11. On 13 December 1982, the Income Tax Assessment Amendment Act (No. 6) 1982, received Royal Assent. By s.9 of that Act, sub-section (1) of s.207 of the Assessment Act was repealed and the following sub-section was substituted:-

"(1)If any tax remains unpaid after the

time when it became due and payable or would, but

for section 206, have become due and payable,

additional tax is due and payable at the rate of

20% per annum on the amount unpaid, computed from

that time or, where, under section 206, the

Commissioner has granted an extension of time for

payment of the tax or has permitted payment of

the tax to be made by instalments, from such date

as the Commissioner determines, not being a date

prior to the date on which the tax was originally

due and payable.

(1A) Where additional tax is due and

payable by a person under sub-section (1) in

relation to an amount of tax and-

(a) the Commissioner is satisfied that-

(i) the circumstances that

contributed to the delay in

payment of the tax were not

due to, or caused directly or

indirectly by, an act or

omission of the person; and

(ii) the person has taken

reasonable action to

mitigate, or mitigate the

effects of, those

circumstances;

(b) the Commissioner is satisfied that-

(i) the circumstances that

contributed to the delay in

payment of the tax were due

to, or caused directly or

indirectly by, an act or

omission of the person;

(ii) the person has taken

reasonable action to

mitigate, or mitigate the

effects of, those

circumstances; and

(iii) having regard to the nature

of those circumstances, it

would be fair and reasonable

to remit the additional tax

or part of the additional

tax; or

(c) the Commissioner is satisfied that

there are special circumstances by

reason of which it would be fair and

reasonable to remit the additional tax

or part of the additional tax,

the Commissioner may remit the additional tax or

part of the additional tax."

12. Section 15 of the amending Act is also relevant:-

"15. Notwithstanding the amendment made by this

Act to section 207 of the Principal Act, where,

in relation to an amount of additional tax that

is payable, or will become payable, by a taxpayer

under that section in relation to an amount of

tax payable under an assessment against which an

objection has been lodged under section 185 of

the Principal Act, the Commissioner has, before

the commencement of this Act, entered into an

agreement or arrangement with the taxpayer, or

otherwise indicated his intention to the

taxpayer, to remit the whole or a part of the

additional tax, either unconditionally or subject

to conditions, sub-section 207(1A) of the

Principal Act as amended by this Act does not

apply in relation to that additional tax but the

Commissioner may, for reasons that he thinks

sufficient, remit that additional tax or any part

of that additional tax."

13. There was no further communication between the parties until 20 December 1982, when Mr Price Williams of Fordham, Williams & Co spoke with Mr Martin Tayler, a Recovery Officer in the Australian Taxation Office. In discussing the recent amendments to the Assessment Act, Mr Tayler stated, in effect, that the Australian Taxation Office was still prepared to offer to the Applicant a 50/50 arrangement as it had in the past. Mr Tayler also said that if the applicant accepted the offer, payment of $124,077.44 would be required by 27 December 1982. This amount represented half of the outstanding tax in respect of the 1979, 1980 and 1981 tax years. The of $124,222.08 which has previously been referred to represented half of the outstanding tax in respect of the 1978, 1979 and 1980 tax years. There is evidence to the effect that the appeal to the Supreme Court against the assessment for the financial year ending 30 June 1978 was heard at some time between July and December 1982 and was successful.

14. Mr Williams replied that he would seek instructions from the applicant and report back to Mr Tayler before the end of the week.

15. After obtaining instructions from the applicant, Mr Williams told Mr Taylor on the following day that the applicant was willing to pay the sum of $124,077.44, but that it could not do so within seven days. He requested the Deputy Commissioner to extend the time for payment to mid-January 1983.

16. Mr Tayler has deposed that "... (b)ecause I was not prepared to commit the Australian Taxation Office to such an arrangement I asked Mr. Williams to put his counter-offer in writing, setting out exactly when it was envisaged that the Applicant would pay the sum of $124,077.44 ... I said to Mr. Williams that any such counter-offer may be considered, but that I could give no guarantee that the counter-offer would be accepted."

