CHEVRON AUSTRALIA PTY LTD and VALUERGENERAL
[2018] WASAT 38
•1 JUNE 2018
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
CITATION: CHEVRON AUSTRALIA PTY LTD and VALUERGENERAL [2018] WASAT 38
MEMBER: DEPUTY PRESIDENT, JUDGE SHARP
HEARD: 22 MAY 2018
DELIVERED : 1 JUNE 2018
FILE NO/S: CC 2501 of 2017
BETWEEN: CHEVRON AUSTRALIA PTY LTD
Applicant
AND
VALUER-GENERAL
Respondent
SHIRE OF ASHBURTON
Applicant for joinder
Catchwords:
Valuation of land - Review - Application to be joined as party - Application for leave to intervene
Legislation:
State Administrative Tribunal Act 2004 (WA), s 9, s 37, s 37(3), s 38, s 38(1), s 38(1)(b)
Valuation of Land Act 1978 (WA), s 32(1), s 32(5), s 33, s 33(2), s 34, s 36(1)
Result:
The Shire of Ashburton's application is refused
Representation:
Counsel:
| Applicant | : | D Jackson |
| Respondent | : | Ms C Ide |
| Applicant for joinder | : | Mr PL Wittkuhn |
Solicitors:
| Applicant | : | Norton Rose Fulbright Australia |
| Respondent | : | State Solicitor's Office |
| Applicant for joinder | : | McLeods |
Case(s) referred to in decision(s):
Australian Conservation Foundation Inc v Commonwealth of Australia (1980) 146 CLR 493
FMG Pilbara Pty Ltd v Minister for Indigenous Affairs [2012] WASAT 31
Griffin Windfarm Holdings Pty Ltd v Valuer-General [2012] WASAT 224
Holman v W&D Moffatt Pty Ltd [2015] WASAT 100
Homestyle Pty Ltd v City of Belmont [1999] WASCA 59
ING Development Australia Pty Ltd v Western Australian Planning Commission (2008) 59 SR (WA) 184; [2008] WASAT 104 at [28]
Levy v Victoria (1997) 189 CLR 579
Pitt v Environment Resources and Development Court (1995) 66 SASR 274
Re State Administrative Tribunal; Ex parte McCourt (2007) 34 WAR 342; [2007] WASCA 125
Wattleup Road Development Company Pty Ltd v Western Australian Planning Commission [2014] WASAT 29
REASONS FOR THE DECISION OF THE TRIBUNAL:
Introduction
In August 2015, the respondent (Valuer-General) made a determination of the unimproved value of certain land in the Shire of Ashburton owned by the Western Australian Land Authority (or LandCorp) and leased to the applicant (Chevron). Chevron objected to the valuation and, dissatisfied with the decision of the Valuer-General on that objection, in November 2017, Chevron sought a review by the Tribunal of the Valuer-General's decision under s 33(2) of the Valuation of Land Act 1978 (WA) (Act). The matter was referred to the Tribunal on 1 December 2017.
In the meantime, by an application dated 11 April 2018, the Shire of Ashburton (Shire) applied to the Tribunal under s 38 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) to be joined as a party in the proceeding or, alternatively, to be given leave to intervene in the proceeding, pursuant to s 37 of the SAT Act.
The Shire filed written submissions on 11 April 2018 and an affidavit dated 9 April 2018 of John Priestley Bingham, the Shire's Director of Corporate Services. Chevron filed written submissions on 10 May 2018.
On 22 May 2018, after hearing the parties, I dismissed the Shire's application. At the end of the hearing, I undertook to provide written reasons for my decision and these are those reasons.
The Act and the SAT Act
Section 32(1) of the Act provides that any person liable to pay any rate or tax assessed in respect of land who is dissatisfied with the ValuerGeneral's valuation of such land may serve upon either the ValuerGeneral or any rating or taxing authority a written objection to the valuation. If an objection to a valuation is served on a rating authority, the rating authority's function is confined to referring the objection to the ValuerGeneral; the Act s 32(5). If an objection is served on the ValuerGeneral, then the ValuerGeneral is obliged under s 34 of the Act to inform the relevant rating or taxing authority of any review referred to the Tribunal.
