Commissioner of State Revenue v North Lakes Pharmacies (Qld) Pty Ltd [2020] QCATA 152

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Commissioner of State Revenue v North Lakes Pharmacies (Qld) Pty Ltd [2020] QCATA 152 PARTIES: COMMISSIONER OF STATE REVENUE (applicant/appellant) v NORTH LAKES PHARMACIES (QLD) PTY LTD (respondent) APPLICATION NO/S: APL262-19 ORIGINATING APPLICATION NO/S: GAR043-18 MATTER TYPE: Appeals DELIVERED ON: 6 November 2020 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Brown Member Deane ORDERS: Leave to appeal is granted. The appeal is allowed. The Tribunal’s decision of 26 September 2019 is set aside. The Application to review a decision filed 30 January 2018 is dismissed. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where applicant contends the learned member erred in law and fact in finding that the application for review is within jurisdiction of the tribunal on the basis that the application was brought out of time – where s 69 of the Tax Administration Act 2001 (Qld) requires that review proceedings must be commenced within 60 days after notice is given by the commissioner - consideration of ordinary meaning of words ‘given’, ‘taken to be given’ and ‘sent’ under Part 11 of the TA Act – consideration of the purpose and the surrounding provisions of the TA Act APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – NATURE OF -- 1 of 14 -- 2 RIGHT – APPEALS IN THE STRICT SENSE AND APPEALS BY WAY OF REHEARING – APPEALS BY WAY OF REHEARING - SCOPE AND EFFECT OF REHEARING – where the learned member erred in construing the terms of the TA Act – where appeal raises questions of general importance in relation to administration and enforcement of state revenue laws - where appeal allowed Acts Interpretation Act 1954 (Qld), s 14A, s 35, s 39, s 39A Electronic Transactions (Queensland) Act 2001 (Qld), s 3, s 23, s 24, s 25, sch 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 33, s 47, s 142, s 147 Standard Time Act 1894 (Qld), s 4 Taxation Administration Act 2001 (Qld), s 3, s 68, s 69, s 142, s 143, s 144, s 145, s 146, s 147, s 148, s 149, sch 2 Arndt v Crime and Misconduct Commission & Anor [2013] QCATA 340 Cachia v Grech [2009] NSWCA 232 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 Harrison & Anor v Meehan [2017] QCA 315 Lanai Unit Holdings Pty Ltd v Mallesons Stephen Jacques (No 1) [ 2017] 2 Qd R 456 Lida Build Pty Ltd v Miller and Anor [2011] QCATA 219 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 North Lakes Pharmacies (Qld) Pty Ltd v Commissioner of State Revenue [2019] QCAT 289 Pickering v McArthur [2005] QCA 294 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 State of Queensland & Anor v Aigner [2013] QCATA 151 Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan [1931] HCA 34 X v Australian Prudential Regulation Authority (2007) 226 CLR 630 REPRESENTATION: Applicant: GC Hartridge, instructed by Clayton Utz Respondent: L Gentry, instructed by WRP Legal & Advisory APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) -- 2 of 14 -- 3 REASONS FOR DECISION North Lakes Pharmacies (Qld) Pty Ltd (‘North Lakes’) sought review of a decision of the Commissioner of State Revenue (‘the Commissioner’) in response to an objection to an assessment of payroll tax following the operation of the grouping provisions, whereby it and other companies were grouped for payroll tax purposes (‘the Objection Decision’).1 The Commissioner unsuccessfully sought to dismiss the review application on the grounds that the Tribunal lacked jurisdiction because it was commenced out of time (‘the Decision’).2 The Commissioner seeks leave to appeal and appeal the Decision.3 Where the decision appealed from is not the Tribunal’s final decision leave to appeal is necessary.4 The Appeal Tribunal has previously accepted that a refusal to strike out an application is not a final decision.5 The Commissioner also contends that the appeal involves questions of mixed law and fact so that leave to appeal is also necessary on that basis.6 In such a case, where leave is granted, the appeal is to be decided by way of rehearing.7 There are well established principles as to when leave should be granted.8 Is there a reasonably arguable case of error in the primary decision?;9 is there a reasonable prospect that the applicant will obtain substantive relief?;10 is leave necessary to correct a substantial injustice to the applicant caused by some error?;11 is there a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage?12 Background The Objection Decision was emailed to North Lakes’ legal representatives on 30 November 2017. The email was sent at 4.58 pm Queensland time. North Lakes’ legal representatives, located in Adelaide, received the email a minute later at 5.29 pm Adelaide time. North Lakes paid the assessment and filed the Application to review a decision in the Tribunal on 30 January 2018. The issue before the learned Member and this Appeal Tribunal is whether the 60 day time period in section 69(2) of the Taxation Administration Act 2001 (Qld) (‘TA Act’) commenced to run at the time and date in Queensland when the email was sent by the Commissioner to North Lakes or from the next day by virtue of section 149(2) of the TA Act as the email was received after 5.00 pm in Adelaide, the place received. 