17. On 31 December 1982, the Deputy Commissioner received from Fordham, Williams & Co a letter dated 21 December 1982 which read, in part:-

"We are writing to confirm todays telephone

conversation regarding the abovenamed taxpayer

and arrangements to pay the outstanding tax.

We would ask you to confirm that provided

$124 077.44 is paid during the week commencing

17th January, 1983 the balance may remain

outstanding without the imposition of additional

tax for late payment, pending finalization of the

matters in dispute.

The directors of the company have made arrange

ments to visit their bank early in January and

are confident that funds will become available by

the specified time.

We look forward to receiving your confirmation of

these arrangements."

18. Early in January, Mr Tayler sought instructions from Mr Damien Hynes who is the Manager of the Deferred Tax Unit, and, in accordance with those instructions, he sent a letter dated 7 January 1983, which read, in part:-

"You are advised that the representations

contained in your letter have been considered and

payment of $124,077.44 will be accepted on or

before 17 January 1983.

However, in view of the recent legislation which

was given royal assent on 13 December 1982, such

an arrangement whereby interest does not accrue

can no longer be entered into by this office.

The Tax Agents Circular No. 4 of 1982 will

explain this in more detail.

Accordingly, the above arrangement will be

subject to the accrual of additional tax for late

payment at the rate of 10% per annum from the

original due date until 14 February 1983, at

which time the interest rate will increase to 20%

per annum."

19. Mr Williams telephoned Mr. Tayler on 11 January. He complained that the decision to impose penalty interest on outstanding amount was not in accordance with what he had thought to be the Deputy Commissioner's earlier advice that he would extend the time for payment. Mr Tayler replied that his earlier offer of a "50/50 arrangement" had required payment by 27 December 1982, and, as this had not been made, the offer was no longer open, because the Melbourne office had no power to further extend the time for payment. He also said that the request made in the applicant's letter of 21 December had been considered as promised, but that it had been rejected after consultation with Mr Hynes and a Mr Paul Noone, the officer handling the case.

20. By letter dated 12 January 1983, Fordham, Williams & Co made a submission to the Deputy Commissioner. It set out the events which had occurred since 21 December 1982, and proceeded:-

"We confirmed we would make the necessary

arrangements to have the moneys paid to your

office by the week commencing 17th January and

notwithstanding your letter of 7th January, we

now enclose the taxpayer's cheque for $124,077.44

in good faith and again request that this amount

be accepted in accordance with the terms set out

in our letter of 21st December. In support of

this request we make the following submissions:

1. No indication was given that head office did

not allow any discretion in this matter and

we were left with the distinct impression

that an extension of the proposal was capable

of being considered by Melbourne and in fact,

this would be done.

2. The objection for 1978 has now been allowed

in full which supports the taxpayer's

contention that the objection against the

disallowance of prior year losses has merit

and should be resolved in the taxpayer's

favour.

3. The taxpayer has been fully co-operative in

providing any information requested promptly

and has gone out of his way to ensure that no

delays occur in resolving this matter.

4. The delays in bringing this matter to the

Court for hearing are not the fault of the

taxpayer. We understand that all the papers

regarding this matter have been to Canberra

on more than one occasion and that delays in

having this matter listed are within your

department.

5. The taxpayer is anxious to have this matter

resolved as soon as possible and we should be

pleased to receive any suggestions as to how

we may assist to have the matter listed for

hearing at the earliest possible date.

6. The taxpayer was given the impression that

provided he agreed to a certain course of

action insofar as arrangements to pay part of

the tax (which he has now done) consideration

would be given to remitting the late payment

penalties on the balance (which has not been

done).

We trust in light of the facts you will accept

this cheque pursuant to the terms of our letter

of 21st December. We look forward to receiving

your favourable ruling in this matter."

21. Along with the cheque for $124,077.44 there was, on an assumption that the Melbourne office had no discretion to deal with the matter, a request that the submission be referred to the Head Office in Canberra.

22. The decision not to enter into a 50/50 arrangement was made on or about 1 March 1983, which appears from the following notation of that date on the applicant's file in the Australian Taxation Office:-

"The offer which was put to the coy. on 20/12/82

which would have allowed interest free deferment

provided payment was made by 27/12/82 placed the

coy in a preferential position. To the best of my

knowledge no other Victorian taxpayer was offered

such an arrangement. I do not believe that

anything has been said or done which would

justify the agent believing that we would extend

the required date for payment.

