respondent. Applications relating to land tax years 2011–2018 dismissed under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013. Application relating to 2019 to be listed for directions.
Key principles
A document purporting to be an objection to a taxation assessment is not an 'objection' for the purposes of Part 10 of the Taxation Administration Act 1996 (TAA) if it is lodged...
Where the Chief Commissioner refuses permission under s 90 TAA to lodge an out-of-time objection, that refusal itself is a 'decision' capable of objection and review only if the...
A taxpayer who has had a taxation assessment fully litigated and finally determined by a competent tribunal or court is, on cause of action estoppel (res judicata), precluded...
The Tribunal will refuse to grant an extension of time under s 99(1) TAA to lodge a review application where the applicant offers no substantive material to justify a multi-year...
Issues before the court
Does the Tribunal have jurisdiction under s 96(1) TAA to review land tax assessments for 2012, 2013, 2014, 2017 and 2018 where objection forms were...
Plain English Summary
The Tribunal dismissed the Applicants' attempts to review land tax assessments for 2011–2018. For 2012, 2013, 2014, 2017 and 2018 the Tribunal found no jurisdiction because the objections were lodged outside the 60-day time limit and the Commissioner refused to accept them late. For 2015 and 2016 the Tribunal refused to grant a multi-year extension to apply for review given the delay and absence of supporting material. The 2011 assessment was already finally decided through earlier ADT and Court of Appeal proceedings, so it could not be re-litigated. Only the 2019 assessment was permitted to proceed. The Tribunal dismissed the 2011–2018 matters under s 55(1)(b) NCAT Act.
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
1,895 words · generated 13/09/2026
What happened
G & N Ferella (the Applicants) have for many years disputed land tax assessments made by the Chief Commissioner of State Revenue (the Commissioner) in relation to a Box Hill property; they assert the property is used for primary production and thus exempt from land tax. Earlier litigation (ADT, ADT Appeal Panel and the Court of Appeal) resolved the 2007–2011 years against the Applicants (see Ferella litigation citations in the decision). In May 2019, Angelo Ferella (who asserted he held a power of attorney) lodged objection forms (OSR 027C) for each land tax year 2011–2019. The Commissioner responded by two letters dated 17 July 2019 and 26 July 2019: the 17 July letter refused to accept certain out-of-time objections (2012, 2013, 2014, 2017, 2018) and explained the 2011 year had been the subject of prior final litigation; the 26 July letter disallowed the 2019 objection and gave reasons.
Can the Applicants re-litigate the 2011 assessment in the Tribunal after the ADT, ADTAP and Court of Appeal decisions?
Should the Tribunal exercise its discretion under s 99(1) TAA to extend time for the Applicants to apply for review of 2015 and 2016 assessments?
What is the appropriate disposal under NCAT Act when multiple jurisdictional and substantive defects render an application lacking in substance?
Cited legislation
No linked legislation citations have been extracted yet.
On 26 September 2019 an application for administrative review was filed with NCAT (effectively nine separate applications, one per year, lodged on a single form). The Tribunal granted a short extension for the 2019 matter but listed a preliminary hearing to determine jurisdictional issues for the remaining years. The Applicants did not file written submissions or attend the telephone preliminary hearing on 30 April 2020. The Tribunal proceeded on the Commissioner’s evidence and submissions and dismissed the applications for the years 2011–2018. The 2019 application was permitted to proceed and was listed for directions.
Why the court decided this way
The Tribunal’s decision turns on statutory jurisdictional preconditions in Part 10 of the Taxation Administration Act 1996 (TAA) and on finality principles.
Key statutory points the Tribunal applied (contained in the decision under "The relevant legislation"):
A taxpayer must lodge a written objection against an assessment within 60 days of service (s 89(1) TAA).
The Commissioner may permit late objections under s 90 TAA but must be asked and given reasons.
The Tribunal may review a decision of the Commissioner only where that decision has been "the subject of an objection under Division 1" of Part 10 (s 96(1) TAA).
The Tribunal may allow an application for review out of time under s 99(1), but this is discretionary and must be exercised judicially.
For 2012, 2013, 2014, 2017 and 2018 the Tribunal accepted the Commissioner’s position (as reflected in the 17 July 2019 letter) that the OSR 027C forms were lodged outside the 60-day period and the Commissioner refused to permit them; relying on the NSW Court of Appeal decision in Chief Commissioner of State Revenue v Paspaley [2008] NSWCA 184 the Tribunal held that a document lodged out of time and refused permission is not an 'objection' for the purposes of s 86/s 96 and therefore the Tribunal lacks jurisdiction to review the underlying assessments. The Tribunal emphasised that the statutory pathway must be followed: a late objection only becomes an operative 'objection' if permission under s 90 is granted and, if permission is refused, a taxpayer must first object to that refusal and have it determined before seeking Tribunal review.