1 GAR043-18, Application to review a decision filed 30 January 2018. 2 North Lakes Pharmacies (Qld) Pty Ltd v Commissioner of State Revenue [2019] QCAT 289, delivered 26 September 2019. 3 Application for leave to appeal or appeal filed 4 October 2019. 4 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 142(3)(a)(ii). 5 Arndt v Crime and Misconduct Commission & Anor [2013] QCATA 340. 6 QCAT Act, s 142(3)(b). 7 Ibid, s 147(2). 8 See, eg, Lida Build Pty Ltd v Miller and Anor [2011] QCATA 219. 9 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 10 Cachia v Grech [2009] NSWCA 232, [13]. 11 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 12 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578, 580. -- 3 of 14 -- 4 The Commissioner contends that the Tribunal has no jurisdiction to entertain the review and the proceeding should be dismissed as the 60 day time period expired on 29 January 2018. The learned Member accepted, as do we, that section 69 of the TA Act has been applied strictly and that if both payment has not been made and review proceedings have not been filed ‘within 60 days after notice is given to the taxpayer of the commissioner’s decision’ then the Tribunal has previously dismissed review applications for want of jurisdiction.13 The learned Member found that the Objection Decision was deemed to have been given on 1 December 2017 and so the time for payment and filing of the application to review ended on 30 January 2018, which North Lakes had done so within time and the Tribunal had jurisdiction. The Commissioner contends there are strong grounds to suggest that sections 148 and 149 of the TA Act were misconstrued and misapplied and that the issue is important for the future handling of review proceedings for all state taxation matters where the taxpayer does not reside or have its registered office in Queensland. Legislation In determining whether the learned Member erred in making the Decision, we have considered the legislation as it was at the time of the Decision. We note that there were some amendments to the legislative provisions in the intervening time between the Objection Decision14 and the Decision15 which were not material to this appeal. Section 68(1) of the TA Act provides that the Commissioner ‘must give written notice to the objector of the commissioner’s decision’ and section 68(2) sets out matters the notice must contain if the objection is allowed in part or disallowed. Section 69 of the TA Act sets out a taxpayer’s right to review as follows: (1) This section applies to a taxpayer if – (a) the taxpayer is dissatisfied with the commissioner’s decision on the taxpayer’s objection; and (b) … the taxpayer has paid the whole of the amount of the tax and late payment interest payable under the assessment to which the decision relates. (2) The taxpayer may, within 60 days after notice is given to the taxpayer of the commissioner’s decision on the objection – (a) … (b) apply, as provided under the QCAT Act, to QCAT for a review of the commissioner’s decision. (3) QCAT may not, under the QCAT Act, section 61(1)(a), extend the period under subsection (2) within which the taxpayer may apply to QCAT for the review. 13 North Lakes Pharmacies (Qld) Pty Ltd v Commissioner of State Revenue [2019] QCAT 289, [4]. 14 Dated 30 November 2017. 15 Dated 26 September 2019. -- 4 of 14 -- 5 Part 11 of the TA Act sets out various provisions relating to giving and lodging documents.16 Section 142 of the TA Act provides: This part applies if a tax law requires or permits a document to be given to a person, whether the expression ‘deliver’, ‘give’, ’lodge’, ‘notify’, ‘send’ or ‘serve’ or another expression having a similar meaning is used. The TA Act defines ‘tax law’ to mean ‘a revenue law or this Act’.17 Division 2 of the TA Act sets out provisions relating to documents given to the Commissioner.18 Section 143 of the TA Act limits the ways a document can be given to the Commissioner. It is prescriptive. Subject to section 143A, ‘a document is given to the commissioner only if’ it is given in one of four ways provided.19 Section 144 of the TA Act sets out when a ‘document is taken to be given’ to the Commissioner. Division 3 of the TA Act sets out provisions relating to documents given by the Commissioner.20 Section 148 of the TA Act provides various ways a document will be regarded as properly given by the Commissioner. It is not prescriptive, unlike section 143 of the TA Act. It, relevantly, provides as follows: (1) A document to be given under a tax law to a person by the commissioner is properly given if it is – (a ) … (b) … (c) … (d) sent by email to the person’s email address as given to the commissioner by the person; … Section 149 of the TA Act provides when a document is ‘taken to be given to a person’ by the Commissioner as follows: (1) A document is taken to be given by the commissioner to a person – (a) if it is sent by fax – the date the fax is sent; or (b) if it is left in a collection or exchange box – the date it is left in the box; or (c) if it is sent by email – the date the email is sent; or (d) … if it is given in a way prescribed under a regulation – the date prescribed under the regulation. 