Familien Treuhandgesellschaft Pty Ltd v Commissioner of State Revenue [2009] TASMC 22 | Case summary | Zoe

TASTASMC

Familien Treuhandgesellschaft Pty Ltd v Commissioner of State Revenue [2009] TASMC 22

[2009] TASMC 22

Magistrates' Court of Tasmania|2009-05-06

At a glance

AI case summary

Result

procedural. The Court declined to accept the respondent's contention that s 89 is jurisdictional and that s 20 gives no power to extend time. The Court accepted that representation issues arise but noted the...

Key principles

A time limit in a statute which prescribes when an applicant 'is to' apply for review (here, s 89 of the Taxation Administration Act) is not, on its face, necessarily a condition...
Section 20 of the Magistrates Court (Administrative Appeals Division) Act 2001, which permits the Court to extend the prescribed period for making an application where a...
Rule 19A of the Magistrates Court (Civil Division) Rules 1998 (inserted by amendment in 2008) permits a body of persons, including an incorporated body, to be represented in...

Issues before the court

Whether the time limit in s 89 of the Taxation Administration Act is jurisdictional (a condition precedent to the Court's jurisdiction) or...
Whether s 20 of the Magistrates Court (Administrative Appeals Division) Act 2001 gives the Court power to extend the period prescribed for making an...
Whether a company may only litigate through a legal practitioner and whether the filing by or representation through a person without a practising...

Plain English Summary

The Chief Magistrate considered an application by Familien Treuhandgesellschaft Pty Ltd for leave to file a review application after the 60-day period in s 89 of the Taxation Administration Act had expired. The Commissioner argued the time limit was jurisdictional and that the Court had no power under s 20 to extend it, and also raised representation irregularities. The Court held that s 89's time limit is not, on its face, jurisdictional; s 20 does permit the Court to extend the prescribed period where a reasonable explanation for delay is provided; and that rule 19A of the Magistrates Court (Civil Division) Rules (2008) permits a body to be represented by a natural person (not necessarily a practitioner) in the Administrative Appeals Division. The Court ordered further submissions on the representation issue rather than striking out the application.

AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.

Deep Dive

1,670 words · generated 15/08/2026

What happened

This judgment records the Chief Magistrate's reasons in an application by Familien Treuhandgesellschaft Pty Ltd seeking leave to file an out-of-time application for review of a land tax decision. The 60-day limitation in s 89 of the Taxation Administration Act 1997 had expired before the applicant sought to commence proceedings in the Magistrates Court (Administrative Appeals Division). The Commissioner of State Revenue opposed leave and raised three preliminary contentions:

that compliance with s 89's 60-day period is a jurisdictional condition precedent and a failure to comply leaves the Court without jurisdiction to hear the matter;
that s 20 of the Magistrates Court (Administrative Appeals Division) Act 2001 does not empower the Court to extend a time limit set in another Act (here s 89);
that the company's proceedings were irregular because the person who filed/acted did not hold a practising certificate and, historically, a company must litigate through a solicitor.

The Chief Magistrate examined the statutory scheme, relevant authorities and the recent insertion of rule 19A into the Magistrates Court (Civil Division) Rules (2008), found against the respondent on the first two preliminary issues and accepted that rule 19A bears on the representation point. Rather than finally determining the representation issue, the Chief Magistrate afforded the parties an opportunity to make further submissions on the effect of rule 19A in the Administrative Appeals Division.

Why the court decided this way

The decision turns on statutory interpretation and on the court's reluctance to infer that Parliament intended to deny parties access to the judicial forum it establishes without clear, manifest words to that effect.

