1. This proceeding by way of review application under the Taxation Administration Act 1997 calls into question the meaning and effect of Sections 70 to 84 of the Duties Act 2000 as they stood on 27 September 2007. The sections in question are referred to broadly as the land rich landholder provisions. In one form or another they have formed part of the Duties Act and its predecessor the Stamps Act 1958 since an amendment in 1987. The broad purpose of these provisions is to bring to charge at conveyance rates transactions which involve the indirect acquisition of control over all or large portions of real estate through the medium of shares in private companies or units in private unit trusts.
2. These provisions have, shall we say, been tweaked frequently over the years to cut off what have been perceived as further avoidance avenues. The provisions with which we are concerned here are not the current provisions.
3. Section 76 of the Duties Act as it stood in 2007 defines interest in a landowner as being an interest that arises where a person 'has a beneficial entitlement'. Section 77 which describes when an acquisition takes place and therefore when a liability to pay duty arises refers to a person claiming 'an interest beneficially'. In the present case the taxpayers are themselves trustees and in that trustee capacity acquired units in a trust known as the Peninsula Holdings Unit Trust. It is agreed between the parties that such trust was a land rich landholder at the relevant time.
4. One argument that is put against the Commissioner's assessment of duty on the acquisition is that since the unit holders made their acquisitions as trustees they were not acquiring beneficial interest or acquiring interests beneficially. Such an argument was successful before Mandie J in a proceeding in which Landrow Properties Pty Ltd was the appellant. An appeal from His Honour's judgment to the Court of Appeal was dismissed Landrow Properties Pty Ltd v Commissioner of State Revenue [2008] VSC 590; (2008) 73 ATR 901. The Court in dismissing the appeal was unanimous. It says that the references to beneficial entitlements and beneficial acquisitions as a matter of trite law excluded the situation in which the taxpayers in Landrow made their acquisition.
5. The same reasoning would appear to support any review applications by the present applicant, Urban Consolidation & Development Pty Ltd, Gee Dee Nominees and Webster-York Pty Ltd.
6. The Commissioner of State Revenue is dissatisfied with the decision of the Court of Appeal in Landrow. He submits through his Counsel, Mr Merralls QC and Mr Sest that the Court of Appeal decision is wrong. Without putting on a full argument the Commissioner has in written outline made a number of contentions through his Counsel as to the proper interpretation of the relevant words and phrases in the section.
7. Underpinning all of these contentions is the view that the interpretation that the Court of Appeal has adopted is fundamentally subversive of the policy of the relevant provisions in the Duties Act and for that reason is an interpretation which a Court should avoid preferring one which would further the objective of the relevant legislation.
8. Mr Merralls QC has told me that the Commissioner considered but rejected the possibility of seeking to vindicate his opinion by obtaining special leave to appeal from the High Court of Australia. The Commissioner considered that amongst the difficulties which would attend such a special leave application was that in Landrow the acquiring trustee was trustee of both the acquiring trust and the disposing trust and so quite apart from the considerations that led Mandie J and the Court of Appeal to determine the matter in favour of the taxpayer, the matter could be determined in favour of the taxpayer for some other reason.
9. Again, the legislation in question has been amended and so has no significance for the future. The assessments which were made under the 2007 version of the legislation are purely historical and this may be another reason why special leave would not have been given in Landrow. Whatever the persuasiveness or otherwise of these considerations, in fact the Commissioner did not seek special leave in Landrow and what the High Court of Australia might or might not have done on such an application must now be a matter of speculation. What the Commissioner has done however in his quest to overturn the Court of Appeal decision in Landrow is to fix upon the present application as being 'the suitable vehicle'. Whilst there are other grounds on which these taxpayers seek review over and above the Landrow point, if I may so describe it, this proceeding does not exhibit the special features which Landrow did which I described a moment ago. It is therefore a more appropriate vehicle.
