CSBP LIMITED and CITY OF KWINANA
[2015] WASAT 42
•17 APRIL 2015
CSBP LIMITED and CITY OF KWINANA [2015] WASAT 42
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2015] WASAT 42 | |
| LOCAL GOVERNMENT ACT 1995 (WA) | |||
| Case No: | DR:405/2014 | 2 APRIL 2015 | |
| Coram: | MS K WHITNEY (MEMBER) | 17/04/15 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed Decision of respondent affirmed | ||
| B | |||
| PDF Version |
| Parties: | CSBP LIMITED CITY OF KWINANA |
Catchwords: | Local government Rating Differential rates Objection to rate record Extension of time Arguable case for objection |
Legislation: | Local Government Act 1995 (WA), s 6.33(1), s 6.33(1)(b), s 6.76, s 6.78, s 6.78(4), s 6.82, s 6.82(1) Alumina Refinery Agreement Act 1961 (WA) Industrial Lands (Kwinana) Agreement Act 1964 (WA) State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(2), s 29(1), s 31 State Administrative Tribunal Rules 2004 (WA), r 10 Industrial Lands (CSBP & Farmers Ltd) Agreement Act 1976 (WA) |
Case References: | Di Virgilio v McCleary [2012] WASC 437 Gallo v Dawson [1990] HCA 30; 93 ALR 479 Goedhart and Western Australian Planning Commission [2006] WASAT 49 Jackamarra v Krakouer (1998) 195 CLR 516 KC Nominees Pty Ltd and City of Armadale [2005] WASAT 297 Minister for Local Government and City of Greater Geraldton [2014] WASAT 116 Morea Architects and Town of Vincent [2006] WASAT 263 O'Connor and Town of Victoria Park [2005] WASAT 161 Trecap Pty Ltd and City of Swan [2006] WASAT 142 Willoughby & Ors v Clayton UTZ [2007] WASCA 5 |
Orders | On the application heard before Member Karen Whitney it is on 17 April 2015, ordered that:,1. The application for review is dismissed.,2. The decision of the respondent refusing the applicant an extension of time for making an objection to the respondent's rate record in respect of Lot 20 DP 78086, Port Road, Kwinana Beach for the 2014 - 2015 financial year is affirmed. |
Summary | A local government imposed differential general rates in relation to land on the basis that the purpose for which the land was used was 'Industrial State Agreement'. The registered proprietor of the land applied to the local government pursuant to s 6.76(4) of the Local Government Act 1995 (WA) for a 71 day extension of time for making an objection to the rate record under s 6.76(1)(b) of the Local Government Act 1995 (WA). The local government refused the extension of time.,The Tribunal considered that although the delay of 71 days was not minimal, it was also not substantial, particularly where there was no evidence that the local government would suffer significant prejudice by reason of the delay. Nevertheless, in the absence of any reasonable explanation for the delay and any arguable case for an objection to the rate record under s 6.76(1)(b) of the Local Government Act 1995 (WA), the Tribunal was not prepared to exercise its discretion to extend time for the registered proprietor of the land to object to the rate record. The application for review was dismissed and the decision of the local government was affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : LOCAL GOVERNMENT ACT 1995 (WA) CITATION : CSBP LIMITED and CITY OF KWINANA [2015] WASAT 42 MEMBER : MS K WHITNEY (MEMBER) HEARD : 2 APRIL 2015 DELIVERED : 17 APRIL 2015 FILE NO/S : DR 405 of 2014 BETWEEN : CSBP LIMITED
- Applicant
AND
CITY OF KWINANA
Respondent
Catchwords:
Local government Rating Differential rates Objection to rate record Extension of time Arguable case for objection
Legislation:
Local Government Act 1995 (WA), s 6.33(1), s 6.33(1)(b), s 6.76, s 6.78, s 6.78(4), s 6.82, s 6.82(1)
Alumina Refinery Agreement Act 1961 (WA)
Industrial Lands (Kwinana) Agreement Act 1964 (WA)
State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(2), s 29(1), s 31
State Administrative Tribunal Rules 2004 (WA), r 10
Industrial Lands (CSBP & Farmers Ltd) Agreement Act 1976 (WA)
Result:
Application dismissed
Decision of respondent affirmed
Summary of Tribunal's decision:
A local government imposed differential general rates in relation to land on the basis that the purpose for which the land was used was 'Industrial State Agreement'. The registered proprietor of the land applied to the local government pursuant to s 6.76(4) of the Local Government Act 1995 (WA) for a 71 day extension of time for making an objection to the rate record under s 6.76(1)(b) of the Local Government Act 1995 (WA). The local government refused the extension of time.