For 2015 and 2016 the Applicants had previously lodged objections on 3 May 2016 which were disallowed on 15 June 2016 (Ex R1, SB-1). The Tribunal held that the Applicants had until 14 August 2016 to apply to the Tribunal but did not do so until 26 September 2019. The Tribunal applied the principles governing extension of time under s 99(1) TAA, guided by prior Tribunal authorities (Daoud [2015] and D W Tolson [2016]) which require consideration of length and reason for delay, prospects, prejudice and the need for finality. The Applicants provided no persuasive material explaining the three-year delay; the only contemporaneous explanation offered in the application related to recent ill health and fractures which did not account for the 2016–2019 gap. Given the lengthy unexplained delay, prior notice of review rights, and the absence of supporting evidence on prospects, the Tribunal refused the extension.
For 2011 the Tribunal concluded the matter had been finally litigated and determined through the ADT, the ADT Appeal Panel and the Court of Appeal. Applying cause of action estoppel (res judicata) as explained in Pickering v Yi [2015] NSWCATAP 161, the Tribunal held the Applicants were precluded from re-litigating the 2011 assessment.
Procedurally the Tribunal noted it might have dismissed for non-appearance under s 55(1)(c) NCAT Act but chose instead to consider and decide the jurisdictional issues on the merits and dismissed the 2011–2018 applications as 'lacking in substance' under s 55(1)(b).
Before and after state of the law
Before this decision the legal landscape was already shaped by the statutory structure of Part 10 TAA and the Court of Appeal’s ruling in Paspaley that out-of-time documents refused permission cannot be treated as objections for the purposes of judicial review. The Tribunal applied those principles in a fact-specific context and reinforced a strict application of the statutory pathway for review of taxation decisions:
Pre-existing rules applied: time limits for objections (s 89), limited jurisdiction of Tribunal to review only decisions that have been the subject of an objection (s 96(1)), and the Commissioner’s power to permit late objections (s 90).
The Tribunal applied Paspaley and prior Tribunal authorities (Daoud, D W Tolson) to refuse jurisdiction where the statutory steps were not followed or to decline an extension of time where delay and lack of prospects justified refusal.
After this decision, practitioners can expect NCAT to:
Treat late-objection documents refused by the Commissioner as not triggering Tribunal jurisdiction unless the statutory objection and review pathway has been otherwise exhausted.
Require a well-evidenced, persuasive explanation for lengthy delays before granting extensions under s 99(1).
Rely on prior final adjudications to bar subsequent attempts to re-open the same assessment.
The decision therefore reinforces procedural finality and the need to follow the statutory scheme precisely.
Judgment phrase: "a document that seeks to object ... is not an 'objection' ... if it is lodged out of time and the Chief Commissioner declines to permit the taxpayer to lodge an objection late: Chief Commissioner of State Revenue v Paspaley [2008] NSWCA 184 at [37]."
Plain English: If you file an objection after the 60-day limit, and the Commissioner refuses to accept it, that late filing does not count as a valid objection and the Tribunal cannot consider the underlying tax assessment.
On the required pathway for reviewing a refusal to permit late objections:
Judgment phrase: "Where the Chief Commissioner refuses permission to lodge an objection after the 60 day period, there seems to be no reason why a written objection may not be lodged with respect to that decision... If an objection were to be lodged, but rejected, there would appear to be statutory power to review the decision to refuse permission..."
Plain English: If the Commissioner refuses to let you lodge a late objection, you should object to that refusal first; only after that objection is decided can you apply for Tribunal review, following the statutory process.
On cause of action estoppel:
Judgment phrase: "Cause of action estoppel ... is where a final decision ... disposes once and for all of the matters decided so they cannot be thereafter raised or re-litigated."
Plain English: A final court or tribunal decision about a particular legal issue stops you from bringing the same argument again in later proceedings.
On extension of time approach:
Judgment phrase (quoting Daoud/Tolson principles): "Time limits... promote the orderly and efficient conduct of proceedings... For these reasons, time limits should generally be strictly enforced unless the interests of justice require that the extension be granted."
Plain English: Extensions of time are exceptional; the Tribunal will enforce deadlines unless strong justice-based reasons, supported by evidence, justify an extension.
What fact patterns trigger this precedent
This decision is triggered in cases with the following facts:
A taxpayer lodges out-of-time objections to tax assessments and the Commissioner refuses permission to accept them under s 90 TAA.
A taxpayer seeks to bypass the statutory objection pathway and goes directly to NCAT hoping the Tribunal will accept the out-of-time objection as sufficient to create jurisdiction.
A taxpayer seeks Tribunal review years after a Commissioner determination and offers no contemporaneous or substantial explanation for the multi-year delay.
An earlier final adjudication (by ADT, appeal panel, or superior court) has already resolved the same assessment issue on the merits and the taxpayer attempts to re-litigate that year's assessment.
In those fact patterns the Tribunal will likely find no jurisdiction (if the Commissioner refused late objections), refuse to grant lengthy extensions without evidence, and apply cause of action estoppel where appropriate.
How later courts have treated it
This decision applies established authorities rather than creating a novel rule. It follows Paspaley on the jurisdictional effect of refused late objections, and applies Tribunal extension-of-time jurisprudence from Daoud and D W Tolson. It confirms that NCAT will enforce Part 10 procedural requirements strictly. Subsequent decisions citing this judgment would likely treat it as an application of Paspaley and extant Tribunal principles to concrete facts where late objections were refused and where extension of time was not justified.
