Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Mangoola Coal Operations Pty Ltd v Muswellbrook Shire Council [2023] NSWCA 275 Hearing dates: 13 October 2023 Decision date: 21 November 2023 Before: Leeming JA at [1]; Payne JA at [118]; Mitchelmore JA at [119] Decision: In both 2023/127087 and 2023/127091: Appeal dismissed with costs. Catchwords: LIMITATION OF ACTIONS – overpaid rates – no claim made within 12 month limitation period imposed by Recovery of Imposts Act 1963 (NSW), s 2(1) – whether ratepayer's claim was claim to recover tax "recoverable on restitutionary grounds" – whether claims "recoverable on restitutionary grounds" confined to claims at common law as opposed to statutory claims – significance of extrinsic materials to construction of statute – whether claim for credit as opposed to refund of overpaid rates was a claim to "recover" overpaid rates Legislation Cited: Civil Procedure Act 2005 (NSW), ss 149B, 149E Constitution, s 55 Crown Proceedings Act 1988 (NSW), s 5 Customs Act 1901 (Cth) Family Law Act 1975 (Cth), s 119 Interpretation Act 1987 (NSW), ss 33, 36(1) Land and Environment Court Act 1979 (NSW), ss 16, 20, 57, 71 Land Tax Act 1958 (Vic), s 90AA Law Reform (Miscellaneous Provisions) Act 1965 (NSW) Limitation Act 1969 (NSW), s 14 Limitation of Actions Act 1936 (SA), s 38 Limitation of Actions Act 1958 (Vic), s 20A Limitation of Actions (Recovery of Imposts) Act 1963 (NSW) Limitation of Actions (Recovery of Imposts) Amendment Act 1993 (NSW) Local Government Act 1919 (NSW), ss 132, 139, 142, 600, 621 Local Government Act 1993 (NSW), ss 220, 377, 494, 497, 498, 500, 506, 514, 520, 521, 522, 525, 526, 527, 534, 535, 546, 550, 560, 568, 571, 577, 578, 593, 594, 602, 672, 674, 711 Recovery of Imposts Act 1963 (NSW), ss 1A, 2, 3, 4, 5, 7 Stamps Act 1958 (Vic) State Revenue Legislation Further Amendment Act 1995 (NSW) Swimming Pools Tax Refund Act 1992 (Cth) Taxation Administration Act 1996 (NSW), Pt 10 Valuation of Land Act 1916 (NSW) Cases Cited: ACN 005 057 349 Pty Ltd v Commissioner of State Revenue [2015] VSC 76; 100 ATR 817 Adrenaline Pty Ltd v Bathurst Regional Council (2015) 97 NSWLR 207; [2015] NSWCA 123 Arnold v Minister Administering the Water Management Act 2000 (2008) 73 NSWLR 196; [2008] NSWCA 338 Australand Corp (Qld) Pty Ltd v Tang [2009] QSC 221 Barton v Commissioner for Motor Transport (1957) 97 CLR 633; [1957] HCA 50 Baulkham Hills Shire Council v Wrights Road Pty Ltd (2007) 153 LGERA 219; [2007] NSWCA 152 Bayside Council v Karimbla Properties (No 3) Pty Ltd (2018) 99 NSWLR 66; [2018] NSWCA 257 Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49 British American Tobacco Australia Ltd v Western Australia (2003) 217 CLR 30; [2003] HCA 47 Burrows v Macpherson & Kelley Lawyers (Sydney) Pty Ltd [2021] NSWCA 148 Capital Duplicators Pty Ltd v Australian Capital Territory (No 2) (1993) 178 CLR 561; [1993] HCA 67 Ciprian v Commissioner of Taxation [2002] AATA 746; 50 ATR 1257 Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; 96 ALJR 476 Commissioner of State Revenue (Vic) v ACN 005 057 349 Pty Ltd (2017) 261 CLR 509; [2017] HCA 6 Commissioner of State Revenue (Vic) v Royal Insurance Ltd (1994) 182 CLR 51; [1994] HCA 61 Commonwealth v SCI Operations Pty Ltd (1998) 192 CLR 285; [1998] HCA 20 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26 Council of the City of Sydney v Wilson Parking Australia Pty Ltd [2015] NSWLEC 42 David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353; [1992] HCA 48 Dennis Hotels Pty Ltd v Victoria (1960) 104 CLR 529; [1960] HCA 10 Deputy Commissioner of Taxation v Brown (1958) 100 CLR 32; [1958] HCA 2 Duke Group Ltd (in liq) v Alamain Investments Ltd [2003] SASC 415; 232 LSJS 58 Frevcourt Pty Ltd v Wingecarribee Shire Council (2005) 139 LGERA 140; [2005] NSWCA 107 Gammage v The Queen (1969) 122 CLR 444; [1969] HCA 68 Ha v State of New South Wales (1997) 189 CLR 465; [1997] HCA 34 Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127; [1955] HCA 28 Kelly v Willoughby Council (1928) 41 CLR 51; [1928] HCA 25 MacCormick v Federal Commissioner of Taxation (1984) 158 CLR 622; [1984] HCA 20 Maguire v Simpson (1977) 139 CLR 362; [1977] HCA 63 Mangoola Coal Operations Pty Ltd v Muswellbrook Shire Council [2020] NSWLEC 66 Mangoola Coal Operations Pty Ltd v Muswellbrook Shire Council [2021] NSWCA 46 Meriton Apartments Pty Ltd v Council of the City of Sydney (No 3) (2011) 80 NSWLR 541; [2011] NSWLEC 65 Minister for Local Government v Blue Mountains City Council (2018) 97 NSWLR 1132; [2018] NSWCA 133 Moses v Macferlan (1760) 2 Burr 1005; 97 ER 676 Mutual Pools & Staff Pty Ltd v Federal Commissioner of Taxation (1992) 173 CLR 450; [1992] HCA 4 Northern Territory v Griffiths (2019) 269 CLR 1; [2019] HCA 7 Pantorno v The Queen (1989) 166 CLR 466; [1989] HCA 18 Peregrine Mineral Sands Pty Ltd v Wentworth Shire Council [2014] NSWCA 429 Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319; [2010] HCA 41 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516; [2001] HCA 68 Royal Insurance Australia Ltd v Comptroller of Stamps (Vic) (1992) 92 ATC 4399; 23 ATR 528 Scharer v State of New South Wales (2001) 53 NSWLR 299; [2001] NSWCA 360 Timbercorp Finance Pty Ltd v Collins [2016] VSC 776; 119 ACSR 478 Walker v Walker [1983] Fam 68 Wentworth Shire Council v Bemax Resources Ltd [2013] NSWSC 1047; 278 FLR 264 Woolwich Equitable Building Society v Inland Revenue Commissioners [1993] AC 70 Zhang v Commissioner of the Australian Federal Police (2021) 273 CLR 216; [2021] HCA 16 Texts Cited: D Bailey and L Norbury, Bennion on Statutory Interpretation (7th ed, 2017, Lexis Nexis) K Mason, J Carter and G Tolhurst, Mason & Carter's Restitution Law in Australia (4th ed, 2021, LexisNexis) P Finn, Law and Government in Colonial Australia (1987, Oxford University Press) W Gummow, "Moses v Macferlan: 250 Years On" (2011) 68 Washington & Lee Law Review 881 W Swain, "Unjust Enrichment and the Role of Legal History in England and Australia" (2013) 36 UNSW Law Journal 1030 Category: Principal judgment Parties: Mangoola Coal Operations Pty Ltd (Appellant) Muswellbrook Shire Council (Respondent) Representation: Counsel: M Izzo SC and J Wherrett (Appellant) P Tomasetti SC and T To (Respondent) Solicitors: Johnson Winter Slattery (Appellant) Moray & Agnew (Respondent) File Number(s): 2023/127087 2023/127091 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2023] NSWSC 262 Date of Decision: 27 March 2023 Before: Basten AJ File Number(s): 2022/00153777 2022/00202595 [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.] HEADNOTE [This headnote is not to be read as part of the judgment] Mangoola Coal Operations Pty Ltd owns land within the Muswellbrook Shire Council area which prior to August 2017 had been categorised for rating purposes as farmland. On 4 August 2017 the Council advised Mangoola that it had declared that the land was to be categorised as mining, with effect from 1 July 2016. Mangoola challenged the Council's decision, eventually leading to an appeal before the Court of Appeal, which found in Mangoola's favour. Consent orders were subsequently made on 15 September 2021 in the Land and Environment Court, which the parties agreed had the effect that Mangoola's land was recategorised as farmland with retrospective effect to 1 July 2016. Mangoola continued to pay rates in protest throughout the period from September 2017 until May 2021. In total, it made overpayments of $3,071,518.76, with the last payment being on 27 May 2021. Mangoola commenced proceedings in the Common Law Division of the Supreme Court on 27 May 2022, seeking repayment of the overpaid rates in moneys had and received. It also commenced proceedings in Class 4 of the jurisdiction of the Land and Environment Court on the same day, seeking entitlements to either a refund or a credit pursuant to s 527 of the Local Government Act 1993 (NSW), which provides that a council must make "an appropriate adjustment of rates paid or payable by a rateable person following a change of category of land". Procedural steps were taken pursuant to s 149B of the Civil Procedure Act 2005 (NSW) to have a single trial in the Supreme Court of Mangoola's two claims. The primary judge held that the entirety of Mangoola's claims (both at common law and under the Local Government Act), save for the last payment of rates, was barred by s 2(1) of the Recovery of Imposts Act 1963 (NSW), which sets a 12 month limitation period for the commencement of proceedings to recover overpaid tax that is "recoverable on restitutionary grounds". Further, in relation to the Class 4 proceedings, his Honour held that s 527 of the Local Government Act did not entitle Mangoola to either a refund of overpaid rates or a credit against future rates notices. The consequence of the primary judge's decision was that Mangoola was partially successful in its claim at common law, receiving judgment in the order of $68,000 plus interest for the last payment of rates which was brought within time, but was otherwise unsuccessful. Mangoola filed notices of appeal in relation to both proceedings. However, it did not seek to disturb the primary judge's findings in the Common Law proceeding. Rather, Mangoola argued that it had a statutory claim under s 527 of the Local Government Act, and that that claim was not subject to the limitation period under s 2(1) of the Recovery of Imposts Act because it was not one to "recover" money and was not for the recovery of money "on restitutionary grounds". The central issue on appeal was whether Mangoola's purported right to recover the overpayments under s 527 of the Local Government Act was subject to the 12 month limitation period imposed by s 2(1) of the Recovery of Imposts Act. The Court (Leeming JA, Payne and Mitchelmore JJA agreeing) held, dismissing the appeal: 1. A consideration of text, context and purpose makes clear that s 2(1) of the Recovery of Imposts Act applies to claims under statute as well as claims at common law. It is difficult to reconcile the width of the Act and its purpose of safeguarding revenue with a narrow construction being given to "recoverable on restitutionary grounds": [84]-[88]. Interpretation Act 1987 (NSW), s 33, applied. 2. While the extrinsic materials showed that a purpose of the various amendments to the Recovery of Imposts Act was to safeguard against common law claims, it did not follow that the Act was to be construed as being confined to such claims: [89]. Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127; [1955] AC 28, Barton v Commissioner for Motor Transport (1957) 97 CLR 633; [1957] HCA 50, Dennis Hotels Pty Ltd v Victoria (1960) 104 CLR 529; [1960] HCA 10, Capital Duplicators Pty Ltd v Australian Capital Territory (No 2) (1993) 178 CLR 561; [1993] HCA 67 and Commissioner of State Revenue (Vic) v Royal Insurance Ltd (1994) 182 CLR 51; [1994] HCA 61, considered. 3. There are difficulties in reading "recoverable on restitutionary grounds" as involving a distinction between common law and statutory claims. Rather, the words invoke a dichotomy between payments sought to be recovered because they were overpaid, and payments sought to be recovered in order to compensate for loss caused by breach of a contractual, tortious or statutory duty: [80]-[83]. 4. Proceedings seeking a credit were properly characterised as proceedings to recover tax. To read "recover" as requiring a payment of money would lead to improbable consequences, and would frustrate the purposes of the Act: [99]-[101]. Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26, applied. Obiter consideration: 5. Although it was unnecessary to resolve whether Mangoola enjoyed a right under the Local Government Act to a refund or credit of overpaid rates, s 527 considered alone did not confer such a right: [105]-[111]. Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49, applied. Kelly v Willoughby Council (1928) 41 CLR 51; [1928] HCA 25, considered. JUDGMENT 1. LEEMING JA: Mangoola Coal Operations Pty Ltd appeals from the dismissal of one of two proceedings (the "Class 4 proceeding") heard concurrently in the Common Law Division of this Court, both of which sought the recovery of rates which, it is now conceded, were overpaid. It is also now accepted that Mangoola had a right to recover those overpaid rates at common law. In fact Mangoola obtained judgment against the defendant, Muswellbrook Shire Council, to recover the last payment it made based on its entitlement at common law in the other proceeding (the "Common Law proceeding"), and although Mangoola filed an appeal, it does not seek to disturb that judgment. The litigation arises because Mangoola brought no proceedings to recover overpaid rates until (for the most part) years after making the payments. 