10. Mr Merralls and Mr Sest therefore invite me to exercise a power under Section 96 of the Victorian Civil and Administrative Tribunal Act 1998 referring certain questions of law in effect the correctness of the Court of Appeal's decision in Landrow to the Court of Appeal for decision. The Commissioner has been quite candid in his objectives here, his first approach to the Court of Appeal if the referral is made will be to invite the convening of a five member Court with a view to overruling Landrow. Should the Court decline to reopen Landrow the Commissioner would then intend to seek special leave to appeal to the High Court of Australia with a view to convincing the High Court to overrule Landrow. If the Court of Appeal does convene a five judge court, the Commissioner would hope to persuade the five judge court to overrule Landrow. If he is unsuccessful he proposes to seek special leave to appeal from the decision of the five judge court. To put it another way, the Commissioner wishes to exhaust every possible appellate option. An affidavit from the Commissioner's solicitors says that some $54m are at stake here. If the decision in Landrow remains undisturbed assessments of that face value will be in peril and taxpayers will be entitled to recover the duty which they have already paid or resist demands that they pay anything that remains unpaid.
11. Mr Merralls has noted that Section 96 is a discretionary power. He concedes that attempts to make referrals under Section 96 have in the past come undone because the referrals have been characterised by the Court of Appeal or the Full Court of the Supreme Court as being hypothetical, premature or academic. Here, says Mr Merralls no such difficulties arise. He observed that the parties have agreed upon a six paragraph statement of agreed facts and so there is an adequate factual matrix within which the determination of any referred question may occur in the Court of Appeal.
12. Mr Grace of Counsel who appears on behalf of the applicant submits that no such referral should occur. He says that the referral procedure is an exceptional one and would typically be availed of where some novel or very difficult question arose which placed the Tribunal in a difficult position as to its determination. Here said Mr Grace the Tribunal is in no embarrassment at all. It should simply follow Landrow. Given that the highest court in the State has pronounced on the question in contention there is no novelty to it, hence there is no occasion to make a referral. Moreover, Mr Grace has referred to the difficulties which have attended the use of procedures such as this in the past. He has taken me to the scriptures of members of the Full Court of the Supreme Court in Collins v Black [1995] VicRp 26; [1995] 1 VR 409 where the Court consisting of Brooking, J.D. Phillips and Hanson JJ were critical of the use of such a power. In their joint judgment J.D. Phillips and Hansen JJ at [1995] VicRp 26; [1995] 1 VR 409, 419 said:

Indeed, whenever the appeal court comes to the conclusion that the reference should be declined, what was thought by one party or another to have been advantage will turn out only to have occasioned further expense and delay which were altogether unjustified. While this court retains the power to decline the reference, the profession is duty bound, in the interests of the clients, to consider all (and not only some) of the possible ramifications before embarking upon what might turn out to have been a precipitate step.

1. Mr Grace says that resort to Section 96 may in fact complicate and protract these proceedings. His clients are out of their money and the pronouncements of the Court of Appeal heretofore suggest that they are entitled to recover those moneys and therefore it is unjust to adopt any procedure which will protract matters further.
2. Mr Merralls in reply has observed that the difficulties that have attended other referrals do not exist here. He noted in particular that in De Simone v Bevnol Constructions and Developments Pty Ltd [2010] VSCA 231 where the Court of Appeal declined a referral, the necessary factual basis for such referral did not exist and this was a fundamental objection raised by the Court. Here, said Mr Merralls the statement of agreed facts removed the problem which attended the De Simone matter. Moreover he says that whilst it may be an appropriate occasion to consider resort to Section 96 when some especially difficult or novel question arises which has not been the subject of authoritative guidance already there is no reason to think that Section 96's purpose and operation is exhausted by these circumstances. The difficult situation in which the Commissioner, as a steward of public money holding the conviction that he does that the Court of Appeal has gone wrong, finds himself in is an occasion where it is proper for the Section 96 procedure to be adopted.