(At the time of this decision the judgment itself cites and applies those authorities. Any subsequent appellate treatment of this particular NCAT ruling would depend on later case law; the decision should be read as a fact-specific application of settled principles.)
Still-open questions
The decision reiterates that a refusal to permit a late objection is itself a 'decision' that can be objected to. The precise boundary of what constitutes adequate pleading and evidence when objecting to the refusal (as distinct from objecting to the underlying assessment) can remain a practical grey area. How much detail and objective proof must be provided on an objection to a refusal before the Commissioner must consider it in substance is fact-dependent.
The Tribunal emphasised the need for material addressing prospects of success when exercising the extension discretion. The level and type of material sufficient to satisfy the Tribunal in cases of moderate delay (for example, several months, not years) remains a case-by-case inquiry.
The decision disallowed a multi-year extension where the Applicants had prior notice of review rights. It leaves open how the Tribunal would treat a similar delay where a vulnerable applicant alleges prolonged incapacity or other continuing disability, provided independent corroborating evidence is filed.
The decision relied on Paspaley to treat out-of-time filings refused by the Commissioner as not constituting 'objections' for s 96. Where a Commissioner gives partial practicable consideration to a late request (for example, allowing inquiry but not granting full permission), the legal characterisation may raise nuanced questions about whether the document can be treated as an 'objection', those shades are not directly tested here.
Final note (important): This analysis is a structured explanation of the Tribunal's decision in Ferella v Chief Commissioner of State Revenue [2020] NSWCATAD 128, grounded in the judgment text. It is general legal information, not legal advice, and I may make mistakes. Before acting on or relying on any part of this analysis, or using any draft or form derived from it, get a qualified Australian lawyer to check it.
Judgment (13 paragraphs)
[1]
reasons for decision
The immediate question for the Tribunal is whether it has jurisdiction to consider applications for review, lodged on behalf of the Applicants, and concerning land tax assessments for the land tax years 2011 to 2018 inclusive. I have concluded that the applications relating to some of the land tax years do not attract the Tribunal's jurisdiction, and for some of the remaining years the applications are out of time. The only application that can proceed is the application relating to the 2019 land tax year. These are the reasons for my conclusion.
[2]
Background
The Applicants have been assessed to land tax every year since at least 2000. They evidently believe the assessments are wrong but their attempts to overturn the assessments have been somewhat lacking in method and consistency.
The Applicants claim the main property they own, which is situated in Box Hill, is used for primary production purposes and is therefore exempt from land tax. The respondent Chief Commissioner has repeatedly rejected the exemption claim.
In 2013 the Applicants took their claim to the Administrative Decisions Tribunal (ADT). The ADT confirmed the land tax assessments for the 2007 to 2011 land tax years (Ferella v Chief Commissioner of State Revenue [2013] NSWADT 46), a position that was not disturbed by an ADT Appeal Panel (Ferella v Chief Commissioner of State Revenue [2013] NSWADTAP 45) or, subsequently, by the Court of Appeal (Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378).
Since then, land tax assessment notices have issued from the Chief Commissioner's office, generally in January or February each year, sometimes later. Each notice reflects the Chief Commissioner's view that the Applicant's property does not attract the primary production exemption.
Since the litigation in 2013/2014 the Applicants have taken hardly any steps to try to have later assessments overturned. They objected against the 2015 and 2016 assessments in 2016, but the objections were disallowed. They did not take the matter any further at that time. They did not object in a timely fashion to any of the other assessments they received, but nor did they pay the tax assessed. As a result the Chief Commissioner claims they now owe over $400,000 in land tax, stretching back almost 20 years.
Then, in May last year, their son Angelo (who claims to hold the Applicants' Power of Attorney) lodged separate objections to the land tax assessments for each of the land tax years from 2011 to 2019 inclusive. In response to those objections, the Chief Commissioner issued two letters: one dated 17 July 2019 (the 17 July letter) and the other dated 26 July 2019 (the 26 July letter).
The 17 July letter said:
The assessment for 2011 had already been dealt with by the Court of Appeal in 2014 (see above) and as a result the Applicants 'cannot object against that assessment';
The Applicants had already objected against the 2015 and 2016 assessments and those objections had been disallowed; the Applicants were told they 'cannot object again against those assessments'; and
The objections against the assessments for 2012, 2013, 2014, 2017 and 2018 were outside the 60-day time limit for lodging an objection; the Chief Commissioner considered whether to accept the objections out of time but declined to do so.
The 26 July letter notified the Applicants their objection to the 2019 assessment had been disallowed, and provided reasons for that decision.
On 26 September 2019 the Tribunal received an 'Administrative review application form' by which 'Angelo Ferella (Power of Attorney for Applicant)' sought review of the various decisions of the Chief Commissioner, as reflected in the 17 July letter and the 26 July letter. In section 3 of the form, headed 'Grounds for Application', Mr Ferella complains of the 'erroneous' and 'inaccurate' reasoning of the Chief Commissioner in the 17 July letter, claiming again that the Box Hill land is used for primary production activities. In section 5 of the form, headed 'Late Applications', Mr Ferella accepts the application to the Tribunal is lodged outside the statutory 60-day time limit, stating:
The application is lodged outside the time prescribed only with regard to the determination of 17.7.2019 and not the second determination of 26.7.2019. I have not been well after having surgery for bilateral hernias, further I sustained a injury (sic) having fractured 2 ribs, now I am having to deal with the flu and have not been well for several weeks.
