Australian & Overseas Telecommunications Corporation, Re [1992] QSC 232

IN THE SUPREME COURT OF QUEENSLAND o.s. No. 468 of 1992 Before Mr. Justice Derrington CATCHWORDS: IN THE MATTER OF the Land Tax Act 1915 - and - IN THE MATTER OF theAustralian and Overseas Telecommunications Corporation JUDGMENT - DERRINGTON J. Delivered the 2nd day of July 1992. Land Tax. Exemption. Exemption lifted retrospectively from and including 1 July 1989. Whether applied to 1989/1990 tax year. Tax to be "charged on land as owned" at midnight on 30 June 1989. Structure of Act. Land Tax Levy. To be made "in and for" tax year. Validity if made after tax year. Effect of savingprovision when Act not complied with. Land Tax Act 1915-1989 ss. 8, 10, 11, 12, 12, 15, 16 17, 18, 19, 37, 58(5). Counsel: Mr. Dorney QC and Mr. F. Redmond for the Crown Mr. Lyons QC and Mr. McKenna for the Applicant. Solicitors: Crown Solicitor. Australian Government Solicitor. Hearing date: 15th June 1992. -- 1 of 22 -- . ) ) IN THE SUPREME COURT OF QUEENSLAND o.s. No. 468 of 1992 IN THE MATTER OF the Land Tax Act 1915 - and - IN THE MATTER OF theAustralian and Overseas Telecommunications Corporation JUDGMENT - DERRINGTON J. Delivered the 2nd day of July 1992. This is an application by Australian and Overseas Telecommunications Corporation ( "AOTC"), formerly Telecom, which at all relevant times was a Commonwealth public authority. As such it was not subject to State taxation before 1 July 1989; but by s. 59(1) of the Australian Telecommunications Corporation Act (Commonwealth) 1989, which came into force on 1 July 1989, it was provided that: "Telecom is subject to taxation under the laws of the Commonwealth and the States and Territories." Prior to the 1991 amendment of the Land Tax Act 1915, made retrospectively effective from 29 June 1989, it had been relevantly enacted ins. 13(1) of the principal Act that:- "The following lands shall be exempt from taxation under this Act, namely - (i) all land owned by the Commonwealth ofAustralia or the State or by a local or other public authority;" -- 2 of 22 -- 2 AOTC and its predecessor came within the description "other public authority" ·in that provision. The amendment of s. 13 ( 1) in 1991 substituted the following: "The following lands shall be exempt from taxation under this Act, namely - ( i) land owned by the Commonwealth, the State or a local or public authority unless the authority is subject to State taxation under an Act of the Commonwealth or a State;" Accordingly, because the Australian Telecommunications Corporation Act had rendered Telecom subject to taxation under () I State laws as from and including 1 July 1989, its lands have retrospectively lost their exemption from the commencement of ()that date. There is no dispute as to this This application is brought by AOTC for: 1. A declaration that, in respect of the financial year commencing 1 July 1989, the land in Queensland owned by the Australian and Overseas Telecommunications Corporation was exempt from taxation under s. 13(1)(i) of the Land Tax Act c=) 1915. 2. A declaration that no land tax in respect of the financial years commencing 1 July 1989 and 1 July 1990 has been c=) validly levied upon the Australian and Overseas Telecommunications Corporation in accordance with s. 10(1) of the Land Tax Act 1915. 3. A declaration that the Australian and Overseas Telecommunications Corporation is not liable to taxation under the land Tax Act 1915 in respect of the financial years commencing 1 July 1989 and 1 July 1990. -- 3 of 22 -- .. \I ) .,) 3 The Commissioner of Land Tax is the respondent. There are only three issues as to which AOTC makes the following submissions which are disputed by the Commissioner: In respect of the financial year commencing 1 July 1989, AOTC contends that as land tax for a tax year is charged on land of a taxpayer as owned at midnight on the preceding 30 June, in this case 30 June 1989, and that as its lands were exempt from taxation until 1 July 1989, those lands were exempt from tax for that year. As the Act requires that land tax in respect of a tax year be levied "in and for" that year, AOTC claims that the tax cannot be levied after the termination of that year; and that as no tax was in fact levied in either of the years 1989/1990 and 1990/1991, it cannot be levied afterwards for those years. Section 58(5) of the Act, which saves the validity of any procedure under the Act which does not comply with its provisions, is said by AOTC to be restricted in its meaning so as to have no application to either of the above issues. The first issue turns on the provision in s. 12 that tax shall be charged on land as owned at midnight on 30 June immediately preceding the tax year for which the tax is to be charged. As AOTC's exemption still had effect at midnight on 30 June 1989, the question is whether that is the relevant time for the operation of the exemption when tax is assessed. In the following review of the relevant sections of the Act it is important to note that the disputed tax is charged only in -- 4 of 22 -- 4 the year commencing 1 July 1989 for which it was levied. It was not levied or charged on the land nor payable