WB Rural Pty Limited v Commissioner of State Revenue [2017] QSC 141

The application for a declaration that s 69(1)(b) is constitutionally invalid

Is it necessary to determine the Trustee's constitutional argument?

[11] The elements of the Trustee's constitutional argument were as follows:

• (a) State Parliaments cannot confer judicial power without also conferring a proportionately regulated right of appeal to the State Supreme Court, that requirement arising so as to ensure that "there is but one stream of authority in Australia and it flows from [the High Court] throughout the nation" (Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51 at 138 per Gummow J.)
• (b) When, by relevant parts of the Administration Act, the Queensland Parliament conferred jurisdiction on the Commissioner to issue an assessment (or reassessment) or to determine an objection under that Act, it conferred judicial power on the Commissioner.
• (c) The Queensland Parliament had failed to confer a proportionately regulated right of appeal to the State Supreme Court from such decisions because of the burden on the exercise of the appeal right imposed by s 69(1)(b) of the Administration Act.

[12] The Commissioner and the Attorney-General contended that the attack on the constitutional validity of s 69(1)(b) of the Administration Act must fail, pointing out that in Harvey v Commissioner of State Revenue [2015] QCA 258, the Court of Appeal (McMurdo P, Philippides JA and Burns J concurring) considered the constitutional validity of s 69(1)(b) and concluded:

Although courts have long recognised the harshness of provisions such as s 69(1)(b), they are standard in taxation statutes and consistent with long standing legislative policy to protect the revenue both at a State and Federal level ...

[There is nothing] in the requirement in s 69(1)(b) that the taxpayer pay the assessment before a merits appeal or review can be entertained which offends the Kable principle. Section 69(1)(b) was not repugnant to or incompatible with the institutional integrity of Queensland courts resulting from their constitutional position in the Australian legal system which flows from Chapter III Commonwealth Constitution. This contention is baseless.[1]

[13] The Trustee correctly contended that these remarks were obiter dicta. It invited me to consider an interesting and detailed argument which it developed in support of its principal proposition concerning the condition applicable to the manner in which a State parliament can confer judicial power; and then to consider the remaining elements of its argument.

[14] The Attorney-General, however, contended that I should not proceed in that way. She submitted (and I accept) that as a general principle I should not decide a constitutional question unless I am satisfied that there exists a state of facts which make it necessary to decide that question in order to determine rights of the parties which are in actual controversy. The relevant authorities were summarized recently by Perry J in Roach v Minister for Immigration and Border Protection [2016] FCA 750 in these terms:

Questions of constitutional validity should be addressed only when it is necessary "to do justice in the given case and to determine the rights of the parties": Lambert v Weichelt (1954) 28 ALJ 282 at 283 (Dixon CJ) (quoted with approval in ICM Agriculture Pty Ltd v Commonwealth [2009] HCA 51; (2009) 240 CLR 140 at 199 [141] (Hayne, Kiefel and Bell JJ); see also Duncan v New South Wales [2015] HCA 13; (2015) 255 CLR 388 at 410 [52] (French CJ, Hayne, Kiefel, Bell, Gageler, Keane and Nettle JJ); and AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68 at [53] (Flick, Griffiths and Perry JJ). In other words, it is only when the Court "cannot do justice, in an action properly brought" without deciding on the constitutional validity of legislation that the Court is entitled to "take out this last weapon from [the Court's] armoury": Attorney-General (NSW) v Brewery Employes Union of NSW [1908] HCA 94; (1908) 6 CLR 469 at 590 (Higgins J) (quoted with approval in at 473-474 [250]-[251] (Gummow and Hayne JJ)). Notwithstanding the applicant's careful and considered arguments on the subject of invalidity, determinations of constitutional validity that would be no more than obiter are not appropriate: ; at 347 (Isaacs ACJ), 356 (Starke J); at 474 [251] (Gummow and Hayne JJ).

[15] The Attorney-General contended, and I agree, that in this case the preferable course would be to determine first whether the relevant provisions of the Administration Act confer judicial power on the Commissioner. If they do not, then it would be unnecessary (and therefore inappropriate) to consider the correctness or application of the constitutional principle for which the Trustee contended.