The suggestion that the application for review was lodged within time as it relates to the decision conveyed in the 26 July letter is not correct, the application having been received by the Tribunal on 26 September 2019, which is 62 days after the date of issue of the letter. In any event, the Tribunal on 12 November 2019 granted the two-day extension of time for the lodgement of the application to review the 2019 assessment, which means that the application for review, to that extent, has been permitted to proceed.
In relation to the remaining matters the Applicant is seeking to agitate, the Tribunal directed, also on 12 November 2019, that:
The proceedings be listed for a preliminary hearing on the 'jurisdictional issue' on 30 January 2020 (Direction 3);
The Chief Commissioner file and serve his evidence and submissions for the preliminary hearing by 4 December 2019 (Direction 4); and
The Applicants file and serve their evidence and submissions for the preliminary hearing by 22 January 2020 (Direction 5).
Those dates were subsequently varied - with the compliance date for Direction 4 extended to 20 December 2019, and the compliance date for Direction 5 extended first to 24 February 2020, and then to 23 April 2020. The date for the preliminary hearing was moved first to 27 February 2020, and then to 30 April 2020.
Because of the global coronavirus pandemic, the Tribunal, after seeking and considering the views of the parties, ordered the preliminary hearing to be conducted by telephone rather than in person. Mr Ferella had wanted the hearing adjourned, claiming on 15 April 2020 that he had insufficient time to reply to the Chief Commissioner's argument (which had been filed on 13 January 2020), and leaning heavily on what he identified as the 'disruptions' caused by the pandemic, but without particularising how those 'disruptions' were affecting his ability to proceed with the Applicants' case or to attend the preliminary hearing. The adjournment application was refused; the preliminary hearing was listed to proceed on 30 April 2020, commencing at 10:00 a.m.
[3]
The conduct of the preliminary hearing on 30 April 2020
Mr Ferella did not join the telephone hearing at 10:00 a.m. In attendance at that time were Ms Graham and Mr McGowan, counsel and solicitor respectively for the Chief Commissioner, and Mr Benjamin, one of the Chief Commissioner's officers. Mr Ferella still had not joined by 10:10 a.m. At that point the Tribunal asked Mr McGowan to try to contact Mr Ferella by phone. The hearing was suspended to allow that to happen, with the hearing to resume at 10:30.
Upon resumption at 10:30 Mr McGowan reported that Mr Ferella had not answered the phone, the call had diverted to voicemail, Mr McGowan had left a message for Mr Ferella to call him, and he had not heard back from him. Mr McGowan also reported that he had sent an urgent email to Mr Ferella's known email address, providing the telephone hearing details again, and notifying Mr Ferella that the hearing was adjourned until 10:30. I chose to proceed with the hearing, confident that by having Mr McGowan try to contact Mr Ferella and provide, once again, information on how to join the hearing, the Applicants had been given, through their representative, the 'reasonable opportunity to be heard' that is required to be given to them by s 38(5)(c) of the Civil and Administrative Tribunal Act 2013 (NCAT Act).
I informed Ms Graham that, if Mr Ferella did not join the call at any stage, I expected her during the telephone hearing not only to advocate her client's position but to raise and respond to any arguments that she could identify that might assist the Applicants' case. She readily agreed to that course, and I commend her for her willingness to assist the Tribunal in that way.
In relation to the jurisdictional issues the Chief Commissioner relies on the affidavit of Susai Benjamin, affirmed on 19 December 2019, and exhibit SB-1 to that affidavit (marked in its entirety as Exhibit R1 for the purposes of the preliminary hearing), and the written submissions filed on 13 January 2020, 30 March 2020 and 16 April 2020.
No written evidence or submissions have been filed by Mr Ferella on behalf of the Applicants, despite the Tribunal's direction requiring them to be filed and served by 23 April 2020. However, Mr Ferella had earlier communicated with the Tribunal and the Chief Commissioner by email, on 5 December 2019, 2 February 2020, and 6 and 15 April 2020. Although those emails contain nothing of substance in relation to the jurisdictional issues, I have nevertheless taken them into account, to the extent they are relevant.
[4]
The relevant legislation
Part 10 of the Taxation Administration Act 1996 (TAA) contains the relevant legislation. Division 1 (ss 86-95) deals with objections against decisions of the Chief Commissioner, including assessments; Division 2 (ss 96-103A) deals with the review of decisions by the Tribunal or by the Supreme Court.