On jurisdictional effect of s 89. The Commissioner argued that s 89's 60-day limit is intrinsic to the right to apply for review and that a late application is void, the court therefore would lack jurisdiction to entertain any extension. The Chief Magistrate approached that contention by identifying the statutory scheme (reproducing s 89 and the relevant provisions of the Magistrates Court (Administrative Appeals Division) Act 2001, ss 17 and 20) and asking whether the Parliament had manifested an intention to render non-compliance with s 89 nugatory of a right. The court emphasised the established interpretive stance: courts are slow to conclude that Parliament intended to deny access to its created judicial forum. Absent clear ousting words, the Chief Magistrate declined to treat s 89 as jurisdictional. The judge also noted that the authorities cited by the respondent turn on their particular statutory texts and do not compel the same construction here.
On the power to extend under s 20. Section 20 of the Magistrates Court (Administrative Appeals Division) Act permits the Court to extend the period for making an application if a reasonable explanation for delay exists. The Commissioner contended s 20 did not apply to a time fixed by s 89. The Chief Magistrate adhered to an earlier ruling in Thomas v Commissioner of State Revenue and concluded that s 20 gives the Court power to extend the prescribed period even where that period is set in another Act (the Taxation Administration Act). The reasoning rests on reading the two statutes together and on the presumption against finding that Parliament intended to cut off access to review without clear language.
On representation. The Commissioner had relied upon historical authorities that companies must litigate through a solicitor and on the fact the person filing the application did not at the material time hold a practising certificate. The Chief Magistrate accepted the point in principle but observed that the Magistrates Court (Civil Division) Rules were amended in 2008 to insert rule 19A, permitting a body of persons (including incorporated bodies) to be represented by a natural person who may not be a practitioner. Practice Direction No 1 of 2002 brings those civil rules into play in the Administrative Appeals Division. Given that development, the Chief Magistrate invited further submissions on the effect of rule 19A rather than striking the matter out immediately.

Before and after state of the law

Before this judgment: there was authority addressing whether statutory time limits operated as jurisdictional conditions, notably R v Stanley; Ex parte Redapple Restaurants (Bray CJ) and the High Court's treatment in General Motors-Holden's Ltd v Di Fazio (Mason J adopting Bray CJ's approach). Other decisions (for example the Jones decisions and Aurion Gold v Bilos) had treated particular legislative time limits as such because of their specific statutory wording. In short, whether a statutory time limit was jurisdictional depended on the particular statutory language and context.

After this judgment: in the Tasmanian Administrative Appeals Division context, a time limit in the Taxation Administration Act (s 89) was not read as an absolute jurisdictional bar; instead the Court accepted it could exercise the s 20 power to extend the prescribed period, subject to the usual considerations (reasonable explanation for delay). The judgment reinforces the analytical approach: examine the text and scheme; do not infer an ouster of jurisdiction unless language is clear.

On representation, the practical legal position changed by the 2008 amendment to the Magistrates Court (Civil Division) Rules: rule 19A expressly permits bodies to be represented by a natural person who need not be a legal practitioner; Practice Direction No 1 of 2002 imports the civil rules into the Administrative Appeals Division. This judgment registers that change and requires parties to address its consequences.

Key passages with plain-English translation

"Courts are slow to find that Parliament intended to deny access by aggrieved members of the public to the judicial system that the Parliament itself has created." Plain English: judges will not assume Parliament intended to shut the courthouse doors unless the statute says so clearly.
The Chief Magistrate's reproduction of s 20 and the statement that he "adheres to my ruling in Thomas" Plain English: the Court believes its statutory power to extend time (s 20) is operative in these taxation review matters; this is not a fresh, novel power but consistent with the court's prior view.
The passage describing rule 19A: Plain English: the court notes the rules were amended so that companies and other bodies in magistrates' proceedings may be represented by a natural person who may not be a lawyer; that rule applies to the Administrative Appeals Division by the existing practice direction.

What fact patterns trigger this precedent

This decision is most directly relevant where:

an application for administrative review under the Taxation Administration Act (or another Act with a prescribed review period) is lodged after the statutory time limit, and the applicant seeks an extension of time under s 20 of the Magistrates Court (Administrative Appeals Division) Act 2001; or
a representation challenge is raised where a company or body is represented by a non-practitioner in the Administrative Appeals Division and rule 19A might admit or exclude that representation.

Key triggering facts are an expired s 89 period, an out-of-time application, a request to rely on s 20 for an extension, and disputes about the authority of the person who filed or appeared for the corporate applicant.

How later courts have treated it

This judgment expressly follows an earlier decision of the same court (Thomas v Commissioner of State Revenue) concerning s 20's operation. The Chief Magistrate also relied on High Court and State authorities (R v Stanley; General Motors-Holden's Ltd v Di Fazio) as interpretive touchstones for the presumption against finding ouster of jurisdictional intent. The judgment positions itself within the line of authorities emphasising textual analysis: cases are fact and text specific; therefore, courts will continue to treat the jurisdictional/procedural characterization issue by reference to the particular legislative language and scheme.