16 TA Act, ss 142–149. 17 Ibid, sch 2. 18 Ibid, ss 143–145. 19 Ibid, s 143(1). 20 Ibid, ss 146-149. -- 5 of 14 -- 6 Note – For the time of giving a document by post, see the Acts Interpretation Act 1954, section 39A(1)(b). (2) However, if under subsection (1), the document is given after 5 pm on a particular day, the document is taken to be given to the person on the following business day. Should leave be granted? We find that leave to appeal should be granted. We accept that, and it is conceded by North Lakes,21 the appeal arguably raises questions which are of general importance to reviews by the Tribunal of state taxation decisions where the taxpayer resides or has its registered office outside of Queensland and therefore a decision of the Appeal Tribunal would be to the public advantage. The main purpose of the TA Act ‘is to make general provisions about the administration and enforcement of revenue laws’.22 The TA Act also provides that ‘each revenue law must be read together with this Act as if they together formed a single Act’.23 As set out earlier, part 11 of the TA Act has wide application as it applies to tax laws using various terminology.24 It therefore follows that the appeal raises questions which have the potential for wide application in the administration and enforcement of Queensland’s revenue laws. For the reasons set out below we also accept that there are reasonable prospects of establishing error such that leave should be granted. Should the appeal be allowed? We find that the appeal should be allowed. The Commissioner contends that the learned Member erred in law and fact by finding that the application for review is within the jurisdiction of the Tribunal. In particular, the Commissioner contends that the learned Member made errors of fact in making findings as to the ordinary meaning of ‘given’ and ‘sent’ and errors of law as to the meaning and construction of those terms in the context of relevant sections. As noted earlier, where an appeal involves questions of mixed law and fact the appeal is to be decided by way of rehearing.25 A rehearing involves a new determination on the material before the Tribunal below rather than a correction of errors.26 We consider each of the grounds in turn. Ground A – Misconstruction of section 149 of the TA Act We find that an error has been demonstrated. The Commissioner sets out four sub-grounds. 21 North Lake’s submissions filed 28 January 2020, [12]. 22 TA Act, s 3(1). 23 Ibid, s 3(3). 24 Ibid, s 142. 25 QCAT Act, s 147. 26 Harrison & Anor v Meehan [2017] QCA 315. -- 6 of 14 -- 7 Ground A.i. Finding that the word ‘given’ in section 149(1) of the TA Act means when the document is ‘received’, when this is not consistent with sections 142, 148(1)(d) and the other words of section 149 of the TA Act We are satisfied that an error has been demonstrated to the extent that the learned Member did not clearly find that actual receipt was not required and the focus of the section is on actions by the Commissioner rather than the recipient. In our view, the learned Member’s finding ought to more clearly have stated that ‘taken to be given to a person’ in section 149 should be taken to mean when a document is received or deemed to be received by the person. The learned Member stated: Section 149 of the TA Act deals with when a document is taken to be given to a person. I take that to mean when the document is received by the person.27 The objective intention of the legislature is to be derived from the ordinary meaning of a provision viewed in its context.28 We accept that the relevant context includes other provisions in the TA Act and the relevant revenue law.29 In interpreting a provision, the interpretation that will best achieve the purpose of the Act is to be preferred.30 As stated earlier, the main purpose of the TA Act is ‘to make general provision about the administration and enforcement of revenue laws’.31 As has been noted, Part 11 of the TA Act deals with giving and lodging of documents. Division 2 (ss 143 – 145) deals with documents given to the Commissioner while Division 3 (ss 146 – 149) deals with documents given by the Commissioner. Section 148 of the TA Act relates to the way or the manner, in which, a document is to be ‘given to a person’ by the Commissioner. We accept that ‘given to a person’ is somewhat ambiguous and its meaning is required to be derived from the context. The Commissioner contends it should be viewed from the point of view of the person doing the giving. In this case, the context is that the section is focussed on actions by the Commissioner. The