Plaintiff v Defendant

LIMITATION OF ACTIONS - Whether common law action for recovery barred - Whether action for mandamus barred - Whether 'reasonable diligence' in discovering mistake - Limitation of Actions Act 1958 (Vic) ss 5(1)(a), 20A(1)(a), 27 - Land Tax Act 1958 (Vic) ss 90AA(3), (4) and (8).

INTEREST - Whether compound interest available on overpaid moneys as part of restitutionary relief - Whether simple interest available in the court's equitable or statutory jurisdiction - Supreme Court Act 1986 (Vic) ss 58, 60.

1 The primary issue in this case is whether the defendant ('the Commissioner') is required to repay to the plaintiff, ACN 005 057 349 Pty Ltd,[1] the sum of $363,680 (or such other amount as the Court may determine) which the plaintiff contends represents 'overpayments' it made on account of land tax for the years 1990 to 2002 (inclusive), together with interest. In essence, the plaintiff says that in response to notices of assessment issued on an annual basis by the Commissioner, it paid amounts on account of land tax that were not payable under the Land Tax Act 1958 (Vic) ('LTA 1958')[2] for those years, in the sense that the assessments so made were excessive and wrongfully demanded more than could validly be exacted or due and owing. The plaintiff paid the amounts as assessed in each year to the Commissioner, but says it did so based on a mistaken belief that they were lawful demands. Accordingly, the plaintiff now seeks restitution at common law for these overpayments, together with interest.[3] Further or alternatively, it seeks an order for mandamus or other orders on judicial review directing the Commissioner to issue amended assessments to the plaintiff for each of the 1990 to 2002 land tax years and to refund the overpaid land tax, with interest.[4]

2 The Commissioner contends that the plaintiff's restitution claim cannot be maintained. First, he says the only means by which a taxpayer can establish that an assessment made under the LTA 1958 is excessive is by means of the objection procedure. Here, as the plaintiff has not utilised the objection procedure in the manner prescribed, it is unable to establish that the assessments it paid are excessive, and hence is unable to establish the 'overpayments' necessary to make out its case in restitution. Secondly, the Commissioner contends that s 90AA of the LTA 1958, which deals with 'Refund of tax', bars the plaintiff's refund proceeding. In essence, the Commissioner says that the amounts the plaintiff now seeks to recover were amounts paid in discharge of statutory tax debts. As such, they are plainly capable of characterisation as amounts 'of tax paid under, or purportedly under' the LTA 1958 and s 90AA(1) provides that proceedings for the refund or recovery of such amounts may only be brought as provided for in s 90AA, which relevantly excludes common law proceedings. Thirdly, the Commissioner challenges the plaintiff's contention that when it paid the land tax assessments it believed it had a legal obligation under the LTA 1958 to do so, but that that belief was mistaken. Rather, the Commissioner argues that the plaintiff did have a legal obligation under the LTA 1958 to pay the assessments as made, that each such amount assessed was 'due and payable', and that each payment made by the plaintiff relevantly discharged a legal obligation. Fourthly, the Commissioner relies on s 20A(1)(a) of the Limitation of Actions Act 1958 (Vic) ('the Limitation Act') as barring the proceeding. Further, if s 20A(1)(a) does apply, the Commissioner says that s 27 does not operate to postpone the commencement of the limitation period because the plaintiff has not made good the necessary proposition that it could not 'with reasonable diligence' have discovered the alleged mistake. Finally, the Commissioner also relies on s 5(1)(a) of the Limitation Act as barring the proceeding.

3 The Commissioner contends that the plaintiff's proceeding brought by way of Originating Motion, seeking an order for mandamus or the like compelling the Commissioner to amend the 1990 to 2002 land tax assessments under s 19 of the LTA 1958, is misconceived. The Commissioner argues that he cannot be compelled by mandamus, or other order by way of judicial review, to exercise the s 19 discretion in the particular manner sought by the plaintiff, and therefore, the proceeding for mandamus should be dismissed. After the proceeding was issued, the Commissioner decided to exercise the discretion conferred on him by s 19, but not in the manner requested by the plaintiff. Rather, he determined not to make any amendment to the assessments. The Commissioner submits that he was not under any duty to exercise the s 19 discretion but says that if he were, then he has fulfilled that duty by making the decision he made.

4 The question of interest being payable on the overpaid moneys only arises if the plaintiff establishes that it is entitled to a refund. The plaintiff claims interest on the amount of the 'overpayments' for the 1990 to 2002 years and on the 'overpaid' land tax for the 2003, 2004 and 2005 years for which the Treasurer authorised an 'ex gratia' payment. The plaintiff argues that it has been denied the use of these moneys from their respective dates of payment and says that, in the circumstances, it is entitled to restitution in the form of interest, calculated on a compound basis. The plaintiff contends the law has developed to the point where compound interest is now claimable and recoverable as part of its restitutionary relief. Alternatively, the plaintiff says that it is entitled to simple interest, in the Court's equitable jurisdiction or alternatively pursuant to ss 58 or 60 of the Supreme Court Act 1986 (Vic).

5 The facts are essentially agreed between the parties. No oral evidence was given. Both proceedings were heard together and the trial proceeded by way of each party formally tendering their respective affidavit evidence[5] and then making submissions on the issues raised.

6 For the reasons which follow, I have found that the plaintiff's proceeding brought by Writ seeking restitution, and its claim by way of Originating Motion for mandamus, should be dismissed.

7 Before turning to consider the specific issues for determination, it is necessary to set out the background facts and legislative history in a little more detail.

8 Between 1988 and December 2007, the plaintiff was the registered proprietor of two adjoining properties in Toorak, each with a street address of 2 Ottawa Road, being the whole of the land comprised in Certificates of Title Volume 8055 Folio 686 (also known as Lot 1 on Lodge Plan 27424) and Volume 4567 Folio 364 (also known as Lot 1 on Title Plan 598039) respectively.

9 In each of the land tax years from 1990 to 2001 inclusive, the plaintiff was assessed in respect of land described in the land tax assessments as '2 Ottawa Rd, Toorak, 3142' with a Land ID/Reference of '995176/1 27424 L' and '65 Albany Rd, Toorak, 3142' with a Land ID/Reference of '22429086/1 598039 T'. For the 2002 land tax year, the plaintiff was assessed in respect of land described in the land tax assessment as '2 Ottawa Rd, Toorak, 3142' with a Land ID/Reference of '000995176/1 L27424' and '65 Albany Rd, Toorak, 3142' with a Land ID/Reference of '022429086'. The plaintiff says it paid each of these land tax assessments in good faith and in the belief that each land tax assessment constituted a proper and lawful demand for the payment for all of the tax assessed. In respect of the 2003-2007 land tax years, the plaintiff was similarly assessed for (and paid) land tax on land described as '2 Ottawa Rd, Toorak, 3142' with a Land ID/Reference of '000995176/1 L27424' and '65 Albany Rd, Toorak, 3142' with a Land ID/Reference of '022429086'.

10 In December 2007, the plaintiff transferred the two properties to Streetriver Pty Ltd ('Streetriver'), a related company.[6] Thereafter, the Commissioner assessed Streetriver for land tax on an annual basis.

11 On 23 March 2012, following a request from the solicitors acting for Streetriver concerning the availability of a 'principal place of residence' exemption, the Commissioner informed them, by email, that an error had been detected in the land tax assessments issued to Streetriver for the 2008 to 2011 land tax years. The error was essentially that the municipal valuation that was applied for land tax purposes to 2 Ottawa Road encompassed both Lot 1 Lodge Plan 27424 and Lot 1 Title Plan 598039. The City of Stonnington valuer, Mr Peter Fitzgerald, confirmed that the municipal valuation so used encompassed both lots. The result of this 'error' was that the property described on the land tax assessments as '65 Albany Rd' was determined to be a 'duplicate property'. In those circumstances, the Commissioner said that 'fully settled re-assessments' for 2008 to 2011 would be issued with the deletion of the property described as '65 Albany Rd' and that a refund would follow.[7]

12 Once the plaintiff became aware of the error in the assessments issued to Streetriver, the plaintiff instructed its solicitors (who were also Streetriver's solicitors) to investigate whether the land tax assessments issued to it in earlier years also contained the same 'duplicate property' and whether it had also overpaid land tax as a result. Mr Kim Davis, who is a director of the plaintiff and of Streetriver, made enquiries and searched the plaintiff's records. While Mr Davis was only able to locate copies of the land tax assessments for the 2002 to 2007 tax years, he informed Mr Wayne Ngo, a tax adviser with the plaintiff's solicitors, that he believed 'the plaintiff had paid all land tax assessments issued to it, including in the period from 1990 to 2002 inclusive.'

13 On 27 March 2012, Mr Ngo conducted a property search of 2 Ottawa Rd, Toorak through the Victorian Department of Environment and Primary Industries. The Property Report showed the site as comprising two parcels of land, with a combined total area of 1,967 square metres, from which he ascertained that Lot 1 on LP27424 has a total land area of 1,058 square metres and Lot 1 on TP598039 has a total land area of 909 square metres.

14 On about 12 April 2012, Mr Ngo instructed Mr Daniel Mitchell of his firm to contact the State Revenue Office ('SRO') to obtain copies of the land tax assessments issued to the plaintiff for the 1983 to 2001 years. An officer from the SRO advised Mr Mitchell that land tax assessments for this period were unable to be retrieved from the SRO's records, but said the SRO could provide 'Assessment Reports' for each of these years. [8] The SRO emailed the suite of Assessment Reports to Mr Mitchell on 26 April 2012. Mr Ngo described the SRO Assessment Reports as containing 'all of the relevant information used by the defendant in raising the land tax assessments which were issued to the plaintiff for these years.'

15 On 1 May 2012, Mr Mitchell followed up with Mr Fitzgerald, the land valuer for the City of Stonnington, to ascertain the valuation history of the properties. Mr Fitzgerald responded to Mr Mitchell the next day. He emailed to him a table which listed, in relation to the property he referred to as '2 Ottawa Rd, Toorak', the dates when a new valuation of the property was determined and the new site value determined. Relevantly, the table recorded:

16 Mr Ngo reviewed the information provided by Mr Fitzgerald and observed that the new site values provided by Mr Fitzgerald 'broadly corresponded to the site values used by the defendant in the land tax assessments to the plaintiff.'

17 The next day, Mr Mitchell emailed Mr Fitzgerald, requesting that he clarify whether the valuations he had provided for '2 Ottawa Rd, Toorak' were based on land at LP27424 alone or whether the valuations also included land at TP598039. Mr Fitzgerald responded by email confirming that 'the same land area (2,000 approx.) was used in relation to all'.[9]

18 On the basis of the available information, including the SRO's admission in the context of the assessments for Streetriver that '[t]he property at 65 Albany Rd has been determined to be a duplicate property', Mr Ngo formed the view that in raising land tax assessments for the plaintiff for the 1990 to 2007 years, a similar error had occurred. That is, he believed that the Commissioner had used the Fitzgerald/City of Stonnington valuations for the 2 Ottawa Rd property but had also erroneously duplicated the value of the 65 Albany Rd landholding, and thereby overstated the land tax payable such that the assessments issued to the plaintiff were incorrect.

19 On 3 May 2012, Mr Ngo contacted Mr Martyn Pritchard, a senior revenue officer in the land tax branch at the SRO, and informed him that he believed the Commissioner had also made a duplication error in raising land tax assessments for the plaintiff for the 1990 to 2007 tax years. Mr Pritchard advised Mr Ngo to make a written request to the SRO seeking a refund of tax on behalf of the plaintiff. He added, however, that as the Commissioner was only obliged to provide a refund within a five year period of the making of the original payment, it was unlikely that refunds would be made to the plaintiff outside of this period.

20 The outcome of the investigations and steps taken by or on behalf of the plaintiff to pursue recovery of the alleged overpayments are set out in Mr Ngo's affidavit. They may be summarised as follows:

(a) on 18 May 2012, the plaintiff sent a formal 'Application for a refund' request to the Commissioner requesting a refund in the amount of $103,800 being the land tax the plaintiff estimated it had overpaid for the 2007 year;

(b) on 22 May 2012, the plaintiff lodged objections, albeit, out of time, against the land tax assessments for the 2006 and 2007 years (under the Land Tax Act 2005 (Vic) ('LTA 2005'));[10]

(c) on 22 May 2012, the plaintiff also lodged objections, albeit out of time, against the land tax assessments for the 1990-2005 years (under the LTA 1958);

(i) decided to allow the plaintiff's objections against the 2006 and 2007 assessments (having exercised his discretion under s 100 of the Taxation Administration Act 1997 (Vic) to accept them out of time); and

(ii) informed the plaintiff that he did not have the power to accept the objections lodged out of time against the assessments for the 1990 to 2005 years;

(e) on 3 December 2012, the plaintiff requested that the Commissioner issue amended assessments for the 1990 to 2005 years pursuant to s 19 of the LTA 1958;

(f) on 6 December 2012, the plaintiff wrote two letters to the then Treasurer. In the first, the plaintiff requested an extension of the time limited under s 94 of the LTA 1958[11] for the plaintiff to lodge objections and also of the time limited under s 90AA(2) of the LTA 1958 for the plaintiff to apply for a refund of tax paid or purportedly paid. In the second letter, the plaintiff also requested the then Treasurer 'by way of alternative but without prejudice to all [its] other legal rights' to make an ex gratia refund of the amounts overpaid for the 1990 to 2005 years;

(g) on 17 January 2013, the Commissioner informed the plaintiff that the assessment notice issued to it for the 2008 year had been withdrawn when a notice of acquisition was lodged in October 2008 in respect of the transfer of the property to Streetriver in December 2007. The Commissioner informed the plaintiff that this further overpayment of $157,230 (paid on 20 June 2008 in respect of the 2008 assessment) would also be refunded by cheque;

(h) on 1 February 2013, the Commissioner issued re-assessments for the 2006 and 2007 years[12] and provided a refund to the plaintiff for the overpayments for these years ($110,635 for the 2006 year and $103,800 for the 2007 year) together with that for the 2008 year ($157,230);

(i) on 15 February 2013, the Commissioner responded to the plaintiff's request that interest be paid on the amounts refunded for the 2006 and 2007 years, by providing a cheque for the sum of $66,926.38 to the plaintiff;[13]

(j) on 20 February 2013, the then Treasurer responded by letter, informing the plaintiff that the power under s 94 (to extend time) could not be used to assist the taxpayer. He also informed the plaintiff that given its 'unique circumstances' he has 'decided to grant ex gratia relief for the additional land tax that the Trust paid in the 2003, 2004 and 2005 land tax years to align with the three year refund period provided under the Act'; and

(k) on 13 March 2013, the Treasurer provided by way of 'ex gratia relief' a cheque for the sum of $351,994 representing 'the additional land tax paid by [the plaintiff] for the 2003, 2004 and 2005 land tax years',[14] but without interest thereon. (The plaintiff nevertheless seeks the payment of interest on the ex gratia relief sum.)

21 Against this background, on 21 March 2013, the plaintiff commenced the present proceedings against the Commissioner seeking restitutionary relief and relief in the nature of mandamus.

22 On 15 August 2013, a delegate of the Commissioner, Mr Graeme Robinson, wrote to Mr Ngo in response to the plaintiff's request that the Commissioner issue amended assessments for the 1990 to 2005 years pursuant to s 19 of the LTA 1958. Mr Robinson informed Mr Ngo that:

After careful consideration of all the issues involved, I advise that the Commissioner has decided to exercise the discretion conferred on him by section 19 of the [Land Tax Act 1958]. The decision of the Commissioner is not to make any amendment to the assessments.

The discretion conferred by section 19 must be exercised having regard to [the] subject matter, scope and purpose of the Act as a whole. The primary reason for the Commissioner's decision is that, whether or not each of the assessments were now amended as requested, and even putting to one side the fact that no objection was lodged in accordance with section 24A, your client would not be entitled to the consequential relief sought; that is, pursuant to section 90AA of the [Land Tax Act 1958], your client would still not be entitled to the refund it seeks.

23 Thus, it is clear that for the 1990 to 2002 tax years, the Commissioner has now exercised his discretion under s 19 of the LTA 1958 and decided not to make any amendments to the assessments. Accordingly, no amended assessments have issued and the Commissioner has not refunded any amount referable to the land tax which the plaintiff alleges it overpaid in each of the 1990 to 2002 tax years.

Land Tax Act 1958

24 Land tax is an annual tax on the unimproved value of land. The relevant Act which applies to each of the 1990 to 2005 land tax assessments is the LTA 1958. Section 4 provides that the Commissioner has 'the general administration of this Act and the regulations.'

25 Section 6 of the Act provides for the rate of land tax imposed in each year, as follows:

Subject to this Act there shall in the case of each owner of land be charged levied and collected by the Commissioner and paid for the use of Her Majesty in aid of the Consolidated Fund for each and every year a duty of land tax upon land for every dollar of the unimproved value thereof in accordance with the provisions of the Second Schedule.[15]

26 Under s 8 of the Act, land tax is 'assessed charged levied and collected by the Commissioner' on 'the total unimproved value of all land' held by the owner at 'midnight on the thirty-first day of December immediately preceding the year for which such tax is assessed charged levied and collected'. Certain lands are exempted from land tax under s 9. There is also a 'principal place of residence' exemption provided under s 13A.

27 Part III of the Act deals with 'Returns by Taxpayers, Valuations and Assessments'. Under s 14, for the 'purposes of the assessment and levy of taxation', a taxpayer is required to furnish to the Commissioner 'returns setting forth a full and complete statement of his land with such other particulars as are prescribed.' Thus, the process by which the assessment is made commences with the taxpayer providing to the Commissioner information in relation to the assessment that is to take place. Section 15(1) provides that 'every taxpayer shall be liable for the making of returns of land and for the payment of the whole amount of tax (if any) assessed thereon'. Section 16 permits the Commissioner to use valuations made by a rating authority (within the meaning of the Valuation of Land Act 1960 (Vic)) or by the Valuer-General or his nominee for the purposes of the assessment and levy of taxation.

28 Section 17 provides for assessments to be made by the Commissioner, as follows:

The Commissioner shall from the returns and from any other information in his possession or from one of those sources and whether any return has been furnished or not cause an assessment to be made of the taxable value of the land owned by any taxpayer and of the land tax payable thereon.

Under s 18, the Commissioner also has power to make default assessments.

29 Section 19 permits the Commissioner to amend assessments. The power is conferred in the following terms:

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

This power is of central relevance to the plaintiff's claim for mandamus. The plaintiff points to the fact that the power conferred is one that may be exercised by the Commissioner 'from time to time' as may be necessary to 'ensure the completeness and accuracy' of assessments.[16]

30 Section 20 contains evidentiary provisions, similar to those that apply under the federal income tax regime. Section 20 provides:

(1) The production of an assessment or of a document under the hand of the Commissioner purporting to be a copy of an assessment shall─

(a) be conclusive evidence of the due making of the assessment; and

(b) be conclusive evidence that the amount and all the particulars of the assessment are correct, except in proceedings on review or appeal against the assessment, when it shall be prima facie evidence only.

(2) The production of any document under the hand of the Commissioner purporting to be an extract from any return or assessment shall in relation to any matter other than a matter referred to in subsection (1) be prima facie evidence of the matter therein set forth.

31 Once an assessment is made, the Commissioner is required to serve 'notice in writing of the assessment' on the taxpayer: s 21(1). The omission to serve a notice does not, however, invalidate the assessment: s 21(2).

32 Section 24A(1) provides for persons dissatisfied with an assessment to 'give to the Commissioner within 60 days after service of the notice of assessment an objection in writing' stating fully the grounds of objection. The Commissioner is required to consider every such written objection and 'may make such inquiries thereon or relating thereto as he thinks fit': s 24A(2). If the Commissioner considers that any objection should be allowed, in whole or in part, he may 'alter or amend the assessment accordingly': s 24A(3). Section 24A(4) requires the Commissioner to give the taxpayer written notice of his decision on the objection.

33 Under s 25, a taxpayer who is dissatisfied with a decision of the Commissioner on an objection may request the Commissioner to either refer the decision to the Victorian Civil and Administrative Tribunal for review or to treat the objection as an appeal and have it heard by the Supreme Court. Under s 26(1), upon any such review or appeal, unless the Court or the Tribunal otherwise orders, the taxpayer: (a) 'shall be limited to the grounds stated in his objection and the Commissioner shall be limited to the grounds upon which he has disallowed the objection'; and (b) bears 'the burden of proving that the assessment is excessive'.

34 Section 38(1) makes clear that the fact that an objection or appeal is pending in respect of any assessment does not 'interfere with or affect the assessment' and in the meantime 'tax may be made, levied and recovered on the assessment in like manner as if no objection had been received and no appeal or case stated were pending.' In the event that an assessment is altered on objection or case stated or appeal, s 38(2) provides that a 'due adjustment shall be made, for which purpose amounts paid in excess shall be refunded, and amounts short-paid shall be recoverable as arrears.'

35 If an assessment is amended, s 58A provides for additional tax to be payable from the due date of the original assessment to the date of payment of the amended assessment. However, the Commissioner has power, under s 58A(4), to remit the whole or any part of additional tax in a particular case.

36 Land tax, once assessed and payable, is a debt due to the Crown. Section 39 provides that '[e]very sum payable for tax shall when the same falls due be deemed a debt due to Her Majesty by the owner of any land who shall forthwith pay the same to the Commissioner.' Under s 57, land tax for each year 'shall be due and payable on a date stated in the notice of assessment to be the due date', which date is not to be less than 14 days after service of the notice. If any tax remains unpaid 14 days after the due date, s 58 deems additional tax (of 20 per centum per annum from the due date to the date of payment) to be added and be payable accordingly. Section 59 provides for the recovery of tax by the Commissioner on behalf of the Crown by proceeding issued in his own name in the County Court or the Magistrates' Court. Section 60 outlines what is sufficient for the Commissioner to disclose a cause of action in a proceeding for recovery of tax. Section 67 provides that '[n]o statute of limitations now or hereafter in force shall bar or affect any action or remedy for recovery of tax.' Section 68 confirms that nothing in the LTA 1958 shall be construed to limit or affect the operation of the Crown Proceedings Act 1958 (Vic).