A simplified summary of those provisions, as relevant to the current applications, is as follows:
1. A taxpayer who is dissatisfied with an assessment or other decision of the Chief Commissioner may lodge a written objection with the Chief Commissioner - s 86(1);
2. The grounds for the objection must be stated fully and in detail, and must be in writing - s 87(1);
3. On an objection, the objector has the onus of proving the objector's case - s 88;
4. An objection must be lodged with the Chief Commissioner not later than 60 days after the date of service of the notice of the assessment - s 89(1) - except as provided by s 90, as set out in detail below;
5. The Chief Commissioner must consider an objection and either allow the objection in whole or in part, or disallow the objection - s 91(1);
6. The Chief Commissioner must give notice to the objector of the determination of the objection - s 93(1);
7. A taxpayer may apply to the Tribunal for an administrative review of a decision of the Chief Commissioner that has been the subject of an objection under Division 1 of Part 10 of the TAA if the taxpayer is dissatisfied with the Chief Commissioner's determination of the objection - s 96(1)(a);
8. An application for review following a determination by the Chief Commissioner of an objection must be made not later than 60 days after the date of issue of the notice of the Chief Commissioner's determination of the objection, but the Tribunal may allow a person to apply for a review after that 60-day period - s 99(1);
9. The Supreme Court and the Tribunal are the only bodies with jurisdiction to consider any question concerning an assessment or other decision of the Chief Commissioner under a taxation law - and even then, only in accordance with the procedures set out in Part 10 of the TAA - s 103A.
Section 90, noted as an exception to the general rule in s 89(1) as to the 60-day time limit for lodging objections, provides as follows:
90 Objections lodged out of time
(1) The Chief Commissioner may permit a person to lodge an objection after the 60-day period.
(2) The person seeking to so lodge the objection must state fully and in detail, and in writing, the circumstances concerning and the reasons for the failure to lodge the objection within the 60-day period.
(3) The Chief Commissioner may grant permission unconditionally or subject to conditions or may refuse permission.
(4) The Chief Commissioner must give notice to the person of the Chief Commissioner's decision and include in the notice the reasons for refusing to grant permission or for imposing conditions of the permission.
(5) The notice is to be in a form approved by the Chief Commissioner.
[5]
The application to the Tribunal for review
The Applicants have not made a single application to the Tribunal for review; they have actually made nine applications, one in respect of each of the nine land tax years from 2011 to 2019 inclusive, even though they are all included in the one application form. (Since the Tribunal has granted an extension of time for the lodgement of the application in respect of the 2019 land tax year, the remainder of these reasons only deal with the land tax years 2011 to 2018 inclusive.)
There is some commonality between the applications in respect of some of the remaining land tax years. For example, the applications in respect of the 2012, 2013, 2014, 2017 and 2018 years have common characteristics, and they can be dealt with together, in a category of their own.
The applications in respect of the 2015 and 2016 years also have common characteristics, and it will be convenient to deal with them together, in a different category.
The application in respect of the 2011 year has unique characteristics, and it will need to be dealt with by itself.
[6]
The objections
Before I come to consider any of the applications in detail, it is helpful to provide some background to the information provided to the Chief Commissioner in the objection forms lodged with the Chief Commissioner's office.
All the documents purporting to object in relation to the land tax years 2011 to 2018 inclusive (Ex R1, SB-1, Tab 11) are dated 14 May 2019. They are on the March 2018 version of the Chief Commissioner's standard form OSR 027C, 'Objection to an Assessment or Decision'.
OSR 027C contains the following information on page 1:
Under section 89 of the Taxation Administration Act 1996, an objection must be lodged with the Chief Commissioner of State Revenue no later than sixty (60) days after the date of service of the notice of assessment or written decision.
If you are lodging your objection outside of this time, you must provide reasons for the delay.
Note: The Chief Commissioner of State Revenue is not obliged to accept your reasons and your objection may not be considered.
On page 2, the form says that if you answer 'No' to the question whether the objection has been lodged within the 60-day time limit:
… you must provide reasons for the delay with any relevant documentation in support of your reasons.
These are the reasons provided on behalf of the Applicants for the 2012 land tax year:
The Ferellas did not receive the 2012 Land Tax Assessment. An application for Exemption of Primary Production of land was lodged in December 2012, no reply has been received nor any determination of the Primary Production Activity. The Ferella properties were severed by the Official Trustee in Bankruptcy and removed from title to the properties, the titles since being restored mid 2018.
The reasons provided on behalf of the Applicants for the 2013, 2017 and 2018 land tax years were substantially the same, except that the references to '2012' were instead references to '2013', '2017' and '2018' respectively.
The reasons provided for the 2011, 2014, 2015 and 2016 land tax years were also substantially the same as those for 2012, with '2011', '2014', '2015' and '2016' respectively substituted for '2012', and with the first sentence deleted - so that, in other words, the Applicants did not claim not to have received the notices of assessment for those years.
[7]
The applications in respect of the 2012, 2013, 2014, 2017 and 2018 land tax years
For the Tribunal to have jurisdiction to undertake an administrative review of a decision of the Chief Commissioner, the impugned decision must have been 'the subject of an objection under Division 1 [of Part 10]': s 96(1) of the TAA. In respect of the 2012, 2013, 2014, 2017 and 2018 land tax years, the Chief Commissioner contends that the Tribunal lacks jurisdiction because no objection under Division 1 of Part 10 has been lodged against any of the land tax assessments.