I support Mr. Hynes' recommendation. The coy.

should be advised by phone of decision and that

the matter has not been referred to H.O. The

decision should then be confirmed in writing."

The notation suggests that the decision was made within the Melbourne office without reference to Canberra.

23. Accordingly, on 11 March 1983 the Deputy Commissioner notified the applicant's accountants that he confirmed his advice of 7 January that the payment of the outstanding sum of $122,077.44 would be deferred pending the hearing of the appeal to the Supreme Court, but that it would attract additional tax for late payment.

24. On 1 August 1984, the applicant's appeal in respect of the assessments for the years 1979, 1980 and 1981 was dismissed by Tadgell J in the Supreme Court of Victoria. The applicant then paid $124,077.44 on 7 August, which was the balance of the tax in dispute. The additional tax which had accrued to that date and which had remained outstanding amounted in all to $77,995.58, being comprised of:-

1. $46,241.49; being an amount which had accrued from the

due dates for payment until 13 January 1983, in respect

of which an amount of $1000 had been paid by the

applicant on 21 November 1983.

2. $32,754.09; being an amount calculated on the balance

outstanding from 14 January to 7 August 1984.

A notice for this amount was issued under s.364(2) of the Act.

25. On 26 February 1986, Mr Williams and the solicitor acting for the applicant, Mr Mapleback, met with Messrs Thurling and Johnson, who were officers employed in the Recovery Section of the Australian Taxation Office, for the purpose of making further submissions for the remission of the outstanding amount. They there raised the following grounds as support for that claim:

1. That Mr Tayler had failed to advise that 27 December

1982 was the final date on which the applicant could

avail itself of a 50/50 arrangement and that this

amounted to an innocent misrepresentation.

2. That Mr Williams had been led to believe that it was

within the Department's discretion to enter into a

50/50 arrangement upon receipt of a written request.

3. That the written request to extend the time for payment

dated 21 December 1982 had not been received by the

Department until 31 December. Accordingly, the

applicant had had no chance of discovering the real

situation and making payment by 27 December.

Despite these submissions, the Deputy Commissioner refused to accede to the applicant's request and he informed the applicant, through its accountants, of this decision by letter dated 27 March 1986.

26. The applicant sought a statement of reasons for the decision under s.13 of the Act, which was provided by the Deputy Commissioner on 21 July 1986. That statement contained, in one of three prefatory paragraphs, the following statement about the effect of the amendments to the Assessment Act made by Act No 123 of 1982:-

"The amendments made on 13 December 1982 set out

(in section 207(1A) the circumstances in which

the Commissioner could remit additional tax for

late payment imposed by section 207(1). Having

regard to the limitations imposed upon the

Commissioner's power of remission the former

administrative practice, which allowed

arrangements to be made upon the basis that if

one half of a disputed debt was paid payment of

the other half was deferred free of additional

tax, was terminated. Recognising administrative

practicalities, transitional arrangements were

adopted which allowed any taxpayer who, prior to

13 December 1982, had agreed to pay one half of

disputed tax, until 27 December 1982 to make

payment."

There then followed a series of findings on material questions of fact which did not differ significantly from those already set out in these reasons. The statement concluded:-

"The reasons for the decision not to remit the

additional tax for late payment were:

(o) The taxpayer had on a number of occasions

ignored invitations ... to enter into an

arrangement free of the imposition of

additional tax for late payment.

(p) In the conversation which took place on 21

December 1982 the company was not advised

that its proposal, to pay one half of the

income tax outstanding by mid January 1983

with the balance to remain outstanding free

of the imposition of additional tax pending

the resolution of matters then in dispute,

was approved.

(q) Statements by Mr Mapleback (solicitor) and

Mr Williams (accountant) that, had the

taxpayer fully understood the significance

of payment by 27 December 1982, the taxpayer

would have found funds with which to pay by

that date, contradicted verbal advice given

by Mr Williams, on 21 December 1982, that

the taxpayer could not make the required

payment before mid January 1983.

