Melbourne City Council v Port of Melbourne Corporation
[2005] VSCA 72
•8 April 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 5845 of 2003
| MELBOURNE CITY COUNCIL | |
| Appellants | |
| v. | |
| PORT OF MELBOURNE CORPORATION & ANOR | Respondents |
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JUDGES: | BUCHANAN, EAMES and NETTLE, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 7 March 2005 | |
DATE OF JUDGMENT: | 8 April 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 72 | First Revision: 21 April 2005 |
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LAND TAX - Valuation of Land – Appeal – Assessment of land tax based on notice of valuation given under the Valuation of Land Act 1960 – Time in which to object against valuation of land – Time in which to appeal from notice of disallowance of objection – Words and phrases - “person aggrieved” – Land Tax Act 1958, ss. 3, 16, 24A; Valuation of Land Act 1960 ss. 2, 15, 16, 17, 18 and 19.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J.G. Judd, Q.C. | Victorian Government Solicitor |
| For the First Respondent For the Second Respondent | Mr J. Delany, S.C. Mr A.G. Southall, Q.C. | Minter Ellison Solicitor for the |
BUCHANAN, J.A.:
I agree with Nettle, J.A.
EAMES, J.A.:
I have had the considerable advantage of reading, in draft, the judgment of Nettle, J.A. For the reasons given by his Honour I agree that the appeal ought be allowed and, in addition, that leave be granted to file the cross appeal and upon it being treated as heard instanter, the cross appeal be also allowed. I agree with his Honour’s formulation of the answers to the two questions posed by the order of 7 June 2004 and with his proposal for the further disposition of the matter.
NETTLE, J.A.:
This is an appeal from a judgment given in the Common Law Division on 23 June 2004 in respect of two preliminary issues[1]:
(i) Whether the Appellant's objection to 1999 levels of site value lodged with the Melbourne City Council on 28 September 2001 [‘the 1999 objection’] was a valid objection under the Valuation of Land Act 1960(Vic)?
(ii) Whether the Appellant's objection to 2000 levels of site value lodged with the Melbourne City Council on 4 October 2001 [‘the 2000 objection’] was a valid objection under the Valuation of Land Act 1960(Vic)?
The judge held that the 1999 objection was a valid objection except as to the properties numbered 27 and 87 to 100 in the schedule, but that the 2000 objection was an invalid objection in that the time in which to lodge it had not yet arrived.
[1]Which the judge identified pursuant to Rule 47.04.
The first respondent Port of Melbourne Corporation (“PMC”) has filed a notice of contention[2] in which it contends that if the judgment is not affirmed on the basis which found favour with the judge it should be affirmed on a number of other
[2]Pursuant to Rule 64. 17(5).
bases specified in the notice and PMC has also served but not yet been given leave to file a contingent notice of appeal, which I shall call the notice of cross appeal, directed to the 2000 objection.
The 1999 objection
The facts.
The judge found the facts relating to the 1999 objection to be as follows:
“Evidence
13.A general valuation was made by the Council [MCC] as at 1 January 1999 of all rateable properties within its municipal district. On or about 31 August 1999 the Council issued Rate and Valuation Notices in respect of properties owned by PMC.
14.Section 156 of the [Local Government Act 1958] has the effect that the primary liability for payment of rates rests with the owner of the land. However, in respect of a number of the properties, PMC had earlier asked the Council to send rate notices directly to its tenants. It is to be presumed that PMC's leases include a covenant for payment of rates by the tenants. It is common ground that notices relating to the site values of the tenanted properties were not sent to PMC.
15. An e-mail of 27 September 1999 from Saana Bourne, then Manager, Property Management, of PMC, to Mr Berryman, who then held the position at the Council now held by Mr Marsh, asking for a schedule of the assessment included the words “I would appreciate your early attention as we have only until 30/10/99 to object”.
16. A spreadsheet ("the 1999 spreadsheet") was sent by the Council to PMC on or about 8 October 1999. It contained assessments of site value and other information in respect of the properties owned by PMC in the Council's municipal district.
17. On or about 29 October 1999 the Council received notices of objection, completed and signed by Mr Harvey, relating to two properties. The Council recommended to the Valuer-General that adjustments be made to the site value of those properties and those recommendations were approved by the Valuer-General.
18.Between September and November 1999 supplementary valuations were carried out by the Council, at the request of PMC, in respect of eighteen of PMC's properties. Notices of Supplementary Valuation in respect of those properties were issued on or about 23 December 1999. Supplementary Valuations in respect of a further three properties were carried out in May 2000.
19.The effect of section 3(2A) of the Land Tax Act is that the site values assessed by the Council as at 1 January 1999 were used by the Commissioner for the purpose of assessing land tax for 2001. The Commissioner notified PMC of those site values in a land tax assessment notice dated 9 March 2001, again in an amended land tax assessment notice dated 24 May 2001 and again in an amended land tax assessment notice dated 1 August 2001. Neither the 9 March notice nor the 24 May notice included a level of site value for the property numbered 27 (“the Moonee Ponds Creek property”). The notice issued on 1 August 2001 differed relevantly from the two earlier notices only in the addition of a level of site value for that property.
20. In the 1999 objection, lodged on 28 September 2001, PMC objected to the site values of properties enumerated in a schedule to the Notice of Objection and numbered from 1 to 100. That schedule was a copy of the schedule to the amended land tax assessment issued by the Commissioner on 1 August 2001. The objection was disallowed by Mr Marsh on 10 January 2002.
21. The properties numbered 87 to 100 in that schedule are outside the boundaries of the Council's municipal district, and were never valued by the Council. It is not in issue that those properties are unable to be the subject of objection to the Council.
