GRIFFIN WINDFARM HOLDINGS PTY LTD and VALUER GENERAL - [2012] WASAT 224

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: VALUATION OF LAND ACT 1978 (WA)

CITATION: GRIFFIN WINDFARM HOLDINGS PTY LTD and VALUER GENERAL [2012] WASAT 224

MEMBER: JUSTICE J A CHANEY (PRESIDENT)

HEARD: 16 AUGUST 2012

DELIVERED : 14 NOVEMBER 2012

FILE NO/S: DR 315 of 2011

BETWEEN: GRIFFIN WINDFARM HOLDINGS PTY LTD
Applicant
AND
VALUER GENERAL
First Respondent
GRIFFIN POWER PTY LTD
Second Respondent

Catchwords:

Practice and procedure - Preliminary issue - Collateral attack on administrative decision - Whether Tribunal has jurisdiction to deal with collateral attack - More appropriate forum - Whether collateral challenge should be stuck out because issue more appropriately dealt with in another forum

Legislation:

Interpretation Act 1984 (WA), s 43, s 43(3)
Local Government Act 1995 (WA), Pt 6, s 6.28, s 6.76, s 6.77, s 6.80, s 6.82
State Administrative Tribunal Act 2004 (WA), s 9, s 9(c), s 17(1), s 27(1), s 27(2), s 29, s 29(1), s 30(3), s 50, s 50(1), s 50(3), s 90
Valuation of Land Act 1978 (WA), s 18, s 32(3), s 33, s 36, s 36A

Result:

Finding that Tribunal able to consider validity of collateral administrative decision
Part of proceedings struck out under s 50 of the State Administrative Tribunal Act 2004 (WA)

Summary of Tribunal's decision:

In an application for review of a decision of the Valuer General, a question arose as to whether the Tribunal could entertain a challenge to a Ministerial determination which was fundamental to the proceedings, but was not a reviewable decision for the purposes of the State Administrative Tribunal Act 2004 (WA). If the Tribunal did have jurisdiction, then a further issue arose as to whether it should exercise its jurisdiction under s 50 of the SAT Act to dismiss the challenge on the basis that the Supreme Court was a more appropriate forum to resolve the question. The Tribunal considered an earlier decision of the former President of the Tribunal which concluded that the Tribunal did have jurisdiction to entertain a collateral attack on an administrative decision, and reached the same conclusion in these proceedings. However, because a finding of invalidity of the determination would lead to confusion as to the basis upon which the substantive valuation was to be carried out, the Tribunal considered that it was preferable that the question be authoritatively determined, if at all, by the Supreme Court, and accordingly determined that the issue should be struck out pursuant to s 50 of the SAT Act.

Category: B

Representation:

Counsel:

Applicant:     Mr M Hotchkin and Mr J Jacobson
First Respondent           :     Ms F Seaward and Ms M Dorn
Second Respondent       :     Mr M Hotchkin and Mr J Jacobson

Solicitors:

Applicant:     Hotchkin Hanly
First Respondent           :     State Solicitor's Office
Second Respondent       :     Hotchkin Hanly

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

Edwards & Anor and Department of Planning and Infrastructure & Ors [2007] WASAT 101
Edwards and Chief Executive Officer of the Department for Planning and Infrastructure [2007] WASAT 292
Happ v Shire of Busselton (2002) 31 SR (WA) 53
Jacobs v Onesteel Manufacturing Pty Ltd [2006] SASC 32; (2006) 93 SASR 568
Ousley v R (1997) 192 CLR 69
Selby v Pennings (1998) 19 WAR 520

