BROWN and CITY OF KALGOORLIE-BOULDER - [2023] WASAT 44

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: LOCAL GOVERNMENT ACT 1995 (WA)
CITATION:   BROWN and CITY OF KALGOORLIE-BOULDER [2023] WASAT 44
MEMBER:   JUDGE H JACKSON, DEPUTY PRESIDENT
HEARD:   ON THE PAPERS
DELIVERED          :   21 JUNE 2023
FILE NO/S:   DR 229 of 2022
BETWEEN:   ANDREW BROWN
Applicant
AND
CITY OF KALGOORLIE-BOULDER
Respondent

Catchwords:

Local government - Rates - Jurisdiction - Objection to rates notice - No objection under s 6.76 of Local Government Act

Legislation:

Local Government (Financial Management) Regulations 1996 (WA), reg 56(3)
Local Government Act 1995 (WA), ss 1.32(c), 6.25, 6.26, 6.39, 6.39(2), 6.40, 6.41, 6.43, 6.44, 6.49, 6.50, 6.51, 6.76, 6.76(1), 6.76(1)(a), 6.76(1)(b), 6.76(6), 6.77, 6.82(1), Div 6

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	Ms A Carles
Respondent	:	Mr D Trevaskis

Solicitors:

Applicant	:	N/A
Respondent	:	City of Kalgoorlie-Boulder

Case(s) referred to in decision(s):

Smith and City of Stirling [2006] WASAT 6
Van Oijen and Shire of Cuballing [2019] WASAT 62

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction and Overview

The applicant is an Aboriginal man represented in these proceedings by Ms Carles. She describes herself as the applicant's adoptive sister and is the donee of an Enduring Power of Attorney executed 19 November 2021. She has been dealing with the respondent on the applicant's behalf in relation to this dispute for many years.
The applicant is the former part-owner of property[1] located within the municipality of the respondent (Land). As owner of the Land, he was liable for local government rates under the Local Government Act 1995 (WA) (LG Act) until the Land was sold in 2022.
[1] The State Government, through Keystart, was a part‑owner and paid its respective share of the rates.
In or about 2018 he was in arrears as to those rates. In or about that year he received a lump sum of money. Through Ms Carles he paid $6000 to the respondent.
Both parties agree that the arrears at that stage exceeded $6000. However, Ms Carles says that the payment was offered to, and accepted by, the respondent as full and final payment of the rates arrears to that date.
The respondent disputes that characterisation of the payment. Amongst other things, it denies it has the power to reach such an agreement. It says that the applicant remained in arrears after that sum was paid and received.
Ms Carles appears to have paid the applicant's rates for the following couple of years until 2022 when the property was sold to a mining company (NSR).
Following settlement, NSR retained some funds to allow it to clear the rates arrears contrary to the wishes of Ms Carles, who insists that there were no rates arrears to be cleared.
A rates notice in the name of the applicant was produced in October 2022. It shows the applicant liable for rates for that year, as well as for a sum in arrears.
On 27 October 2022, Ms Carles purported to lodge an objection to that rates notice.
On 9 December 2022 the Executive Assistant to the CEO of the respondent emailed Ms Carles about the 'objection'. Ms Carles then filed an application with the Tribunal seeking review of that 'decision' pursuant to s 6.77 of the LG Act.
I raised the issue of jurisdiction at the first directions hearing after which the respondent submitted that there is no jurisdiction to determine the matter because: (1) the 27 October 2022 'objection' does not satisfy the criteria for such pursuant to s 6.76 of the LG Act; and (2) the email of 9 December 2022 is not a 'decision on an objection' for the purposes of s 6.77 of the LG Act.
Having taken advice in that regard, Ms Carles sought to amend the application such that it is taken to be made under s 6.82(1) of the LG Act.
In my view, and for the reasons that follow, the Tribunal lacks jurisdiction to determine the dispute. Whether it is brought under s 6.77 or s 6.82, the application does not satisfy the statutory criteria. It must therefore be dismissed.