22. Four properties listed in the schedule, numbers 27, 44, 45 and 46, had been valued by the Council, but the values assessed by the Council were not the values attributed to those properties in the schedule to the Notice (i.e. the schedule to the land tax assessment of 1 August 2001). Section 16 of the Land Tax Act in effect permits the Commissioner to use values assessed by municipal councils, other rating authorities, the Commissioner, the Valuer-General, or a valuer nominated by the Valuer-General.”
The judge’s reasons.
The validity of the 1999 objection depends on whether the time for objecting began to run upon notice of the value of land given to PMC by the Melbourne City Council and Valuer-General of Victoria (“MCC”) pursuant to the Valuation of Land Act 1960, or only upon notice of the land assessment tax given to PMC by the Commissioner of Land Tax pursuant to the Land Tax Act 1958. If it is the former, the objection would be clearly out of time, and (subject to one further consideration) therefore invalid, but if the latter the objection would be well within time and there is no other dispute about its validity. The judge accepted PMC’s contention that the time in which a tax payer may object to an assessment of land tax based on a valuation made under the Valuation of Land Act 1960 does not begin to run until notice of the land assessment tax is given to the taxpayer by the Commissioner of Land Tax pursuant to the Land Tax Act. In her Honour’s words:
“24.[Counsel for the appellant] began with the submission that the right to object arose only once the basis of value determined began to "bite", i.e., the recipient of the assessment notice became required to pay a rate or tax based on that valuation. It was not until that point that the recipient became a "person aggrieved" in terms of section 16(1) of the Valuation Act which empowers "a person aggrieved by an assessment of the value of any land made by or for a rating authority" to object to that assessment.
25. In support of that submission, he relied upon the judgment of the Full Court of the Supreme Court of Queensland in Mundy v Brisbane City Council[3], where Hoare J said:
[3](1966) 13 L.G.R.A. 187 at 192.
‘As observed by Lord Parker CJ in Ealing Corporation v Jones[4], it is easier to say what will not constitute a person aggrieved than it is to say what "person aggrieved" includes. It is clear from the authorities that a person aggrieved does not include every person who is discontented or annoyed at the decision or who is adversely affected in some indirect manner by the decision. "A `person aggrieved' must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something, or wrongfully refused him something, or wrongfully affected his title to something": Ex parte Sidebotham; In re Sidebotham per James LJ[5] .’
[4][1959] 1 Q.B. 384 at 390.
[5](1880) 14 Ch.D. 458 at 465.
26. Stable J, in the same case[6] said:
[6]At 189.
‘The oft-quoted classic statement of James LJ in [Sidebotham] was the subject of remark by the Judicial Committee in Attorney-General of the Gambia v N'jie[7], where it was re-affirmed that the definition of James LJ is not to be regarded as exhaustive. It was held that the words "person aggrieved" are of wide import and should not be restricted to a restrictive interpretation. "They do not include, of course, a busybody who is interfering in things which do not concern him: but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interests." And, as Lowe J mentioned in Johnstone v Hicks[8], Fullagar J in Dentry v Stott[9] posed as a test that a person's interest must be really and directly affected by the order made for him to be a party who feels aggrieved. Another way of explaining "person aggrieved" is the expression of Lord Esher MR in Ex Parte Official Receiver; In re Reed, Bowen & Co[10], where he said that "a person aggrieved" must be "a man against whom a decision has been pronounced which has wrongfully refused him something which he had a right to demand.’
[7][1961] A.C. 617 at 634.
[8][1948] V.L.R. 213 at 214.
[9][1947] V.L.R. 462.
[10](1887) 19 Q.B.D. 174 at 177-178.
The decisions are many and they point to the impracticability of seeking to define "a person aggrieved".
27.While the position is summed up in the last paragraph of the passage cited from the judgment of Stable J, it is not necessary to seek to define a "person aggrieved" in order to interpret and apply the expression in the various statutory provisions where it is employed. None of the authorities cited above relates to legislation providing a right to object to a valuation. But it does seem to me that those authorities lead to the conclusion that a person does not become a "person aggrieved" by an assessment of the value of land which is made for taxing purposes until that person is required to pay a rate or tax which is based upon that valuation. Parliament has chosen to confer the power to objection on a "person aggrieved by the assessment of the value of any land". Had it wished to confer that power on the owner of the land as such, it could have done so.[11]
28. That principle must be qualified by the deeming provisions of sub-sections 16(4) and (5). But it should be noted that sub-section 16(6) provides for the notice of objection to be given to "the person or body that issued the assessment of the rate or tax", which assumes that it is not until the rate or tax has become payable that the person in question becomes a "person aggrieved".
…
…
40.… Clearly it is the intention of the three relevant Acts, the LGA, the Land Tax Act and the Valuation Act, to provide a scheme enabling objections to be made to the valuation of land in the context of rating and taxing. I accept that in the case of ambiguity as to the existence of gaps in that scheme, it is appropriate to proceed on the basis of such an intention.
41. Taking into account the matters to which I have referred, I accept the submission of [counsel for the respondent] that it was open to PMC to object to the whole of the amended land tax assessment of 1 August 2001, and that, the 1999 objection having been made within two months of the giving of that assessment, the 1999 objection was a valid objection in so far as it related to properties other than those numbered 87 to 100 in the schedule.”
[11]My emphasis.
I am afraid that I disagree with her Honour’s analysis and I note that while counsel for PMC started his response to the appeal by supporting the analysis he finished the appeal by abandoning any reliance upon it.
The statutory scheme.
