Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Lo v Chief Commissioner of State Revenue [2013] NSWCA 180
• Hearing dates: 18 April 2013
• Decision date: 18 June 2013
• Before: Beazley P at [1]; Basten JA at [6]; Macfarlan JA at [24]

Decision

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: TAXES AND DUTIES - land tax - exemptions - principal place of residence - s 10(1)(r) Land Tax Management Act 1956 - decision of Commissioner not to grant exemption reviewed by Administrative Decisions Tribunal - whether ADT treated limited physical presence at the property as determinative factor - whether ADT failed to take into account relevant considerations; APPEAL AND ADMINISTRATIVE LAW - appeal on a question of law from Administrative Decisions Tribunal - whether ADT failed to take into account relevant considerations - whether statute mandated that they be taken into account - analogy to approach in judicial review proceedings - consideration of concept of "taking into account" relevant factors - consideration of Minister for Immigration and Citizenship v Li [2013] HCA 18
• Legislation Cited: Administrative Decisions Tribunal Act 1997; Land Tax Management Act 1956
• Cases Cited: Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353; B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187; 74 NSWLR 481; Chief Commissioner of State Revenue v Ferrington (GD) [2004] NSWADTAP 41; Chief Commissioner of Tax Revenue v Mesiti [2003] NSWADTAP 57; Kruger v The Commonwealth [1997] HCA 27; 190 CLR 1; Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340; 141 FCR 346; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24; Minister for Immigration and Citizenship v Li [2013] HCA 18; 87 ALJR 618; Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611; Minister for Immigration and Citizenship v Xiujuan Li [2013] HCA 18; 87 ALRJ 618; Minister for Immigration and Citizenship v Xiujuan Li [2012] FCAFC 74; 202 FCR 387; Osland v Secretary Department of Justice (No 2) [2010] HCA 24; 241 CLR 320; Project Blue Sky v Australian Broadcasting Authority [1988] HCA 28; 194 CLR 355; Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; 207 CLR 72
• Category: Principal judgment
• Parties: Patrick Pak Kit Lo (Appellant); Chief Commissioner of State Revenue (Respondent)
• Representation: Counsel: I Mescher (Appellant); R Hamilton SC/A Gerard (Respondent); Solicitors: Peter M Lau & Co Solicitors; Crown Solicitor's Office
• File Number(s): CA 2012/16264

Decision under appeal

• Date of Decision: 2012-03-19 00:00:00
• Before: M Chesterman, Deputy President; S Frost, Judicial Member; J Schwager, Non-Judicial Member
• File Number(s): 119049

Headnote

[This Headnote is not to be read as part of the judgment]

The appellant was assessed under the Land Tax Management Act 1956 (the "Act") as liable for land tax for the tax years 2005-9 in respect of a residential property in Mosman that he owned at the relevant times for assessment. The respondent rejected the appellant's claim that the property was his principal place of residence and therefore exempt from land tax under s 10(1)(r). During the relevant periods, the appellant worked full-time in Hong Kong, where he lived with his wife in rental accommodation paid for by his employer, returning to Australia for approximately two weeks each year. The subject property was not tenanted in these years.

The appellant contended that the Administrative Decisions Tribunal ("the ADT"), in reviewing the decision of the respondent, erred in treating the appellant's limited physical presence at the property as determinative and in failing to take relevant considerations into account.

Held: (1) (dismissing the appeal) (per Macfarlan JA; Beazley P and Basten JA agreeing) The ADT did not treat the appellant's limited presence on the property as conclusive. It was permissible for the ADT to treat that factor as of considerable significance ([1], [6], [39]).

(2) (per Macfarlan JA; Beazley P and Basten JA agreeing) The omission of a decision maker acting under a statute to take into account a relevant factor only vitiates the decision if the statute, expressly or impliedly, mandates that that factor must be taken into account and indicates that failure to do so is intended to invalidate the decision. The Act does not expressly require the decision maker to take into account any of the matters upon which the appellant relies. Nor, except in relation to the question of by whom, if anybody, the property was used or occupied, is there anything in the subject matter, scope and purpose of the Act impliedly requiring that to occur. The ADT did here have regard to that question ([1], [6], [50]-[51]).