2. The issues arising on appeal are quite narrow. They are (a) whether Mangoola had a right under s 527 of the Local Government Act 1993 (NSW) to recover the overpaid rates in addition to its right at common law, and (b) if so, whether that right was subject to the 12 month limitation period imposed by s 2(1) of the Recovery of Imposts Act 1963 (NSW) because its claim was not one to "recover" money or was not for the recovery of money "on restitutionary grounds". Mangoola does not dispute that its entitlement at common law to recover all save the last of its rate payments is barred by the Recovery of Imposts Act. Factual background 1. There are no disputed facts. Mangoola owns land within the Muswellbrook Shire Council area which prior to August 2017 had been categorised for rating purposes as farmland. On 4 August 2017, the Council advised Mangoola that it had declared that the land was to be categorised as mining, with effect from 1 July 2016. The Council's letter attached a Rates and Charges Notice for the 2016/2017 and 2017/2018 years, showing a total amount due and payable of $2,507,858.61. The 2016/2017 amount was said to be due in 30 days, while the 2017/2018 rates were payable in instalments over the 2017/2018 year. 2. Mangoola applied for a review of the categorisation decision, pursuant to s 525 of the Local Government Act. After the Council's deemed refusal, Mangoola commenced two proceedings in Class 3 of the jurisdiction of the Land and Environment Court pursuant to s 526, challenging the decisions for each year. That Court found that the dominant purpose in the relevant years was mining, rather than grazing, and dismissed the appeals: Mangoola Coal Operations Pty Ltd v Muswellbrook Shire Council [2020] NSWLEC 66. However, Mangoola's further appeal to this Court (differently constituted) was allowed: Mangoola Coal Operations Pty Ltd v Muswellbrook Shire Council [2021] NSWCA 46. The appeal was confined to questions of law pursuant to s 57(1) of the Land and Environment Court Act 1979 (NSW). This Court set aside the orders made by the Land and Environment Court and remitted Mangoola's original appeals against the recategorisation decision to that Court for determination according to law. Thereafter, on 15 September 2021, consent orders were made in the Land and Environment Court upholding each of those appeals. 3. No issue arises in this appeal as to the correctness of this Court's earlier decision, or that the effect of the orders made on 15 September 2021 was that Mangoola's land was recategorised as farmland with retrospective effect to 1 July 2016. The litigation before the primary judge proceeded on the basis that it was agreed that: The Consent Orders had the effect that the [Council's] mining categorisation of the Land for the 2016 and 2017 rating years (as declared by the [Council] in its letter dated 4 August 2017, …) was set aside and replaced by the farmland categorisation. The Consent Orders constituted a declaration within the meaning of section 526(3) of the LG Act that the category of the Land was farmland with this declaration to take effect on and from 1 July 2016. 1. The primary judge noted at [8] that the basis upon which the orders produced that agreed result was "by no means self-evident". I respectfully agree. However, his Honour also noted that there being no challenge to the Court's jurisdiction, the Court was entitled to proceed on the basis of the agreed effect of the orders. I also agree. Courts must always satisfy themselves of jurisdiction: Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; 96 ALJR 476 at [23] and [62]. Parties may and often do litigate on an agreed basis, and where the point does not go to a court's jurisdiction, a court may proceed on that basis, although it is not bound to do so. In particular, no court is bound by agreed propositions of law. The position was stated by Mason CJ and Brennan J in Pantorno v The Queen (1989) 166 CLR 466 at 473; [1989] HCA 18: When the parties to an adversarial proceeding agree on a proposition of law and conduct their cases on that basis, their agreement does not bind the trial judge. If the judge determines the law to be different, he may apply the law as he determines it to be, but he must inform the parties of the view he has formed when that is necessary to give them an opportunity to address new issues arising from the judge's departure from the proposition of law on which the case was conducted. Otherwise both parties are taken by surprise. 1. By way of example, a court is not bound by, and indeed is entitled to be "wary" of, constructions of statute which reflect parties' forensic choices, as a unanimous High Court observed, by reference to caution previously expressed by Gageler J and Keane J, in Zhang v Commissioner of the Australian Federal Police (2021) 273 CLR 216; [2021] HCA 16 at [26]-[27]. Nor is this Court bound by the parties' agreement that the legal effect of the consent orders made by the Land and Environment Court was a retrospective declaration that Mangoola's land was categorised as farmland. Nevertheless, I shall proceed on that basis, which is favourable to Mangoola. 2. The events summarised above occupied slightly more than four years, from August 2017 until September 2021. In the meantime, Mangoola paid rates. There was no dispute about the timing or amounts of the payments, or as to the amounts which would have been payable had the rates been calculated on the basis of the land being categorised as farmland as opposed to mining. In summary, Mangoola made overpayments of $3,071,518.76 during the period 6 September 2017 until 27 May 2021, with the large majority (exceeding $2.5 million) of the overpayments being made between 6 September 2017 and 31 May 2018. The penultimate and ultimate overpayments were both in amounts of $86,618, made on 25 February 2021 and 27 May 2021. 3. Neither of Mangoola's original appeals had sought the recovery of any overpaid rates. Mangoola commenced the Common Law proceeding and the Class 4 proceeding on 27 May 2022. I shall describe those proceedings below, but it is convenient to mention the Recovery of Imposts Act immediately, upon which the Council relied in answer to both proceedings. 4. At the times each of Mangoola's rates payments were made, s 2 relevantly provided: (1) No proceedings shall be brought to recover from the Crown or the Government or the State of New South Wales or any Minister of the Crown, or from any corporation, officer or person or out of any fund to whom or which it was paid, the amount or any part of the amount paid by way of tax or purported tax and recoverable on restitutionary grounds (including but not limited to mistake of law or fact): … (b) in the case of a payment made subsequent to the commencement of this Act, after the expiration of twelve months after the date of payment. (2) Subsection (1) does not apply to any proceedings brought pursuant to any specific provisions of any Act: (a) providing for the mode of challenging the validity or for the recovery of the whole or any part of any tax actually paid, and (b) specifying a different period within which such proceedings must be brought. … 1. A "tax" is defined in s 1A to include "a fee, charge or other impost". No definition is provided for "recoverable on restitutionary grounds". 2. The twelve month limitation period in s 2(1) did not apply to the last payment made by Mangoola on 27 May 2021, precisely one year before both proceedings were commenced, noting that time for the purposes of s 2(1) did not commence until the day following the last payment, in accordance with s 36(1) of the Interpretation Act 1987 (NSW). The two proceedings commenced by Mangoola on 27 May 2022 1. First, by statement of claim filed in the Common Law Division, Mangoola sought an order that the Council pay it $3,071,518.76 plus interest. It maintained that the rates had been paid under a mistake of law, with the result that the Council was required to repay the sum as moneys had and received by it. 2. The nature of Mangoola's claim was unremarkable. It accorded with the availability of an action at common law for moneys had and received for mistake of law, as opposed to mistake of fact, upheld by the High Court in David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353; [1992] HCA 48 and thereafter applied in cases of overpaid taxes such as Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516; [2001] HCA 68 and British American Tobacco Australia Ltd v Western Australia (2003) 217 CLR 30; [2003] HCA 47. It is conventional to associate these rules with the authorities flowing from Moses v Macferlan (1760) 2 Burr 1005; 97 ER 676. There is a large debate, in this country and elsewhere, as to the juristic nature of this claim (see without being exhaustive W Gummow, "Moses v Macferlan: 250 Years On" (2011) 68 Washington & Lee Law Review 881, K Mason, J Carter and G Tolhurst, Mason & Carter's Restitution Law in Australia (4th ed, 2021, LexisNexis) at 22-31 [120]-[123] and W Swain, "Unjust Enrichment and the Role of Legal History in England and Australia" (2013) 36 UNSW Law Journal 1030), and while I have followed the parties' usage in referring to the "Common Law proceeding", that is mere labelling. The extent to which Mangoola's claim is regarded as common law or equitable is of no significance to the outcome of this appeal. 3. Secondly, and rather more innovatively, by summons filed in Class 4 of the jurisdiction of the Land and Environmental Court, Mangoola sought the following declaratory relief: 1 A declaration that the [Council] received the sum of $3,071,518 in overpaid rates for the rating years commencing 1 July 2016 to 1 July 2020 from the Applicant for parcel 113969 by reason of the rates being paid in response to Rates and Charges Notices issued by the [Council] categorising the parcel as mining, a categorisation set aside by the consent orders made in matter No 242761 of 2018 by Moore J on or about 15 September 2021. 2 A declaration that the [Council] has not made an appropriate adjustment of rates paid by the Applicant for the rating years commencing 1 July 2016 to 1 July 2020 following a change in category of parcel 113969 (as per the consent orders…), by way of either a refund of the amount of overpaid rates (being the difference between the applicable mining and farmland rates in each rating year) paid by the Applicant to the [Council] for those rating years, or a credit for that amount. 1. The first prayer was uncontroversial in light of the agreed facts, and therefore of questionable utility. Declaratory relief is directed to determining a legal controversy with consequences for the parties: see for example Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319; [2010] HCA 41 at [103]. In contrast, the negative declaration sought in the second prayer went to the heart of the dispute. It reflected an allegation, denied by Council, that: Following the entry of the Consent Orders by the Land and Environment Court, the [Council] was required under section 527 of the LG Act to make an appropriate adjustment of the rates paid by the Plaintiff for the rating years commencing 1 July 2016 to 1 July 2020 by refunding the amount of overpaid rates paid by the Plaintiff to the [Council] for those rating years. 1. The claimed entitlements to either a refund or a credit were the subject of the substantive relief claimed in prayers 3 and 4, both of which sought orders pursuant to s 674 of the Local Government Act "that the [Council], as required by section 527 of the Act, make an appropriate adjustment of rates paid by [Mangoola]" for the relevant rates paid either "by way of a refund of the amount of overpaid rates" (prayer 3) or "in the form of a credit for the amount of overpaid rates" (prayer 4). Mangoola also sought interest. No submissions were made about the basis upon which interest might be claimed, and I pass over this potentially complex topic (cf Commonwealth v SCI Operations Pty Ltd (1998) 192 CLR 285; [1998] HCA 20 at [72]-[75] and Northern Territory v Griffiths (2019) 269 CLR 1; [2019] HCA 7 at [135]-[137], where the existence of a "free-standing" right to interest in circumstances where a defendant has had the use of the plaintiff's money was doubted). 