37 Part VI of the LTA 1958, headed 'General', contains a host of provisions dealing with matters such as service of documents, 'Penalties', and 'Miscellaneous Provisions'. The latter category includes provisions dealing with the recovery of penalties (s 87), the refunding of tax (s 90AA, s 90A), the limitation of the jurisdiction of the Supreme Court (s 92A), the making of regulations (s 93) and the power to extend time for doing anything under the Act (s 94).

38 Relevantly, s 90AA, which is relied upon by the Commissioner as barring the plaintiff from bringing the current proceedings, provides for the refunding of tax where it has been overpaid. Section 90AA was inserted by s 22 of the State Taxation (Further Amendment) Act 1993 (Vic). The legislative history is of some importance in the context of the present case and both parties made extensive reference to it in their submissions. It is useful to set out the legislative history briefly.

39 In summary, the position is that s 90 of the LTA 1958, in the original form of the Act as introduced in 1958, provided for a three year time limit on refunds, in the following terms:

(1) Where after any tax has been paid it is discovered that too little in amount has been paid the taxpayer liable for the tax shall forthwith pay the deficiency.

(2) Where after any tax has been paid it is discovered that too much in amount has been paid whether by reason of duplicate taxation or otherwise the Commissioner upon being satisfied thereof shall order the excess to be returned to the taxpayer entitled thereto and give a certificate accordingly.

(3) No application for a refund of an overpayment shall be entertained by the Commissioner unless made within three years after such overpayment was made, or if there has been an objection then within three months after the date of the decision on such objection.

(4) Every certificate for a refund of moneys paid as tax moneys pursuant to any provision of this Act shall state the person to whom such refund is to be made and the amount of every such refund certificate shall be paid by the Treasurer out of the Consolidated Revenue.

40 The Commissioner's power to entertain an application for a refund was expressed to be limited to those applications made within a three year period or within three months of a decision on an objection. Under s 90, the power to refund was enlivened by the 'discovery' that too much tax had been paid. If an application was made within three years of the overpayment, and the Commissioner was satisfied thereof, he was required to order that the excess be returned to the taxpayer. The refund was to be made by the Commissioner giving a refund certificate to the taxpayer to be paid by the Treasurer out of the Consolidated Revenue.[17] In that way, the Act provided expressly for the appropriation of the Consolidated Revenue in order to make payment of the refund.

41 In 1974, sub-sections 90(2), (3) and (4) were substituted and replaced with a new s 90(2). Under the new provision, no relevant time limit was imposed, and the Commissioner's power to refund was framed using the facultative term 'may', as follows:

(2) Where the Commissioner finds in any case that tax has been overpaid he may refund to the taxpayer who paid the tax the amount of tax found to be overpaid.[18]

42 In 1992, however, the position reverted. Following the decision of the Full Court of the Supreme Court of Victoria in Royal Insurance Australia Ltd v Comptroller of Stamps (Vic),[19] and by way of legislative response to it, s 90(2) was substituted and replaced with the following provision which re-inserted a three year time limit and effectively required that the Commissioner 'must refund' or give credit for the amount of the overpayment. The new s 90(2) provided:

(a) receives an application for a refund of overpaid tax not more than 3 years after the overpayment; and

(b) finds that the tax has been overpaid by the applicant―

(d) apply the amount of the overpaid tax against any liability of the applicant to the Crown, being a liability arising under, or by virtue of, an Act of which the Commissioner has the general administration, and refund any part of the amount that is not so applied.

43 A new provision, s 90A headed 'Refunds to be paid to person entitled', was also inserted at the same time to provide that in the situation where a taxpayer had 'passed on' the overpaid tax to a third party, the taxpayer was obliged to forward any refund to that third party.

44 It is common ground that the provisions introduced in 1992 have no application in the present case.[20] They were relied upon, however, as part of the historical legislative framework that informed the content of the provisions under consideration, which were introduced in 1993 by the State Taxation (Further Amendment) Act 1993 (Vic).[21]

45 Relevantly, by that amending Act, s 90(2) was repealed and the current form of s 90AA, headed 'Refund of tax', was inserted,[22] as follows:

(1) Proceedings for the refund or recovery of tax paid under, or purportedly paid under, this Act, whether before or after the commencement of section 22 of the State Taxation (Further Amendment) Act 1993, must not be brought, whether against the Commissioner or otherwise, except as provided in this section.

(2) If a person claims to be entitled to receive a refund of or to recover tax paid under, or purportedly paid under, this Act, the person must lodge with the Commissioner within 3 years after the payment was made an application in the prescribed form for the refund of the payment.

(a) a person has lodged an application for the refund of an amount in accordance with sub-section (2); and

(b) the Commissioner has not, within the period of 3 months after the application was lodged ─

(ii) applied the amount in accordance with sub-section (6)(d); or

(iii) refunded part of the amount and applied the remainder in accordance with sub-section (6)(d) ─

or has, in writing given to the person within that period, refused to make a refund, the person may, within 3 months after the end of that period or after that refusal, whichever first occurs, bring proceedings for the recovery of the amount, or, if the Commissioner has refunded or applied part, the remainder of the amount.

(4) Sub-section (3) applies whether or not the period for bringing proceedings for the refund or recovery of the amount prescribed by section 20A(1) of the Limitation of Actions Act 1958 has expired.

(5) Sub-sections (1) and (2) do not apply to a person if the person claims to be entitled to receive a refund or to recover tax paid under, or purportedly paid under, this Act by reason of the invalidity of a provision of this Act.

(a) an application for a refund is lodged with the Commissioner in accordance with sub-section (2); and

(b) the Commissioner finds that an amount has been overpaid by the applicant ─

(i) apply the overpaid amount against any liability of the applicant to the State, being a liability arising under, or by reason of, an Act of which the Commissioner has the general administration; and

(ii) refund any part of that overpayment that is not so applied.

(7) If, under this section, the Commissioner determines to refund an amount, the amount is payable from the Consolidated Fund which is to the necessary extent appropriated accordingly.

(a) seeking the grant of any relief or remedy in the nature of certiorari, prohibition, mandamus or quo warranto, or the grant of a declaration of right or an injunction; or

(b) seeking any order under the Administrative Law Act 1978.

46 It will be noted that, save for the case where a person claims to be entitled to receive a refund or to recover tax paid, or purportedly paid, under the LTA 1958 by reason of the invalidity of a provision of that Act, these provisions established what was intended by the legislature to be the exclusive means for a person to seek a refund or recovery of tax paid, or purportedly paid, under the LTA 1958. The language used in s 90AA(1) is emphatic that proceedings (including proceedings seeking the grant of any relief or remedy in the nature or mandamus etc. or the grant of a declaration of right or an injunction) 'must not be brought, whether against the Commissioner or otherwise, except as provided in [that] section.' That position is reinforced by s 92A, which makes clear that the intention of s 90AA is to oust the jurisdiction of the Supreme Court under s 85 of the Constitution Act 1975 (Vic) to entertain proceedings of a kind to which s 90AA(1) applies, except as provided by that section.[23]

47 In his second reading speech for the State Taxation (Further Amendment) Bill, the then Treasurer explained the background to the amendments and the reason for their introduction, including those provisions limiting the jurisdiction of the Court, as follows:

The Bill amends the refund provisions of various State revenue Acts. On 15 August 1992 the previous government announced a new scheme for the refund of overpaid State taxes and duties which provided for refunds of amounts dating back up to three years from the date of the application for the refund, provided that the taxpayer did not obtain a windfall gain at the expense of any other person and provided that any refund due was first offset against any other Victorian tax liability. Legislation giving effect to this scheme was passed by the Parliament in spring 1992. The three-year limitation was designed to provide certainty and finality to Victoria's revenue collections.

Some members of the legal community have recently claimed taxpayers can take action outside the statutory refund scheme to recover unpaid taxes dating back more than three years, under the common law. If this argument were accepted by the courts the intention of the 1992 legislation would be frustrated.

Doubts have also arisen about the interrelationship between the new scheme and a provision in the Limitation of Actions Act which provides for a one-year limit on the commencement of legal proceedings for the repayment of State taxes and charges.

The Bill amends ... the Land Tax Act, ... to provide that except in the case of a claim for a refund based on an argument that a provision of the relevant Act is invalid, proceedings for a refund cannot be brought unless an application for the refund has first been made to the Commissioner of State Revenue within three years of the payment concerned.

The amendments apply to proceedings which seek to use administrative law procedures to require things to be done which may result in a refund, as well as to proceedings which seek a refund directly.

I wish to make a statement under section 85(5) of the Constitution Act 1975 of the reasons for altering or varying that section by this Bill. Clauses ..., 25, ... provide that it is the intention of those clauses to alter or vary section 85 of the Constitution Act. These provisions preclude the Supreme Court from entertaining proceedings of a kind to which the new sections ... 90AA of the Land Tax Act, ... apply, except as provided in those sections.

The reasons for limiting the jurisdiction of the Supreme Court are these: refunds of overpaid ... land tax, ... - other than refunds claimed on the grounds of invalidity of provisions in the relevant taxing Acts - are only to be made where the person seeking the refund has lodged an application for the refund with the Commissioner of State Revenue within three years of the date of the overpayment. The purposes of clause ... 22,[24] ... of the Bill would not be achieved if the Supreme Court could entertain an action seeking such a refund notwithstanding that no application for a refund had been lodged with the commissioner within three years of the overpayment.

In conjunction with this Bill, the government is also introducing amendments to the Limitation of Actions Act to make clear that the one-year limitation period for the commencement of proceedings seeking a refund of a tax payment, which has existed for many years, continues to apply unless another Act specifically provides for a longer period within which proceedings may be commenced.

The provisions will apply from 15 October 1993, the date the government announced it would make the amendments. However, the amendments will not affect the rights of persons who, prior to that date, had lodged written claims for refunds with the State Revenue Office which are still current or who had commenced legal proceedings seeking a refund.[25]

Limitation of Actions Act 1958

48 When the Limitation Act was enacted in 1958 there was no provision dealing specifically with recovery of overpaid taxes, fees or other imposts. It is likely that if any limitation period did apply to such a restitutionary claim, it would have been the general provision in s 5(1), which imposed a six year period in respect of actions founded on simple contract (including contract implied in law) or tort. In the present case, the Commissioner pleads, and continues to rely upon, the standard provision in s 5(1)(a) as a bar to the plaintiff's claim. Relevantly, s 5(1)(a) provides:

5 Contracts and torts

(1) The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued -

(a) Subject to subsections (1AAA), (1AA) and (1A), actions founded on simple contract (including contract implied in law) or actions founded on tort including actions for damages for breach of a statutory duty;

...

49 A specific provision relating to the period within which actions may be brought to recover from the Crown moneys paid as taxes, fees charges or other imposts was first introduced into the Limitation Act in December 1961 by the Limitation of Actions (Recovery of Imposts) Act 1961 (Vic). That Act inserted a new section, s 20A, headed 'Actions to Recover Imposts', as follows:[26]

No action shall be brought to recover, from the Crown or the State of Victoria or any Minister of the Crown, or from any corporation officer or person or out of any fund to whom or which it was paid, the amount or any part of the amount of any tax, fee, charge or other impost paid under the authority or purported authority of any Act, after the expiration of twelve months after the date of payment.

Sub-section (1) of this section shall not apply to any action or proceeding brought pursuant to any specific provision of any Act providing for the mode of challenging the validity, or for the recovery of the whole or any part, of any tax, fee, charge or other impost actually paid.

Subsection (2) makes clear, however, that s 20A(1) would not apply where, for example, another Act made specific provision for recovering such an overpayment.

50 In November 1993, contemporaneously with the amendments that were made to s 90AA of the LTA 1958 following the decision of the Full Court of the Supreme Court in the Royal Insurance case, s 20A was also substituted by a new s 20A, which was introduced by the Limitation of Actions (Amendment) Act 1993 (Vic). In each case, the newly introduced provisions took effect from the same date, namely 15 October 1993.

51 Section 1 of the amendment Act described the purpose of the Act as being 'to alter the limitations on the recovery of money paid to the State.' The new s 20A re-enacted the 12 month limitation on proceedings for recovery of money paid by way of tax but in so doing it also made express reference to the money having been paid 'under a mistake (either of law or of fact)', as follows:

20A. Limitation on proceeding for recovery of tax

(1) Subject to sub-section (2), a proceeding for the recovery of money paid by way of tax or purported tax under a mistake (either of law or fact) must be commenced-

(b) in the case of a proceeding in accordance with another Act that provides for the refund or recovery of the money within a longer period, within that longer period.

(2) Despite anything to the contrary in any other Act, if money paid by way of tax or purported tax is recoverable because of the invalidity of an Act or provision of an Act, a proceeding for the recovery of that money must (whether the payment was made voluntarily or under compulsion) be commenced within 12 months after the date of payment.

52 The new s 20A also defined the concepts of 'proceeding' and 'tax' for the purposes of the new provision, as follows:

(a) seeking the grant of any relief or remedy in the nature of certiorari, prohibition, mandamus or quo warranto, or the grant of a declaration of right or an injunction; or

(b) seeking any order under the Administrative Law Act 1978.

(The definition of 'proceeding' is in the same terms as those set out in the newly introduced s 90AA).

53 A new section, s 36, was also inserted to make clear that the amending Act was intended to alter or vary s 85 of the Constitution Act 1975 to the extent necessary to prevent 'the Supreme Court entertaining a proceeding to which section 20A (as in force after the commencement of the Limitation of Actions (Amendment) Act 1993) applies that is brought after the expiration of the period referred to in that section, or making an Order of a kind referred to in sub-section (4) of that section'.[27]

54 The express reference to the situation where the moneys sought to be recovered were paid under a mistake of law or a mistake of fact and the confirmation that the provision would apply to proceedings seeking administrative law remedies such as mandamus was, as the second reading speech makes clear, a legislative response to the decision of the Full Court in Royal Insurance.[28] In his second reading speech, the Treasurer stated that the purpose of the Bill was to amend s 20A 'to ensure that section 20A operates in the way that it was originally intended to operate.'[29] He then proceeded to describe the intended operation, as follows:

For a number of years, the current section 20A has provided that actions to recover overpaid taxes must be commenced within 12 months of the date of the overpayment. This Bill does not change that limitation period.

However, the Bill makes it clear that the provisions of section 20A(1) apply to payments made either under a mistake of law or under a mistake of fact. The Bill also makes it clear that, except in cases where a payment is recoverable because of the invalidity of an Act or a provision in an Act, the 12-month limitation period can be extended by provisions in another Act which allow for the refund or recovery of the money within a longer period.

In conjunction with this Bill, the government is introducing amendments to the refund provisions of the payroll tax, land tax, stamps, financial institutions duty and business franchise Acts which provide that, except in the case of a claim for a refund based on an argument that a provision in a relevant Act is invalid, proceedings for a refund of an amount overpaid under any of these Acts can be brought if an application for the refund has first been made to the Commissioner of State Revenue within three years of the date of the payment in question.

...

The Bill makes it clear that section 20A applies to proceedings seeking administrative law remedies such as mandamus. This is necessary because of the recent decision of the Full Court of the Supreme Court of Victoria in Royal Insurance Australia Ltd v Comptroller of Stamps, which held that section 20A of the Act does not apply to mandamus proceedings. ...

The provisions of the Bill apply from 15 October 1993, the date the government announced that it would make amendments to the Limitation of Actions Act and to the refund provision of the various taxation Acts.[30]

55 The Treasurer also made a statement under s 85(5) of the Constitution Act 1975 setting out the reasons for the Bill altering or varying that section, as follows:

Clause 5 provides that it is the intention of that clause to alter or vary section 85 of the Constitution Act to the extent necessary to prevent the Supreme Court entertaining a proceeding to which the new section 20A applies that is brought after the expiration of the period referred to in that section, or making an order referred to in subsection (4) of that section.

The reasons for limiting the jurisdiction of the Supreme Court are as follows: it has become necessary to amend section 20A to ensure that the section operates as it was originally intended to operate. The Bill makes provision for certain periods within which proceedings must be commenced to recover overpaid taxes. The purpose of the Bill would not be achieved if the Supreme Court could entertain proceedings to which the new section 20A applies that are brought after the expiration of the periods referred to in that section, or if the Supreme Court could make an order enabling or permitting a proceeding to which subsection (2) of the new section 20A applies to be commenced after the expiration of the period referred to in that subsection.[31]

56 Section 20A was further amended in 2004 by the Limitation of Actions (Amendment) Act 2004 (Vic), to ensure that -

• section 20A operates in proceedings between parties of any kind (i.e., proceedings between private parties, wholesalers and retailers as well as proceedings against revenue-collecting authorities);

• a payment made under colour of authority is covered by s 20A(1), so that claimants would not be able to avoid the operation of s 20A by technical forms of pleading; and

• s 20A(2) operates in relation to all mechanisms by which a tax is exacted, including subordinate legislation (such as regulations) as well as other instruments which are applied as a law of Victoria or are enforceable under such applied law.

The amending Act also introduced a new provision, as s 20B, dealing with the recovery of tax or amounts attributable to tax that have been 'passed on' that would otherwise result in a windfall gain to the claimant. Once again, the intention of the amending Act was stated to be to specifically limit the jurisdiction of the Supreme Court.

57 The introduction of language addressing amounts attributable to the payment of tax, and proceedings for the recovery of amounts that represent tax or purported tax, was directed to ensuring that the new provision would apply to all types of proceedings. That is, because proceedings between private parties are generally for the recovery of amounts that are attributable to a tax or purported tax,[32] rather than the recovery of a payment of tax or purported tax itself, words were added into subs (1) to make clear that that the provision applies to an action brought in respect of 'an amount that is attributable to tax or purported tax'. Subsection 20AA(1) of the Limitation Act, as amended in 2004, provided that:

20A. Limitation of proceeding for recovery of tax

(1) Subject to sub-section (2), a proceeding for the recovery of money paid by way of tax or purported tax or by way of an amount that is attributable to tax or purported tax under a mistake (either of law or fact) or under colour of authority must be commenced -

(b) in the case of a proceeding in accordance with another Act that provides for the refund or recovery of the money within a longer period, within that longer period.

58 The second reading speech of the Attorney-General on the Limitation of Actions (Amendment) Bill referred to a number of decisions of the High Court and courts in other states which have 'highlighted some shortcomings and uncertainty in the laws related to the recovery of imposts' and the desirability 'that Victorian legislation be brought into line with that which applies in many other states.'[33] The Attorney-General said that in clarifying the operation of s 20A the opportunity had also been taken to make two technical amendments to the section, to ensure by subs (1) that 'a demand made under the colour of authority is covered' and by subs (2) that s 20A 'operates in relation to taxes imposed or purported to be imposed under all legislation by substituting the current reference to an "act" with the expression a "law"'.[34] In dealing with 'colour of authority' the Attorney-General said:

The extension of section 20A(1) has been made because proceedings under this section, traditionally described as 'actions for money had and received', are often brought under several grounds. In addition to 'mistake', which is currently covered by the section, a further ground is that a taxation amount has been demanded 'under the appearance or colour of authority'. This amendment seeks to ensure that the provisions apply equally to all cases in which recovery of taxes is sought whether a proceeding be brought under one name or another. Claimants should not be able to avoid the operation of this section by the technical way in which they plead their case.[35]

59 The amendments made by the amending Act were expressed to apply to and in relation to money paid before, on, or after 4 March 2004[36] but not to apply to a proceeding commenced before that date. Accordingly, these amended provisions are applicable to each of the sums sought to be recovered by the plaintiff in this case.

60 In the present case, irrespective of which limitation provision operates, the plaintiff also relies on s 27 of the Limitation Act to postpone the commencement of the limitation period. Section 27 provides, as follows:

27 Postponement of limitation periods in case of fraud or mistake

Where, in the case of any action for which a period of limitation is prescribed by this Act -

(c) the action is for relief from the consequences of a mistake -

the period of limitation shall not begin to run until the plaintiff has discovered the ... mistake ... or could with reasonable diligence have discovered it:

61 The arguments advanced by the parties give rise to the following issues for determination:

(1) Where a taxpayer contends it has 'overpaid' land tax assessed under the LTA 1958, is it open for the taxpayer not to avail itself of the objection process and instead sue at common law to recover the alleged 'overpayment' amount as money had and received?

(2) Is the plaintiff's action in restitution for relief from the consequences of a mistake barred by a limitation provision - be it one or more of s 90AA of the LTA 1958, s 20A(1) of the Limitation Act or s 5(1) of the Limitation Act, as extended by s 27 as the case may be?

(3) Is an order for mandamus (or other order on judicial review) available to direct the Commissioner to exercise the discretion conferred by s 19 of the LTA 1958 and issue amended assessments to the plaintiff for each of the 1990 to 2002 land tax years?

(4) Is the plaintiff's action for mandamus (or other order on judicial review) barred by any limitation provision?

(5) If the plaintiff establishes that it is entitled to a refund of, or to recover, the alleged 'overpayment' amount, is compound interest recoverable as part of the restitutionary relief or is the plaintiff limited to recovering simple interest, in the Court's equitable jurisdiction or alternatively pursuant to ss 58 or 60 of the Supreme Court Act 1958 (Vic)?

(1) Where a taxpayer contends it has 'overpaid' land tax assessed under the LTA 1958, is it open for the taxpayer not to avail itself of the objection process and instead sue at common law to recover the alleged 'overpayment' amount as money had and received?

62 The plaintiff maintains that a claim in restitution lies against the Commissioner for the overpaid moneys because the Commissioner was, and continues to be, unjustly enriched at the expense of the plaintiff. It says that the Commissioner demanded payment of moneys pursuant to the land tax assessments issued for the 1990 to 2002 years, which sums the plaintiff paid in the mistaken belief that they were properly due and payable to the Commissioner under the LTA 1958 and that it was legally obliged to make those payments. The plaintiff now contends that the assessments for those years, like those for the years 2003 to 2007, were wrong in that each assessment incorrectly included an amount referable to a duplicate property, being 65 Albany Rd, with the result that the Commissioner sought and received payment of land tax from the plaintiff on a demonstrably erroneous basis. Accordingly, the plaintiff says it is entitled to bring a claim in restitution seeking recovery of the amount overpaid on account of land tax for the 1990 to 2002 years, particularly in circumstances where the Commissioner is unable to produce the relevant assessments and the plaintiff is not confronted by reliance upon the conclusive evidence provision in s 20 of the LTA 1958.

