Carney v Hawkesbury Shire Council

[1989] NSWLEC 198

Land and Environment Court

of New South Wales

CITATION:	Carney v Hawkesbury Shire Council [1989] NSWLEC 198
PARTIES:	APPLICANT Carney RESPONDENT Hawkesbury Shire Council
FILE NUMBER(S):	30018; 30019 of 1989
CORAM:	Cripps J
KEY ISSUES:	:-
LEGISLATION CITED:	Land and Environment Court Act
CASES CITED:	Azzopardi v. Tasman UEB Industries Limited (1985); Soulemezis v Dudley (Holdings) Pty Limited 1987 10 NSWLR 247; Sun Alliance Insurance v Massoud 1989 1 VR 8; Housing Commission of New South Wales v Tatmar Pastoral Company Pty Limited 1983 3 NSWLR 378 at 386; Pettitt v Dunkley 1971 1 NSWLR 376.; Stein J in Coles v Woollahra Municipal Council 59 LGRA 133). In Brimbella v Mosman Municipal Council (19 April 1985 Court of Appeal)
DATES OF HEARING:	02/11/87, 01/02/88
DATE OF JUDGMENT:	06/01/1989
LEGAL REPRESENTATIVES:

JUDGMENT:

His Honour: This is an appeal pursuant to the provisions of s 56A of the Land and Environment Court Act against the decision of an assessor published on 9 November 1988 in matters No 30118/86 and No 30119/86. The present grounds of appeal are that the assessor erred in law in failing to give adequate reasons for his decision.

In 1986 the appellant appealed to the Land and Environment Court against a determination of the Hawkesbury Shire Council that his land was not relevantly "rural land" as defined in Part VII of the Local Government Act and hence not rateable as "rural land". Section 117(7) of the Local Government Act casts the onus of proof upon the ratepayer to establish that his land is "rural land".

The first decision of the assessor was published on 18 July 1986. He dismissed the appeals. The appellant appealed to the Court pursuant to s 56A. On 2 November 1987, Bignold J allowed the appeal, set aside the decision of the assessor and ordered that the case be remitted to him for further determination in accordance with the law as determined in the appeal. An application for leave to appeal against the decision of Bignold J was refused by the Court of Appeal on 1 February 1988.

The first appeal against the assessor's decision was that his decision was against the evidence and the weight of the evidence, that he misdirected himself as to the standard of proof required and that he required "the appellant to give full financial details contrary to decisions of this honourable Court". In his published reasons, Bignold J, following the decision of the Court of Appeal in Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139, held that a finding that was against the evidence and the weight of the evidence did not raise a question of law. However, Bignold J concluded that the assessor had misdirected himself as to the meaning of the word "business" where it appears in the definition of "rural land" in s 118(1) of the Local Government Act and the nature of the proof required to establish the carrying on of a business. The assessor had expressed the opinion that the venture the subject of the proceedings had not been shown to have a "significant" commercial purpose. It was held that th

e use of the word "significant" demonstrated that the assessor misapplied the law. Furthermore, Bignold J held that the assessor misdirected himself by "prescribing limitations as to the nature and extent of the requisite evidence to prove that the ratepayer was carrying on the business of orcharding". Bignold J held that the evidence before the assessor was capable of sustaining a finding "by way of inference" that the rural pursuits were carried out by the ratepayer as a business. His Honour observed: "... Whether the inference is ultimately to be drawn is a matter for the assessor". As I have said, the two cases were remitted to the assessor.

The matters came before the assessor on 29 June 1988. No further evidence was called. The matter was

reargued. On 9 November 1988 the assessor published his reasons which I set out in full:

"This matter has been remitted to me from a decision of Bignold (1987), pursuant to s 56A of the Land and Environment Court Act 1979. The original judgment (Stewart, 1986) identified the relevant issues and described the subject site.

Having considered all the evidence, submissions and findings on matters of law, I remain unconvinced by the applicant's case. In my opinion, he has not, on the balance of probabilities, discharged the onus of proof that he is entitled to the rate concession for rural land. I do not infer from the qualitative evidence presented that the magnitude or intensity of his enterprise was such that the subject land was being used, on the subject date, wholly or mainly for one of the industries or businesses specified in s 118(1) of the Local Government Act 1919. I am therefore minded to dismiss the appeal".