The Tribunal considered that although the delay of 71 days was not minimal, it was also not substantial, particularly where there was no evidence that the local government would suffer significant prejudice by reason of the delay. Nevertheless, in the absence of any reasonable explanation for the delay and any arguable case for an objection to the rate record under s 6.76(1)(b) of the Local Government Act 1995 (WA), the Tribunal was not prepared to exercise its discretion to extend time for the registered proprietor of the land to object to the rate record. The application for review was dismissed and the decision of the local government was affirmed.
Category: B
Representation:
Counsel:
Applicant : Mr M Hardy
Respondent : Mr K Pettit SC
Solicitors:
Applicant : Hardy Bowen
Respondent : McLeods
Case(s) referred to in decision(s):
Di Virgilio v McCleary [2012] WASC 437
Gallo v Dawson [1990] HCA 30; 93 ALR 479
Goedhart and Western Australian Planning Commission [2006] WASAT 49
Jackamarra v Krakouer (1998) 195 CLR 516
KC Nominees Pty Ltd and City of Armadale [2005] WASAT 297
Minister for Local Government and City of Greater Geraldton [2014] WASAT 116
Morea Architects and Town of Vincent [2006] WASAT 263
O'Connor and Town of Victoria Park [2005] WASAT 161
Trecap Pty Ltd and City of Swan [2006] WASAT 142
Willoughby & Ors v Clayton UTZ [2007] WASCA 5
Introduction
1 This matter comes before the Tribunal by way of an application made on 1 December 2014 by CSBP Limited (CSBP) pursuant to s 6.78 of the Local Government Act 1995 (WA) (LG Act) for review of the decision of the City of Kwinana (City) refusing to extend the time for making an objection against the City's rate record. CSBP is the registered proprietor of Lot 20 DP 78086, Port Road, Kwinana Beach (the Land), which is situated within the district of the City.
2 The City gave local public notice of its intention to impose differential general rates in the 2014 2015 financial year by publishing a statement of objects and reasons for differential rates on 6 May 2014. The City also published a notice of intention to levy differential rates in a local newspaper on 9 May 2014. The proposed differential rates were approved by the Minister for Local Government under delegated authority on 24 June 2014 and were adopted by the City's Council in the course of adopting its 2014 2015 budget at the ordinary council meeting held on 25 June 2014.
3 On 18 July 2014, the City issued a rates notice to CSBP in respect of the Land. The rates notice imposed a differential general rate described as 'Industrial State Agreement'. The rates notice contained on its reverse the following notification:
Under Section 6.76 of the Local Government Act 1995 objections and appeals to the rate book may be instituted. An objection to Council shall be made in writing within 42 day[s] of the issue of this notice.
4 Section 6.76 of the LG Act provides as follows:
(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, that the characteristics of the land recorded in the rate record as the basis for imposing that rate should be deleted and other characteristics substituted.
(2) An objection under subsection (1) is to
(a) be made to the local government in writing within 42 days of the service of a rate notice under section 6.41; and
(b) identify the relevant land; and
(c) set out fully and in detail the grounds of objection.
(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) The local government may, on application by a person proposing to make an objection, extend the time for making the objection for such period as it thinks fit.
(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.
5 The parties agree that the final day for CSBP to object to the rate record without applying for an extension of time to make the objection under s 6.76(4) of the LG Act was 1 September 2014.