63 The plaintiff points to the High Court's decision in the Royal Insurance case[37] as confirming the availability of restitutionary relief in circumstances such as exist here, where a taxpayer has paid amounts to the Commissioner mistakenly believing that they were lawfully payable. Relying upon observations made by Mason CJ[38] and also by Brennan J[39] (with whom Toohey and McHugh JJ agreed) in that case, the plaintiff contends that the circumstances of the present case are such that a claim in restitution lies against the Commissioner and the only proper response for the Commissioner is to amend the assessments and act on them by returning the amount it overpaid.

64 In response, the Commissioner contends that the objection procedure established under the LTA 1958 is the only means by which a taxpayer can establish that an assessment made under the Act is excessive. The Commissioner says that the plaintiff, not having utilised the objection procedure, is unable to establish that the assessments it paid are excessive, with the result that the plaintiff cannot establish the 'overpayments' necessary for it to make out its case in restitution. Accordingly, the plaintiff's restitution claim must fail.

65 The starting point for the Commissioner's argument is the scheme of the Act. The Commissioner says the Act creates both the obligation to pay, and a mandatory remedy, namely, the objection process. The process established under the LTA 1958 is analogous to that which applies in the federal context under Part IVC of the Taxation Administration Act 1953 (Cth), where the courts have held that that challenges to assessments are confined to the statutory objection, review and appeal processes: see for e.g., Commissioner of Taxation v Futuris Corporation Ltd;[40] Deputy Commissioner of Taxation v Richard Walter Pty Ltd[41] and Hoare Bros Pty Ltd v Federal Commissioner of Taxation.[42] The Commissioner says these authorities, which concern the exclusiveness of the objection procedure in the Taxation Administration Act 1953, apply, mutatis mutandis, to the objection procedure in the LTA 1958, there being no material distinction in the legislation. Further, the Commissioner points to the position that applies with other state tax regimes such as stamp duty[43] and payroll tax[44] where similar constructions have been placed on counterpart provisions.

66 Thus, the gist of the Commissioner's primary response is to say that if the taxpayer is to obtain a refund of taxes it contends were overpaid, it must first avail itself of the objection procedure, and if it fails to do so, its common law claim cannot succeed.

67 In the present case, the alleged overpayment is said to arise from the fact that, as a result of the duplicate landholding, the Commissioner wrongfully demanded payments of land tax that were not authorised by, or payable under, the LTA 1958. The plaintiff contends that the amounts it overpaid referable to the duplicate property for the years 1990 to 2002 inclusive were not relevantly 'land tax' and thus there was never any lawful authority under the LTA 1958 for the Commissioner to exact or retain those moneys.[45]

68 The Commissioner responded by way of defence by admitting that the plaintiff 'paid land tax totalling $603,452 as assessed for the 1990-2002 years' but otherwise denied those allegations. Further, the Commissioner says that, as no objection was lodged by the plaintiff within the 60 day period prescribed, the assessment in respect of each year must be taken in this proceeding to be 'valid', 'duly made and 'correct' within the meaning of ss 19 and 20 of the LTA 1958. In addition, the Commissioner says that, under the Act, the land tax so assessed was a debt due to the Crown, that each of the payments made by the plaintiff constituted a payment made to discharge a lawful obligation, and in the premises, the payments were not made by the plaintiff by reason of any 'mistaken belief' that it was legally obliged to pay the land tax liability as assessed. Accordingly, on the pleadings, there is no admission by the Commissioner that any amount was overpaid for the 1990 to 2002 land tax years, and the Commissioner contends that all of the amounts so paid were 'land tax' that was due and owing.

69 The Commissioner has not been able to locate amongst the SRO's records a copy of the notices of assessment issued to the plaintiff for the 1990 to 2005 land tax years.[46] In April 2012, however, the SRO located and provided to the plaintiff a suite of 'Assessment Reports', which apparently contain all of the relevant information used by the Commissioner in raising the land tax assessments for the 1983-2001 land tax years. Shortly before the hearing, Ms Cockburn swore an affidavit on behalf of the Commissioner to which she exhibited print-outs of documents she had located that were contained in the Commissioner's computer system, recording the relevant details of the assessments made for 1990 to 2005. She confirmed that for all but one year the original notice of assessment is not available, and she summarised in a table format those documents that have been located and made available for the relevant tax year and where they may be found in the materials filed by the parties.

70 The amounts that were assessed and paid in each land tax year are common ground. The evidence adduced on behalf of the plaintiff is to the effect that the plaintiff has paid to the Commissioner all of the amounts of land tax referred to in the land tax assessment notices and the SRO Assessment Reports for the 1990 to 2007 years inclusive. Using the SRO Assessment Reports for the 1990 to 2001 years and the land tax assessments for the 2002 to 2007 years, the plaintiff has estimated the amount of land tax which it alleges has been overpaid for the 1990 to 2002 years as a result of its 'mistaken belief' that it was legally obliged to pay the land tax liability as assessed, as being the sum of $363,680, calculated as follows:

71 The first question the Commissioner poses is whether it was open for the taxpayer under the regime established under LTA 1958 not to avail itself of the objection process and instead to sue at common law to recover the alleged 'overpayment' amount as money had and received. One of the features of the present case is that, because the Commissioner is unable to produce the assessments that issued for the 1990 to 2001 years, he cannot deploy s 20(1) and rely on the assessments as 'conclusive evidence' of the due making of the assessments or that the amount and all the particulars of the assessment are correct. Nor, however, it seems can the plaintiff rely on those assessments to establish the alleged overpayments.

72 The starting point for any consideration of the competing arguments involves the construction of the relevant statutory provisions. As the High Court emphasised in Thiess v Collector of Customs, '[s]tatutory construction involves attribution of meaning to statutory text'.[48] Their Honours reiterated and endorsed the observations the High Court made in Federal Commissioner of Taxation v Consolidated Media Holdings Ltd[49] about the task of statutory construction, as follows:

'This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text.' So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text.[50]

Objective discernment of statutory purpose is integral to contextual construction. The requirement of s 15AA of the Acts Interpretation Act 1901 (Cth) that 'the interpretation that would best achieve the purpose of [an] Act (whether or not that purpose or object is expressly stated ...) is to be preferred to each other interpretation' is in that respect a particular statutory reflection of a general systemic principle.[51]

74 Thiess was a case where the plaintiff made an 'overpayment' of customs duty and goods and services tax ('GST') because his agent was under a mistaken belief about the gross weight of a yacht which he had imported into Australia. If the correct weight had been submitted the yacht would have been duty free, but the duty payable on a yacht of the weight submitted by the agent to customs was $494,472 plus GST of $49,447. The plaintiff did not discover the overpayment until the prescribed period for recovery had passed. He then brought proceedings against the Collector of Customs and the Commonwealth to recover the total sum paid, being $543,918.92, contending that it was paid to the Collector erroneously because his agent was under a mistaken belief as to the weight of the yacht. The plaintiff claimed the recovery of the overpayment as money had and received or by way of restitution in equity or by way of equitable compensation for unjust enrichment or alternatively an order that those defendants account to him for that sum. The Court held that s 167(4)[52] of the Customs Act 1901 (Cth) barred the recovery of any sum paid by mistake as duty payable in respect of goods unless the payment was made under protest, as required by s 167(1), and the action was commenced within the specified time periods, or the right to recovery arose under s 163 and the requirements of that section for the making of a refund had been complied with.

75 Having reviewed the statutory scheme in place under the Customs Act 1901, their Honours found that the 'relevant text of s 167(4) of the Act is emphatic: "[n]o action shall lie for the recovery of any sum paid to the Customs as the duty payable in respect of any goods."'[53] In their view, the scheme of the Act allowed for two qualifications. First, they said, 's 167(2) permits the bringing, within the times limited by s 167(4), of a statutory action for the recovery of the whole or any part of a sum paid under protest pursuant to s 167(1).'[54] Second, 's 167(5) adds the express qualification that nothing in s 167 affects any rights or powers under s 163. Section 167(4) therefore says nothing to affect any action to enforce any right to a refund, rebate or remission of duty which arises under s 163.'[55] Thus they found, the 'scheme of the Act is inconsistent with the implication of any further qualification'[56] and by 'barring any other recovery action, s 167(4) enhances the operation of that scheme.'[57] Further, their Honours said, the '[l]egislative history confirms that legislative design.'[58]

76 Turning then to the LTA 1958, it will be seen that the regime established under the Act operates on the basis that the making of the assessment gives rise to a liability to pay the whole of the amount assessed. That is, land tax is 'assessed charged levied and collected' by the Commissioner for each year (s 8) and the taxpayer is liable for 'the payment of the whole amount of tax (if any) assessed' on the taxpayer's land (s 15).

77 In Commissioner of State Revenue v Gas Ban Pty Ltd (in liq),[59] when considering the process of assessment under the Taxation Administration Act 1997 (Vic), the Court of Appeal explained that assessment is a process with a consequence, namely that 'a specified amount will become due and payable as the proper tax.'[60] Their Honours continued, stating:

It [the process of assessment] is definitive in character in that it assumes that, so far as can then be seen, a fixed and certain sum is definitely due. The Act expressly contemplates, however, that an assessment may be amended or reassessed if the commissioner, whether acting unilaterally in exercise of his powers or as a result of an objection or review or appeal, later comes to a different view as to the tax which is due.

An assessment is not tentative or provisional in the sense which may deny it the status of a valid assessment unless it appears ex facie or from surrounding documentation that it is conditional or subject to revision, or if it appears aliunde that the assessment has been issued by the commissioner knowing that it does not reflect any rational assessment of the taxpayer's liability to tax, or with reckless indifference to whether it does or does not reflect any such assessment, or otherwise in bad faith (in the sense of a 'conscious maladministration of the assessment process'). Nothing of that kind is suggested in this case.[61]

78 In my view, as a matter of construction, the scheme of the LTA 1958 is such that once the assessment has been made, the amount so specified will become due and owing as the proper tax on the date specified for payment. That remains the position even if the assessment is challenged and later found to be incorrect. A person who is dissatisfied with an assessment may serve an objection on the Commissioner, seeking to establish that the assessment is excessive and that an overpayment has resulted, but the fact that an objection is pending does not interfere with or affect the assessment and the tax may be recovered on the assessment as if no objection had been received. Unless and until that assessment is set aside, or altered or varied, or an amended assessment issues, the taxpayer remains liable for the amount of land tax assessed.

79 Further, in circumstances where a person claims to be entitled to a refund or recovery of land tax, it is also open to the person to make application under s 90AA for a refund of the payment but such application must be lodged with the Commissioner within three years after the payment was made. If an application is lodged, the question of whether or not an amount has been overpaid is one for the Commissioner to determine. In the event that the Commissioner finds that an amount has been overpaid, he must refund it or apply it in the manner directed under s 90AA(6). If the Commissioner determines to refund an amount, that amount is payable from the Consolidated Fund, which is appropriated to the extent necessary. Proceedings, including proceedings brought by way of judicial review, seeking a refund or recovery of an amount of tax paid under, or purportedly paid under, the LTA 1958 may be brought but only in the limited circumstances identified in s 90AA(3), save in the case where the claim is made by reason of the invalidity of a provision of the Act. The limitation of the Court's jurisdiction to prevent it entertaining proceedings of a kind to which s 90AA(1) applies, except as provided in that section, further confirms the limited scope for bringing any collateral challenge or recovery action.

80 The legislative history and the extrinsic materials referred to above confirm that legislative design, and in particular the statutory purpose of the 1993 amendments in confining and placing a temporal limit upon the taxpayer's ability to make claims and bring proceedings seeking a refund or recovery of overpaid land tax, so as to 'provide certainty and finality to Victoria's revenue collections'.[62] Further, there is the express limiting, in s 92A, of the Court's jurisdiction to entertain such claims for refund or recovery.

81 In Gas Ban, the Court of Appeal commented on the presence of the similar limitation of jurisdiction provision contained in s 96(2) of the Taxation Administration Act 1997,[63] which 'purports to oust the jurisdiction of courts and tribunals to consider the validity of assessments otherwise than in Pt 10 proceedings'.[64] The Court noted that the provision has no counterpart in the Commonwealth legislation and observed that '[e]vidently, it was designed to exclude the possibility of judicial review of the type which the High Court held in Richard Walter[65] is available in relation to Commonwealth taxation liabilities.'[66]

82 The operation of the scheme of the LTA 1958 can readily be demonstrated by reference to the 2002 land tax year, for which the plaintiff has produced a copy of the assessment. The 'Summary of Assessment' shows the '2002 Calculation of Land Tax Payable' as follows:

The 'Statement of lands owned as at midnight 31 December 2001', which forms part of the assessment, records the ownership of the '65 Albany Rd' property as giving rise to a liability for tax on a single holding basis of $28,780.00 and the '2 Ottawa Rd' property as giving rise to a liability for tax on a single holding basis of $34,180.00. The plaintiff estimates that if the 2 Ottawa Road property (but encompassing both Lot 1 Lodge Plan 27424 and Lot 1 Title Plan 598039) were the only land it held, as was in fact the case, the land tax assessed would have been $34,180.00, rather than $111,880.00, resulting in an overpayment for that year of $77,700.00.

83 Where an assessment under the hand of the Commissioner is produced, s 20 of the LTA 1958 provides that the assessment is conclusive evidence of the due making of the assessment and that the amount and all of the particulars of the assessment are correct. That is so, even though there may be other material available that casts doubt upon the correctness of the assessment. But until that assessment is altered or varied or set aside, or an amended assessment is made, the scheme of the Act is that the assessment prevails and the taxpayer remains liable for the whole of the amount assessed. This approach is confirmed by s 19, which specifically provides that the 'validity of an assessment shall not be affected by reason only that any of the provisions of the Act have not been complied with'.

84 If a taxpayer were permitted to challenge the amount of land tax assessed under the LTA 1958 for the 2002 year, outside of the objection regime, and to recover the amount of the alleged overpayment by a separate proceeding for money had and received, the integrity of the statutory scheme would be distorted. Perhaps most importantly, if the taxpayer were successful, the assessment issued by the Commissioner would no longer reflect the amount of tax actually payable.

85 In the present case, the plaintiff seeks to take the matter outside of the statutory scheme. It argues that the amounts it overpaid 'by mistake' to the Commissioner are not relevantly to be characterised as 'dut[ies] of land tax' under s 6 or 'tax on land' under s 8 of the LTA 1958. Further, it says that the 'conclusive evidence' provision in s 20 operates only where there has been something which answers the statutory process of an 'assessment' and, as the plurality of the High Court noted in Futuris, 'conscious maladministration of the assessment process may be said also not to produce an "assessment" to which s 175 applies.'[67] In this regard, the plaintiff now contends in its proceeding brought by way of Originating Motion, that as a result of the matters set out in the Commissioner's August 2013 correspondence, there has been maladministration by the Commissioner. But no contention is made to the effect that at the time the various assessments of land tax were made in each year between 1990 and 2002 there was any 'bad faith' or 'lack of good faith' in the process of the making of the assessments such as would found jurisdictional error.

86 In my view, each of the arguments advanced by the plaintiff to the effect that the amounts it paid were not tax because there was no valid assessment runs contrary to the statutory scheme established. For any of them to gain traction, the plaintiff must first establish that the assessment is excessive. Here, the amounts that were assessed and paid are common ground. Under the statutory scheme, once an assessment is made and the date for payment falls due, there is a debt due to the Crown. In each of the relevant land tax years when payments were made by the plaintiff, it did so because it was indebted to the Commissioner in the amount of land tax so assessed and the payment so made discharged that indebtedness.

87 The Commissioner contends that any challenge by a taxpayer to the amount of the liability assessed must be brought by way of objection. In support of his argument about the exclusiveness of the objection procedure, the Commissioner relied upon a number of cases, decided in similar contexts to that under the LTA 1958, to demonstrate that the making of the assessment gives rise to a debt certain that the Commissioner is empowered to recover notwithstanding that the taxpayer may seek to challenge it by one or more of the processes available under the statutory scheme. Further, the Commissioner points out, the outcome in each of those cases is not one arrived at by giving determinative effect to a 'conclusive evidence' provision. In the first of these cases, Hoare Bros,[68] the appellant company sought to set aside a statutory demand served by the Commissioner pursuant to s 459E(1) of the Corporations Law. It claimed that there was a 'genuine dispute' as to the amount of the tax debt the subject of the demand and said that if its objections to the Commissioner's assessments were ultimately successful, it would have paid to the Commissioner at least $70,121 in excess of its total liability. The Commissioner did not rely on the conclusive evidence provision contained in s 177 of the Income Tax Assessment Act 1936 (Cth)[69] ('ITAA') as the notices of assessment were not produced. The Full Court of the Federal Court reviewed the structure of the ITAA and concluded that it 'strongly suggests a legislative intent that the issue and service of a notice of assessment (after expiry of the appropriate period) creates a debt that is immediately due and payable', and that the assessment can be challenged only in the manner provided for by Part IVC of the Taxation Administration Act 1953.[70] The Court noted that in circumstances where no reliance is placed on the conclusive evidence provision 'it may be open to the taxpayer to challenge the assessment on the grounds that the notice does not in truth constitute an assessment; that it was not issued as a bona fide attempt to exercise powers conferred by the Act or, possibly, that it does not relate to the subject matter of the Act.'[71] But as it was not suggested before the trial judge that the notices of assessment served on the company were other than final assessments made in good faith for the purposes of the ITAA, their Honours did not consider that aspect any further.[72] Against that background, their Honours said:

In our view, it is clear from the scheme of the ITAA that the Company in the present case became indebted to the Commissioner in the amounts specified in the notices of assessment once they were served and the time referred to in s 204 had expired.[73]

They added that there were 'a number of grounds that, if the supporting facts were available, might have been relied upon by the Company to challenge the validity of the notices' but none of those grounds were invoked.[74]

88 In Futuris,[75] the High Court was dealing with an appeal brought by the Commissioner from a decision of the Full Federal Court quashing an assessment. The taxpayer's case assumed, and did not challenge, the correctness of a particular Part IVA step, namely that the whole of the $82.9 million included in its assessable income was the relevant tax benefit. The taxpayer contended that there was jurisdictional error in the process of the making of the Commissioner's second amended assessment. It argued that the assessment process that gave rise to the second amended assessment was flawed because there was a 'double counting' of an amount of $19,950,088, and that this was recognised by the Full Court. The High Court plurality observed that if there were errors of this nature made by the Commissioner in the process of the making of the second amended assessment, then they fell within the scope of s 175 of the ITAA.[76] Their Honours said:

They could not found a complaint of jurisdictional error attracting the exercise of jurisdiction to issue constitutional writs ... If there were errors they occurred within, not beyond, the exercise of the powers of assessment given by the Act to the Commissioner and would be for consideration in the Pt IVC proceedings.[77]

89 Earlier in their reasons, the plurality explained the scope and operation of s 175 as follows:

Section 175 must be read with ss 175A and 177(1). If that be done, the result is that the validity of an assessment is not affected by failure to comply with any provision of the Act, but a dissatisfied taxpayer may object to the assessment in the manner set out in Pt IVC of the Administration Act; in review or appeal proceedings under Pt IVC the amount and all the particulars of the assessment may be challenged by the taxpayer but with the burden of proof provided in ss 14ZZK and 14ZZO of the Administration Act. Where s 175 applies, errors in the process of assessment do not go to jurisdiction and so do not attract the remedy of a constitutional writ under s 75(v) of the Constitution or under s 39B of the Judiciary Act.[78]

But, their Honours added, s 175 operates 'only where there has been what answers the statutory description of an "assessment"'[79] and that 'conscious maladministration of the assessment process may be said also not to produce an "assessment" to which s 175 applies.'[80] Their Honours found that there was no failure of due administration with respect to the second amended assessment[81] and that, contrary to the taxpayer's contention, there was no support for 'any conclusion that the Commissioner engaged in 'double counting' with any knowledge or belief that there was a failure in compliance with the provisions of the Act.'[82]

90 In summarising their conclusions, the plurality emphasised that 'the process of reasoning which has led to that conclusion does not depend on giving determinative effect to s 177(1)',[83] the conclusive evidence provision which is the counterpart of s 20 of the LTA 1958. Rather, they said, the 'critical matter for the determination by this Court of the appeal has been the proper construction of s 175 and its application to the facts as correctly found by the primary judge.'[84]

91 Under the various state tax regimes, a similar position to that discussed in the federal tax cases applies, save that they do not face the constitutional limitations discussed in cases such as Futuris and Richard Walter. In Commissioner of State Taxation (WA) v Bayswater Hire Cars Pty Ltd[85] the Commissioner appealed against the dismissal of an application for summary judgment, in a proceeding brought by him to recover stamp duty assessed in relation to the taxpayer's rental business. The Commissioner contended that the provisions in the Stamp Act 1921 (WA), which are relevantly equivalent to the objection procedures here, exhaustively set out the procedure for challenging an assessment made by the Commissioner. The taxpayer, who accepted that the assessment was properly issued, contended to the contrary. It argued that it was open to it to defend the proceedings on the ground that the Commissioner had included in the assessment amounts which were not properly assessable under the rental business provisions of the Stamp Act 1921. Malcolm CJ (with whom Kennedy J agreed) found that the taxpayer's argument was 'without foundation and cannot be accepted.' [86] His Honour said:

The effect of s 31A is that the issue of an assessment creates a liability to pay the amount of the assessment. When the payment falls due it may be recovered as a debt due to the Crown: s 39A. It follows that so long as there is an assessment there can be no answer to an action to recover the amount of the assessment. There is no need for any provision such as the conclusive evidence provision in s 177(1) of the Income Tax Assessment Act 1936 or s 124A(1) of the Stamp Act 1920 (NSW).

