Ferella as Executor of the Estate of the late Gustavo Ferella v Chief Commissioner of State Revenue

The application to this Court

The date of the Appeal Panel's decision and orders was 20 February 2023. On 17 March 2023, Angelo Ferella filed a Notice of Intention to Appeal on behalf of the plaintiff, indicating her intention to commence appeal proceedings on or before 22 May 2023, being three months after the material date. The plaintiff ultimately accepted, by her counsel in the hearing, that the notice of intention to appeal procedure did not apply to appeals under s 83 of the CAT Act. Counsel for the plaintiff relied on the filing of the notice of intention to appeal as indicating on its face an erroneous view of the appeal process, and submitted that the error should not preclude the plaintiff from bringing the application for leave to appeal under s 83 of the CAT Act.
In considering an application to extend time, four factors of general relevance are the length of the delay and reason for it, whether the applicant has a fairly arguable case, and the extent of any prejudice suffered by the respondent to the application: Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [55] (Basten JA, Hodgson and Ipp JJA agreeing). In the present case, for the reasons to which I will come shortly regarding leave I do not consider the case to be strong. However, the plaintiff, who was not legally represented at the time, did invoke an appeal process within 28 days of the Appeal Panel's decision, albeit by incorrectly filing a notice of intention to appeal from the decision; and the Summons was filed within days of the expiry of the three-month period that applies to such a notice. Apart from the prejudice to the finality of the proceedings, which is, of course, a significant consideration, the defendant did not identify particular prejudice to it in the proceedings being filed out of time. There was material before me indicating that the defendant's solicitors were informed that the notice of intention to appeal had been filed. Accordingly, I would extend time for the plaintiff to file the Summons.
What is determinative in the present case is the view I have reached on the application for leave to appeal, noting the constraints on appeals of this nature in s 83(1) of the CAT Act. It is well settled that in order to obtain a grant of leave to appeal under s 83(1) of the CAT Act, an applicant "must demonstrate something more than that the impugned decision of the Appeal Panel is arguably wrong": Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416 ("Targeted Property Investments") at [38] (Griffiths AJ). A grant of leave to appeal ordinarily requires a matter involving issues of principle, questions of general public importance, or an injustice that is reasonably clear in the sense of going beyond what is merely arguable: Jaycar Pty Limited v Lombardo [2011] NSWCA 284 at [46]; Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[38].
The parties both relied on the decision of Griffiths AJ in Targeted Property Investments at [33], in which his Honour summarised a number of important points regarding s 83, which I have extracted in full below: "(1) There is no appeal to this Court from a decision of the Appeal Panel as of right. The applicant must persuade the Court that leave should be granted. (2) An appeal is limited to 'an appeal on a question of law'. (3) As was recently emphasised in Thomas and Naaz [Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40] at [32], 'it is not sufficient merely to assert that the Tribunal erred in law in order to satisfy the limited conferral of jurisdiction'. (To similar effect, see Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378; (2014) 96 ATR 875 at [6] and [22]; and Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 at [13]). Accordingly, it is well-settled that a challenge which is wholly or partly factual cannot be converted into a question of law merely by asserting that a question of law is involved or merely by asserting error itself. (4) What constitutes a question of law is 'vexed and context dependent' in the sense that the distinction between matters of fact and of law may turn on the circumstances in which the question arises (see Thomas and Naaz at [52] and Da Costa v The Queen (1968) 118 CLR 186 at 194; [1968] HCA 51). (5) Although there is no clear test of what constitutes a question of law for the purposes of s 83 of the CAT Act, it is important not to lose sight of