by the taxpayer at or for the midnight before. Section 8(1) reads: "Subject to this Act, land tax shall be levied and paid upon the unimproved value of all lands within Queensland which are owner by tax payers, and which are not exempt from taxation under this Act." Section 10(1) says: "Land tax shall be levied in and for the financial year beginning on the first day of July, One thousand nine and fifteen, and each financial year thereafter." This shows clearly that the tax was levied on the land no earlier than 1 July 1989. Section 11(1) then says: "Land tax shall be payable by every owner of land upon the taxable value of all land owned by him, and not exempt from taxation under this Act." Complementary to these is s. 13(1) which is quoted above. It deals with exemptions without any reference to time, so the relevant time for their application must be found outside the section. In s. 1 3 generally, where all the grounds for exemption are contained, there are some terms which specifically refer to C) C) 0 the position as at midnight on the eve of the relevant tax year. 0 These turn on the existence of a status or a beneficial interest "as at" that time, but they do not say that any exemption ·operates by reference to that datum point. While they make it relevant to the determination of the status which supports the exemption, they too are silent as to the time for the operation of the exemption. Significantly, if that time were intended to be relevant to the operation of the exemption in those cases or in the present -- 5 of 22 -- 5 one, it would have been simple to say so. It will be seen that this is the same system as that adopted in s. 12. It is desirable at this point to recapitulate this analysis in terms of a total picture. The sections so far discussed are meant to be read together and as such they provide for the levying of tax upon lands (which are not exempt from tax) _during the year for which the taxation is imposed and for the liability, in that year, of the taxpayer for such tax. The same association with the year for which the tax is imposed might be expected in respect of the element of charging the tax on the land and its subsidiary feature of the date as at which the land should be owned in order to identify it for the purpose of making the charge. These two features might also be expected to coincide, but that is not necessary. As it turns out, s. 12 specially provides that: "Date of Ownership for Purposes of Tax. Land tax shall be charged on land as owned at midnight on the thirtieth day of June immediately preceding the financial year in and for which the tax is levied: ... 11 Once it is understood that this arrangement is still totally \ ~-~ consistent with the general scheme of the Act. It does not deal with the imposition of charges, nor with the granting of exemptions or the imposition of liability, but only with fixing the time of ownership for the purpose of making the charge, whenever it is made. Consequently exemptions, which are relevant only to the making of the charge when it is made, are irrelevant to s. 12 and that is why exemption is not mentioned there as compared with ss. 8, 10 and 11 which plainly speak of it in terms of the tax year. -- 6 of 22 -- 6 The time when the charge is made is nowhere specified because it is unnecessary to ,do so; but there is no reason why it should not be, at the earliest, the first moment of the taxation year in and for which it is levied and payable. The only effect of the section is that when it is made, and to the extent that it can be made, it is charged on the lands that were owned as at the stipulated time. It is because of this differential that the section uses the expression "as owned": cf. s. 15 which says that the tax shall be charged, levied, collected, paid or enforced upon assessments made under the Act. By way of example, the same result would obtain if the Act were also to provide that the charge should be based upon the value of the land as valued at the same midnight. That such a value were prescribed as the basis of the charge would not imply that the charge must be made at that time. The argument of AOTC that the exemption of its land from tax C) at midnight on 30 June, 1989, applies to the operation of s. 12 c=) misses this point. There is nothing in the Act, either express or implied, which suggests that the element of exemption is to be considered as at that moment. The reason is understandable. Although the legislature chose a moment in time artificially outside the relevant taxation year in which to identify the lands upon which the tax is to be charged in and for the taxation year, that time was not suitable to the application of exemptions which are more logically associated with the charging and imposition of the tax and the liability of the taxpayer; and the appropriate time for those is in the tax year itself. 