6 By letter dated 13 October 2014 (received by the City on 15 October 2014), CSBP applied to the City to extend the time for making an objection to the rate record until 11 November 2014 (Application to Extend Time). The letter provided as follows:
On behalf of CSBP, I give notice that CSBP proposes to make an objection to the Rate Notice under section 6.76 of the Act, and given that more than 42 days has passed since the issuing of the rates notice, CSBP applies to the City of Kwinana for an extension of time to make that objection. The extension of time that we are seeking for making the objection is until 11 November 2014 (being 4 weeks from the date of this letter).
Accordingly, this is a formal request for an extension of time for the making of an objection pursuant to section 6.76(4) of the Act. The basis of the objection is that the imposition of a differential rate by the City is beyond the power of the City having regard to the provisions of the [Local Government] Act generally, section 6.33 in particular, the provisions of the Industrial Lands (Kwinana) Agreement Act 1964 and the stated basis upon which the City has chosen to impose a differential rate in the circumstances.
7 At its ordinary council meeting on 12 November 2014, the City's Council resolved to refuse the Application to Extend Time. By letter dated 25 November 2014, the City notified CSBP of the Council's resolution, providing no reasons for the decision.
8 On 1 December 2014, CSBP applied to the Tribunal pursuant to s 6.78 of the LG Act for review of the City's decision. Section 6.78 provides:
A person who is dissatisfied with a decision of the local government to refuse to extend the time for making an objection against the rate record may apply to the State Administrative Tribunal for a review of the decision.
9 CSBP's application to the Tribunal raises the following grounds for review:
1. The Respondent's refusal to grant an extension of time to make an objection to the Rate record is unreasonable in that:
1.1. the period of delay in making the request for an extension is not considerable;
1.2. there are good reasons for the delay;
1.3. there is an arguable case to support the objection to the Rate Record; and
1.4. there will be little, if any prejudice to the Respondent if an extension is granted.
2. The basis for the objection is that the imposition of an differential rate by the Respondent is beyond the power of the Respondent having regard to the provisions of s 6.33 of the Local Government Act 1995, the provisions of the Industrial Lands (Kwinana) Agreement Act 1964 and the stated basis upon which the Respondent has chosen to impose a differential rate in relation to the Land.
3. Alternatively to point 2 above, there is a question of general interest pursuant to s 6.82 of the Act whether the differential rates specified in the Rate Record were imposed in accordance with the Act.
10 On 18 December 2014, the Tribunal invited the City pursuant to s 31(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) to reconsider its decision on or before 13 February 2015, and, if it affirmed its original decision, to provide a statement of its reasons for decision upon reconsideration. By letter dated 11 February 2015, CSBP's solicitors expanded upon the basis for its objection:
As to whether there is an arguable case, CSBP points to the provisions of the 1964 and 1976 State agreements, the prohibition on the imposition of discriminatory rates in relation to property, the determination by the City of differential minimum rates, the flawed methodology adopted by the City in relation to the setting of its budget and the determination of rates and the matters of general interest contemplated by s 6.82 of the Local Government Act.
11 At its ordinary council meeting on 11 February 2015, the City's Council resolved to affirm the City's decision to refuse the Application to Extend Time for the following reasons:
(a) The application for the extension of time for making an objection would result in a significant delay beyond the prescribed statutory period for an objection to the rate record to be made;
(b) There are no apparent reasons for the delay, particularly as CSBP was advised on 4th September 2014 that an application for objection to the rate record was required to be made within a 42 day period of service of the rate notice;
(c) Council's proposed differential rates were advertised on 5th May 2014 inviting submissions by electors and ratepayers. A submission was not received from CPSB;
(d) That Council does not consider that the application demonstrated an arguable case that the Industrial State Agreement Act differential rate was invalidly imposed having regard to the provisions of the Local Government Act 1995 and Industrial Lands (Kwinana) Agreement Act 1964;
(e) The imposed rate in a dollar, being approved by the Minister for Local Government, has remained at a consistent level over the last 10 years (average annual increase of 2.23%); and
(f) Approval of the application would cause prejudice to the City as it would undermine the certainty and finality of the City's Budgetary process for the 2014/15 financial year.