the continuing binding authority in this State of the Court of Appeal's decision (by majority) in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139. Azzopardi stands for the proposition that a particular finding which is alleged to be 'perverse' or 'unreasonable' or 'not reasonably open' is not ordinarily a question of law. At pp 155-156, Glass JA (with whom Samuels JA agreed, Kirby P dissenting) said: It is clear from these extracts that numerous pejorative expressions in common usage possess a single meaning and are interchangeable. To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding of a jury is vitiated in this way, it will be set aside because it is wrong in fact. Since the Act does not allow this Court to correct errors of fact, any argument that the finding of a Workers' Compensation Commission judge is vitiated in the same way discloses no error of law and will not constitute a valid ground of appeal. It is also pointless to submit that the reasoning by which the court arrived at a finding of fact was demonstrably unsound as this would not amount to an error of law: R v District Court of Metropolitan District Holden at Sydney; Ex parte White (1966) 116 CLR 644 at 654. (6) Furthermore, at p 157, Glass JA said: …when the law correctly stated is applied to the facts found in order to produce a conclusion error may intrude again. An erroneous conclusion that facts properly determined fail to satisfy a statutory test, for example, injury arising out of the [course] of employment, substantial interruption to journey, or failure to provide suitable employment will ordinarily be an erroneous conclusion of fact. It is only in marginal cases that the statutory test is satisfied or not satisfied as a matter of law, because no other application is reasonably open: Hope v Bathurst City Council; Australian Gas Light Co v Valuer-General. See also Thomas and Naaz at [53]. (7) It is unnecessary to decide for the purposes of this appeal whether a 'question of law' encompasses a mixed question of fact and law (see generally, at the federal level, the decisions of the Full Court of the Federal Court in Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 and May v Military Rehabilitation and Compensation Commission (2015) 233 FCR 397; [2015] FCAFC 93 and contrast the position at the State level, which is reflected in cases such as Attorney-General for the State of New South Wales v X (2000) 49 NSWLR 653; [2000] NSWCA 199 at [44]; Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220 at [60]; and Hanave Pty Ltd v Nomad Sydney Pty Ltd (formerly Wine Nomad Pty Ltd) [2023] NSWSC 265 at [45] per Chen J). (8) The existence of a question of law is not merely a qualifying condition to the statutory right of appeal; rather, the question of law alone is the subject matter of the appeal (see Osland v Secretary to the Department of Justice (No 2) (2010) 241 CLR 320; [2010] HCA 24 at [21] per French CJ, Gummow and Bell JJ and Davis v NSW Land and Housing Corporation [2016] NSWCA 325; (2016) 18 BPR 36,459 at [77] per McColl JA, with whom Meagher and Leeming JJA agreed). (9) Whether or not an appeal is on a question of law should be approached as a matter of substance and not merely form. As the Full Court of the Federal Court said in Haritos at [107], if, as a matter of substance, there exists a question of law, the Court has 'a procedural discretion, to be exercised judicially and where it is in the interests of justice to do so, to direct its formal identification in an amended notice of appeal even where the question of law has not been identified before the primary judge'. It is notable that the Court there viewed this approach as consistent with that of the Court of Criminal Appeal in R v JS [2007] NSWCCA 272; (2007) 175 A Crim R 108 at [57]-[69] per Spigelman CJ (with whom Mason P, McClellan CJ at CL, Hidden and Howie JJ agreed). Where an appellant is unrepresented, it may be appropriate to adopt a more generous or benevolent approach in assessing whether the notice of appeal identifies a question of law (see, for example, Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority [2014] FCA 314 at [75]-[77] per Mortimer J, as approved in Haritos at [104] and see also Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12]). (10) A s 83 appeal to this Court is confined to a decision of the Appeal Panel and does not extend to the NCAT at first instance (see Bronze Wing International Pty Ltd v Safework NSW [2017] NSWCA 41 at [10])."