Consideration by Beazley P of the relative importance of the various factors relied upon by the appellant ([2]-[5]).

Consideration by Basten JA (at [8]-[19]) of the concepts of "relevant considerations" and "taking into account", and of the High Court decision in Minister for Immigration and Citizenship v Xiujuan Li [2013] HCA 18; 87 ALJR 618.

Judgment

1 BEAZLEY P: I have had the opportunity of reading in draft the reasons of Macfarlan JA and the additional reasons of Basten JA. I agree with the reasons of each of their Honours and the orders proposed by Macfarlan JA. The only matter upon which I would add a comment is in respect of the second ground of appeal and the question of relevant considerations.

2 The matters which the appellant contended were relevant and had not been taken into account involved varying degrees of connection with Australia in general and the subject property in particular. For example, the fact that the appellant was brought up and attended school in Australia and had his wedding ceremony in Australia indicated a degree of connection to Australia. The fact that the appellant's Australian HSBC bank accounts were sent to the subject property and the fact that the property was not leased indicated a degree of connection with the property. The same may be said of the fact that the appellant's wife lived in the property for five months following the birth of their son.

3 The factors reflecting a connection with the property, were, in my opinion, relevant considerations: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24; Minister for Immigration and Citizenship v Li [2013] HCA 18; 87 ALJR 618.

4 However, having regard to the evidence upon which the Tribunal principally and quite properly relied, namely, the periods of time spent at the property over a ten year period, these factors were not of such importance or weight that a failure to consider them or to take them into account deprived the appellant of the possibility of a successful outcome: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd at 40 per Mason J; Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340; 141 FCR 346 at [64] per Sackville J (as his Honour then was).

5 The other matters, such as having been brought up in and having attended school in Australia, whilst providing background information, were not, in this case, of such significance that a decision maker was bound to take them into account.

6 BASTEN JA: This appeal, limited to a question of law, comes from the Appeal Panel of the Administrative Decisions Tribunal. In the Tribunal, Mr Lo sought to challenge the decision of the Chief Commissioner that he was liable for land tax on a residential property in Mosman. He relied upon the exemption for a "principal place of residence". For the reasons given by Macfarlan JA, and for those which follow, the appeal should be dismissed with costs.

7 During the relevant land tax years, the appellant spent, on average, 17 days at his property in Mosman; the rest of the time he and his family lived in Hong Kong. (The actual figures are set out by Macfarlan JA at [30] below.) The primary error identified by counsel for the appellant lay "in treating as conclusive or determinative the periods of time [he was] physically present at Mosman and Hong Kong": Tcpt, 18/04/13, p 2(3). He also asserted that a series of other factual considerations, which were "relevant considerations", were not taken into account.

8 These grounds are, in practical terms, interrelated. The periods of physical presence were undoubtedly of primary importance and, had there been no other matters material to the determination, the question of physical presence would properly have been treated as "conclusive or determinative", to adopt the language of counsel. Indeed, even were there other factors which the Tribunal was entitled to take into account, it might still have treated periods of physical presence as determinative. Something more would have been required to demonstrate error of law.

9 The 'something more' requires reference to the dual concepts of "relevant considerations" and "taking into account". The term "relevant considerations" is widely misunderstood: as used in leading authorities, such as Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39 (Mason J) it refers to a matter which the decision-maker is bound to take into account. The obligation may derive from the express terms of the power-conferring statute or may be implied from its subject matter, scope and purpose. A preferable term would be "mandatory consideration". Further, a matter traditionally described as an "irrelevant consideration" is one which is prohibited because, having regard to the subject matter, scope and purpose of the power being exercised, it can be seen to reflect an extraneous or improper purpose or to render the decision arbitrary or capricious. Between these two categories is usually a wide range of permissible considerations which the decision-maker may weigh or disregard without committing an error of law.

10 The next concept is that of "taking into account". It covers a spectrum of conduct. If a decision-maker who gives reasons for a decision makes no reference to a particular matter, it may be inferred that he or she disregarded it, either deliberately or through inadvertence. In either case, if it were a mandatory consideration, there would be an error of law. If, however, the matter is referred to there may still be a basis for review. In some cases, it is asserted that there has been a failure to give "proper, genuine and realistic consideration", to a particular matter. That is best understood as a complaint of failure "to give adequate weight to a relevant factor of great importance": see Peko-Wallsend at 41 (Mason J). The other side of this complaint is giving "excessive weight to a relevant factor of no great importance". Dealing with these circumstances, Mason J continued:

"The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is 'manifestly unreasonable'. This ground of review was considered by Lord Greene MR in Wednesbury Corporation, in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it."