[16] Accordingly, the question I will address first is whether the relevant conferral of power on the Commissioner is a conferral of judicial power.

[17] For the financial years ended 30 June 2011 to 30 June 2014,[3] land tax was imposed on the taxable value of taxable land by virtue of s 6 of the Land Tax Act 2010 (Qld).

[18] Under that Act liability for land tax arises at midnight on 30 June immediately preceding the financial year (s 7). The person who is liable to pay the tax is the owner of the taxable land at the time the liability arose (s 8).

[19] The taxable value of land is assessed by determining the lesser of the value of the land for the financial year, valued pursuant to the Land Valuation Act 2010 (Qld), and the average value of the land across three financial years (if available): ss 16 to 18. Land tax is applied at the rate provided for in particular schedules to the Land Tax Act 2010: s 32.

[20] Part 6 of the provides for a number of categories of "exempt land". Exempt land is excluded from the definition of taxable land and is therefore not subject to land tax: of the provides that land which is used solely for the business of agriculture, pasturage or dairy farming is exempt land. 
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(1) The commissioner must give notice of the making of an assessment (an assessment notice) to the taxpayer.

(c) the taxpayer's right to object to the assessment; and

(d) the basis on which unpaid tax interest may accrue; and

(e) if assessed interest or penalty tax is payable under the notice - enough information to enable the taxpayer to ascertain the basis for the assessment of the interest or penalty tax; and

(g) for a reassessment - the amount of the liability for tax under the previous assessment.

[29] The Administration Act contains a number of other provisions which operate by reference to the assessment notices issued by the Commissioner. Relevantly for present purposes:

• (a) Tax payable must be paid by the date stated in the assessment notice as the date by which the tax must be paid, that date being required to be at least 30 days after the assessment notice was given to the taxpayer: s 30.
• (b) Late payment interest is payable on the date it accrues: s 31.
• (c) Amounts payable must be paid to the Commissioner by cash or cheque or as prescribed: ss 29 and 45(1).
• (d) If the whole or part of an amount payable is not paid as required, then the unpaid amount is a debt payable to the State, and the Commissioner may recover the unpaid amount for the State in a court of competent jurisdiction: s 45(2).
• (e) Under s 132(1)(a), an assessment notice is conclusive evidence of the proper making of the assessment, and, under s 132(b)(ii), conclusive evidence that the 'amount and all particulars of assessment are correct' in proceedings other than an appeal or review of a decision on an objection.

[30] The Administration Act provides a method of internal review, by which the Commissioner considers and determines objections to the Commissioner's own assessment decisions. Thus:

• (a) A taxpayer who is dissatisfied with an original assessment or a reassessment may object pursuant to s 63 of the Administration Act.
• (b) An objection against an assessment may be made on any grounds: s 64.
• (c) The objector must set out the objection in writing, with detail of the grounds relied upon, and lodge it with copies of all relevant material within 60 days after the assessment notice was given: s 65(1).
• (d) The objector has the onus of proving the objector's case: s 66.
• (e) The Commissioner must allow the objection, completely or partly, or disallow it, and give written notice to the objector of the Commissioner's reasons for decision: ss 67 and 68.
• (f) If the decision is to allow the objection in whole or in part, then the Commissioner must make any reassessment necessary to give effect to the decision: s 19(1).

Analysis of whether the conferral of power is the conferral of judicial power

[34] The main purpose of the Administration Act, and the Commissioner's principal function, are the executive functions of administration and enforcement of the tax laws, including the Land Tax Act 2010.

[35] The fact that the Commissioner makes assessments by the application of legal criteria to the facts and circumstances of a particular case does not of itself mean that what is involved is an exercise of judicial power. Proceeding in that way is also characteristic of many administrative functions: see Luton v Lessels [2002] HCA 13; (2002) 210 CLR 333 at [21] per Gleeson CJ (with whom McHugh J agreed); Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ at 188-189.