Grounds 1 to 8 of the plaintiff's Summons were as follows: "1. Having held that: a) the Plaintiff (the Applicant below) was not required to sell horses in each year to meet the definition in s 10AA(3) of the Land Tax Management Act 1956 (NSW); b) three horses were maintained on the Box Hill property as brood mares; c) there was no other use to which the Box Hill property was put; and d) that it may take more than 11 months from covering a brood mare to obtain a live foal and then further time (several years) to be able to sell that progeny, the learned Senior Member at first instance: a) erred in holding that those animals were not maintained on the Box Hill property for the dominant purpose of natural increase or sale; and b) ought instead to have found that those animals were maintained on the Box Hill property for the dominant purpose of natural increase or sale. 2. The Appeal Panel erred in failing to so hold. 3. Having found the matters stated in sub-paragraphs 1(c) and (d), above, the learned Senior Member erred in holding that: a) the animals were not maintained on the Box Hill property for the purpose of natural increase or sale; b) the Box Hill property was not used for the dominant purpose of primary production in the relevant years. 4. The Appeal Panel erred in failing to so hold. 5. Having found the matter stated in sub-paragraph 1(c), above, the learned Senior Member erred (in concluding that the Box Hill property was not used for the dominant purpose of primary production in the relevant years) by relying upon the matter stated at [40] of her reasons; namely, that 'there was no evidence in these proceedings as to the extent to which Applicants used the property at Box Hill for maintaining horses and the extent to which the property was unused.' 6. The Appeal Panel erred in failing to so hold. 7. The learned Senior Member erred in holding that: a) the use to which the Box Hill property was put did not have a significant and substantial commercial purpose; and that b) the use to which the Box Hill property was put was not engaged in for the purpose of profit in [sic] a continuous or repetitive basis. 8. The Appeal Panel erred in failing to so hold."
Grounds 1, 3, 5 and 7 are in virtually identical terms to grounds 1 to 5 inclusive of the Amended Grounds of Appeal that were filed in the Appeal Panel (ground 1 in this Court incorporates grounds 1 and 2 of the grounds before the Appeal Panel). The challenge in those grounds to the decision of the Tribunal runs into the difficulty that Griffiths AJ identified in the tenth of his points about s 83. In Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [10], Basten JA examined the drafting of ss 82 and 83 of the CAT Act and concluded that the right of appeal in respect of an internal appeal in s 83(1) of the CAT Act is confined to the decision of the Appeal Panel. Leeming JA agreed with this part of Basten JA's reasons (at [61]), and Gleeson JA agreed with the reasons of Leeming JA (at [37]). It follows that grounds 1, 3, 5 and 7 cannot be considered independently of the grounds that follow each of them (grounds 2, 4, 6 and 8), in which the plaintiff alleges, without more, that the error of the Appeal Panel was "failing to so hold".
In response to the defendant's submission that none of the grounds involved a question of law, in oral submissions counsel for the plaintiff emphasised ground 5 of the Summons (which alleged error in the decision of the Tribunal) and the Appeal Panel's error in rejecting what the plaintiff had submitted before it in this regard. Grounds 5 and 6 rested on the premise that in reaching its conclusion the Tribunal relied, in [40], on an absence of evidence about the extent to which the Ferellas used the Property for maintaining horses and the extent to which it was unused. Relying on Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 ("Kostas"), the plaintiff submitted that the Tribunal had engaged in speculation, and reached its conclusion on use, on the basis of an absence of evidence.
The plaintiff's reliance on Kostas is misplaced. The decision is authority for the proposition that whether a factual finding is made without evidence to support it is a question of law, not a question of fact: at [91] (Hayne, Heydon, Crennan and Kiefel JJ). However, in [40] of its reasons, the Tribunal did not make any finding about use of the Property, doing no more than making a comment on the state of the evidence. Its ultimate conclusion regarding use rested on the Ferellas not having discharged the onus of establishing that the dominant use of the Property was for the purpose of maintaining the horses for the purpose of selling them or their natural increase. The Appeal Panel correctly concluded that this did not rest on an absence of evidence.
When counsel for the plaintiff was asked whether the plaintiff was pressing only ground 5, counsel submitted that all grounds were pressed on the basis that they identified questions of law. I do not accept that submission. Both grounds 1 and 2, and grounds 3 and 4, take issue with the characterisation of the use of the Property for the purposes of s 10AA(3) of the Land Tax Management Act. The plaintiff submitted, relying on Leda Manorstead at [69], that in circumstances where there was no other use to which the Property was put, the Tribunal (and Appeal Panel) erred in concluding that the horses were not maintained on the Box Hill Property for the dominant purpose of natural increase or sale.