In my opinion ss 32 and 33 of the Stamp Act provide an exclusive procedure for challenging the amount of an assessment validly made under the Act.[87]

92 The Chief Justice then referred with approval to the decision of the High Court in Cuming Campbell Investments Pty Ltd v Collector of Imposts (Vic),[88] which concerned the counterpart provisions of the Stamps Act 1928 (Vic) that were in all material respects the same as the scheme of the Western Australian legislation. In that case, an application was made for a writ of mandamus commanding the Collector to assess and accept stamp duty on a transfer in circumstances where the principal agreement, pursuant to which the transfer was made, had not been assessed for duty. The High Court refused to order mandamus on the basis that the Court could never require more than that the Collector perform his duty according to law. Latham CJ summarised the position in force under the statutory scheme as follows:

Thus the statute expressly provides a specific method of putting the collector right if he goes wrong. The court is not authorised by the statute to make an original assessment of duty. The court is authorised to make an assessment only after the collector has assessed and when the court has the benefit of the aldermen and councillors opinion of the collector. (Cf R v Mayor of Stepney (1902) 1 KB 317 at 321). The statute shows the intention of the legislature that the court should engage in the assessment of duty only upon an appeal from the collector. It would, in my opinion, be wrong for the court, when this specific remedy by way of appeal is given, to utilise mandamus proceedings so as to exclude the collector from the exercise of the function entrusted to him by the statute, and at the same time, to enable the court to make an original assessment of duty which is not contemplated by the Act.[89]

93 Malcolm CJ noted that the High Court's decision in Cuming Campbell Investments was applied by the Queensland Full Court in O'Sullivan v Commissioner of Stamp Duties Qld[90] to the Stamp Act 1984-1921 (Qld), the scheme of which is in all material respects identical to the Western Australian legislation. He added that these authorities serve to 'both confirm and require the construction of the Stamp Act which I have adopted.'[91]

94 Kennedy J agreed with Malcolm CJ. Wallace J delivered separate reasons, but was of the same opinion. His Honour examined the scheme established under the Act and concluded, by reference to these authorities that under the legislative scheme, once the assessment comes into existence 'it may only be altered by means of an objection or appeal'.[92]

95 The Commissioner also referred to and relied upon Chippendale Printing Co Pty Ltd v Commissioner of Taxation,[93] which concerned an alleged overpayment of sales tax. There the appellant, a manufacturer, sought to recover from the Commissioner under general law an overpayment of sales tax. No assessment made by the Commissioner was involved or in issue. The appellant alleged that, by reason of a mistake on its part, it simply paid in excess of the amount which it was required to pay under the applicable sales tax legislation in respect of its sales of certain goods. Under the relevant legislation, an amount of overpaid sales tax could only be recovered where, or to the extent that, the tax had not been passed on. The tax the appellant overpaid was 'passed on' to the purchasers of those goods and no refund had been given by the taxpayer. The trial judge, Lindgren J, concluded that the legislative regime was an exclusive code of the remedies available and so the taxpayer's claim to recover the moneys failed. The taxpayer appealed. The issue raised on the appeal was whether the relevant statutory regime applicable to the period(s) in question[94] comprised in each case:

an exhaustive and exclusive code as to the circumstances and conditions under which a claimant can recover an overpayment of sales tax or whether, alternatively and coexistent with the statutory right and procedures, there is a right to a refund under the general law which is not subject to the conditions, limitations or exclusions provided for by the statutory regimes. [95]

96 The Full Federal Court (Sheppard, Tamberlin and Lehane JJ) dismissed the appeal. Sheppard J concluded that, as a matter of statutory construction, the statutory regimes in place for the first and second periods were exhaustive and excluded any general law right to recover overpaid tax. He said:

Much of the argument before us was taken up with an interesting consideration of the circumstances in which a common law right to recover moneys for an overpayment of tax could coexist with a statutory right for that recovery. There was a good deal of consideration given to the question whether the legislation in point contained what might be described as a code thus reflecting an intention on the part of the legislature to oust other forms of recovery. Plainly the matter is one of statutory interpretation. It would seem to me to be an odd state of affairs if the legislature, in the circumstances which exist here, intended to restrict the right to recover under the statute as it has and yet to allow an unrestricted right deriving from the common law to remain available at the same time. I think that the legislation reflects a sufficiently clear intent to warrant the conclusion that it did not intend there to be available for an overpayment such as was made in this case any remedy other than the statutory one for which the legislation provides.[96]

97 In his judgment, Tamberlin J also approached the matter as a question of construction. He noted recent developments in the law of restitution and the ability to recover a refund at general law, referring to the decisions of the High Court in David Securities Pty Ltd v Commonwealth Bank of Australia,[97] and the Royal Insurance case.[98] He also referred to the decision in Woolwich Equitable Building Society v Inland Revenue Commissioners,[99] where 'the House of Lords held that the law of restitution should be reformulated so as to recognise a prima facie right of recovery based solely on the payment of money pursuant to an ultra vires demand by a public authority.'[100] In the Woolwich case, the taxpayer had paid tax under regulations 'without prejudice' to its right to recover the sums if the regulations were void. The regulations were subsequently held void and the taxpayer brought a claim for recovery of the moneys. As the taxpayer's claim fell outside the statutory framework governing repayment, there was no statutory right to recover. A majority of their Lordships held that the taxpayer was entitled at common law to repayment of the overpaid moneys, with interest. Tamberlin J noted that in Woolwich, the statutory regime did not exclude the making of a common law claim, but his Honour said that he considered observations made by their Lordships to be 'consistent with the view that a detailed statutory regime may appropriately create, exclude, limit and control the exercise of rights to repayment and to preclude any general law rights to repayment freed of such restraints.'[101]

98 Tamberlin J then turned to examine the legislative scheme that applied under the federal sales tax legislation from its inception in 1930. In respect of the first period, which was covered by the legislative scheme established by the 1930 Act, his Honour was of the view that the effect of the Act was 'to transform all common law rights as then understood, into statutory rights and to exclude the common law rights.'[102] He said:

The detailed express and specific provisions would be unnecessary if a claimant was entitled to claim a refund of overpaid sales tax under the general law right, freed of the specific constraints referred to above. ...

It must be borne in mind that the obligation to pay sales tax and the procedures by reference to which such tax is to be assessed, paid, collected and adjusted, arises from statute and not from agreement or from the general law. The subject matter of the tax is a statutory debt. The whole regulatory regime is legislative and not consensual in character. Against this background it is not inappropriate that the statutory regime should be interpreted to cover the field and not allow actions under the general law where the result would be to bypass carefully formulated legislative controls.[103]

His Honour concluded that for the first period, the general law right of recovery was by necessary implication excluded by the statutory regime then in place. For the second period, his Honour found 'it is even clearer' that the statutory regime established under the 1992 Act is 'exclusive and exhaustive of a general law right to a refund of sales tax'.[104]

99 Lehane J also reached a similar conclusion. He noted that even though the new sales tax legislation differed significantly in form from the old, its substantial effect was very similar. His Honour found that the refund provisions of both sets of legislation form an exhaustive code and do not permit a general law right of recovery to co-exist. Further, his Honour was of the view that the Royal Insurance case provides support for the conclusions he reached. He said the effect of Brennan J's judgment, which represents the views of the majority of the Court, is that:

the Commissioner could be compelled to exercise her power under the section in circumstances where the general law would create a duty to refund the overpaid amount (at 88) but that (at 92) the section had 'transformed the cause of action into a right to performance by the Commissioner of her duty to exercise her power to refund'. In other words, though the circumstances (and the only circumstances) in which the Commissioner might (and should) exercise her discretion under the section were those where the common law would impose a legal obligation to make a refund, the claimant's only recourse was an action to compel the appropriate exercise of the discretion, not an action against the Commissioner (or the Crown) to recover the overpaid duty at common law.[105]

100 The Commissioner readily acknowledges that there are differences between the legislative regimes in place in these decided cases and that which applies under the LTA 1958. But he says the relevant similarity with those cases lies in the process of assessment and the fact that the making of the assessment gives rise to a liability to pay and establishes a debt due to the Crown, with provision for the taxpayer to challenge the assessment by way of objection or appeal within specified time frames, and a power to refund money in circumstances where the challenge is successful. These cases demonstrate that it is a matter of statutory construction in each case whether the particular legislative scheme creates an exhaustive and exclusive code as to the circumstances and conditions under which a claimant can recover an overpayment or whether, alternatively and coexistent with the statutory right and procedures, a general law right to a refund is nevertheless available which is not subject to the conditions, limitations or exclusions provided for by the statutory regime.

101 The Commissioner also relied upon the decision of Sackville J in Lamesa Holdings BV v Commissioner of Taxation.[106] That was a case where the Commissioner served a statutory notice so as to effectively appropriate moneys (in United States dollars) held by a third party, Macquarie Equities, on behalf of the taxpayer, a company incorporated in the Netherlands, in satisfaction of its liability under amended assessments. Pursuant to orders made by the Full Court, following the allowance of the taxpayer's appeals against objection decisions of the Commissioner, those amended assessments were later reduced to 'nil'. In the meantime, the value of the Australian dollar had depreciated against the US dollar, with the result that the amount refunded by the Commissioner (in Australian dollars) gave rise to a shortfall in real terms when the refund was made. The taxpayer contended first, relying on Woolwich, that money exacted as a tax pursuant to a demand not authorised by or founded on an incorrect interpretation of the tax statute is recoverable as of right. Secondly, relying on David Securities, it argued that the payments made or effected in compliance with the statutory notice were made under a mistake of law and thus were recoverable. It sought to recover both the 'tax overpaid' and interest thereon from the date of payment to the date of refund pursuant to the Taxation (Interest on Overpayments) Act 1983 (Cth). The Commissioner contended that the federal legislative scheme, established under the ITAA, the Taxation Administration Act 1953 and the Taxation (Interest on Overpayments) Act 1983, constituted an exclusive code for determining the liability of the Commissioner to repay amounts of income tax overpaid and interest thereon, and that accordingly there was no room for parallel remedies of restitution and unjust enrichment to operate.[107]

102 Sackville J found that the fact that the decisions on the taxpayer's objections were ultimately set aside did not alter the fact that on 21 June 1996, when payment was made, the taxpayer was indebted to the Commonwealth in the amount of the tax then assessed. He said:

... at the time Macquarie Equities paid the US$ sum to the Commissioner with Lamesa's prior approval, Lamesa (as it knew) was indebted to the Commissioner by virtue of the assessments that had been issued on 16 January 1996. While the enforcement of the assessments remained in 'limbo' until June 1996, Mr Slater [Senior Counsel for the taxpayer] did not dispute that the effect of ss 204 and 208 of the Assessment Act was to create a debt due to the Commonwealth and enforceable by the Commissioner. No suggestion has ever been made that the assessments were issued in bad faith.[108]

103 His Honour proceeded to deal with the question of whether in circumstances where the assessments were unfounded, the taxpayer could rely on unjust enrichment. Senior Counsel for the taxpayer contended that the statutory scheme in place is not inconsistent with the relief it sought but he accepted 'that restitutionary relief cannot be pursued while there is extant an assessment that has not been set aside.'[109] That is, he submitted, once the original assessment is shown to have been excessive, and the tax never to have been exigible, the claim could be pursued. His Honour observed the difficulty in reconciling these submissions 'with the structure of the legislation', noting that after the decisions of the High Court in Bloemen v Commissioner of Taxation (Cth)[110] and Richard Walter in particular, there are now only limited circumstances in which an assessment can be challenged in the Federal Court, pursuant to s 39B of the Judiciary Act 1903 (Cth).[111]

104 Further, Sackville J also pointed out that where a taxpayer challenges an objection decision and succeeds in securing a refund under s 172 of the Assessment Act, there is no retrospective elimination of the tax debt. He said:

Contrary to what seems to be implied by Lamesa's submissions, s 172(1) does not provide that, upon the issue of an amended assessment reducing a liability to tax, the amount by which the tax is so reduced must be taken as never having been payable. It is only taken never to have been payable for the purposes of provisions relating to the payment of interest and penalties by the taxpayer.[112]

105 He concluded that the 'elaborate statutory scheme' established under these Acts:

necessarily implies that unjust enrichment remedies are not available to a taxpayer where (to use the words of Brennan J in Richard Walter at 197) there is a 'disconformity between the amounts assessed and the amounts properly assessable under the general provisions of the Act.'[113]

In reaching that conclusion, his Honour identified as relevant the fact that Senior Counsel for the taxpayer's own submissions recognised 'that the principles of unjust enrichment are inconsistent with the statutory scheme' and he 'acknowledged that the taxpayer's entitlement to a restitutionary remedy does not arise on payment of the tax incorrectly demanded (as it would under the general law), but only when the assessment is set aside.'[114] Further, he said the language used in s 172 suggests 'an intention to provide an exclusive remedy for the recovery of overpaid tax, within the framework of the objections and appeal process' and if a taxpayer can rely on restitutionary remedies 'the statutory limitations on the recovery of interest might be circumvented by more generous provision for interest under the general law'.[115]

106 In the present case, if the plaintiff were permitted to pursue its restitutionary claim at common law, it would circumvent the statutory regime and the time frames and processes limited for challenging the land tax so assessed. In my view, the statutory regime of objections and appeals established under the LTA 1958, together with the process for claiming a refund under s 90AA, provides the only means for a taxpayer to establish that there is an overpayment, and thereby any entitlement or remedy for the recovery of any overpaid tax. In other words, the position is that unless and until the original assessment is set aside or varied or shown to have been excessive, and the amount of tax so assessed never to have been exigible, no common law claim for restitutionary relief could be pursued. Indeed, when the provisions of s 90AA are examined (as to which, see Issue 2 below), it appears that the legislature intended that, save in the case where invalidity of a provision is alleged, there would only be scope for a person who claims to be entitled to receive a refund of or to recover tax paid under the LTA 1958 to bring proceedings for the recovery of the amount of the overpayment in the limited circumstances set out in s 90AA(3). Further, the express limitation of the jurisdiction of the Court serves to confirm that legislative intention. By effectively barring any other recovery action by a taxpayer, and limiting the Court's jurisdiction to entertain proceedings, ss 90AA and 92A serve to enhance the operation of that scheme.

In any event, was there a relevant mistake made by the plaintiff?

107 In its restitutionary proceeding commenced by Writ, the plaintiff makes what may be described as a collateral attack on the efficacy of the assessments. It contends that the amounts representing the overpayments were wrongfully demanded, in the sense that they were exacted without statutory authority, and were paid by the plaintiff based on a mistaken belief that they were lawful demands. The plaintiff says that the moneys in question were never tax and thus there was never any lawful authority under the Act for the Commissioner to exact or retain those moneys.

108 The Commissioner challenges the notion that there was any relevant mistake made by the plaintiff when paying the assessments. Rather, the Commissioner contends that each of the payments made by the plaintiff in relation to the assessments constituted a payment made in order to discharge a lawful obligation, namely the land tax that was assessed under the provisions of the LTA 1958. Once the assessment issued, the land tax so assessed became due and payable on the date stated (s 57). Further, the land tax so assessed was a debt due to the Crown (s 39), and was recoverable by the Commissioner on behalf of the Crown (s 59) regardless of whether any objection or appeal against the assessment was pending. Further, the Commissioner says, the onus is on the taxpayer to satisfy the Court that the action is one for relief from the consequences of a mistake.

109 The Commissioner says that when the plaintiff paid the amounts as assessed in each year, it did so in order to discharge its indebtedness to the Crown. Further, that as the payments were made for good consideration, they fall within one of the 'defences' included in the well-known formulation of the applicable principles by Goff J in Barclays Bank Ltd v W J Simms Son & Cooke (Southern) Ltd[116] that was recognised by the High Court in David Securities.[117]

110 In David Securities, when discussing available defences, Brennan J explained what is meant by the concept of 'unjust enrichment' at the expense of the plaintiff, as follows:

[T]he essential condition for an order for restitution of money paid by mistake is that the receipt of the payment by the defendant has unjustly enriched the defendant at the expense of the plaintiff. What is meant by unjust enrichment?

In essence, to say that a defendant has been unjustly enriched by the receipt of a payment is to say that the defendant has no right to receive it. ... If a defendant has a right to receive a payment, whether under a statute, in discharge of a liability owing to him or pursuant to a contract, a mistake by the plaintiff in making the payment does not convert the receipt into an unjust enrichment. To the extent that a payment satisfies the defendant's right to receive it, the defendant gives good consideration and is not unjustly enriched.[118]

111 His Honour agreed with the reasons of the majority for rejecting the distinction between a mistake of fact and a mistake of law as being critical to the question of whether the defendant has been unjustly enriched. But, he said, the 'distinction between mistakes of fact and mistakes of law is material to the question whether a payment is "voluntary" and, on that account, is recoverable.'[119] The reference to the expression 'voluntary' was a reference to the term as used by the majority in their reasons, to refer to 'a payment made in satisfaction of an honest claim, rather than a payment not made under any form of compulsion or undue influence.'[120] His Honour was 'unable to accept the proposal in the majority judgment that payments made in satisfaction of an honest claim should be classified as "voluntary" and, on that account, be held to be irrecoverable.'[121] Brennan J said that, in his view, it is essential to retain the state of mind of the payer as the criterion of voluntariness and it is inappropriate to define the term by reference to the state of mind of the payee. His Honour said:

So long as mistake of law was excluded as a ground for recovery of a payment, it was appropriate to use the term 'voluntary' to indicate the state of mind of a payer who, having full knowledge of the material facts is consciously unaware of the relevant law but chooses to pay a demand honestly made. In that event, as P.A. Butler points out:[122] 'there is simply no operative mistake forming part of the facts founding recovery; that is, the money is irrecoverable as being paid in the settlement of an honest claim. The principle embodied here may be called the "voluntary settlement" principle.' When such a voluntary settlement is made, the payer consciously abandons any right to impeach the finality of the payment. But once a mere mistake of law is admitted as a prima facie ground for recovery of a payment, the payer has, so to speak, reserved a right to impeach the finality of the payment if it should turn out that the payee had no right to receive it. ... The ordinary case of payment under a mistake of law arises when the payer and the payee make an erroneous assumption as to the existence of an obligation and the error of law is subsequently revealed to both. It would lead to great uncertainty if the payer should be entitled to recover the money paid in every case of that kind.[123]

112 Against that background, the Commissioner contends that when comparing the payments sought to be recovered in the present case with those under consideration by the High Court in Royal Insurance, Brennan J's 'item (ii)(a)' is the relevant comparator for the land tax which the plaintiff alleges it overpaid. In the case of 'item (ii)(a), his Honour found there was no mistake affecting the payment of that amount because there was consideration for the payment so made. The 'item (ii)(a)' payments were payments made in respect of premiums received before the 1987 amendment commenced, which were due and owing when paid but, by retrospective operation of the 1987 amendment to the Stamps Act 1958 (Vic), were deemed not to have been due and owing. With respect to those payments, his Honour said:

When paid, the Comptroller[124] was entitled - indeed, she was bound - to retain it. But, by force of the operation attributed to the 1987 amendment, the Commissioner is retrospectively disentitled to retain what was paid as stamp duty under the Act as it stood before the 1987 amendment commenced. .... It is only by creating a right to a refund of stamp duty already paid that retrospective effect can be given to the 1987 amendment. The Commissioner's liability thus arises directly from the provisions of the Taxation Acts Amendment Act 1987. I see no reason to treat the Commissioner's liability to refund the amount in item (ii)(a) as other than statutory. There is no occasion to invoke notions of common law restitution in order to discover a cause of action entitling a payer to a refund. [125]

113 I agree with the Commissioner's contention. For the reasons advanced by the Commissioner, I am not satisfied that there was any operative mistake at the time the various payments were made. Once the assessments were made by the Commissioner (and the date(s) specified for payment arrived), the plaintiff became indebted to the Crown for the sum(s) assessed. As and when the payments were made, they were made in the discharge of a legal obligation to pay, and that indebtedness was discharged upon the payments being made by the plaintiff. In circumstances where those assessments have not been successfully objected to, or amended or withdrawn and re-issued, that remains the position. Accordingly, I am not satisfied that there was any operative mistake at the time the respective payments were made by or on behalf of the plaintiff.

(2) Is the plaintiff's action in restitution for relief from the consequences of a mistake barred by a limitation provision - be it one or more of s 90AA of the LTA 1958, s 20A(1) of the Limitation Act or s 5(1) of the Limitation Act, as extended by s 27 as the case may be?

114 If, contrary to the view I have formed, it were open to the plaintiff to bring a claim for restitutionary relief at common law, the Commissioner contends that the proceeding is barred by one or more limitation provisions. The plaintiff disputes this and maintains that it is not foreclosed from bringing proceedings. It maintains that the amounts representing the overpayments were wrongfully demanded, in the sense that they were exacted without statutory authority, and thus were never 'tax', and there was never any lawful authority under the Act for the Commissioner to exact or retain those moneys. For this reason, the plaintiff contends neither of the limitation periods in s 90AA of the LTA 1958 or in s 20A of the Limitation Act applies. Alternatively, if one of those limitation periods does apply, it says it is the limitation period provided for in s 20A as extended by s 27 of the Limitation Act.

115 I will deal with each of these arguments in turn.

116 In the first place the plaintiff says s 90AA of the LTA 1958 does not apply at all to the present case because its opening words are not satisfied. The plaintiff argues that because the moneys sought to be recovered were wrongfully exacted, no notion of 'tax' is involved. The plaintiff contends that when regard is had to the legislative history, it is clear that the limitation provision contained in s 90AA of the LTA 1958 was never intended to apply to actions for restitution or recovery of wrongfully exacted tax, or wrongfully exacted amounts attributable to tax, where the overpayment was based on a mistake. It contends that if any limitation period applies to such actions, the relevant limitation regime is that established by s 20A and associated provisions of the Limitation Act.

117 The Commissioner, on the other hand, contends that for the purposes of s 90AA of the LTA 1958, this proceeding is a proceeding for the refund or recovery of tax paid under, or purportedly paid under the LTA 1958. In this regard, the Commissioner points to the plaintiff's statement of claim, which seeks restitution of 'the amount overpaid on account of land tax'. The plaintiff's statement of claim also refers similarly to land tax having been 'assessed', to 'the assessments' having been 'duly paid', to each of 'the land tax assessments' being erroneous, and resulting in overpaid 'land tax'.[126] In these circumstances, the Commissioner submits that each of the payments made by the plaintiff was demonstrably a payment of 'land tax' that had been 'assessed' by the Commissioner, and was therefore, in each case, a payment made to discharge a statutory 'tax debt' that was due to the Crown and payable to the Commissioner by the date specified in the assessment.