[36] The Trustee correctly submitted that one factor that is often considered critical is whether the decision is one that determines existing rights and duties as they already stand, or whether the decision is merely the ascertainment of a fact which the legislature has adopted as the standard upon which its will operates to create rights and duties: see British Imperial Oil Co Ltd v Federal Commissioner of Taxation [1925] HCA 4; (1925) 35 CLR 422 per Isaacs J at 435.

[37] The Trustee submitted that the Commissioner's assessment could not be so regarded because the liability was created by the Land Tax Act and the decision of the Commissioner must be regarded as a decision about whether the existing right or duty actually exists.

[45] Because there is no conferral of judicial power on the Commissioner, it is unnecessary to consider the correctness or application of the constitutional principle for which the Trustee contended. The Trustee's application for a declaration that s 69(1)(b) was beyond the legislative competence of the Queensland Parliament should be dismissed. It follows that the Trustee's appeal to the Supreme Court from the objection decision must also be dismissed.

The application for relief on the basis of alleged jurisdictional error

[46] It was common ground before me that the Court retained its ordinary supervisory jurisdiction to grant relief for jurisdictional error made by the Commissioner in the exercise of her power to make a decision on a taxpayer's objection. The Trustee's written submissions in reply (at [18] to [22]) recognized the existence of some uncertainty as to the forms of relief available for jurisdictional error. However, the Trustee submitted, and the Commissioner agreed, that if I was persuaded of the existence of the alleged jurisdictional error, I had jurisdiction to grant relief by way of declaration: cf Sierra Property Qld Pty Ltd v National Construction Management Pty Ltd [2016] QSC 108 per Jackson J at [50], citing Northbuild Construction Pty Ltd v Central Interior Linings Pty Ltd [2011] QCA 22; [2012] 1 Qd R 525.

The objection decision and the relevant material before the Commissioner

[47] As I have previously recorded, the initial reassessments were issued by the Commissioner's letters of 30 June 2014 and 31 June 2014. By the covering letters the Commissioner advised that she had determined that the relevant blocks of land held by the Trustee were not eligible for the deduction/exemption applicable in respect of land used solely for primary production.

[48] On 12 September 2014, the Trustee lodged one objection dealing with all the reassessments. By that objection, the Trustee sought to satisfy the Commissioner that the Trustee was eligible for a full exemption as provided for under s 53 of the Land Tax Act 2010 and, where applicable, s 11 of the previous Act.

[49] It is appropriate first to consider the relevant statutory provision in a little more detail. It will suffice to do so by reference only to the exemption specified in s 53 of the Land Tax Act 2010, because the deduction specified in s 11 of the previous Act was in similar terms.

[50] Section 53 of the Land Tax Act provided:

(1) This section applies to land, or a part of land, that is used solely for the business of agriculture, pasturage or dairy farming.

(2) The land, or the part of the land, is exempt land if it is owned by any of the following -

(a) an individual, other than a trustee or absentee;

(b) a trustee of a trust, if all beneficiaries of the trust are persons mentioned in paragraph (a), (c) or (d);

(3) For this section, if part of the land is exempt land, the commissioner must apportion the taxable value of the land between use for a purpose mentioned in subsection (1) and use for any other purpose.

(4) This section does not apply to land owned by the manager of a time-sharing scheme.

beneficiary includes a beneficiary in the first instance and a beneficiary through a series of trusts.

exempt foreign company see the Corporations Act, section 9.

proprietary company see the Corporations Act, section 9.

relevant proprietary company means a proprietary company -

(b) in which no share or interest is held, whether directly or through interposed companies or trusts, by a body corporate other than a proprietary company that is not an exempt foreign company

[51] In order for the exemption to apply in relation to the Trustee, the following conditions would have to be met:

• (a) as the land was owned by a trustee of a trust, each of the beneficiaries of the Trust must be either:
  • (i) an individual other than a trustee or absentee;
  • (ii) a relevant propriety company; or
  • (iii) a charitable institution;
• (b) the land or the part of the land must be used for the business of agriculture, pasturage or dairy farming (the primary production business); and
• (c) the primary production business must be the sole use of the land or the part of the land.