The Act does not expressly provide any right for a rating or taxing authority itself to object to a valuation, although under s 36(1) of the Act, if there is a question of general interest as to whether proper principles have or have not been applied in the valuation under the Act a rating or taxing authority having an interest in the valuation may apply to the Tribunal for a review of the question.
It therefore follows that any right of the Shire to participate in the proceeding, either as a party or as an intervenor, can only fall under s 37 or s 38 of the SAT Act.
Section 37 and s 38 of the SAT Act relevantly provide as follows:
37.Intervening in proceeding
…
(3)The Tribunal may give leave at any time for a person to intervene in a proceeding on conditions, if any, that the Tribunal thinks fit.
[Section 37 amended by No. 58 of 2010 s. 183.]
38.Joining person as party to proceeding
(1)The Tribunal may order that a person be joined as a party to a proceeding if the Tribunal considers that
(a)the person ought to be bound by, or have the benefit of, a decision of the Tribunal in the proceeding; or
(b)the person's interests are affected by the proceeding; or
(c)for any other reason it is desirable that the person be joined as a party.
(2)The Tribunal may make an order under subsection (1) on the application of any person or on its own initiative.
Principles with respect to an application to be joined
A decision whether to join a person as a party or as an intervener depends very largely upon the nature of that person's interest and upon the nature and effect of the proceedings concerned. The decision will also be influenced by the objectives of the SAT Act, including those of minimising costs and avoiding delay: Re State Administrative Tribunal; Ex parte McCourt (2007) 34 WAR 342; [2007] WASCA 125 at [42].
In Pitt v Environment Resources and Development Court (1995) 66 SASR 274 (Pitt) at 275, Doyle CJ said that the important factors in any joinder application will be:
(a)the nature and strength of the interest of the applicant for joinder in the decision under review; and
(b)the contribution which the applicant for joinder is likely to be able to make to a proper resolution of the issues before the Tribunal and whether the interest which the applicant for joinder represents and the material to be advanced by that person will be adequately dealt with by the parties already before the Tribunal.
He went on to say that it will also be appropriate for the Tribunal to consider the impact of the joinder upon the proceedings. The Tribunal can and should consider the interests of the parties who are before it as of right, and the public interest in the prompt and efficient dispatch of proceedings: Pitt at 275.
The Shire refers me to the decision in Homestyle Pty Ltd v City of Belmont [1999] WASCA 59. While that case is undoubtedly authority for the general proposition that a party may be added if its rights against or liabilities to any party to an action will be affected by an order of a court in that action, that case concerned whether a party should be joined to court proceedings for a declaration, and does not address the specific criteria in s 37 and s 38 of the SAT Act or the discretionary nature of the Tribunal's powers under those sections.
More assistance can be derived from Holman v W&D Moffatt Pty Ltd [2015] WASAT 100 (Holman) at [7], where Senior Sessional Member Raymond summarised the principles under s 38 of the SAT Act as follows (citations omitted):
(a)the power to join a person as a party is both conditional and discretionary;
(b)it is conditional in the sense that it may not be exercised until the Tribunal is satisfied that at least one of the conditions set out in s 38 is met;
(c)it is discretionary in the sense that the Tribunal may still refuse to join a party even if those conditions are met;
(d)it is a serious matter to join a party to a proceeding, and the power is not to be exercised lightly;
(e)a person may be joined as an applicant or respondent, or as a joined or interested party;
(f)there is no requirement that the joined party must be seeking any claim or relief from the proceeding, nor is there any requirement that any claim or relief be sought against the joined party;
(g)the provision is procedural in nature, and does not authorise the grant of relief for or against the party joined.