Land Tax is assessed under the Land Tax Act on “the unimproved value” of land and the unimproved value of land is determined by reference to “the site value of the land”. Sub-sections 3 (2) and 3 (2A) of the Land Tax Act provide that:
“3. Definitions
(1)…
(2)For the purposes of assessing tax to be charged, levied or collected under this Act (other than tax charged, levied or collected under Part IIB) in any year, including special land tax under section 10-
(a)in respect of any tax year up to and including 2002, the unimproved value of any shall be an amount equal to the site value (as defined in the Valuation of Land Act 1960) of the land as at the relevant date adjusted in accordance with sub-section (4);
(ab) in respect of any after 2002-
(i)if the has not been used for the purposes of assessing tax in a previous year, the unimproved value of any land is an amount equal to the site value of the land as at the relevant date;
(ii)if the applicable general valuation has been used for the purposes of assessing tax in a previous year, the unimproved value of any land is an amount equal to the site value of the land as at the relevant date multiplied by the prescribed indexation factor (if any) applying to the land for the tax year;
...
(2A) In sub-section (2) "the relevant date" is-
(a)where the land is within the municipal district municipal council-
(i)subject to sub-paragraph (ii) the date as at which rateable properties within the municipal district were valued for the purposes of the last general valuation returned to the municipal council before 1 January in the year immediately preceding the year for or in which the land tax is being assessed;
(ii) where the land has been valued for the purposes of a supplementary valuation after the return date of the last general valuation referred to in sub-paragraph (i) but before 1 January of the year for or in which land tax is being assessed, the return date of that supplementary valuation; or
(b)where the land is not within a municipal district of municipal council, 31 December in the year immediately preceding the year for which the land tax is being assessed…”
The Commissioner of Land Tax is entitled for the purposes of assessment to make use of the valuations of the site value of land which are prepared by rating authorities under the Valuation of Land Act or those prepared by the Valuer General. Section 16 of the Land Tax Act provides that:
“16. As to use of valuations by Commissioner
For the purpose of the assessment and levy of taxation the Commissioner may use-
(a)valuations made by a rating authority within the meaning the Valuation of Land Act 1960;
(b)valuations made by the Valuer-General or a valuer nominated by the Valuer-General;
...”
The rights of a taxpayer to object to an assessment of land tax vary according to whether the Commissioner has or has not made use of valuation prepared by a rating authority under the Valuation of LandAct. If the Commissioner has made use of such a valuation, s.24A of the Land Tax Act precludes the Commissioner from entertaining the objection in so far as it relates to the unimproved value of the land the subject of the assessment, and leaves that aspect of the matter to be dealt with under the Valuation of Land Act. Section 24A of the Land Tax Act provides that:
“24A. Objections
(1)Any person who is dissatisfied with the assessment of the Commissioner relating to a duty of land tax charged, levied and collected under this Act other than Part IIB, may give to the Commissioner within 60 days after service of the notice of the assessment an objection in writing against the assessment stating fully and in detail the grounds on which he relies but the Commissioner must not entertain any objection relating to the unimproved value of land where the assessment is based on a valuation made under the Valuation of Land Act 1960.
(1AA) A taxpayer who is dissatisfied with an assessment of the Commissioner relating to a duty of land tax charged, levied and collected under Part IIB, may give to the Commissioner within 60 days after service of the notice of assessment an objection in writing against the assessment stating fully and in detail the grounds on which the taxpayer relies.
(1A)Nothing in sub-section (1) or (1AA) limits or affects the right of any person to object to a valuation in accordance with the provisions of Part III of the Valuation of Land Act 1960.
(2)The Commissioner shall consider every written objection made by a taxpayer and may make such inquiries thereon or relating thereto as he thinks fit.
(3)If the Commissioner considers that any objection should be allowed either wholly or in part he may alter or amend the assessment accordingly.
(3A)The Commissioner shall not make a decision upon any objection relating to the amount at which the unimproved value of any land was assessed or, in the case of a transmission easement, the value of that easement was assessed, without consulting the Valuer-General.
(4)The Commissioner shall give the taxpayer written notice of his decision on the objection.” [12]
[12]Emphases added.
There are a number of rating authorities, including municipal councils and the Commissioner. “Rating authority” is defined in s. 2 of the Valuation of Land Act, as follows:
"’rating authority’ means-
(a) any council in respect of its powers under any Act;
(b) any Authority under the Water Act 1989;
...
(d) Melbourne Water Corporation;
(e)the Minister responsible for administering section 139 of the Water Industry Act 1994, when exercising the power to levy rates under that section;
(f) the Commissioner;
(g)any other authority which levies rates or taxes and is prescribed for the purpose by proclamation of the Governor in Council published in the Government Gazette;
...”
There are also a number of bases upon which a rating authority may value land under the Valuation of Land Act. As well as “site value,” they include “capital improved value”, “estimated annual value” and “net annual value”. In broad terms “site value” is defined as what may be supposed would be the market value of an unencumbered estate in fee simple in the land assuming no improvements had been made; the “capital improved value” is defined as the market value of an unencumbered estate in fee simple in the land including any improvements; “estimated annual value” is defined as the rent at which the land might be expected to be let from year to year less the costs of insurance and land tax; and “net annual value” is defined as the greater of the estimated annual value and five per cent of the capital improved value.