[52] Clearly if any of the beneficiaries of the trust was an individual, it would be necessary that the individual be "other than an absentee" for the exemption to apply. "Absentee" was a term defined in s 31 as follows:

1. Meaning of absentee

(1) An absentee is a person who does not ordinarily reside in Australia.

(a) cannot satisfy the commissioner that he or she ordinarily resides in Australia; and

(b) when ownership of the person's land is decided for this Act -

(ii) has been absent from Australia for more than half of the 12 month period ending when the ownership is decided.

(a) a public officer of the Commonwealth or of a State who is absent in the performance of the officer's duty; or

(b) an individual (the employee) employed by an employer in Australia for a continuous period of 1 year immediately before the employee's absence, if the commissioner is satisfied that -

(i) the employee is absent in the performance of the employee's duty for his or her employer; and

(ii) the employee's absence will not be longer than 5 years.

(4) Subsection (3)(b) stops applying, for that absence, as soon as it is longer than 5 years.

[53] On 11 December 2014, the Commissioner and the Trustee reached an agreement that the Trustee would submit further material in support of the objection and the Commissioner would subsequently issue a letter setting out her preliminary findings and conclusions, and then the Trustee would have an opportunity to respond before the objection was determined.

[54] The Trustee provided further information to the Commissioner:

• (a) by email of 3 February 2015; and
• (b) by email of 10 March 2015.

[55] By letter dated 22 May 2015, the Commissioner set out her preliminary findings and the Trustee was invited to provide clarification and further information in support of its objection. Amongst other things, the Commissioner:

• (a) advised the Trustee of the eligibility criteria identified at [51] above;
• (b) requested copies of the trust deed of the Whitsunday Trust and any deeds of amendment; and
• (c) requested that the Trustee provide "... a list of the Trust's beneficiaries as at each relevant 30 June (i.e. from 2009 to 2013), if it is not clearly ascertainable from the trust deed".

[56] The Trustee lodged further information material in support of its objection by email on 22 July 2015. Amongst other things, the Trustee responded to the request for the trust deed and information about the beneficiaries. The letter noted that there had been no previous issues raised concerning the Trustee's eligibility for exemption. The email then provided a copy of the trust deed, but, curiously, despite acknowledging the request for information about the beneficiaries, did not provide any. Instead the email only advised the Commissioner that "the corporate trustee of the Trust has been the same since the Trust was formed in November 1997".

[57] By letter dated 14 August 2015, the Commissioner requested further clarification. The letter solely addressed the question of the eligibility criteria. The Commissioner made these points:

• (a) The first schedule to the trust deed for the Whitsunday Trust identified that the initial unitholder of units in the trust was "Lifecell Pty Ltd ... as trustee of the Jodee Rich Family Trust". Given that no register of unit holders was provided, the Commissioner considered that the Trustee was advising that the only beneficiary of the trust for the period in question was Lifecell Pty Ltd as trustee of the Jodee Rich Family Trust.

The Category A beneficiary of the Maxine Rich Family Trust is Maxine Nicole Rich (Ms. Rich). Ms. Rich is an Australian resident and has resided in Australia for the past fifty two years. Ms. Rich has never been an absentee as defined in section 3A(2) of the Repealed Act and section 31(2) of the Land Tax Act. I attach a rates notice from Woollahra Municipal Council as Appendix C. This rates notice is proof of Ms. Rich's joint-ownership, in conjunction with Mr. Rich of a residence located at [address not reproduced].

The Maxine Rich Family Trust has not made any distributions from 2009 to 2015. Prior to 2009 the Trust made several distributions to a wholly owned Australian proprietary company.

I attach a copy of the Trust Deed for the Maxine Rich Family Trust as supporting documentary evidence. The Trust Deed for the Maxine Rich Family Trust is attached as Appendix D.