2. Section 527 of the Local Government Act is located in Chapter 15, and provides: 527 Adjustment of rates following change in category A council must make an appropriate adjustment of rates paid or payable by a rateable person following a change in category of land. 1. There was a sharp divide between the parties as to the effect of s 527. Mangoola maintained that the obligation to make "an appropriate adjustment" gave rise to an obligation to make a refund, or, at least, give a credit against the liability for rates in the future. The Council maintained that it merely obliged the Council to update its records. 2. Section 674 is the general provision in Chapter 17, which is entitled "Enforcement", which authorises "Any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of this Act". "Breach" is defined to mean "a contravention of or failure to comply with this Act", or "a threatened or an apprehended contravention of or a threatened or apprehended failure to comply with this Act": s 672. In order to resolve this appeal, it will not be necessary to consider whether in addition to the traditional common law and equitable remedies to remedy or restrain actual or apprehended breaches of the Act (such as mandamus, prohibition and injunction), s 674 extends to orders requiring the payment of money. 3. Mangoola's proceedings were filed in different courts. The Land and Environment Court had exclusive jurisdiction in respect of the claim under the Local Government Act. That is because for the purposes of s 20(2) of the Land and Environment Court Act, Chapter 15 of the Local Government Act is a "planning or environmental law", and that subsection read with ss 20(1)(e) and 71(1) confer exclusive jurisdiction upon the Land and Environment Court to hear and dispose of proceedings to "enforce any right, obligation or duty conferred or imposed by a planning or environmental law", "to review, or command, the exercise of a function conferred or imposed by a planning or environmental law" or "to make declarations of right in relation to any such right, obligation or duty or the exercise of any such function". See Minister for Local Government v Blue Mountains City Council (2018) 97 NSWLR 1132; [2018] NSWCA 133 at [63]-[84]. 4. Conversely, the Supreme Court of New South Wales unquestionably had jurisdiction to hear and determine Mangoola's action for moneys had and received. It is not necessary to determine whether the Land and Environment Court would have also had jurisdiction to hear and determine that action. It may be noted that two strands of authority (which on one view do not sit especially easily with each other) on the conferral of "ancillary" jurisdiction by s 16(1A) of the Land and Environment Court Act tend to suggest that there would have been jurisdiction. On the one hand, the reasoning in Scharer v State of New South Wales (2001) 53 NSWLR 299; [2001] NSWCA 360 at [49]-[52] and first instance decisions following it invoke a meaning of "ancillary" resembling its usage in planning instruments. On the other hand, the more recent reasoning reviewed by Beech-Jones AJ in Council of the City of Sydney v Wilson Parking Australia Pty Ltd [2015] NSWLEC 42 at [36]-[37], including Arnold v Minister Administering the Water Management Act 2000 (2008) 73 NSWLR 196; [2008] NSWCA 338, proceeds on the basis that "ancillary" is deployed in a fashion reflecting the justiciable controversy or "matter". 5. But those questions did not arise, because sensible procedural steps were taken to have a single trial of Mangoola's two claims to recover the same amount of overpaid rates from the Council. Section 149B of the Civil Procedure Act 2005 (NSW) authorises the transfer of proceedings from the Land and Environment Court to the Supreme Court if the former is satisfied that it is more appropriate for the proceedings be heard in the latter (and vice versa), and where a transfer order is made, s 149E confers all of the jurisdiction of the transferor court in relation to those proceedings upon the transferee court. Such an order was made, and thus it was that the two proceedings came to be heard and determined simultaneously by the primary judge, with evidence in each being evidence in the other. 6. It is as well to explain the reason for the foregoing account of procedural complexity. It is that despite the identicality of the parties and the subject matter of the $3,071,518.76 of overpaid rates in dispute, Mangoola obtained two judgments, one wholly adverse to it, and one very substantially adverse to it. Mangoola only presses an appeal from the former. Little attention appears to have been given, prior to the hearing, to the consequences of the res judicata and estoppel by judgment flowing from the judgment in its favour reflecting the last payment of rates. Chapter 15 of the Local Government Act 1. The starting point is to observe, as Emmett AJA did in Bayside Council v Karimbla Properties (No 3) Pty Ltd (2018) 99 NSWLR 66; [2018] NSWCA 257 at [135]-[137], that Chapter 15 of the Local Government Act distinguishes between making rates, levying rates, and paying rates. Parts 4, 5 and 7 respectively deal with each of those concepts. 2. The power (or more accurately, the power coupled with a duty) upon local councils to make and levy rates each year is tightly circumscribed by Chapter 15. Councils are obliged, by reason of s 494(1), to "make and levy an ordinary rate for each year on all rateable land in [the council's] area". Each rate is to be made for a specified year "being the year in which the rate or charge is made or the next year" (s 534), and not more than a year in advance. By way of further constraint upon these powers, s 506 empowers the Minister to make orders which "specify the percentage by which councils' general income for a specified year may be varied". 3. A rate is to be made by resolution of the council (s 535), which power cannot be delegated (s 377(1)(b)). On the other hand, a rate is to be levied by the service of a notice: s 546(1). It is the service of the notice that gives rise to the liabilities of rateable persons, and the statutory charge on the land. 4. The Act and its predecessors distinguish between "ordinary rates" and "special rates". The latter are not presently relevant. Ordinary rates presuppose a categorisation of land (s 514), and the provisions bearing upon this are central to this litigation. 5. An ordinary rate must include an ad valorem amount and may also include a base amount: s 497. The ad valorem amount must contribute the majority of the revenue from any particular rate: s 500. The ad valorem rate is "an amount in the dollar determined for a specified year by the council and expressed to apply … in the case of an ordinary rate—to the land value of all rateable land in the council's area within the category or sub-category of the ordinary rate …": s 498(1)(a). The ad valorem amount of a rate is to be levied on the land value of rateable land, which (speaking generally) is determined by the Valuer-General under the Valuation of Land Act 1916 (NSW). 6. The scheme governing the categorisation of land for rating purposes is mostly contained in Pt 3 of Ch 15 of the Local Government Act. Pursuant to s 520(1), a council is to give notice to a rateable person of "the category declared for each parcel of land for which the person is rateable". The declaration is to specify the date on which the categorisation takes effect: s 521. The declaration ceases to have effect when a subsequent declaration takes effect: s 522. 7. The provision for challenging a change of category which was invoked by Mangoola in the present case is found in s 525. Subsection (1) provides: 525 Application for change of category (1) A rateable person (or the person's agent) may apply to the council at any time – (a) for a review of a declaration that the person's rateable land is within a particular category for the purposes of section 514, or (b) to have the person's rateable land declared to be within a particular category for the purposes of that section. 1. Subsections (2)-(5) address the form of the application and how the council is to determine it. Subsection (6) provides that if the council has not notified the applicant of its decision within 40 days, it is taken to have declared the land to be within its existing category. 2. Section 526 entitles a rateable person to appeal from a declaration under s 525 (including a deemed declaration under s 525(6)) within 30 days after the declaration is made. Subsection (3) of s 526 was said to provide the mechanism by which Mangoola's land changed category following the Land and Environment Court's giving effect to the consent orders. That subsection provides: (3) The Court, on an appeal, may declare the date on which a declaration is to take effect or the category for the land, or both, as the case requires. 1. Section 527 is reproduced above, and requires a council to make "an appropriate adjustment" following a change in category of land. 2. Section 546 provides for how a rate or charge is levied. That provision provides as follows: 546 How is a rate or charge levied? (1) A rate or charge is levied on the land specified in a rates and charges notice by the service of the notice. (2) The notice may be served at any time after 1 July in the year for which the rate or charge is made or in a subsequent year. (3) A notice that is required to effect an adjustment of rates or charges may be served in the year for which the rate or charge is made or a subsequent year. (4) The notice may include more than one rate, more than one charge and more than one parcel of land. (5) It is not necessary to specify the name of the rateable person or the person liable to pay the charge in the notice if the council does not know the person's name. 1. Thus the service of a notice is what makes a rateable person liable to pay rates. And indeed, where there is an "adjustment" of rates, s 546(3) provides that a notice is required to "effect" that adjustment. That is to say, s 546(3) distinguishes between an adjustment of rates and the notice which gives effect to that adjustment. It is the notice, not the adjustment, which alters a rateable person's liability to pay rates. 2. Certain provisions in Chapter 15 expressly deal with refunds, in contradistinction to the "adjustment" referred to in the text of s 527. Those provisions are ss 578, 593 and 594. Section 577 entitles a council in cases of hardship to make an order directing certain eligible persons are not liable to pay rates, in which case s 578 may apply: 578 When does an order under sec 577 take effect? (1) An order under section 577 takes effect (or is taken to take effect) on such date as is specified in the order (the effective date), being a date in the year commencing on 1 July during which the order is made, whether or not that date is before or after the date on which the order is made. (2) If a council makes an order under section 577 that is taken to take effect on a date that is before the date of the making of the order, the council may, in that order or in a subsequent order, give such directions as to refunding any rates or charges that have been paid and the charging of interest on overdue rates or charges and as to such other matters as the council thinks fit. (3) An order under subsection (2) has effect according to its tenor. (Emphasis added.) 1. Similarly, ss 593 and 594 also speak expressly of refunds: 593 Paid rates to be refunded The council must refund to a rateable person any amount of rates paid by the person which exceeds the amount of the rates remaining after part of the rates is postponed. 594 Adjustment of rates On a redetermination of the attributable part of the land value of land, a council must adjust amounts payable for rates or to be postponed as appropriate. Any amounts paid in excess are to be refunded and amounts short-paid are recoverable as arrears of rates. (Emphasis added.) 