Any later courts considering identical statutory wording in s 89 or equivalent may treat this reasoning as persuasive in Tasmania, particularly in the Administrative Appeals Division. If appellate courts were to adopt a stricter rule that certain limitation periods are jurisdictional across a broader field, they would need to rely on clearer legislative language than appears in the Tasmanian provisions.

Still-open questions

The Chief Magistrate invited further submissions on rule 19A's effect. The judgment did not finally determine whether the specific representation in this file was proper; a subsequent ruling or adversarial argument could refine how broadly rule 19A applies in practice, in particular where the person representing the company was a solicitor without a practising certificate at the time of filing. The interaction between rule 19A and professional regulation (e.g. prohibitions on unqualified legal practice) may present unresolved practical tensions.
The judgment leaves open the precise standard and exercise of discretion under s 20 in taxation-review contexts, the Court confirmed power to extend, but did not in this ruling set out the detailed factors it would apply to the grant or refusal of extensions in these circumstances.
How an appellate court would treat the Chief Magistrate's approach remains untested in the judgment text provided. If an appellate court were asked to authoritatively determine whether s 89 is jurisdictional in all Tasmanian taxation review cases, it might revisit the textual comparison approach and the policy considerations discussed here.
The decision recognises that other cases (Jones, Aurion Gold) turned on different statutory texts. Consequently, the boundary between a procedural time limit and jurisdictional condition will continue to be litigated on a statute-by-statute basis.

This deep-dive has drawn only on the text provided in the reasons of Chief Magistrate A G Shott in Familien Treuhandgesellschaft Pty Ltd v Commissioner of State Revenue [2009] TASMC 22. It summarises and explains the Court's statutory interpretation, practical conclusions and the immediate procedural outcome: further submissions ordered on representation; the Court affirming its power to extend time under s 20 and declining to construe s 89 as an absolute jurisdictional bar.

Disclaimer: This is general legal information only and not legal advice. I can make mistakes. Before you act on, rely on, or use any part of this analysis (including any draft material), get a qualified Australian lawyer to check it.

Judgment (74 paragraphs)

[1]

Familien Treuhandgesellschaft Pty Ltd v Commissioner of State Revenue [2009] TASMC 22 (6 May 2009)

[2]

Magistrates Court (Administrative Appeals Division) Tasmania

[3]

Familien Treuhandgesellschaft Pty Ltd v Commissioner of State Revenue [2009] TASMC 22

[4]

Administrative law - judicial review - procedure and evidence - extension of time - s 20 Magistrates Court (Administrative Appeals Division) Act 2001

[5]

Legal Profession Act 2007, s 13; Magistrates Court (Administrative Appeals Division) Act 2001, ss 17, 20; Taxation Administration Act 1997, s89

[6]

General Motors-Holden's Ltd v Di Fazio [1979] HCA 43; R v Stanley; Ex parte Redapple Restaurants Pty Ltd [1979] HCA 43; (1976) 13 SASR 290; (1979) 141 CLR 659; Thomas v The Commissioner of State Revenue {2009} TASMCAAD 22 referred to

[7]

This is an application for leave regarding the filing of an application pursuant to the Magistrates Court (Administrative Appeals Division) Act 2001 for the review of an administrative decision made pursuant to the Land Tax Act 2000, notwithstanding that the time limit for applying to the Court for the review of that decision has expired.

[8]

It is common ground that the time set by section 89 of the Taxation Administration Act 1997 (which has application to the Land Tax Act 2000) has expired. The applicant seeks an extension of that time limit.

[9]

Learned counsel for the respondent, by way of letter to the managing director of the applicant, put certain arguments as to the application. That letter has been made available to the Court by learned counsel for the respondent.

[10]

The managing director of the applicant has responded to that letter and filed that response in the Court.

[11]

That correspondence raises a number of preliminary issues. It is submitted that the resolution of those issues in a manner favourable to the respondent would establish that the application is misconceived.

[12]

It is convenient that I embark upon that process.

[13]

In order to appreciate both the substance of the application and the preliminary issues, it is necessary to set out the statutory scheme.