Relevant Statutory Regime

Division 6 of Part 6 of the LG Act empowers the relevant local government to impose rates on the owner[2] of rateable land.[3]
[2] 'owner' is defined in s 6.25 of the LG Act. There is no dispute the applicant was an owner of the Land at all relevant times.
[3] 'rateable land' is defined by s 6.26 of the LG Act. There is no dispute the Land was rateable land at all relevant times.
Section 6.39 of the LG Act provides:
(1) As soon as practicable after a local government has resolved to impose rates in a financial year it is to ensure that a record is compiled, at the time and in the form and manner prescribed, for that financial year of —
(a) all rateable land in its district; and
(b) all land in its district on which a service charge is imposed.
(2) A local government —
(a) is required, from time to time, to amend a rate record for the current financial year to ensure that the information contained in the record is current and correct and that the record is in accordance with this Act; and
(b) may amend the rate record for the 5 years preceding the current financial year.[4]
[4] Underlining added.
Section 6.40 provides for the amendment of 'the rate record' pursuant to s 6.39(2).
Section 6.41 requires a local government 'to give to' the owner of rateable land 'a rate notice stating the date the rate notice was issued and incorporating or accompanied by the details and particulars prescribed'.
Regulation 56(3) of the Local Government (Financial Management) Regulations 1996 (WA) describes what 'a rate notice for land is to include'. It includes the 'details (including the amount and, where applicable, the rate in the dollar) of every rate and service charge imposed on the land'.
Subdivision 4 of Division 6 provides for the payment of rates. Relevantly, s 6.43 provides that rates are a charge on the land, and s 6.44 provides that the owner(s)[5] are liable to pay the rates to the local government. Section 6.50 provides that rates are payable on the date determined by the local government and s 6.51 provides that interest accrues on overdue rates.
[5] If there are two or more owners, they are jointly and severally liable.
Subdivision 7 of Division 6 is concerned with objections and review. Section 6.76 provides:
(1)A person may, in accordance with this section, object to the rate record of a local government on the ground –
(a)that there is an error in the rate record —
(i)with respect to the identity of the owner or occupier of any land; or
(ii)on the basis that the land or part of the land is not rateable land; or
(b)if the local government imposes a differential general rate …
(2)…
(3)An objection under subsection (1) may be made by the person named in the rate record as the owner of land or by the agent or attorney of that person.
(4)…
(5)The local government is to promptly consider any objection and may either disallow it or allow it, wholly or in part.
(6)After making a decision on the objection the local government is to promptly serve upon the person by whom the objection was made written notice of its decision on the objection and a statement of its reason for that decision.
Section 6.77 then provides for a person who is 'dissatisfied' with a decision of a local government 'on an objection by that person under section 6.76' to seek in this Tribunal 'for a review of the decision'.
Section 6.82 provides:
(1) Where there is a question of general interest as to whether a rate or service charge was imposed in accordance with this Act, the local government or any person may refer the question to the State Administrative Tribunal to have it resolved.
(2) Subsection (1) does not enable a person to have a question relating to that person's own individual case resolved under this section if it could be, or could have been, resolved under section 6.76.
(3) The State Administrative Tribunal dealing with a matter referred to it under this section may make an order quashing a rate or service charge which in its opinion has been improperly made or imposed.