[59] The relevant clauses of the Maxine Rich Family Trust were as follows:

• (a) by clause 3.1:

Until the Vesting Date the Trustee shall hold the income of the Trust Fund derived during each respective Year of Income upon the following trusts:

(a) if, on the last day of that Year of Income there be one or more Nominated Beneficiaries then living or in existence, then to pay the same to or apply the same for the benefit of such Nominated Beneficiary, if there be but one, and, if there be more than one, to pay or apply the same to or for the benefit of such one or more to the exclusion of any other or others in such shares and proportions as the Trustee may before the expiration of that Year of Income determine. Any determination by the Trustee under this sub-clause 3.1 shall be made in writing placed with the Trust papers and its effect recorded in the Trust books. If the Trustee fails to make any such determination then it shall hold such income upon trust for the Nominated Beneficiaries equally among them; or

(b) if, on the last day of the Year of Income there be no Nominated Beneficiary then to pay or apply the same to or for the benefit of such one or more to the exclusion of the other or others of the Eligible Beneficiaries living or in existence on the last day of that Year of Income and in such shares and proportions as the Trustee may before the expiration of that Year of Income determine. Any determination by the Trustee under this sub-clause 3.1 shall be made in writing placed with the Trust papers and its effect recorded in the Trust books. If the Trustee fails to make any such determination then it shall hold such income:

(i) upon trust for such of Category A of the Eligible Beneficiaries as are living or are in existence on the last day of such Year of Income if more than one then equally among them;

(ii) if there be no such persons taking under (i) above then upon trust for such of Category B of the Eligible Beneficiaries as are living or are in existence on the last day of such Year of Income if more than one equally among them; and

"Nominated Beneficiaries" means such person or persons being Eligible Beneficiaries as may for the time being have been declared by the Trustee to be a nominated beneficiary. Such declaration shall be one under the hand of the Trustee (and shall be kept with the Trust papers) and may declare any person or persons to be a nominated beneficiary for a stipulated time, or until such nomination shall be revoked. The Trustee may revoke any such nomination at any time whether the same may have been expressed to be for a stipulated period or until revocation and may at any time declare new or additional nominated beneficiaries;

[60] Thus it may be observed about the Maxine Rich Family Trust:

• (a) For any year of income Rushta Pty Ltd held the income of the Trust Fund for the benefit of a Nominated Beneficiary, if one existed (clause 3.1(a)). A "Nominated Beneficiary" was an Eligible Beneficiary who had been declared by the Trustee to be a Nominated Beneficiary (clause 1.1).
• (b) If there was no Nominated Beneficiary, then for any year of income Rushta Pty Ltd held the income for the benefit of any Eligible Beneficiary that Rushta Pty Ltd determined (clause 3.1(b)).
• (c) But if there was:
  • (i) no Nominated Beneficiary; and
  • (ii) Rushta Pty Ltd had failed to make any determination,

then Rushta Pty Ltd was to hold the income on trust for such Category A Eligible Beneficiaries as were living or in existence on the last day of the year of income, and if there were no such person in existence, then the income would be held on trust for such Category B Eligible Beneficiaries as may be in existence, and so on, until the Category G Eligible Beneficiaries were reached (clause 3.1(b)).

[61] The objection decision was made on 22 September 2015. It was made by the Commissioner's delegate, the Senior Review Officer, Administrative Review, on behalf of the Commissioner. The relevant findings on the question whether the beneficiaries were of the type necessary to establish eligibility for the deduction/exemption were as follows:

1. For the reasons set out below, the Commissioner is not satisfied that the Trustee falls within s.11 (5)(b) of the repealed Act and s.53(2)(b) of the Land Tax Act.
2. As the land owner (the Trustee) is a trustee of a trust, under s.11(5)(b) of the repealed Act and s.53(2)(b) of the Land Tax Act, the beneficiaries of the trust must not be of a type excluded in s.11 (5)(b) of the repealed Act and are of a type specified in s.53(2)(b) of the Land Tax Act. That is, the beneficiaries must be an individual that is not an absentee, a relevant proprietary company or an exempt charitable institution/charitable institution.
3. 'Absentee', 'relevant proprietary company' and 'exempt charitable institution' are defined respectively in ss.3A, 2 and 13A of the repealed Act.

