Melbourne City Council v Melbourne Port Corporation
[2003] VSC 200
•16 June 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION & PLANNING LIST
No. 5845 of 2003
| MELBOURNE CITY COUNCIL | Applicant (Rating Authority) |
| v | |
| MELBOURNE PORT CORPORATION | Respondent (Objector) |
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JUDGE: | Balmford J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 May and 2 June 2003 | |
DATE OF JUDGMENT: | 16 June 2003 | |
CASE MAY BE CITED AS: | Melbourne City Council v Melbourne Port Corporation | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 200 | |
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PRACTICE & PROCEDURE – VALUATION OF LAND - notices of objections filed in the Land Valuation List of the Victorian Civil & Administrative Tribunal (VCAT) in relation to rating authority site valuation - rating authority sought to have notices of objections treated as appeals to the Supreme Court pursuant to s.23(3) Valuation of Land Act 1960 – whether Court had jurisdiction to make such an order – whether Court’s jurisdiction should be exercised – whether Valuer-General should be joined as a party to proceedings - meaning of word “matter” pursuant to s.22(1) Valuation of Land Act 1960 – Appeals allowed - Valuer-General joined as a party.
Land Tax Act 1958 - s.16
Valuation of Land Act 1960 – ss.22, 23 and 26
Rex Tyre & Auto Services (Richmond) Pty Ltd v Country Roads Board [1979] VR 608
Marrickville Municipal Council v Moustafa (No. 2) [2002] NSWCA 179
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant (Rating Authority) | Mr J Judd QC with Mr P Crutchfield | Victorian Government Solicitor |
| For the Respondent (Objector) | Mr J Delany | Minter Ellison |
HER HONOUR:
Introduction
The applicant rating authority (“the Council”) seeks orders:
1.that pursuant to section 23(3) of the Valuation of Land Act 1960 (“the Act”), the matters constituted by the respondent’s notices of objections presently pending in the Land Valuation List of the Victorian Civil and Administrative Tribunal (“the Tribunal”) numbered L17/2002 and L49/2003 be treated as appeals to the Court and be removed into, and heard and determined by, the Court; and
2.that upon such an order being made, the Valuer-General appointed pursuant to the Act be joined as a party to the appeals.
The Council is the rating authority for a substantial area of land within the Port of Melbourne (“the land”) which is owned and controlled by the respondent objector (“the Port Corporation”). The Council assesses inter alia the site value of the land, and while the Council does not itself impose rates by reference to site value, the site value attributed to the land by the Council’s valuation is used as the basis for the imposition of land tax by the Commissioner of State Revenue (“the Commissioner”), pursuant to section 16 of the Land Tax Act 1958. Thus while the Council has no financial interest in the calculation of site value which it performs, that calculation is a matter of significance to the Commissioner.
By Notice of Objection dated 28 September 2001, the Port Corporation objected to the site values assessed in respect of the land as at 1 January 1999. The Council disallowed the objection and, at the request of the Port Corporation, referred the objection to the Tribunal for review. That objection now forms part of proceeding No L17/2002 at the Tribunal. There is a preliminary issue as to the jurisdiction of the Tribunal to deal with that matter, the nature of which it is not necessary to consider here, save to state that it turns on matters relating to the date of lodgment of the relevant objections, and the effect of section 22(2) of the Act. That preliminary issue, after an earlier hearing which was abortive for reasons which are not now relevant, and for which no blame attaches to either party, was set down for rehearing by the Tribunal on a date which has been adjourned and is yet to be refixed.
The Port Corporation similarly objected to the site values assessed in respect of the land as at 1 January 2000, and by the same procedure that objection now also forms part of proceeding No L17/2002 at the Tribunal. It is not suggested that it would not be possible, if necessary, to sever that proceeding and deal separately with the 1999 and 2000 assessments.
The Port Corporation similarly objected to the site values assessed in respect of the land as at 1 January 2002, and by the same procedure, that objection is now proceeding No L49/2003 at the Tribunal.