[14]

The Taxation Administration Act 1997, section 89, provides:

[15]

(1) A taxpayer may apply to the Magistrates Court (Administrative Appeals Division) for a review of, or appeal to the Supreme Court against -

[16]

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

[17]

(b) the Commissioner's failure to determine the taxpayer's objection.

[18]

(a) is to be made within 60 days after the date of service on the taxpayer of the notice of the Commissioner's determination of the objection for a review or appeal under subsection (1)(a); or

[19]

(b) is not to be made before 90 days after the objection was lodged for a review or appeal under subsection (1)(b).

[20]

(3) A taxpayer is not to apply for a review or make an appeal unless -

[21]

(a) the whole of the amount of the tax to which the review or appeal relates has been paid; or

[22]

(b) if that amount has not been paid, the Commissioner allows the taxpayer to apply for a review or make the appeal.

[23]

(4) A taxpayer must give written notice to the Commissioner of the intention to apply for a review or make an appeal under subsection (1)(b) at least 14 days before the application for a review or appeal is made."

[24]

The Magistrates Court (Administrative Appeals Division) Act 2001 sections 17 and 20 provide:

[25]

(1) A person may apply to the Court for a review of a reviewable decision only if-

[26]

(a) the application is made by an interested person; and

[27]

(b) the application is made in the manner prescribed by the rules of court; and

[28]

[29]

(a) if the person has requested a statement of reasons under section 13 and was provided with that statement or notified under section 14 of a refusal to provide reasons, 28 days from the date on which the statement of reasons was provided or notification of the refusal to provide reasons was given; or

[30]

(b) if the person has not requested a statement of reasons under section 13, 28 days from the date on which the person was notified of the making of the reviewable decision.

[31]

(1) Despite section 17(1)(c), the Court may, on application in writing by an interested person seeking to make a late application to the Court, extend the period within which the person may make an application if the Court is of the opinion that the person has provided a reasonable explanation for the delay in making the application.

[32]

(2) The period within which an application for a review of a reviewable decision may be made may be extended under subsection (1) although that period has expired.

[33]

"late application" means an application not made within the prescribed period as defined in section 17(2)."

[34]

First preliminary issue is the Court without jurisdiction?

[35]

"......... fundamentally, it is contended that in any event there is no jurisdiction reposing in the Court to entertain the application, because it is out of time. That is, it is contended that the provisions of s89(1) and (2) of the Taxation Administration Act are such as to confer a right intrinsic to which is it being exercised by lodging the application for review within 60 days. The time limit in s89(2) is not a bar to an existing cause or right but is inherent to the exercise of the right. Consequently a review lodged out of time is void and the Court has no jurisdiction to entertain it. In that regard reliance will be placed upon Jones & Anor v Territory Insurance Office [1988] NTSC 52; (1988) 55 NTR 17 and (on appeal) Jones v Motor Accidents (Compensation) Appeal Tribunal (1988) 59 NTR 12 and Aurion Gold v Bilos [2004] WASCA 270. There is also commentary in Pearce & Geddes, Statutory Interpretation in Australia, 6th Edition.

[36]

The contention is that notwithstanding any textual characterisation of the phrase "is to" in s89(2), the intention of Parliament to be discerned in s89, is that to exercise the right to make application for review (or appeal to the Supreme Court) the applicant (appellant) is obliged to lodge same within the 60 day period. Failure so to do means the application (appeal) is incompetent and the Court has no jurisdiction to entertain it."

[37]

As I understand the submission, it may be put thus: is the time limit prescribed by the Taxation Administration Act section 89,procedural in nature, in which case the Court may, in an appropriate case, extend time pursuant to the Magistrates Court (Administrative Appeals Division) Act 2001, section 20, for applying to the Court for relief; or is compliance with section 89 a condition precedent to the acquisition of jurisdiction by the Court? If the latter, the Court cannot acquire the jurisdiction to even consider whether or not time should be extended pursuant to the Magistrates Court (Administrative Appeals Division) Act 200, section 20.

[38]

It follows that, if the latter proposition is the case, certain submissions of the applicant, which are unnecessary to set out, do not have application in that they rest upon the existence of a sound jurisdictional foundation.