The 'Objection', its Response and the Application for Review

On 27 October 2022, Ms Carles purported to object to the rate record on behalf of the applicant. The 'objection' was sent by email and stated as follows:
Andrew Brown objects to the rate record pursuant to section 6.76 of the [LG Act] on the grounds that there is an error in the rate record. Andrew Brown objects to the alleged fire hazard debt. The evidence he relies on to support the objection includes the following:
(1)There are 2 rates notices issued for the same property, for the same financial year and the same assessment number, namely A130. These 2 rates notices identify 3 different owners, use different calculation methods and identifies 2 different rate arrears for the same time period; and
(2)Andrew's letter to your office from Equitas Lawyers dated 28 June 2022 which explained the calculations relied on to support the final payment to the City of Kalgoorlie for $1,737.79, which cleared all outstanding rates and charges owing against 22 Barton Street at settlement on 28 June 2022; and
(3)Ms Carles to Mr O'Brien CEO of the City of Kalgoorlie, email 6 June 2022;
(4)Ms Carles to Mr Walker (former CEO) letter of 17 April 2018 with attached bank cheque which was a full and final settlement offer in relation to all outstanding claims against Mr Brown by the City of Kalgoorlie which was accepted with the act of banking the $6000 bank cheque; and
(5)July 2020 meeting in Kalgoorlie between Mayor Bowler, CEO John Walker, Adele Carles, Andrew Brown, Claudia Carles and Charlotte Carles in which it was agreed that Mr Brown had cleared all debts to the City of Kalgoorlie with the contract referred to above at (4).
I await your prompt decision …
By way of response to the 'objection', the 'Executive Assistant to the CEO' sent an email to Ms Carles dated 9 December 2022 which:
(a)Says that the author 'has spoken with our Rates Team and CEO who believes the matter has been settled as the Rates Notice was paid by [NSR]'; and
(b)purports to explain why the 'rates notices are different'. That appears to be a reference to the matters set out in para (1) of Ms Carles' email quoted above. The email explains that:
(i)the 'first notice was issued to show what the rates were at the time of settlement being 28/06/2022. As the notice was requested in July 2022, the notice was unable to be back‑dated to the previous financial year as the City cannot produce a rates notice retrospectively'; and
(ii)'The second rates notice was issued to [NSR] for this current financial year, they have inherited the arrears on the property as of settlement. …'
Ms Carles lodged the application for review on 22 December 2022. It identifies the date of the decision the subject of review as 9 December 2022 and identifies the decision maker as the CEO of the respondent. It therefore appears to me, and the parties proceeded on the basis that, the email from the CEO's Executive Assistant is the 'decision' the purported subject of review.
In a document filed with the application for review and headed 'Submission from Adele Carles – Objection to rates arrears …' it is stated:
…
(3)In 2018, I made a 'full and final settlement offer' to clear all arrears on Mr Brown's account to the City. The City banked the $6000 settlement cheque and I presumed the matter had been finalised … I continued to pay all of Mr Brown's rates up until 28 June 2022 when the property was sold to … [NSR]. At settlement, Mr Brown's solicitor paid $1,737.79 to the City and stated 'this is the final payment that the Owner by his Attorney will make in relation to the Purported Debt'. Again, the City banked this payment and said nothing for months. Again, I presumed that the matter was at an end.
…
(5)However, more than 3 months after the property had sold on 28.6.22, the City indicated it would be claiming arrears for [the property], that presumably had accrued prior to the full and final settlement date in 2018, effectively ignoring the legal effect of the 'full and final settlement offer'.
…
(7)The legal issue that goes to the heart of this dispute is – Did Mr Brown's letter of 17 April 2018 to the CEO with a bank cheque in the amount of $6000.00 constitute a 'full and final settlement offer'; in that it operated to release him from all outstanding claims against him by the City … as at the date of the letter.
Attached to that submission was a timeline and 15 Annexures, including:
(a)the letter of 17 April 2018 in which Ms Carles states that the applicant 'is offering a cash payment of $6000.00 in full and final settlement of all outstanding claims';
(b)a letter from Equitas lawyers of 28 June 2022 which notes that the rates statement produced by the respondent 'shows outstanding rates of $15,288.39 … including a charge for $5764.60 for an alleged "fire break debt" which includes $2,536.10 in interest charges'. It states that they (Equitas) were instructed to proceed to settlement on the basis that the applicant owes only $1737.79 in rates;
(c)various communications between Ms Carles and NSR and the respondent; and
(d)two rates notices issued for the property; one in the name of NSR and issued 26 August 2022 and one in the name of the applicant and Keystart Loans Ltd and issued 14 October 2022.

A Brief Procedural History

The matter came on before me for its first directions on 10 February 2023. I indicated to Ms Carles that I was concerned that I lacked jurisdiction because the dispute is, on its face, whether the payment in 2018 of $6000 cleared all rates arrears to that date. I adjourned the matter for a month and invited her to obtain legal advice.
Ahead of the directions listed for 10 March, the respondent filed a letter of 8 March 2023 in which it submitted that the Tribunal's jurisdiction was not engaged because the 'objection' of 27 October 2022 does not satisfy the criteria for such under s 6.76(1) of the LG Act and because the email of 9 December 2022 does not amount to a 'decision on an objection' pursuant to ss 6.76(6) and 6.77 of the LG Act.
At the directions on 10 March 2023, Ms Carles provided me with a very brief email to her from Francois Carles, trading under the name Carles Solicitors, in which he states, having briefly set out his understanding of the facts, that 'in his view' the Tribunal has 'jurisdiction to hear the matter'. No explanation for that conclusion is provided.
At that directions hearing I again raised my concerns as to jurisdiction and again adjourned the matter, this time for 6 weeks, to allow the parties to file and serve written submissions.
By email of 25 April 2023[6] Ms Carles filed and served submissions in which she stated that the applicant concurs that the matter 'could not be resolved under section 6.76 of the [LG Act]' and sought to amend the application so that it was made under s 6.82(1) of the LG Act.
[6] By orders made 21 April 2023 the time for compliance was extended.

