Ardoch P/L v Valuer-General - [2006] SASC 26

SUPREME COURT OF SOUTH AUSTRALIA
(Land and Valuation Division: Application)
ARDOCH P/L v VALUER-GENERAL
Reasons for Ruling of The Honourable Justice Debelle
2 February 2006
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
Appeal instituted eight months out of time - whether extension of time should be granted - no prejudice suffered by respondent - relevant principles - valuation necessary - extension of time granted.
Valuation of Land Act 1971 s 24, s 25B, s 25C; Land and Valuation Rules 1984 r 8, r 84.1, referred to.
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196; Gallo v Dawson (1990) 93 ALR 479; Gikas v Police (1999) 202 LSJS 301; Hill v Parke Davis & Co Ltd (1986) 41 SASR 349; Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257; Jackamarra v Krakouer (1998) 195 CLR 516; McPherson v Groeneveld (unreported, Supreme Court of SA, 21 February 1997, no S6052); R v Secretary for Home Department; Ex parte Mehta [1971] 1 WLR 1087, considered.

ARDOCH P/L v VALUER-GENERAL
[2006] SASC 26
Land and Valuation Divison

DEBELLE J. This is an application for an extension of time within which to appeal to the Land and Valuation Court against a decision of the Valuer‑General dismissing an objection to an assessed valuation of land. There has been a substantial delay in lodging the appeal. It was well outside the prescribed time. On 5 October 2005 I granted an extension of time for reasons to be published. These are the reasons for that decision.
On or about 5 November 2003 the appellant received a notice of assessment for land tax. It lodged an objection within time on 2 December 2003. The Valuer-General disallowed the objection.
The appellant then had two alternatives available to it. First, it could appeal to the Land and Valuation Court against the decision of the Valuer-General pursuant to s 25C of the Valuation of Land Act 1971 (“the Act”). Alternatively, it could within 21 days of receiving notice of the Valuer‑General’s decision disallowing its objection apply for a review of the valuation pursuant to s 25B of the Act which carried with it the right of the appellant, if dissatisfied with the review, to appeal to the Land and Valuation Court pursuant to s 25C. The appellant initially chose to apply for a review of the valuation.
The Valuer-General’s notice to the appellant disallowing the objection was dated 17 December 2003. The appellant did not apply for a review of the valuation until 19 January 2004. The appellant, through its solicitors, states that the notice from the Valuer‑General was not received by it until 5 January 2004. There is no explanation for this delay in receiving the letter. In the ordinary course of post the letter would have been received within at least two to three days after 17 December. As the appellant did not apply for a review of the valuation until 19 January 2004, the application for a review of the valuation was lodged more than 21 days after the appellant had received the notice from the Valuer‑General disallowing the objection.
Section 24(1d) of the Act deems when a notice of valuation has been served. It provides that it will be deemed to have been served two days after it has been sent by post. There is no provision deeming when an application for review has been served. However, it is reasonable to ascribe the same period which accords with the usual expectation of when the document would be received in the ordinary course of post.
The appellant submits that it has complied with the time prescribed by s 25B because it lodged its application for review of the valuation within 21 days of 5 January 2004. However, that is to compute the time from the date when the appellant opened its mail rather than from the date upon which the notice from the Valuer‑General was in fact served.
After the appellant had on 19 January 2004 lodged its application for a review, an exchange of correspondence occurred between the appellant and the Registrar of the Valuation Review Panel concerning the lateness of the appellant’s application for review. It is unnecessary to note the details of that correspondence. It extended over a period of about one month. The appellant then instructed solicitors, who then engaged in further correspondence with the Registrar of the Valuation Review Panel. That correspondence extended over a period of just over three months. On 28 June the Registrar wrote re‑iterating the view that the appellant’s application for review was out of time. In the result, there was no review pursuant to s 25B of the Act.
On 15 July the appellant sought counsel’s advice, which was received on 20 August 2004. On 26 August 2004 the appellant instructed its solicitors to institute an appeal to this Court pursuant to s 25C of the Act. However, the appeal was not lodged until 21 September 2004. There is a complete absence of explanation for the delay in instituting the appeal. It is to be noticed that, although the appellant had initially chosen to apply for a review of the Valuer‑General’s decision under s 25B, it now appeals pursuant to s 25C against the Valuer‑General’s decision dismissing its objection. The appeal is substantially out of time.
The appellant did not serve the notice of appeal until 15 April 2005. Again, there is a complete absence of any explanation for this delay. It is asserted that the appellant was seeking an appointment from a judge of this Court but was unable to do so. There is no evidence of such a request. Furthermore, that is no explanation for the delay. The notice of appeal could and should have been served immediately upon the appeal being instituted.
The time for instituting an appeal pursuant to s 25C of the Act is prescribed by r 84.1(5) of the Land and Valuation Rules 1984 (“the Rules”). It is 21 days after notice in writing of the decision of the Valuer‑General disallowing the objection has been served on the person making the objection. The appeal ought, therefore, to have been lodged in early January 2004. Even if it is assumed that the appellant was served on 5 January 2004, the appeal ought to have been instituted on or before 27 January 2004. On the most favourable view of the appellant’s position, the appeal was instituted some eight months out of time and was served more than 14 months out of time.
Rule 8 of the Rules authorises the court to enlarge the time appointed by the Rules for taking proceedings and may do so notwithstanding that the application is made after the time fixed for taking the proceedings.
The Valuer‑General does not oppose the application to extend the time but submits that it is for the court to determine whether in all the circumstances the court should exercise its discretion to do so. The Valuer‑General says that he has not suffered any prejudice by the delay.