Explanatory Notes confirm our view as to the proper construction of the TA Act. It states the reason for the Bill was to bring greater consistency in the provisions dealing with administration of state tax laws.32 Section 148(1)(a) of the TA Act, as it was prior to recent amendments, which do not impact this appeal,33 permits a document to be ‘given to a person’ by delivering it to the person personally34 or to a body corporate by leaving it at the head office, registered office or principal office.35 In this context ‘given to a person’ is equivalent to being received by the person because the giving and receiving are simultaneous. Section 148 sets out various actions by the Commissioner, which are alternatives to 27 North Lakes Pharmacies (Qld) Pty Ltd v Commissioner of State Revenue [2019] QCAT 289, [7]. 28 X v Australian Prudential Regulation Authority (2007) 226 CLR 630. 29 TA Act, s 3(3), s 146(1). 30 Acts Interpretation Act 1954 (Qld), s 14A. 31 TA Act, s 3(1). 32 Explanatory Notes, Taxation Administration Bill 2001 (Qld), 1. 33 Amendments commencing 1 October 2020. 34 Acts Interpretation Act 1954 (Qld), s 39(1)(a). 35 Ibid, s 39(1)(b). -- 7 of 14 -- 8 personal delivery. These include that the document is properly given to a person if it is sent by email.36 The TA Act also provides when a document is ‘taken to be given’, which is particularly important in order to provide efficiency in administration of tax laws, where an alternative to personal delivery is the manner used. Section 144(1)(a) and section 144(1)(c) of the TA Act clearly provide that a document is taken to be given to the Commissioner when it is received. In our view, the balance of section 144 and all of section 149 of the TA Act are deeming provisions as to the date upon which the Commissioner or a person is to be regarded as having received the document even though they might not have in fact actually received the document. Whilst section 149 is not as clearly drafted, we are satisfied that section 149 sets out the date upon which a person is deemed to have received the document even though they might not have in fact received the document by that date. These include that the document is deemed to be received by a person on the date the email is sent.37 The deeming nature of the phrase ‘taken to be given’ is apparent from other provisions in Part 11 relating to giving documents to agents of taxpayers,38 members of partnerships39 and to an unincorporated body.40 In our view, the learned Member’s finding ought to more clearly have stated that ‘taken to be given to a person’ in section 149 should be taken to mean when a document is received or deemed to be received by the person. In our view, construing section 149(1) in this way is consistent with sections 142, 148(1)(d)41 and the other words of section 149. Ground A.ii. Not applying the ordinary meaning of the word ‘sent’ in section 149 (1)(c) of the TA Act We are satisfied that an error has been demonstrated. The Commissioner contends that the learned Member failed to consider the ordinary meaning of ‘sent’ and the effect of this word in the context. The Commissioner contends that the learned Member failed to give effect to the focus of the provision on the sending of the email as distinct from delivery or receipt as the sending of the email is the relevant fact and the time or date of receipt is irrelevant. We accept the word ‘sent’ must be construed having regard to its context. We also accept that, unlike section 39A(1)(b) of the Acts Interpretation Act 1954 (Qld) in relation to service by post, which provides that service is taken to be effected at the time at which the document would have been delivered in the ordinary course of post unless the contrary is proved, section 149(1)(c) of the TA Act does not provide that it is taken to be given on the date the email is sent unless the contrary is proved. The focus of section 149 is on actions by the Commissioner and not on actions by the recipient. 36 TA Act, s 148(d). 37 Ibid, s 149(1)(c). 38 Ibid, s 146(1). 39 Ibid, s 146(2). 40 Ibid, s 146(3). 41 As it is now referenced. -- 8 of 14 -- 9 For the reasons set out in respect of Ground A.i., upon a proper construction, section 149(1)(c) provides that a document is deemed to be received by a person on the date the email is sent, being an action by the Commissioner, subject to section 149(2). Ground A.iii. Not interpreting the word ‘sent’ in section 149(1)(c) of the TA Act consistently with section 23(1) of the Electronic Transactions (Queensland) Act 2001 (Qld) (‘ETQ Act’) We are not satisfied that an error has been demonstrated. The Commissioner contends that it is not necessary to have regard to the ETQ Act to determine the issue of the timing of the giving of the notice by the Commissioner to North Lakes. North Lakes drew the ETQ Act to the learned Member’s attention. He referred to sections 23 and 24 of the ETQ Act in his reasons without appearing to rely upon either of those provisions in reaching his decision.42 We are not satisfied that it was