118 The Commissioner says that no issue was taken by the plaintiff with the assessments as and when they were made. The amount paid to the Commissioner by or on behalf of the plaintiff in each land tax year accorded with the sum assessed, and upon payment operated to discharge the statutory tax debt. As such, each of those amounts is plainly capable of being characterised for the purposes of s 90AA as amounts of 'tax paid under, or purportedly under' the LTA 1958.

119 Further, the Commissioner says that for the purposes of s 90AA(2) of the LTA 1958, the plaintiff did not lodge any application for a refund with the Commissioner within three years after paying or purportedly paying land tax for each of the tax years 1990 to 2005 (inclusive). In the premises, by virtue of s 90AA(1), the claim for restitution cannot be brought because the statutory scheme established under the LTA 1958 provides the remedy for seeking a refund or recovery of amounts of tax paid, and in so doing expressly excludes the common law.

120 In my view, the intention of s 90AA is plainly to place a three year time limit on the making of tax refunds and to confine the scope for making application therefor. That intention is manifest from the express words used in the section and is confirmed by the second reading speech. The wording of s 90AA(2) is clear. The section applies in circumstances where 'a person claims to be entitled to receive a refund of or to recover tax paid under, or purportedly paid under', the LTA 1958. That is, the terms in which the provisions of s 90AA are expressed make clear that s 90AA(2) applies 'if' a person claims to be entitled to a refund, unless the claim is made by reason of the invalidity of a provision of the Act (s 90AA(5)). In that event, an application (in the prescribed form) must be lodged with the Commissioner within the three year period. In the present case, no application for a refund was made within the time limited by s 90AA(2).

121 Further, under the statutory scheme in place, 'proceedings' for the refund or recovery of tax 'must not be brought' except as provided in s 90AA. Section 90AA(3) permits 'proceedings' to be brought only where an application for a refund has been lodged but either the refund has not been made within a period of three months after the application was lodged or the Commissioner has refused in writing to make a refund. In either of those events, the relevant limitation period for the bringing of proceedings is that prescribed by s 90AA(3), namely 'within 3 months after the end of that period [i.e., of three months after the application was lodged] or after that refusal, whichever first occurs'. Sub-section (4) confirms that sub-s (3) applies 'whether or not the period for bringing proceedings for the refund or recovery of the amount prescribed by section 20A(1) of the Limitation of Actions Act 1958 has expired.'

122 In the present case, as no application for a refund was lodged with the Commissioner within three years after the payment of any of the amounts of land tax sought to be refunded for the 1990 to 2002 tax years, I am satisfied that s 90AA operates to bar the bringing of a common law restitutionary proceeding for the refund or recovery of the tax now said to have been overpaid. That is because s 90AA(1) expressly prohibits the bringing of such a proceeding for the refund or recovery of tax paid under, or purportedly paid under, the LTA 1958 save where it is brought against the Commissioner in the limited circumstances outlined in s 90AA(3). Further, the express limitation of the Court's jurisdiction by s 92A,[127] precludes the Court from entertaining proceedings of a kind to which s 90AA(1) applies except as provided in that section.

123 The plaintiff, in addition to its arguments about s 90AA discussed above, also relies on an alternative argument that was raised for the first time during the course of the hearing. It says that if, contrary to its contentions, s 90AA(1) does apply to this proceeding, then by virtue of s 20A of the Limitation Act it is subject to s 20A(1), and accordingly the saving provision under s 27 is available to extend the period for bringing a proceeding.[128]

124 I do not agree. If s 90AA(1) does apply to this proceeding then it is foreclosed from being pursued. That is because the proceeding is not one brought against the Commissioner in the limited circumstances outlined in s 90AA(3). Importantly, s 20A(1) of the Limitation Act does not address the time period for the making of an 'application' to the Commissioner for a refund. That period is fixed by s 90AA(2) of the LTA 1958. As I have said, under the scheme established by the LTA 1958, a 'proceeding' may only be issued where an application for a refund that has been lodged under s 90AA(2) and the Commissioner has not within 3 months refunded the amount or refused to make a refund.[129] It is only in the event that such a proceeding is capable of being commenced against the Commissioner that s 20(A)(1) could supply the relevant limitation period for the commencement of a 'proceeding' for the recovery of money paid by way of tax or purported tax.

125 Accordingly, I am not satisfied that s 20A is enlivened in the present circumstances. But even if it were, for the reasons set out below, I am also not satisfied that the plaintiff has demonstrated a basis for postponing the commencement of the relevant limitation period under s 27.

126 If, notwithstanding the view I have expressed, it were possible for the plaintiff to bring a restitutionary proceeding to recover the amounts it says it overpaid by mistake, does s 20A of the Limitation Act operate so as to bar the proceeding?

127 The plaintiff contends first, that s 20A does not apply. That is, the plaintiff advances a similar argument in respect of the opening words of s 20A(1) of the Limitation Act as it did with s 90AA, contending that its proceeding is likewise not 'a proceeding for the recovery of money paid by way of tax or purported tax or by way of an amount that is attributable to tax or purported tax under a mistake (either of law or fact)'.

128 The next permutation in the plaintiff's series of cascading arguments is that if any limitation period applies, it is the limitation period provided for in s 20A, as extended or postponed by s 27 of the Limitation Act. The plaintiff says that whilst the introductory words of s 90AA are not satisfied, the different introductory words of s 20A, which address specifically the situation where an amount attributable to tax is paid under a mistake, may be satisfied, and so the Court might find that s 20A applies to the exclusion of s 90AA.

129 Further, it says, that same outcome might be reached by another means. If, contrary to its earlier contention, the introductory words are satisfied, such that either s 90AA or s 20A(1) is capable of application, then the plaintiff contends there is a tension between the two regimes, in the sense that s 90AA would provide for a three year period in which to bring recovery proceedings, whereas s 20A(1)(a) would provide for a period of 12 months (as extended by s 27) or s 20A(1)(b) would provide for the period of three years imposed by s 90AA, as qualified by the application of s 27. In those circumstances, the plaintiff says it is necessary to give the two regimes an harmonious operation.

130 In a context where the Court is considering apparent tension between two statutory regimes, the plaintiff contends the relevant principles of construction to be applied so as to accord an harmonious operation are those outlined by Gageler J in Commissioner of Police (NSW) v Eaton.[130] His Honour said:

The particular question of statutory construction in the appeal attracts a further and more specific common law principle of construction. Stated at its highest level of generality, it is that statutory texts enacted by the same legislature are to be construed so far as possible to operate in harmony and not in conflict. That principle of harmonious construction applies to the construction of provisions within different statutes of the same legislature to create 'a very strong presumption that the ... legislature did not intend to contradict itself, but intended that both ... should operate.'[131] The principle applies also to the construction of multiple provisions within a single statute to the effect that '[w]here conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions.'[132] In undertaking that adjustment, 'such sense is to be made upon the whole as that no clause, sentence or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent'.[133] [134]

131 Whilst Gageler J was in dissent as to the outcome of the case, his statement of the relevant principles of construction accorded with that expressed by the plurality. In their joint judgment, Crennan, Kiefel and Bell JJ said:

In accordance with ordinary rules of construction concerning the internal operation of a statute, the Police Act should be construed in a way which best achieves a harmonious result.[135] The same principle of consistency informs the construction of two statutes which may share a field of operation.[136]

132 The plaintiff points to the fact that s 20A is the only limitation provision that in terms applies to cases of 'mistake'. Accordingly, it contends that if any limitation provision applies in the present case, it is s 20A as it is dealing more specifically with restitutionary claims involving 'mistake'. It says that approach also reflects the fact that the current form of the Limitation Act provision was introduced at a later point in time and is more specific in its definition of the causes of action that fall within it. In that regard, it says the amendments made initially to s 20A in 1993 following the decision of the Full Court in the Royal Insurance case[137] were made with effect from 15 October 1993, being the same time as s 90AA was introduced, but the relevant concept of 'mistake' for the purposes of s 20A was later expanded in 2004 to cover amounts that are 'attributable to tax or purported tax' paid under a mistake.

133 The plaintiff contends that there is a second way in which the Limitation Act provisions would prevail as a result of the harmonising of the provisions of the two regimes. It says that if the present proceeding is relevantly to be regarded as one to recover an amount that is by way of tax or purported tax, or that is attributable to tax or purported tax, paid under a mistake, then the longer of the two limitation periods referred to in s 20A(1) would apply. That is, if the proceeding were found to be one that was brought in accordance with 'another Act' under s 20A(1)(b), the other Act would be the s 90AA provision in the LTA 1958 which specifies a three year period. Irrespective of which limitation provision operates, however, the plaintiff relies on s 27 of the Limitation Act to extend and postpone the commencement of the limitation period prescribed by that Act.

134 In light of the view I have expressed about the limited scope for commencing a proceeding under s 90AA, it is difficult to see how s 20A(1)(b) could be enlivened in the present case. That leaves only s 20A(1)(a) to operate and it is common ground that the proceeding was not commenced within 12 months of the payments being made. Accordingly, unless s 27 is enlivened, the proceeding would be barred.

Does s 27 apply so as to extend the limitation period?

135 The plaintiff contends that if s 20A(1)(a) of the Limitation Act does apply (which is denied) such that any proceeding for the recovery of money paid by way of tax or purported tax under a mistake must be commenced within 12 months of the date of payment, then s 27 applies to extend the limitation period, so that it does not begin to run 'until the plaintiff has discovered ... the mistake ... or could with reasonable diligence have discovered it ...'.

136 In relying on s 27, the plaintiff bears the onus of establishing two matters: first, it must demonstrate that the action is one 'for relief from the consequences of a mistake'; and secondly that it could not, 'with reasonable diligence', have discovered the mistake in the assessments.

137 In Candibon Pty Ltd v Minister for Planning[138] Emerton J said that a plaintiff's cause of action will be one for relief from the consequences of a mistake where the mistake is 'an essential ingredient'[139] of the cause of action or the 'gist of the cause of action'[140] Her Honour noted that in Barton v Chibber,[141] Hampel J held that mistake is the 'gist of the cause of action' in a case 'where it is the mistake itself that gives a right to apply to a court for relief, for example, in an action for recovery of money paid under a mistake of fact.'[142]

138 In the present case, the plaintiff says that its claim is 'one for relief from the consequences of a mistake' being the fact that it paid the amounts to the Commissioner in each of the tax years in the mistaken belief that the amounts were lawfully payable to the Commissioner. Thus, it contends that the mistake is 'an essential ingredient of the cause of action', or the 'gist of the cause of action'.[143]

139 I have already set out the reasons why I do not accept that there was any operative mistake in the present case. But even if a different view were taken on that point, the plaintiff must also demonstrate that the mistake is such that 'with reasonable diligence', it could not have discovered it at any earlier time. The plaintiff says that it did not discover the mistake until a date on or after 23 March 2012 when the Commissioner first informed Streetriver that an error had been detected in the land tax assessments issued to it for the 2008 to 2011 tax years. The plaintiff then issued its writ seeking restitutionary relief on 21 March 2013, being within the period of 12 months of the plaintiff discovering the mistake.

140 In Allen v Vehicle Builders Employees' Federation of Australia,[144] Smithers J considered the meaning of the expression 'reasonable diligence' in the context of alleged irregularities in the election of officers in a registered industrial organisation. Under s 159(5) of the Conciliation and Arbitration Act 1904 (Cth), the applicants were required to satisfy the court that within six months from the completion of the elections for officeholders that they had not, and could not by reasonable diligence, have acquired knowledge of and the means of establishing the matters alleged to have constituted the irregularity. His Honour found that the applicants' failure to take any action at all within the period of six months from the completion of the elections did not fulfil the standard of what was reasonably required by persons seeking to challenge the election on the ground that it was conducted under invalid rules. In so doing, he referred with approval to Young v Paddle Brothers Pty Ltd,[145] decided some 20 years earlier, where Herring CJ endorsed a statement made by Dr Lushington in The Europa[146] to the effect that the meaning of the expression 'reasonable diligence' is not the doing of everything possible, 'but the doing of that which, under ordinary circumstances and with regard to expense and difficulty, could be reasonably required.'[147]

141 The plaintiff also relied upon Peco Arts Inc v Hazlitt Gallery Ltd.[148] That was a case where a drawing, purchased in 1970 was found, some 11 years later, to be a reproduction and not an original work. The plaintiff sued for the return of the purchase money with interest as money paid under a mutual mistake of fact. It was common ground that, at the time of sale, both parties thought (erroneously) that the drawing was an original drawing by the named artist. At trial, the parties limited the issue for decision to the question of whether the plaintiff could with reasonable diligence have discovered the mistake as to the drawing's authenticity before a date six years prior to the institution of proceedings. Webster J, after considering the relevant authorities on the meaning of 'reasonable diligence', including Dr Lushington's dictum, said:

I conclude, first of all, that it is impossible to devise a meaning or construction to be put upon those words which can be generally applied in all contexts because, as it seems to me, the precise meaning to be given to them must vary with the particular context in which they are to be applied. In the context to which I have to apply them, in my judgment, I conclude that reasonable diligence means not the doing of everything possible, not necessarily the using of any means at the plaintiff's disposal, not even necessarily the doing of anything at all; but it means the doing of that which an ordinarily prudent buyer and possessor of a valuable work of art would do having regard to all the circumstances, including the circumstances of the purchase.[149]

142 Webster J then turned to review the evidence adduced on the question of whether the plaintiff purchaser had demonstrated that it could not have discovered the mistake earlier with reasonable diligence. In giving judgment for the plaintiff, his Honour held that the plaintiff had used 'reasonable diligence' within the meaning of the Limitation Act 1980 (UK), so that the limitation period did not run until June 1981 and the plaintiff's action was not time-barred.

143 In the present case, the plaintiff contends that the commencement of any limitation period should be postponed under s 27 because, it submitted, it 'could not, with reasonable diligence, have discovered the mistake in the assessments'[150] (emphasis added).

144 It will be noted that the relevant mistake the plaintiff contends for under s 27 differs in formulation from that advanced generally on its claim for restitutionary relief.[151] For the purposes of s 27, the plaintiff says that the relevant mistake lies in the assessments themselves; in effect, that the plaintiff could not, with reasonable diligence, have discovered that a duplicate property was included in the assessments.

145 I have already outlined the evidence adduced from Mr Davis and Mr Ngo on behalf of the plaintiff. As noted earlier, neither of them has personal knowledge of the events that took place when either the 65 Albany Rd or the 2 Ottawa Rd properties was purchased and the properties were first assessed for land tax. There is little in the way of evidence about what transpired when the plaintiff became the owner of both properties from 1988. There is, for example, no evidence about what information the plaintiff furnished to the Commissioner under ss 14 and 15 of the LTA 1958 for the purposes of the assessment and levying of taxation, and the assessments themselves have not been located. But Mr Davis has exhibited copies of the Assessment Reports issued by the SRO for the 1983-2001 land tax years.

146 It is common ground that the valuation used for land tax purposes in each relevant year from 1993 was essentially the same as that which was used by the City of Stonnington for municipal purposes. Mr Fitzgerald, the City of Stonnington valuer, has confirmed that the municipal valuations for 2 Ottawa Road conducted from October 1992 onwards encompassed both Lot 1 Lodge Plan 27424 and Lot 1 Title Plan 598039. Once apprised of this, the SRO informed the plaintiff that the property described on the land tax assessments as '65 Albany Rd' was determined to be a 'duplicate property'.

147 For those land tax years where assessments are available, from 2002 through to 2007, they record in each case the unimproved (or site) value of each of 2 Ottawa Rd and 65 Albany Rd respectively. For example, in the case of the land tax assessment for the 2002 year, the unimproved (or site) value specified for 2 Ottawa Rd and for 65 Albany Rd is $2,010,000 and $1,830,000 respectively. The 'Land Id/References' shown on the 2002 assessment convey the erroneous impression that 2 Ottawa Rd relates to Lot 1 on Lodge Plan 27424 only. Once one is apprised of the fact that the unimproved (or site) value specified for 2 Ottawa Rd actually pertains to both Lot 1 on Lodge Plan 27424 and Lot 1 on Title Plan 598039, it is difficult to make sense of the relative values for 2 Ottawa Rd and 65 Albany Rd as recorded on the assessment.[152] When I raised this with the parties, however, I was informed that I should simply proceed on the basis that 65 Albany Rd is the duplicate property.

148 There is no evidence before the Court as to whether the same 'duplicate property' error was made in the City of Stonnington rate notices for the relevant years. This matter is not addressed in the affidavits of either Mr Davis or Mr Ngo filed on behalf of the plaintiff. The Commissioner focussed on this aspect in his written submissions, contending that a landowner could, with reasonable diligence, discover what land it owns.[153] He argued that the land owner could also, with reasonable diligence, ascertain what value its land has been given by the local municipal council, discover by reference to what value the Commissioner had assessed its land for land tax purposes, and compare the two.

149 The plaintiff did not seek to adduce any additional evidence by way of response to the Commissioner's submission. Rather, it simply relies on the fact that the duplicate property error is one that is not readily apparent on the face of the assessment and contends that is sufficient to make good its reliance on s 27.

150 The starting point for evaluating the competing arguments is that the limitation period specified under s 20A applies unless the plaintiff demonstrates that there is good cause under s 27 for postponing the commencement of the period because the plaintiff could not with reasonable diligence have discovered the mistake. For present purposes, the concept of reasonable diligence requires some assessment of that which an ordinarily prudent owner of a valuable property would do upon receipt of a land tax assessment having regard to all the circumstances. The plaintiff owned at least two properties during the relevant period. The alleged 'overpayments' in question here for each of the tax years from 1990 to 2002 are significant amounts. The evidence given by Mr Davis is that he has been performing his role with the plaintiff and Streetriver since November 1993 and says he has been 'closely involved in the land tax affairs of both these companies'. As neither he nor Mr Ngo was involved in the land tax affairs of the plaintiff at or around 1988 when both properties came under common ownership, they cannot give evidence from their own knowledge about the events at that time. No mention is made of whether, prior to November 1993, anyone else was involved in the plaintiff's land tax matters. To the extent Mr Davis's evidence addresses the period from late 1993 when he became actively involved in the land tax affairs of the plaintiff, he gives no account of what, if any, steps were taken regarding payment of the assessments.

151 Under s 27 of the LTA 1958, the plaintiff bears the onus of proof. In my view, the evidence given by Mr Davis, and Mr Ngo, based on information and belief after conducting an examination of the financial and business records of the plaintiff, says little of substance about whether or not 'from 1988' the plaintiff could, with reasonable diligence, have discovered 'the mistake in the assessments'. In the circumstances, I am not satisfied that the plaintiff has discharged the burden of demonstrating that it could not, with reasonable diligence, have discovered the fact that the assessments of land tax for the years 1990 to 2002 inclusive erroneously included a duplicate property.

152 Accordingly, if s 20A(1) of the Limitation Act applies to the plaintiff's restitutionary claim for relief from the consequences of a mistake, no basis has been demonstrated for postponing the commencement of the limitation period under s 27, with the result that the proceeding is barred as it was not commenced within 12 months after the date of payment.

153 In his defence, the Commissioner relies, further or alternatively, on s 5(1) of the Limitation Act as barring the plaintiff's claim. That is, if the Court were to find that contrary to the Commissioner's contention the proceeding is one for relief from the consequences of a mistake, then he says the applicable limitation period would be the six year period specified in s 5(1) for actions 'founded on simple contract (including contract implied in law)'.

154 The Commissioner says that in 1958 when this Limitation Act commenced, common law restitutionary actions for mistake were regarded as actions founded on a 'contract implied in law' or 'quasi contract'[154] and the expression 'unjust enrichment' was not expressly referred to. This can be seen from the earliest times. In Moses v Macferlan, Lord Mansfield CJ recognised that the essence of the action that nowadays is referred to as 'unjust enrichment' was not truly contractual but was 'as it were' contract. His Lordship said:

If the defendant be under an obligation, from the ties of natural justice, to refund; the law implies a debt, and gives this action, founded in the equity of the plaintiff's case, as it were upon a contract ('quasi ex contractu,' as the Roman law expresses it).[155]

155 The form of the Limitation Act as enacted in 1958 confirms that limitation periods were intended to, and did, apply to cases of 'mistake'. From the outset, s 4 provided that the limitation periods prescribed in Part I of the Act 'shall have effect subject to the provisions of Part II of this Act which provide for the extension of the period of limitation in the case of disability, acknowledgment, part payment, fraud and mistake.' Section 27 of the Act was relevantly expressed in the same terms as its current form but, at the time of enactment, the relevant concept of an actionable mistake was more limited than it is today.

156 The Commissioner argues that restitutionary actions are described as being founded on 'contract implied in law' and attract the same limitation period as is applicable to actions founded on simple contract (and also, incidentally, tort).[156] The cause of action accrues at the date of payment to the defendant or to the defendant's use, unless the commencement of the period is postponed under s 27.

157 In support of his argument that s 5(1) applies, the Commissioner relies on observations made by Brennan J in the Royal Insurance case, where his Honour noted that an action to recover the amounts claimed by Royal Insurance under items (i), (ii)(b) or (iii) would not be barred by s 20A.[157] His Honour left open, however, the prospect that the limitations prescribed by s 5(1) may apply or be applied by analogy to that provision.[158] In the case of an action to recover the amount in item (ii)(a),[159] his Honour found that it would be an action for recovery of an amount paid under the authority of the Stamps Act 1958, as it was due and owing under the Act at the time it was paid, and thus would answer the description of an action falling within s 20A. However, he said, because of the retrospective amendment made to the Stamps Act 1958 in 1987, s 20A was impliedly excluded, with the result that the limitation period applicable to an action to recover the amount in item (ii)(a) is s 5(1)(d): '[a]ctions to recover any sum recoverable by virtue of an enactment'. In that event, the applicable limitation period for such an action is the period of six years from the accrual of the cause of action.

158 The plaintiff contends that s 5(1)(a) does not apply in the present case. It argues that s 5(1)(a) has no application to a restitutionary action based on mistake for moneys had and received, essentially because the formulation used - that of an action 'founded on simple contract (including contract implied in law)' - is inapplicable nowadays to a restitutionary claim. The plaintiff says that even if those words might originally have been intended to apply to a restitutionary claim, under our declaratory system of law, they would not apply now. That is because in 1987, in Pavey & Matthews Pty Ltd v Paul,[160] the High Court declared that restitutionary claims are not founded on implied or quasi contract, thereby clarifying the position once and for all.