It is certainly the case that the Applicants had not lodged objections against the assessments for any of these years before they lodged the various OSR 027C forms on or around 14 May 2019: Ex R1 at [8]. But the Chief Commissioner submits that lodging these forms did not amount to the lodgement of objections under Division 1 of Part 10 of the TAA, because they were lodged out of time and the Chief Commissioner did not permit the Applicants to lodge them late: s 90 of the TAA.
That submission is correct; a document that seeks to object against a decision of the Chief Commissioner is not an 'objection' for the purposes of s 86 or s 96 if it is lodged out of time and the Chief Commissioner declines to permit the taxpayer to lodge an objection late: Chief Commissioner of State Revenue v Paspaley [2008] NSWCA 184 at [37] (Basten JA, Giles and Campbell JJA agreeing). (In Paspaley the Court of Appeal held that such documents are not 'objections' 'for the purposes of ss 86 or 97' but the same conclusion must apply for s 96 (review by the Tribunal) as for s 97 (review by the Supreme Court) since the provisions are relevantly identical.)
The Court also explained in Paspaley at [27]:
Importantly, the review provided by s 97 (consistently with s 96) is limited to a decision "that has been the subject of an objection under Division 1": s 97(1). Accordingly, a decision to which an objection cannot be taken, and a decision to which an objection has not been taken, will not fall within the scope of s 97 (providing a review by this Court), but will fall within the exclusion in s 103A(1).
The assessments for the land tax years 2012, 2013, 2014, 2017 and 2018 are decisions 'to which an objection has not been taken' because the forms lodged with the Chief Commissioner were out of time and permission to lodge late was refused. The assessments therefore do not fall within the scope of s 96 (the cognate provision to s 97) and the Applicants are therefore not entitled to apply to the Tribunal for an administrative review of those assessments.
[8]
The applications in respect of the 2015 and 2016 land tax years
The next category of applications to consider comprises the applications in respect of the 2015 and 2016 land tax years.
The starting point is that the Applicants had previously objected against the assessments for these years on 3 May 2016: Ex R1 at 8; SB-1, Tab 10. Those objections were determined, adversely to the Applicants, on 15 June 2016, on the ground that the primary production exemption was not available: Ex R1 at 9; SB-1, Tab 14.
The Chief Commissioner's determination of the objections on 15 June 2016 started the clock running under s 99(1) of the TAA. The Applicants had until 14 August 2016 to apply to the Tribunal for administrative review of the 2015 and 2016 assessments. They did not lodge an application with the Tribunal by that date; in fact, they appear to have done nothing about the 2015 and 2016 assessments until lodging what must be regarded as a second objection against each assessment on 14 May 2019. (I note here that 'repeat' objections against a specified decision of the Chief Commissioner, at least where the Chief Commissioner has already determined the first objection, are not contemplated by the legislative scheme, which gives taxpayers one chance, and one chance only, to contest a decision.)
In any event, and looking at the position through the lens of s 96(1)(a) of the TAA, the 2015 and 2016 assessments are decisions of the Chief Commissioner that have been the subject of an objection (lodged on 3 May 2016), the objections have been determined by the Chief Commissioner (on 15 June 2016), and the Applicants can be taken to be dissatisfied with the Chief Commissioner's determination. As to this last point, the Applicants have not, in their application to the Tribunal, specifically expressed dissatisfaction with the Chief Commissioner's determination of the objections in 2016; instead they have expressed dissatisfaction with the content of the 17 July letter, which includes rejection of the 'second' objections on the Chief Commissioner's correct reasoning that second chances are not available under the legislative scheme. But at least in practical terms the Applicants can also be taken to be dissatisfied with the 15 June 2016 determination of the Chief Commissioner - a conclusion that can be drawn from the fact that they objected against the assessments (in 2016), and the determination of the objection was based on the same view of the facts as had underpinned the assessments in the first place.
[9]
The application in respect of the 2011 land tax year
The assessment for the 2011 land tax year has already been the subject of consideration and determination by the ADT, an Appeal Panel of the ADT and the Court of Appeal, under the statutory review provisions as they existed at that time. Mr Ferella is well aware of that fact - he himself gave evidence in the ADT: Ferella v Chief Commissioner of State Revenue [2013] NSWADT 46 at [6]-[25].
The Chief Commissioner submits that the administrative review already conducted in the ADT in respect of the 2011 land tax year was litigation that 'dispose[d] once and for all of the matters decided so they cannot be thereafter raised or re-litigated': see [66] below. The Applicants are therefore, according to the submission, estopped from re-agitating their application in this Tribunal in respect of the 2011 land tax year.
The submission is based on what was said by the Appeal Panel concerning 'cause of action estoppel' in Pickering v Yi [2015] NSWCATAP 161 at [55], as follows:
Cause of action estoppel, arising from the doctrine of res judicata, is where a final decision is made by a Court or Tribunal having competent jurisdiction over the cause or matter in litigation which disposes once and for all of the matters decided so they cannot be thereafter raised or re-litigated. First, the decision precludes any party to the litigation from disputing the correctness of the earlier decision in law and fact. Secondly, the right or cause of action is extinguished, merging in the judgment which is pronounced in the earlier proceedings. At a practical level cause of action estoppel (or res judicata) is a defence to a claim made in legal proceedings and, if established, is a complete bar to subsequent proceedings.