11 Mason J left the matter with a warning that a court "should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits": at 42. This concern was reiterated by the High Court in Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 at [30] and by this Court in Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 at [15]-[24], in my judgment with which McColl and Macfarlan JJA agreed.

12 Not all decisions are accompanied by reasons. In the absence of reasons, it may be difficult to say whether a particular factor has been taken into account. A person challenging a decision may face an evidential dilemma: If the matter had been raised before the decision-maker, the court may be inclined to infer that it was taken into account; if, on the other hand, it had not been raised, the challenge may be rejected on the basis that the decision-maker was not required to take into account any matter not relied on by the applicant. In other cases, an applicant may be able to rely upon the approach enunciated by Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353 at 360:

"Moreover, the fact that he has not made known the reasons why he was not satisfied will not prevent the review of his decision. The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law."

13 It is necessary to consider whether anything said in Minister for Immigration and Citizenship v Xiujuan Li [2013] HCA 18 requires qualification of these propositions. The respondent, Ms Li, was an applicant for a particular visa which required a favourable "skills assessment". The initial assessment was found to have been based on false information and the visa application was rejected. Ms Li applied for a review, but a subsequent skills assessment proved adverse. She sought an adjournment of the hearing into her visa application to allow her to pursue a review of the adverse skills assessment. (The decision-making process was bifurcated: her application for a visa being considered by the Migration Review Tribunal, but her challenge to the adverse skills assessment being considered by another authority.) The original visa application had been lodged on 10 February 2007. On 25 January 2010 the Tribunal rejected her request for an adjournment on the basis that she had had "enough opportunities to present her case". That decision was set aside by a Federal Magistrate on the basis of Wednesbury unreasonableness. His decision was upheld by the Full Court of the Federal Court, Greenwood and Logan JJ characterising an unreasonable refusal of an adjournment as a failure to discharge the "core statutory function" of the Tribunal: [2012] FCAFC 74; 202 FCR 387 at [29]. The appeal by the Minister was dismissed by the High Court.

14 Referring to that statement of the issue, French CJ pointed to the need "to keep in mind the distinction between a decision-maker finding a jurisdictional fact and a decision-maker exercising a discretion": at [22], referring to Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [39] (Gummow ACJ and Kiefel J). Li involved the exercise of a discretionary power and not the determination of a precondition to the engagement of the power. The present case involved a binary choice, although one which depended upon a concept involving a degree of evaluative judgment. (As to the similarity of the approach to error of law in the context of the exercise of a discretionary power and the making of an evaluative judgment, see Gageler J in Li at [90], referred to below.)

15 French CJ stated the principles, relevantly for present purposes, at [26] in the following terms:

"The rationality required by 'the rules of reason' is an essential element of lawfulness in decision-making. A decision made for a purpose not authorised by statute, or by reference to considerations irrelevant to the statutory purpose or beyond its scope, or in disregard of mandatory relevant considerations, is beyond power. It falls outside the framework of rationality provided by the statute. To that framework, defined by the subject matter, scope and purpose of the statute conferring the discretion, there may be added specific requirements of a procedural or substantive character."

16 The Chief Justice further stated at [30]:

"The requirement of reasonableness is not a vehicle for challenging 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 a court disagrees even though that judgment is rationally open to the decision-maker. Gleeson CJ and McHugh J made the point in Eshetu that the characterisation of somebody's reasoning as illogical or unreasonable, as an emphatic way of expressing disagreement with it, 'may have no particular legal consequence.'"

17 The joint judgment of Hayne, Kiefel and Bell JJ referred to a long line of authorities requiring compliance with "the rules of reason and justice": at [65]. The joint reasons continued at [66]:

"This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker."