0 -- 7 of 22 -- 7 In summary the elements supporting the exigibility of tax in and for a tax year are: the charge, which is made in the tax year; the non-exemption of the land in the tax year; the ownership of the land at midnight on the eve of "the tax year; the value of the land at the time of assessment in the tax year. (In the predecessor to this statute, a time on the eve of the tax year was expressly prescribed for this element.) the rate set by the statute for the tax year; the lodgment of the return in the tax year in respect of land valued above a minimum limit at the time for lodgment; the assessment of the amount on which the tax for the tax year shall be levied; the levy of the tax in the tax year. When an assessment of tax is made in and for a tax year , in the one exercise it is directed to land which is not exempt for that period and which was owned at midnight on the prior 30 June. This double qualification based upon two disparate criteria is neither contradictory nor difficult. The essential feature is that the charge, irrespectively of how it is assessed, is made at the same time as the operation of the exemption. This accords with the underlying assumption in the following passage from Hollingworth v. Commissioner of Land Tax (1968) 118 C.L.R. 45, 48-49 describing the process: "Rates of land tax in respect of 'the taxable value of all the land owned by any person' at midnight on 31st October in each of the relevant years are fixed by s. 3(1) of the Land Tax Act, 1956 (N.S.W.), which -- 8 of 22 -- 8 provides that the tax shall be 'charged, levied, collected and paid' under the provisions of the Management Act, and in the manner therein prescribed, at the respective rates set out in a schedule. In the context it seems clear that the word 'charged' as used ins. 8 of the Land Tax Management Act and s. 3(1) of the Land Tax Act refers only to the creation in the prescribed manner of the personal liability of a taxpayer as a person ' chargeable' , as s. 3 of the Management Act says, with land tax. A manner of charging such a person with land tax is prescribed by the Management Act, mainly in Pt IV; and a manner of its collection and payment is prescribed mainly in Pt VI. The provisions which prescribe the manner of charging a taxpayer with the tax with which he is chargeable begin with s. 12(1) which requires a person to furnish to the Commissioner an annual return of all land owned by him on the last preceding 31st October 'for the purposes of the assessment and levy of land tax' for the period of twelve months commencing on 1st November in each year. By s. 12(2) the Commissioner is empowered to require the furnishing of a further return, and by s. 14 he is given the duty of causing to be made from the returns and any other information in his possession, an assessment of 'the taxable value of the land owned by any taxpayer' and of 'the land tax payable thereon'. The Commissioner is to cause notice in writing of the assessment to be served on the taxpayer (s. 19), and the tax is due and payable thirty days after service of the notice of assessment (s. 39). It is only then that the tax is deemed to be a debt due to Her Majesty and is recoverable by the Commissioner (s. ~2). In none of these provisions is there any express indication that the charge is to be considered as so spread over the taxpayer's non-exempt lands that upon a disposition of a part of them that part continues liable in the hands of the purchaser or holder for the payment of a corresponding proportion only of the taxpayer's total land tax. But neither is that notion expressly excluded, and therefore it is necessary to search the less prominent provisions of the Act for further indications of intention." (The problem mentioned at the end of this citation is not relevant here but it shows that some of the inherent difficulties of the Act, such as a change of status of the land as to exemption during a tax year, is not unique and should not be approached as though difficulty of application of a construction means that the construction must be wrong.) . ' ! Q, 0 () -------------- ---- ----- -- 9 of 22 -- 9 The validity of the above analysis is demonstrated in the following circumstances. If it a taxpayer were to own land which is not exempt as at midnight on 30 June but becomes exempt as at the first moment of and for the whole of the following tax year, it would be contrary to the Act for tax to be charged on it for the year for which it was exempt just because of the system adopted by s. 12 for its own purposes. Such a result would conflict with the combined effect of ss. 8 and 10 which together ) say that tax shall be paid in and for the relevant year on land owned by the taxpayer which is not exempt: cf. The Trustees Executors & Agency Co. Ltd. v. Commissioner of Land Tax (1915) 20 C.L.R. 21, 38.8, which is further discussed below. It is argued by AOTC that the prescription of different times for these two features would lead to inconvenient results. As it has been shown, this is not so. The perceived difficulties largely stern from a failure to understand that the actual ) charging of tax takes place at the same time as exemptions are determined; but even if it were a problem it is no more inconvenient than the alternative system suggested by AOTC. . ) ' . There may be some difficulty arising from the absence of any specific prescription as to the time at which the criteria of exemption are to be judged when the status