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The applicant, Griffin Windfarm Holdings Pty Ltd (Griffin Windfarm) owns certain land (the Blue Waters site) in Collie. The Blue Waters site is 491.7212 hectares and is located within the Shire of Collie (Shire). Historically the land was utilised for agricultural pursuits, and in more recent times for coal mining, although that use is now closed and the land has been remediated. A portion of the land is currently used for the Blue Waters Power Station, although the area used for that purpose comprises approximately 13.4 % of the total land area. The remainder is mainly cleared and pastured land and is used for agistment of stock from time to time.
Up until 1 July 2009, the method of valuing the land for rating purposes was the unimproved value (UV) method. However, on 24 February 2009, the Council of the Shire resolved to apply to the Minister for Local Government to change the method of rating from UV to gross rental valuation (GRV) in respect of a number of properties, including the applicant's site. After various exchanges of correspondence between relevant parties, the Director General of the Department of Local Government, under delegated authority from the Minister for Local Government, decided to change the method of valuation from UV to GRV for various properties within the Shire's district, including the Blue Waters site (Minister's determination). The change was specified to apply from 1 July 2009.
Based upon the new valuation method, the Shire imposed a rate on the Blue Waters site. The amount payable for rates was substantially increased from the rates which had been payable on the basis of UV.
In July 2010, Griffin Windfarm lodged an objection with the Valuer General (first respondent) to the valuation upon which the Shire had issued its rating assessment. That objection did not challenge the underlying basis of the valuation, but rather asserted that the valuer did not have comprehensive and current data at the time of his assessment so that the assessment was said to be a 'gross overestimate of the parts of the industrial structure qualifying for local government rates assessment'.
Between August 2010 and May 2011, the Valuer General and Griffin Windfarm, and their appointed valuers, exchanged correspondence concerning the objection, all of which proceeded on the basis that the valuation was to be made as to the GRV of the site. In July 2011, the Valuer General disallowed the objection. In September 2011, at the request of Griffin Windfarm, the valuation was referred to this Tribunal for a review, pursuant to s 33 of the Valuation of Land Act 1978 (WA) (VL Act).
Shortly after the referral of the review to the Tribunal, Griffin Windfarm's solicitors wrote to the Valuer General seeking copies of documents which reflected how the Minister's determination had been made.
The State Solicitor's Office, acting on behalf of the Valuer General, responded to that request, advising that the Valuer General 'is not in possession of any material reflecting the rationale for' the Minister's determination.
In light of that response, the applicant formed the view that the Minister's determination had not been validly made, and now seeks to agitate that contention in these proceedings. That has given rise to the preliminary issues with which these reasons are concerned. Those issues are:
a)Does the Tribunal have jurisdiction under the State Administrative Tribunal Act 2004 (WA) (SAT Act) to determine in these proceedings the validity of the determination of the delegate of the Minister for Local Government published in the Western Australian, Government Gazette, No 195 (30 October 2009) (Government Gazette)?
b)If the answer to a) is yes, should the Tribunal exercise its discretion under s 50(1) of the SAT Act to strike out that matter and in its discretion under s 30(3) of the SAT Act, refer that matter to the Supreme Court of Western Australia?
Prior to the hearing, a third preliminary issue had been identified by the parties, but by the time the matter was heard, they were in agreement that the third issue was one more conveniently dealt with at the final hearing of the matter, rather than as a preliminary issue.
In order to understand the context in which the preliminary issue arises, it is necessary to consider the relevant statutory provisions.