The question whether the failure to give reasons, or adequate reasons, can amount to an error of law has been discussed in a number of authorities. The most recent is a decision of the Court of Appeal in Soulemezis v Dudley (Holdings) Pty Limited 1987 10 NSWLR 247 and the Victorian Full Court in Sun Alliance Insurance v Massoud 1989 1 VR 8. (See also Housing Commission of New South Wales v Tatmar Pastoral Company Pty Limited 1983 3 NSWLR 378 at 386 and Pettitt v Dunkley 1971 1 NSWLR 376.)

In Soulemezis, McHugh JA considered that without the articulation of reasons a judicial decision could not be distinguished from an arbitrary decision. He identified at least three purposes served by the giving of reasons. The first, to enable the parties to see the extent to which their arguments have been understood and accepted as well as the basis of the judge's decision, the second, to further judicial accountability and the third, to enable interested parties to ascertain the basis upon which like cases would probably be decided in the future.

However, both Mahoney JA and McHugh JA emphasised that care should be taken that dissatisfaction with the finding of fact does not mislead the court into holding that a judge has failed to give reasons; that there is no need to give elaborate reasons and, ordinarily, there is no necessity to give reasons with respect to a conclusion which the parties had not debated before the decision maker. If I understand the decision of the majority correctly, it is that the purpose giving rise to the requirement to give reasons is sufficiently satisfied if the reasons are intelligible to the parties to the proceedings. Furthermore, McHugh JA was of the opinion that if no right of appeal is given against findings of fact, the failure to state the basis of even a crucial finding of fact if it involves no legal standard will only constitute an error of law if the failure can be characterised as a breach of the principle that justice must be seen to be done.

A conclusion that a party bearing the onus has not discharged that onus does not, even if such a finding is characterised as perverse, raise a question of law except within the exception referred to in Azzopardi. But if no reasons are given, or only inadequate reasons are given, a question of law can arise if the failure to give any, or any proper reasons, can be characterised as a breach of the principle that justice must be seen to be done.

Before turning to the question whether it has been demonstrated that the reasons of the assessor are inadequate, it is to be remembered that the assessors of the Land and Environment Court are not required to be trained lawyers and that a "fine tooth comb" approach should not be used when examining decisions of technical assessors for errors of law (see Stein J in Coles v Woollahra Municipal Council 59 LGRA 133). In Brimbella v Mosman Municipal Council (19 April 1985 Court of Appeal) Kirby P said:

"Secondly 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. Increasingly, courts have to review, on questions of law, expert specialist tribunals. Thus, the Federal Court of Australia must review, on a question of law, decisions of the Administrative Appeals Tribunal. The court has functions to review on questions of law the Government Related Employees Appeals Tribunal, certain decisions of the Land and Environment Court and other bodies. There are powerful reasons of policy, quite apart from loyalty to the statutory language, which would suggest restraint criticising the language used in the decisions by lay tribunals.

Here the Parliament has specifically envisaged a tribunal which included lay assessors. It would be quite wrong, in my opinion, for this court to examine their decisions as if they were written by a lawyer. I am not, by this, suggesting double standards; simply that the court should take into proper account the composition of the tribunal as it has been created by the Parliament".

In my opinion, a reasonably minded person reading Assessor Stewart's decision would conclude that he had read and understood the decision of Bignold J and had applied it to the facts before him which he identified by reference to his earlier published decision. He said he was not satisfied, on the balance of probabilities, that the appellant had discharged the onus that he was entitled to "the rate concession for rural land" ie he was not satisfied on the evidence that the magnitude or intensity of the enterprise was such that the land was being used for one of the industries or businesses referred to in s 118(1). There can be no doubt that it was open to the assessor on the evidence to conclude that the applicant had not discharged the onus of proof. Such a finding would not involve an error of law (Azzopardi).

The decision the subject of this appeal is characterised by extreme brevity. Had it stood alone, as it were, the appellant's case for breach of the principle that justice must be seen to be done would have been much stronger. But the assessor included, by reference, his earlier reasons. In his earlier judgment, he referred in some detail to evidence given on the appellant's behalf concerning the use of the land and those reasons were incorporated in the judgment he published on 9 November 1988. In Soulemezis, McHugh JA made the following observation:

"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".

In the present case, the assessor revealed that upon his acceptance of the earlier facts set out in detail in his previous judgment he was not satisfied on the balance of probabilities that the appellant had made out his case. In my opinion, no failure to give reasons sufficient to constitute an error of law has been demonstrated. The order I make is appeal dismissed. Appellant to pay the respondent's costs of the appeal.