(r) In as much as the request was based upon a

claim that an officer was negligent in

failing to explain the full implications of

the amended legislation, no conduct on the

part of the Commissioner could operate as an

estoppel against the operation of the Act.

(s) The Commissioner is not satisfied as to any

of the matters of which he must be satisfied

before he is permitted to remit the

additional tax (section 207(1A)).

(t) The taxpayer offered no grounds which would

justify remission of that part of the

additional tax which had accrued up to 13

January."

27. By application filed 26 August 1986, the applicant sought a review of the Deputy Commissioner's decision not to remit any of the outstanding tax. That application, number VG 318 of 1986, was subsequently discontinued by the applicant on 6 April 1987 after the Deputy Commissioner had advised by letter dated 5 March 1987 that:-

"... (T)he decision of 27 March 1986 not to remit

additional tax for late payment under s.207 of

the Income Tax Assessment Act 1936 ... has been

reviewed, and the taxpayer will be accorded a

partial remission of $32,754.09.

The amount of $32,754.09 consists of additional

tax which accrued after 13 January 1983, the date

upon which the amount of $124,077.44 (being

one-half of the primary tax in dispute with this

office) was paid. The balance of additional tax,

an amount of $45,241.49, remains outstanding in

the taxpayer's account. The amount of $45,241.49

consists of additional tax which accrued from the

due dates for payment until 13 January 1983.

The decision to grant the taxpayer a partial

remission of additional tax for late payment has

made (sic) in view of an apparent mis

understanding arising from telephone discussions

on 20 and 21 December 1982 between Mr Tayler of

this office and Mr Price Williams of Fordham

Williams and Co.

The taxpayer has offered no grounds which would

justify remission of that part of the additional

tax which had accrued up to 13 January 1983."

The present application seeks a review of that decision to remit only part of the outstanding tax.

28. Reasons for the later decision to remit only part of the additional tax have been set out in an affidavit sworn 2 July 1987 by Christopher John Richard Adams who, at the relevant time, was the Director (Outstanding Taxes) in charge of the Recovery Section within the Australian Taxation Office. In paragraphs 2, 3 and 4 of that affidavit Mr Adams deposed:-

"2. Representations were made by the Applicant's

solicitors, Messrs Akehurst, Friend and Allaway

on or about the 10th day of February 1987 to

remit additional tax for late payment totalling

$77,995.58.

3. As the Director (Outstanding Taxes) the

question of remission was referred for direction.

After careful examination of the Applicant's

file, the request was acceded to in part. Of the

total amount of $77,995.58, an amount of

$32,754.09 was remitted. The amount of $32,754.09

consisted of additional tax for late payment

which accrued after the 13th day of January 1983,

the date upon which an amount of $124,077.44

primary tax (being one half of the primary tax

then in dispute) was paid.

4. The balance of additional tax, an amount of

$45,241.49 consisting of additional tax which had

accrued from the due dates for payment until the

13th day of January 1983, remained outstanding on

the Applicant's account. The only ground given by

the Applicant why remission should be granted in

relation to the additional tax which had accrued

up to the 13th day of January 1983 was that such

additional tax could not be recovered as a matter

of law. I did not consider that this ground was

sufficient and justify (sic) any further

remission of additional tax for late payment."

29. After identifying all of the documentary material which he had examined in coming to his decision, Mr Adams gave these reasons for it:-

"6. My reasons for the decision to remit only

part of the additional tax for late payment are

as follows:

(a) In deciding to remit the amount (viz

$32,754.09) which accrued after the

13th day of January 1983, I took into

account the facts that even though in

the conversation which took place on

the 21st day of December 1982 the

Applicant was not advised that its

proposal to pay 50% of the primary tax

by mid-January 1983 would result in

additional tax ceasing to accrue on the

balance outstanding, until resolution

of the matters in dispute; the

Applicant was not advised, on the other

hand, that a failure to pay by the 27th

day of December 1982 would result in

the taxpayer losing the opportunity to

enter into an arrangement to pay 50% of

the tax in dispute and in return

additional tax would cease to accrue on

the balance oustanding, until

resolution of the matter in dispute.

