Limitation of Actions (Amendment) Act 2004 Act No. 8/2004 table of provisions




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Limitation of Actions (Amendment) Act 2004

Act No. 8/2004


table of provisions

Section Page



1. Purpose 1

2. Commencement 2

3. Limitation on proceeding for recovery of tax 2

4. New section 20B inserted 3

'20B. Limitation on recovery of tax or amount attributable to tax 3

5. New section 38B inserted 6

"38B. Supreme Court—limitation of jurisdiction 6

6. New section 39A inserted 6

"39A. Transitional—2004 amending Act 6

═══════════════ 6

Endnotes 7






Victoria


No. 8 of 2004




Limitation of Actions (Amendment) Act 2004

[Assented to 11 May 2004]






The Parliament of Victoria enacts as follows:


1. Purpose

The main purpose of this Act is to amend the Limitation of Actions Act 1958

(a) in relation to the application of section 20A of that Act (limitation on proceeding for recovery of tax); and

(b) to prevent the recovery of windfall gains in proceedings for the recovery of a tax or an amount attributable to a tax.

2. Commencement


s. 2

This Act is deemed to have come into operation on 4 March 2004.

3. Limitation on proceeding for recovery of tax



See:
Act No.
6295.
Reprint No. 8
as at
30 June 2003.
LawToday:
www.dms.
dpc.vic.
gov.au


(1) In section 20A(1) of the Limitation of Actions Act 1958

(a) after "purported tax" insert "or by way of an amount that is attributable to tax or purported tax";

(b) after "fact)" insert "or under colour of authority".

(2) In section 20A(2) of the Limitation of Actions Act 1958

(a) after "purported tax" insert "or by way of an amount that is attributable to tax or purported tax";

(b) for "an Act" (where twice occurring) substitute "a law".

(3) After section 20A(2) of the Limitation of Actions Act 1958 insert

"(2A) Sub-sections (1) and (2) apply to a proceeding between parties of any kind.".

(4) In section 20A(3) of the Limitation of Actions Act 1958

(a) for "the Act" substitute "the law";

(b) for "an Act" substitute "a law";

(c) after "of tax" insert "or of an amount that is attributable to tax";

(d) for "that Act" substitute "that law".

(5) In section 20A(5) of the Limitation of Actions Act 1958, insert the following definition—

' "law" means—

(a) an Act; or

(b) a subordinate instrument within the meaning of the Interpretation of Legislation Act 1984; or

(c) any other instrument that—

(i) applies as a law of Victoria; or

(ii) is made under, and is enforceable in accordance with, the provisions of an Act or of an instrument referred to in paragraph (b) or sub-paragraph (i);'.

4. New section 20B inserted


s. 4

After section 20A of the Limitation of Actions Act 1958 insert

'20B. Limitation on recovery of tax or amount attributable to tax

(1) A proceeding to which this section applies is only maintainable to the extent that the person bringing the proceeding (the claimant) satisfies the court that recovery of the money would not result in a windfall gain to the claimant.

(2) For the purposes of sub-section (1), recovery of money would not result in a windfall gain to the claimant if—

(a) the claimant has not charged to, or recovered from, and will not charge to or recover from, any other person an amount in respect of that money, whether or not that amount was itemised or otherwise separately identified in any invoice or other document issued by the claimant; or

(b) the claimant has reimbursed, or has entered into an unconditional and enforceable agreement to reimburse, each other person to whom the claimant has charged, or from whom the claimant has recovered, an amount in respect of that money.

(3) This section applies to—


s. 4

(a) a proceeding between parties of any kind for the recovery of money paid by way of—

(i) tax or purported tax; or

(ii) an amount that is attributable to tax or purported tax—

under a mistake (either of law or of fact) or under colour of authority; or

(b) a proceeding between parties of any kind for the recovery of money so paid that is recoverable because of the invalidity of a law or provision of a law.

(4) In this section—



"claimant" includes a predecessor or successor of a claimant;

"law" means—

(a) an Act; or

(b) a subordinate instrument within the meaning of the Interpretation of Legislation Act 1984; or

(c) any other instrument that—

(i) applies as a law of Victoria; or

(ii) is made under, and is enforceable in accordance with, the provisions of an Act or of an instrument referred to in paragraph (b) or sub-paragraph (i);



"proceeding" includes—

(a) seeking the grant of any relief or remedy in the nature of certiorari, prohibition, mandamus or quo warranto, or the grant of a declaration of right or an injunction; or

(b) seeking any order under the Administrative Law Act 1978;

"tax" includes fee, charge or other impost.'.

5. New section 38B inserted



s. 5

After section 38A of the Limitation of Actions Act 1958 insert

"38B. Supreme Court—limitation of jurisdiction

(1) It is the intention of section 20A, as amended by section 3 of the Limitation of Actions (Amendment) Act 2004, to alter or vary section 85 of the Constitution Act 1975.

(2) It is the intention of section 20B to alter or vary section 85 of the Constitution Act 1975.".


6. New section 39A inserted



s. 6

After section 39 of the Limitation of Actions Act 1958 insert

"39A. Transitional—2004 amending Act

The amendments made to this Act by the Limitation of Actions (Amendment) Act 2004 apply to and in relation to money paid before, on or after 4 March 2004 but do not apply to a proceeding commenced before that date.".

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Endnotes


Endnotes





Minister's second reading speech—

Legislative Assembly: 5 March 2004

Legislative Council: 21 April 2004

The long title for the Bill for this Act was "to amend the Limitation of Actions Act 1958 and for other purposes."



Constitution Act 1975:

Section 85(5) statement:

Legislative Assembly: 5 March 2004

Legislative Council: 21 April 2004

Absolute majorities:

Legislative Assembly: 1 April 2004

Legislative Council: 5 May 2004




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