], whilst there is a duty to ensure procedural fairness, it does not extend to becoming a legal advisor. The duty is to ameliorate the procedural disadvantage suffered by a party not represented by a lawyer: Hamod v New South Wales [2011] NSWCA 375 at [309]-[311].

44. Further, subject to affording procedural fairness to all parties, the Appeal Panel must determine the issues according to law and not on some limited version of it that is accessible to a party not represented by a lawyer.

Are questions of law raised on the appeal?

45. The appellant raises the issue of procedural fairness, which is said to have been breached in numerous ways. As explained in Kudrynski v Orange City Council [2024] NSWCA 33 at [52] (Griffiths AJA) (Meagher JA agreeing at [1], Kirk JA agreeing at [2]), a breach of procedural fairness raises a question of law. The real question here is whether the grounds raising procedural fairness sufficiently particularise the questions of law, and whether any purported breach is material. Assuming for the moment that the caveats are satisfied, Grounds 2 and 4 raise questions of law.

46. Ground 1 is styled as “errors of fact”. However, on a close review, it touches on several issues, including the appropriateness of the onus of proof resting on a taxpayer who is not legally represented, when the legislation is “ambiguous” with “non-obvious compliance obligations” as well as potentially discriminatory and oppressive. It also concerns what the appellant describes as the validity of retrospective tax, and whether the respondent should be estopped from issuing the Assessments.

47. To the extent this ground raises the question of whether the onus of proof is on the taxpayer, or the validity of assessments issued years after the relevant year, it will be considered as a question of law. Furthermore, to the extent this raises the question of whether there was a legal impediment, such as estoppel or time limits, on the issuing of the Assessments in the untimely way it is said that the respondent did so, with the delay said to have caused the appellant loss, this raises a question of law; and will be so considered.

48. However, to the extent that Ground 1 goes further than the above, and raises the issue of the sufficiency of the appellant’s evidence to discharge the onus of proof, this raises a question of fact, or, at its highest, a mixed question of fact and law, and leave to appeal is required.

49. Ground 3 raises the question of whether the respondent, and the Tribunal, owed the applicant a duty of care during the review, and whether the respondent was precluded from issuing the Assessments by a duty of care. To the extent that any duty of care is submitted to arise on the facts, leave is required to proceed.

50. The respondent submits that leave should not be granted to appeal.

Ground 1 – Errors of Fact

Questions of law under Ground 1

51. As already noted, to the extent this ground raises questions of law, it is concerned with onus of proof, principles of legality surrounding the issuing of the Assessments, and whether there was some legal impediment to the respondent issuing the Assessments when he did. It arises in the context where the appellant contends that there is a lack of clear guidance as to what evidence is necessary to satisfy the primary production exemption. It is contended that the respondent was not able to advise the appellant, and that despite the appellant taking some advice from an accountant and a lawyer, the appellant’s task was not able to be clarified, and, ultimately, the appellant was not able to satisfy the Tribunal that it was eligible for the primary production exemption. This is compounded, so the appellant submitted, by the fact that the appellant was assessed to a nil amount of tax in the 2019 Assessment, and then heard nothing in relation to land tax until the current round of assessments where it was assessed, in effect, for six years without warning. As to this, the appellant contends that the respondent has a duty to assess on a yearly basis, and, therefore, leaving it for so long caused hardship and prejudice to the appellant. The appellant’s records were not kept in an order that would satisfy the respondent of its eligibility to the primary production exemption, and it was oppressive to expect the appellant to now bring them into accord with the expectations of lawyers. The appellant contends that as the director was able to give lay evidence of the activities on the land, and that there were some financial records to support this, then that should have sufficed.

52. To the extent that this touches on questions of onus, it is not open to argument that the legal onus rests on anyone other than the taxpayer: pursuant to s 100(3) of the Taxation Administration Act 1996 (NSW), “[t]he applicant has the onus of proving the applicant’s case in an application for review”. In some cases, the evidential burden can shift to the respondent after a taxpayer provides sufficient evidence of primary production activity to do so. This might prompt the respondent to either accept the position, or adduce evidence of competing activities. The evidential burden which “might arise to rebut a conclusion which can otherwise be drawn from the evidence adduced in the course of the hearing” was outlined in Delmege v Chief Commissioner of State Revenue [2014] NSWSC 1865 at [82] (White J) citing McAndrew v Federal Commissioner of Taxation (1956) 98 CLR 263 at 273 (Kitto J); [1956] HCA 62. In other cases, it may be a matter of weighing up competing uses. Ultimately, for a taxpayer to succeed, the Tribunal needs to reach a positive state of satisfaction that the dominant use satisfies the exception, based on the evidence before it.