Both proceedings are listed to be heard by the Tribunal on 14 July 2003.
The first order sought
The relevant provisions of the Act are sections 22, 23 and 26, which read as follows, so far as relevant:
22.Right of review or appeal
(1)Subject to section 23, if¾
(a)an objector is dissatisfied with the determination of the Commissioner, a valuer or the valuer-general on the objection; or
(b)2 months have passed since an objection has been lodged with the rating authority and the valuer for the rating authority has not determined the objection or the valuer has not given notice to the objector under section 21(3)(b)(ii); or
(c)2 months have passed since a valuer has given notice to an objector under section 21(3)(b)(ii) and the valuer-general has not determined the objection¾
the objector may lodge with the rating authority a written notice requiring the rating authority to refer the matter to the Tribunal or to treat the objection as an appeal and cause it to be set down for hearing at the next sitting of the Supreme Court.
(2)A notice under sub-section (1)¾
(a)in the circumstances referred to in sub-section (1)(a)¾must be lodged within 30 days after the date that notice of the determination is given to the objector; or
(b)in the circumstances referred to in sub-section (1)(b) or (c)¾may be made at any time after the relevant 2 month period.
.. .
23.Jurisdiction of Tribunal and Court
(1)Subject to sub-section (3), a matter is to be referred to the Tribunal under this Division if it relates to a valuation of an amount being¾
(a)a capital improved value less than $250 000; or
(b)a site value less that $100 000; or
(c)a net annual value less than $12 500.
(2)If a matter relates to a valuation of an amount equal to or more than an amount referred to in sub-section (1), the matter may be referred to the Tribunal or treated as an appeal to the Court¾
(a)at the option of the objector; or
(b)at the option of the rating authority if the objector does not exercise the objector’s option within 1 month after being requested to do so by the rating authority.
(3)A matter may be treated as an appeal to the Court irrespective of the amount of the valuation if the Court is satisfied on the application of any party that the appeal raises questions of unusual difficulty or of general importance.
26.Supreme Court appeals
(1)On the hearing of an appeal under this Division, the Court may make any order it thinks fit and may, by order¾
(a)confirm, increase or reduce any valuation; and
(b)make any other amendment to a valuation or assessment notice it thinks fit.
(2)The Court may in its discretion by order award the costs of an appeal under this Division¾
(a)to the party in whose favour the appeal is determined; or
(b)if the appeal was lodged in respect of the matter under section 22(1), but was not proceeded with by the objector, to the rating authority.
.. .
In Rex Tyre & Auto Services (Richmond) Pty Ltd v Country Roads Board [1] Gobbo J said of the provision in section 25(2)(c) of the Act as it then stood corresponding to the present section 23(3):
As to unusual difficulty, I see no reason why the ordinary dictionary meaning of “unusual” should not be adopted, namely “not often occurring”. . . .
As to the phrase “questions of general importance”, I am of the opinion that this imports two notions, namely, importance and general application in the determination of claims for compensation within the Valuation of Land Act. A question may have general application if it has importance outside the fact[s] of the particular case and if, for example, it is capable of affecting a category of claims. It is not necessary that it must have a general application to all claims or to all aspects of compensation.
[1][1979] VR 608 at 610
Mr Delany, for the Port Corporation, conceded that the proposed appeal raises questions of general importance in the context of the valuation of port land in Victoria. Thus it is not in issue that the jurisdiction of the Court to make the first order sought, that is, treating the three objections as appeals to the Court, is enlivened. The question is whether that jurisdiction should be exercised, and if so, in what respects.
Mr Delany submitted, on the other hand, that there were no questions of unusual difficulty involved, because recent disputes relating to the valuation of the ports of Portland and Geelong had been readily resolved. However, those matters were resolved by negotiation.