Relevant statutory provisions

Financial management of local governments, including the raising of revenue by way of rates on property within the local government area, is dealt with by Pt 6 of the Local Government Act 1995 (WA) (LG Act).
Section 6.28 prescribes the basis upon which rates are to be struck. Section 6.28(1) requires the Minister to determine the method of valuation of land to be used by a local government as the basis for a rate, and to publish a notice of the determination in the Government Gazette. It is pursuant to that statutory obligation that the Minister's determination in this case was made.
Section 6.28(2) provides:
(2)In determining the method of valuation of land to be used by a local government the Minister is to have regard to the general principle that the basis for a rate on any land is to be -
(a)where the land is used predominantly for rural purposes, the unimproved value of the land; and
(b)where the land is used predominantly for non‑rural purposes, the gross rental value of the land.
Section 6.28(3) requires that the unimproved value or the gross rental value, as the case requires, of rateable land is to be recorded in the rate record of the local government. The valuation to be used by a local government is to be the valuation in force under the VL Act as at 1 July in each financial year (s 6.28(4)).
Certain limited rights of objection and review of rates are also provided for in the LG Act. By s 6.76, a right to object to the rate record of a local government on certain limited grounds, which are not relevant for present purposes, is provided. A person dissatisfied with the decision of a local government on an objection under s 6.76 of the LG Act may apply for a review of that decision by the State Administrative Tribunal (s 6.77). Section 6.80 provides that there is not to be an objection or review in respect of a valuation of rateable land appearing in the rate record except in accordance with the VL Act.
Section 6.82 of the LG Act provides that where there is a question of general interest as to whether a rate or service was imposed in accordance with the LG Act, the question may be referred to the State Administrative Tribunal to have it resolved.
The present proceedings come to the Tribunal by way of a referral under s 33 of the VL Act which permits a person who is dissatisfied with the decision of the Valuer General on an objection to require the Valuer General to refer the valuation to the Tribunal for a review. It is thus a matter which falls within the Tribunal's review jurisdiction - SAT Act s 17(1). It follows that the Tribunal has the functions and discretions corresponding to those exercisable by the Valuer General in making the decision on the objection - SAT Act s 29(1). The review of the decision is by way of hearing de novo, not confined to matters that were before the Valuer General but potentially involving consideration of new material - SAT Act s 27(1). The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review - SAT Act s 27(2).
Section 18 of the VL Act requires the Valuer General to determine, with respect to rateable land, the GRV or the UV 'as the case requires, so far as that value is required by a rating' authority - VL Act s 18. In the context of rating by local government, 'the case requires' that the valuation be based on the method of valuation determined by the Minister pursuant to s 6.28(1) of the LG Act.
An objection against a valuation may be made on the ground that the valuation is not fair or is unjust, inequitable or incorrect, whether by itself or in comparison with other valuations in force under the LG Act - VL Act s 32(3).
Upon review, the Tribunal may consider grounds in addition to those stated in the notice of objection, and reasons in addition to any reasons previously given for the Valuer General's decision that is under review - VL Act s 36(A).
The VL Act provides for a review by the Tribunal of a question of general interest as to whether proper principles have been applied in the valuation under this Act, but a person liable to pay any rate is not permitted to apply or have such a question relating to his own individual case resolved - VL Act s 36. These provisions mirror the review provisions of s 6.82 of the LG Act, but neither party argues that the validity of the Minister's determination is susceptible to review under either of those general review provisions.