[39]

The resolution of this issue rests in statutory interpretation. Plainly, the Court must seek to ascertain the manifested intention of the Parliament. I add, however, that as a general proposition, courts are slow to find that Parliament intended to deny access by aggrieved members of the public to the judicial system that the Parliament itself has created.

[40]

I have considered carefully the cases cited by learned counsel for the respondent. However, they turn upon the interpretation of the legislation there under consideration. I observe that there is nothing inconsistent with the Parliament having declared a longer time limit for accessing the Court system in cases that fall within the umbrella of the Taxation Administration Act 1997 than in the cases of other reviewable decisions in respect of which an extension of time may be granted.

[41]

Next, in my view there is nothing in either the statutory scheme or the terms of the particular provisions that I have set out that is suggestive of a Parliamentary intention to render non-compliance with a time limit nugatory of a right. Had Parliament so intended, it would have been an easy matter for it to have clearly so stated: R v Stanley; Ex parte Redapple Restaurants Pty Ltd (1976) 13 SASR 290 per Bray CJ at 295. In that case, the other judges of the Supreme Court sitting in banco, Mitchell and Walters JJ, concurred with the judgment of the Chief Justice.

[42]

In General Motors-Holden's Ltd v Di Fazio [1979] HCA 43; (1979) 141 CLR 659 Mason J adopted the approach of Bray CJ in Stanley; that is, that the same statute under consideration in both Courts did not deny jurisdiction to hear claims brought after the expiry of the relevant limitation period. All other members of the Court, that is, Barwick CJ, Gibbs, Stephen and Murphy JJ agreed with the reasons given by Mason J.

[43]

The statute under consideration was the (SA) Industrial Conciliation and Arbitration Act 1972, section 15(1) - the emphasis is mine:

[44]

"15. (1) In addition to the jurisdiction conferred on it elsewhere in this Act, or under any other Act whether of this State or the Commonwealth the Court shall, subject to this Act, have jurisdiction -

[45]

(e) to hear and determine any question as to whether the dismissal from

[46]

his employment of an employee, not being an employee who has under any Act or law a right of appeal or review against his dismissal, was harsh, unjust or unreasonable and the Court may, if it thinks fit, direct the employer of that employee to re-employ that employee in his former position on terms that are not less favourable to the employee than if he had not been dismissed from his employment and without limiting the generality of the foregoing may order that the employee be paid a sum not exceeding a sum equal to the wages that he would have received had he been employed in that employment between the time of his dismissal and the time at which he was re-employed but the Court shall not exercise the jurisdiction conferred on it by this paragraph unless an application invoking that jurisdiction is made, by or on behalf of the dismissed employee, within twenty-one days from the day on which it is alleged that the employee was so dismissed from his employment."

[47]

Although, of course, every statute must be interpreted in its own right, I observe that the terms of South Australian statute were in much more direct terms than those of the Tasmanian scheme. For the reasons which I have indicated, the terms of the Tasmanian scheme do not oust the jurisdiction of the Court to hear and determine an application to extend time.

[48]

Second preliminary issue does the Court have the power to extend time?

[49]

"...... whether s20 of the Magistrates Court (Administrative Appeals Division) Act gives power to the Court to extend the time in which to make the application. The contention of the respondent is that it does not. However, it should be noted at the outset, that this argument has previously been raised and adjudicated upon by the Court ....... [see] the reasons for decision in a matter of Thomas v The Commissioner of State Revenue [2009] TASMCAAD 22. Notwithstanding, and with the greatest of respect to the Chief Magistrate, I am instructed to submit to the Chief Magistrate in this proceeding that s20 does not give power".

[50]

That is, the respondent contends that the Court is powerless (in contra-distinction to the concept of being without jurisdiction) to extend the time limit set by the Taxation Administration Act 1997, section 89.

[51]

This issue was the subject of consideration by this court as currently constituted in Daniel Michael Thomas v The Commissioner of State Revenue [2009] TASMCAAD 22. I have reconsidered the issue afresh. However, I adhere to my ruling in Thomas.