(b) In deciding not to remit the amount

(viz $45,241.49) which accrued prior to

the 13th day of January 1983, I took

into account the facts that:

(i) The Applicant did not avail

himself of several written

offers made to him to pay 50% of

the tax outstanding on the

condition that additional tax

for late payment would cease to

accrue on the balance out

standing;

(ii) It was never represented or

intended that these offers were

to have any effect on the

accrual of additional tax for

late payment which had accrued

prior to the Applicant accepting

the offer and making the part

payment. In that regard, I crave

leave to refer to the letter of

5 June 1981 (to the) Applicant

and the letter of 21 December

1982 from the Applicant being

part of Exhibits CJR A1(b) and

(c).

(iii) The question of whether the

additional tax could not be

recovered as a matter of law was

not a valid matter to be taken

into consideration in

determining whether remission

pursuant to section 207(1A)

should be granted.

(iv) In as much as the request was

based upon a claim that an

officer was negligent in failing

to explain the full implications

of the amended legislation, I

did not consider that the

officer had failed to explain

the full implications or other

wise been negligent and I did

not consider the officer's

conduct did or could estop the

Respondent from administering

the Act in accordance with its

terms.

(v) The Commissioner is not fully

satisfied as to any of the

matters of which he must be

satisfied before he is permitted

to remit the additional tax in

full (section 207(1A)).

(vi) The Applicant offered us (no)

grounds which would justify

remission of that part of the

additional tax which had accrued

up to 13 January 1983."

That decision, as notified by the letter of 5 March 1987, is the subject of the later application under the ADJR Act on the following grounds:-

"1. The decision involved the improper exercise

of the powers conferred by the Income Tax

Assessment Act (1936) (as amended) ("the

Act") and section 15 of the Income Tax

Assessment Amendment Act (No. 6) 1982 ("the

amending Act").

PARTICULARS

(a) The decision-maker erroneously exercised

his discretion in making the decision

pursuant to s.207(1A) of the Act.

(b) The decision-maker erroneously failed to

make the decision pursuant to s.15 of

the amending Act.

(c) The decision-maker took into account

(inter alia) the following irrelevant

considerations:-

(i) that the Applicant did not avail

himself of several written offers

made to him to pay 50% of the tax

outstanding;

(ii) that the sum of $124,077.44 was

not paid before 27th December

(d) The decision-maker wrongly considered

that the only ground given by the

Applicant as to why remission should be

granted in respect of the additional tax

which had accrued pursuant to s.207 of

the Act up to 13th January 1983 was that

such additional tax could not be

recovered as a matter of law and failed

to take into account the matters set out

in the Application for Review No. VG 318

of 1986 and the supporting affidavits.

(e) The decision-maker wrongly considered

that the fact that additional tax could

not be recovered as a matter of law was

not a valid matter to take into

consideration.

(f) The Applicant refers to and repeats the

particulars subjoined to paragraphs 1

and 2 of the Application.

(g) The decision-maker failed to take into

account the fact that on 21st December

1982 the Respondent advised the

Applicant that discretions which would

be exercised prior to 27th December 1982

would not be exercised after that date.

(h) In taking into account that the sum of

$124,077.44 was not paid before 27th

December 1982 the decision-maker

exercised a discretionary power in

accordance with a rule of policy without

regard to the merits of the case.

2. The decision was not authorised by the

enactment, namely s.207(1A) of the Act,

pursuant to which it was purported to be

made.

3. The decision involved an error of law namely

that it was erroneously made pursuant to

s.207(1A) of the Act."

30. It will be seen that the principal complaint raised on behalf of the applicant on this application is that in reviewing the decision whether to remit the penalty tax, the Deputy Commissioner proceeded under s.207(1A) of the Assessment Act as amended, instead of exercising the wider discretion conferred by s.207(1) as in force before 15 December 1982. To determine whether that complaint has been made out requires the Court to construe s.15 of Act No 123 of 1982 which I have already reproduced.