18 Their Honours continued at [72]:

"The more specific errors in decision-making, to which the courts often refer, may also be seen as encompassed by unreasonableness. This may be consistent with the observations of Lord Greene MR, that some decisions may be considered unreasonable in more than one sense and that 'all these things run into one another'. Further, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, Mason J considered that the preferred ground for setting aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to an irrelevant factor of no importance, is that the decision is 'manifestly unreasonable'. Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense."

19 The reference to giving "excessive weight to an irrelevant factor of no importance" appears to be a typographical error: no weight can be given to a prohibited consideration. Mason J referred to giving excessive weight to a relevant consideration. So understood, this passage affirmed the approach in Peko-Wallsend. The joint reasons further concluded that "[u]nreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification": at [76].

20 Focusing on Australian authority, Gageler J also discussed the implied obligation to act reasonably, as explained by Brennan CJ in Kruger v The Commonwealth [1997] HCA 27; 190 CLR 1 at 36: see Li at [88]. He continued at [90]:

"Implication of reasonableness as a condition of the exercise of a discretionary power conferred by statute is no different from implication of reasonableness as a condition of an opinion or state of satisfaction required by statute as a prerequisite to an exercise of a statutory power or performance of a statutory duty. Each is a manifestation of the general and deeply rooted common law principle of construction that such decision-making authority as is conferred by statute must be exercised according to law and to reason within limits set by the subject-matter, scope and purposes of the statute."

21 Gageler J further emphasised the constraints on the application of such a ground of review, stating at [108]:

"Judicial determination of Wednesbury unreasonableness is constrained by two principal considerations. One is the stringency of the test that a purported exercise of power is so unreasonable that no reasonable repository of the power could have so exercised the power. The other is the practical difficulty of a court being satisfied that the test is met where the repository is an administrator and the exercise of the power is legitimately informed by considerations of policy."

22 The present case did not involve considerations based on policy, but rather the proper application of a taxing statute. Further, it was not concerned with any allegation of defective procedure, but a flaw in the final conclusion reached by the Chief Commissioner and, on review, by the Tribunal. There is, accordingly, nothing in the reasoning in Xiujuan Li which calls into question the approach adopted above. Neither the outcome nor the process of reasoning bespeaks unreasonableness, let alone a high degree of unreasonableness. Indeed, it may be the only decision which was reasonably open on the material available to the Tribunal.

23 The appeal should be dismissed with costs.

24 MACFARLAN JA: Mr Patrick Lo, the appellant, was assessed as liable for land tax under the Land Tax Management Act 1956 (the "Act") for the tax years 2005 - 9 in respect of a residential property in Mosman that he owned at the relevant times for assessment, that is, at midnight on 31 December immediately preceding each year (s 8 of the Act). The respondent rejected Mr Lo's claim that the property was his principal place of residence and therefore exempt from land tax (under s 10(1)(r)). His decision was affirmed by the Revenue Division of the Administrative Decisions Tribunal ("ADT") ([2011] NSWADT 224) and an ADT Appeal Panel dismissed an appeal from that decision ([2012] NSWADTAP 12).

25 Mr Lo now appeals from the Appeal Panel decision under s 119 of the Administrative Decisions Tribunal Act 1997. Under s 119(1), an appeal only lies "on a question of law".

26 The appeal was pressed on two bases only (Transcript pp 1 - 2). First, Mr Lo contended that the Appeal Panel erred in treating his presence in Hong Kong for most of the relevant periods as being a conclusive factor against his contention that the Mosman property was his principal place of residence. Secondly, he contended that the Appeal Panel erred in law in failing to take into account 11 identified matters in determining that the Mosman property was not his principal place of residence.

27 As the present appeal is limited to questions of law, only a brief summary of the facts is required. More details of the facts may be found in the ADT decisions referred to above.

Summary of relevant facts

28 Mr Lo was born in Hong Kong in 1969 and moved with his family to Australia in 1986. In 1994, his parents acquired the subject property, and also one next door in which they commenced to live. In 1995, Mr Lo moved to Hong Kong to work full-time as an electrical engineer. He remained there until 2010 when he returned to live in Australia. His parents transferred the subject property to him in 1998.

29 Whilst in Hong Kong, Mr Lo lived with his wife in rental accommodation paid for by his employer. In 2009 Mr Lo's wife returned to Australia for about five months in connection with the birth of their son.