There is no doubt that the question of exemption from land tax in respect of the 2011 land tax year was fully litigated in 2013 and determined on the merits. The substance of the Applicants' claim was that the dominant use of the Box Hill property was for primary production; that issue was decided squarely against the Applicants. It is not now open to them to contest the 2011 land tax assessment again - whether on the primary production argument or on any other. The decision of the ADT, while expressed (incorrectly) as affirming the objection decision, was in fact a decision confirming the assessment itself. As s 96(1)(a) makes clear, it is not the objection that is under review in the Tribunal (or in the ADT prior to 2014), but the substantive decision that was the subject of the objection - in other words, the assessment.
[10]
Summary
The applications for review in respect of the land tax years 2011 to 2018 inclusive cannot proceed.
Specifically:
1. In respect of the 2011 land tax year - the Applicants are precluded by 'cause of action estoppel' from contesting the assessment for a second time;
2. In respect of the 2012, 2013, 2014, 2017 and 2018 land tax years - the Applicants have failed to comply with the statutory scheme and the Tribunal therefore lacks jurisdiction to consider the applications;
3. In respect of the 2015 and 2016 land tax years - the Tribunal declines to allow the Applicants to apply for an administrative review after the expiration of the 60-day period in s 99(1) of the TAA.
[11]
Decision
The most appropriate way to dispose of the applications is to dismiss the proceedings, to the extent that they relate to the land tax years 2011 to 2018 inclusive, under s 55(1)(b) of the NCAT Act.
I have come to that view after considering, in detail, each of the three categories of applications and determined that in each category the application is 'lacking in substance' for the purposes of s 55(1)(b).
For the avoidance of doubt, I note that dismissal under s 55(1)(c) of the NCAT Act might have been available once it became clear that there was no appearance at the preliminary hearing by or on behalf of the Applicants. If I had thought it appropriate to dismiss the applications under s 55(1)(c) I would have taken that action shortly after the resumption at 10:30. I did not think it appropriate, and so I declined to do so. Instead I chose to consider and determine the issues on the merits. I reached the firm conclusion that each application was lacking in substance, and that they should be dismissed under s 55(1)(b).
[12]
Orders
1. Applications in respect of the 2011 to 2018 land tax years inclusive dismissed under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013.
2. Application in respect of the 2019 land tax year to be listed for directions at the earliest opportunity.
[13]
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
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 12 May 2020
Applications relating to land tax years 2011–2018 dismissed under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013. Application relating to 2019 to be listed for directions.
A few important points may be noted here.
First, and subject to the exceptional case in s 96(1)(b) (which is not relevant here), a person is not permitted to apply to the Tribunal for an administrative review of a decision of the Chief Commissioner unless the decision has first been objected against, and the objection has been determined.
Second, the obligation imposed on the Chief Commissioner by s 91(1) to consider and determine an objection lodged outside the 60-day time limit is not enlivened unless the Chief Commissioner permits the objection to be lodged late.
Third, an objection must be in writing and must state fully and in detail the grounds relied on by the taxpayer.
Fourth, an application to the Tribunal is itself subject to a 60-day time limit for lodgement, unless the Tribunal grants an extension of time.
Finally, the procedures under Part 10 of the TAA must be followed if a taxpayer wishes to contest an assessment or other decision of the Chief Commissioner.
The papers filed with the Tribunal do not indicate that any documentation was provided to the Chief Commissioner to support the reasons for the delay in lodging the objections.
I now turn to the next step in the process, which concerns the applications to the Tribunal. As indicated above, I will deal with each category separately.
In the alternative, it might be argued by the Applicants that their applications to the Tribunal are not applications to review the assessments for these years, but instead applications to review the decision to refuse them permission to lodge out-of-time objections to the assessments (the Extension of Time Refusal Decision). I raise this possibility for completeness, and in light of the opening words in section 3, 'Grounds for Application', of the application form lodged with the Tribunal on 26 September 2019:
The reasoning of the Respondents reply of 17.7.2019 in respect of the request made for further time to lodge the landtax (sic) objections out of time are erroneous and inaccurate with regard to the primary production activites (sic) conducted on the Box Hill land for the years 2012 to 2018.
The relevant content of the 17 July letter is as follows:
…
Your objections against assessments issued for 2012, 2013, 2014, 2017 and 2018 are outside the 60 day time period allowed by section 89 of the Taxation Administration Act 1996 (TAA) and are therefore invalid. The respective issue dates were 17 July 2012, 17 January 2013, 7 November 2014, 12 January 2017 and 11 January 2018. All such assessments were sent to 15 Chester St Blacktown NSW 2148, with the exception of the 2018 assessment which was sent to the address at the top of this letter.
You have requested an extension of time on the basis that the Ferellas did not receive the respective assessments and did not receive a reply to various applications for exemption.
Your request that the objections be accepted out of time has been considered and under section 90(3) of the TAA permission is hereby refused. As required by section 90(4) of the TAA the reasons are set out below.