In support of his submission that the proposed appeal did raise questions of unusual difficulty, Mr Judd relied on the statement made to the Tribunal in a letter from the solicitors for the Port Corporation dated 11 March 2003 that “the case involves a number of complex issues”. That letter refers to a letter to the Tribunal of 5 March from the solicitors then acting for the Council, to be reduced at the mediation. The letter of 11 March from the solicitors for the Port Corporation does not challenge the relevance of any of those issues.
However, to say that the case involves a number of complex issues is not to say that those issues are of unusual difficulty. In my view the concept of “questions of unusual difficulty” raises problems. The word “unusual“ qualifies the level of difficulty of the question. To say that the level of difficulty of the question is “unusual” is not to say that it is “considerable” or “substantial”. If, as Gobbo J held, in a finding with which I would, with respect, agree, an unusual difficulty is of a level of difficulty “not often occurring”, then it is necessary to look at the context of the places where such difficulty may occur. I assume that the provision is not intended to refer to a level of difficulty which does not often occur in the High Court. It is necessary to look at the provision in terms of its purpose, which is to enable the Court to determine whether the matter should be heard in the Tribunal or in this Court. It seems to me that it must be considered in the context of a level of difficulty “not often occurring” in the Valuation List of the Tribunal. The questions may be of that level of difficulty; but there is no material before me on which I could so find. The evidence is that they are “complex”; but to the extent that complexity may equate with difficulty, I have no reason to suppose that complex questions are unusual in that List, and there is no evidence before me to suggest that that is the case. Thus I am unable to find that the proposed appeal raises questions of unusual difficulty.
However, the agreement that the appeal raises questions of general importance is, as has been said, sufficient to enliven the jurisdiction sought to be exercised. There are four relevant matters, namely the preliminary issue outlined in [3] above and the three objections, and I now turn to consider whether the jurisdiction should be exercised in respect of any, and if so which, of those matters.
It is not necessary to set out in detail what are agreed to be the relevant questions of general importance in order to find, as I do, that that agreement renders it not only permissible, but desirable, that those questions of general importance be resolved by the Court. I accept the submission of Mr Judd, for the Council, that it is undesirable that those questions be resolved, in particular cases, in the manner which has sometimes occurred in the past, that is, by dealing with local municipal councils which, like the Council, have no fiscal interest in the outcome of the valuation.
Mr Judd submitted that the preliminary issue involved questions of general importance and accordingly should be dealt with by the Court together with the three objections. It would be undesirable for the proceeding to be fragmented, the preliminary issue being heard in the Tribunal, with the parties having their rights of appeal under section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (“the VCAT Act”), while the substantive matter was proceeding separately in the Court. He submitted that, in any case, the determination of the preliminary issue by the Tribunal would be irrelevant to the determination of the matter in the Court; but if it were effective to determine the validity of the 1999 objection, it would have the effect of circumscribing the jurisdiction of the Court, which the Court should not permit.
Mr Delany conceded that the Court has power to direct the Tribunal not to hear the preliminary issue. However, he submitted that his client would be prejudiced if that matter was heard in the Court, the powers of the Court being different from the powers of the Tribunal. Specifically, section 22(1) of the Act gave power to the Tribunal, in its review jurisdiction, to review the decision of the Council valuer on the objection. It was arguable, however, that the power given to the Court by that provision was only to deal with the objection, but if that were so there was no objection to deal with because the Council valuer had already decided the objection. However, Mr Judd submitted that if there was no objection, by virtue of lodgment out of time, then there was nothing to disallow, and the valuer’s notice of disallowance was of no effect because there was nothing for it to operate on. The existence of a valid objection was a jurisdictional issue which could be determined by the Court.