30 The amount of time spent by Mr Lo in Australia in the relevant years comprised 16 days in 2004, 11 days in 2005, 14 days in 2006, 15 days in 2007, 14 days in 2008 and 33 days in 2009. The subject property was not tenanted in these years. Mr Lo's father had keys to it to enable him to organise cleaners and maintenance on Mr Lo's behalf.

The Land Tax Management Act 1956

31 Section 10 and clause 2(1) of Schedule 1A of the Act exempt a property from land tax if it is the owner's principal place of residence at relevant times. "Principal place of residence" is defined in s 3 as follows:

"[P]rincipal place of residence of a person means the one place of residence that is, among the one or more places of residence of the person within and outside Australia, the principal place of residence of the person."

32 Clause 2(2) of Schedule 1A provides as follows:

"2 Principal place of residence exemption

...

(2) Land is not used and occupied as the principal place of residence of a person unless:

(a) the land, and no other land, has been continuously used and occupied by the person for residential purposes and for no other purposes since 1 July in the year preceding the tax year in which land tax is levied, or

(b) in any other case, the Chief Commissioner is satisfied that the land is used and occupied by the person as the person's principal place of residence."

The ADT Revenue Division decision

33 The reasons for decision of Mr Julian Block, judicial member of the ADT sitting in the Revenue Division (referred to hereafter as the "Tribunal") are encapsulated in the following paragraphs from his decision:

"32 The evidence before the Tribunal indicates in the clearest possible terms that the Applicant and his wife were and regarded themselves during the relevant years as residents of Hong Kong and thus when they came to Australia did so as visitors and not as returning residents. Landing cards and other documents both when arriving in or departing from Australia were completed on this basis. The evidence before the Tribunal indicates moreover that throughout the relevant years the Applicant and his wife resided in an apartment provided by Tektron [the Applicant's employer] and which they regarded as their home and in which they kept a substantial proportion of their belongings.

...

35 It is clear on the evidence before me that at no time during the relevant years did the Applicant occupy the Property as his principal place of residence. On the contrary he occupied an apartment in Hong Kong as his principal place of residence and the fact that he was not the owner of that apartment is not to the point. In respect of the (subjective) intentions of the Applicant there was as I have noted, evidence before the Tribunal as to the recent purchase of another residence in Sydney by the Applicant. It follows that as regards all of the relevant years the decision under review must be affirmed."

The Appeal Panel's decision

34 In dismissing the appeal, the Appeal Panel addressed numerous grounds of appeal that Mr Lo relied upon. It is sufficient to refer only to two aspects of that decision.

35 First, in Ground 16 before the Appeal Panel Mr Lo relied upon the previous Appeal Panel decision in Chief Commissioner of Tax Revenue v Mesiti [2003] NSWADTAP 57 in which the Panel made the following observations in concluding that a Willoughby property was the taxpayer's principal place of residence:

"61 ... She owned it. She had continuous control of possession and occupation over it. Apart from her clothing, her possessions were there. Her sons lived there, rent free. The ties of her connection to it as a residence were stronger and more settled than those of her connection to Drummoyne."

36 In responding to that ground, the Appeal Panel in the present case said the following:

"64 Undoubtedly, these passages quoted in the Appellant's submissions are relevant to cases such as the present. But the argument put in Ground 16 is that the Tribunal should have treated them as mandating a decision in Patrick's favour, because some of the facts in Mesiti resemble facts present in this case. But far from identifying all of the relevant considerations, these passages only draw attention to a selected few that provide support for Patrick's claim. Other factual aspects of his situation - for example, the very short periods of time that he spent in the Property during the Tax Years - are conveniently left out of account. The passages quoted from Mesiti do not provide any reason for concluding that the Tribunal erred in identifying all the relevant considerations or attributing appropriate weight to them."