Can the Tribunal review the Minister's determination

It is common ground between the parties that no express right of review of the Minister's determination exists under the LG Act, the VL Act or otherwise, and that the only capacity to quash or set aside the Minister's determination would be through an application for prerogative relief in the Supreme Court. The applicant contends, however, that because the Minister's determination is a necessary perquisite step establishing the basis of the valuation to which objection is taken, it is open to the Tribunal to, and the Tribunal should, entertain argument as to whether the Minister's determination was validly made.
The applicant places considerable reliance on the decision of the former President of the Tribunal, Barker J in Edwards & Anor and Department of Planning and Infrastructure & Ors [2007] WASAT 101 (Edwards). It is necessary to consider that decision in some detail.
Edwards concerned an application to review a decision of the Department of Planning and Infrastructure under the JettiesAct 1926 (WA) to refuse a jetty licence and a decision of the City of Mandurah under the Planning and Development Act 2005 (WA) to refuse planning approval to construct a jetty. The respondents asserted that those approvals could not be granted to the applicants, Mr and Mrs Edwards, as they conflicted with jetty licences and planning approvals previously granted to the owners of a strata development known as San Marco Quays. In essence, the respondents' proposition was that the construction of the jetties approved for the strata company would either occupy the same seabed area as the jetties proposed by Mr and Mrs Edwards, or at least would make navigation either impractical or unsafe. Mr and Mrs Edwards sought a declaration that, for various reasons, the approvals to the strata company were invalid, and accordingly should not be taken into account in assessing the merits of their own application for a licence and for planning approval. The convoluted history which gave rise to those contentions was explained in detail in the ultimate decision on the merits of Mr and Mrs Edwards application and can be found in Edwards and Chief Executive Officer of the Department for Planning and Infrastructure [2007] WASAT 292.
Barker J in Edwards found that the Tribunal did have jurisdiction to entertain a collateral attack on the approvals granted to the strata company.
After analysing the decisions in Selby v Pennings (1998) 19 WAR 520 (Selby) and Jacobs v Onesteel Manufacturing Pty Ltd [2006] SASC 32; (2006) 93 SASR 568 (Jacobs) his Honour concluded that there was no reason why a tribunal such as the State Administrative Tribunal should not be able to deal with collateral issues in the course of determining a review application (see [34]). At [36] his Honour referred to doubts which he had expressed in related proceedings which were on foot in the Tribunal, which he referred to as the Freegard proceedings, in which he expressed doubt as to the appropriateness of the Tribunal entertaining such a collateral attack and had suggested that thought be given to commencement of proceedings in the Supreme Court. Following those comments, proceedings had been commenced in the Supreme Court by the Freegards, but had subsequently settled. Speaking of the basis for the doubt which he had expressed in the Freegard proceedings, his Honour said:
… For example, it is clear on all of the authorities that in entertaining a collateral attack and upholding the grounds of the attack, the court or tribunal which otherwise lacks a judicial review jurisdiction is not thereby authorised to quash the administrative or legislative act impugned. All that happens, for the purposes of the proceedings in question, is that a view is taken as to the validity of the impugned act for the purposes of determining the primary issue at hand in the instant proceedings.
In a case such as the present, if the collateral attack were entertained by the Tribunal and were upheld, it would simply result in the Tribunal taking a particular view about the facts favourably, on that point, to the position of the applicants. It would not be a decision, however, that actually quashed or revoked the approvals already granted to the Strata Council. It would simply be a decision made on the basis that the approvals were not valid and so did not exist.
While the Tribunal, has the powers of a substitute decision-maker in review proceedings under the SAT Act, that does not mean it is authorised to revoke other approvals not the subject of the review. It can only deal with the particular decision affecting the applicants. It would add little to its decision to purport to "declare" those other approvals invalid. Even if it did, the declaratory order would fall short of the grant of a writ of Certiorari quashing the approvals. As a result, the approvals would continue to exist for purposes other than the instant proceedings.
…
At [42], Barker J posed the question of whether, when a relevantly grounded collateral attack is made before the Tribunal, the Tribunal had any discretion not to entertain it. He concluded at [45] that because the Tribunal lacks a discretion to decline to grant a remedy in review proceedings, the Tribunal could not decline to determine an issue arising in a relevant collateral attack, although it may, under s 50 of the SAT Act, cause the matter to be determined in a more appropriate forum.
The first respondent did not assert that the decision in Edwards is incorrect. Rather, it sought to distinguish this case from Edwards on the basis of the relevant legislative regime evinces an intention that the Tribunal not have jurisdiction to consider the validity of the determination. An argument to that effect was made in Edwards (see [17] - [18]). Although that contention was not specifically dealt with by Barker J, it is implicit from his Honour's reasons that it was rejected. Barker J's conclusion that it was open to consider the validity of the strata company's approvals was arrived at in a context where it was common ground that the Tribunal had no jurisdiction to review the grant of the licences to the strata company on the application of Mr and Mrs Edwards, and accordingly no power under s 29 of the SAT Act to affirm, vary or set aside that decision.
It can be expected that questions of 'collateral attack' will commonly involve challenges to administrative decisions or subordinate legislation where the party making the challenge would not, but for the relevance to the proceedings in which the challenge is made, have standing to bring proceedings solely directed to challenging the impugned decision or legislation. As McHugh J observed in Ousley v R (1997) 192 CLR 69 at 98 - 99:
A collateral attack on an act or decision occurs when the act or decision is challenged in proceedings whose primary object is not the setting aside or modification of that act or decision. … with the widespread availability of judicial review procedures, it conduces to clarity of thought, in my opinion, if the term 'collateral challenge' is confined to challenges that occur in proceedings where the validity of the administrative Act is merely an incident in determining other issues.
In my view, the fact that an administrative decision is not directly susceptible to review by the Tribunal does not, in all circumstances, lead to the conclusion, or any necessary implication, that the validity of that decision may not be called into question in proceedings otherwise within the Tribunal's jurisdiction.
The Valuer General also notes the observations of Barker J in Edwards that, if a collateral attack is entertained and upheld, the Tribunal is not thereby authorised to quash the administrative decision impugned. That is, in my view, a question which assumes significance in the context of whether or not to exercise the discretion conferred by s 50 of the SAT Act, rather than a question determinative of the issue as to whether the Tribunal has the capacity to entertain submissions, and make a ruling upon, (including possibly a declaration concerning) the validity of the Minister's determination.

Although not put in these terms, the Valuer General's position is, in essence, that the Tribunal should proceed to deal with the matter on the presumption that the Minister's determination was valid, and thus the valuation must proceed on the basis of GRV. The Minister's determination, published in the Government Gazette (at page 4326) comes within the definition of subsidiary legislation for the purposes of the Interpretation Act 1984 (WA). Section 43 of the Interpretation Act provides for a presumption, in the absence of evidence to the contrary, that all conditions and preliminary steps precedent to the making of subsidiary legislation have been complied with and performed. The operation of s 43(3) of the Interpretation Act was discussed by the Full Court of the Supreme Court in Selby albeit in the context of a criminal prosecution. At 528, Ipp J (with whom Owen J agreed) observed that there seems little difference between the common law presumption of validity and the statutory rule found in s 43(3) of the Interpretation Act. He said:
Both, it seems to me, apply only to matters of form, rather than of substance. Essentially, the presumption is that the formal requirements of judicial or administrative acts which are good in substance have been met.
His Honour said, however, that the presumption had no application to the substantive question as to whether the impugned administrative act had been made in accordance with the statutory requirements. The Court concluded that the magistrate had been correct in dismissing a complaint once an issue as to the validity of the relevant administrative act had been raised and supported by sufficient evidence to put the question in issue, and the prosecution had failed to adduce proof to the required standard on that issue.
In this case, the applicant has identified sufficient evidence to raise the issue as to whether the statutory prerequisites to the Minister's determination have been met. This presumption, even if it were to apply, would not prevent adjudication on the issue in those circumstances.
I note that the distinction between challenges as to form and challenges as to substance was criticised by Besanko J in Jacobs at [20]. As this case concerns a challenge on the basis of substance, and not form, and given that the issue of validity of the Minister's determination has been squarely raised by evidence, the apparently differing views as to the application of the presumption of validity are of no bearing on the conclusion which I have reached.
The Valuer General relied on a decision of the Land Valuation Tribunal of Western Australia (LV Tribunal), Happ v Shire of Busselton (2002) 31 SR (WA) 53 (Happ), to support his contention that it was not open to the Tribunal to entertain a challenge to the Minister's determination in these proceedings. Happ concerned an appeal under s 6.77 of the LG Act (prior to its amendment giving jurisdiction to this Tribunal) to the LV Tribunal. At the hearing, the appellant sought to expand the appeal to one under s 6.82(1) of the LG Act on the ground that there was a question of general interest as to whether the rate had been imposed in accordance with the LG Act. The basis for that attempt to expand the appeal was a contention that the Minister for Local Government erred in determining the method of valuation to be applied to the subject land pursuant to s 6.28 of the LG Act. The LV Tribunal concluded that a challenge of that nature did not amount to 'a question of general interest as to whether the rate … was imposed in accordance with the Act', and accordingly concluded that the Tribunal did not have jurisdiction in relation to that matter. It is clear, therefore, that the question arose in a somewhat different context from the present. There does not appear to have been any argument that the LV Tribunal should entertain the challenge on the basis of a collateral issue. The LV Tribunal merely concluded that the relevant determination was not susceptible to appeal under s 6.82 of the LG Act, a proposition with which I agree. The decision does not directly relate to the question presently before the Tribunal.
For those reasons, I am of the view that it is not open to the Tribunal to strike out that part of the applicant's case which seeks to challenge the Minister's determination on the ground that the Tribunal lacks jurisdiction. It is open to the applicant to raise the issue in the context of these proceedings.
The question becomes whether, notwithstanding that conclusion, that aspect of the proceeding should be struck out pursuant to s 50 of the SAT Act.

Section 50 of the SAT Act

Section 50 of the SAT Act provides:
More appropriate forum
(1)The Tribunal may, at any time, make an order striking out all, or any part, of a proceeding if it considers that the matter, or any aspect of it, would be more appropriately dealt with by another tribunal, a court, or any other person.
(2)The Tribunal’s power to make an order under subsection (1) is exercisable only by a judicial member.
(3)If the Tribunal makes an order under subsection (1), it may refer the matter, or any aspect of it, to the relevant tribunal, court, or person if it considers it appropriate to do so.
(4)The Tribunal may make an order under subsection (1) on the application of a party or on its own initiative.
It was common ground that a challenge to the Minister's determination would be available by way of an application for prerogative relief in the Supreme Court of Western Australia. It was also not in issue that, as Barker J found in Edwards, the Tribunal has no jurisdiction to quash the Minister's determination. The consequences of that limitation are significant, and I will return to them below.
The applicant contends that the Tribunal should not exercise its power under s 50 of the SAT Act, but rather should proceed to hear and deal with the question as to the validity of the Minister's determination. It argues that that course would be consistent with the statutory objectives found in s 9 of the SAT Act of achieving resolution of questions according to the substantial merits of the case, acting as speedily as practicable and minimising the costs to the parties. It also argues that the questions surrounding the predominant use of the land, which governs the Minister's determination under s 6.28 of the LG Act, is a question of a type commonly dealt with by the Tribunal in its planning jurisdiction, and accordingly resolution of the question by the Tribunal would make appropriate use of the knowledge and experience of the Tribunal members, the statutory objective found in s 9(c) of the SAT Act. The applicant contends that it is only if the validity of the Minister's determination is resolved that the Tribunal can reach the 'correct and preferable decision' as required by s 27(2) of the SAT Act.
Furthermore, Griffin Windfarm contends that a referral to the Supreme Court would add cost and delay, and expose the unsuccessful party to an adverse costs order which is not readily available in the Tribunal. Finally, the applicant contends that there is no unfairness or prejudice to the Minister for Local Government to oppose the applicant's challenge because the Minister (who has been given notice of the present proceedings) can formally be joined as a party and be represented at the hearing of the question.
In order to determine the appropriate course to take, it is necessary to examine the consequences if the Tribunal deals with the challenge to the Minister's determination.
It is not clear how much additional evidence would be required to deal with the issue. The opportunity for the Minister to appear and be heard on the question (whether personally or through the Director General of the Department of Local Government) would need to be given, probably through joinder of the Minister as a party. Questions arise as to whether the Shire, whose interests would be affected by a change in the basis of rating, might also be joined as a party. Because the whole basis of valuation turns upon the Minister's determination, it may well be necessary (as the Valuer General suggests) for the validity of the Minister's determination to be dealt with by way of a separate hearing of a further preliminary issue. As already noted, the extent of the evidence necessary to address that issue is not presently apparent. It is likely, however, that the hearing of the issue of validity would involve the same evidence and hearing time as would be involved were the Supreme Court to deal with the matter.
Importantly, if the applicant were to succeed on the validity question, it is not immediately apparent how the substantive question of valuation would then be determined. It is of particular significance that, unlike the Supreme Court, the Tribunal would not have the capacity to substitute its own decision under s 6.28 of the LG Act. I accept, as counsel for the applicant submitted, that the Supreme Court might not substitute its own decision, but might refer the matter back to the Minister were it to quash the Minister's determination. Either way, however, a determination as to the basis of valuation would ultimately be made as required by s 6.28 of the LG Act.
A finding by the Tribunal as to invalidity of the Minister's determination, even if it were accompanied by a declaration under s 90 of the SAT Act as to invalidity, would, at best, lead to uncertainty as to how the substantive valuation question is to be determined. To adopt the language of Barker J in Edwards, upholding the collateral attack would 'simply result in the Tribunal taking a particular view about the facts' favourable to the applicant. The method by which the valuation is to proceed would lack a clear foundation because the Minister's determination would not be quashed, but the Tribunal would no doubt be urged simply to ignore it.
The task of the Tribunal is to reach the correct and preferable decision - SAT Act s 27(2). It can only do so when the method of valuation is prescribed in accordance with the requirements of the LG Act. The proper course for the applicant, if it contends that the Minister's determination was invalid, would have been to challenge that determination by way of application for prerogative relief.
The inability of the Tribunal to substitute its own decision as to the predominant use of the land for purposes of s 6.28 of the LG Act imposes a very real impediment to the Tribunal reaching the correct and preferable decision based on the substantial merits of the case. The substantive work necessary to ventilate the issue of validity in the Supreme Court is unlikely to significantly differ from the substantive work necessary to ventilate the issue of validity as a preliminary issue in the Tribunal. Whilst I accept that the Tribunal's less formal and more expeditious procedures are likely to result in less costs to the parties, in my view that factor is not sufficient to outweigh the practical limitation on the remedies available to the Tribunal if it were to deal with the matter.
I accept that, by commencing proceedings in the Supreme Court, the applicant might be exposing itself to costs orders which would not normally be expected to be made in the Tribunal, where, as a general rule, parties bear their own costs. Again, while that may be a factor which works as a disincentive to the applicant pursing the matter in the proper forum, it is not a factor which in my view outweighs the desirability of having the question, if it is to be pursued, resolved in the appropriate and authoritative forum.
On balance, having regard to the ultimate orderly disposition of the matter, I am of the view that the Tribunal should decline to deal with the issue of the validity of the Minister's determination by striking out that part of the proceeding by which the applicant seeks to agitate that issue, on the basis that it is more appropriately dealt with by the Supreme Court. If the matter is not pursued in the Supreme Court, the proceedings in the Tribunal would proceed as a dispute as to the value using the GRV method. That indeed is the basis upon which the objection was dealt with by both parties, and the basis of the Valuer General's decision the subject of this review.
The Tribunal has a discretion to refer the matter to the relevant court under s 50(3) of the SAT Act. It is a matter for the applicant as to whether it wishes, having regard to the concerns which it expressed about taking that course, whether it commences proceedings, or chooses to continue with these proceedings on the basis of a valuation by way of assessment of GRV. It is open to the applicant to make that application if it wishes. In any event it is appropriate that any application to the Supreme Court be made in the appropriate form, with identification of the precise form of relief sought. That is a matter best left to the applicant. For those reasons, I do not propose to refer the matter to the Court.

Orders

1.The preliminary questions are answered as follows:
Question 1(a)

The Tribunal does have jurisdiction to determine in these proceedings the validity of the determination of the delegate of the Minister for Local Government published in the Western Australian, Government Gazette, No 195 (30 October 2009).
Question 1 (b)
The Tribunal should exercise its discretion under s 50(1) of the State Administrative Tribunal Act 2004 (WA) to strike out that part of the proceedings which challenges the Minister's determination
2.That part of the proceedings whereby the Minister's determination is challenged by the applicant is struck out pursuant to s 50(1) of the State Administrative Tribunal Act 2004 (WA).
3.The application is adjourned for directions at 11 am on 4 December 2012 in order to enable the Tribunal to ascertain whether the applicant proposes to commence proceedings in the Supreme Court in relation to the Minister's determination, and otherwise to program the matter.

I certify that this and the preceding [51] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J A CHANEY, PRESIDENT