The institution of an application for review does not, through s 38 of the Act, have the effect of creating substantive new rights for third parties beyond that which it had in relation to the original decision; FMG Pilbara Pty Ltd v Minister for Indigenous Affairs [2012] WASAT 31 at [30].
In considering the exercise of its discretion, the Tribunal must also have regard to the objectives set down in s 9 of the SAT Act, to deal with the substantive merits of the complaint and to act as speedily, and with as little formality and technicality as is practicable, and to minimise the costs of the parties: Holman at [18].
Principles with respect to an application to intervene
The principles applicable in an application under s 37 of the SAT Act to intervene in a review were set down by Chaney J in ING Development Australia Pty Ltd v Western Australian Planning Commission (2008) 59 SR (WA) 184; [2008] WASAT 104 at [28] (ING Development), relevantly as follows:
(1)To be granted leave to intervene, a person must demonstrate at least an interest sufficient to meet the test for standing in Australian Conservation Foundation Inc v Commonwealth of Australia (1980) 146 CLR 493 (Australian Conservation Foundation) namely, that the person can show actual or apprehended injury or damage to the person's rights or interests.
(2)Merely demonstrating an interest does not by itself enliven a right to intervene.
(3)Although the third party's interest may not necessarily be a legal interest, merely demonstrating any of the other matters referred to in s 38 of the SAT Act will not usually be sufficient to secure leave to intervene under s 37.
(4)The third party will generally need to demonstrate that its intervention is necessary to enable the Tribunal to meet the objectives of the SAT Act, including minimising cost and delay, and the enabling Act. Factors the Tribunal will consider include:
(i)the contribution the applicant for intervention is likely to be able to make to the proper disposition of issues before the Tribunal;
(ii)whether the interest which the applicant for intervention represents and material to be advanced by that person will be adequately dealt with by the parties already before the Tribunal;
(iii)the impact on the proceedings of the intervention;
(iv)the interests of the parties before the Tribunal as of right and the public interest in the prompt and efficient dispatch of proceedings; and
(v)any other matter that in the circumstances of the case justifies leave to intervene;
(5)An intervener, unlike a party, will ordinarily be allowed only to support or oppose a decision contended for by another party and not be permitted to expand on issues.
(6)Intervention will generally not be permitted where the third party simply seeks to argue on the very same basis as an existing party to the proceedings.
In Wattleup Road Development Company Pty Ltd v Western Australian Planning Commission [2014] WASAT 29 at [11], Parry J observed that despite the broad discretion under s 37(3), the established test for intervention has two principal elements, both of which must be established by a proposed intervener in order to be granted leave to intervene:
(a)the proposed intervener must demonstrate at least an interest sufficient to meet the test for standing to seek judicial review as stated in the decision of the High Court in Australian Conservation Foundation; and
(b)the proposed intervener will generally need to demonstrate that its intervention is necessary to enable the Tribunal to meet the objectives of the SAT Act and of the relevant enabling Act.
Is there precedent for a Shire to be joined to proceedings under the Act?
The parties both agree that there is no published Tribunal decision concerning a rating authority seeking to be joined as a party to a proceeding under the Act.
Similarly, the Tribunal has been made aware that at least Chevron has been unable to identify any authorities from the other state jurisdictions in Australia where an equivalent application has been brought.
The Shire cites the decision of the Tribunal in Griffin Windfarm Holdings Pty Ltd v Valuer-General [2012] WASAT 224 in support of its application; Shire's submissions para 14. However, that decision does not assist me. The issue before the Tribunal in that case was whether or not the Tribunal had jurisdiction to review a Ministerial decision and, if so, whether or not it should exercise its discretion to strike that matter out and refer it to the Supreme Court. The decision did not concern the local authority's participation in the application before Chaney J under s 33 of the Valuation Act.