37 Secondly, in Ground 17 Mr Lo relied upon observations in the earlier Appeal Panel decision in Chief Commissioner of State Revenue v Ferrington (GD) [2004] NSWADTAP 41 to the effect that to constitute a home as a taxpayer's principal place of residence, the person's occupation must have a degree of permanence to it and that the short length of a person's residence, while relevant, is not determinative of the issue. The Appeal Panel in the present case dealt with this ground as follows:

"67 The principal flaw in this argument is that it treats the evidence in the case suggesting that Patrick had a long-term 'connection' with the Property - by virtue, particularly, of his having lived there for some six months after his return from Hong Kong in November 2010 and his having evinced an intention to return there at some future time - as carrying more weight than the evidence showing a very substantial and immediate 'connection' with the apartments where he resided in Hong Kong during each of the Tax Years. Furthermore, it fails to take account of the explicit warning, at the commencement of this passage from Ferrington, against applying the same interpretation of the phrase 'principal place of residence' in two different statutory contexts. The range of factors to be considered under the First Home Owners Grant Act 2000 [the relevant legislation in Ferrington] were very different to those arising under the Land Tax Management Act 1956. The notion that only brief 'use and occupation' during a relevant period for tax purposes may be 'compensated for', in some sense, by evidence of a long-term future 'connection' with the property may have been sufficient under the former Act. But it cannot survive against the strong emphasis placed on current use and occupation by subclause (2) of clause 2 of Schedule 1A of the latter Act (and in particular, by the six-month requirement in paragraph (a) of this subclause)."

First ground of appeal - Mr Lo's presence at the property

38 Mr Lo submitted that the Appeal Panel erred in treating the short periods of his presence in Australia (which set the outer limits of the periods for which he could have been present at the subject property) as conclusive of his entitlement to exemption.

39 To support this ground of appeal, Mr Lo relied upon the passages in the Appeal Panel's decision which I have quoted in [36] and [37] above. Neither these nor any other parts of the Appeal Panel's reasons for decision establish that the Appeal Panel treated the periods of Mr Lo's presence in Australia as conclusive. Plainly, it considered that the shortness of the periods which Mr Lo could have spent at the property as of considerable significance, however this was something it was entitled to do. Common sense suggests a prima facie incongruity between a person's occupation of a property for a maximum period of approximately 2 weeks per year and a characterisation of that property as the person's principal place of residence. In any event, giving one factor considerable weight does not mean the Appeal Panel treated it as determinative.

40 Mr Lo submitted that the Tribunal, and therefore presumably the Appeal Panel which dismissed the appeal from the Tribunal, "failed to consider sufficiently the strong nexus between [Mr Lo] and the Property" (Amended Written Submissions [11]) but the very passages upon which he relies, being those quoted in [36] and [37], demonstrate the Appeal Panel's consideration of that topic. In those passages, it described the observations in the decision in Mesiti, concerning such a nexus, as "relevant to cases such as the present" ([64]).

Second ground of appeal - relevant considerations

41 In support of this ground, Mr Lo listed in his written submissions various factors which he said had not been "as a whole, considered by the Appeal Panel and balanced against factors which may have [weighed] against the conclusion that the property was [Mr Lo's] place of residence" (ibid [12]). Those of the listed factors that his counsel asserted in oral address had not been considered were as follows:

"(a) The Appellant was brought up and educated in Sydney;

(b) The Appellant's wife was brought up and educated in Sydney;

(c) The Appellant [had] his wedding ceremony and banquet in Sydney;

(d) The Appellant's son, Adrian had his first birthday party in Sydney, was born in Sydney; in the main, lived in the Property after he was born and was enrolled in the KU childcare service in Mosman;

...

(f) The Property was not leased at any time;

(g) The Property was not used or occupied by any person other than his wife and son at any time;

(h) The Appellant's Australian HSBC bank statements were sent to the Property;

(i) The Appellant's Australian medical and [l]ab reports were sent to the Property;

(j) The Australian Electoral Roll Commission and the driver['s] licence listed the Property as the Appellant's address;

(k) The Property is covered by home contents and home building insurance;

(l) Whilst in Australia during the Land Tax years the appellant and his wife used and occupied the Property for not insubstantial periods;

...

(n) The Appellant's work in Hong Kong was temporary and not permanent;

(o) The Appellant regarded Australia as his domicile and intended at all material times to return to live in Australia" (ibid).