of land as to exemption changes during a tax year; but the adoption of the date for determining ownership for the purposes of the charge would not solve all these problems to any greater extent than the adoption of the first day of the tax year or the prescribed date for the lodgment of returns, and it has no greater claim to adoption. -- 10 of 22 -- 10 Accordingly, the time relevant to the determination of exemption in this case does not include midnight of 30 June, 1989. The relevant lands were therefore not exempt from tax for the 1989/1990 tax year merely because they were exempt from tax as at midnight on 30 June 1989. The second question depends upon the proposition, not conceded, that the tax was not levied in the 1989/1990 and 1990/1991 tax years as required by s. 10(1) which says that the tax shall be levied "in and for" each tax year. This issue is Qmade more difficult because of the undisciplined use of the word "levy" and its derivatives in the Act. The ordinary meaning of the term is to take all necessary steps to enforce payment as under the particular circumstances would be reasonable and proper; R. v. Southhampton 30 L.J.Q.B. 244; Muirhead v. Rennick 27 S.L.R. 984. However, its particular meaning in the present case is controlled by its usage in the Act generally. The argument of AOTC is that it includes at least the making and service of an assessment upon the taxpayer under s. 15 so that the tax thereupon becomes payable under ss. 10(2) and 32. The latter provides that the tax shall be due and payable upon such date as the Commissioner notifies to the taxpayer in the notice of assessment served as prescribed. The Commissioner argues that the provisions of the Act themselves automatically perform the task of levying the tax. The levying, he says, requires no action on his part to set either the rate or the amount of the tax because the rate is set by the Act and the valuation to which the rate is applied is an objective fact. Therefore, he argues, there was, by the operation of the Act () 0 0 -- 11 of 22 -- 1 1 itself, an automatic levying of the tax in the relevant financial years as the Act required. Of course, if that is·what is meant it is surprising that any requirement of a levy in the tax year was expressed in s. 10(1). Moreover it is the Commissioner's task in each assessment to determine the proper amount of value of the subject lands on which the rate is to be applied and although this may be an objective fact based on valuation, the task of valuation demands some personal judgment as well. It is true that it is not like the system of local authority rating where the Council exercises a discretion in setting the rate. Nevertheless there are some similarities in principle, particularly in respect of the Commissioner's duty to serve a notice in order to make the tax payable, and the result still depends upon the meaning of "levy" as used in the relevant text. Consequently that must be the central issue. For this purpose it is convenient to recollect briefly the various provisions of ,~) the Act in some logical order with a focus on this question. Section 8 provides that subject to the Act, land tax shall be levied and paid upon the unimproved value of all lands owned I \ . ./ by taxpayers and not exempt from taxation. Section 10(1), which is the most important one for these purposes, says simply that land tax shall be levied in and for each financial year, and s. 11 says that the tax shall be payable by every owner upon the taxable value of all lands owned and not exempt. "Land tax" is defined in s. 3 as the land tax imposed as such and assessed under the Act. So far the position is fairly equivocal. Then there are less direct references which do not do much to advance the process of construction. In ss. 11, 11A, 11AA, -- 12 of 22 -- 12 11B, 11C, 12, 12A, 13 and 26B, there are frequent references to "the financial year in and for which the land tax is. levied" or "would be levied", and to "any year in respect of which land tax is leviable". Section 11B( 1) however refers only to "the imposition, assessment or recovery of land tax"; and s. 11 c refers to "the amount of land tax payable in respect of land owned by ... " Sections 11 D ( 2) and 11 E ( 2) speak of "the purpose of levying land tax". As it has been shown, s. 12 is directed to a different () ,. feature of the process, but its reference to charging the tax on land as owned at a certain time may suggests that charging is ()part of the process of levying. However, that does not advance the matter very far either. Section 15 carries some interesting implications. It says that tax "shall be charged, levied, collected, paid and enforced upon assessment made under the Act"; and by way of support, s. 16 speaks of "the purposes of assessment and levy of land tax" 0 in respect of the st~tutory requirement for the furnishing of returns. These references to levying upon assessment seem to exclude any automatic assessment by the operation of the Act. 0 Cognate with these is s. 18(1) which requires that "the Commissioner shall cause assessment to be made for the purpose of ascertaining the amount upon which land tax shall be levied"; and