The Tribunal Lacks Jurisdiction under s 6.77 of the LG Act

Because the applicant accepts that there is no jurisdiction to determine the matter under ss 6.76 and 6.77 of the LG Act it is unnecessary for me to address the issue. Nonetheless, it is convenient if I do so, albeit briefly.
Section 6.76 provides for an objection on one of three grounds, two of which are contained within s 6.76(a).[7] Both of them concern an 'error in the rate record': (1) that there is an error in the rate record with respect to the 'identity of the owner or occupier of any land'; and (2) 'that the land or part of the land is not rateable land.'
[7] The single ground in s 6.76(1)(b) concerns the imposition of a differential general rate. It is clear that the 'objection' does not concern any alleged differential rate and it is not necessary to address this any further.
By reference to ss 6.39 and 6.41 it is clear that there is a significant difference between the 'rate record', which is maintained by the relevant local government and a 'rate notice', which is sent out to the ratepayer.
In the first line of the 'objection', Ms Carles states that the applicant 'objects to the rate record' pursuant to s 6.76 of the LG Act. However, what follows is clearly not concerned with the rate record. Rather, it is concerned with what is contained in the relevant 'rate notice'. Specifically, it is concerned with the inclusion in the rates notice of a sum of money said to be in arrears.
But even putting the difference between the rate record and the rate notice to one side, the subject matter of the 'objection' is not about whether the Land is or is not 'rateable land' and neither is it that the rate record incorrectly identifies the applicant as the owner of the Land, which are the two grounds for objection in s 6.76(1)(a) of the LG Act.
There is no dispute that the Land is rateable and, while it is true that the 'objection' raises the issue of ownership, that complaint is clearly misconceived and, in any event, is not the substance of the complaint.
The concern about ownership raised in the 'objection' is explained in the 'decision' of 9 December 2022. That explanation is clearly correct when one has regard to the two documents in question. Although both were issued in the second half of 2022 and both concern the financial year 2022/2023, the rate notice issued in the name of the applicant includes the statement that the notice is a 'Copy of 2021/22 Rates Notice At Settlement 28/6/22'.
In any event, while Ms Carles initially laboured under some confusion about the rate notice issued to the applicant in October 2022, there is no dispute that, prior to its sale to NSR in or about June 2022, the applicant was the owner of the Land.
I repeat, the 'objection' does not allege that there is an error in the rate record either as to the rateability of the Land or its ownership. Rather, the issue that the applicant wants resolved by the Tribunal is whether the payment of $6000 in 2018 was in 'full and final settlement' of all rates arrears to that point.
That is not a matter addressed by s 6.76 and I am satisfied (and I find) that the 'objection' made on 27 October 2022 was not an objection made pursuant to s 6.76 of the LG Act.
Accordingly, whatever decision was made regarding that 'objection' it cannot be a 'decision on the objection' for the purposes of s 6.76(6) and s 6.77.
In any event, the text of the email of 9 December 2022 was clearly not a 'decision on the objection'. On the face of it, the author of the email (the 'executive assistant to the CEO') may well lack authority to make such a decision.
But irrespective of that issue, there is no 'decision' communicated in the text of the document.
Indeed, on its face the email of 9 December 2022 does not make a decision at all. It merely communicates the understanding of others that the outstanding rates have been paid by NSR and provides an explanation for the issue of two, apparently different, rates notices.
To be clear, the email's statement that the respondent's staff understand that NSR has paid all outstanding rates is not a 'decision on the objection'.
That is because the 'objection' is not concerned with whether the rates have or have not been paid in 2022 but whether they were paid in 2018 and therefore were not liable to be paid in 2022.
For these reasons the applicant was correct to concede that the Tribunal lacked jurisdiction to review the 'decision' of 9 December 2022 pursuant to s 6.77 of the LG Act.

The Tribunal Lacks Jurisdiction under s 6.82 of the LG Act

As noted above, Ms Carles' submissions of 25 April 2023 seek leave to amend the application for review to an application brought under s 6.82 of the LG Act.