…
Even if the applications to the Tribunal were to be characterised as applications to review the Extension of Time Refusal Decision for the relevant years, they would equally fail to attract the Tribunal's jurisdiction.
It seems clear beyond argument that the Extension of Time Refusal Decision is an 'other decision (within the meaning of the Administrative Decisions Review Act 1997 (ADR Act)) of the Chief Commissioner under a taxation law' which is itself capable of being objected against: s 86(1)(b) of the TAA; see the definition of 'decision' in the ADR Act, s 6(1)(b): '… refusing to give a … permission'. In this regard, the Court of Appeal said in Paspaley at [30]:
Where the Chief Commissioner refuses permission to lodge an objection after the 60 day period, there seems to be no reason why a written objection may not be lodged with respect to that decision. If an objection were to be lodged, but rejected, there would appear to be statutory power to review the decision to refuse permission to lodge out of time an objection to an assessment. That would mean that a general review would be available under ss 96 or 97, a conclusion which would suggest strongly that such decisions were not to be treated differently for the purpose of the privative clause in s 103A from other decisions which might be subject of review.
That excerpt describes the pathway a taxpayer has to take in order to initiate an administrative review of a decision such as the Extension of Time Refusal Decision. Unless there has been an objection against the operative decision of the Chief Commissioner, and (except where s 96(1)(b) applies - which is not the case here) the Chief Commissioner has determined that objection, the operative decision cannot be reviewed by the Tribunal: Paspaley at [27]; see [45] above.
It follows that, irrespective of whether the applications to the Tribunal are characterised as applications to review the assessments, or applications to review the Extension of Time Refusal Decision for each year, the Tribunal does not have jurisdiction to consider the applications.
Taking that view means that the applications to the Tribunal in respect of the 2015 and 2016 assessments are applications which should have been lodged by 14 August 2016 but were not lodged until 26 September 2019. They are over three years late. The question becomes whether an extension of time should be granted by the Tribunal under s 99(1) of the TAA.
The Chief Commissioner relies on the following reasoning of the Tribunal in Daoud v Chief Commissioner of State Revenue [2015] NSWCATAD 53 at [14]-[16]:
[14] Accordingly, the discretion to extend time is broad and unfettered. However, it must be exercised judicially and having regard to s 36 of the Act and the need "to facilitate the just, quick and cheap resolution of the real issue in the proceedings".
[15] The grant of an extension of time is not automatic. The discretion to extend time is given for the sole purpose of enabling the Tribunal to do justice between the parties. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time. It is also necessary to consider the prospects of the Applicants succeeding in their application. In order to justify the Tribunal extending the time, there must be some material upon which the Tribunal can exercise its discretion: see Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2] per McHugh J. and the authorities referred to therein. See also Opera Australia Ltd v Carr [1999] NSWADTAP 6 at [16] and Chand v Rail Corporation of New South Wales No 3 [2010] NSWADTAP 11 at [20].
[16] Time limits are set to promote the orderly and efficient conduct of proceedings in the Tribunal, to provide certainty for the parties to proceedings, and to achieve finality in litigation. For these reasons, time limits should generally be strictly enforced unless the interests of justice require that the extension be granted.
The Chief Commissioner also refers to the decision of the Tribunal in D W Tolson Management Pty Ltd v Chief Commissioner of State Revenue [2016] NSWCATAD 113, where Senior Member Isenberg identified relevant considerations as including the length of the delay, the reason for the delay, the amount in dispute, the Applicant's prospects of success, and the extent of prejudice that would be suffered by a respondent in the exercise of the discretion.
The Applicants' position is decidedly weak. When the Chief Commissioner disallowed the objections in 2016, the Applicants were notified of their review rights: Ex R1, SB-1, Tab 14, p. 102. Indeed, they can be presumed to have been aware of those rights already, having exercised them after the disallowance of the objections for the 2007 to 2011 years by seeking review in the ADT (the forerunner to this Tribunal). That they did nothing, instead resting on their rights for over three years, does not present a strong case in their favour.
The length of the delay is significant, and the Applicants have not explained why they have delayed so long in making the application. In fact there is no material provided by the Applicants to support the application for a three-year extension of time. The Applicants were put on notice in early January that the Chief Commissioner was resisting any application for an extension of time, but nothing has been provided since Mr Ferella made the following statement in the application for review itself, lodged with the Tribunal on 26 September 2019:
I have not been well after having surgery for bilateral hernias, further I sustained a injury (sic) having fractured 2 ribs, now I am having to deal with the flu and have not been well for several weeks.
That is a statement about things that have happened in the recent past. The statement throws no light at all on what may have occurred during the period 15 June to 14 August 2016, the latter being the original due date for lodgement.
In the absence of any worthwhile information from the Applicants, a proper consideration of the factors mentioned in Daoud and D W Tolson ([53] and [54] above) is not possible. There is nothing before the Tribunal to warrant the grant of an extension of time for the Applicants to lodge their application for review in respect of the land tax assessments for 2015 and 2016. The extension of time is refused.
The Chief Commissioner's cause of action estoppel submission, in respect of the land tax assessment for the 2011 land tax year, is accepted.