159 But the plaintiff says that even if s 5(1)(a) does apply, it cannot assist the Commissioner in the present case because s 27 would apply to postpone the commencement of the period.

160 If, contrary to the view I have formed, the plaintiff's claim for restitution could be brought notwithstanding s 90AA of the LTA 1958, and was not barred by s 20A of the Limitation Act, it would, as Brennan J suggests, fall to be considered under s 5(1)(a), in which event a six year period would apply, subject to the application of s 27. For the reasons set out above, however, I am not satisfied that any basis has been demonstrated for postponing the commencement of the limitation period.

(3) Is an order for mandamus (or other order on judicial review) available to direct the Commissioner to exercise the discretion conferred by s 19 of the LTA 1958 and issue amended assessments to the plaintiff for each of the 1990 to 2002 land tax years?

161 In its proceeding commenced by Originating Motion, the plaintiff seeks an order for mandamus or other orders on judicial review directing the Commissioner to issue amended land tax assessments to the plaintiff for the land tax years 1990 to 2002 inclusive and to refund to the plaintiff the land tax which it overpaid for those years. It also seeks interest, on a simple interest basis, on the overpaid amounts from the date of payment pursuant to the Supreme Court Act 1986.[161]

162 In essence, the plaintiff contends that the Commissioner has the power to issue amended assessments under s 19 of the LTA 1958, to ensure the completeness and accuracy of the assessments. It says that the land tax assessments issued for the 1990 to 2002 years were inaccurate, and wrongly demanded payment of land tax that was not properly due and payable by reason that a duplicate property (being Lot 1 on Title Plan 598039) was assessed. It pleads that the Commissioner has 'admitted that the 1990-2005 assessments were incorrect, by reason of the duplicated land holding in each assessment.' The Commissioner, however, denies the making of any such admission.

163 The plaintiff estimates that some $363,680 of the total land tax of $603,452 paid for the 1990 to 2002 years was paid on account of the duplicated land holding. The plaintiff says that it 'paid each of the assessments, in good faith, believing that each of the assessments constituted a proper and lawful demand for payment of land tax.' Further, it says it paid the amount of land tax as assessed 'in the mistaken belief that the land tax liability as assessed by the defendant was properly due and payable to the defendant under the Land Tax Act 1958.' Accordingly, the plaintiff contends that in the circumstances, the Commissioner is and was under a legal duty:

(a) to issue amended assessments for the 1990-2002 years, in order to accurately assess the land tax that is properly payable by the plaintiff in these years in respect of the two properties; and

(b) to refund the amount of any overpayment of any land tax to the plaintiff.

164 In oral submissions, the plaintiff's case concerning its application for mandamus became more sharply focussed, apparently in response to the recent conduct of the Commissioner as revealed in the letter from the Commissioner's delegate dated 15 August 2013. It will be recalled from the factual narrative above that the letter informed the plaintiff that 'the Commissioner has decided to exercise the discretion conferred on him by section 19 of the Act' but that his decision is 'not to make any amendment to the assessments.'

165 The plaintiff now contends that this conduct or decision of the Commissioner evidences 'a fundamental error' and demonstrates a 'fundamental misunderstanding' of the Commissioner's role under the Act. The plaintiff submits that 'the view the Commissioner took amounts to conscious maladministration of the Act' because the Commissioner 'is consciously retaining moneys that he's got no entitlement to.' The plaintiff says that in circumstances such as the present, the Commissioner has a legal obligation to amend so as to ensure the completeness and accuracy of the assessments and to give effect to the amendment by repaying the wrongfully obtained moneys to the taxpayer.

166 Further, the plaintiff says the 'primary reason' which the Commissioner gave for declining to make any amendments to the assessments was a legally erroneous reason. It argues that, contrary to the Commissioner's contention, it is open to a taxpayer to pursue routes of challenge that lie outside of the procedures for filing a notice of objection and the review processes under the Act, such that where there is, for example, maladministration, on the part of the Commissioner, actions for restitution are not barred by the LTA 1958.[162]

167 Against that background, the plaintiff submits that authorities such as Futuris[163] make clear that actions for conscious maladministration, abuse of power or jurisdictional error can always be brought aside from the rights of a taxpayer to lodge a notice of objection and pursue other review processes. This 'conscious maladministration of the Act' argument was not pleaded nor was it set out in the written submissions filed by the plaintiff in advance of the hearing. The Commissioner noted this, but nevertheless responded orally to the new arguments raised.

168 The gist of the Commissioner's response is that the power to amend in s 19 is not a power coupled with a duty, and there being no duty, there is nothing to which mandamus would attach. Further, he says that while mandamus will go to compel a public officer to exercise a discretion where it is his duty to do so, the court will not make an order controlling the exercise of that discretion by directing that it be exercised in a particular manner.[164] Further, he says that even if he were under a duty to exercise the discretion conferred by s 19, then he has fulfilled it by making the decision he made.

The power conferred on the Commissioner under s 19 of the LTA 1958

169 The plaintiff argues that the Commissioner's power to amend an assessment by making alterations or additions of his own motion, is expressed to be for the purpose of making 'such alterations or additions as [the Commissioner] thinks necessary to ensure its completeness and accuracy.' Further, the plaintiff says that historically the Commissioner has always had the ability of his own motion to amend an assessment and give effect to it.

170 The thrust of the plaintiff's submissions is to the effect that once the Commissioner became aware that the assessments for the 1990 to 2002 years were incorrect, and upon being requested by the plaintiff to amend them, the Commissioner came under a duty or obligation to amend them, so as to reflect the correct position and a consequential duty to give effect to that amendment by repaying the moneys referable to the duplicate property. In support of its argument that the s 19 power, on its proper construction, imposed a duty on the Commissioner to amend, the plaintiff relied on the principle well-established by Lord Cairns LC in Julius v Bishop of Oxford.[165] In Julius, the court was required to determine whether or not a section of the Church Discipline Act (UK) 3 & 4 Vict, c 86 gave the Bishop complete discretion to issue or decline to issue a commission for the purposes of an inquiry. Lord Cairns LC referred to the enabling words of the section, namely 'it shall be lawful', and said that while those words are plain and unambiguous, and make legal and possible that which there would otherwise be no right or authority to do, they confer a faculty or power. In the context of considering what that power entailed, however, his Lordship continued, to observe that:

there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so. Whether the power is one coupled with a duty such as I have described is a question which, according to our system of law, speaking generally, it falls to the Court of Queen's Bench to decide on an application for mandamus.[166]

171 The principle in Julius was applied by the plurality in the Royal Insurance case,[167] in the context of determining whether s 111(1) of the Stamps Act 1958 created a duty to refund. Section 111(1) of that Act provided:

Where the Comptroller finds in any case that duty has been overpaid, whether before or after the commencement of the Stamps Act 1978, he may refund to the company, person or firm or firms which or who paid the duty the amount of duty found to be overpaid.

When the proceeding was commenced by Royal Insurance, the Comptroller had made no finding of overpayment for the purposes of s 111(1). A few days later, however, the Comptroller made a finding that stamp duty in the amount of $1,907,908.10 had been overpaid, but she decided not to make a refund under s 111.

172 Relevantly, Brennan J (with whom Toohey and McHugh JJ agreed) said that the question whether the repository of a discretionary power is under a duty to exercise the power 'depends upon the intention of the legislature as revealed in the language of the statute'.[168] His Honour then examined the legislative history of the provision, noting that when the new s 111(1) was introduced, 'not only was the mandatory term "shall" replaced by the facultative term "may" in the creation of the power to refund but the Comptroller was given the power to make the refund directly'.[169] Concurrently with the making of those amendments, the time limitation was removed. Subsequently, a new provision, s 166D, was introduced to provide a standing appropriation for amounts which the Comptroller becomes liable to pay in accordance with the Act.

173 His Honour found that s 111(1) in terms 'confers a discretionary power on the Commissioner to refund overpaid moneys ... but creates no duty to do so.[170] He said 'no enforceable obligation to make the refund arises merely from a finding that there has been an overpayment' and the Commissioner 'is under no duty to make a refund unless there be an antecedent liability to do so' and unless such a liability exists, 'there is no duty to exercise the power conferred by s 111(1) nor any authority to do so.'[171] His Honour then posed the question of whether, if the Commissioner is under a liability to refund an amount which she has found to have been overpaid under s 111(1), 'can she be compelled to perform her duty to do so?' Applying the approach stated by Lord Cairns LC in Julius,[172] Brennan J said:

The Commissioner is a public officer vested with a power to be exercised for the purpose, inter alia, of discharging her liabilities. When the power exists and the circumstances call for the fulfilment of a purpose for which the power is conferred, but the repository of the power declines to exercise the power, mandamus is the appropriate remedy even though the repository has an unfettered discretion in other circumstances to exercise or refrain from exercising the power. Mandamus will go where there is a duty to pay money. In this case, there is no residual discretion in the Commissioner to refrain from making a refund in the exercise of the powers under s 111(1) once she finds that there has been an overpayment and there is a legal liability to refund the amount found to have been overpaid.[173]

174 Thus the position was that while s 111(1) conferred a discretionary power on the Comptroller to refund money overpaid, it created no duty to make a refund. However, once the Comptroller made a finding that the duty had been overpaid, she had no residual discretion to refrain from making a refund under s 111(1), and was under a legal liability to refund.

175 In the present case, the plaintiff submits that the decision in Commissioner of Taxes v. Tourism Holdings Ltd[174] illustrates the application of these principles in a context similar to that under consideration here. In Tourism Holdings, the Court of Appeal of the Northern Territory was construing s 97 of the Taxation (Administration) Act 1978 (NT) which empowered the Commissioner to amend an assessment. Section 97(1) was expressed in terms similar to s 19 save that it included a time limit, as follows:

The Commissioner may, at any time within a period of three years after the date of an assessment by him of duty, amend the assessment by making such alterations or additions to it as he thinks necessary.

Where, by reason of an amendment to an assessment, a person has overpaid duty or tax, the amount of duty or tax shall be refunded.

176 The Court (Mildren and Thomas JJ, Priestley A-J) dismissed the appeal brought by the Commissioner and allowed the taxpayer's cross-appeal.[175] In dealing with the power to amend under s 97(1), the Court held that while s 97(1) confers a discretion on the Commissioner, that discretion is not absolute. The power conferred by s 97(1), unlike the power conferred by s 19 of the LTA 1958, was not expressed to be for the purpose of ensuring the completeness and accuracy of the assessment, but Mildren J nevertheless found that to be its purpose. He said:

The purpose of the power is clearly to ensure that the correct amount of tax is collected, notwithstanding that there has been an assessment made which has not been appealed. The legislature clearly envisaged that mistakes could be made in the lodging of returns or by the Commissioner's officers in assessing the tax wrongly and conferred a power to ensure that these mistakes can be remedied within the three-year period.[176]

177 His Honour observed, by reference to the decision of the Federal Court in Lighthouse Philatelics Pty Ltd v Commissioner of Taxation,[177] that this accords with the notion that '[t]he duty of the Commissioner is to collect the correct amount of tax'.[178] His Honour was clear, however, that once the prescribed three-year period expires 'nothing can be done' and '[t]he matter is closed'.[179] This was because s 97(3) 'specifically authorises a refund, so long as the power is exercised within the three-year limit imposed by s 97(1)'.[180]

178 His Honour also acknowledged that the Commissioner is not bound in every case to exercise his discretion under s 97(1) but said:

he must at least consider whether he will or not and in deciding this question, the Commissioner is bound to consider all relevant matters: see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 at 224 per Lord Greene; cited with approval in Padfield (at 1007 and 1076); see also Minister for Aboriginal Affairs v Peko-Wallsend Ltd. ... So long as the Commissioner properly considers the request, his decision will not be reviewable, because it is after all, his opinion that counts under s 97(1); but otherwise mandamus will lie.[181]

179 Further, his Honour contrasted the wording of s 97(3), which specifically authorises a refund, with the position that applied in Commonwealth Agricultural Service Engineers Ltd (In Liq) v Commissioner of Taxes (SA),[182] where the Court was of the opinion that there was no provision requiring the Commissioner to make a refund. His Honour said:

Moreover, the wording of s 97(3) of the Act makes it clear that the right to a refund, once an amended assessment is made, is not discretionary, the words of the statute being '... the amount of duty or tax overpaid shall be refunded.' Thus, once an amended assessment has been made by the Commissioner pursuant to s 97(1) which results in a refund to the taxpayer, there is both an underlying legal liability to repay, as well as an implied power of appropriation which flows from s.97(3).[183]

180 In the Commonwealth Agricultural Service Engineers case, the High Court was construing the power of the Commissioner of Taxes (SA) under s 70 of the Taxation Acts 1915 to 1918 (SA) to alter an assessment. Section 70 provided that:

it shall be lawful for the Commissioner in any case, whether notice of appeal has been given or not, to alter or reduce any assessment ... and to order a refund of any excess of tax that has been paid in respect thereof.

Further, s 101 provided that if any taxpayer proves to the satisfaction of the Commissioner that an overpayment of tax has been made the sum overpaid shall be refunded by the Treasurer, provided that an application for the refund is made within twelve months of the overpayment.

181 The company obtained a rule nisi calling upon the Commissioner to show cause why a writ of mandamus should not issue to compel him to entertain an application for an order under s 70. The Full Court of the Supreme Court of South Australia (Murray CJ and Poole J) held that a case for mandamus had not been made out and the rule nisi was discharged.[184] Their Honours held that when an application for refund is made after the expiration of twelve months, s 70 conferred upon the Commissioner an unfettered discretion to make or refuse a refund, and did not confer any right on the taxpayer to obtain a refund or impose on the Commissioner any obligation enforceable in law.

182 In his reasons, Murray CJ (with whom Poole J in substance agreed) commenced by considering the scheme of the Act, noting that it provided two ways in which the taxpayer might prevent 'overtaxation'. The first was 'by making his own return', in the sense that the Act (as does the LTA 1958) required the taxpayer himself to supply the materials for making an assessment, and the other was by pursuing an appeal. His Honour observed that 'if he fails to protect himself by this means, he has no further remedy unless it is given by some other part of the Act.'[185] His Honour then focussed attention on ss 70 and 101, and reasoned as follows:

Does this [s 70] confer upon the taxpayer any right against the Commissioner, or, put in another way, does it impose on the Commissioner any duty towards the taxpayer, or does it give the Commissioner an unfettered discretion? The answer depends upon the principle laid down in the well-known judgment of Lord Cairns LC in Julius v The Bishop of Oxford ... The onus then being on the taxpayer, what is there to shew that the Commissioner is bound to entertain an application for the exercise of his powers under sec 70? In my opinion, there is nothing. The taxpayer is not mentioned in the section, as in section 101; the assessment book is binding on him except on appeal, and this is not the clause which gives an appeal; and claims in respect of overpayment come under another section, which prescribes a time limit. Moreover, the power is not confined to reducing assessments, for under the word "alter" the Commissioner may increase them. The section, therefore, cannot have been introduced wholly for the benefit of the taxpayer, and, in my opinion, that object was not within its purview at all, for otherwise it is impossible to understand why a time limit in respect of the overpayment should have been provided in s 101. Its true purpose, in my opinion, was to enable the Commissioner to do what otherwise he could not have done, that is to say, to amend the assessment book with a view to making it as complete as possible, and to saving the costs of appeals, which he might find himself unable to resist. So it appears to me the section was not intended to confer any power upon the taxpayer, or to impose any obligation upon the Commissioner which the taxpayer could enforce in a court of law, but merely to give the Commissioner a discretion in respect of the matters I have mentioned.[186]

183 On appeal to the High Court, their Honours were was unanimous in dismissing the appeal.[187] Knox CJ and Gavan Duffy J were each of the view that the decision of the Supreme Court was plainly right. Isaacs J expressed the same view, stating that 'the judgments of Murray CJ and Poole J were unquestionably correct.'[188] His Honour commenced his reasons by referring to s 70 and observing that it was a discretionary power, inserted 'simply for the purpose of allowing the Commissioner to correct anything which he thinks is an injustice, either to the Crown or the individual taxpayer.' [189] Further, his Honour said, the words of the section convey an intention that any action taken by the Commissioner be voluntary and that the Commissioner was not to be coerced into acting.[190] Rather, his Honour said:

It is intended that he [the Commissioner] shall take a high position in this matter and shall not claim for the Crown more than he sees the Crown is entitled to, and he is not to allow any taxpayer to escape payment of any amount which the law intends him to be liable to pay. There is no reason why the Commissioner should not in a proper case exercise his power merely because he was requested to do so by a taxpayer. The Commissioner's action in such case is none the less voluntary.[191]

184 A similar general principle to that described in the Commonwealth Agricultural Service Engineers case was expressed by Hunt J in Boyded Industries Pty Ltd v Commissioner of Taxation.[192] In the context of addressing the operation of s 170 of the ITAA, the counterpart of s 19 of the LTA 1958, his Honour said:

Section 170(1) permits or authorises the Commissioner, subject to the terms of the section, to make such alterations or additions to the assessment 'as he thinks necessary'; he cannot be compelled to exercise that power: see Ex parte The Carpathia Tin Mining Co Ltd [1924] HCA 66; (1924) 35 CLR 552 at 553-554. The Commissioner, it is assumed, will do right both to the Crown and to the taxpayer; this would necessarily involve an amendment to his assessment, but his action is nonetheless voluntary: see Commonwealth Agricultural Service Engineers Ltd (In Liq) v Commissioner of Taxes (SA) [1926] HCA 30; (1926) 38 CLR 289 at 294. It would be most improper for the Commissioner to continue to claim the tax identified in his original assessment following his decision to allow an objection, and it must in my view be assumed that in all cases he will in fact amend his assessment to accord with his decision. ...

185 The plaintiff contends that cases such as Royal Insurance and Tourism Holdings demonstrate that in certain circumstances a power, although expressed in discretionary language, will nevertheless be interpreted as effectively imposing a duty. The plaintiff says that in circumstances where an assessment is demonstrably not accurate, the Commissioner's power under s 19 to amend of his own motion should be read and interpreted as imposing a duty to make the amendment. Further, and necessarily, the plaintiff says it must be implicit in that power that the Commissioner can give effect to the amendment by making the necessary repayments to the taxpayer even though there is no express power of appropriation conferred by the section.

186 The plaintiff also relies upon the fact that the power conferred on the Commissioner under s 19 to amend assessments is 'time unlimited', in the sense that it provides the power may be exercised by the Commissioner 'from time to time' and is not expressed to be subject to s 90AA, or to any time limit of the kind expressed in s 90AA. Indeed, the plaintiff says that from the time of its enactment, the Commissioner's power to amend has never been subject to a time limit.

187 In my view, when the legislative framework in place under the LTA 1958 is examined, it is clear that 'the intention of the legislature as revealed in the language of the statute' (to adopt Brennan J's language) is not to place the Commissioner under a duty to exercise the power to amend in s 19. The scheme of the Act has been discussed at length earlier in these reasons. It provides for a taxpayer who is dissatisfied with an assessment to lodge a written objection within 60 days of the assessment. The taxpayer carries the burden of proving that the assessment is excessive. If the taxpayer is dissatisfied with the Commissioner's decision on an objection he may seek a review in the Tribunal or an appeal to this Court. The objection route is the mechanism the LTA 1958 provides for a taxpayer to establish that an assessment is excessive, and strict time limits for doing so are imposed. In the event of an assessment being altered on objection or case stated or appeal, s 38(2) provides for due adjustment to be made, for which purpose amounts paid in excess shall be refunded, and amounts short-paid shall be recoverable as arrears. Thus, s 38(2) operates as an implied appropriation of the moneys required to effect any refund.[193]

188 Where a taxpayer contends that it has overpaid tax, the LTA 1958 also provides another means for the taxpayer to claim a refund or to recover tax paid under, or purportedly paid under, the Act. Under s 90AA(2), the taxpayer is required to lodge, within three years after the payment was made, an application in the prescribed form for the refund of the payment. If, after such an application is lodged the Commissioner finds that an amount has been overpaid, then under s 90AA(6) the Commissioner must refund the overpaid amount or apply the overpaid amount against any other liability of the applicant (as specified in subs (6)(d)(i)) and refund the balance. If the Commissioner determines to refund an amount, then subs (7) provides for the Consolidated Fund to be appropriated accordingly. In this way, s 90AA enables a taxpayer who claims it has overpaid tax to secure a refund from the Commissioner. But if the taxpayer wishes to exercise the right conferred by s 90AA(2), it must do so within the three year period. Once the prescribed three-year period expires, the position is effectively the same as Mildren J described in Tourism Holdings, namely that 'nothing can be done' and '[t]he matter is closed'.

189 When introducing s 90AA, the Treasurer explained that the three year time limitation 'was designed to provide certainty and finality to Victoria's revenue collections.' That objective would not be promoted if it were open to a taxpayer who had not availed itself of either the objection route or the application for refund route, within the prescribed times, to effectively challenge the assessment at any later date and seek to recover an overpayment by seeking mandamus to compel the Commissioner to exercise his power under s 19 to amend an assessment. Furthermore, the bringing of such a proceeding would likely contravene the prohibition in s 90AA(1) against bringing proceedings (including for mandamus and similar forms of judicial review) for the refund or recovery of tax paid under or purportedly under the LTA 1958 except as provided in s 90AA. There is also real doubt about whether the Court would have jurisdiction to entertain such a proceeding given the limitation on its jurisdiction imposed by s 92A.

190 The Commissioner's power in s 19 is to be construed in that context. When the LTA 1958 commenced, the power that is now contained in s 19 was set out in s 22, but was expressed in substantially the same terms.[194] In 1968, ss 20 to 24 of the then Act were substituted as part of a suite of legislative changes introduced to permit the Commissioner to use valuations made by other rating authorities and by the Valuer-General, and to delete reference to the 'assessment roll'. In all other respects, the then newly introduced ss 16 to 21, dealing with assessments, were largely a restatement of the provisions set out in the earlier ss 20 to 24.