Section 15 of the Valuation of Land Act requires a rating authority that makes a valuation to give notice in respect of each rate it makes or intends to make to the person liable for the payment of the rate of the several bases of value assessed in respect of the land, and the section directs the rating authority to include in the notice a warning that some other authority may use one of the bases of value shown for the purposes of a rate or tax levied by that authority. Section 15 of the Valuation of Land Act provides that:
“15. Rating authority must give notice of valuation
(1)A rating authority that makes a valuation or causes a valuation to be made must, in respect of each rate it makes or intends to make, give to the person liable for the payment of that rate-
(a) a notice of valuation that-
(i) identifies the land in respect of which the rate is or will be payable; and
(ii) shows the several bases of value assessed in respect of the land; and
(iii) states the date as at which the value of the land was assessed; and
(b) a notice that some other authority may use one of the bases of value shown for the purposes of a rate or tax levied by that authority.
(2) The notice referred to in sub-section (1)(b) must be given before or at the same time as the notice referred to in sub-section (1)(a).
(3) If the person liable for payment of the rate is not the occupier of the land, the rating authority must also give the notices referred to in sub-section (1) to the occupier.
(4) This section does not apply in respect of a valuation of a transmission easement made under section 5B.”
“A person aggrieved by a valuation” made by a rating authority may object against the valuation, and a person who is given a notice of valuation is deemed to be “a person aggrieved by the valuation” whether or not the valuation is used for the purposes of a rate or tax levied by the rating authority. Section 16 of the Valuation of Land Act[13] provides:
[13]As it was at relevant times.
“16. Who may object?
(1) A person aggrieved by an assessment of the value of any land made by or for a rating authority may lodge a written objection with the rating authority on any one or more of the grounds set out in section 17.
(2) An objection must -
(a) be in the prescribed form; and
(b) give particulars of the bases of valuation to which objection is made; and
(c) state the grounds on which the objection is based.
(3) However, a rating authority cannot disallow an objection only because of a failure to comply with sub-section (2).
(4) The occupier of land valued by or for a rating authority is deemed to be a person aggrieved by an assessment of the value of the land whether or not the occupier is liable to be rated by the rating authority.
(5) A person is deemed to be a person aggrieved by an assessment of the value of land if -
(a) the person is liable for or required to pay any rate or tax in respect of land; and
(b) notice of a valuation of the land has not been given to that person by the rating authority which made it or which caused it to be made.
(6)A person referred to in sub-section (5) must give written notice of an objection to the person or body that issued the assessment of the rate or tax and to the rating authority that made the valuation or caused it to be made.
(7)This section does not apply in respect of a valuation of a transmission easement made under section 5B.”
The permissible grounds of objection are prescribed by s. 17 of the Valuation of Land Act as follows:
“17. Grounds for objection
The grounds for an objection are-
(a) that the value assigned is too high or too low;
(b) that the interests held by various persons in the land have not been correctly apportioned;
(c) that the apportionment of the valuation is not correct;
(d) that lands that should have been included in one valuation have been valued separately;
(e) that lands that should have been valued separately have been included in one valuation;
(f) that the person named in the notice of valuation, assessment notice or other document is not liable to be so named;
(g) that the area, dimensions or description of the land are not correctly stated in the notice of valuation, assessment notice or other document.”
The time in which an objection against the valuation may be made is limited by s.18 of the Valuation of Land Act to a period of two months after the notice of valuation is given or, if the valuation appears in a subsequent notice given by the rating authority, to a period of two months after the subsequent notice is given. That is subject, however, to a proviso in s.19: that where an objection has been lodged and considered, it is not permitted to make a further objection within 12 months of lodging the first objection. Sections 18 and 19 of the Valuation of Land Act provide that:
“18. Time for lodging objection
(1) An objection to a valuation made by the Commissioner or for the Commissioner by a person or authority other than a municipal council must be lodged within 2 months after the notice of assessment based on that valuation has been given under the Land Tax Act 1958.
(2) In any other case, an objection must be lodged-
(a)if any of the valuations in the notice given by the rating authority under section 15(1)(a) appear for the first time-within 2 months after the notice is given; or
(b)if a valuation that has appeared in a notice given by the rating authority appears in a subsequent notice given by that authority-
(i)if the subsequent notice is given on or after 1 February but before 1 October in any year-within 2 months after the subsequent notice is given; or
(ii)in any other case-during February or March next after the subsequent notice is given; or
(c)in the case of a person referred to in section 16(5)-within 2 months after receiving the notice of assessment of the rate or tax.
19.Further limitation on lodging of objections if previous objection lodged
(1)If an objection to the valuation of any rateable land is lodged with a rating authority and considered by the valuer of that authority under section 21, a further objection to that valuation cannot be made within 12 months after the lodgement of that objection.
(2)Sub-section (1) applies whether the valuation is used by the rating authority to whom the objection was made or another rating authority.”
Error in the judge’s analysis.
The first step of the judge’s analysis was with respect unexceptionable. The right to object under s.16 of the Valuation of Land Act against an assessment of the value of land is confined to “a person aggrieved by [the] assessment of the value”. But having had the benefit of extensive submissions from the appellant and from the Commissioner, which the judge did not have, I have come to a different conclusion to the judge as to the express provisions of ss.16(4) and 18(2)(a) and (b), and the implications inherent in ss.16(5) and 18(2)(c), and the effect of s.16(6) of the Valuation of Land Act.
Section 156 of the Local Government Act 1989 imposes primary liability on the owner of land to pay the rates and charges on that land.[14] The owner of land is therefore a “person aggrieved by an assessment of the value of [the] land made by or for a rating authority”. As such the owner has a right of objection against assessment of value under s.16 of the Valuation of Land Act.
[14]That is subject to some exceptions, not relevant here, but of which perhaps the most important is that if the land is only rateable because it is let, the liability for the rates and charges falls upon the lessee: see s.156(3).