Statutory Framework
12 Section 27(1) of the SAT Act provides that the Tribunal's review of a reviewable decision is by way of a hearing de novo, and is not confined to the matters that were before the original decision-maker but may involve the consideration of new material, whether or not it existed at the time the original decision was made.
13 Section 27(2) of the SAT Act provides that the purpose of a review by the Tribunal is to produce the correct and preferable decision at the time of the decision upon the review. It is not to judicially review an administrator's actions in order to determine their validity: Morea Architects and Town of Vincent [2006] WASAT 263 at [50]. The Tribunal's task is to make a fresh decision in place of the original decision-maker, and s 29(1) of the SAT Act provides that the Tribunal has, when dealing with a matter in the exercise of its review jurisdiction, functions and discretions corresponding to those exercisable by the decision-maker in making the reviewable decision.
14 Section 6.78 of the LG Act provides that a person who is dissatisfied with a decision of the local government to refuse to extend the time for making an objection against the rate record may apply to the Tribunal for a review of the decision. The question for the Tribunal in this matter is whether, in the exercise of the functions and discretions corresponding to those exercisable by the City, it should extend the time for CSBP to make an objection to the City's rate record pursuant to s 6.76(4) of the LG Act. Section 6.76(4) of the LG Act provides the Tribunal with very broad discretion to extend the time for making the objection 'for such period as it thinks fit'.
15 Section 6.76(1) of the LG Act provides that the proposed objection to the rate record must be on one of two identified grounds, namely:
(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, that the characteristics of the land recorded in the rate record as the basis for imposing that rate should be deleted and other characteristics substituted.
16 CPSB seeks to rely on s 6.76(1)(b) of the LG Act, that the characteristics of the land recorded in the rate record as the basis for imposing the rate (namely 'Industrial State Agreement') should be deleted and other characteristics substituted.
Relevant Considerations
17 The parties agree that the following considerations are relevant to whether the Tribunal should extend the time for CSBP to make an objection to the City's rate record:
• the length of the delay;
• the reasons for the delay;
• whether there is an arguable case for the objection; and
• the extent of any prejudice to the respondent.
18 These are factors considered by the Tribunal in determining applications to extend the time for the commencement of proceedings before the Tribunal under r 10 of the State Administrative Tribunal Rules 2004 (WA). The Tribunal accepts that these factors are relevant to the consideration before the Tribunal in this matter, although the range of considerations is not closed: Goedhart and Western Australian Planning Commission [2006] WASAT 49 (Goedhart) at [14].
Length of the delay
19 There is a dispute between the parties as to the length of the delay. The City argues that the length of the delay was about 72 73 days, because CSBP's Application to Extend Time applied to extend the time for making an objection to the rate record from 1 September 2014 until 11 November 2014. The City submitted that the relevant period for calculating the delay should be this entire period. The Tribunal calculates this period to be 71 days.
20 CSBP maintains instead that the relevant period for calculating the delay should be the period between 1 September 2014 and 15 October 2014 (being the date the City received the Application to Extend Time), a period of about 45 days. CSBP submits at paragraph 22 of its Statement of Issues Facts and Contentions that the City 'did nothing [after 15 October 2014] in relation to the application for an extension of time save to refer the matter to the meeting of the [City's Council] conducted on 12 November 2014. To characterise the delay as a matter of fact as a delay of 73 days is inappropriate'.
21 CSBP's Application to Extend Time applied to extend the time period for objecting to the rate record by 71 days. The City refused this extension. Although CSBP maintains that it was open to the City at any time after 15 October 2014 to require the objection to be lodged immediately, the application considered by the City was for an extension until 11 November 2014. The Tribunal finds in the circumstances that the relevant delay was approximately 71 days.
22 The City contends at paragraph 26 of its Statement of Issues Facts and Contentions that such delay in making the objection was substantial, particularly in circumstances where:
• it gave public notice of the proposed differential general rate on 5 May 2014 in local newspapers and invited public submissions from ratepayers;
• it met with representatives of CSBP on 4 September 2014 and indicated to them that the time period for making an objection to the rate record was 42 days; and
• similar differential general rates had been imposed in previous years.