Ms Carles' submissions in this regard include that:
(a)applications which are expressed to relate to only one ratepayer can fall within the scope of s 6.82 of the LG Act;[8]
(b)it is appropriate for the Tribunal to approach applications under s 6.82 in a manner which accords with Parliament's intent of establishing a right of review;[9]
(c)there is 'a question of general interest' as to whether the rates or service charges imposed in the rates notice issued on 14 October 2022 (to the applicant) and 26 August 2022 (to NSR) 'were imposed in accordance with the [LG Act], given that the Applicant entered into a settlement agreement with the [respondent] in April 2018';
(d)settlement agreements of the relevant nature are permitted by s 6.49 of the LG Act, which provides: '[a] local government may accept payment of a rate or service charge due and payable by a person in accordance with an agreement made with the person.'; and
(e)should the Tribunal rule that it lacks jurisdiction, the only available option would be to issue proceedings in the Supreme Court which would be prohibitively costly and place an unfair burden on the applicant.
[8] Van Oijen and Shire of Cuballing [2019] WASAT 62 (Van Oijen).
[9] Smith and City of Stirling [2006] WASAT 6.
The 'question of general importance' was framed by the applicant as whether 'the rates or service charges imposed … were imposed in accordance with the [LG Act], given that the Applicant entered into a settlement agreement with the [respondent] in April 2018.'
The respondent filed responsive submissions on 9 May 2023. They proceed on the basis that the application is no longer made under s 6.76 but is, rather, made under s 6.82.
Paragraphs 6 and 7 of the respondent's responsive submissions provide as follows:
The imposition of a rate by a local government under section 6.32 of the LG Act (ie the imposition of a uniform or differential rate as a rate in the dollar) is an entirely separate process and matter to whether or not an agreement to settle rates has been made in accordance with section 6 49 of the LG Act, which states –
'A local government may accept payment of a rate or service charge due and payable by a person in accordance with an agreement made with the person'.
The Applicant does not appear to dispute the propriety or merits of the imposition of the rate or service charge by the City. Rather, the Applicant appears, to the City, to seek the Tribunal decide that the City accepted the receipt of $6,000 as a payment in full satisfaction of unpaid rates. In this way, it cannot be said to be a question relating to 'whether a rate or service charge was imposed'.
I agree.
In so doing, I accept and agree with the statements of SM Willey in Van Oijen that:[10]
… the Tribunal should approach applications under s 6.82 of the LG Act in a manner which accords with Parliament's intent in establishing a right of review. It is also the case that s 1.3(2)(c) of the LG Act provides that the LG Act is intended to result in greater accountability of local governments to their communities …
[10] Van Oijen, at [58].
In that case, the Senior Member found that:[11]
… whether rates have been served in accordance with the requirements of the LG Act goes to the question of whether rates have been imposed in accordance with the LG Act. That is a question of public importance.
[11] Van Oijen, at [59].
But consistent with the respondent's submissions repeated above, the issue pursued by the applicant is not whether the rates arrears were imposed in accordance with the LG Act. That does not appear to be in dispute.
Rather, what is in dispute is whether the payment in 2018 of less than the full amount outstanding was accepted by the respondent as payment 'in full and final settlement', and whether, therefore some of the rates in areas prior to that date, remain unpaid.
In my view, the issue in dispute is not 'whether a rate or service charge was imposed in accordance with [the LG Act]', which is the language of s 6.82 of the LG Act. Accordingly, it does not fall within that section.
The Fire Hazard Debt
Before concluding, I must address the issue of the ‘fire hazard debt’.
In the initial ‘objection’, Ms Carles refers to a ‘further invoice … for an alleged fire hazard clearing that allegedly took place on 26 February 2010’. She denies that the debt ‘was accepted by’ the applicant but says, in any event, it is no longer recoverable ‘as it is statute barred’.
The 9 December 2022 email finishes by saying that the writer ‘will get back to [Ms Carles] on the Fire Hazard debt next week’.
Accordingly, even if the original ‘objection’ might be said to cover the fire hazard debt, there is no ‘decision on the objection’ for the purposes of s 6.77 of the LG Act.
There was also nothing in the applicant’s submissions regarding s 6.82 of the LG Act that specifically addressed the question of the fire hazard debt, although Ms Carles says that there is a question of general interest ‘as to whether the rates or services charges … were imposed in accordance with the [LG Act] given that the Applicant entered into a settlement agreement with the [respondent] in April 2018’.
For present purposes, and to allow the applicant’s case to be put at its highest, I will assume that the fire hazard debt is a service charge.
But even if that is the case, and even if the reference to ‘service charges’ in the applicant’s ‘question of general interest’ is a reference to the fire hazard debt, it is clear that the applicant’s case in that regard is the same as to the question of the rates – he says that the agreement of April 2018 cleared all of his arrears owed to the respondent to that point.
Accordingly, I repeat my findings as set out above at paragraphs 54-60. That is, the applicant’s complaint is not that the charge was imposed in accordance with the LG Act and, as such, the dispute is not one that falls within s 6.82 of the LG Act.
Accordingly, I am satisfied that I lack the jurisdiction to determine the application which should, therefore, be dismissed.

Orders

The application is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
RM
Associate to Deputy President Judge Jackson
21 JUNE 2023