sub-s. 2 authorises him to "refrain from levying an amount less than $20.00 of land tax payable for a financial year by a taxpayer". This also anticipates the making of a levy after and depending on an assessment. -- 13 of 22 -- 13 Where no return is lodged, the Commissioner may, under s. 19, make an assessment of the amount on which "land tax ought to be levied", and the taxpayer is liable for tax on that amount. It is argued for AOTC that this provision is specially introduced to replace the levy if, because of a taxpayer's failure to lodge a return, the Commissioner does not learn of the exigibility of tax within the financial year and fails to levy the tax by assessment and notice. This is by way of answer to the 'j proposition that it would be absurd to cons true s . 1 0 as requiring a levy within a tax year because it would mean that a taxpayer who fraudulently refrained from lodging a return, or lodged a false one, would escape tax if his action caused the Commissioner to omit to levy the tax in that year. Whatever the resolution of this may be, the section seems to imply that the levy, within the meaning of the Act, depends upon the Commissioner's assessment pursuant to the lodgment of a return ~ and is not effected automatically by the Act itself. No other reference to levying appears elsewhere in the Act. It deals with assessment, collection and payment of tax and liability for it, but there is nothing which would assist in the present exercise. For his thesis the Commissioner relies on the remarks of Isaacs J. in the Trustees Executors and Agency eo. Ltd. v. The Commissioner of Land Tax (1912) 20 C.L.R. 21, 38 that: "In one sense the land tax is a liability as from 1st July in each year (Land Tax Act, sec. 5). It is charged on land as owned at noon on previous day(Assessment Act, sec. 12). It is due and payable onsuch date as the Governor-General appoints by noticein the Gazette (ib., sec. 49); and additional tax is the penalty for not paying the tax within thirty days after it has become due, subject to certain powers of -- 14 of 22 -- 14 remission. Therefore it is true that 'land tax' becomes a debt on the day so appointed whenever that may be." · He also relies upon the judgment of the court in Tooth and Co. Ltd. v. Newcastle Developments Ltd. (1966) 116 C.L.R. 167 where, speaking of a lessee's liability to contribute to the lessor's land tax under a provision of the lease, it is said at 170: "Moreover (the tax) is so charged and imposed on the land as owned at midnight on 31st October immediately preceding the year for which it is levied and neither () the charge nor the imposition waits upon the issue of 1 an assessment pursuant to s. 39. 'Assessment' in the context of the Act means no more than the ascertainment of the extent of a previously existing liability and the statutory provision ( s. 39) that C) land tax for each year shall be due and payable thirty ·.. days after service of the notice of assessment does not mean that the liability is postponed, until this has been done (cf. Church of England Property Trust, Diocese of Sydney v. Metropolitan Mutual Permanent Building and Investment Association Ltd ( 1932) 47 C.L.R. 369. These observations are sufficient to dispose of the objection that the notice of assessment had not, at the commencement of the action, been given in respect of the tax for the second year." This is consistent with Church of England Property Trust, (~ Diocese of Sydney v. Metropolitan Mutual Permanent Building and Investment Association Ltd. (1932) 47 C.L.R 369 which, speaking of rates levied on property in Sydney said at 374-375: "The tenant's contention that the covenant does not cover rates for the year beginning 1st July 1931 rests upon the circumstances that until a rate notice is served no liability to pay the rate is imposed upon the owner or occupier or any other person, and no charge affects the land (Metropolitan Water, Sewerage, and Drainage Act 1924-1930, sec. 100; Fourth Schedule, clauses 5, 18, 31(1); sec. 101(5). On the other hand, the Schedule also contains these provisions: '2. Rates shall be levied annually by resolution of the Board, a copy of which resolution shall be published in the Gazette. The production of the Gazette, or the part thereof containing the resolution, shall be evidence of the due levying of a rate. 3. Rates shall be levied in the month of May in each year for the twelve () -·---·-- -·---·- ~~~~~~~ -- 15 of 22 -- 15 months commencing on the first day of July then next. 4. Rates shall be payable annually in advance on the first day of July, or may in a particular·case with the approval of the Board be paid by instalments.' Thus, when the resolution of the Board appears in the Gazette the rate is 'levied' and the Board becomes entitled in respect to each parcel of land included in the rate to receive the sum of money apportioned to it. These sums are receivable on 1st July, and are applicable as a subvention to the Board's funds for the ensuing year. This does not mean that an immediate remedy then exists against the land or any person, but that, the land being rateable, a sum certain is apportioned to it which the Board