or is necessary to rely upon the ETQ Act. One of the objects of the ETQ is to provide a regulatory framework that enables business and the community to use electronic communications in their dealings with government.43 Section 23(1) of the ETQ Act relevantly provides: (1) Unless otherwise agreed between the originator and the addressee of an electronic communication, the time of dispatch of the electronic communication is— (a) the time when the electronic communication leaves an information system under the control of the originator or of the party who sent it on behalf of the originator; … Section 24 of the ETQ Act provides: (1) Unless otherwise agreed between the originator and the addressee of an electronic communication— (a) the time of receipt of the electronic communication is the time the electronic communication becomes capable of being retrieved by the addressee at an electronic address designated by the addressee; or (b) the time of receipt of the electronic communication at another electronic address of the addressee is the time when both— (i) the electronic communication has become capable of being retrieved by the addressee at that address; and (ii) the addressee has become aware that the electronic communication has been sent to that address. (2) For subsection (1), unless otherwise agreed between the originator and the addressee of the electronic communication, it is to be assumed that the electronic communication is capable of being retrieved by the addressee when it reaches the addressee’s electronic address. 42 North Lakes Pharmacies (Qld) Pty Ltd v Commissioner of State Revenue [2019] QCAT 289, [5], [6]. 43 ETQ Act, s 3(d). -- 9 of 14 -- 10 Section 25 of the ETQ Act provides: (1) Unless otherwise agreed between the originator and the addressee of an electronic communication— (a) the electronic communication is taken to have been dispatched at the place the originator has its place of business; and (b) the electronic communication is taken to have been received at the place the addressee has its place of business. (2) For the application of subsection (1) to an electronic communication— (a) a party’s place of business is assumed to be the location indicated by the party, unless another party demonstrates the party making the indication does not have a place of business at that location; and (b) if a party has not indicated a place of business and has only one place of business, it is to be assumed that place is the party’s place of business; and (c) if a party has not indicated a place of business and has more than one place of business, the place of business is that which has the closest relationship to the underlying transaction, having regard to the circumstances known to or contemplated by the parties at any time before or at the conclusion of the transaction; and (d) if a party has not indicated a place of business and has more than one place of business, but paragraph (c) does not apply—it is to be assumed the party’s principal place of business is the party’s only place of business; and (e) if a party is an individual and does not have a place of business—it is to be assumed the party’s place of business is the place of the party’s habitual residence. (3) A location is not a place of business merely because that is— (a) where equipment and technology supporting an information system used by a party are located; or (b) where the information system may be accessed by other parties. (4) The sole fact that a party makes use of a domain name or electronic mail address connected to a specific country does not create a presumption that its place of business is located in that country. Schedule 2 of the ETQ Act defines information system to mean ‘a system for generating, sending, receiving, storing or otherwise processing electronic communications’. We accept that the ETQ Act provides that the time of dispatch of the email is the time when the email leaves an information system in Queensland and the time of receipt is the time when the email is capable of being retrieved at the addressee’s place of business, in this case in Adelaide. Section 149(1) does not relate to a point in time as distinct from a period of time, being a day. -- 10 of 14 -- 11 For the reasons set out in respect of Ground A.i., upon a proper construction, section 149(1)(c) provides that a document is deemed to be received by a person on the date the email is sent, subject to section 149(2). Of itself the ETQ Act does not resolve the ultimate question before the learned Member or this Appeal Tribunal. The evidence is that the email was sent or dispatched at 4.58 pm Queensland time and received ‘one minute later’ by North Lakes at 5.29 pm Adelaide time.44 As North Lakes points out the very nature of time zones means that an action taken in Brisbane at 4.58 pm is capable of being both before 5.00 pm in that time zone and after 5.00 pm in a different time zone. The Commissioner points to section 4 of the Standard Time Act 1894 (Qld), noting that this provision was not drawn to the