23 CSBP denies that the delay in making the objection was substantial, and maintains that none of the circumstances identified above by the City are relevant to this question. In its letter to the City's solicitors dated 11 February 2015 and in submissions at the hearing, counsel for CSBP characterised the delay as 'minimal' and 'well within the scope of the periods of delay contemplated by the Tribunal' in its published decisions.
24 The Tribunal is not satisfied that the circumstances identified by the City at paragraph 26 of its Statement of Issues Facts and Contentions are relevant to calculating or characterising the length of the delay. CSBP was entitled by s 6.76(2) of the LG Act to a period of 42 days from the service of the rates notice to make its objection. Events prior to 1 September 2014 are immaterial, as is information provided to CSBP by the City on 4 September 2014 that the objection period had expired.
25 Moreover, the Tribunal is not satisfied that the delay was either 'substantial' or 'minimal'. The delay was 71 days in the context of a statutory objection period of 42 days, but where the legislation specifically provides the decision-maker with broad discretion to 'extend the time for making the objection for such period as it thinks fit'.
26 In O'Connor and Town of Victoria Park [2005] WASAT 161 at [41], the Tribunal considered a delay of about five weeks in the context of a one month review period to be 'borderline'. In Goedhart at [16], the Tribunal accepted a characterisation of a delay of between 81 and 87 days in the context of a 28 day review period as 'considerable'. In the present case, the delay falls closer to 'borderline' than 'considerable'. It is certainly not within a range that would be sufficient, in itself, to outweigh other considerations.
Reasons for the delay
27 CSBP's explanation for the delay is set out in its letter to the City dated 11 February 2015:
The reasons for the delay were that it was necessary for CSPB to undertake an internal review of assessed rates, the rates charged on other properties in Kwinana and the rates charged on other properties used for similar purposes in other locations. CSBP was also required to review the history of the relevant land, including the rates charged over time and the various provisions of the State agreements relating to the land. CSBP was then required to arrange various meetings with representatives of the City to discuss the rating and the reasons for the manner in which the rates were applied. Finally, CSBP sought and obtained legal advice on issues to the setting of rates, the State agreements, the provision of the relevant legislation and the rights of review available to CSBP.
28 CSBP further submits at paragraph 24 of its Statement of Issues Facts and Contentions that it is:
a substantial land owner and rate payer … A decision to object is not a decision taken lightly and requires not only the commissioning of legal advice but a proper and careful consideration of other factors, including a review of the budget of the Applicant, a review of the market within which the Applicant operates both as to the Land and other land used for industrial purposes within the district of the Respondent, and commercial advice in relation to the Applicant conducting an objection and maintaining, subsequently, an argument that the [differential] rate in these circumstances is beyond the power of the Respondent.
29 Counsel for CSBP reiterated these points at the hearing but did not add any further particulars, adduce any evidence, or detail any of the factual information it gathered during its investigation process.
30 The City submitted on the papers and at the hearing that these are not reasons which either explain or justify the delay. Rather, whilst they explain the need to take advice, they do not explain why CSBP was unable to take such advice within the relevant time frame. Counsel for the City further noted that this issue was drawn to the attention of CSBP's solicitors on numerous occasions during the proceedings, yet CSBP adduced no evidence explaining or justifying the delay.
31 Counsel for the City urged the Tribunal to find, in reliance on the judgment of Justice Wheeler in Willoughby & Ors v Clayton UTZ [2007] WASCA 5 (Willoughby), that the absence of such evidence is fatal to CSBP's case as a whole. The Tribunal prefers instead the view of Steytler P and Pullin JA in Willoughby that the explanation for the reasons for the delay is merely one factor to be considered when determining whether to extend time.