is entitled to reduce into possession as from 1st July. If it is not voluntarily paid, the Board cannot enforce payment unless notice is served. But the notice operates to create a personal liability in the owner or occupier served and to impose a charge upon the land in respect of a rate already 'levied' and already 'payable'." By analogy here, the Commissioner says, the setting of the rate of tax by the Act constitutes the levying of it so that for the relevant years it occurred automatically at the commencement of each of those years, and did not require any action by the Commissioner which could have been exercised too late, as AOTC claims. However, the structure of the legislation in the cases cited was different from that here and the issue in those cases related more to the liability of the taxpayer than to the question of levy. More particularly they did not have the same references to "levy" and its derivatives as in this Act, where it is strongly implied that, assuming the word had a consistent meaning throughout, the levy was to take place after an assessment and by the service of a notice, just as with the levy of local authority rates: cf. Dellar v. The Council of the Town of Hervey Bay [1987] 2 Qd.R. 23, 26. As the Commissioner did not make an assessment or do anything else that could amount to a levy during the two tax years in issue, although he has always -- 16 of 22 -- 16 ' complied with the Act at the time, there has been no levy in the relevant tax years of the tax now made payable, as the Act requires. This paradox is of course produced by the retrospectivity of the amending legislation. Even if the Commissioner's argument were correct that the Act itself levied the tax, that would not answer the problem. The levy would not have been made in the relevant financial year as required by s. 1 0 ( 1 ) because the retrospecti vi ty of the legislation went only to the removal of the exemption of the ()\ I lands from taxation, and this occurred only after the relevant tax years had expired. Consequently, because of the then () existing exemption, there would have been no actual levy during those years either by the existing legislation or by the effect of the amendment: cf. Birt & Co. Pty. Ltd. v. Leichhardt Municipal Council 18 L.G.R. 78, 85.9. Accordingly, whichever way it is regarded, the levy was not made in the respective tax years, as the Act required. (_) This being established, AOTC claims that it was too late to levy the tax after those times. In support of this it cites Blue Mountains Shire Council v. Perpetual Trustees Coy Ltd. 12 L.G.R. (~ 93. This authority is a District Court decision relating to significantly different statutory provisions concerning the levying of rates, including very specific prescriptions as to the times in which steps were to be taken, and the reasons for its conclusion are not adequately explained. However, for the purpose of discussion its general proposition might be accepted insofar as it applies to rating cases. -- 17 of 22 -- 17 Quite apart from the differences of this Act from rating legislation, there is here an important remedial provision in s. 58(5) preserving, as it might be expected, the exigibility of taxation in the case of some technical defect in the process. It reads: "(5). The validity of any procedure under this Act, or of any assessment or any register or book or any document purporting to be made under this Act or to besigned by the Commissioner, shall not be prejudiced or affected by reason of any irregularity or informality therein, or of the fact that any of the provisions ofthis Act have not been complied with. The omission to give any notice of assessment shall not invalidate the assessment." Its operation in this statute must be read, not separately from but with, other relevant provisions, and in the context of its scheme, and it is in this respect that the difference between this Act and rating statutes has its effect. Under the latter the levying of rates is left entirely at the discretion of the Council. In the present case, even if the levy is produced by his action, the Commissioner is required by the Act to levy tax in and for each year in accordance with the criteria laid down and, with irrelevant express exceptions, he has no discretion to exercise. By his recent assessments and notices he is now complying with his duty even though one "of the provisions of the Act (has) not been complied with", namely, that these acts be done in the respective tax years: cf. Attorney-General Ex parte The Convent of Mercy Incorporated v. The Corporation of the City of Adelaide (1933) S.A.S.R. 183. This distinction is consistent with the principle in the rating cases that saves a levy on a ratepayer where the fixing of the rate is made in the year but where rate notices are not -- 18 of 22 -- 18 given within that time: cf. Randwick Municipal Council v. L & M Constructiona'l Engineers Pty. Ltd. 11 L.G.R.A. 31; Birt & Co. Pty. Ltd. v. Leichhardt Municipal Council (supra); Yeerongpilly Divisional Board v. Newman-Wilson (1892) 4 Q.L.J. 125. The effect of s. 58(5) of the present Act, read with s. 10(1), is that it is not necessary for the