191 When s 19 power was introduced, it conferred on the Commissioner the express power 'to do what otherwise he could not have done' (to adopt the words of Murray CJ in the Commonwealth Agricultural Service Engineers case), namely to be able to issue an amended assessment.[195] Further, the power was, and has at all times been, expressed in terms connoting a discretion on the part of the Commissioner to amend[196] and any amendment is predicated on it being such 'as he thinks necessary' to ensure its completeness and accuracy. The language used does not suggest that the section was intended to confer any right on the taxpayer. The word 'may' is to be understood in its ordinary and natural sense of being permissive and facultative only. When coupled with the notion that the power is to be exercised for making such alterations or amendments 'as [the Commissioner] thinks necessary', the discretionary nature of the power is confirmed.

192 In the Royal Insurance case, in dealing with the discretion conferred by s 111 of the Stamps Act 1958, Mason CJ referred to the earlier decision of the Court in Ward v Williams[197] and said:

But, as the court went on to point out in Ward v Williams, the question whether a public officer, to whom a power is given by facultative words, is bound to exercise that power upon any particular occasion, or in any particular manner, is to be solved from the context, from the particular provisions, or from the general scope and objects of the enactment conferring the power.[198]

The plaintiff also relied on these observations of Mason CJ as confirming that in certain circumstances, a power, although expressed in discretionary language, will become a duty.

193 When s 19 is viewed in the context of the scheme of the LTA 1958 as a whole, and against the background of the objection procedure and associated appeal processes, the conferral of a separate right on the taxpayer to apply for a refund, the discrete timeframes specified for a taxpayer to use those processes, and the limitation on both the ability of a taxpayer to bring proceedings outside that regime and the Courts jurisdiction to entertain them, one gains the clear impression that s 19 was not intended to confer any right on the taxpayer or to impose on the Commissioner any obligation that the taxpayer could enforce in a court of law.

194 Having found that there is relevantly no duty imposed on the Commissioner to amend, there is no basis for mandamus or the like to issue.

195 I turn now to consider the plaintiff's new argument that the conduct of the Commissioner following the commencement of these proceedings constitutes maladministration. As I have said, there is no formal articulation of this allegation in the pleadings or the written submissions. The plaintiff contends that the Commissioner, by declining to exercise the power to amend, in circumstances where he knew or must reasonably have suspected that the assessments were wrong in a fundamental respect, failed to perform his statutory duty under s 19 and his conduct in so doing evinced a conscious maladministration of the Act. In this regard, the plaintiff relies on the email from the SRO informing Streetriver that an error had been detected in the 2008, 2009, 2010 and 2011 assessments and the revelation that 65 Albany Rd is a duplicate property. The plaintiff says the Commissioner purported to exercise his discretion under s 19 by declining to make an amendment notwithstanding (a) the known duplication of the 65 Albany Rd property, and (b) that he had no authority to retain those wrongfully demanded moneys.

196 The plaintiff also argues that the 'primary reason' the Commissioner gave for his decision, namely that the plaintiff would not be entitled to the consequential relief it sought because, pursuant to s 90AA of the Act, it would not be entitled to a refund, was a 'legally erroneous' reason. In essence, the plaintiff contends that s 90AA is irrelevant to the case it mounts under s 19 of the Act.

197 The plaintiff says that in the Royal Insurance case, where the Comptroller had acknowledged that the overpayment contended for by the taxpayer had been made, all judges reasoned along similar lines, to the effect that there was no authority for the Comptroller to retain the overpayment such that the discretionary power to refund became a duty to refund it. A similar view was taken both by Jessup J and the Full Court (on appeal) in the recent case of Federal Commissioner of Taxation v Multiflex Pty Ltd.[199] The plaintiff argues that the present case is one like Royal Insurance, and that once the question of making an amendment was raised with the Commissioner, there was only one proper outcome, namely to render the assessments complete and accurate by eliminating the duplicate property in each of the relevant years.

198 The response the Commissioner makes, aside from his primary argument that he is not relevantly under any duty to exercise the power conferred by s 19, is to contend first, that there is no jurisdictional error involved in him not amending an assessment in circumstances where it would not lead to the making of a refund. Secondly, he says the proceeding brought is barred by statute, either by s 90AA of the LTA 1958 or alternatively s 20A of the Limitation Act, an action for mandamus being a 'proceeding' for the purposes of each provision. Thirdly, he contends that any application for relief in the nature of mandamus, to compel the Commissioner to amend assessments, would attract the six year limitation period specified in s 5(1). That period expired long ago and there is no ability to postpone the commencement of the period under s 27(1) because the action is not relevantly one 'for relief from the consequences of a mistake'. Finally, it is said the letter makes clear that the Commissioner, in the exercise of his discretion, does not think it is necessary to issue amended assessments. That is, the Commissioner contends that even if he did have a duty to consider, he has considered the matter and has determined not to amend.

199 I am not persuaded that the conduct or decision of the Commissioner evidences 'a fundamental error' or demonstrates a 'fundamental misunderstanding' of the Commissioner's role under the Act. That conclusion is informed in large part by my finding that when the power conferred by s 19 is viewed in context of the scheme of the LTA 1958 as a whole, the Commissioner was not under any duty to exercise his power to amend. It was, as the Commissioner contends, a power that fell to be exercised by the Commissioner in his discretion, having regard to the subject matter, scope and purpose of the LTA 1958 as a whole.

200 The present case is very different from the Royal Insurance case. The legislative framework that applied in that case was quite different from the present one in some important respects. First, as the Commissioner points out, the statutory scheme under the Stamps Act 1958 was a self-assessment regime rather than one of assessment by the Commissioner, based on information provided by the taxpayer, giving rise to a debt due to the Crown. Secondly, under the Stamps Act 1958, there was no process or mechanism by which a taxpayer could later object to the (self) assessment so made. Thirdly, under the Stamps Act 1958, there was no time limit on the making of an application for refund of an overpayment nor was there any limitation imposed on the means or method by which such a refund might be sought. Fourthly, there was no express limitation on the power of the Court to entertain a proceeding for the refund or recovery of the overpayment (including a proceeding at common law or by way of mandamus or other form of judicial review) save in specified circumstances. Further, and perhaps more importantly for present purposes, the Comptroller made a finding that the duty sought to be recovered had been overpaid. The High Court found that, having done so, the circumstances of the case were such that she had no residual discretion to refrain from making a refund under s 111(1), and the Comptroller was under a legal liability to refund.

201 In the Royal Insurance case, when dealing with the taxpayer's submission that in the context of the Commissioner's duty to investigate under s 111, there was a duty to refund once overpayment was found to have taken place, Mason CJ observed that:

On the assumption that the section creates a duty to investigate, I do not consider that the existence of such a duty leads to the existence of an obligation to refund once overpayment is established. No doubt there will be circumstances in which it will be a proper response, indeed the only proper response to refund the overpayment but that will not always be the case.[200]

His Honour said he could not accept the proposition that, once overpayment has been found to have been made, 'the discretion must be exercised by making a refund.'[201] He added that '[a]n action which is time barred is another illustration of circumstances in which refusal to make a refund would be justified.'[202]

202 In my view, it does not follow from the fact that the Commissioner decided to exercise the discretion conferred on him by s 19 that he is bound to exercise the discretion in any particular way. On the contrary, once consideration is given to the legislative framework in place under the LTA 1958, and regard is had to the intention of the legislature as revealed in the language of the statute, and in particular the limited circumstances in which the legislature intended that a person claiming to be entitled to a refund or recovery of tax could bring proceedings, it is clear that it was open to the Commissioner to form the view he did. In reaching the decision to not make any amendment to the assessments, the Commissioner determined that, in his view, no amendment was necessary. Such a view demonstrably accords with, and promotes, the legislature's clear intention that any person who claims to be entitled to receive a refund or to recover tax paid under, or purportedly under the LTA 1958 must make application to the Commissioner within three years after the payment was made.

203 Accordingly, the proceeding for mandamus will be dismissed.

(4) Is the plaintiff's action for mandamus (or other order on judicial review) barred by any limitation provision?

204 Given the view I have formed on Issue 3, it is not necessary for me to address the limitation questions raised in any detail. It is useful, however, to record the different arguments advanced, as they are not set out in the originating motion or the written submissions.

205 The plaintiff contends that its claim for mandamus is not affected by any time bar. In oral submissions, Senior Counsel for the plaintiff argued that the claim for mandamus is akin to that described by Brennan J in the Royal Insurance case, as an action to recover a sum recoverable by virtue of an enactment, for which s 5(1)(d) prescribes a period of six years. It was said that here, the plaintiff is suing for payment to it of the amount that would be revealed as owing by the making of amended assessments, rather than for the recovery or refund of tax because those sums overpaid were never 'tax'. That is, it seeks to recover the sum of $363,680 (or such other amount as the Court may determine) as would be revealed by the amended assessments, it being a debt or sum certain that is owing to the plaintiff. The limitation period for such an action is six years and the plaintiff commenced the proceeding within 12 months of it requesting that amended assessments be made.

206 Similarly, the plaintiff contends that s 90AA has no application to the mandamus claim because it is not seeking a refund of 'tax'. In this regard, it relies upon observations made by Brennan J in the Royal Insurance case to the effect that the application made by Royal Insurance was not an action for the recovery of money but rather one for relief in the nature of mandamus. His Honour continued:

The relevance of the limitation periods is that they mark the periods during which a legal liability to refund would have been enforceable by action, if s 111(1) had not transformed the cause of action into a right to performance by the Commissioner of her duty to exercise her power to refund. In the exercise of the Court's jurisdiction to grant mandamus to compel the Commissioner to discharge her duty by making refunds under s 111(1), the Court should apply the six-year period of limitation, refusing relief when proceedings are not brought within that period. Here, the proceedings were brought within time and an order compelling the Commissioner to make the refund claimed was rightly made.[203]

207 Further, the plaintiff says, if s 20A of the Limitation Act applies because of the different language used, focussing as it does on actions for recovery of amounts attributable to tax paid under a mistake, then s 27 applies. I understand this submission to mean that the plaintiff says, implicitly if not expressly, that if the action for mandamus is one that falls within the scope of s 20A because the money sought to be recovered was money paid under a mistake, then the action is to be regarded as one for 'relief from the consequences of a mistake' for the purposes of s 27.

208 The Commissioner contends that the plaintiff's action for mandamus is embraced within the concept of 'proceeding' as defined in s 90AA(8) of the LTA 1958 and s 20A(5) of the Limitation Act. The Commissioner says that on the plaintiff's case, the action for mandamus is relevantly to be regarded as a proceeding for the recovery of money within the meaning of s 90AA(1), and thus it cannot be brought.[204] Alternatively, it is barred by s 20A, and no basis has been demonstrated for s 27 to operate and extend the period. Further or alternatively, if s 5(1) applies, the period of six years has expired and no basis has been demonstrated for s 27 to operate and extend the period.

209 If, contrary to the view I have formed on Issue 3, it were necessary for me to address the limitation questions, then substantially for the reasons already set out in response to Issue 2, I am of the view that s 90AA would operate to prevent the proceeding being brought.

210 In the first place, the amended originating motion relevantly specifies the 'relief or remedy sought' by the plaintiff as follows:

1. An order for mandamus or other orders on judicial review directing the defendant:

(a) to issue amended land tax assessments to the plaintiff for the 1990-2002 land tax years inclusive; and

(b) to refund to the plaintiff the land tax which was overpaid by the plaintiff for the 1990-2002 land tax years.

211 Framed in this way, the application for mandamus is both a 'proceeding' for the purposes of s 90AA and one brought for 'the refund or recovery of tax' that was 'paid under, or purportedly under' the LTA 1958. As no application for the refund of the payment(s) was lodged within three years after payment was made, as required by s 90AA(2), the process that might otherwise have enabled the plaintiff to bring proceedings was not enlivened. Accordingly, s 90AA(1) operates to bar the plaintiff bringing the proceeding.

212 If, contrary to my view, s 90AA did not operate to bar the plaintiff bringing the proceeding, then s 20A(1) likely would, if the element of 'mistake' were made out. Once again, as framed, the application for mandamus is both a 'proceeding' for the purposes of s 20A and one brought for 'the recovery of money paid by way of tax or purported tax' or 'by way of an amount that is attributable to tax or purported tax under a mistake (either of law or fact)'. The relevant limitation period is the period of 12 months prescribed in s 20A(1)(a). This is because the proceeding for mandamus is not one brought under s 90AA of the LTA 1958, so there is no 'other Act' that relevantly could provide for a longer period. The proceeding was not commenced within 12 months after the date for payment of the respective assessments. In that event, there is potential for s 27 to apply. If, contrary to my view, the proceeding is to be characterised as one for relief from the consequences of a 'mistake' then for the reasons discussed earlier, I am not satisfied that the plaintiff has demonstrated that it could not, with reasonable diligence, have discovered the mistake at an earlier point.

213 Alternatively, if the six year limitation period in s 5(1) applies, the proceeding was not commenced within time, and for the reasons given, I am not satisfied that s 27 would be enlivened and operate to postpone the commencement of the limitation period.

(5) If the plaintiff establishes that it is entitled to a refund of, or to recover, the alleged 'overpayment' amount, is compound interest recoverable as part of the restitutionary relief or is the plaintiff limited to recovering simple interest, in the Court's equitable jurisdiction or alternatively pursuant to ss 58 or 60 of the Supreme Court Act 1958 (Vic)?

214 As noted earlier, the question of interest on the overpaid moneys only arises if the plaintiff establishes its entitlement to a refund or recovery of those amounts. I have found that it has failed to do so. Nevertheless, it is useful to summarise the basis on which the interest claims were advanced and the competing arguments in support.

215 The plaintiff claims interest on the amounts it alleges it overpaid for the 1990 to 2002 land tax years, and also for the 2003, 2004 and 2005 years for which the Treasurer authorised an 'ex gratia' payment. The Commissioner says that the latter amount, being payments authorised by the Treasurer and made expressly on an 'ex gratia' basis, were not a 'refund' of 'overpaid land tax' to which the plaintiff was entitled.

216 In both its Amended Statement of Claim and its Amended Originating Motion, the plaintiff claims restitution in the form of interest on the amount of the alleged overpayments, calculated on a compound basis, for the loss of use of these funds for the respective periods. The amount of interest is said to be:

calculated by reference to what return, or what savings, the plaintiff could have achieved had it had the use of these monies over that time or, alternatively, by reference to the benefits, or savings, that the defendant has derived, and continues to derive from the use of these funds over this period.

In the alternative, the plaintiff says that it is entitled to simple interest from the dates the respective payments were made, either in the Court's equitable jurisdiction or pursuant to ss 58 or 60 of the Supreme Court Act 1986.[205] During the hearing, however, Senior Counsel for the plaintiff acknowledged that under its mandamus case the plaintiff could not establish a right to compound interest, but said that the plaintiff does persist with its claim for statutory interest under s 58 of the Supreme Court Act 1986.

217 Section 58 of the Supreme Court Act 1986 provides that 'unless good cause is shown to the contrary' interest is to be allowed at the specified rate 'from the time when the debt or sum was payable', and in this case, the plaintiff contends that would be from the moment of receipt by the Commissioner, because he never had any entitlement to those moneys. That interest is simple interest, being the rate fixed under s 2 of the Penalty Interest Rates Act 1983. Alternatively, the plaintiff seeks interest from the commencement of the proceeding under s 60 of the Supreme Court Act 1983.

218 Shortly prior to the hearing, the plaintiff filed a further affidavit of Mr Davis, sworn on 10 October 2013, by way of elaboration of his earlier statement that by reason of the overpayment of some $363,680 or thereabouts, the plaintiff has been denied the use of the money it used to pay the land tax attributed to the duplicate landholding for the 1990 to 2005 years. He deposes that the general practice of the entities associated with the plaintiff 'is to invest cash that is surplus to its requirements in a range of cash and term deposits, generally on 90 day terms on average.' Further, he says that had the plaintiff not made the overpayments alleged, it 'would have invested the money in term deposits similar to those invested in by the plaintiff's associated entities and received compound interest at the prevailing rates of interest during the relevant periods.'

219 Mr Davis prepared a table of 'average interest rates' applicable over the period, and used these rates as an approximation of the prevailing interest rates for term deposits that the plaintiff would have received during the relevant years. Based on these rates of interest, Mr Davis calculated the compound interest due to the plaintiff as at 10 October 2013[206] as being the sum of $632,732 and he provided a spreadsheet setting out the calculations used to determine that figure. If the plaintiff's claim were successful, interest would have continued to accrue in the meantime.

The plaintiff's claim for compound interest as part of its restitutionary claim

220 In essence, the plaintiff says that the Commissioner is holding money in the sum of some $363,680 or thereabouts to which he has no entitlement. It contends that the moneys so held are a debt due and owing to the plaintiff. Alternatively, it says the Commissioner is holding a sum certain to which he has no entitlement, that the plaintiff is seeking to recover by way of an action for money had and received, based on mistake.

221 The plaintiff contends that the law has developed to the point where compound interest is now claimable and recoverable as part of its restitutionary relief. It says that position has been accepted in New South Wales and South Australia, and by the House of Lords, and that a similar position should apply in Victoria.

222 In response, the Commissioner contests the proposition that if the plaintiff were successful in establishing an entitlement to relief, it would follow that compound interest is payable on a restitutionary basis.[207] First, he contends that the Taxation (Interest on Overpayments) Act 1986 (Vic) addresses the question of 'interest on overpayments' of 'relevant tax' (which is defined to include tax under the LTA 1958). The Act provides that interest is payable, out of the Consolidated Fund[208] and in the amounts and manner provided (simple interest),[209] but only in cases where an overpayment has been established as a result of a successful objection under s 24A of the LTA 1958.[210] Secondly, and alternatively, the Commissioner submits that it would be an anomalous outcome if a taxpayer who lodges and successfully pursues an objection were entitled to be awarded only simple interest on the moneys refunded (as prescribed by the Taxation (Interest on Overpayments) Act 1986) but the plaintiff, not having pursued the objection route to recovery, were entitled to compound interest.

223 The plaintiff relied on the decision of the House of Lords in Sempra Metals Ltd v Inland Revenue Commissioners[211] as the foundation for its contention that it is entitled to be awarded interest on a compound basis as part of the restitutionary relief granted. The Sempra case involved an action brought by non-United Kingdom resident parent companies to recover advance corporate tax which was payable quarterly on dividends paid to them by a United Kingdom resident subsidiary. The legislation provided that where a parent and subsidiary were each resident in the United Kingdom, they could make a group income election, such that the subsidiary would not be required to account for advance corporate tax on dividends paid to its parent. The European Communities' Court of Justice determined that payments made under a tax regime of this kind, providing differential outcomes for resident and non-resident parent companies was invalid on the basis that it restricted the freedom of establishment protected under the Treaty Establishing the European Community.[212] The Court of Justice ordered that those companies ordered to pay advance corporate tax contrary to Community law should be entitled to an effective remedy to obtain reimbursement or reparation of the financial loss sustained, the nature and basis of the remedy to be determined by the national court. As a result, claims were made by a group of multi-national companies for restitution in respect of interest accruing on sums of advance corporate tax paid prematurely during the period between making the payments and the date on which mainstream corporations tax became payable. That is, the principal sum claimed by each of them was for the time value of the money paid over prematurely, by which the defendant was enriched.

224 The Sempra case proceeded as a test claim under a group litigation order. In terms of structure, it was very similar to the present case, in the sense that the taxpayer was pursuing the recovery of the amount paid by way of advance corporate tax including compound interest and the Inland Revenue Commissioners sought to rely on limitation provisions to deny the taxpayer restitution, as well as previous decisions which denied the award of compound interest arising from restitution.[213] The trial judge held that the taxpayer company was entitled to be fully compensated and restored to the position it would have been in had it not been required to make the advance payments of tax. He ordered that the award of damages be quantified on the basis of compound, not simple, interest at a rate derived from prevailing levels of interest rates in the market generally and to be the same for all claimants. The Court of Appeal dismissed the Inland Revenue Commissioners' appeal, and ordered that interest should be computed by compounding at the same periodic rests as those by which the applicable rate of interest was fixed. The House of Lords dismissed the Inland Revenue Commissioners' appeal. In so doing, it overturned the earlier decisions in London Chatham and Dover Railway Co v South Eastern Railway Co[214] and President of India v La Pintada Cia Navigacion SA[215] and recognised that the courts have a common law jurisdiction to award interest, simple and compound, as damages on claims for non-payment of debts as well as on other claims for breach of contract and tort.

225 The House of Lords held that a court has jurisdiction to award compound interest where a claimant is seeking restitution of money paid under mistake, but their Lordships were divided as to whether such an award should be made in the exercise of the court's common law restitutionary jurisdiction (Lord Hope, Lord Nicholls and Lord Scott were of that view) or in the exercise of the Court's equitable jurisdiction (Lord Walker and Lord Manse). This represented a departure from the earlier decision of the House of Lords in Westdeutsche[216] where their Lordships had declined to supplement the statutory right allowing for simple interest, by the making of an award of compound interest. In Sempra, the majority (Lord Hope, Lord Nicholls and Lord Walker) determined that, in circumstances where the assumption that the government had derived some benefit from the premature payment of the tax was not displaced, compound interest should be awarded to the taxpayer, calculated at the rate at which the Government would be able to borrow money in the market during the relevant period.

226 The plaintiff contends that the position reached in the Sempra case, recognising a free-standing right to be awarded compound interest within the framework of a restitutionary cause of action, has similarly been recognised or accepted in Australia, by Courts of Appeal in New South Wales[217] and in South Australia[218] and that, unless and until the High Court determines to the contrary, this Court should follow them, in accordance with the decision in Australian Securities Commission v Marlborough Gold Mines Ltd.[219] In this regard, the plaintiff refers to the decision of the Court of Appeal in Victoria, in Peet Ltd v Richmond,[220] where Nettle JA acknowledged that, at least in the case of a restitutionary claim for moneys had and received, 'it may be that this court is bound to follow those decisions.'[221]

227 In Peet, the trial judge had rejected the property developer's claim for compound interest made on a quantum meruit basis in a restitutionary action for work and labour done. The Court of Appeal dismissed the appeal. Nettle JA (with whom Neave JA and Judd AJA agreed) noted that the property developer's claim 'faces difficulties at several levels'[222] and his Honour then proceeded to outline several reasons why the claim should be rejected. First, he said it 'is not clear that the High Court would follow' the decision in Sempra, noting that in Commonwealth v SCI Operations Pty Ltd[223] McHugh and Gummow JJ had referred to the earlier decision of the House of Lords in Westdeutsche 'in terms which appear to me to cast doubt on the existence of' such a 'free-standing' right to recovery of pre-litigation interest.[224] Secondly, his Honour said that despite the recognition that right has received in courts in other States, and even though this Court may be bound to follow them, it 'is not clear that the same reasoning applies to restitutionary claims for work and labour done', their raison d'être being different.[225] Thirdly, his Honour pointed out that 'interest under the "free-standing right" to interest on a plaintiff's claim for money had and received does not begin to run until and unless retention by the defendant of the plaintiff's money becomes unjust'.[226] In the circumstances of the case, where the plaintiff had repeatedly repudiated any entitlement to a quantum meruit, his Honour found that the trial judge's reasoning sufficiently explained why it was not unjust for the defendant not to pay until it was provided with particulars, and he accepted that it was not unjust for the defendant not to pay a quantum meruit until its obligations had been established in the proceeding.