1. Mangoola directed attention to provisions which imposed the liability to pay rates on the owner of the land for the time being, which were said to show that the liability runs with the land. Those provisions were ss 550, 560, 571(3) and 711, which provide: 550 Charge of rates and charges on land (1) A rate or charge levied under this Act on land (including any interest accrued on the rate or charge as referred to in section 566) and any costs awarded to the council by a court in proceedings to recover the rate or charge are a charge on the land. (2) The charge ranks on an equal footing with a charge on the land under any other Act but takes priority over any other charge or encumbrance. (3) The charge does not affect— (a) the estate of the Crown in land owned by the Crown, or (b) the estate of a Crown lessee if the lease is granted after the rate or charge was levied (whether or not the land was previously held under a lease from the Crown). (4) The charge does not affect a bona fide purchaser for value who made due inquiry at the time of purchase but had no notice of the liability. A purchaser who has obtained a certificate under section 603 is taken to have made due inquiry. (5) The provisions of this section have effect despite anything contained in section 42 of the Real Property Act 1900. … 560 Who is liable to pay rates? (1) The owner for the time being of land on which a rate is levied is liable to pay the rate to the council, except as provided by this section. (2) If land owned by the Crown is leased, the lessee is liable to pay the rate, except as provided by subsection (4). (3) If there are two or more owners, or two or more lessees from the Crown, of the land, they are jointly and severally liable to pay the rate. (4) The Crown is liable to pay the rate for land owned by the Crown which is subject to the Housing Act 2001 or the Aboriginal Housing Act 1998. … 571 What happens if land is transferred? … (3) A person who becomes liable for rates and charges levied on land is liable to the council for a rate or charge owing in respect of the land even though the person was not so liable when the rate or charge was levied. … 711 Effect of service on successors in title A notice duly served on a person binds any person claiming through or under or in trust for or in succession to the person or who is a subsequent owner or occupier to the person, as if the notice had been served on that person. 1. Mangoola also emphasised s 568, which it said was consistent with s 527 providing for an "offset" against future rates. Section 568 provides that "Money paid to a council in respect of rates or charges levied on land is to be applied towards payment of those rates or charges in the order in which they became due." 2. Finally, s 602 concerns the council's records. It provides: 602 Record of rates and charges (1) A council is required to keep a record of— (a) each rate and charge made by it, and (b) in relation to each separate parcel of land within its area— • the land value of the parcel • whether the parcel is rateable, exempt from all rates or exempt from particular kinds of rates • the category declared under Part 3 for the parcel of land, and (c) the owner or lessee of each such parcel. (2) The council may amend the record as the occasion requires. The reasons of the primary judge 1. After addressing the procedural and jurisdictional complexities, the primary judge commenced with the Recovery of Imposts Act, and recorded concessions made by Mangoola at the hearing (abandoning contentions made in its pleaded reply) that the payment of rates were a "tax or purported tax" within the meaning of the statute, and that the Council was a "person" referred to in s 2. Both concessions were properly made. As to the first, in Baulkham Hills Shire Council v Wrights Road Pty Ltd (2007) 153 LGERA 219; [2007] NSWCA 152 this Court held that a s 94 contribution fell within s 2. The same must be true of a Council's rate, which is exacted compulsorily, rather than as the price of development consent. As to the second, the position of the Council was explained by Pepper J in Meriton Apartments Pty Ltd v Council of the City of Sydney (No 3) (2011) 80 NSWLR 541; [2011] NSWLEC 65 at [136]-[138], by reference not only to the status of a council under the Local Government Act but also to the deeming provision in s 220(4) which provides that "A law of the State applies to and in respect of a council in the same way as it applies to and in respect of a body corporate (including a corporation)", with the result that "there can be no doubt whatsoever that s 2(1) of the Imposts Act applies". This Court said in Adrenaline Pty Ltd v Bathurst Regional Council (2015) 97 NSWLR 207; [2015] NSWCA 123 at [69] that Pepper J's decision that a fee imposed under Pt 10 of Ch 15 of the Local Government Act fell under the Recovery of Imposts Act was correct. 2. Before the primary judge Mangoola resisted the operation of s 2(1) on the bases that (a) the claim in the Class 4 proceeding was a statutory claim and did not involve "restitutionary grounds", (b) s 2(2) disapplied s 2(1), because the Local Government Act provided a mode for challenging the validity of the impost with a specified limitation period, and (c) the proceedings were commenced within 12 months because Mangoola's cause of action did not arise until orders were made in the Land and Environment Court on 15 September 2021. The latter two of those contentions did not form part of Mangoola's appeal, and it is unnecessary to summarise his Honour's reasoning rejecting them. The primary judge also rejected the Council's reliance on defences based on Anshun estoppel and change of position in respect of the last payment. No cross-appeal has been brought by the Council in respect of the judgment in Mangoola's favour in the Common Law proceedings based on the last payment, nor has any notice of contention been filed in relation to his Honour's findings on either of those defences, and thus once again it is unnecessary to summarise his Honour's reasoning. 3. If s 2(1) applied, Mangoola's claims to recover all of its earlier payments were barred. Further, to the extent that s 2(1) applied, Mangoola's rights were extinguished by s 5, to which I shall return at the conclusion of these reasons, which provided: 5 Ending of right of recovery If because of this Act money paid by way of tax or purported tax ceases to be or is not recoverable, the right to recover the money is extinguished. 1. The primary judge held that the entirety of Mangoola's claims (both at common law and under the Local Government Act), save for the last payment of rates, was barred by s 2(1) and extinguished by s 5. Further, in relation to the Class 4 proceedings, his Honour held that they were misconceived. Section 527 of the Local Government Act did not entitle Mangoola to either a refund of overpaid rates or a credit against future rates notices. The argument advanced in writing and orally before the primary judge was narrower than that advanced in this Court. Before the primary judge, and consistently with the declaratory relief reproduced above, Mangoola's claim was confined to the proposition that s 527, and s 527 alone, conferred a statutory entitlement to a refund or credit of the overpaid rates. In this Court, but only in submissions advanced on the day of the hearing, Mangoola added that by way of fallback it also relied upon s 546(3) in conjunction with s 527. 2. As noted at the outset of these reasons, Mangoola did not cavil with the dismissal (save in respect of the last payment) of the entirety of its claim in the Common Law proceedings. Further, Mangoola's appeal from the dismissal of its Class 4 proceedings was much more focussed than at first instance. Mangoola would fail unless it escaped the effect of s 2(1) of the Recovery of Imposts Act, but the various submissions available to it were not all of the same force, and advancing on a broad front inevitably dilutes the force of all of a litigant's submissions. Mangoola concentrated its fire on the propositions that it had a right under s 527 (supplemented if necessary by s 546(3)) to recover the overpaid rates or obtain a credit, and that its claim in the Class 4 proceeding was not caught by s 2(1) of the Recovery of Imposts Act either because it was not a proceeding to recover overpaid tax "on restitutionary grounds" or, insofar as it sought a credit, it was not a proceeding to "recover" overpaid tax. 3. The primary judge commenced with the Recovery of Imposts Act and then addressed s 527 of the Local Government Act. The Council addressed the two issues in the opposite order, which would ordinarily be appropriate: the existence of an entitlement under statute is logically anterior to whether a claim to enforce that entitlement is statute-barred. However, for reasons which will in due course be explained, it is better to follow the approach taken by each of the primary judge and Mangoola, and deal first with the challenge to his Honour's reasoning based on the Recovery of Imposts Act, doing so on the assumption, favourable to Mangoola, that it enjoyed a right under s 527 to recover (either by way of refund or credit) the overpaid rates. The Recovery of Imposts Act 1. Mangoola resisted the applicability of the Recovery of Imposts Act on two grounds. It said that the statutory claim in the Class 4 proceeding fell outside s 2(1) because the overpaid rates were not "recoverable on restitutionary grounds". It also said that insofar as it sought a credit against future liability to pay rates, the proceeding did not seek to "recover" amounts of tax paid. The emphasis in Mangoola's submissions was heavily upon the former. Ground 1 – "recoverable on restitutionary grounds" 1. The primary judge held that proceedings seeking relief under s 674 of the Local Government Act for a breach of s 527 were proceedings to recover an amount "recoverable on restitutionary grounds", and so were caught by s 2(1) of the Recovery of Imposts Act: at [40]-[44]. In reaching this conclusion, his Honour was of the view that the phrase "recoverable on restitutionary grounds" was apt to include statutory claims, as well as claims at common law. 2. Mangoola's ultimate contention was that, on its proper construction, the words "recoverable on restitutionary grounds" required recovery to be grounded upon a restitutionary cause of action recognised by the common law. Unlike a claim at common law, s 527 did not require the establishment of any vitiating factor (such as mistake of fact or law) calling for restitution. Mangoola advanced five reasons in support of its construction. First reason – the primary judge's construction results in a tautology 1. Mangoola's first reason was that the primary judge's construction results in a tautology. Section 2(1) applies to proceedings brought "to recover … the amount or any part of the amount paid by way of tax or purported tax". If "recoverable on restitutionary grounds" means nothing more than a facility for securing the repayment of money, it was said to be entirely repetitive of what comes before it, and thus gave the phrase no work to do. Second reason – language of "restitutionary grounds" in ss 2 and 3 1. Mangoola submitted that the words "restitutionary grounds" in s 2(1) connote only common law claims for restitution. The primary judge reached the opposite view at [43], finding that the term was apt to include a statutory obligation, in accordance with the usage in K Mason, J Carter and G Tolhurst, Mason & Carter's Restitution Law in Australia (4th ed, 2021, Lexis Nexis) at 113 [229] to the effect that such obligations may be described as "an order for restitution". 2. Mangoola conceded that, in a broad sense, certain statutory powers may be described as "restitutionary" because they involve the repayment of money, but maintained that there was a distinction between "the character of the relief" and the "basis of the claim". It relied upon observations of Doyle CJ in Duke Group Ltd (in liq) v Alamain Investments Ltd [2003] SASC 415; 232 LSJS 58, where his Honour held that claims for breach of fiduciary duty and dishonest assistance were not actions "based on restitutionary grounds" for the purposes of s 38(1) of the Limitation of Actions Act 1936 (SA). The relevant passage of Doyle CJ's reasons is at [105]: While this remedy involves the effecting of restitution to KO for what it has lost, and can readily be described as restitutionary in character (Greater Pacific Investments Pty Ltd (in liq) v Australian National Industries Ltd (1996) 39 NSWLR 143 at 154) or as intended to ensure restitution (O'Halloran v R T Thomas & Family Pty Ltd (1998) 45 NSWLR 262 at 277) or as intended to ensure restoration of an asset lost (O'Halloran at 281), neither the cause of action nor the remedy itself is "based on restitutionary grounds": see also Parkinson (ed) The Principles of Equity (LBC Information Services, 1996) at [406] and Mason and Carter, Restitution Law in Australia (Butterworths, 1995) at [319]. 