Rushta Pty Ltd ATF Maxine Rich Family Trust 1,907,958

1. The Trust submits that Tasman Pacific Pty Ltd is a 'relevant proprietary company' as defined in s.2 of the repealed Act and s.53(5) of the Land Tax Act, and in support has provided an ASIC company search. Upon review, the Commissioner accepts this submission.
2. With respect to Rushta Pty Ltd ATF Maxine Rich Family Trust (MRF Trust), it must be established that all the beneficiaries of the MRF Trust are an individual that is not an absentee, a relevant proprietary company or an exempt charitable institution/charitable institution.
3. The Trust has provided a copy of the trust deed of the MRF Trust and states that no distributions have been made from the MRF Trust from 2009 to 2015, and as such, for those years, there has been no 'beneficiary' as defined by s.3F of the repealed Act and s.24 of the Land Tax Act. These sections provide that the beneficiaries of a discretionary trust when a liability of land arises are the persons in who favour a power of appointment has been exercised during the 12 month period ending when the liability arises.
4. Where the power of appointment has not been exercised during the 12 months prior to the relevant 30 June, it is the Commissioner's position that the beneficiaries are the default beneficiaries referred to in the default clause of the trust deed. Where the trust deed contains no express default clause, any class of beneficiary given preference under the deed may be considered to be default beneficiaries.
5. Clauses 3.1 (a) and (b) of the trust deed of the MRF Trust stipulates who are the default beneficiaries in the circumstances that there are 'Nominated Beneficiaries' or no 'Nominated Beneficiaries'. 'Nominated Beneficiaries' is defined in clause 1.1 of the trust deed to mean 'Eligible Beneficiaries' that have been declared by the trustee to be a nominated beneficiary. 'Eligible Beneficiaries' is defined in clause 1.1 of the trust deed and particular beneficiaries are identified and listed in 'Category A' to 'Category G'.

[62] The Trustee submitted that:

• (a) the Commissioner's power to determine objections is subject to a condition that the Commissioner act reasonably in exercising that power; and
• (b) the findings referred to above reveal jurisdictional error because they are unreasonable in the sense discussed in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332.

[63] The Commissioner did not resist the proposition that the exercise of power to determine an objection was subject to the implied condition of reasonableness.

[64] In Francis v Crime and Corruption Commission [2015] QCA 218 Fraser JA observed (at [33], Morrison JA and Mullins J agreeing) in relation to the unreasonableness ground of judicial review that:

• (a) it involved a stringent test, and was rarely established;
• (b) it did not sanction a review on the merits;
• (c) it was not made out merely if the court disagrees with an evaluative decision or with the weight attributed to a factor taken into account in the decision;
• (d) in Flegg v Crime and Misconduct Commission [2014] QCA 42 at [3] and [16]:
  • (i) the President had expressed the test, with reference to Minister for Immigration and Citizenship v Li, as being "whether the ... decision was so unreasonable that it lacked an evident and intelligible justification when all relevant matters were considered"; and
  • (ii) Gotterson JA (Margaret Wilson J agreeing) noted that the Wednesbury principles did not allow a challenge to a decision "on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which the [appellate tribunal] disagrees".

The following general principles may be extracted from the three leading authorities [of Li, Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 and Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11] (further general guidance is provided by the Full Court's decision in Minister for Immigration and Border Protection v Eden [2016] FCAFC 28):