228 The plaintiff contends that, in Peet, Nettle JA attributed a slightly stronger suggestion to the decision in SCI Operations, and in particular to the views expressed by McHugh and Gummow JJ, than is warranted. SCI Operations was a customs case where tariffs were paid on certain goods pursuant to the Customs Act 1901. At a later date, a commercial tariff concession order ('CTCO') was made, lowering the rate of duty for one period and making them duty free for another, and it was deemed to come into effect from a date several years earlier. The importers who had sought the concession order did not apply for refunds under the regulations but rather brought proceedings seeking refunds of duty plus interest from the date on which the order was stated to have effect. The Commonwealth, on the day the proceedings were brought, paid amounts to the importers as refunds plus interest but for only part of the period during which the duty had been paid. The importers did not discontinue their claim, however, and pursued interest dating back to 1987 when the first customs duty payments were made. They relied on s 51A of the Federal Court of Australia Act 1976 (Cth). They also pursued the claim on an alternative basis that interest was available on 'restitutionary principles'.[227]

229 The importers' claims for interest were heard together in the Federal Court. The trial judge, Wilcox J, dismissed the proceeding, but the Full Court by majority (Beaumont and Einfeld JJ, Sackville J dissenting) allowed their appeals and remitted the matter to a single judge. Before the remittal could proceed, however, special leave to appeal was granted.

230 The High Court allowed the appeal and dismissed the importers' claims for interest. Their Honours held first, that the importers had no entitlement to interest under s 51A of the Federal Court of Australia Act 1976. In essence, this was because on the very day that the concession order was made, the Comptroller refunded the duties that had been paid, so there was no period of time when the Comptroller was holding moneys to which he was not entitled.[228] In their joint judgment, McHugh and Gummow JJ said:

[T]he duty was refunded on the day on which the CTCO was made. There was no period in which debts in respect of the refunds were due and owing but unpaid. Therefore, there is no foundation for any application in the actions commenced on 3 June 1994, upon their remitter to the Federal Court, of s 51A of the Federal Court Act.[229]

231 Secondly, referring to Westdeutsche, the Court held that a restitutionary right to the recovery of interest could not succeed because the entitlement to refunds was derived from the Customs Act 1901, which provided for the payment of refunds without interest. In addressing the appellants' asserted 'free-standing' right to recover interest, McHugh and Gummow JJ said that '[t]he existing state of authority does not favour acceptance of such a broad proposition.'[230] Their Honours added that 'even if it be accepted, despite the present state of authority, that there be a principle of the width advanced by SCI and ACI, it could not apply in the present case.'[231] In their view, this was because the collection of duty in question was required by statute, such entitlements as the importers enjoyed were the product of statute, and restitutionary considerations cannot override the legislature's clear intention as expressed in the statute.

The right conferred by the refund provisions is a statutory right which has no counterpart in the general law. Being a right based wholly in statute, it can neither be cut down nor enlarged by resort to the general law or to restitutionary principles. More precisely, those principles cannot convert a statutory right to obtain a refund of money into a right to obtain a refund with interest. There is, thus, no substance in the claim that SCI and ACI were entitled to a judgment for interest by reason of restitutionary principles.[232]

233 Kirby J likewise reached the conclusion that the statutory scheme, upon its true construction, excluded the payment of interest.[233] Further, he said '[g]eneral statutory provisions or common law principles could not expand the importer's rights.'[234] Brennan J found that no interest was payable under s 51A, and did not consider the restitution argument.

234 A few years later, the appeal in Heydon v NRMA Ltd (No 2)[235] was heard and decided by the New South Wales Court of Appeal. Relevantly, Mason P expressed a different view to that expressed by McHugh and Gummow JJ in SCI Operations about whether interest was recoverable as part of the restitutionary relief available on a claim for unjust enrichment. His Honour said that as their discussion on this point did not form part of the reasoning of the other members of the Court, he considered himself 'at liberty respectfully to maintain' the position he had arrived at in National Australia Bank Ltd v Budget Stationery Supplies Pty Ltd[236] a few years earlier.[237] He referred to and set out his reasoning in that earlier decision, where he stated 'interest at common law has been awarded for money had and received, where the facts would have supported an equitable claim for account' and cited numerous cases in support.[238] He noted that:

In all of these cases, interest was awarded at common law and computed from the date of receipt of moneys ordered to be repaid, even where (in cases unlike the present) the restitutionary cause of action leading to the obligation to repay the 'principal' may have arisen later.[239]

His Honour summarised the relevant principle as being:

when A retains money owed by or owing to B over a period of time, A derives a benefit (at B's expense) usually measurable by what A would have had to pay in the market to borrow that sum for that period. Since this benefit is derived without justification and at the expense of the person to whom the principal sum was due, we should now recognise it as an unjust enrichment. It stands independently of, but appurtenant upon the obligation to pay, the 'principal' sum. The independent nature of the restitutionary entitlement to interest is evidenced by historical recognition of a distinct indebitatus count for interest.[240]

235 Some nine years after the decision in Heydon, and two years after that in Sempra, the case of Lahoud v Lahoud[241] was decided by Ward J in the New South Wales Supreme Court. In Lahoud, the 'Victor Lahoud' parties claimed interest on a restitutionary basis on moneys paid to Joseph Lahoud in February 2001 that were retained by him for his own benefit. At an earlier trial, Joseph Lahoud had apparently accepted that those moneys had been deposited by him and that he had had the use of them. It was also accepted that as there was no contractual right to recovery of any money until after the outcome of the audit, there was no right to interest under s 100 of the Civil Procedure Act 2005 (NSW). The Victor Lahoud parties submitted, however, that equity may award interest on moneys where another party has had the use of them over time and may do so by way of a 'free-standing' award, relying in large part upon passages in the judgments in Sempra.[242]

236 Ward J considered the claim made for a 'free-standing' award of interest, against the background of the recent decisions in Sempra, Heydon, Chow v Yang and the cautionary note expressed in SCI Operations. Her Honour concluded that 'there is certainly authority which supports a claim in restitution of the kind which has been brought by the Victor Lahoud interests.'[243] She said that had she 'otherwise been satisfied as to the factual foundation for the restitutionary claim made for interest'[244] she would have followed the reasoning of Mason P in Heydon and that of Lord Walker in Sempra and allowed the claim for interest at the commercial rates claimed. But it was not necessary for her Honour to make any such finding as she was not satisfied that 'the retention of the funds by Joseph Lahoud over the period from February 2001 at least up to a reasonable time for payment from the time of the audit in August 2010 amounts to an "unjust" enrichment (though it clearly has been an enrichment)'.[245] Her Honour noted that, because the right to interest arising from restitutionary principles was based on the law of unjust enrichment, '[m]ore is required than proof of a retention of a benefit, that is there must be some additional factor rendering retention of the benefit "unjust" in the relevant sense'.[246] In that case, because the parties' contract contemplated that a party may hold money that it was not entitled to, her Honour found that interest, if available, could not begin to accrue until after the date of the outcome of the audit.[247]

237 In South Australia, a similar position to that adopted in New South Wales applies. In Chow v Yang[248] an unjust enrichment claim arose out of a failure of consideration in the sale and purchase of a business. As part of the sale, the plaintiff paid $473,400 in cash to the defendant, who at the time of the decision of the Full Court of the South Australian Supreme Court still retained the money. The Full Court (Nyland, Gray and Vanstone JJ) agreed with the trial judge that this amount was to be set off against amounts of depleted stock and unpaid supplier invoices, resulting in a judgment sum of $91,025.64 payable to the plaintiff. Despite the lesser final sum resulting from the set off, the Full Court found that 5% interest (a rate agreed between the parties) applied to the whole of the $473,400 held by the defendant until the date of judgment from the trial judge. Statutory interest applied from that date thereafter.

238 In allowing the claim for interest, the Court observed:

We have reached the conclusion that the Judge erred in declining to award interest in favour of Mr Chow. Mr Yang has had the benefit and use of the moneys that should have been repaid. Interest should be paid on that amount from the date of payment of the moneys until the date of judgment. Otherwise Mr Yang will have received a windfall, an unjustified betterment.[249]

The Court was not required to determine anything further, however, as both counsel agreed that in the event that interest was payable, an appropriate rate over the entire period was five per cent and that it would be appropriate in the circumstances for the Full Court to fix a lump sum.

239 While this case reflects the same general principle as that adopted in New South Wales as to the availability of interest for restitutionary claims based on an action for money had and received, its relevance to the present circumstances is limited for two main reasons. First, similar to Heydon, compound interest was not in issue and it was not considered by the Full Court.[250] Secondly, although the parties were in dispute as to whether interest was payable, they were agreed on the appropriate rate of interest to apply.

240 In the present case, the plaintiff submits that if the Court finds that the moneys retained by the Commissioner ought never to have been exacted, the Court should apply a commercial rate of interest, and award interest on the overpaid amount at a compound rate. In this regard, it relies upon the compound interest calculations performed by Mr Davis in his affidavit.

241 The plaintiff also calls in aid the notion that courts of equity regularly award compound interest against defaulting fiduciaries.[251] It was submitted on behalf of the plaintiff that if the right to interest were to be regarded as an equitable right, and equity could come to the assistance of the common law, as some of their Lordships in Sempra thought, then compound interest could be awarded in the situation where moneys are wrongfully detained by a wrongdoer.

242 Finally, the plaintiff's 'fallback position' is to say the statutory rates of interest apply to determine the applicable interest rate. It points to the fact that the moneys that were refunded for the 2008 land tax years onwards attracted interest at 'commercial' rates under the Taxation Administration Act 1997. That Act is the successor to the Taxation (Interest on Overpayments) Act 1986 relied upon by the Commissioner.

243 Section 116 of the Taxation Administration Act 1997, which deals with payments to be made following a successful objection, provides :

In addition to an amount refunded under this Part, the Commissioner is required to pay interest on the amount calculated at the market rate referred to in section 25(a) on a daily basis from -

(a) the date of payment of the amount overpaid that is refunded; or

(b) the date on which the Commissioner made the assessment to which the objection and review or appeal relates -

whichever is the later, until the date of the refund.

Thus, where there is a successful objection, the Commissioner is under an obligation to pay interest on any money that becomes payable to the taxpayer with interest at market rates. The plaintiff submits that accordingly, the award of a commercial rate of interest would not be inconsistent with the position that applies on a successful objection.

244 As noted earlier, the Commissioner contends that the Taxation (Interest on Overpayments) Act 1986 prescribes the interest (i.e., simple interest) payable in respect of successful objections lodged under the LTA 1958. He also points to the anomalous outcomes that would result if a taxpayer like the plaintiff, who has not pursued the objection route to recovery, were entitled to be awarded compound interest whereas one who lodges and successfully pursues an objection were entitled to be awarded only simple interest on the moneys refunded (as prescribed by the Taxation (Interest on Overpayments) Act 1986).[252]

245 While the position in England and in some Australian jurisdictions has changed since SCI Operations was decided, so that the law does now recognise that the courts have a common law jurisdiction to award interest, both simple and compound, the decision in any particular case will nevertheless be affected by its particular circumstances. In this regard, I note that none of the more recent Australian cases have considered the award of interest in circumstances where the common law claim for restitution was brought concerning moneys paid under a statutory regime like the present one. It is not necessary for me to reach a view on this issue, but I observe that, as the decision in SCI Operations demonstrates, the particular features of the statutory regime may well affect the final outcome, both in terms of whether compound interest may be awarded and if so, the applicable rate.

246 It follows, in my opinion, that the plaintiff's proceeding seeking restitutionary relief and its proceeding for mandamus or other relief by way of judicial review, should in each case be dismissed. I will hear the parties on the appropriate form of orders.

[1] The plaintiff was formerly called '65 Albany Road Pty Ltd'.

[2] The LTA 1958 applies to land tax liabilities for periods prior to the 2006 land tax year.

[3] See its proceeding commenced by Writ (No 1396 of 2013).

[4] See its proceeding commenced by Originating Motion (No 1395 of 2013).

[5] In each proceeding, the plaintiff relied upon three affidavits: an affidavit of Mr Wayne Houlyon Ngo sworn on 31 May 2013 and two affidavits of Mr Kim Francis Davis sworn on 6 June 2013 and 10 October 2013 respectively. The Commissioner relied upon two affidavits of Ms Sarah Faith Cockburn sworn on 16 August 2013 and 29 August 2013 respectively.

[6] Streetriver and the plaintiff are related entities, with some common directors.

[7] On 12 April 2012, the SRO dispatched a cheque to Streetriver for the refund amount of $300,238.75.

[8] The 'Assessment Reports' comprised a series of excel format spreadsheets detailing a statement of lands owned by the taxpayer as at midnight on 31 December in each year (from 1983 to 2001), the land ID/reference for each parcel, the amount of single holding tax or proportional tax, the site value/eq factor and the unimproved value of each parcel of land.

[9] The two parcels of land have a combined total area of 1,967 square metres, with Lot 1 on LP27424 having a total land area of 1,058 square metres and Lot 1 on TP598039 having a total land area of 909 square metres.

[10] The LTA 2005 applies to land tax liabilities for the 2006 land tax year onwards.

[11] Section 94 of the LTA 1958 is headed 'Power to extend time for doing anything under Act' and provides:

(1) If anything required by or under this Act to be done at or within a fixed time cannot be or is not so done the Governor by Order in Council may from time to time appoint a further or other time for doing the same whether the time within which the same ought to have been done has or has not expired.

(2) Anything done within the time prescribed by such Order in Council shall be as valid as if it had been done within the time fixed by or under this Act.

[12] Whereas in each of the original assessments for 2006 and 2007 the 'Statement of lands owned as at midnight 31 December' listed both '2 Ottawa Rd, Toorak' and '65 Albany Rd, Toorak', the re-assessments listed only '2 Ottawa Rd, Toorak'. Letters accompanying the re-assessments advised that:

The following changes have been made to your statement of lands.

Properties removed since the last assessment was issued

The Commissioner's discretion was exercised to allow late objection to the 2006 and 2007 assessments. Therefore interest will be allowed in respect of the overpayment arising from the amendment of these assessments.

As no objection was lodged against the 2008 assessment 51698393 no interest is payable in respect of the overpayment arising from its withdrawal.

[14] The land tax overpayment the subject of 'ex gratia relief' was comprised as follows:

[15] The Second Schedule prescribes different rates for successive years: before 1994 - as per cl. 1 and Table A; after 1993 - as per cl. 1 (but subject to cl.1A) and Table B for 1994-1997; for 1998-2001, as per cl. 3 and Table C; for 2002, as per cl. 4 and Table D; for 2003 and 2004, as per cl. 5 and Table E; for 2005, as per cl. 6 and Table F (but subject to any rebate under cl. 6A and Table FA); for 2006, as per cl. 7 and Table G; for 2007, as per cl. 8 and Table H; and for 2008 and subsequent years - as per cl. 9 and Table I. The rates of land tax applicable to Trusts was set out in cll. 10 (2006), 11 (2007) and 12 (2008 and subsequent years).

[16] I note that s 45 of the Interpretation of Legislation Act 1984 (Vic) (construction of 'may' and 'shall') cannot apply to s 19 of the LTA 1958 (assuming it otherwise could) as s 19 was enacted before the commencement of the Interpretation of Legislation Act 1984: see ss 45(1) and (3).

[18] Land Tax (Amendment) Act 1974 (Vic), s 2.

[19] (1992) 23 ATR 528. In his second reading speech for the State Taxation (Amendment) Bill, the then Treasurer explained the background to the amendments proposed by the Bill, and the reason for their introduction as a compendium measure, as follows:

Various refund provisions in Acts administered by the commissioner allow the commissioner to refund tax or duty where he finds tax or duty has been overpaid. However, those provisions and their interstate counterparts have been interpreted by the revenue authorities of this State and other States as not requiring or even allowing a refund if the overpayment is made as a result of a mistake of law. The Full Court of the Supreme Court of Victoria has recently decided that a refund provision in the Stamps Act places an obligation on the commissioner to refund overpaid duty in all circumstances. The commissioner is seeking special leave to appeal the decision to the High Court. ...

The government considers that taxpayers who have overpaid tax or duty are entitled to a refund of that tax or duty. However, there must be a point in time in which taxation matters are finalised. The amendments proposed by the Bill ensure that taxpayers are entitled to refunds of tax or duty overpaid up to three years before the date the application for a refund is lodged with the State Revenue Office. ...

See Victoria, Parliamentary Debates, Legislative Assembly, 6 November 1992, 566 (Alan Stockdale, Treasurer).

[20] The counterpart provision to s 90(2), which was inserted at the same time in the Stamps Act 1958 (Vic) as s 32(7A), was considered by Ashley J in Common Equity Housing Ltd v The Commissioner of State Revenue (Vic) (1996) 33 ATR 77. His Honour found that s 32(7A) excluded the operation of the general law of restitution outside the three year period referred to in that section.

[21] See State Taxation (Further Amendment) Act 1993, ss 20-26. The amendments came into operation on 15 October 1993: s 2(5). These amendments to the LTA 1958 were made at the same time as similar amendments were made to other revenue Acts and also to the Limitation Act.

[22] State Taxation (Further Amendment) Act 1993, s 22.

[23] State Taxation (Further Amendment) Act 1993, s 25, inserting s 92A into the LTA 1958. A transitional provision confirmed that s 90 as in force before the Amending Act would continue to apply to certain proceedings for the recovery of tax (where proceedings had begun before commencement): see State Taxation (Further Amendment) Act 1993, s 26.

[25] Victoria, Parliamentary Debates, Legislative Assembly, 21 October 1993, 1254-1255 (Alan Stockdale, Treasurer). The decision of the High Court in Commissioner of State Revenue v Royal Insurance Australia Ltd [1994] HCA 61; (1994) 182 CLR 51 ('Royal Insurance') was delivered on 7 December 1994, after the 1993 amendments had been introduced.

[26] This is the limitation provision that was construed by the High Court in the Royal Insurance case.

[27] Limitation of Actions (Amendment) Act 1993, s 5.

[28] Royal Insurance Australia Ltd v Comptroller of Stamps (Vic) (1992) 23 ATR 528.

[29] Victoria, Parliamentary Debates, Legislative Assembly, 21 October 1993, 1207 (Alan Stockdale, Treasurer).

[32] See Roxborough v Rothmans of Pall Mall Australia Limited (2001) 208 CLR 516.

[33] Victoria, Parliamentary Debates, Legislative Assembly, 4 March 2004, 298 (Robert Hulls, Attorney-General).

[36] The day on which the Bill received its second reading.

[37] [1994] HCA 61; (1994) 182 CLR 51.

[40] (2008) 237 CLR 146, 154-157, [16]-[24], 161-162, [45] and 166, [62] ('Futuris').

[41] [1995] HCA 23; (1995) 183 CLR 168, 187 (Mason CJ), 199 (Brennan J) and 240 (McHugh J) ('Richard Walter').

[42] (1996) 62 FCR 302, 311 (Black CJ, Einfeld and Sackville JJ) ('Hoare Bros'). The decision was followed by the High Court in Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd [2008] HCA 41; (2008) 237 CLR 473.

[43] The objection and appeal regime in the Stamp Act 1921 (WA) is the sole means by which a taxpayer assessed to stamp duty under the Act may challenge the correctness of the assessment: see Commissioner of State Taxation (WA) v Bayswater Hire Cars Pty Ltd (1989) 20 ATR 1606, 1608 (Malcolm CJ, Kennedy J agreeing), 1610 (Wallace J). Similarly, the appeal regime established under the Stamp Act 1894-1982 (Qld) is the exclusive avenue for challenging an assessment of stamp duty: see O'Sullivan v Commissioner of Stamp Duties [1984] 1 Qd R 212, 213-216 (Matthews J, Kelly J agreeing), 222, 225-227 (G N Williams J). Likewise under the Stamp Duties Act 1923 (SA): see Corfu Clothing Co Pty Ltd v Commissioner of Stamps (1988) 48 SASR 105, 113 (Legoe J).

[44] For e.g., in Phibbs v Dale (Unreported, Supreme Court of Victoria, Menhennitt J, 8 June 1978) Menhennitt J was of the view that under the Payroll Tax Act 1971 (Vic) the objection procedure is the only manner by which the correctness of assessments made under that Act can be put in issue. His Honour said (at 30) that the procedure established by the Act 'involved objection and appeal as prescribed by the Act' and neither course having been pursued, 'it is not, therefore, open to the defendant to challenge the correctness of those assessments in the way he has sought to do by affidavit in these proceedings.'

[45] In its proceeding commenced by Writ, seeking restitutionary relief, the plaintiff pleads that:

21. The defendant, by its notices of assessment for the 1990-2002 land tax years inclusive, demanded payment of amounts of land tax which were not authorised by, or payable under, the LTA 1958.

22. As required by those notices of assessment, the plaintiff paid land tax totalling $603,452 for the 1990-2002 years inclusive, of which $363,680, or some other amount, has been overpaid as a result of the duplicated land landholding ("the overpayments").

23. The plaintiff made these overpayments in the mistaken belief that the land tax liability as assessed by the defendant in the assessments for the 1990-2002 years was properly due and payable to the defendant under the LTA 1958, and that it was legally obliged to make those payments.

[46] The plaintiff located a copy of the 2002 assessment amongst its records.