1. Reliance was placed upon decisions where similar language had been used, primarily SCI Operations. In that case, a question arose as to whether a statutory right to recovery under the Customs Act 1901 (Cth), which would not permit interest to be recovered, excluded the possibility of a common law claim for recovery, in which interest may be recovered. Gaudron J described the common law claim as a claim "on restitutionary grounds": at [42], [45]. Two members of the Court referred to the claim as being under "restitutionary principles": see Gaudron J at [44] and Kirby J at [83]. McHugh and Gummow JJ made reference to "restitutionary considerations" at common law: at [76]. Mangoola submitted that this use of language was significant, because it was used in contrast to the statutory right for recovery under the Customs Act. Mangoola also relied on this Court's decision in Frevcourt Pty Ltd v Wingecarribee Shire Council (2005) 139 LGERA 140; [2005] NSWCA 107, where Beazley JA referred to a common law right to recover a statutory contribution as being on a "restitutionary basis": at [104]. 2. Mangoola also directed attention to the specific language of "grounds", which was said to connote the existence of a vitiating factor that is needed to make out a claim for restitution at common law (such as mistake of fact or law, or a total failure of basis). This was said to be supported by the words "(including but not limited to mistake of law or fact)" in parentheses following the phrase "recoverable on restitutionary grounds", as mistakes of law or fact are paradigm examples of a category of case in which the common law recognises a right to restitution. 3. Mangoola also relied upon the use of the phrase "restitutionary ground" in s 3 of the Recovery of Imposts Act. Sections 3(2) and 3(3) relevantly provide: (2) Money paid by way of tax or purported tax is not recoverable on any of the grounds referred to in subsection (3), if: (a) the ground came into existence because of a non-legislative change of the law, and (b) the money was paid before the change. (3) The grounds are: (a) the ground of invalidity of any taxation legislation, or (b) the ground of mistake (whether of law or of fact) as to the validity or invalidity of any taxation legislation, or (c) any other restitutionary ground relating to the validity or invalidity of taxation legislation. 1. It was said that subss (3)(a) and (b) both reflected categories of case in which the common law recognises a right to restitution. As to subs (3)(b), mistake was recognised as a vitiating factor sounding in restitution in Australia in David Securities in 1992, and this subsection was inserted the following year. As to subs (3)(a), Mangoola said this reflected the "Woolwich principle" as found by the House of Lords in Woolwich Equitable Building Society v Inland Revenue Commissioners [1993] AC 70, which was also decided in 1992. Mangoola acknowledged that Woolwich has not been fully embraced in Australia, but said that that was irrelevant because, for the purpose of this submission, it simply sufficed to show that it was a common law decision which the legislature's focus was directed towards, and which might be followed in Australia. (The High Court has recently reserved judgment on an appeal which may decide the existence of the Woolwich principle in Australia: Redland City Council v Kozik (B17/2013, heard on 13-14 September 2023).) It followed from this understanding of subss (3)(a) and (b) that the term "restitutionary ground" in subs (3)(c) was necessarily directed to common law claims too. Third reason – purpose and history 1. The Recovery of Imposts Act has taken three different forms: (1) as it was enacted in 1963 (when it was called the Limitation of Actions (Recovery of Imposts) Act 1963 (NSW)); (2) the form it took between 30 November 1993 and 31 December 1995 following amendments in the Limitation of Actions (Recovery of Imposts) Amendment Act 1993 (NSW), and (3) the form it presently takes, which was altered by the State Revenue Legislation Further Amendment Act 1995 (NSW), which took effect from 1 January 1996. 2. Mangoola contended that the legislative history disclosed that, at each of these iterations, the purpose of the legislation has been to impose a time bar on common law restitutionary claims for the recovery of tax; it has never been directed to statutory claims. The legislative history is a little complex, and it may be convenient at the outset to note that Mangoola's ultimate submission was that: [It] disclose[s] with some clarity that the Imposts Act has at all times been directed to common law claims, claims which you would now call restitutionary, and that the changes made to it over time have been directed to improving the Act's efficacy at capturing those claims. The Act was never concerned with statutory claims in the sense of a right to recover tax created by statute. It wasn't concerned with those claims for the unsurprising reason that when the legislature had the opportunity to create such a statutory right, it would typically use that opportunity to prescribe the terms and conditions on which the right should be available. Generally, those terms and conditions and, in fact, the right is bespoke to the statute under which the impost has arisen. One didn't need to deal with statutory rights of recovery of tax, and the history …, in our submission, makes that quite clear. 1. As enacted, the only operative provision, s 2, provided: (1) No action or proceeding shall be brought to recover from the Crown or the Government or the State of New South Wales or any Minister of the Crown, or from any corporation, officer or person or out of any fund to whom or which it was paid, the amount or any part of the amount of any tax, fee, charge or other impost paid, under the authority or purported authority of any Act,— (a) before the commencement of this Act, after the expiration of the time within which such action or proceeding but for the enactment of this Act might have been brought or the expiration of twelve months after the date of the commencement of this Act, whichever period first expires; or (b) subsequent to the commencement of this Act, after the expiration of twelve months after the date of payment. (2) Subsection one of this section shall not apply to any action or proceeding brought pursuant to any specific provision of any Act providing for the mode of challenging the validity, or for the recovery of the whole or any part of any tax, fee, charge or other impost actually paid. 1. The extrinsic materials were said to show that s 2's enactment was directed to common law claims. Mangoola first drew attention to the analogous Victorian provision – s 20A of the Limitation of Actions Act 1958 (Vic) – which was introduced two years before s 2 of the Recovery of Imposts Act, and which s 2 replicated identically. The Report from the Statute Law Revision Committee for that bill was said to highlight two catalysts for s 20A. The Report made express reference to the High Court and Privy Council litigation culminating in Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127; [1955] HCA 28, as well as the High Court's subsequent decision in Barton v Commissioner for Motor Transport (1957) 97 CLR 633; [1957] HCA 50. The Report also referred to an attack on Victoria's liquor licensing fees which was occurring at that time (which was the challenge in Dennis Hotels Pty Ltd v Victoria (1960) 104 CLR 529; [1960] HCA 10). 2. Mangoola next turned to the legislative debates. Counsel drew attention to the second reading speech, where the moving Minister referred to the Victorian s 20A, as well as the High Court's decision in Barton: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 3 April 1963 at 4143-4144. References were also made to the High Court's decision in Dennis Hotels (at 4153), as well as "the reason for the measure" being a response to "many claims" in the wake of Hughes and Vale (at 4147). Similar references to judicial decisions were made in the Legislative Council. 3. Ultimately it was submitted that the extrinsic materials showed that "the parliamentarians are agitated about the prospect of an action for money had and received of the kind brought in the Hughes and Vale case, and of the kind that might've been brought had the Dennis Hotels litigation been successful, and they are foreseeing the need to impose some sort of limitation on claims of that kind". 4. Subsection (2) was said to show that the legislature's intention was to in fact preserve statutory claims, by carving out from the operation of subs (1) claims where the statutory right to recovery still existed. Thus, in the context of statutory claims, one needed to look to the specific statute for the conditions on recovery, as well as any applicable limitation period. The effect of this operation was that (a) if the specific statute did not provide a right of recovery then one could only recover under the common law and the Recovery of Imposts Act would apply, and (b) if the specific statute provided for a right of recovery but did not provide a limitation period, then the Recovery of Imposts Act would not apply by reason of subs (2), and there would therefore be no time bar on the claim at all. 5. The 1993 amendments were said to confirm that the Recovery of Imposts Act was only ever directed to common law claims. Although those amendments introduced several new operative provisions, Mangoola emphasised that no material changes were made to the operation of s 2 (aside from a change to the reference to "proceedings" in the chapeau, to which I will return). Instead, the central amendment was the introduction of s 3. Mangoola embraced the primary judge's observation at [29] that this amendment was intended to bar entirely common law claims arising from any overruling of Dennis Hotels (which was a possibility if the challenge in Capital Duplicators Pty Ltd v Australian Capital Territory (No 2) (1993) 178 CLR 561; [1993] HCA 67 was successful). 6. This purpose was said to be confirmed by the legislative debates. For example, the moving Minister noted that "[a] particular need for this legislation has arisen as a result of a High Court appeal in Capital Duplicators v Australian Capital Territory", and that if the High Court retrospectively overruled Dennis Hotels "the States will have to rely on Commonwealth and State safety net legislation to limit the threat posed to State finances should it become necessary to make large refunds of licence fees": New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 17 November 1993. 7. The final set of amendments in 1995 were said to be directed towards the High Court's decision in Commissioner of State Revenue (Vic) v Royal Insurance Ltd (1994) 182 CLR 51; [1994] HCA 61. In Royal Insurance, a majority of the Court found that the obligation to pay under the relevant provision of the Stamps Act 1958 (Vic) (such that the Commissioner could be compelled to refund the payments) only arose if there was a legal liability to make a refund, either under a statutory provision or at common law. The relevant liability was held to be mistake at common law. However, there was a further issue as to whether any action compelling the Commissioner to make repayments was barred by s 20A of the Victorian Limitation of Actions Act, which imposed a 12 month limitation period on actions to recover the amount of any tax paid "under the authority or purported authority of any Act". Both Mason CJ and Brennan J (with whom Toohey and McHugh JJ agreed) held (at 80 and 91 respectively) that any action to recover payments was not barred by s 20A, because the Stamps Act did not impose any liability to pay the duty. 8. Thus, relevantly, Royal Insurance held that s 20A of the Victorian Limitation of Actions Act (on which s 2 of the Recovery of Imposts Act was modelled) did not apply to mistaken payments resulting from a misreading of a statute. The changes made to s 2(1) by the 1995 amendments were, in Mangoola's submission, intended to ensure that mistaken payment claims of this kind were captured. That amendment replaced the words "of any tax paid, under the authority or purported authority of any Act" with the words as they presently appear, "paid by way of tax or purported tax and recoverable on restitutionary grounds (including but not limited to mistake of law or fact)". 