If the rating authority is a municipal council, and gives the owner notice of the assessment of the value of the land under s.15(1)(a) of the Valuation of Land Act, the time in which the owner may object against the assessment of value of the land is limited by s.18(2)(a) of the Valuation of Land Act to within two months after the notice of assessment of value is given or, if the valuation appears in a subsequent notice, by s. 18(2)(b) to within two months after the subsequent notice is given.
As has been seen, s.16(4) of the Valuation of Land Act also deems the occupier of land to be “a person aggrieved by an assessment of the value of the land”, (whether or not the occupier is liable to be rated by the rating authority). Thus too the occupier has a right of objection against assessment of value under s.16 of the Valuation of Land Act. Subject to s.16(5), the time in which the occupier may object against the assessment of value of the land is limited by s.18(2)(a) of the Valuation of Land Act to within two months after the notice of assessment of value is given under s.15(1) to the owner.
Section 16(5) of the Valuation of Land Act applies to a person (be they owner, occupier or anybody else) who is liable for or required to pay a rate or tax in respect of the land but to whom the rating authority does not give notice of the assessment of value. The section deems such a person to be a person aggrieved by the assessment of value, and so therefore such a person also has a right of objection against the assessment of value under s.16 of the Valuation of Land Act. But in contradistinction to the provisions which apply to other objectors under s.18(2)(a) and (b), s.18(2)(c) provides that the time in which a person referred to in s.16(5) may object against the assessment of value is within two months of receiving the notice of assessment of the rate or tax and s.16(6) dictates that such a person must give written notice of objection to both the person or body that issued the assessment of rate or tax and the rating authority that made the valuation or caused it to be made.
In my opinion it follows that there are no “gaps” in the legislative scheme:
·Section 156 of the Local Government Act and sections 16(1), 16(4) and 18(2)(a) and (b) of the Valuation of Land Act provide for the time in which the owner (and occupier) of land are to lodge any objection against a valuation of land of which the owner is given notice by the rating authority that makes or causes the valuation to be made. The plain and ordinary meaning of the terms of those sections is that time for lodging such an objection is limited to within two months of service of the notice of valuation or any subsequent notice of the valuation.[15]
·The provisions of ss.16(5) and (6) and 18(2)(c) of the Valuation of Land Act implicitly reinforce the effect of ss.16(1),16(4) and 18(2)(c). The implication arises from the fact that ss.16(5) and (6) and 18(2)(c) are the only provisions which allow for a longer time for objection than s.16(1), s.16(4) and 18(2)(a) and (b) and that they are expressly limited to persons who have not been given notice of valuation by the rating authority.
·Section 16(6) implicitly further reinforces the conclusion that, where notice of valuation is given, the time in which to object against the valuation is limited to within two months of the date of service of the notice of valuation. Section 16(6) is the only provision for service of notice of objection on a body issuing a rate or tax assessment (as well as the rating authority that made or caused the valuation of the land to be made) and s.16(6) is expressly limited to persons who have not been give notice of valuation by the rating authority. Contrary to the judge’s interpretation of the provision, it does not “assume… that it is not until the rate or tax has become payable that the person in question becomes a ‘person aggrieved’".[16]
[15] Hence no doubt the requirement in s.15(1)(b) that the notice state that some other authority may use one of the bases of value shown for the purposes of a rate or tax levied by that authority.
[16]My emphasis.
Different values?
Before this court PMC persisted in another contention advanced below: that it acquired a fresh right to object upon receipt of each notice of site value as at 1 January 1999 “including but not limited to land tax assessments and amended land tax assessments issued by the Commissioner”. Consequently, it was said that s.16(5) should be held to apply, because the 1999 assessment of land tax served relied upon an “hybrid” valuation as at the 1999 relevant date, and the appellant has not identified or proved who were the authors of each of the component valuations, or identified the “rating authority”.
Put another way the argument amounts to saying that, because the 2001 amended land tax assessment included within the land the subject of assessment not only a number of pieces or parcels of land at values of which MCC had given notice to PMC in 1999 but also :
(a) a piece of land, described as Occupancy 27, of the value of which MCC had not previously given notice to PMC; and
(b) three other pieces of land, described as Occupancies 44, 45 and 46, at values different to those of which MCC had previously given notice to PMC,
PMC did not before receipt of the 1999 land tax assessment have notice of the value of the totality of the land comprised in the land tax assessment and therefore, in respect of that totality, PMC was a person to whom s.16(5) and thus 18(2)(c) applied.
The argument is not persuasive. The right of objection afforded by s.16 of the Valuation of Land Act is a right to object against an assessment of the value of land that has been made by a rating authority under the Valuation of Land Act; not a right to object against the total value of the land comprised in the land tax assessment. The issue of a land tax assessment may enliven the right of objection under s.16 in respect of a piece or parcel of land comprised within the land tax assessment, as, for example, where there is included in the assessment a piece or parcel of land at a value determined by a rating authority under the Valuation of Land Act but of which notice has not before been given to the taxpayer under the Act. But such a right of objection is and remains a right under s.16 of the Valuation Act and so is limited to objection against the value of that piece or parcel of land as it was determined by the rating authority under the Valuation of Land Act.