31. In my view, the effect of that transitional provision is to preserve to the Commissioner the wider discretion conferred by s.207(1) of the Assessment Act, as in force before 13 December 1982, in respect of all assessments the subject of pending objections at that date in respect of which the Commissioner had, at any time before 13 December 1982, entered into an agreement or arrangement to remit the whole or part of the additional tax, or otherwise indicated his intention to grant such a remission.

32. Mr Whelan of Counsel for the Deputy Commissioner contended first that the expression in s.15 of the amending Act, "... or otherwise indicated his intention to remit the whole or a part of the additional tax" should be read as limited to an indication of intention by the Commissioner "so as to bind himself in some way so it would be misleading for the taxpayer if the ground rules were then to be changed beneath him".

33. Pursuant to s.15AB of the Acts Interpretation Act 1901, reliance was placed in support of this first contention, on behalf of the Deputy Commissioner, on certain passages from the supplementary explanatory memorandum which was circulated before the passage of the Bill for the amending Act. At p 7 of that memorandum it was recited:-

"Arrangements entered into by the Commissioner,

prior to the date on which the amendments

proposed by this Bill become law, to remit

additional tax in disputed liability cases will

not be overturned and will be allowed to continue

according to their terms."

Then at p 17 it was indicated of the clause which became s.15 of the amending Act:-

"Clause 15 will, however, retain for the

Commissioner a general authority to remit an

amount of late payment penalty in any case where,

prior to the date on which the Bill becomes law,

he has entered into an arrangement with a

taxpayer to remit additional tax in respect of an

amount of assessed income tax that has remained

unpaid pending the resolution of a disputed

assessment. In other words, these existing

arrangements will not be overturned and will be

allowed to continue according to their terms."

Those passages manifest an intention to preserve agreements and arrangements into which the Commissioner had entered before the date on which the Bill should become law. However, they throw no light on what was intended to be achieved by the reference in cl.15 to the Commissioner having "otherwise indicated his intention to the taxpayer, to remit the whole or a part of the additional tax". To confine the application of cl.15 to the arrangements described in the explanatory memorandum would be to render the words which I have just quoted surplusage. Section 15AB of the Acts Interpretation Act could only require that extraordinary result if the explanatory memorandum were regarded as an exhaustive statement of the legislative intention underlying cl.15. I do not so regard it.

34. If the indication of intention contemplated by s.15 be limited to one which has given rise to an obligation or estoppel legally binding on the Commissioner, it adds nothing to the alternative basis for the operation of s.15 of the amending Act, i.e. the Commissioner's having entered into an agreement or arrangement with the taxpayer to remit some additional tax either unconditionally or subject to conditions. I consider that upon the indication having been given before 13 December 1982, s.15 of the amending Act applied, even if the taxpayer had not acted on the indication to his detriment or at all.

35. It was next argued on behalf of the Deputy Commissioner that the use of the perfect tense, "has otherwise indicated an intention", signifies a requirement that the intention should still have subsisted at the date of commencement of the amending Act. Accordingly, so it was argued, any indication of intention to remit additional tax which accompanied an offer to a taxpayer was no longer operative for the purposes of s.15 of the amending Act if the offer had been rejected or had lapsed before 13 December 1982. It is true that the use of the perfect tense denotes an action which is complete at the date on which it is viewed, but the action contemplated by the relevant part of s.15 is that of the Commissioner indicating.

36. I therefore discern no temporal limitation on the operation of that part of the section other than the requirement for an indication to have been given at some time in respect of additional tax referable to tax payable under an assessment to which an objection remained "live" on 13 December 1982. Had the legislature intended to confine the operation of s.15 to concluded agreements or arrangements, or offers to remit additional tax which remained open on 13 December 1982, it would have been easy enough to say so. Of course, the fact that a taxpayer has rejected or failed to respond to an indication by the Commissioner of an intention to grant some remission may well influence the Commissioner in the exercise of the discretion preserved by s.15 of the amending Act to grant a smaller remission or no remission at all. However, that does not mean that the Commissioner is relieved altogether of the need to exercise the discretion.