9. Mangoola's submission as to the insertion of the words "recoverable on restitutionary grounds" was put orally as follows: And so two things have happened. One, those words ["under the authority or purported authority of any Act"] have come out, and two, words have come in, namely, "and recoverable on restitutionary grounds". Now, the explanatory memorandum makes it clear – I'll come to it in a second – but obviously what's happening is that this is focussing on the reasoning about s 20A [in Royal Insurance] and the notion that a mistake of law claim as to where the money is due under an Act. It does not relate to money paid purported to the authority, or purported authority of any Act. As a matter of construction, the High Court upheld that such a claim would not be caught by those words, so therefore, we have a major problem because what the legislature had been trying to catch, it can't catch anymore, and your Honours will see why we say in light of that, the insertion of the words "recoverable on restitutionary grounds" just makes it doubly clear … 1. The Explanatory Note for the amendments notes: "The decision in Royal Insurance suggests that the words 'under the authority or purported authority of any Act' do not apply to mistaken payments resulting from a misreading of a statute". 2. Finally, Mangoola drew attention to corresponding changes made to s 20A of the Victorian legislation in 1993, after the Victorian Full Court's decision in Royal Insurance Australia Ltd v Comptroller of Stamps (Vic) (1992) 92 ATC 4399; 23 ATR 528. That change was said to make it plain that s 20A was confined to common law restitutionary claims by reason of subs (1), which provided that applied to "a proceeding for the recovery of money paid by way of tax or purported tax under a mistake (either of law of fact)" (emphasis added). Attention was also directed towards Sloss J's judgment in ACN 005 057 349 Pty Ltd v Commissioner of State Revenue [2015] VSC 76; 100 ATR 817, where the legislative history and debates were outlined; in particular, at [54] her Honour referred to the second reading speech which reveals that the amendments were directed to the Full Court's decision: see generally [49]-[54]. Although these amendments differed in terms to those made to the Recovery of Imposts Act in 1995, Mangoola submitted that it showed that the Victorian Limitation of Actions Act – a statute in pari materia with the Recovery of Imposts Act – was also concerned only with common law restitutionary claims. 3. The primary judge viewed this history in a different manner, finding that the legislative amendments elicited an intention to extend the operation of the Recovery of Imposts Act, rather than restrict it, because the amendments were directed towards improving the protection provided for government revenue: at [36]-[37]. 4. In writing, Mangoola made three submissions in response to this. However, in oral submissions the response became much simpler: it was entirely irrelevant as to whether the amendments had the effect of broadening the statute's scope, because it was simply not what the Recovery of Imposts Act was directed towards. The focus was not on whether the history of amendments broadened or narrowed the scope; the focus was on their being concerned only with common law claims. Fourth reason – contextual errors in the primary judge's approach 1. The primary judge held that "if satisfaction of the phrase 'restitutionary grounds' is a necessary condition for the engagement of s 2, other provisions of the Imposts Act will have little or only limited operation": at [41]. Mangoola contended that each of the three examples provided by his Honour did not weigh against its construction. 2. First, the primary judge explained that "the definition of 'proceedings' to include forms of what were once known as prerogative relief would be inapt" because "[s]uch relief is not dependent upon common law principles of restitution". Mangoola noted that the reference to prerogative relief was made in November 1993, mirroring a change to the Victorian legislation made earlier that month, which was itself directed to reversing the Victorian Full Court's holding in Royal Insurance that the Victorian Limitation of Actions Act did not apply to an action for mandamus which indirectly vindicated a common law restitutionary right: see ACN 005 057 349 at [52], [54], referring to the second reading speech for the Victorian amendments. Consequently, it was said that such relief was the "appropriate means to compel a public officer to perform a statutory obligation to refund money in a case, such as Royal Insurance, where the statutory obligation is triggered by the existence of an underlying common law ground for restitution (such as mistake)". 3. Secondly, his Honour said that the removal from s 2(1) of the words "of any tax paid, under the authority or purported authority of any Act" but their inclusion as an immaterial consideration in s 7(1) would seem to be inapt. Mangoola contended that nothing turned on this difference because the use of the words in s 7(1) was specifically directed to reversing the finding in Royal Insurance that a mistaken payment is not paid under the authority or purported authority of any Act, which was made exclusively in the context of a common law claim for recovery of a mistaken payment. 4. Thirdly, the primary judge referred to the disengagement of subs (1) by subs (2) in cases where statutory remedies are sought, which assumes that subs (1) is engaged where such remedies are sought. Mangoola conceded that this was a matter of some complexity, but submitted that the legislative history showed that the addition of subs (2)(b) did not signal an intention for s 2(1) to capture statutory claims. Subsection (2)(b) mirrors s 20A(1)(b) of the Victorian Limitation of Actions Act, which was itself inserted in 1993. Mangoola drew attention to the legislative debates for s 20A which suggest that it was directed toward provisions which regulate independently of existing rights to a refund of tax, without creating a statutory right to refund. An example was said to be s 90AA of the Land Tax Act 1958 (Vic), considered by Sloss J in ACN 005 057 349; see also Royal Insurance and Commissioner of State Revenue (Vic) v ACN 005 057 349 Pty Ltd (2017) 261 CLR 509; [2017] HCA 6 at [72], [87]. The submission was put orally as follows: [Section 2(2)(b) of the Recovery of Imposts Act] is perfectly capable of being directed, as the Victorian one is directed, to a right that exists independently but is regulated by statute. That's what s 90AA of the Land Tax Act did and that if there's a disconformity it exists in the Victorian provision. My point is not only does the Victorian provision, which is only about common law claims, show that it's not necessarily a disconformity, but the fact that the New South Wales one has come along two years afterwards leads to an inference that it is serving the same purpose. … [T]he only point I'm seeking to make is that the point that … s 2(2)(b) undermines my argument, is not so because there is no difficulty with a provision like s 2(2)(b) co-existing with s 2(1) on the basis that s 2(1) is only about common law claims. That's the submission. Fifth reason – consequences justified a narrow construction 1. Mangoola observed that, if the primary judge's construction was correct, then "s 2 would have the effect of depriving Mangoola of any right to claim back overpaid rates because it did not bring its action within 12 months of paying the rates, notwithstanding that it was not established that it had made any overpayment until the Consent Orders were made on 15 September 2021, some four years after the first payments were made". That is because the gist of Mangoola's cause of action under s 674 was not the payment of charges, but rather the failure of the Council to act under s 527 to make adjustments, an action that could not occur until after 15 September 2021 when it was established that Mangoola had made overpayments. This was said to result in a "manifestly unfair" operation of the provision, which therefore favoured adopting Mangoola's narrower construction: see Royal Insurance at 64, 99. Consideration 1. Mangoola's written and oral submissions were advanced thoughtfully and effectively. Yet I remain unpersuaded. 2. Mangoola's first point accords with the settled principle of construction that all words in a statute should be given work to do: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [71]. But I do not accept the submission that reading "recoverable on restitutionary grounds" as extending to Mangoola's statutory right to an adjustment leaves those words with no work to do. There is a much more natural dichotomy which those words invoke, namely, the difference between payments sought to be recovered because they were overpaid, and payments sought to be recovered in order to compensate for loss caused by breach of a contractual, tortious or statutory duty. For it is not difficult to think of other bases upon which a plaintiff might seek to recover rates from a council. It might be alleged that a council negligently stated that the land would not be recategorised in the next five years, which induced a purchaser to buy the land, in which case a component of the damages sought by the purchaser might include the rates actually paid. Or it might be alleged that the council had promised that rates would be calculated in a particular fashion (such as the promise alleged to have been given to the landowner in Peregrine Mineral Sands Pty Ltd v Wentworth Shire Council [2014] NSWCA 429 as to the valuation of its quarry upon which rates would be calculated, leading to proceedings for their recovery mentioned at [61] of that decision). Or a council's conduct in relation to rates might be alleged to be misleading and deceptive, entitling a plaintiff to damages under the Australian Consumer Law based on the rates actually paid (for example, part of the relief sought in the Peregrine Mineral Sands litigation was statutory damages "equivalent to the excess of rates levied to what had been promised": see Wentworth Shire Council v Bemax Resources Ltd [2013] NSWSC 1047; 278 FLR 264 at [5]). None of those actions would engage s 2(1), because the basis of the claim to recover rates was to compensate the plaintiff for loss suffered by reason of the council's breach of tortious or contractual duty, or from the contravention of the prohibition against misleading or deceptive conduct, rather than on restitutionary grounds. The examples demonstrate that the words "recoverable on restitutionary grounds" have work to do even if they extend to all claims for overpaid rates. 3. Nor do I accept that "recoverable on restitutionary grounds" is confined to causes of action at "common law", as opposed to statutory claims. For one thing, every tax will have a statutory basis, and entitlements to recover overpaid taxes will very often have their source in statute. After all, there cannot be an incontestable tax; there must be some means by which recourse to the judicial power is allowed, as Dixon J explained in Deputy Commissioner of Taxation v Brown (1958) 100 CLR 32 at 40; [1958] HCA 2, and see MacCormick v Federal Commissioner of Taxation (1984) 158 CLR 622 at 639-641; [1984] HCA 20. Accordingly, taxation regimes commonly make elaborate provision for challenging a tax, what is to happen while the taxpayer's challenge is determined, and the means by which, if the taxpayer is successful, a refund is to be made (see for example Pt 10 of the Taxation Administration Act 1996 (NSW), in which Divisions 1-3 deal respectively with objections, reviews and refunds). An extreme example is the (former) Swimming Pools Tax Refund Act 1992 (Cth), which was enacted following Mutual Pools & Staff Pty Ltd v Federal Commissioner of Taxation (1992) 173 CLR 450; [1992] HCA 4 which held that sales tax on an in situ swimming pool was invalid for non-compliance with s 55 of the Constitution. It seems unlikely that the Recovery of Imposts Act – an Act which has effect despite any other Act (s 7(2)) – would not apply to claims with a statutory basis. 4. A second difficulty with Mangoola's distinction between "common law" and "statutory" claims is that while the distinction may be easy to state, it is difficult to apply in practice. Consider for example the statutory provision empowering refunds considered in Royal Insurance, where Mason CJ said at 66: "the grant of the discretionary power to refund an overpayment should not be regarded as authority to refuse a refund which a taxpayer is entitled to recover according to the principles of the general law". If the authority declined to exercise statutory power to repay, is its decision characterised as a failure properly to exercise the statutory power, or a breach of a duty at general law, or both? The fact that the answer is difficult, and contestable, tells against the distinction for which Mangoola contends. 