validity of a levy that it be made within the tax year. It is not the correct approach to examine first ifs. 10(1) has been complied with, I and, if not, hold that the levy is invalid unless it comes within () 1 s. 58(5). The correct way is to read s. 10(1) in conjunction with s. 58(5) and with the scheme of the Act that imposes the duty on the Commissioner to make the levy without allowing him any significant discretion. If it is so considered, s. 10(1) should not be so construed that any failure to levy in the year as directed abrogates the Commissioner's duty to conform with the Act's other directions, or invalidates his performance of it when it is done. It is this scheme of the Act that imposes a duty in respect of the collection of the tax that means that any failure to perform some part of the duty is no more than a failure to perform a duty and does not affect the validity of the levy when (~ it is made nor does it affect the taxpayer's liability to pay the tax in accordance with the Act. Quite apart from that, assuming that the failure to make the levies was an operative defect that except for s. 58(5) would invalidate any further attempts to do so, the arguments of AOTC still face insuperable problems. It will be convenient to discuss them upon that assumption. It is conceded by AOTC that, read literally, s. 58{5) would cure any such failure. However, -- 19 of 22 -- 19 it argues that this construction would make the appeal provisions contained in Part V of the Act meaningless, and would exclude judicial review; and so it must be read down: Anisminic Ltd. v. Foreign Compensation Commission (1969) 2 A.C. 147, 170, 184, 199. Assuming further without deciding that there is room for the operation of this principle here, it would not have the effect of causing the section to be read down so as to exclude its application to a defect such as is found in this case. It is of such a nature that would still attract a remedial provision of this kind. Nor is this of the kind of issue to which judicial review is directed, if the saving provision is effective. It is not correct to read down the effect of such a provision upon the argument that it defeats judicial review, for that is the purpose of the provision in curing any defects. There is then no occasion for judicial review because, by virtue of the provision, there is no non-compliance with the Act. Alternatively, it is argued, the reference in the subsection to non-compliance with any of the provisions of the Act should be read ejusdem generis with "irregularity or informality": Ouarzi v. Quarzi (1980) A.C. 744, 807-808. However, there is no expression in it to which this rule of construction could apply. The expressions used are distinct and apply to different circumstances and there is no general expression such as "or any other defect" to which the rule can apply. Even if the reference in s. 58(5) to non-compliance were to be read down to apply only to procedural requirements as distinct from those going to power, it would still be effective in this -- 20 of 22 -- 20 case for this defect is of the former kind: cf. George v. Federal Commissioner of Taxation (1952) 86 C.L.R. 183, 206-207. Failure· to levy tax within the year does not necessarily go to the power to levy it: McAndrew v. Federal Commissioner of Taxation (1956) 98 C.L.R. 263 is not a suitably analogous authority because in that case there was a specific provision in the legislation forbidding the amendment of the assessment that was made. In the present case the levying of the tax out of time would seem to be a procedure under the Act in respect of which a "provision of the Act has not been complied with": cf. Farleigh v. The Commissioner of Taxation (1902) 2 S.R. (N.S.W.) 85. It is not difficult to understand that this saving provision should sustain the validity of a levy made in accordance with the statutory command, even if it not be strictly made within the relevant tax year as the command requires. If, for example, because of some clerical error on the part of the Commissioner, there were a failure to make an assessment and to give notice so as to levy the tax on a taxpayer in a particular year, it is hardly likely that the legislature intended that the taxpayer should escape the tax for which the legislation says he is to be liable. The circumstances of the present case would provide as equally good reason for the existence and application of such a remedy. Accordingly, while revenue statutes should be construed strictly (Walsh v. Commissioner of Taxes (1983) 13 A.T.R. 861) and without reference to intendment or the like (Commissioner of Taxes v. Mullins (1981) Qd. R. 310), the purposive approach of AOTC's argument would not avail it, and the saving effect of s. (~ . ..J' .. .I -- 21 of 22 -- 21 58(5) would operate fully in accordance with its ordinary meaning to preserve the validity of the assessments. It follow that whichever line of construction is followed, the assessments do not lose their validity because they were not made in their respective years. As there is no proper foundation to support any of the declarations sought, the application is dismissed with costs. -- 22 of 22 --