“Land” is defined[17] as including all land and tenements and all interests therein, and the Commissioner is directed to assess an owner to tax on all land of which he is owner at the relevant date.[18] Consequently, the Commissioner may in one land tax assessment assess an owner to tax on a number of pieces or parcels of land. For that purpose the Commissioner may also rely on valuations made of one or some of those pieces of land by one rating authority and of one or some other of those pieces of land by one or more other rating authorities[19]. In such a case, and indeed in any case where the Commissioner relies on a valuation made by a rating authority under the Valuation of Land Act, the taxpayer has such if any rights of objection in respect of each such valuation as are conferred by the Valuation of Land Act. But the issue of a land tax assessment does not create any new or additional rights under the Land Tax Act or the Valuation of Land Act to object in respect of the aggregate of the valuations of the pieces or parcels of land comprised within the assessment.
[17]In s.3 of the Land Tax Act.
[18]By s.8 of the Land Tax Act.
[19]By virtue of s.16 of the Land Tax Act.
So to come back to the facts of the case, in respect of so many of the valuations relied on in the 2001 land tax assessment as were made by MCC and of which MCC gave notice to PMC in 1999, PMC had a right of objection under s.16(1) of the Valuation of Land Act which expired in accordance with s.18(2)(a) two months after the notice was given. Equally, in respect of any of the valuations relied on in the 2001 land tax assessment that were made by another municipal council and of which that council gave notice to PMC, PMC had a right of objection under s.16(1) of the Valuation of Land Act which expired in accordance with s.18(2)(a) two months after the notice was given. If per chance the assessment had relied upon any values made by a rating authority of which notice had not been given to PMC before the issue of the assessment, PMC would also have a right of objection under s.16(5) in respect of those valuations and that right of objection would not have expired until two months after notice of the assessment. But that right of objection under s.16(5) would have been limited to the values of which notice had not before been given to PMC before the tax assessment. Those of which notice had been given would remain unaffected.
The judge did not make any findings as to whether MCC prepared the valuations of properties 27, 44, 45 and 46 relied on in the amended 2001 land tax assessment, and indeed there is no evidence as to who it was that made them or even whether they were valuations made under the Valuation of Land Act to which s.24A of the Land Tax applies. But as will later appear, it makes no difference in respect of property 27, because the first time that PMC was given notice of that valuation was in the further amended land tax assessment of 1 August 2001, and PMC lodged objection to that extent in time on 28 September 2001, and it makes no difference in respect of properties 44, 45 and 46, because on any analysis, PMC had notice of those values by no later than the notice of original assessment of 9 March 2001, and it was well out of time to that extent when it lodged its notice of objection on 28 September 2001.
Different land?
PMC further contended - as it put it, as a “separate contention” - that on each occasion PMC received an amended land tax assessment that differed from an earlier land tax assessment “so far as the ‘land’ the subject of the assessment [was] concerned” PMC acquired a fresh right of objection in respect of the whole of the land comprised in the amended tax assessment. That conclusion was said to follow from the inclusive definition of “land” in s.14 of the Valuation of Land Act[20]; the use of the word “land” in s.16(5) of that Act; the fact that in the circumstances under consideration the Valuation of Land Act objection procedures are being employed for land tax purposes and the Land Tax Act imposes land tax by reference to the site value of all of the land owned by a landowner at the relevant date and by reference to "parcels" of land of the particular owner as defined in the Land Tax Act; the wording of the available grounds of objection under sections 17(d)–(g) (inclusive) of the Valuation of Land Act; and the legislative scheme of which the Land Tax Act and s.24A in particular form part.
[20]Namely: “’land’ includes every estate or interest in land.”
As it appears to me, that contention takes the matter no further than the first. A right to object against a valuation under the Valuation of Land Act may be enlivened by notice of value given in a land tax assessment; at least where the relevant rating authority has not previously given notice of that value in accordance with the Valuation of Land Act. But, as already been noticed, the right of objection so enlivened is a right to object against an assessment of the value of land that has been made by the rating authority. It is not as such a right of objection against the value of the totality of the land included in a land tax assessment. Consequently, although the totality of the land comprised in the 2001 amended land tax assessment may in one sense be viewed as a parcel of land, of the value of which as such PMC had not before been given notice by a rating authority, the issue of the of the land tax assessment created no new right of objection against the value of that parcel. At most the assessment enlivened a right of objection under s. 16(5) of the Valuation of Land Act in respect of so many of the pieces or parcels of land included in the totality as of which PMC had not before been given notice of valuation by the rating authority whose valuation was relied upon.
Moreover, and so far from detracting from that conclusion, the definition of “land” in s.14 of the Valuation of Land Act and the available grounds of objection under ss.17(d)–(g) (inclusive) of the Valuation of Land Act, and the other provisions referred to, all positively support it. Under s.13DC of the Valuation of Land Act the rating authority is required to value each separate occupancy separately. The expansive definition of “land” is calculated to describe each such occupancy. The grounds of objection specified in ss.17(d)-(g) are directed to ensuring that each such occupancy is so separately valued. The use of “land” in s.16(5) anticipates the possibility of some such occupancies being attributed a value of which the taxpayer has not before been given notice and others the value of which the taxpayer has before been given notice.
In much the same way, “land” is defined for the purposes of the Land Tax Act as “all land and tenements and all interests therein,” and in context that must mean all or any tenements and interests. Section 8 makes the point too in directing the Commissioner to assess an owner to tax on all land; meaning thereby the totality of the owner’s holdings of lands, tenements and interests. If the definition of land could not be read distributively, the word “all” would be unnecessary. The use of “land” in s.24A(1) of the Land Tax Act drives home the point still further, by prohibiting the Commissioner from entertaining any objection relating to the unimproved value of land where the assessment is based on a valuation made under the Valuation of Land Act. Since the Commissioner is enabled by s.16 of the Land Tax Act to use for the purposes of one assessment of land tax a multiplicity of valuations made under the Valuation of Land Act, it is possible if indeed not probable that an assessment of land tax may be based on valuations of several different occupancies, possibly prepared by several different valuers (including one or more municipal councils and the Commissioner and the Valuer General). If “land” in s.24A meant the totality of the land comprised in the tax assessment, as opposed to any occupancy comprised within it, the effect would be to preclude the Commissioner from dealing with any objection which related to the unimproved value of the totality of the land, even though only some of the occupancies within the totality were valued under the Valuation of Land Act, and even if the objection were against or included objection against the such values of occupancies as were not prepared under the Valuation of Land Act. In view of the provisions of s.24A(3A) of the Land Tax Act that cannot possibly have been intended.