5. A third difficulty is based on the myopia of the proposition that a claim for moneys had and received against the government is one at "common law". That proposition conveniently omits reference to the statutes by which the Crown's immunity from suit were removed. It is commonly assumed in the 21st century that a mistaken payment to the State is in the same position as a mistaken payment to a private person, but that is only by overlooking the innovation effected by s 5 of the Crown Proceedings Act 1988 (NSW) and its predecessors. Until the enactment of legislation authorising claims against the government (which occurred in the 19th century in most Australian colonies, decades before the position changed in England), it was not possible to sue the State even in contract or quasi-contract, save pursuant to legislation, which is concisely summarised by Barwick CJ in Maguire v Simpson (1977) 139 CLR 362 at 371-373; [1977] HCA 63 and in much more detail in P Finn, Law and Government in Colonial Australia (1987, Oxford University Press). (The High Court held in British American Tobacco that that was not always the case, observing that "[h]istoric common law doctrines which in England restricted the liability of the Crown or its amenability to suit cannot stand in the way" of the "new federal legal order" created at federation: at [62]. But Mangoola's claim was not in federal jurisdiction, nor are many claims against the State to recover overpaid taxes.) Mangoola's submission is an instance of a more general phenomenon whereby statutes which alter the position at common law tend subsequently to be forgotten. More recent examples are the inability of a wife to sue a husband in tort and contract (not fully abrogated until the enactment of s 119 of the Family Law Act 1975 (Cth)), or the complete defence of contributory negligence (not abrogated until the Law Reform (Miscellaneous Provisions) Act 1965 (NSW)). The "common law" right of which Mangoola speaks is intimately connected with statute, and could not be enforced as of right in the absence of statute. Here as in most areas it is misleading to speak glibly of the common law in contrast with statute, as Windeyer J observed in Gammage v The Queen (1969) 122 CLR 444 at 462; [1969] HCA 68 and see Burrows v Macpherson & Kelley Lawyers (Sydney) Pty Ltd [2021] NSWCA 148 at [122]. 6. Fourthly, at least two textual considerations strengthen the conclusion that s 2 applies to claims under statute as well as claims at common law. The first is s 7(2), which states that the Recovery of Imposts Act "has effect despite the provisions of any other Act". The only point of s 7(2) is to override other statutes. It is difficult to see what work s 7(2) would perform if s 2 only applied to "common law" claims. Of course, so-called common law claims are themselves regulated by statute, notably, by s 14(1)(a) of the Limitation Act 1969 (NSW) which imposes a six year limitation period for causes of action founded on quasi-contract. Even so, in the absence of s 7(2), the specific, and later, provisions of the Recovery of Imposts Act would prevail over the general six year limitation period in s 14(1)(a). It is possible that s 7(2) is included out of an abundance of caution. But that does not stand in the way of s 7(2) ensuring that the regime in s 2(1) extends to and prevails over most statutory regimes for repayment of taxes, including those enacted after the Recovery of Imposts Act. That is to say, s 7(2) is directed to fending off a submission that the later statute impliedly repeals parts or all of the Recovery of Imposts Act, which once again tells against the regime only applying to claims at common law. 7. The exception in s 2(2) provides further confirmation of this. The premise of subs (2) of the Recovery of Imposts Act is the existence of such "specific provisions" which have their own limitation period. Subsection (2) is a disapplication provision. Its purpose is to state the circumstances in which the prohibition in s 2(1) does not apply. It is clear that subs (2) applies to proceedings to recover tax actually paid. In circumstances where a specific provision of some statute authorises, inter alia, the recovery of tax actually paid and provides a different time limit for bringing proceedings, then the twelve month limitation period in s 2(1) is disapplied. But s 2(1) only applies to taxes which have been paid and which are "recoverable on restitutionary grounds". Although Mangoola maintained that "recoverable on restitutionary grounds" bears a narrow meaning, it is difficult to see why proceedings to recover rates actually paid and which fall within s 2(2) are not necessarily proceedings to recover rates actually paid which are recoverable on restitutionary grounds. The point is that proceedings falling within s 2(2) are thereby not subject to s 2(1), and if the two subsections are read together and harmoniously, it is natural to proceed on the basis that any proceedings for the recovery of tax actually paid such as to fall within s 2(2) will answer the description of proceedings falling within s 2(1). Mangoola submitted that the fact that s 2(2) addressed claims under statute did not stand in the way of s 2(1) being confined to common law claims, but given the relationship of the two subsections in the statute, and the function of the latter being to disapply the former, that submission is unpersuasive. 8. The primary judge made this point more concisely at [41]: the disengagement (in particular cases) of subs (1) by subs (2) assumes that subs (1) is engaged where statutory remedies are sought. 1. Moving from text to context, a more general difficulty with Mangoola's submissions is that there are ample indications in the Recovery of Imposts Act that s 2 is to be generally applicable. 1. First, s 7(1) provides that "This Act applies to money paid whether voluntarily or under compulsion, and applies whether or not the payment was made under protest, and applies whether or not the payment was made under the authority or purported authority of any Act." 2. Secondly, s 7(2) provides that "This Act has effect despite the provisions of any other Act." 3. Thirdly, s 4(1) limits the right of recovery to cases where the claimant satisfies the court that (speaking generally) it has not passed on the tax, and s 4(3) provides that the section "has effect despite anything in section 2 or 3, or in any other Act". 4. Fourthly, s 3 purports wholly to extinguish the right to recover money paid by way of tax or purported tax because of a "non-legislative change of the law" if the money was paid before the change, such as the High Court determining that business franchise fees applicable to licensees selling tobacco were unconstitutional in Ha v State of New South Wales (1997) 189 CLR 465; [1997] HCA 34, overturning a line of authority associated with Dennis Hotels. 1. The purpose of the legislation is self-evident: to safeguard the revenue. I see no basis to confine the purpose as being to safeguard the revenue but only against "common law" claims. It is difficult to see how the width of those provisions, and the evident purpose of the statute, can be reconciled with a narrow construction being given to "recoverable on restitutionary grounds". And of course this Court is required to prefer a construction which would promote the purpose underlying the Act: Interpretation Act, s 33. 2. I am likewise unpersuaded by the extrinsic materials. It is quite correct, as Mangoola emphasised, that a purpose of the various amendments to the Recovery of Imposts Act was to safeguard against common law claims. However, it simply does not follow that the Recovery of Imposts Act is to be construed as being confined to such claims. The error is a recurring one: it does not follow from an identification of the particular purpose motivating amendments that broadly worded amendments are confined to that purpose. In the present case, telling against that construction are the textual and contextual matters mentioned above all of which suggest a broad construction. 3. Mangoola's response to the reliance by the primary judge on the references in the Recovery of Imposts Act to prerogative relief and money paid under the authority of statute suffers from substantially the same problem. It may be accepted that the immediate cause of the amendments to the statute was the Royal Insurance litigation, as Mangoola contends. But that does not negate the ordinary approach to construction based on text and context. The fact that broad words are enacted in order to effect a particular identified mischief may be a consideration which favours a narrower reading of those words, but it does not mandate a narrow reading of general language, especially where as here there is no reason to doubt the underlying general purpose of preserving the revenue. 4. Finally, I see no real force in the consequentialist argument which Mangoola rightly relegated to last position. Twelve months is relatively short by limitation period standards, but there is no hardship for a taxpayer who has paid under protest and who has already challenged the Council's entitlement to the rates. All that Mangoola had to do was to make a claim for a refund of rates it had paid under what it claimed was the wrong categorisation of its land, and "park" that claim pending the determination of the Class 3 proceedings. It may be that such a claim could be made in the Class 3 proceedings themselves pursuant to s 16(1A) of the Land and Environment Court Act, but even if there be doubt about that a separate claim could unquestionably have been made in the Supreme Court and put on hold against the possibility that Mangoola succeeded in its challenge to the categorisation of its land as mining land. In oral submissions, Mangoola at one point resisted that conclusion, saying it would be an "entirely contingent action" with the result that it would not have an entitlement upon which it could sue. Mangoola's success would indeed be "entirely contingent" upon successfully challenging the categorisation of its land, but that does not stand in the way of commencing proceedings. It is not uncommon for recovery proceedings to be commenced and "put on hold" pending the determination of a point: examples may be seen in Timbercorp Finance Pty Ltd v Collins [2016] VSC 776; 119 ACSR 478 at [13], Australand Corp (Qld) Pty Ltd v Tang [2009] QSC 221 and Ciprian v Commissioner of Taxation [2002] AATA 746; 50 ATR 1257 at [5]. Of course, if it turns out that the contingency upon which the claim depends is not made out, then those proceedings will be dismissed, but that does not mean that proceedings cannot be commenced or that there is some impropriety in doing so; to the contrary, if a test case is going to take years to determine, bringing such proceedings may be necessary. 5. All of those reasons confirm the conclusion reached by the primary judge, wholly consistently with the above, that Mangoola's statutory claim in the Class 4 proceeding was a proceeding to recover taxes which were "recoverable on restitutionary grounds" within the meaning of s 2(1) of the Recovery of Imposts Act. Ground 2 – proceedings to "recover" an amount 1. This ground alleged that, contrary to the reasoning of the primary judge, insofar as the proceedings sought a credit for overpaid rates (as opposed to a refund), there was no claim to "recover" an amount within the meaning of s 2(1), such that the Recovery of Imposts Act did not apply. Mangoola contended that, on its proper construction, a claim to "recover" must involve the payment of money. 2. In support of this discrete ground Mangoola pointed to two textual considerations. First, it directed attention to s 3(4) of the Recovery of Imposts Act, which provides: Subsection (2) does not apply to proceedings for the recovery of money that, assuming the legislation concerned had been valid, would have represented an overpayment of a tax, if the legislation provides for the refund of the money. 1. Mangoola submitted that "[t]he apparently interchangeable use of the concepts of 'recovery of money' and 'refund of money' suggests that 'recovery' as it is used in s 2(1) is concerned with proceedings designed to result in the payment of money". 