53. The onus with respect to an administrative review proceeding such as was before the Tribunal at first instance, rests with a taxpayer. This is the case, despite what the appellant refers to as the volume and complexity of case law required to define the criteria for dominant use, the lack of statutory definition, the scope for differences in interpretation, and that it is entirely appropriate for litigants before the Tribunal to not be represented by a lawyer.

54. It is also unarguable that, as time marches on, a taxpayer’s access to evidence to discharge its onus may be diminished. It is in this respect that the legality of issuing assessments years after the relevant tax year, or indeed many years after the relevant tax year, was questioned. Further, the appellant adverts to the fact that in the time that passed between the 2019 Assessment and the Assessments, land values have substantially increased, and with it, an increase in the amount of land tax that is payable. This came, the appellant contends, as a shock, and given the gap between the 2019 Assessment and the later assessments, this left the taxpayer in a position wherein it was not able to anticipate the liability, which caused it hardship. This might be construed as a submission to the effect that there was a false sense of security created by the respondent’s silence.

55. However, notwithstanding that substantial time passed between the 2019 Assessments and the Assessments, as the Tribunal identified, there was no basis to suggest that the Assessments were made outside any statutory time limits. Further, despite the hardships adverted to concerning the gathering of evidence and having regard to the unanticipated financial impact, the making of the Assessments was not the product of an exercise of the respondent’s discretion. Arguments as to fairness find no place in administrative review of an assessment: Agrinova Pty Ltd v Chief Commissioner of State Revenue [2025] NSWCATAP 86 (Agrinova) at [44] there citing Bellinz Pty Ltd v Commissioner of Taxation (Cth) (1998) 84 FCR 154 (Bellinz) at 166 and Commissioner of Taxation v Ryan (2000) 201 CLR 109; [2000] HCA 4 (Ryan) at [19]-[22]. The contentions regarding estoppel must fail.

56. Furthermore, in administrative review proceedings, the validity of an assessment is not open to question (Taxation Administration Act, s 16) and the notices of assessment are conclusive evidence of the due making of the Assessments (Taxation Administration Act, s 119(a)). Additionally, it is only the particulars of the assessment and the amount which are open to objection or review proceedings: Taxation Administration Act, s 119(b).

57. What is required to satisfy a taxpayer’s onus will vary in each case; taking, as appropriate, due consideration of the fact that much time has passed and access to evidence may have diminished. However, it is to be recalled that, under the Taxation Administration Act, taxpayers have record keeping requirements: Taxation Administration Act, s 48.

58. No error on a question of law is discerned from the fact that the Tribunal held the appellant to its onus, even in circumstances where the Assessments were issued several years after the taxpayer’s 2019 Assessment, which was nil.

59. Ground 1 is dismissed insofar as it raises a question of law.

Leave to appeal with respect to Ground 1

60. With respect to whether leave ought to be granted to extend Ground 1 to the merits, we interpret this as seeking leave to extend the appeal to the merits on the basis that, on the evidence before the Tribunal, viewed in context of the passing of time, the appellant in fact satisfied its onus. This does not raise a matter of wider principle beyond this case; and we have not discerned obvious error in the way that the Tribunal at first instance approached the evidence or the statutory question such that the ground has more than arguable prospects. This is the case, despite the respondent accepting that there was an error contained in a table in the respondent’s submissions in the below proceedings, and which was reproduced by the Tribunal in the Decision. The relevant error was the failure to attribute hay feed expenditure to expenditure relating to cattle, despite the fact that the hay feed expenditure information was contained in the extract of the general ledger which was before the Tribunal. This resulted in the expenditure recorded for cattle for the years 2020-2023 being nil. However, the respondent submits that, even had the error not occurred, this would not have made a difference to the outcome. To this end, we note that the tax returns submitted for Exotic Organics Trust, which had been declared as correct by the director of the appellant, declared primary production expenses as nil, although the director later said this was an error by the accountant. The Appeal Panel finds that the error relating to expenditure on cattle for the years 2020-2023 was not material, and we do not believe is likely to affect the result.

61. Further, we see that in granting leave we would be allowing a complete re-run of the first instance proceedings without the identification of an error that led to a clear injustice, which we do not consider is appropriate.