learned Member’s attention, which provides: Whenever any expression of time occurs in any Act … and whenever the doing or not doing anything at a certain time of day or night, or during a certain part of the day or the night, has an effect in law, such time shall, unless it is otherwise specifically stated, be held to be standard time throughout Queensland as declared by this Act. The learned Member did not refer to this provision in his reasons. In our view this omission is significant. The failure to consider and apply this provision is an error of law. North Lakes contends that: (a) the interpretation of section 149(2) of the TA Act contended for by the Commissioner would disadvantage non-Queensland based taxpayers by denying them the benefit of the entire 60 day period intended to be provided to apply for a review as provided in section 69 of the TA Act. (b) there is no basis to infer that the Parliament intended to deprive a non- Queensland based taxpayer of its rights. (c) section 149(1) of the TA Act, a deeming provision, creates a statutory fiction for a specific purpose, which cannot be extended to abridge the 60 day review window under section 69 of the TA Act. (d) the Standard Time Act 1894 (Qld) has no application because it would provide for a result inconsistent with the specific requirements of the TA Act. (e) the words ‘given’ and ‘notice’ used in section 69(2) and section 149(2) have far greater significance than the word ‘sent’ used in section 149(1)(c) and that if the Parliament had not intended to import the concept of the document coming to the knowledge of the recipient it would have used the word ‘serve’, which is typically a less stringent obligation. A taxpayer’s rights of review in section 69 must be construed in the context of other provisions of the TA Act. We accept that section 149(1) of the TA Act creates a statutory fiction. In our view, a clear purpose of creating the statutory fiction is to create certainty in the interpretation of tax law provisions such as section 69, which 44 The Commissioner’s submissions filed 10 December 2019, [46]. -- 11 of 14 -- 12 contains the concepts of ‘give’ and ‘notice’.45 We do not accept that a different result would necessarily arise if the word ‘serve’ had been used. As noted earlier in these reasons, Part 11 applies equally whether the word used in the tax law is ‘deliver’, ‘give’, ‘lodge’, ‘notify’, ‘send’, ‘serve’ or ‘another expression having a similar meaning is used’. The Parliament clearly intended Part 11 to have wide application to the interpretation of state tax laws. The concept of ‘a document given’ in section 149(2) must be construed consistently with section 149(1) as the preamble expressly refers back to it. A 60 day period within which to commence review is quite a generous period compared to many others, which often provide for a 28 day period.46 In our view, there is no basis to infer that the Parliament intended that section 4 of the Standard Time Act 1894 (Qld) ought not apply. The construction contended for by North Lakes would benefit some non-Queensland based taxpayers and disadvantage others depending upon the time zone of the recipient, which would be inconsistent with the objects of the TA Act. In our view, upon a proper construction, the reference to 5.00 pm in section 149(2) of the TA Act must be to Queensland time when the Commissioner’s action referred to in section 149(1) of the TA Act took place. There is nothing in sections 69, 148 or 149 of the TA Act which specifically states to the contrary such that section 4 of the Standard Time Act 1894 (Qld) ought not apply. This interpretation is also consistent with ‘the general rule of construction ... that State legislation applies only to, inter alia, things in and of the State’.47 This construction assists to facilitate certainty and efficiency in the administration and enforcement of the state’s revenue laws and avoids the significant uncertainty, which would be created by needing to determine the location of the recipient and have regard to the time at the recipient’s location. Ground A.iv. Interpreting section 149 without due regard to the context of Part 11 of the TA Act, section 69 and of the TA Act as a whole We are satisfied that an error has been demonstrated. We accept that Part 11 applies to the way and when ‘notice’ for the purpose of section 69 of the TA Act is to be ‘given’ and ‘taken to be given’.48 As stated earlier in these reasons, the provisions are to be construed having regard to the context. For the reasons set out in respect of Ground A.i., upon a proper construction, section 149(1)(c) relevantly provides that a document is deemed to be received by a person on the date the email is sent, being an action taken by the Commissioner, subject to section 149(2). Further, for the reasons set out above, upon a proper construction, the reference to 5.00 pm in section 149(2), is a reference to the time in Queensland when the Commissioner sends the email. 45 TA Act, s 142. 46 See, eg, QCAT Act, s 33(3). 