Case: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24
Outcome: cited
The taxpayer referred to Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 where Mason J (as he then was) identified the following propositions in connection with a failure to take into account a relevant consideration (at 39-41): (a) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision. ... (b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors -- and in this context I use this expression to refer to the factors which the decision-maker is bound to consider -- are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard. ... By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act. (c) Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision. ... (d) The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned. It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power. (references omitted) 18 Before I go to the appropriate approach to take in consideration of the GST Act and the Determination, Method 1 of the Determination provided for what is known as the hypothetical development method of valuation. It is convenient to briefly describe this valuation method. 32 In considering this matter, I have not found much assistance from the cases relied on by the taxpayer. The question is one of compliance with a statutory requirement and the consequences of any non-compliance. We are not dealing with a contractual setting, nor with the exercise of a power by a public official. However, even if it were appropriate to apply by analogy the principles referred to in Peko-Wallsend Ltd [1986] HCA 40 ; 162 CLR 24 , no different result would be reached in this proceeding. In the end it is a matter of determining what factors the professional valuer was bound to consider, and then to determine whether the failure to take into account a particular factor would result in invalidity. 33 It is thus now necessary to address the application of Method 1 by Mr Nicodimou. 34 As set out in cl 5 of the Determination, the methodology requires the valuer to assess the market value of the completed premises as at 1 July 2000, and then subtract from this figure the costs to complete the partially completed premises and the profit margin and holding costs. What is left is the price that the hypothetical developer would pay for the partially completed premises on 1 July 2000 and that is the value of those premises on 1 July 2000.