62. Leave to appeal on Ground 1 is refused.

Ground 2 – Denial of Procedural Fairness

63. As mentioned, a material breach of fairness would represent an error on a question of law.

64. A substantial contention of the appellant is that the Tribunal failed to have regard to the appellant’s submissions and evidence. This, so it is submitted, may be gleaned from several remarks that were made during the hearing, and includes that there is an error in the Decision concerning the amount of expenses (which is referred to above). To the extent that the focus is on asserted factual errors with respect to the Tribunal’s findings, this must be able to be gleaned from the material that was before the Tribunal, and not any of the additional material. In one instance, the tax returns submitted by Exotic Organics Trust declared primary production expenses to be nil; and annual financial statements of the Exotic Organics Trust did not identify expenses as farm or primary production expenses. The additional material that was sought to be admitted indicates that this was an accountant’s error, however, that can’t be relevant to whether or not the Tribunal breached procedural fairness by failing to have regard to the appellant’s materials. Further still, to the extent that it is suggested that the Tribunal ought to have had regard to other evidence over the financial statements which, logically, ought to have been considered in error, this is not a question of a breach of procedural fairness but a weighing up exercise that the Tribunal has undertaken. The appellant also points to some of its written submissions which it says appear to have been missed by the Tribunal, as they were not referenced in the Decision. These submissions include that the appellant “conceded” that apportionment of land tax was not available under the Land Tax Management Act, and that hardship was not a matter for the Tribunal. However, a tribunal does not need to deal with every point raised by an applicant where that point is not material to the determination of the application: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 (SZRKT) at [113].

65. A review of the Decision indicates that the Tribunal did indeed have regard to the appellant’s case, but was ultimately not satisfied, on the evidence before it, that the primary production exemption was satisfied. No breach of procedural fairness is indicated by this.

66. To the extent that it is suggested that the Tribunal failed to provide an opportunity for the appellant to cross examine the respondent’s witness, this too is not made out on the materials. The reliance by the respondent on this evidence was notified substantially in advance, and the Tribunal expressly asked the director whether he intended to cross examine the witness. This cannot be seen as a failure to provide an opportunity, even to a litigant that is not represented by a lawyer, to cross examine a witness. No breach of procedural fairness is indicated by this. The appellant submits that its director “would have liked to have asked questions of the Respondent”, and proffers examples of questions pertaining to the Land Tax Management Act, including where under the Act it is stated that the appellant must purchase stock rather than breed stock, and where under the Act the relevant compliance criteria are provided. The respondent submits that “these are not matters arising out of the evidence of [the witness] and are not properly the subject of cross-examination”. The witness’ evidence, by way of affidavit, was confined to social media searches and online google searches performed by the witness in respect of the appellant. In any event, the operation of the Land Tax Management Act was for the Tribunal to decide. We discern no breach of procedural fairness in this regard.

67. To the extent that the appellant contends that there was a breach of procedural fairness in relation to a duty owed by the Tribunal to an applicant not represented by a lawyer, it is to be accepted that the Tribunal is to provide procedural assistance to such an applicant. However, we have not been able to discern what additional procedural assistance ought to have been given, recalling that it is not the Tribunal’s role to provide legal advice.

68. The appellant also appears to contend that a form of duty of care is owed to it by the respondent in the course of the review, due to the respondent being a “government agency”, or at least, that the respondent did not act “in good faith” by “withholding” or “misrepresenting” evidence”. To the extent that the “misrepresentation” concerns the summary table of expenses, which was acknowledged to contain errors, it was not material for the reasons we have already explained. To ground an error on a question of law, any breach of procedural fairness must be material: Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26 at [1] (Kiefel CJ, Keane and Gleeson JJ), [45] (Gageler J); LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 at [12] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ).

69. To the extent that the contention of breach of procedural fairness rests on a proposition that the respondent owes a taxpayer a duty of care to advise them how they may satisfy their onus, in circumstances where the taxpayer is not legally represented and the law is said to be uncertain, then the scope and the content of any such duty of care was not sufficient particularised (even assuming the Tribunal to be a proper forum for such a matter).

70. Furthermore, such a contention sits uneasily with s 100(3) of the Taxation Administration Act, which provides that the “applicant has the onus of proving the applicant’s case in an application for review”. There is no similar provision, in s 100 or elsewhere in the Taxation Administration Act, relating to the onus of the respondent to show that the assessment was correct. The implication arising from this is that unless a taxpayer shows, by evidence and by reference to the relevant legislation, that the assessment is incorrect, the assessment will prevail. The respondent need not prove an assessment is correct: Cornish Investments Pty Limited v Chief Commissioner of State Revenue (RD) [2013] NSWADTAP 25 at [28]-[36]. This puts the focus for making out a taxpayer’s case on administrative review of an assessment, squarely on a taxpayer; and not on the respondent. With the focus resting squarely on a taxpayer, an alleged deficit by the respondent in failing to advise a taxpayer what evidence was necessary to satisfy the taxpayer’s onus, does not lead to a breach of procedural fairness.

71. Were the contention that some conduct of the respondent leading up to or during the hearing deprived the taxpayer of an effective opportunity to be heard, then that may (depending on the breach) sustain a contention of a breach of procedural fairness. However, we have already dismissed the issue about the “misrepresentation” as being immaterial. We have not been able to discern a material breach of procedural fairness stemming from conduct of the respondent, as identified by the appellant.