The point is still further amplified by s.25, which refers to an objection relating to the amount at which the unimproved value of any land has been assessed by a rating authority not being the Commissioner. “Land” in that context must mean a separate occupancy within the totality of land the subject of assessment, because, as has been seen, that is the only basis on which a rating authority may value land under the Valuation of Land Act.
Subsequent notices
PMC put a further variation of its first contention, to the effect that the issue of the land tax assessment and each amended land tax assessment constitutes a subsequent notice of valuation for the purposes of s.18(2)(b) of the Valuation of Land Act. Accordingly, it was said, the time in which to object against the values relied upon in the land tax assessment did not begin to run until issue of the last amended land tax assessment. But that argument is surely wrong. Section 18(2)(b) is concerned with subsequent notices given by the rating authority that made the valuation which is relied upon. It has nothing to do with notices given by another rating authority, be it the Commissioner or anyone else
Identity of relevant authority
PMC next contended that even if the 1999 land tax assessment did not enliven fresh rights of objection against the values of all of the properties comprised in the assessment, the appellant had failed to prove that PMC was given notice of valuation by a relevant rating authority in respect of all of the properties comprised in the notice of assessment. PMC accepted that MCC had given it notice of the valuations of all of the occupancies described as Class 1 occupancies, but it was submitted that MCC had been put to proof and failed to prove that it had given notice to PMC of the valuations of occupancies described as Class 2 occupancies. Class 2 occupancies were those which were owned by PMC but were occupied by tenants.
The judge below did not make any findings about service of the Class 2 Occupancy notices. It may be recalled that her Honour confined herself to the observation that “it [was] common ground that the notices relating to the site values of the tenanted properties were not sent to PMC”. There was, however, a body of evidence on the subject, as follows:
1)On or about 31 August 1999, MCC issued Rate and Valuation Notices in respect of properties owned by PMC.
2)Mr Marsh gave evidence that MCC did not retain paper copies of the notices sent and that the relevant information was stored in MCC’s computer. He therefore caused to be printed from the MCC rate and valuation computer database MCC records of the valuations of the properties and to the persons and addresses to which the notices were sent. He produced that information in the form of computer printouts and computer generated copy Rate and Valuation Notices, and he summarised it in the form of a schedule. He deposed that the notices were sent to tenants at the request of PMC in accordance with PMC’s written directions.
3) In oral evidence, Mr Marsh stated that he was the person at MCC ultimately responsible for the preparation and issue of rate and valuation notices and was familiar with MCC’s computer systems and processes. He said that valuation and rate notices were as a matter of course sent to the person described under line 3 of the “prime dump”, being the computer record from which the data fields and therefore the mail merge is compiled and that reminder notices and instalment notices were as a matter of course also sent to the standard address appearing on the system.
4)He swore that he had participated in the preparation of the spreadsheet which was Exhibit RM -11 to his affidavit of 25 May 2004 and that he had checked the accuracy of it. It reconciled the properties and valuations in the 2001 land tax schedule with the valuations prepared by MCC under the Valuation of Land Act. He said that he had searched MCC’s files to see whether PMC had made any requests in writing for rate and valuation notices to be sent to tenants and that he had exhibited those to his affidavit. He explained that MCC’s standard procedure was to give effect to such requests by changing the appropriate fields in the “pathway property system”. He said that he was familiar with the practice and that it had been implemented on many occasions.
5)Mr Marsh was shown and identified a bundle of screen dumps from the current MCC “pathway property system” and an accompanying spreadsheet. The spreadsheet is a list of each occupancy or assessment within the Port of Melbourne Corporation area for which the tenant was the nominated rate payer. Mr Marsh said that he used the list to check if rates had been paid on those properties and that the screen dumps were evidence of those payments.
6)MCC also tendered certificates of Mr Geoff Lawler, Acting Chief Executive Officer of MCC, pursuant to section 242(2) of the Local Government Act 1989 as purported proof of service upon PMC and its tenants of valuation and rate notices issued on 31 August 1999 and notices of supplementary valuation issued on 23 December 1999. The first of those, Exhibit E, states that the rate and valuation notices were issued on 31 August 1999 and contains the valuations of 1 January 1999 and the property descriptions, assessment numbers and site values for each of the properties the subject of valuation as well as the name and address of the person to whom the valuation was sent. The other, Exhibit D, is in similar terms.
7)By email dated 27 September 1999, PMC requested MCC to provide it with the latest schedule of land assessments, including site values. The email referred to the fact that PMC had until only 30 October 1999 to object and requested MCC's early attention to the request so that PMC would have reasonable time to conduct a review.