32 Having said that, the absence of any evidence as to why CSBP was unable to undertake the actions referred to above at [27] and [28] prior to the expiry of the 42 day objection period is material. In Gallo v Dawson [1990] HCA 30; 93 ALR 479, McHugh J noted at [481]:
In the present case, the applicant sought to explain her delay in seeking an extension of time by claiming that her decision to appeal 'depended on the careful assessment of the possibilities of my claim, which needed reference research involving a lot of work and time as it would to a non professional'. This claim was made without furnishing any details as to the time spent in research or the nature of the research upon which the applicant was engaged or when it was that she decided to appeal. Significantly, the applicant did not assert that she had failed to lodge her appeal because she was unaware of the 21-day time limit for lodging a notice of appeal.
33 Whilst in the present matter counsel for CSBP provides some indication of the type of research and investigations CSBP undertook, CSBP provides no evidence as to when it commenced such investigations, when it sought the necessary legal advice, and why the process was unable to be completed within 42 days. Likewise, there is no explanation for why, when faced with a short and rapidly approaching deadline, CSBP took no action to preserve its rights. The only evidence before the Tribunal identifying any action on the part of CSBP prior to its letter dated 13 October 2014 is the reference to a meeting with the City on or about 4 September 2014, several days after the 42 day objection period expired. At no point did CSBP indicate that it was unaware of the 42 day objection period. On the evidence presented, the Tribunal is not satisfied there is a reasonable explanation for the delay.
Whether there is an arguable case for the objection
34 Section 6.33(1) of the LG Act provides that a local government may impose differential rates based on particular 'characteristics' of the land, including 'a purpose for which the land is held or used as determined by the local government': s 6.33(1)(b) LG Act. The meaning of this phrase was considered by the Tribunal in Minister for Local Government and City of Greater Geraldton [2014] WASAT at 116 [19] – [23]:
In s 6.33(1)(a) the use of the phrase 'purpose for' in association with zoning reflects the use to which the land is intended to be put. … The use of 'purpose for' in s 6.33(1)(b) reflects a similar requirement to objectively identify the use to which the land is intended to be put.
Section 6.33(1)(b) of the LG Act contains the phrase 'as determined by the local government'. The determination by the local government must have objective characteristics by which the purpose for which the land is held or used can be identified.
35 Where a local government imposes differential general rates pursuant to s 6.33 of the LG Act, s 6.76(1)(b) permits an objection to the rate record on the ground that 'the characteristics of the land recorded in the rate record as the basis for imposing that rate should be deleted and other characteristics substituted'.
36 'Industrial State Agreement' is the rating category recorded in the rate record by the City as the basis for imposing a differential rate in respect of the Land. The City maintains that this rating category describes the 'purpose for which the land is held or used as determined by the local government' within the meaning of s 6.33(1)(b) of the LG Act. Although a relevant extract from the rate record was not adduced, the City's published statement of objects and reasons for implementing differential rates (Document 1, Respondent's bundle) indicates that the 'Industrial State Agreement' rate category applies to 'land encompassed by the Industrial Lands (Kwinana) Agreement Act 1964 (WA) and the Alumina Refinery Agreement Act 1961 (WA)'.
37 The City contends that the Land is held by CSBP, and used by CSBP, for the purpose of executing one or both of:
• Industrial Lands (Kwinana) Agreement Act 1964 (WA); and/or
• Industrial Lands (CSBP & Farmers Ltd) Agreement Act 1976 (WA);
- each of which involves the use of the Land for industrial purposes. The evidence of the City's CEO was that a differential rate has been imposed on large scale industrial uses which are the subject of a State Agreement since at least 1996, but that in previous years the rating category was referred to as 'Special Industrial' or 'Industrial Special Agreement'.
38 CSBP must satisfy the Tribunal that it has an arguable case for an objection to the rate record under s 6.76(1)(b) of the LG Act, namely that the characteristics of the land recorded in the rate record as the basis for imposing that rate (Industrial State Agreement) should be deleted and some other characteristics substituted.