I have difficulty with Mr Delany’s submission as to the limitation of the power of the Court under section 22(1), as to which he did not refer me to authority. The word “matter” in that provision is not defined, and the reason for the distinction in section 22(1) between “the matter” and “the objection” is not apparent. It may be, on the basis of the principle reddendo singula singulis [2] , that “the matter” is intended to describe the dissatisfaction of an objector in terms of paragraph 22(1)(a), which is to be referred to the Tribunal, and “the objection” is intended to describe an objection which has not been determined, in terms of paragraphs 22(1)(b) and (c), which is to be treated as an appeal and set down for hearing by the Court. However, if that were so, one feels that the distinction would have been more precisely stated. Further, that distinction is inconsistent with the use of the word “matter” in all three sub-sections of section 23; it surely cannot be intended that that section, in so far as it relates to the Court, should apply only to objections which have not been determined. Again, if this were so, one would expect that it would be more precisely stated. In any case, this is not the occasion to decide that question; but the existence of the question renders it appropriate that the preliminary issue be determined by the Court.
[2]As to which the learned authors of Pearce & Geddes, Statutory Interpretation in Australia, 4th edition at [4.26] say: “Grammatically this interpretation may be defensible . . . but it presupposes a precision in writing that may well be a counsel of perfection”.
Further, Mr Delany submitted, section 126 of the VCAT Act, together with Rule 4.19 of the Victorian Civil and Administrative Tribunal Rules 1998, gave a power to VCAT to extend time limits fixed under the Act, which power was not available to the Court, and which would be relevant to the determination of the preliminary issue. However, given that that provision benefits one party rather than another, it does not seem to me to be an appropriate basis upon which to determine this application, and I have not taken it into account in reaching my decision.
In Mr Delany’s submission both the preliminary issue and the substantive issue relating to the 1999 valuation should remain with the Tribunal. The substantive issues relating to the 1999 and 2000 valuations were similar, so that in respect of 1999 it was only the preliminary issue which required specific determination. Therefore, he submitted, only proceeding L17/2002, in so far as it related to the 2000 valuation, and proceeding L49/2003 should be treated as appeals to the Court.
However, as Mr Judd submitted [3] , it is inappropriate that a jurisdictional issue potentially relevant to the jurisdiction of the Court should be determined by the Tribunal. Further, assuming that the preliminary issue is resolved on the basis that the Tribunal has jurisdiction, and it proceeds to hear the substantive issue for 1999, then similar issues will be being considered by both the Court and the Tribunal, which is obviously undesirable. Having considered the matter, I am of the view that it is appropriate, in all the circumstances, that all three matters, including the preliminary issue, be treated as appeals to the Court and set down for hearing, and there will be an order to that effect.
[3]see [15] above
Mr Delany further submitted that those matters should only be treated as appeals to the Court on condition that:
(a)the Valuer-General pay the costs of the Port Corporation to date in respect of the Tribunal proceeding, save as to the preliminary issue the costs of which should be determined by VCAT;
(b)the Valuer-General pay the costs of the Port Corporation of the proceeding, irrespective of the outcome; and
(c)the matter should proceed in the Court on 14 July 2003, the date for which the substantive matters have been listed before the Tribunal.
Section 26(2)(a) of the Act limits the power of the Court to award costs on an appeal so that (with one irrelevant exception) they may only be awarded in favour of the successful party. [4] In my view, that provision inhibits the Court from making the costs orders sought.
[4]See Esso Exploration & Production Australia Inc v Shire of Morwell [1986] VR 289 at 298 & 301; Vicgrain Assets Pty Ltd v Hindmarsh Shire Council (No 2) (1999) 107 LGERA 110 at 112
Mr Delany submitted that if the Valuer-General wanted a matter dealt with by the Court because of its general importance, it was appropriate that the Valuer-General pay the costs of the application. The relevant costs in respect of the Tribunal proceeding related to a number of meetings and other communications which had taken place between the parties over a period of time. He referred to the principles applicable to test cases, and submitted that the following passage from the judgment of Heydon JA in Marrickville Municipal Council v Moustafa (No 2)[5] applied in this case:
Terms of the type which the Court of Appeal imposed on the grant of leave are commonly imposed by appellate courts where litigation involving a penniless, or even a not penniless, citizen, engaged for the first and last time in litigation, raises some point of general importance which the citizen’s opponent, who is frequently engaged in litigation or conduct which may lead to litigation – the Commonwealth, the State, a council, some other organ of government, some public institution or some large corporation – wishes to have clarified. It is thought that the citizen should not have to bear the financial burden of having the point of principle which is of interest to others, but not to the citizen, determined at the expense of the citizen.