[52]

Third preliminary issue whether a company may only embark upon litigation through a solicitor

[53]

It is common ground that the application was filed in the Court's registry by a person who is a solicitor but who did not, at the material time, hold a practising certificate. Learned counsel for the respondent submits as follows: (citing correspondence written by counsel to the applicant's managing director)

[54]

"........... the application is irregular, evidently having been issued by the company. This is in breach of Rule 11 of the Supreme Court Rules 2000 (which are roped in by virtue of Practice Direction 1 of 2002, issued by the Chief Magistrate, and dated 1 July 2002 (which in term ropes in the Magistrates Court (Civil Division) Rules, by Rule 10(b) of which the Supreme Court Rules are adopted in cases where no specific provision is made, as here).

[55]

It is contended that a company may only embark upon litigation through a solicitor - see Hubbard Association of Scientologists International v Anderson & Just [1972] VicRp 37; [1972] VR 340 and cases following - such as Co-operative Property Developments v Mount [1979] TASRp 26; [1980] Tas R 7 and Deen, Decentius v Stronghearts Pty Ltd & Burton, George Westbrook, the unreported version of which is [1998] TASSC 103.

[56]

I am instructed by the Commissioner that she will not waive this irregularity, and that the application ought to be stayed (see Hubbard Association of Scientologists International [No 2] [1972] VicRp 66; [1972] VR 577).

[57]

In addition, as stated in Australian Civil Procedure, 5th Edition, at p.271, under the heading "Company" It is said "in litigation, unless the rules or a statute provide otherwise, a company may act only through a legal practitioner, as a consequence of the nature of incorporation. A company officer may represent a company in litigation only if the Rules of Court or a statute permit a company to be represented in this manner".

[58]

In Halsbury's Laws of Australia at paragraph [125-330] it is stated: "except in Tasmania, a judge has the power to permit an unrepresented party to be represented by a lay person".

[59]

You will appreciate from the foregoing that not only is it contended that the proceeding instituted by the company is irregular but also that the company cannot be represented by anyone other than a legal practitioner.

[60]

I accept that your Mr Chen is a legal practitioner, but I understand that he has not held a Practicing Certificate for some time, as a consequence of which it would be unlawful for him to purport to act for your company in such capacity (see s.53 of the Legal Practitioners Act)."

[61]

(I observe that since that submission was forwarded, the Legal Practitioners Act has been repealed and replaced by the Legal Profession Act 2007. The current relevant provision, section 13, is to the same effect as the repealed provision.)

[62]

I accept those submissions. However, I observe that since learned counsel's letter was written to the applicant's managing director, the Magistrates Court (Civil Division) Amendment Rules 2008 (SR 2008, No 37) inserted rule 19A into the Magistrates Court (Civil Division) Rules 1998 in these terms:

[63]

(1) In any proceeding, a body of persons may be represented by a natural person who may, but need not be, a practitioner.

[64]

(2) Subrule (1) applies regardless of whether the body of persons is -

[65]

That rule has application to proceedings in the Magistrates Court (Administrative Appeals) Division by virtue of Practice Direction No 1 of 2002, which I set out to the extent relevant:

[66]

Magistrates Court (Administrative Appeals Division) Act 2001

[67]

Applications and Proceedings under the Magistrates Court (Administrative Appeals Division) Act 2001

[68]

I, Arnold George Shott, Chief Magistrate of Tasmania, make and publish the following Practice Direction with regard to the practice and procedure of the Magistrates Court of Tasmania in the exercise of its jurisdiction pursuant to the Magistrates Court (Administrative Appeals Division) Act 2001

[69]

Applications and proceedings pursuant to the Magistrates Court (Administrative Appeals Division) Act 2001 in the Magistrates Court of Tasmania shall be committed to the Court's Civil Division Registry.

[70]

The Rules set out in the Schedule hereto shall regulate the practice and procedure of the Court in the exercise of its jurisdiction pursuant to the Magistrates Court (Administrative Appeals Division) Act 2001

[71]

1. In these Rules 'Act' means the Magistrates Court (Administrative Appeals Division) Act 2001.

[72]

Application of the Magistrates Court (Civil Division) Rules 1998

[73]

2. Subject to these Rules, the Magistrates Court (Civil Division) Rules 1998 apply, with necessary adaptations, to proceedings in the Magistrates Court of Tasmania under the Act."

[74]

I shall provide an opportunity for the applicant and for learned counsel to make further submissions as to the effect upon these proceedings of the Magistrates Court (Civil Division) Rules 1998 rule 19A.