• there is a legal presumption that a statutory discretionary power must be exercised reasonably in the legal sense of that word (Li at [63] per Hayne, Kiefel and Bell JJ; Singh at [43] per Allsop CJ, Robertson and Mortimer JJ; Stretton at [4] per Allsop CJ and at [53] per Griffiths J);
• nevertheless, there is an area within which a decision-maker has a genuinely free discretion, which area is bounded by the standard of legal reasonableness (Li at [66]; Stretton at [56] per Griffiths J);
• the standard of legal reasonableness does not involve a court substituting its view as to how a discretion should be exercised for that of a decision-maker (Li at [66]; Stretton at [8] per Allsop CJ) and [76] per Griffiths J);
• the legal standard of reasonableness is not limited to what is in effect an irrational, if not bizarre, decision and an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified (Li at [68]);
• in determining whether in a particular case a statutory discretion has been exercised unreasonably in the legal sense, close attention must be given to the scope and purpose of the statutory provision which confers the discretion and other related provisions (Li at [74]; Stretton at [62] and [70] per Griffiths J);
• legal unreasonableness "is invariably fact dependent" and requires a careful evaluation of the evidence. The outcome of any particular case raising unreasonableness will depend upon an application of the relevant principles to the relevant circumstances, rather than by way of an analysis of factual similarities or differences between individual cases (Singh at [48]; Stretton at [10] per Allsop CJ and at [61] per Griffiths J);
• the concept of legal unreasonableness can be "outcome focused", such as where there is no evident and intelligible justification for a decision or, alternatively, it can reflect the characterisation of an underlying jurisdictional error (Singh at [44]; Stretton at [12]-[13] per Allsop CJ);
• where reasons are provided, they will be the focal point for an assessment as to whether the decision is unreasonable in the legal sense and it would be a rare case to find that the exercise of a discretionary power is legally unreasonable where the reasons demonstrated a justification ( at [45]-[47]).

[66] The Trustee contended that the Commissioner's findings at [66] to [69] of the Objection Decision were unreasonable in the relevant sense because:

• (a) there was no evidence before the Commissioner to suggest that anybody had been made a "Nominated Beneficiary";
• (b) there was no evidence to suggest that Ms Rich resided anywhere other than Australia;
• (c) there was evidence that Ms Rich resided in Australia;
• (d) there was evidence from which it would be inferred that no person had ever been made a "Nominated Beneficiary";
• (e) when regard was had to the evidence which was before the Commissioner (namely the email referred to at [58] above and the rates notice), it is not possible to comprehend how the Commissioner reached the decision that she did;
• (f) where the evidence is all one way, and there is no evident and intelligible explanation for why that evidence is insufficient to establish the finding sought, then a failure to make such a finding will be unreasonable and result in jurisdictional error.

[67] I reject this submission. I make the following observations.

[68] First, it must have been obvious from the Commissioner's letter dated 22 May 2015 referred to at [55] above, that the only point of her requesting information about the beneficiaries of the trust was to enable proper consideration of the eligibility criteria and, in particular, s 53(2) of the Land Tax Act 2010.

[69] Second, the Trustee's email response on 22 July 2015 evidently realized that. But it suffered from the flaw which I pointed out at [56] above, namely it did not provide the requisite information.

[70] Third, the Commissioner's letter dated 14 August 2015, discussed at above, could not have been clearer in relation to the Commissioner's concerns. The repeated request for evidence that the beneficiaries were of the type necessary to establish eligibility, and the specification that the necessary evidence would need to include confirmation "with supporting documentation", were both notable and unambiguous.

[73] Jurisdictional error is not made out. No occasion arises to grant any of the relief sought in that regard.

[74] The amended application in proceeding 11701 of 2015 should be dismissed.

[75] Save insofar as it challenges the Commissioner's decision concerning the appellant's objection to the reassessment of land tax in respect of the financial year ending 30 June 2010, the appeal in proceeding 11810 of 2015 should be dismissed.

[76] I will hear the parties on costs.

[1] Harvey v Commissioner of State Revenue [2015] QCA 258 at [80].

[2] Roach v Minister for Immigration and Border Protection [2016] FCA 750 at [194].

[3] Although land tax for the financial year ended 30 June 2010 was imposed pursuant to the now repealed Land Tax Act 1915 and the question as to whether the land in question was used solely for the business of agriculture, pasturage or dairy farming was relevant for the applicability of a deduction rather than an exemption, the legislative scheme was broadly similar in that financial year. No party contended that any different analysis applied in relation to the repealed Act.

[4] See the definition of "assessment" in schedule 2 of the Administration Act.

[5] Cf Luton v Lessels [2002] HCA 13; (2002) 210 CLR 333 at [22], [67].

[6] Luton v Lessels [2002] HCA 13; (2002) 210 CLR 333 at [74].

[7] Luton v Lessels [2002] HCA 13; (2002) 210 CLR 333 at [23], [67].