39 CSBP's proposed objections to the rate record are identified in its Application to the Tribunal dated 1 December 2014 (an extract of which is set out at [9] above). Its first objection is that the City's imposition of a differential rate is beyond its powers. As particularised at paragraph 25 of CSBP's Statement of Issues Facts and Contentions, the essence of this argument is that the rating category 'Industrial State Agreement' was not imposed according to the purpose for which the land is held or used as required by s 6.33(1)(b) of the LG Act because:
• the reasons for the City implementing differential rates (as identified in the City's published statement of objects and reasons) were factually incorrect; and
• the imposition of differential rates based solely on whether the land is subject to a State Agreement is discriminatory and contrary to the specific provisions of the agreement.
40 In the alternative, as particularised at paragraphs 26 and 27 of its Statement of Issues Facts and Contentions, CSBP maintains that there is a question of 'general interest' to be considered as to whether the Land 'is accurately identified and the imposition of a differential rate properly imposed and rationally acceptable'.
41 This is a reference to s 6.82 of the LG Act, which 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.
42 CSBP submits at paragraphs 31 to 35 of its submissions that s 6.82 of the LG Act is an alternative course of action, and '[i]f there is no arguable case capable of being conducted by [CSBP] on the basis of the matters set out in these submissions then s 6.82(1) will apply and an application, without constraint as to time, may be dealt with by the Tribunal'.
43 The City argues that the objections raised by CSBP 'cannot be accommodated' within the limited ground of objection to the rate record available under s 6.76(1)(b) of the LG Act. Counsel for the City submitted at the hearing that s 6.76 objections are necessarily narrow, restricted to matters of the form of the rate record, and should not incorporate objections to the formula or other underlying considerations used by the local government in determining differential rates.
44 At the hearing, counsel for CSBP encouraged the Tribunal to take a more expansive reading of the permissible scope for objection under s 6.76(1)(b) of the LG Act, submitting that the entire process of the classification undertaken by the City must necessarily be incorporated into the scope of the objection. Counsel for CSBP was, however, unable to identify any authority permitting the Tribunal to adopt such an expansive reading of the permissible scope for objection under s 6.76(1)(b) of the LG Act.
45 In determining an objection under s 6.76(1)(b) of the LG Act in Trecap Pty Ltd and City of Swan [2006] WASAT 142 (Trecap), the only factor considered by the Tribunal was the predominant purpose for which the land was used. In Trecap, the question for determination was whether this purpose was in fact 'transport depot' (being the characteristics of the land recorded in the rate record as the basis for imposing that rate) or 'freight terminal' (being the characteristics of the land proposed to be substituted). The Tribunal has been unable to identify any decisions considering other factors in determining an objection to the rate record under s 6.76(1)(b) of the LG Act.
46 Furthermore, the Tribunal considers that the legislative context does not support an expansive reading of the permissible scope for objection under s 6.76(1)(b) of the LG Act. The ordinary meaning of the language used in s 6.76(1)(a) and (b) of the LG Act (including the references to substituting one rating 'characteristic' for another or correcting the identity of the owner/occupier) suggests that s 6.76 is intended to provide a limited avenue for objection to matters relating to the integrity of the rate record. This is further supported by the broader remedy provided for by s 6.82 of the LG Act, whereby the Tribunal, upon referral of a matter under that section, may make an order quashing a rate which has been improperly made or imposed.
47 The Tribunal has noted that the threshold to establish an 'arguable case' is not particularly onerous: Goedhart at [21]. In Jackamarra v Krakouer (1998) 195 CLR 516 at 540, Kirby J held that:
The party seeking indulgence [of an extension of time] bears the burden of persuading the decision-maker to grant its request. A consideration relevant to that exercise is whether the case is arguable. If it is hopeless, unarguable or bound to fail, the request for an extension of time will be refused. However, this is basically because to grant it would be futile.
48 However, as the Tribunal noted in KC Nominees Pty Ltd and City of Armadale [2005] WASAT 297 at [20], 'some evidence at least is required in order to demonstrate that there is an arguable case'.