2. Secondly, Mangoola directed attention to s 4(1) of the Recovery of Imposts Act, which provides: Proceedings referred to in section 2 or 3(4) to recover an amount paid are however maintainable only to the extent that the person bringing the proceedings (the claimant) satisfies the court that the claimant has not charged to or recovered from, and will not charge to or recover from, any other person any amount in respect of the whole or any part of the amount paid. This applies whether or not any such amount has been itemised or otherwise separately identified in any invoice or other documentation. (Emphasis added.) 1. This was said to draw a distinction between the concepts of a "charge" and "recovery". The concept of a charge in s 4(1) – which accommodates obtaining an offset or credit from a third party – was said to support a reading of "recover" as confined to the narrower concept of the payment of money alone. 2. I do not accept Mangoola's submissions. 3. First, the purpose of the Recovery of Imposts Act would be frustrated if it prevented claims for a refund of overpaid tax, but did not extend to their economic equivalent (save as to timing), namely, proceedings to establish a credit, and that is contrary to s 33 of the Interpretation Act. 4. Secondly, Mangoola's submission is, with respect, a classic case of seeking to do indirectly that which is directly prohibited. Putting to one side considerations of timing, the economic effect of recovering the amount today and obtaining a credit against which future obligations to pay rates may be offset is identical. Mangoola's submission resembles the attempt to circumvent a provision preventing payments for military service being assigned or charged by the device of paying the amount into court rejected in Walker v Walker [1983] Fam 68, which is the example given in D Bailey and L Norbury, Bennion on Statutory Interpretation (7th ed, 2017, Lexis Nexis) at 404 in support of the proposition that "Where an enactment prohibits the doing of a thing, the prohibition is taken to extend to the doing of it by indirect or roundabout means, even though not expressly referred to". 5. Thirdly, there is considerable tension between Mangoola's submission and what is established by the judgment in Mangoola's favour (with which it does not cavil) which establishes that Mangoola had a common law right to recover overpaid taxes as a debt. It seems decidedly odd that Mangoola should (in the case of taxes paid within 12 months of bringing proceedings) have both a right to recover a refund and an entitlement to insist that the overpayment be used as a credit against future liability to pay rates. It is equally odd that Mangoola should (in the case of taxes paid more than 12 months before proceedings are brought) have no right to recover the overpayment but nonetheless would retain the entitlement to insist that its overpayment be used as a credit to offset future liability to pay rates. A construction which leads to improbable and capricious consequences is to be avoided: see Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 321; [1981] HCA 26. Conclusion on Recovery of Imposts Act 1. For those reasons, the primary judge correctly held that Mangoola's Class 4 proceeding was barred by the Recovery of Imposts Act. The appeal must be dismissed. Inappropriate to determine whether Mangoola had a statutory right under the Local Government Act 1. The foregoing is premised on the assumption, favourable to Mangoola, that it enjoys a statutory right under the Local Government Act to a refund or credit of the overpaid rates. The primary judge decided this adversely to Mangoola, and Mangoola, necessarily, challenged that conclusion, and the challenge was fully argued. 2. Determination of whether Mangoola enjoyed a statutory right under the Local Government Act will not affect this Court's order. It is not necessary to resolve that issue; and for the reasons that follow, I have concluded that it is inappropriate to do so, in accordance with Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49 at [7]-[8] and [101]. 3. At trial and in its written submissions in this Court, Mangoola's case was confined to an entitlement based on the obligation to make an "appropriate adjustment of rates" under s 527 of the Local Government Act. Section 546 was invoked merely by way of support, and not as an alternative basis for a refund or credit. The primary judge rejected this, for reasons with which I respectfully agree. His Honour relied upon the absence of any terminology for "refund" or "repayment" in s 527, in contrast with ss 593 and 594 which in terms imposed obligations on the Council ("must refund" and "are to be refunded"): at [64]. His Honour also relied upon the basal distinction between making a rate and levying a rate, the latter being effected by service of a notice under s 546, with his Honour observing at [66] that "[t]he simple point is that s 527 is not concerned with the recovery of unpaid rates which are payable, nor with any possible refund of overpaid rates". Finally, his Honour relied upon the dicta in Bayside, which his Honour considered to be correct, as do I. 4. That conclusion is reinforced by two further considerations. The first is that the liability to pay rates is a statutory charge on land, and is brought about by the service of a notice. The notice will enable a third party (such as a purchaser or secured lender) to determine the extent to which the land is charged. That is a further reason not to accept that an adjustment under s 527 without any service of a notice cannot affect a liability. 5. The second is that the ordinary meaning of s 527 accords with s 602 and the traditional obligation upon a council to maintain a record (what was previously called a "rate-book"). Once land has been recategorised, either by council decision or on appeal, then s 527 obliges the council to adjust its rate-book. The rate-book will itself be used to determine the notices which when created and served effect a liability to pay rates. This was perhaps clearer under the Local Government Act 1919 (NSW) (in what follows I have relied upon the 22 July 1991 reprint of Pt 7 of the 1919 Act). Section 142(1) provided that "Every rate shall be entered in a rate-book which shall be in the prescribed form". Pages from the rate-book could be tendered in enforcement proceedings, and were prima facie evidence of matters therein: ss 600, 621. Section 142(2) bears some resemblance to s 527 of the current Act. It provided: An alteration or amendment in the rate-book may be made in respect of any rate by— (a) inserting the name of any person claiming and entitled to have his name inserted as owner or as holder of a lease, as the case may be; (b) inserting the name of any person who ought to have been rated or who has since the making of the rate become liable to be rated; (c) striking out the name of any person who ought not to have been rated; (d) raising or reducing the sum at which any person has been rated, if it appears to the council that owing to any error in entering the rate in any rate notice or in the rate-book or in transcribing any figures from any valuation book the person has been under-rated or over-rated; (e) inserting any land which ought to have been rated and the necessary particulars in respect thereof; (f) making such other alterations or amendments as will make the rate conformable to this Act or to any ordinance. 1. Subsection (4) provided that "[a]n alteration or amendment in the rate-book made under this section shall have effect upon adoption by the council as though made when the rate was made". Notice of any alteration or amendment was required by subs (6) to be given as in the case of a notice of valuation, and gave rise to the same rights of appeal. 2. Plainly the rate-book was an important document, but it did not of itself effect a debt as between council and rate-payer. The rate-payer only became liable to pay when a notice was served. 3. The Local Government Act 1919 also dealt separately with refunds, and indeed one decision concerning refunds went to the High Court of Australia. Section 139(9) provided that "Where land which was ratable becomes not ratable, part of the rate paid thereon proportionate to the period of the year during which the land is not ratable shall be refunded by the council". In March 1927, a new provision s 132(1)(h) exempted from the category of "ratable land" land which belonged to a religious body and used for such purposes. Both provisions were inserted by the same amending Act. Land owned by a church was the subject of a general rate in January 1927, which was paid in November 1927. The Most Reverend Dr Kelly and other landowners sued for the refund, and the High Court in Kelly v Willoughby Council (1928) 41 CLR 51; [1928] HCA 25 held, allowing an appeal from the Supreme Court, that s 139(9) applied to land which by dint of the self-same statute had ceased to be ratable land. The point is that for many decades both the Local Government Act 1993 and its predecessor have distinguished between the alteration and amendment of the rate-book, and an express right to "refund" rates following land ceasing to be ratable land. 4. All of those considerations support the conclusion that s 527 did not of itself confer a right to a refund or credit of overpaid rates. 5. However, in submissions made when the appeal was heard, Mangoola adopted a slightly broader stance by way of fallback. Mangoola submitted that s 527 coupled with other provisions including s 546(3) entitled it to a refund or credit. The question being one of law, there is no compelling reason to prevent Mangoola from advancing a different case on appeal, despite this falling outside the declaratory relief sought, and subject to the potential of a special costs order in the event that it were to succeed on a basis not advanced below. However, the consequence of Mangoola's new case being advanced only on the day the appeal was heard is not only that this Court does not have the benefit of reasons at first instance, but also that it is far from clear that the Council was fully heard in response. 6. In circumstances where the point is entirely academic, and was not the subject of full argument, I think it is better to refrain from determining it. If it were to be determined, it would be necessary to consider what limitation period, if any, applied to the claim, and whether discretionary defences applicable to proceedings in the nature of judicial review were applicable. Conclusion and orders 1. Mangoola's appeal must be dismissed for the reasons already given. However, there is another reason not hitherto elaborated which points to the same result. 2. As mentioned at the outset of these reasons, Mangoola did not seek to disturb the judgment in the Common Law proceeding. That judgment creates an estoppel that the Recovery of Imposts Act applies to all save the last of Mangoola's payments of rates. Section 5 of the Recovery of Imposts Act extinguishes "the right to recover the money". Section 7(2) provides that the Recovery of Imposts Act has effect despite the provisions of any other Act. If as Mangoola contends it had any right under the Local Government Act to recover rates paid, s 5 extinguishes that right. I see no reason for confining s 5 which speaks of "the right to recover the money" only to Mangoola's rights at common law to recover the money, and not to extend to such rights as Mangoola may have under the Local Government Act to recover the money. To the contrary, I see no reason to depart from the ordinary meaning of s 5, which looks to money ceasing to be recoverable because of some provision of the statute, and then holds that "the right" to recover that money is extinguished. 3. Although res judicata was mentioned during the hearing, the combination of res judicata and s 5 was not. Had anything turned upon this, I would have favoured permitting the parties to be heard further on the point. But because the appeal must be dismissed for other reasons, no useful purpose would be served by taking that course. 4. There is no reason for costs not to follow the event. I propose that in each proceeding this Court order "Appeal dismissed with costs". 5. PAYNE JA: I agree with Leeming JA. 6. MITCHELMORE JA: I agree with Leeming JA. ********** Amendments 15 April 2024 - replaced "133" by "1132" in case citation in [21] and coversheet - replaced "to" by "and" in [58], so it reads "between 30 November 1993 and 31 December 1995" - replaced "if" by "of" in the first quote in [68], so it reads "of any tax paid" - replaced "an amount" by "of any tax" in quote in [76] - replaced "Any" by "any" in point (f) of quote in [107] - replaced "s 132(h)" by "s 132(1)(h)" in [110] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 April 2024