Disposition
The Tribunal accepts that the Shire's interests will be affected by these proceedings, so that the criterion in s 38(1)(b) of the SAT Act is met and the Tribunal may make an order under s 38(1). The Tribunal also accepts that the Shire has sufficient interest in the outcome of the Tribunal's determination to give the Tribunal the discretion under s 37(3) of the SAT Act to give leave to the Shire to intervene and that the Shire has a sufficient interest in the outcome to meet the test for standing in Australian Conservation Foundation.
However, for the following reasons, the Tribunal has determined not to exercise its discretion for either joinder under s 38 or leave to intervene under s 37.
Impact on proceeding
Allowing the Shire to join the proceedings will involve additional time and expense because, if the Shire submits further evidence, then it will be appropriate for the Valuer-General and Chevron to be given an opportunity to respond with their own evidence. Further, the Shire will make its own closing submissions, which will need to be considered and addressed at the final hearing. The Shire's involvement is expected to add a further two days to the length of the hearing, which is currently listed for one day.
The Tribunal's objectives under s 9 of the SAT Act are to act as speedily and with as little formality and technicality as is practicable, and to minimise the costs to parties. Before adding to the length of the hearing and the expense to the parties, the Tribunal would need to be satisfied that there would be some benefits for so doing.
The need for the Shire's participation
As I understand the Shire's position, the Shire's primary concern appears to be that the fact that there is to be only a one day hearing suggests that the Tribunal may not adequately consider comparable sales evidence; Shire's submission para 20. I note that the Shire is not proposing to lead further expert evidence; Shire's submissions para 22.
However, on 12 February 2018, the Tribunal issued orders which provided, inter alia, that:
(a)both parties would file and serve expert reports (this has been done);
(b)Chevron would file and serve responsive expert evidence (this has not yet been filed);
(c)the experts would confer with one another in the absence of the parties, before a member of the Tribunal and prepare a joint statement;
(d)the experts would provide concurrent evidence at the final hearing.
I can see nothing to support an assertion that the facts of comparable transactions will not be considered, examined and determined, nor that this cannot be achieved in one day.
Shire's likely contribution
The Shire says that it may seek to put forward factual evidence as to the circumstances of comparable transactions which may assist the Tribunal to assess their comparability; Shire's submissions para 22. However, it is difficult to see what evidence the Shire could lead which is not already available to the Valuer-General. The Valuer-General under the Act has extensive powers to obtain information relevant to the valuation of land.
Further, in relation to at least the comparable sales outside the Shire's district, the evidence is only that the Shire's officers have 'some familiarity' with industrial sites elsewhere in the Pilbara (para 21 of Mr Bingham's affidavit).
In any event, it is open to the Shire, if it wishes to do so, to provide any relevant evidence to and through one of the parties.
The Shire's interest in the outcome of the proceeding
The Tribunal accepts that every rating authority has an interest in the outcome of a review of a determination by the Valuer-General of the value of rateable land within the authority's district. However, I do not consider that there is anything unusual about the Shire's interest in this case.
The quantum of the potential financial impact on the Shire does not increase 'the directness of the impact of the outcome' of the proceeding; Shire's submissions at para 8. The particular value of the land in question does not change the nature of the interest.
Setting of precedent
Finally, in ING Development at [20]-[21], Chaney J applied (in the context of a planning matter) an observation of Brennan J in Levy v Victoria (1997) 189 CLR 579 at 603 that:
The exercise of this court's jurisdiction to determine controversies between parties is not, and could not be, conditioned on allowing intervention by all those whose interests are susceptible to affection by the court's judgments. Such a condition would virtually paralyse the exercise of that jurisdiction.
I consider that the same consideration applies here. The Shire's reasons for seeking to participate in this proceeding are reasons which will apply with equal force to rating authorities across the State in relation to review of valuation decisions in respect of properties within their respective districts.
Order
The Tribunal on 22 May 2018 ordered as follows:
1.The Shire of Ashburton's application dated 11 April 2018 is refused.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
JUDGE T SHARP, DEPUTY PRESIDENT
1 JUNE 2018
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