37. I am reinforced in the construction which I have adopted of s.15 by the consideration that it is a transitional provision designed to preserve for a limited class of taxpayers the more ample discretion previously reposed in the Commissioner by s.207(1) of the Assessment Act. In accordance with the principle enunciated, e.g., in Burt v Commissioner of Taxation [1912] HCA 74; (1912) 15 CLR 469 at 482, any serious doubt as to which of two interpretations should be adopted ought to be resolved in favour of that which extends the benefit to the wider class of taxpayers.

38. It is clear that the Commissioner had, by the letter of 5 June 1981, indicated an intention to remit additional tax in respect of the tax payable by the applicant on the assessments for the 1978, 1979 and 1980 tax years, subject to the condition specified in that letter that the taxpayer immediately pay the sum of $124,222.08. Accordingly, on the construction which I have adopted of s.15 of the amending Act, the Commissioner was bound after 13 December 1982 to consider whether, for reasons he might think fit, he should remit the additional tax payable by the applicant in respect of those years or any part of that additional tax. It is equally clear that the Deputy Commissioner, when he made the decision of 27 March 1986 for which a statement of reasons was provided on 21 July 1986, considered that he was required to apply s.207(1A) of the Assessment Act as amended, and not s.15 of the amending Act or s.207(1) of the Assessment Act before its amendment, in deciding whether to remit any additional tax payable by the taxpayer in respect of the 1978, 1979 and 1980 tax years. As emerges from sub-paragraph 6(v) of his affidavit quoted at p 19 of these reasons, that misapprehension remained when Mr Adams came to review the earlier decision whether to remit all or any part of the additional tax. It follows, therefore, that the applicant has made out what I have identified as its principal complaint, that in terms of s.5(1)(f) of the ADJR Act, the decision of 27 March 1986 involved an error of law.

39. Mr Whelan, for the Deputy Commissioner, argued that, even if the applicant had made out one of the grounds on which it sought review under the ADJR Act, relief should be refused as an exercise of the discretion implicit in s.16(1) of that Act because the applicant had received everything by way of remission of additional tax which it had requested. He referred to Excell v Harris (1983) 51 ALR 137 where an applicant for promotion to a temporary position of senior teacher established that "... the Promotions Appeal Board failed to conduct its proceedings in accordance with the dictates of fairness which the applicable principles of law require" (at 165.2). However, Neaves J. declined to grant relief because, by the date of his judgment, the temporary appointment to which the applicant aspired had only a matter of a few weeks to run. By contrast, the amplitude of the benefit which the present applicant could achieve if the Commissioner's discretion were exercised as favourably to the applicant as it could be, has not been cut down by the effluxion of time. Nor are there present in this case considerations of the kind which would have led Woodward J to have exercised his discretion adversely to the applicant in Visy Board Pty Ltd v Attorney-General (Cth) [1983] FCA 350; (1983) 51 ALR 705 had his Honour found a prima facie case for relief made out. Nor can I discern in this case any factors like those which Peko-Wallsend Ltd v Minister for Aboriginal Affairs (1985) 59 ALR 51 provided a basis for the exercise by this Court of its discretion to refuse relief, notwithstanding that a ground afforded by the ADJR Act for review of the decision had been made out.

40. Mr Whelan also referred to several cases where a discretion analogous to that conferred by s.16 of the ADJR Act has been invoked as justifying a refusal to order the issue of one or other of the prerogative writs. Those authorities which included R. v Wasley; Ex parte Frankel [1914] VicLawRp 92; (1914) VLR 635 and Reg v Aston University Senate (1969) 2 QB 538 serve as a useful reminder that this Court should not automatically quash or set aside a decision upon finding that it has been vitiated by an error of law. It is also necessary to have regard to the conduct of the applicant for review including any delay in bringing the proceedings or acquiescence in the decision-maker's error. As well, it may be appropriate to examine whether, on further consideration, the decision-maker could reasonably come to some other decision more favourable to the applicant for review. In the present case there is nothing in the conduct of the applicant which disentitles it to reconsideration of its request for remission of the additional tax. Nor can I conclude that on such a reconsideration no result other than a remission of $32,754.09 would reasonably be open to the Deputy Commissioner.

41. Accordingly, I order that the Deputy Commissioner's decision of 5 March 1987 be set aside and the matter to which the decision relates be referred to the respondent for further consideration. The respondent must pay the applicant's costs.