42 The descriptions of these factors must be qualified by the following points made by the respondent. As to (a) and (b), Mr Lo first arrived in Sydney at the age of 16 and his wife at 15. As to (d), the reference to Mr Lo's son living in the property is at most to the period from his birth on 7 January 2009 to his departure for Hong Kong with his mother on 31 March 2009. As to (k), the insurance was in the joint names of Mr Lo and Barbara Lo who is apparently Mr Lo's mother. As to (l), the only period which Mr Lo or his wife appear to have spent in Australia in excess of about two weeks in any year was the period of about 5 months during which Mrs Lo was in Sydney in relation to the birth of their son. As to (n), Mr Lo's employment agreement dated 22 July 1995 stated that he was to be considered "as a permanent employee", subject to satisfactory performance of his duties.

43 In my view, this ground of appeal must be rejected, for the following reasons.

44 Factors (a), (b), (c), (d), (h), (i), (j) and (k), were, as a matter of common sense, of little, if any, significance, particularly when the Tribunal and Appeal Panel had before them the important evidence of the very limited periods that Mr Lo spent in Australia. In any event, there is no reason to conclude that the Appeal Panel did not consider these factors. If it did, it was fully entitled to take the view that they were of so little weight that they did not require mention.

45 As to factors (f) and (g), it is implicit in the Tribunal's and the Appeal Panel's reasons that they were conscious that the property was not tenanted or otherwise occupied by third parties during the relevant periods. This is apparent from [18] to [23] of the "Agreed Statement of Additional Facts" set out in the Tribunal's reasons for decision and also [17] - [18] of the Tribunal's reasons.

46 As to factor (l), the Tribunal and Appeal Panel clearly took the view that, for the purpose of considering whether the property constituted Mr Lo's principal place of residence, its use by Mr Lo and his wife was not "substantial". This was a factual finding which is not open to challenge on an appeal to this Court, as only appeals on questions of law may be entertained.

47 As to factor (n), what was of most significance was that by the commencement of the first of the relevant periods, Mr Lo had been working full-time in Hong Kong for about 10 years and that he continued to do so during them. It would not have been correct to describe this employment as temporary, particularly when Mr Lo's employment contract referred to him as a permanent employee. In any event, factor (n) is concerned with a factual finding, not a question of law.

48 As to (o), Mr Lo's intentions were of little, if any, significance in the context of him having been working full-time in Hong Kong for more than 10 years, particularly when his employment contract described him as a permanent employee.

49 By this ground of appeal, as well as by the first ground, Mr Lo is in essence attempting to engage the Court in a review of the merits of the ADT decisions. This is not something he is able to do (B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187; 74 NSWLR 481). The weight to be given to relevant factors is a matter for the primary decision maker. This is well established in the field of judicial review (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 41 and decisions following it). An appeal which is, as here, limited to questions of law, although described as an appeal, is "in the nature of judicial review" (Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; 207 CLR 72 at [15]; Osland v Secretary Department of Justice (No 2) [2010] HCA 24; 241 CLR 320 at [18]) and the principle is equally applicable.

50 Furthermore, in judicial review proceedings the omission of a decision maker acting under a statute to take into account a relevant factor is only regarded as vitiating the decision if the statute, expressly or impliedly, mandates that that factor must be taken into account and indicates that failure to do so is intended to invalidate the decision (Peko at 39 - 40; Project Blue Sky v Australian Broadcasting Authority [1988] HCA 28; 194 CLR 355 at [91] - [93]). Likewise in appeals on questions of law, no relevant error of this type will be established unless it is at least shown that the decision maker failed to take into account a matter that the statute required him or her to take into account. If that is shown, the decision maker will have erred in law in expressly or impliedly misconstruing the statute.

51 The Act does not expressly require the decision maker to take into account any of the matters upon which Mr Lo relies. Nor, except in relation to factors (f) and (g), is there anything in the subject matter, scope and purpose of the Act impliedly requiring that to occur (see Peko at 40). Factors (f) and (g) relate to the question of by whom, if anybody, the property was used or occupied. That is a matter that is integral to Mr Lo's claim that he used and occupied the property and one that by implication Schedule 1A, Part 2 clause 2(2)(a) of the Act (see [32] above) in my view requires the decision maker to consider. This conclusion does not however assist Mr Lo because, as I have noted (see [45] above), the decision makers here did have regard to that matter.

Orders

52 For these reasons, I consider that the appeal be dismissed with costs.

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Decision last updated: 18 June 2013