[5][2002] NSWCA 179 at [14]
Mr Judd submitted that, given the expectation that this case will establish principles relating to the valuation of ports which will be able to be applied in the future, providing some certainty as to the relevant principles, it will give rise to a continuing benefit to the Port Corporation. The principles applicable to test cases, in his submission, were not relevant to a dispute of this kind; the Port Corporation was not comparable with the “citizen” referred to in Marrickville. However, he indicated that if all three proceedings were to be transferred to the Court, he was instructed to consent to an order that the Council would meet the costs of the Port Corporation thrown away as a result of the transfer, those costs to be assessed on the Tribunal scales. I consider that to be the appropriate costs order to be made on the present application.
As to the third condition sought by Mr Delany, I accept the submission of Mr Judd that his client, having changed solicitors with the change of control of the matter, and, having changed counsel for a valid reason not here relevant, will be unable to proceed on the date for which the matter has been set down at the Tribunal, which in any case is not available in the Court.
The second order sought
As to the second order sought, the Valuer-General in his affidavit of 29 May 2003, deposes that he is appointed under the Act and has the overriding responsibility for the administration of the Act and the valuations made thereunder, including valuations made by the Council as rating authority. Mr Delany submitted that the Act contains no provision to this effect, and I accept that submission. Nevertheless, I find, on the basis of that affidavit and of the several provisions of the Act which refer to the Valuer-General, that whatever the position in law, the role of the Valuer-General is in fact as he describes it, and I understood Mr Delany to concede that that is in reality the case.
The Valuer-General deposes further that he has reached agreement with the Council to assume full control over the response of the Council to the challenge made by the Port Corporation to its assessment of site values relating to the land. That being so, and given that the determination of the substantive questions which arise will directly affect valuation principles which will require to be applied by him in valuing port land, he requests that should the matters be treated as appeals to this Court, he be joined as a party to those appeals. Mr Judd submitted that as the Valuer-General has assumed control of the proceeding, it seemed appropriate that he be joined as a party rather than simply standing behind the Council.
Mr Delany’s objection to joining the Valuer-General was that his client had been dealing with the Council for a long time over these matters, and the issues had been defined. If the Valuer-General were joined, he submitted, his client would be dealing with a different opponent, and the issues would change, and the matter would be further delayed.
As to the submission that the issues are defined, Mr Searle, Manager, Property Management, of the Port Corporation, deposes in his affidavit sworn on 29 May 2003 to “identifying and narrowing issues” between the parties, but indicates that “those matters have not been recorded in a formal binding agreement”. Ms Viney, of the firm of solicitors acting for the Port Corporation, in her affidavit sworn on 11 December 2002, deposes that the parties have not reached agreement on the correct methodology to be applied or on the correct assessment of site values or on the basis of further discussions. Ms Davidson, of the Victorian Government Solicitor’s Office, now representing the Port Corporation and the Valuer-General, in her affidavit of 2 June 2003 deposes as to a number of issues which remain outstanding. I am not in a position to reach any conclusion on the extent to which agreement has been reached.
In any case, as between the Valuer-General and the Council, the Valuer-General has taken over the conduct of the matter from the Council, and that is a matter not within the control of the Port Corporation, or indeed of this Court. Thus any such difference in the issues or in the manner of handing the matter would exist whether or not the Valuer-General were formally joined. Mr Judd emphasised that the role of Mr Marsh, the Council valuer who made the valuations in issue, will not change with the addition of the Valuer-General as a party.
For all these reasons, I consider it appropriate that the Valuer-General be joined as a party to the proceeding and there will be an order to that effect.
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