49 For the reasons set out above, the Tribunal is not satisfied on CSBP's evidence and submissions that it has an arguable case for an objection to the rate record under s 6.76(1)(b) of the LG Act. CSBP's objections concern whether the City may lawfully impose a differential rate for the Land solely because the predominant purpose for which the land is used is as provided for in particular State Agreements. This is an objection that the differential rate has been improperly made or imposed (potentially determinable by the Tribunal in limited circumstances by a referral under s 6.82 of the LG Act) rather than an objection as to the applicable rating characteristic.
50 At paragraph 8 of its Statement of Issues Facts and Contentions, CSBP indicated that '[n]ot all of the Land as defined in the Respondent's Statement is actually used for industrial purposes nor is all of the Land the subject of a State Agreement embodied in the State Agreement Acts'. Supported by some evidence, this assertion might have formed the basis for an arguable objection to the rate record under s 6.76(1)(b) of the LG Act (per Trecap). However, CSBP provided the Tribunal with no factual evidence or particulars to support this contention, and made no further reference to it in its submissions. Furthermore, at no point did CSBP identify which other 'characteristic' ought to be substituted in the rate record in lieu of 'Industrial State Agreement' and why. For these reasons, the Tribunal is not satisfied that any evidence was put before it to support an arguable case on this basis.
51 Finally, in respect of CSBP's submissions that s 6.82 of the LG Act provides an alternative option to the Tribunal for resolving the matter, the application before the Tribunal was brought solely under s 6.76(1)(b) of the LG Act. Counsel for CPSB confirmed at the hearing that there is no application presently before the Tribunal pursuant to s 6.82 of the LG Act.
52 Whether it is open to CSBP to apply to the Tribunal pursuant to s 6.82 is immaterial to the question of whether CSBP has an arguable case to object to the City's rate record under s 6.76(1)(b) of the LG Act. In the absence of an appropriate application, it is unnecessary for the Tribunal to address s 6.82 of the LG Act.
Prejudice to the respondent
53 The City submits that the prejudice arising from the delay was due to 'the extent to which this matter has intruded into the budgetary period, and the statutory requirement to match rate revenue to the budget deficit that would exist without rate revenue'. In response, CSBP submits that any prejudice to the City arises solely from the risk of ultimate determination of the matter in CSBP's favour rather than from the delay in raising its objections to the rate record.
54 Had CSBP brought an objection to the rate record by 1 September 2014 (as required by s 6.76(2) of the LG Act) rather than on 11 November 2014 (as proposed in its Application to Extend Time), the determination of the objection by the City still may well have intruded into the 2014 - 2015 budgetary year. The City's budget process was complete in June 2014 when the budget was adopted by Council, before the rate notices were issued. In such circumstances, the Tribunal is not satisfied that there would be any significant prejudice to the City arising solely by reason of the 71 day delay.
Exercise of Discretion
55 The Tribunal must balance each of the considerations and findings recorded above in the overall exercise of discretion. As noted by Justice Hall in Di Virgilio v McCleary [2012] WASC 437 at [38] - [39]:
The power to grant an extension of time to commence proceedings is generally discretionary in nature. The use of the word 'may' in r 9 confirms the existence of a discretion here. Whether the discretion should be exercised in favour of the appellant in any case depends on an assessment of the particular facts and circumstances.
The discretion exists for the sole purpose of enabling a court to tribunal to do justice between the parties. It can only be exercised in favour of the applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether there would be an injustice it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the application for an extension of time: Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479, 459 (McHugh J).
56 Although a delay of 71 days is not minimal, it is also not substantial, particularly where there is no evidence that the City would suffer significant prejudice by reason of delay. Nevertheless, in the absence of:
• any reasonable explanation for the delay; and
• any arguable case for an objection to the rate record under section 6.76(1)(b) of the LG Act;
57 the Tribunal is not prepared to exercise its discretion to extend time for CSBP to object to the rate record. The application for review is therefore dismissed and the City’s decision is affirmed.
Orders
1. The application for review is dismissed.
2. The decision of the respondent refusing the applicant an extension of time for making an objection to the respondent’s rate record in respect of Lot 20 DP 78086, Port Road, Kwinana Beach for the 2014 2015 financial year is affirmed.
I certify that this and the preceding [57] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS K WHITNEY, MEMBER
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