Bazeley v Hawkesbury Shire Council

[1989] NSWLEC 207

Land and Environment Court

of New South Wales

CITATION:	Bazeley v Hawkesbury Shire Council [1989] NSWLEC 207
PARTIES:	APPLICANT Bazeley RESPONDENT Hawkesbury Shire Council
FILE NUMBER(S):	30191 of 1987
CORAM:	Stein J
KEY ISSUES:	:-
LEGISLATION CITED:	Land and Environment Court Act Local Government Act
CASES CITED:	Azzopardi v. Tasman UEB Industries Ltd. (1985) 4 NSWLR 139). Brimbella v. Mosman Municipal Council (Court of appeal 19 April 1985); Coles v. Woollahra Municipal Council ((1986) 59 LGRA 133; Housing Commission of New South Wales v. Tatmar ((1983) 3 NSWLR 378; Carney v. Hawkesbury Shire Council (Land and Environment Court 1 June 1989; Soulemezis v. Dudley (Holdings) Pty. Limited ((1987) 10 NSWLR 247; Selvanayagam v. University of the West Indies ((1983) 1 All ER 824 at 825-6
DATES OF HEARING:
DATE OF JUDGMENT:	06/16/1989
LEGAL REPRESENTATIVES:	APPLICANT RESPONDENT

JUDGMENT:

HIS HONOUR: This is an appeal pursuant to s.56A of the Land and Environment Court Act against the decision of an Assessor dismissing a rural rating appeal made under s.118(7) of the Local Government Act. The grounds of appeal are that the Assessor erred in law in failing to give any or any adequate reasons for his decision.

Before proceeding I should mention that after some confusion at the commencement of the hearing of the appeal I ordered that the time for appeal be extended to 23 December 1988 to permit the appellant to appeal from the Assessor's decision. I also ordered that the appellant pay the respondent's costs of the oral motion to extend the time for appeal.

The Assessor's Judgment consisted of a fairly detailed and unexceptional statement of the law (to which no exception is taken), the question for the Court to determine and a statement of the principles which should guide him in the determination of the appeal. The Judgment also contains some minimal findings of fact. The land is identified together with its area. The relevant portions of the rate assessment notice are also recited. The Assessor then said:-

"The Court, in considering all the evidence and submissions put in this matter, is bound by s.118 of the Local Government Act 1919. It is necessary for the ratepayer to demonstrate that the occupiers were, on and around the relevant date, carrying out one or more of the businesses or industries listed in the definition of "rural land". Such designated activities are required to be carried on systematically, as a commercial venture organised for profit. It is not necessary that the business should be a large one or even presently making a profit; but the venture must have a manifest commercial purpose or character.

The Court must weigh the evidence relating to the various uses to which the land was put, including, but not being limited to, the intensity of such uses, the physical areas over which they extend, and their inputs and outputs. Such parameters should be quantified in the appropriate units of the S.I. (metric) system."

The next and final paragraph of the Judgment is as follows:-

"Having considered all the evidence and submissions put in this matter, the Court is of the opinion that it is not possible at this stage to find that the subject land is used wholly or mainly for the business or (sic) orcharding or grazing and thus this appeal fails."

As I understand the case for the appellant it is not submitted that there was no evidence upon which the Assessor could have concluded as he did. The gravamen of the complaint is rather that the Assessor gave no explanation for his final conclusions. It is submitted that he did not expose any of the reasoning process which led him to his conclusion.

In a recent appeal of Carney v. Hawkesbury Shire Council (Land and Environment Court 1 June 1989) the Chief Judge reviewed the recent law on the requirement of judicial officers to give reasons, in particular he referred to Soulemezis v. Dudley (Holdings) Pty. Limited ((1987) 10 NSWLR 247).

In that case Mahoney J.A. considered that a Judge did not have to detail the steps to his final conclusion but a broad outline of the reasoning on which he acted was sufficient. There was no need to set forth the reasoning process from one fact to another. A Judge was not required to give detailed reasons for his final conclusion (p.274D).

His Honour also highlighted a quotation from the Privy Council in Selvanayagam v. University of the West Indies ((1983) 1 All ER 824 at 825-6). Lord Scarman said in part:-

"But it is abundantly clear that the judge had the evidence - all of it - very much in mind. It is, of course, not necessary for a trial judge to make explicit findings on every disputed piece of evidence. If it is clear that he has the evidence in mind, it suffices for him to state his final conclusion, as the trial judge did in the passage already quoted.

......

The question is: was there evidence upon which the trial judge could properly reach the conclusion which he did? And the answer must be: abundant evidence, if he chose to accept it. And it is plain from his finding that he did accept it."

Mahoney J.A. had cited this authority in giving Judgment in Housing Commission of New South Wales v. Tatmar ((1983) 3 NSWLR 378).

McHugh J.A. considered that a question of law can arise if the failure to give any or any adequate reasons can be characterised as a breach of the principle that justice must be seen to be done. His Honour also indicated another approach by testing whether the absent findings of fact involved no legal standard. If that were so, no question of law arises.

At the conclusion of his Judgment McHugh J.A. said:-

"What is decisive is that his Honour's judgment reveals the ground for, although not the detailed reasoning in support of, his finding of fact. But that is enough in a case where no appeal lies against the finding of fact. Accordingly there was no failure to give reasons sufficient to constitute an error of law."

This portion is relied on by counsel for the appellant. It is submitted that the Assessor did not reveal the ground for his decision.

However, it seems to me that he did do so by clear inference. The Assessor had heard the evidence of the appellant, who bore the onus, and determined that he had not discharged that onus in accordance with the applicable principles of law which he had earlier set forth.

Furthermore, I do not see how the Assessor's decision, examined in context, can be seen as a denial of the maxim of justice seeming to be done. It is also difficult to appreciate how it could be said that the absent findings of fact involved any legal standard. It seems apparent to me that the Assessor was saying that the evidence of the appellant had not satisfied him that the subject land is used wholly or mainly for the business of orcharding or grazing.

The curious aspect of the matter is that if the Assessor had made some findings disclosing his reasons for the ultimate conclusion they could not be challenged even if they were perverse, irrational or erroneous (Azzopardi v. Tasman UEB Industries Ltd. (1985) 4 NSWLR 139).

In considering whether an Assessor has committed an error of law in failing to give reasons one must bear in mind that Assessors of the Court are not required to be trained lawyers. Their decisions should not be examined as if they were written by lawyers. Kirby P. referred to this in Brimbella v. Mosman Municipal Council (Court of appeal 19 April 1985). He added:-

"....I believe that it is undesirable in an appeal from a lay tribunal, where the appeal court is confined to a question of law, that it should examine too narrowly the words used in the decision, at least unless these words are central to the decision involved."

This Court has repeatedly eschewed the "fine tooth comb" approach when examining the decisions of technical Assessors for errors of law; Coles v. Woollahra Municipal Council ((1986) 59 LGRA 133).

In my opinion that appellant has not established a failure to give reasons by the Assessor sufficient to demonstrate an error of law. The appeal is therefore dismissed with costs. The order made by the Assessor is confirmed.