The explanation for the delay between late January 2004 and 20 August 2004 lies in the fact of the exchange of correspondence between the appellant and the Registrar of the Valuation Review Panel which continued from January 2004 to 28 June 2004. Thereafter, the appellant was seeking counsel’s opinion. There is, however, no explanation for the delay between 26 August 2004 when the appellant gave his solicitors instructions to appeal and the institution of the appeal on 20 September 2004. There is no satisfactory explanation for the delay of seven months in serving the Valuer‑General with the notice of appeal. There is no affidavit from the appellant itself. The only affidavit is from its solicitors which inadequately purports to explain the delay.
When a court is asked to exercise its discretion to grant an extension of time within which to appeal, it will exercise that discretion having regard to the fact that the discretion exists for the sole purpose of doing justice between the parties: Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 and Gallo v Dawson (1990) 93 ALR 479. When exercising that discretion, it will have regard to the length of delay, the reasons for it, whether there is an arguable case and the extent of any prejudice suffered by the intended respondent: Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 and McPherson v Groeneveld (unreported, Supreme Court of SA, 21 February 1997, judgment no S6052). A distinction is to be drawn between an application for an extension of time within which to appeal and an application for an extension of time to set down an appeal which has already been instituted: Jackamarra v Krakouer (1998) 195 CLR 516. This application is obviously an instance of the former.
There have been some very substantial delays in this matter, both on the part of the appellant and on the part of its solicitors. Although an affidavit has been filed which purports to explain the delay, it is not particularly satisfactory. It lacks particularity and does not explain all of the delay. I repeat, there is no affidavit from the appellant. As Lander J said in Gikas v Police (1999) 202 LSJS 301 at 304:
In my opinion no party is entitled to an extension of time within which to appeal unless that party explains, with appropriate frankness and candour, the reasons why the party did not observe the Rules of Court and in particular the time limits imposed by those rules: Hall v Nominal Defendant (1966) 117 CLR 423 at 435. The longer the delay the better the reasons need to be to explain that delay; R v Foster (1996) 187 LSJS 135; R v Balchin (1974) 9 SASR 64; Armstrong v R (1983) 35 SASR 356.
I have real concerns whether the appellant and its solicitors have explained the reasons for the delay with appropriate frankness and candour. It appears also that much of the delay has been caused by the appellant’s solicitors. The appellant should not be penalised by the delays of its solicitors: Hill v Parke Davis & Co Ltd (1986) 41 SASR 349 at 354.
I turn next to the question whether the Valuer‑General will suffer any prejudice in consequence of the delay. The Valuer‑General has stated that he is not prejudiced. The issues in this appeal relate only to the valuation of the appellant’s land and do not have any wider ramifications. The issues do not appear to have any bearing upon the value of other land. There will be occasions when valuation of land may have consequences for persons other than the parties in the appeal. If the Valuer‑General had been able to point to some wider public issue where delay would be critical or to some other factor which had some effect upon persons other than the appellant, the Court might have had to refuse to grant an extension within which to appeal. I proceed, therefore, on the footing that neither the Valuer‑General nor the wider public interest will be affected by the outcome of this appeal.
When considering whether the appellant has an arguable case, the court does not go into “much detail on the merits”: R v Secretary for Home Department; Ex parte Mehta [1975] 1 WLR 1087 at 1091; Jackamarra v Krakouer at [9] and [66]. An appellant will not have an arguable case if it is clear that the appeal will fail and in that sense is not “arguable” or not “fairly arguable”: Jackamarra v Krakouer at [34]. Where, as in this case, the issue is whether the Valuer‑General’s assessment of the value of the appellant’s land is too high, a would‑be appellant will not be able to demonstrate that it has an arguable case unless it has proved a valuation which makes good the contentions as to value. Without such a valuation the court has no means of determining whether the would‑be appellant has an arguable case. It is necessary, therefore for a person seeking an extension of time within which to appeal against the Valuer‑General’s assessment to prove a valuation supporting the contentions as to value. In this case it was necessary to adjourn the application for an extension of time to enable the appellant to have the value of the land assessed. It has proved the valuation. That valuation asserts that the value of the subject land is $450,000. The Valuer‑General’s assessment was $850,000. There is, therefore, a real issue as to the true valuation of the appellant’s land, an issue made the more complex because of the fact that the appellant’s land and improvements are listed on the State Register of Heritage Items. There is such a substantial difference in value that it is appropriate, notwithstanding the delay of more than eight months, to grant an extension of time within which to appeal pursuant to s 25C. In reaching that conclusion, I rely also on the fact that the Valuer‑General is not prejudiced. Had there been prejudice, the extension might not have been granted. I have regard also to the fact that the appellant initially lodged its objection within time. The appellant must, of course, pay the costs of the application.
For these reasons the following orders were made:
1.Extending the time within which to appeal to 21 September 2004.
2.That within 28 days there be a conference of valuers.
3.If the parties continue to disagree as to value, that the respondent deliver its valuation within 10 weeks of today’s date.
4.That the parties’ valuers thereafter again confer.
5.If the parties continue to disagree, the parties file and deliver a statement of matters in dispute.
6.Further consideration adjourned to 9 am on 8 February 2006.
7.Liberty to apply on short notice.
8.That the appellant pay the respondent’s costs of and incidental to the application including the costs of 27 July 2005 and the costs of today.