72. We do not discern a breach of procedural fairness in relation to the conduct of the first instance proceedings arising from, what is said to be, a duty of care of the respondent to the appellant.

73. Sections 36 and 38 of the NCAT Act, read together with the Objects as set out in s 3, require the Tribunal to resolve the real issues in proceedings “justly, quickly and cheaply” in a fair manner. No breach of this mandate has been made out.

74. Ground 2 is dismissed.

Ground 3 – Duty of Care

75. To the extent that this concerns a duty of care owed by the respondent to the appellant, which is grounded in a duty to issue assessments annually, we have already addressed this, in substance, above. Issuing an assessment is not the product of the exercise of a discretion. Further, any common law duty is not the purview of administrative review.

76. To the extent Ground 3 raises a question of law, it is dismissed.

77. To the extent leave is sought, for the same reasons identified in relation to Ground 1, leave is refused.

Ground 4 – Points of law raised by the Appellant were not addressed

78. There are three points of law which the appellant argues that it raised at first instance, however the Tribunal failed to address.

79. Artificial inflation of the valuation of the Land.

80. Lack of clarity in what is required for onus of proof for exemption.

81. Estoppel and entrapment in respect of issuing retrospective assessments.

82. As noted above, a material breach of procedural fairness would constitute an error on a question of law. However, a tribunal does not need to deal with every point raised by an applicant where that point is not material to the determination of the application: SZRKT at [113].

83. Each of the above points falls into that category.

84. First, questions concerning land value are the purview of the Valuation of Land Act 1916 (NSW), and objections in relation to valuation of land may be taken under that act (V**aluation of L**and A**ct, s 29(3A)). Ultimately, an objection may be appealed to the Land and Environment Court: Valuation of Land Act, s 37(1). Accordingly, the Tribunal is not the proper forum for issues relating to land value. The Appeal Panel, during the hearing, clarified with the appellant’s representative, its director, whether there was an objection on foot, as it is not unknown for proceedings in the Tribunal to be adjourned pending determination of matters in the Land and Environment Court due to the flow on effect to liability for land tax which a reduction in land value has: Land Tax Management Act, ss 9(1), 9(4); V**aluation of L**and A**ct, ss 14CC, 29, 35B, 37. The director answered to the effect that there was no objection to the Valuer General or Land and Environment Court in train.

85. Secondly, questions concerning lack of clarity as to what is required of an applicant objecting to an assessment, and any arguments grounded in estoppel, have already been dealt with as part of the earlier grounds, and could not have affected the result.

86. Third, insofar as the appellant contended that the respondent engaged in “entrapment”, this submission appears to be based on the issuance of the assessments years after the relevant year, the “lack of viable repayment plan, the resultant impact on finances” and the appellant’s “subsequent inability to fund legal representation”. As addressed above, arguments as to fairness find no place in administrative review of an assessment, as the assessment function is not discretionary: Agrinova at [44] there citing Bellinz at 166 and Ryan at [19]-[22]. For this reason, the issue of estoppel does not arise, as noted in BBLT Pty Ltd v Chief Commissioner of State Revenue [2003] NSWSC 1003 at [111]:

“… with few exceptions the courts have concluded that estoppel does not lie against a fiscal authority on the basis that the authority cannot be prevented from carrying out the public duties cast upon it by the legislation (Federal Commissioner of Taxation v Wade (1951) 84 CLR 105, AGC (Investments) Ltd v Federal Commissioner of Taxation 91 ATC 4180, Federal Commissioner of Taxation v Australia & New Zealand Savings Bank Ltd (1994) 181 CLR 466, Bellinz v Federal Commissioner of Taxation (1998) 84 FCR 154, Oamington Pty Ltd (Receiver & Manager Appointed) v Commissioner of Land Tax 98 ATC 5051).”

84. The Appeal Panel finds that the above three issues were not material to the determination of the application, and it follows that no material breach of procedural fairness has been made out.

85. Ground 4 is dismissed.

Conclusion

86. There is no appealable error, nor is there anything to suggest that the respondent issued the Assessments other than in accordance with the relevant provisions. To the extent that the taxpayer raises arguments concerning the validity of the Assessments, or duties owed by the respondent to the taxpayer, these are not the purview of administrative review at the Tribunal. Whilst we acknowledge the very real hardships faced by taxpayers in the situation of this appellant, as correctly noted by the Tribunal at [128]:

“The Tribunal does not have jurisdiction to determine the matter on the basis of hardship (Loomes v Chief Commissioner of State Revenue [2014] NSWCATAD 133) …The remaining avenue available to the Applicant would therefore be an application to the Hardship Review Board.”

Orders

1. The appeal is dismissed.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar