Hegira Limited v Department of Natural Resources and Water

[2006] QLC 74

LAND COURT OF QUEENSLAND

CITATION:	Hegira Limited v Department of Natural Resources and Water [2006] QLC 74
PARTIES:	Hegira Limited (appellant/respondent)
v.
Chief Executive, Department of Natural Resources and Water (respondent/applicant)
FILE NO:	AV2005/1478
DIVISION:	Land Court of Queensland
PROCEEDING:	Hearing of an application.
DELIVERED ON:	1 December 2006
HEARD AT:	Brisbane
DELIVERED AT:	Brisbane
MEMBER:	Mr RS Jones
ORDER:	Appeal AV2005/1478 is struck out for want of jurisdiction.
CATCHWORDS:	Practice – statutory construction – change of ownership of land after objection – appeals under the Valuation of Land Act 1944 – jurisdiction of Land Court – rights of appeal pursuant to s.55(1) and s.51of the Valuation of Land Act 1944.
APPEARANCES:	Mr D Fraser QC, with him Dr R Copp, instructed by Legal Services, Department of Natural Resources and Water, for the respondent/applicant. Mr R Traves SC, with him Mr N Andreatidis – instructed by Kinneally Miley Lawyers for the appellant/respondent.

1. This is an application by the Chief Executive, Department of Natural Resources and Water to have an appeal by Hegira Limited (Hegira) against the unimproved value assigned to its land struck out for want of jurisdiction. 

Background

1. On 12 April 2005, pursuant to the Valuation of Land Act 1944 (the Act), the Chief Executive issued an interim unimproved valuation for land then owned by Hegira in the amount of $60,000,000.  On 11 May 2005 Hegira objected to the statutory valuation as issued.  Receipt of the objection notice was acknowledged by the Chief Executive on 24 May 2005 in correspondence addressed to Hegira.  On or about 7 July 2005 the subject land was transferred to Vercorp Pty Ltd (Vercorp).  There is no relationship between Hegira and Vercorp.  On 30 August 2005 the Chief Executive issued a Decision on Objection Notice reducing the statutory valuation from $60,000,000 to $52,000,000.  This notice was addressed to Hegira Limited at its business postal address.  Dissatisfied with the decision on the objection by the Chief Executive, on 11 October 2005 Hegira filed and served a notice of appeal in which it estimated the unimproved value of the subject land to be $3,300,000. 

2. On 1 September 2006, the Chief Executive filed in this court a general application which asserted that "The Notice of Appeal is defective because the owner named on the notice of appeal was not the 'owner' under s.7 of the Act."  The relief sought was that the appeal be struck out for lack of jurisdiction.  The position of the chief executive was articulated in paragraph 12 of its written submissions in very straight forward terms namely:

   "The jurisdictional issue in this appeal is whether the Court has jurisdiction in circumstances where the owner named in the Notice of Appeal was neither the registered owner of the property, nor the 'owner' in terms of s.7 of the … (Act) at the time when the appeal was commenced."

3. Put in a slightly different way Mr Traves SC, senior counsel for Hegira, contended that the question before me, in its "simplest form" is to determine whether the words in s.55(1) that "an owner who has duly objected … against a valuation…" requires that an owner who has duly objected in accordance with the Act must also at the time it lodges its appeal fit within one of the definitions of that term as prescribed in s.7 of the Act?

The Legislation

1. As the valuation in issue here is an interim valuation the relevant provisions of the Act are to be found in Parts 6 and 6A.  Similar, but not identical provisions exist in Part 4 of the Act concerning annual valuations. 

2. Section 51 relevantly provides:

   "51 Right of new owner to carry on objection or appeal

   (1)Where a change in the ownership of land occurs subsequent to the issuing of a notice of valuation in respect of that land the new owner may, subject to this section, object against that valuation and, if the new owner is dissatisfied with the decision of the chief executive upon that objection, appeal against that valuation.

   (2)If an objection or appeal as aforesaid was made or instituted by the former owner prior to the change in ownership then the new owner shall have the right to carry on in the new owner's own name that objection or appeal but the new owner shall not be entitled in that case to himself or herself make or institute a fresh objection or, as the case may be, appeal …"

   Section 55 relevantly provides as follows:

   "Appeal against the chief executive's decision on an objection

   (1)an owner who has duly objected to the chief executive against a valuation made by the chief executive may, if dissatisfied with the decision of the chief executive upon the objection, appeal to the Land Court."

3. In the circumstance of this application, there is no dispute that the objection lodged by Hegira was a valid objection pursuant to s.52 of the Act and that the company was entitled to have its objection considered in accordance with s.53 of the Act and entitled to be notified about the Chief Executive's decision pursuant to s.54.  Pursuant to s.7 an owner of land is defined, inter alia, as meaning a person entitled to receive the rent for the land but includes a registered proprietor of freehold land.  Subsection (4) provides that despite subsections (1), (2) and (3) of s.7 an owner of land also means, in relation to a valuation of the land for rating purposes, the person who is responsible for the payment of the rates and, in relation to a valuation of the land for land tax purposes, the person who is responsible for payment of the land tax.  No attempt was made by Hegira to rely on the provisions of subsection (4) of s.7.

4. According to Mr Fraser QC, senior counsel for the Chief Executive, Hegira lost its right to appeal once it sold the land to Vercorp on 7 July 2005 because, insofar as s.55(1) of the Act is concerned, Hegira was no longer an "owner" for the purposes of the phrase "an owner who has duly objected". Further, Hegira had no rights of appeal under s.51 of the Act as that section is concerned with conferring rights on new owners to object and appeal (s.51(1)) or to carry on objections made and appeals instituted by the previous owner (s.51(2)). Mr Traves SC, while being prepared to concede that s.55(1) had to be read together with the provisions of s.51, argued that in the circumstances of this application, s.51 in no way limited the right of Hegira to appeal pursuant to s.55 of the Act. In this context Mr Traves SC submitted that the real purpose of s.51(2) was not to take away existing lawful rights but to grant specific rights to new owners in circumstances where valid objections and/or appeals had been commenced by the previous owner but abandoned when the land was sold.

5. The main purpose of Parts 6 and 6A of the Act is to provide for an objection and appeal process for owners (as defined in s.7 of the Act) of land who are dissatisfied with the statutory valuation applied to their land by the Chief Executive.  In this context s.51 does not, in my opinion, extend the definition of "owner" in s.7 of the Act.  Instead, it provides for the rights of the original owner concerning objections and appeals to be available to the new owner in certain circumstances.

6. In my opinion it is not necessarily helpful to become too preoccupied with the use of the word "owner" in s.55(1) of the Act when attempting to determine the legislative scheme of Parts 6 and 6A.  The word at times seems to be used interchangeably with the word "objector" and "appellant" on occasions.  For example, in s.54(1) an "objector" is entitled to a written notice of the Chief Executive's decision but, pursuant to s.54(2) in certain circumstances it is the "owner" that is affected by the operation of that subsection who is then entitled to be notified not as the "owner" but as the "objector" pursuant to s.54(3).  In s.56(2) under the heading "How to start an appeal" it is the "owner" that bears the burden of proving each ground of appeal but it is the "appellant" that is required to state its opinion of value (s.56(3)) and serve the notice of appeal (s.56(4)).  And, of course the appellant or owner for the purposes of s.56 may not have been "an owner who has duly objected" for the purposes of s.55(1) but an appellant who derived its rights to carry on the appeal pursuant to s.51(2) of the Act.

7. In Department of Natural Resources and Mines v NE Christie (NSW) Pty Ltd [2004] QLAC 0091, the Land Appeal Court was concerned with circumstances where after the statutory valuation had issued pursuant to s.37 of the Act the owner, NE Christie (NSW) Pty Ltd (Christie), transferred the land.  Following the transfer of the land a notice of objection was filed on instruction by the new owner which was said to be "on behalf of the owner NE Christie (NSW) Pty Ltd".  Subsequently the Chief Executive's decision on objection was issued to Christie and an appeal was lodged in the name of that company.  Because the valuation under consideration in Christie was an annual valuation the relevant part of the Act was Part 4.  Pursuant to s.42(1) which falls within Part 4 an owner who is dissatisfied with the valuation of the Chief Executive is entitled to object.  Section 42(1) is in similar but not identical terms to s.52 of Part 6 of the Act.  In Christie the Land Appeal Court held that pursuant to s.46(1) of the Act the right of objection lay with the new owner because the transfer occurred after the "relevant date of notice" as defined in s.46(4). While s.46(1) is in terms different to s.51(1) relevantly speaking they are to the same effect. Section 46(2) is identical to s.51(2).

8. At pages 3 to 5 the Land Appeal Court in Christie said:

   "[9]An appeal lies under s.45 of the Act against a valuation made by the chief executive.  The right of appeal is conferred on 'an owner who has objected pursuant to s.42'…

   [10]Both s.42 of the Act, which confers the entitlement to object to the valuation and s.45 of the Act, which confers the entitlement to appeal against a valuation must be read in conjunction with s.46.  That section deals with the situation where there has been a change of ownership of the land and specifies the entitlements of the new owner to object and appeal or to carry on an objection or appeal.  Sections 46(1) and (2) of the Act relevantly provide:

   (1)   Where a change in the ownership of land occurs after the relevant date of notice, the new owner may, subject to this section, object against that valuation and, if the new owner is dissatisfied with the decision of the chief executive upon that objection, appeal against that valuation.

   (2)   If an objection or appeal as aforesaid was made or instituted by the former owner prior to the change in ownership then the new owner shall have the right to carry on in the new owner's own name that objection or appeal but the new owner shall not be entitled in that case to himself or herself make or institute a fresh objection or, as the case may be, appeal.

   Who was entitled to object and appeal?

   [11]It is apparent on the evidence that at 22 March 2002, 'the owner' for the purposes of making the objection and lodging the appeal pursuant to the Act was Trust Company.  That follows from the fact that the change of ownership occurred after 'the relevant date of the notice' (26 February 2002), when Trust Company was registered as owner of the land on 14 March 2002.  There was no evidence presented to suggest that Christie continued as 'owner' thereafter pursuant to any arrangement whereby it was entitled to receive the rent for the land.

   [12]It was therefore upon the new owner, Trust Company, that the entitlement to object against the valuation was conferred by s.46(1), although the valuation notice had been issued to the former owner.  Likewise, since no objection or appeal was lodged by Christie prior to the change of ownership, there could be no question of the new owner having an entitlement, pursuant to s.46(2), to carry on an objection or appeal in the name of the former owner.  Thus, the objection and the appeal were required to be made in the name of Trust Company as the relevant owner.

   [13]…

   [14]It is apparent from the statutory scheme outlined above that an objection to an annual valuation may only be made by the 'owner' as specified by the Act.  There are no provisions in the Act permitting defects in the objection to be rectified.  Furthermore, the only provision permitting an objection to be made otherwise than in accordance with s.42 is s.44 of the Act, allowing for late objections by a person who was entitled to make a timely objection.  It is also clear that, while the legislation contains some remedial provisions, permitting certain defects in the appeal process to be remedied, it remains an essential prerequisite to a right of appeal under s.45(1) of the Act, that the person seeking to appeal is 'an owner who has objected pursuant to s.42'.  In the present case, however no objection was made pursuant to s.42 by 'the owner' as that term is defined in the Act."  (emphasis added)

9. The reference by the Land Appeal Court to the entitlements of the new owner to object and appeal or to carry on an objection or appeal in paragraph 10 of its decision is a reference to the difference between the wording in s.46(1) which provides that the new owner may object and appeal whereas in s.46(2) the new owner has the right to "carry on" an objection or appeal. The same distinction appears in s.51(1) and s.51(2) of Part 6 of the Act.

10. In Christie at paragraph 14 the Land Appeal Court identified that the statutory scheme under Part 4 of the Act was to the effect than an objection to an annual valuation may only be made by the "owner" as specified by the Act.  I respectfully agree with that conclusion and, if that reasoning is applied to Part 6 of the Act it is equally applicable to s.52.  Accordingly, in the circumstances of this application Hegira was the only entity lawfully entitled to object to the statutory valuation.  The Land Appeal Court also correctly pointed out that under Part 4 of the Act an essential prerequisite to the operation of s.45(1) was that the person seeking to appeal must be "an owner who has objected pursuant to s.42".  If that reasoning is applied directly to s.55(1) of the Act then the essential prerequisite for appeals pursuant to s.55(1) is that the person seeking to appeal is "an owner who has duly objected". Section 55(1) refers not to an owner who has objected pursuant to s.42 but to an owner who has "duly" objected however, I do not think that anything turns on that difference.  When the words in the abovementioned phrase are given their ordinary meaning it is not necessarily an illogical or absurd conclusion that Hegira appears to satisfy the statutory requirement for the operation of s.55(1) and that therefore its appeal against the statutory valuation is validly instituted.  However, as was pointed out by the majority of the High Court in Project Blue Sky Inc & ors v Australian Broadcasting Authority[1] the primary object of statutory construction is to construe the relevant section so that it is consistent with the language and purpose of all the sections of the statute.  In this context the majority of the Court said in paragraph 69:

    "… The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole' (46).  In Commissioner for Railways (NSW) v Agalianos (47), Dixon CJ pointed out that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'.  Thus, the process of construction must always begin by examining the context of the provision that is being construed (48)."

    [1] (1998) 194 CLR 355 at 381 per McHugh, Gummow, Kirby and Hayne JJ.

11. In support of his argument that s.51(2) was facilitative legislation meant to give rights to new owners to carry on objections and appeals in circumstances where the original owner had abandoned the process, Mr Traves SC also relied in part on the second reading speech of the Valuation of Land Act Amendment Act 1950 concerning the predecessor of s.51(s.19A) by the Honourable PJR Hilton, Secretary for Public Works, Housing and Local Government where it was said:

    "An important amendment arises because a landowner who is objecting or appealing against a valuation disposes of the land before the objection or appeal, as the case may be, comes on for hearing.  The new section confers on the new owner the right to continue the proceedings should the transferor elect not to do so."  (Emphasis added)

12. I accept that an important purpose of s.51 is to give to new owners the right to carry on the objection and appeal process in circumstances where the original owner has elected not to and that the words "… the new owner shall have the right to carry on in the new owners name that objection or appeal…" found in s.51(2) do not in express or in the clearest of terms take away from an original owner its rights of objection and/or appeal and transfer those rights to the new owner. As mentioned in paragraph 14 above I also accept that the construction of s.55(1) contended for on behalf of Hegira does not necessarily result in an illogical or absurd result. However, on balance I find that I am unable to accept the argument advanced on behalf of Hegira. It is my opinion that while the words used in s.51(2) do not in express terms appear to take away the rights of the original owner to, relevantly for these proceedings appeal, such a consequence or result would not be inconsistent with the purpose of Parts 6 and 6A of the Act nor with the language that "… the new owner shall have the right to carry on in the owners new name that …appeal …"  It also seems to me that the reasoning of the Land Appeal Court in Christie at paragraphs 10 to 12, particularly where reference is made in paragraph 12 to "entitlements" being "conferred", construes and applies s.46 in a way so as to take from the original owner the right to object and/or appeal when there has been a change of ownership of land in the circumstances identified therein. As already referred to above, s.46(1) is materially to the same effect as s.51(1) and s.46(2) and s.51(2) are in identical terms. It therefore follows in my opinion that an acceptance of the argument and construction of s.51 and s.55(1) contended for on behalf of Hegira would result in a direct conflict with the reasoning of the Land Appeal Court in Christie.  I do not consider that the two cases can be sensibly distinguished to avoid such a conclusion notwithstanding the important factual differences between them.

13. During the course of argument I was referred to a number of decisions of this Court and the Land Appeal Court however, in the circumstances of this application, I consider that apart from the decision of the Land Appeal Court in Christie the only other case that I should specifically refer to is the earlier Land Appeal Court decision in Beedell Farms and Grazing Pty Ltd v Valuer-General.[2]  That case involved the situation where after the statutory valuations were issued but before objections had been lodged the appellant sold some of its land.  There was a submission that the term "owner" as it was then defined under the Act did not extend to cover a person who was at some relevant date in the past an "owner" of land for the purposes of the Act.  The Land Appeal Court rejected this submission for two reasons.  First, due regard had to be given to the words "for the time being" included in the then definition of "owner".  Second, the appellant still retained some of the land and had objected to the valuations affecting not only the land sold but also the land retained. 

    [2] 6 QLCR 109.

1. Mr Fraser QC submitted that the reasoning of the Land Appeal Court was of assistance, where at page 115 it was said:

   "When considering the meaning of the term "owner" of a parcel within the totality of the processes involved in proceeding from the assessing of valuation (physical inspection etc.), the reduction of that assessment to writing, the issue of the notice of valuation, the objection thereto and appeal therefrom, it is not straining language or commonsense, unless there has been an intermediate transfer of the whole parcel, to interpret the word "owner" used in the relevant sections as applying to the one and the same person.  In other words viewed in the context of the total valuation process it seems appropriate to us to interpret the words "for the time being" as applying to a single or relevant period of time – the time when a valuation becomes the valuation, that is when the Notice of Valuation issues and rights of objection and appeal are created and run in terms of the relevant sections of the Act."

2. The reference by the Court to the intermediate transfer of the whole of the land[3] has some relevance in that there has been an intermediate transfer of the whole of the land in this case.  However, in Beedell Farms the Court was particularly concerned with a definition of "owner" which is materially different and with facts which differ from the facts relevant to this application and, with respect, I do not consider the reasoning of the Land Appeal Court in that case to be of any real assistance in the circumstances of this application.  That said there is no doubt that the transfer of the whole of the subject land was seen as potentially a material consideration in determining who was the owner for the purposes of the Act as it then was.

   [3]            See also at P116.2.

3. Mr Traves SC submitted to the effect that an acceptance of the arguments contended for on behalf of the respondent would lead to situations where persons could be made the subject of uncontestable taxation.  In this context it was submitted that while the provisions of the Valuation of Land Act 1944 did not of themselves impose any taxes the statutory valuations authorised by the Act set the monetary basis for taxes such as rates and/or land tax and, in circumstances of the kind before the Court here, the person bearing the tax burden could be denied the ability to challenge the extent of his or her tax liability. To an extent there may be some support for the submissions of Mr Traves SC in that s.27(1A) of the Land Tax Act 1915 expressly provides that it is not a valid ground of appeal for appeals under that Act to challenge the level of the unimproved value assigned to any land.  That is, any rights to appeal the statutory valuation underpinning the land tax burden are to be found in the Valuation of Land Act 1944.  However, even if I were to accept for the purposes of this application that valuations under the Act should be seen as a part of tax imposition schemes of the State I am unable to accept the substance of Mr Trave's submissions on this issue.  In this regard, I find myself in agreement with the submission of Mr Fraser QC that the provisions of subsection (4) of section 7 of the Act would seem to address the concerns raised about the potential for the imposition of uncontestable taxation.

4. For the reasons set out above, I have concluded that Hegira Limited is not the proper appellant for the purposes of Part 6A of the Valuation of Land Act 1944.  Further, in circumstances where no application or submissions have been made about whether any remedial relief is available I do not see that there is any option available other than to strike out the appeal.

5. Accordingly, the application is successful and I order that the appeal be struck out for want of jurisdiction.  I will hear the parties as to further orders (if any) and as to costs.

Order

1.   Appeal AV2005/1478 is struck out for want of jurisdiction.

R S JONES

MEMBER OF THE LAND COURT