3. What then is the appropriate disposition? In my view, first, as Mr Merralls contends there is no limitation on Section 96 to circumstances where there is no existing authoritative statement on the particular question of law. The section simply states:

The Tribunal with the consent of the President may refer any question of law arising in a proceeding to the Tribunal Division of the Supreme Court or the Court of Appeal for decision.

1. No particular pre-requisite is stipulated. The discretion therefore is an open one. Provisions of this sort have existed in a variety of forms in the law over the centuries, sometimes they are called cases reserved or points of law reserved, at other times, cases stated. The oral argument before me this morning has not gone extensively into that history as to the rationale for such provision. As noted however, I accept that there is a wide range of circumstances in which such a power may be exercised. It needs to be said however that the policy of the law is strong and clear on a number of matters. First, the law generally sets its face against determining questions which are moot. In the area of Commonwealth judicial power the High Court of Australia has authoritatively and firmly determined that no judgments can be given by the Court or any other Federal Court which will amount to the giving of an advisory opinion. Further, experience has shown that procedures which fragment the hearing and disposition of proceedings have generally been found to be productive of difficulty and delay rather than speed and efficiency. The remarks of J.D. Phillips and Hansen JJ in Collins v Black are pertinent on that score. Without therefore suggesting that something exceptional needs to be shown before Section 96 is resorted to, it has to be said that Section 96 represents a turning aside from what the genius and experience of the Common Law over centuries has regarded as the appropriate course of trying matters through to their conclusion and leaving the dissatisfied party to seek appellate review of an entire determination.
2. Instances in which this sort of procedure have, shall we say, come unstuck are legion and in all those cases presumably the parties involved and the trial judges were persuaded that the circumstances were fit for the referral, the stating of the case, the reservation of the question and so on. Yet how often have the appeal courts either declined the referral, the reservation or spent a large part of the judgment complaining about the intolerable difficulties in which the Court has been placed. I think what that indicates is that at this point in a proceeding it is difficult to anticipate exactly what will be necessary for an efficient referral of a question and therefore the risk that things will misfire is high. Without going into the timing of the determinations and assessments here, a considerable amount of time has already elapsed and a further considerable period of time, perhaps as much as 18 months may elapse between any referrals which might be made under Section 96 and a determination or refusal to determine by the Court of Appeal.
3. It follows and I think this is implicit and indeed explicit in the passages that I have quoted from Collins v Black already that it is incumbent before exercising a power such as the one under Section 96 for a court or tribunal to consider all other options; and the one option that seems to me to call for serious consideration is the giving of a direction now that the review application by these applicants be heard before a judicial member of the Tribunal. We may hope that a relatively early date may be obtained for such a hearing. That hearing would be a relatively straight forward one because the judicial member no less than a non-judicial member such as myself would be bound by the decision of the Court of Appeal in Landrow. The Commissioner would be then on the high road to the Court of Appeal. Why that would not be a satisfactory course of procedure to enable the Commissioner to exhaust all appellate possibilities on the Landrow issue as he wishes to do is not an immediately evident to me. Mr Merralls said that he was apprehensive that following this course might lead to the matters being sidetracked by other grounds of review which have been relied upon by the applicant. At the hearing this morning these other grounds have not been explored or described but it is common ground that they exist and will be relied upon if necessary. I accept that this would make the procedure which I have just described from the Commissioner's point of view sub-optimal. Against that must be weighed the fact that it accords with the process which has been found most convenient in the law over the centuries and whilst the Commissioner has a very legitimate interest in fighting out for the ultimate benefit of the State of Victoria and its people the issue of the $54m that is at stake here, these taxpayers also have a legitimate interest in an early determination and final determination of their review application. This alternate process which as I have said is sub-optimal from the Commissioner's point of view is nevertheless in my view not so unsatisfactory as to require resort to be had to the Section 96 procedure with the difficulties which necessarily attend it and the potential for further delay and expense. In those circumstances I propose giving the direction that I have foreshadowed.