47 Lanai Unit Holdings Pty Ltd v Mallesons Stephen Jacques (No 1) [2017] 2 Qd R 456, [39]; Acts Interpretation Act 1954 (Qld), s 35. 48 TA Act, s 142. -- 12 of 14 -- 13 Ground B – Misinterpreted or misapplied words of section 149(2) of the TA Act – Misinterpreted or misapplied the words ‘given after 5 pm on a particular day’ in section 149(2) of the TA Act on the basis that these words referred to after 5.00pm in the place where the document was received, rather than 5.00 pm in the place where the document was ‘given’ as defined, as far as relevant to this matter, in section 149 (1)(c) of the TA Act We are satisfied that this ground is made out. The learned Member erred in not taking into account section 4 of the Standard Time Act 1894 (Qld) in construing section 149. The learned Member stated: Section 149(2) talks about the time when a document is given. The word given in respect of s 149(2) should be given its ordinary meaning of received as it is used in the context of ‘given to the person’ … Clearly the purpose of s 149(2) is to ensure that a document which is given outside of normal office hours is taken to be given on the next day.49 Section 149(1) of the TA Act sets out the date upon which a person is deemed to have received the document, if it is given by fax, left in a collection or exchange box, sent by email or given in a way prescribed by regulation, even though they might not have in fact received the document by that date. The learned Member found that it did ‘not say anything about the time it was sent as being operative in any way, it is only the date which is noted’.50 Section 149(1) of the TA Act does not deal with the specific point in time at which a document is deemed to have been received by reference to the relevant date. The only reference to a particular point in time is the reference in section 149(2) of the TA Act to 5.00 pm. As found earlier in these reasons this provision must be construed having regard to section 4 of the Standard Time Act 1894 (Qld) and must be construed consistently with section 149(1). Ground C – Not applying sections 148 and 149 of the TA Act consistently with ETQ Act. Did not apply sections 148 and 149 of the TA Act consistently with sections 23(1)(a) and (2) and 25(1)(a) of the ETQ Act and the Standard Time Act 1894 (Qld), in the circumstances of the matter We are not satisfied that an error has been demonstrated as to the ETQ Act, for the reasons set out in respect of Ground A.iii. We are satisfied that an error has been demonstrated as the learned Member erred in not taking into account section 4 of the Standard Time Act 1894 (Qld) in construing section 149 for the reasons set out earlier. Ground D – Error in construing the purpose of section 149(2) of the TA Act. Construed the purpose of section 149(2), without due regard to the purpose of Part 11 and the Act as a whole We are not satisfied that an error has been demonstrated. 49 North Lakes Pharmacies (Qld) Pty Ltd v Commissioner of State Revenue [2019] QCAT 289, [7]. 50 Ibid. -- 13 of 14 -- 14 The learned Member found ‘clearly the purpose of s 149(2) is to ensure that a document which is given outside of normal office hours is taken to be given on the next day’.51 We accept that is the purpose of s 149(2) as did the Commissioner in the submissions filed 10 December 2019.52 Rehearing In deciding the appeal by way of rehearing, we have considered the proper construction of sections 69, 148 and 149 of the TA Act applying the current provisions.53 Whilst the sections have been amended since the Decision, the amendments do not materially alter the provisions for the purposes of this appeal. Apart from the ordinary meaning of terms in the TA Act there are no real factual matters in dispute. For the reasons set out we find as follows: (a) the Objection Decision is taken to have been given on 30 November 2017 before 5.00 pm Queensland time when the email was sent by the Commissioner; (b) the 60 day time period in section 69 of the TA Act commenced to run from 30 November 2017; (c) the payment of the assessment and the commencement of the review proceedings on 30 January 2018 was out of time. The Tribunal has no power to extend the time period within which North Lakes may apply for a review of the Commissioner’s decision.54 We find the Tribunal has no jurisdiction to determine the review. Where a proceeding is frivolous, vexatious or misconceived, lacking in substance or otherwise an abuse of process, the tribunal may dismiss the proceeding.55 Where the tribunal lacks jurisdiction to hear and determine matter, the proceeding lacks substance. We set aside the Decision and substitute our own decision that the Application to review a decision filed 30 January 2018 is dismissed.56 51 North Lakes Pharmacies (Qld) Pty Ltd v Commissioner of State Revenue [2019] QCAT 289, [7] . 52 The Commissioner’s submissions filed 10 December 2019, [64]. 53 Victorian Stevedoring & General Contracting Co Pty Ltd. v Dignan [1931] HCA 34. 54 TA Act, s 69(3). 55 QCAT Act, s 47. 56 Ibid, s 147. -- 14 of 14 --