As Kirk JA observed in Chief Commissioner of State Revenue v Godolphin Australia Pty Ltd [2023] NSWCA 44 ("Godolphin") at [33], characterising an activity as falling within or without a legal category is a familiar exercise, and "[a]s is regularly stated with such characterisation exercises, it is a matter of fact and degree taking account of all the circumstances". Although the High Court has granted special leave to appeal from the Court of Appeal's decision in Godolphin, the general observation to which I have just referred is not the subject of contest. In the present case, the plaintiff's submissions do not address the difficulty that on the facts found by the Tribunal on the evidence, which the Appeal Panel did not disturb, the plaintiff had not established, as a matter of fact, that its use of the Property satisfied the statutory description in s 10AA(3).
The present case is not one of the marginal of cases to which Glass JA referred in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 157, in which no other conclusion was reasonably open, on the facts as found, than that the statutory definition was satisfied. As is apparent from the passage of Payne J's reasons in Young at [144], extracted above, it does not follow from evidence of the maintenance of horses on land that they are maintained on land for the purposes of sale: "[t]hat must be established by proof." The plaintiff did not satisfy the Tribunal that she had that proof, and the Appeal Panel did not find any legal error in the Tribunal reaching that conclusion.
The plaintiff's recourse to the intention and purpose of the taxpayer, relying on Saville v Commissioner of Land Tax (NSW) (1980) 12 ATR 7 ("Saville") at 12, highlights both the factual nature of the plaintiff's challenge and her misunderstanding of the basis for the Tribunal's conclusions. The passage from Saville on which the plaintiff relied was as follows: "Plaintiffs' counsel submitted that where there was an hiatus period, a lesser degree of activity would be sufficient to satisfy the requirement that the land was used primarily for the relevant purpose. It was further submitted that when a particular use is competing only with non-use, less activity need be shown than when there is a competing use. As a general proposition I am of the view that each of those statements is valid, but they are only another way of saying that in determining this question of 'fact and degree' all relevant matters must be taken into account, and that where there is a considerable degree of non-use, intention can and should be looked at as one of the matters capable of assisting in determining whether the slight actual use is sufficient, in all the circumstances, to give the land the required 'character'."
As I have already explained, it is apparent from the reasons of the Tribunal, properly understood by the Appeal Panel, that it did not treat the present case as one involving a choice of characterisation between a particular use and non-use. Further and in any event, accepting for present purposes some ongoing applicability of what Roden J said in Saville (as to which see Chief Commissioner of State Revenue v Metricon Qld Pty Ltd [2017] NSWCA 11 ("Metricon") at [48] (Barrett AJA, Macfarlan and Ward JJA agreeing)), the Ferellas did not lead any evidence of subjective intention, as the Appeal Panel noted. To the extent that subjective intention is relevant in cases of this kind (see Metricon at [60]), the Appeal Panel rejected the plaintiff's submission that intention was necessarily "implicit" in the evidence led in the Tribunal. No question of law attends the rejection of that submission.
The same difficulties as I have identified for grounds 1 to 4 attends the error that the plaintiff asserted with the Tribunal's conclusion, which the Appeal Panel confirmed, in relation to s 10AA(2) of the Land Tax Management Act, which is the subject of grounds 7 and 8. The essentially factual nature of the challenge to the Appeal Panel's conclusions on s 10AA(2) is relevant to the question of leave, noting that in order to obtain the relief she seeks the plaintiff would have to establish error in the conclusion of the Appeal Panel both as to s 10AA(3) and s 10AA(2).
The plaintiff also advanced a submission in relation to the Tribunal's conclusion on s 10AA(2), that it had "failed to pay any regard to the principles as to use and intention that were enunciated by Roden J in Saville's Case". For the reasons I have already set out at [34], the plaintiff's submissions misunderstood the reasoning of the Tribunal (by contrast with Appeal Panel, which well understood that reasoning) and do not account for the absence of any evidence of their subjective intention.
Counsel for the plaintiff submitted that consideration of the effect of Saville constituted an issue of principle, and raised a question of general public importance. Counsel described the latter in terms of the interest of persons on whom land tax is levied in understanding "how non-use is to be married up to or compared against particular use". For the reasons I have set out above I do not accept that the present case raises that issue.

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