8)Mr Harvey, who was a former employee of PMC, gave evidence about receipt of an email from Saana Bourne of PMC to him and others including Mr Searle, dated 27 September 1999. In cross examination he agreed with the proposition that he would not doubt that he received it. The email directed the relevant mangers of PMC to turn their minds to objections following receipt of the rate and valuation notices in 1999 from MCC. Ms Bourne wrote in it as follows:
“... I will also be obtaining an update from the MCC shortly, in terms of the latest Values and I will need you to go through the schedule when I get it, to ensure that the values are not excessive. We only have until 30TH OCTOBER TO OBJECT TO RATES”
9)On 8 October 1999, MCC provided PMC with the schedule requested in the form of a spreadsheet listing all land owned by PMC which MCC had been valued by MCC . The spreadsheet is to be found at Exhibit RM 11.
10)Mr Harvey was also asked about a number of PMC internal documents, including an email dated 8 October 1999 and enclosed spreadsheet. The email, which was from Saana Bourne to Mr Searle and Mr Harvey and one other was as follows:
“Subject: Review of Property 99 Property Values as assessed by MCC before expiry of objection date.
Please note that I have finally received the updated spreadsheet of 99 values of our property from Ray Berryman.
Attached is the doc. [B]ut for your info, it is located in the U Drive, Property Admin. folder, under Council Rates.
<<File. MCC values for 99.00 received 081099 xls.
Please note that we have only have until the 30th October, 1999 to object to any of the values applied on this year’s rates.
Please go through the list and check off the values and undertake an analysis of your portfolios to determine if there should be any objection to the valuations applied.
If so, we must ensure that the objections are formally lodged on the appropriate forms to the MCC no later than 30th October.
Please do not leave this until the last minute as there is a bit of analysis to complete.Thanks
Saana Bourne”
11)Immediately behind that email was a PMC spreadsheet containing information identical to the information in the MCC spreadsheet except for the numbering of the properties at the extreme left and the reference to the Schedule in the Objection in the extreme right hand column. Although Mr Harvey did not recall the email or the spreadsheet, he did not deny that he received them. So much appears to be confirmed by the fact that the document was in PMC’s possession.
12)Mr Searle was also cross-examined about the email and he said that he was certainly aware of the time frames for the objections. He added in re-examination that he presumed he would have reviewed the attached spreadsheet by reviewing his portfolio, the geographic portfolio and the properties within that geographic portfolio when asked if he undertook such a review.
13)PMC challenged the valuation in respect of two of the Class 2 occupancy valuations : 12-14 Dahlenburg Street Footscray and 629 Lorimer Street Fishermens Bend.
On the basis of all of that evidence MCC contended that it should be inferred that it did send the notices of valuation of each of the Class 2 occupancies to the tenants of those properties on or about 31 August 1999 and that there was really no room for doubt about it. PMC on the other hand submitted that the evidence was deficient in a large number of respects and that no such inference was open to be drawn.
PMC’s primary submission on the point was that there was no direct evidence that the notices were sent to the tenants. That is true, but hardly persuasive. The proof of service which was offered was circumstantial and as Menzies J stated in Jones v Dunkel[21]”
“… ‘Inferences from actual facts that are proved are just as much part of the evidence as those facts themselves. In a civil cause “you need only circumstances raising a more probable inference in favour of what is alleged ... where direct proof is not available it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference; they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture: see per Lord Robson, Richard Evans & Co. Ltd. v. Astley. ... All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant's negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood.”.’.”
Here the inferences which were capable of being drawn from the facts that were proved by direct evidence were just as much part of the evidence as those facts themselves.[22]
[21] (1959) 101 CLR 298 at 310.
[22]Richard Evans & Co Ltd v Astley [1911] A.C. 674 at 687, per Lord Robson; R v Bilick and Starke (1984) 36 S.A.S.R. 321; 11 A.Crim.R. 452; Festa v The Queen (2001) 208 C.L.R. 593 at 595[5].
PMC next submitted that the computer records upon which Mr Marsh relied, although containing an address field, did not contain a separate field recording that the notices had been sent to the persons listed in the address field. And indeed so much was admitted by Mr Marsh in the course of cross examination. Nevertheless, when the printout is taken in conjunction with the evidence given by Mr Marsh about the nature of the record, the obvious inference is that the addressee shown is the MCC’s record is the person to whom the document was sent. Such an inference is open to be drawn according to general principles as well as s.58B of the Evidence Act 1958
PMC relied on the fact, which Mr Marsh admitted, that he was not responsible for the computer system in 1999. But I see no great significance in that. Business records relied on under s.58B may be proved under s.58D by “a person familiar with” the records. I consider that Mr Marsh satisfied that description. PMC also laid emphasis on the fact that Mr Marsh admitted that there could be errors in the computer records. But I regard that as next to irrelevant. Of course there could be errors in the records, just as there could be and no doubt are errors in many other records. But other things being equal they remain prima facie evidence of the truth of their contents, and may be acted upon, unless and until they are shown to be wrong. That is especially so in a case like this where there is other evidence consistent with the notices having been given and in which none of the addressees has been called to give evidence that they did not receive their notice.
PMC next contented that s.242(2) of the Local Government Act was confined to proof of council records as opposed to what might have been done with Council correspondence and hence that it was inapt to proof of service. I reject that contention as well. Section 242(2) is in terms broad enough to apply to a computer record of the kind that was produced, and I see no reason in principle or context to limit its scope. Evidently, it was intended to enable the proof of documentary records and the computer record was just that. Once it was proved, as it was by the certificate, it constituted direct evidence of facts from which logical inferences were open to be drawn.
Contrary to PMC’s submissions, I consider that the certificate issued pursuant to s.242(2) of the Local Government Act was proof that MCC issued rate and valuation notices on 31 August 1999, which contained the valuations of 1 January 1999 and the property descriptions, assessment numbers and site values there set out and that they were addressed to the addressees shown. On the basis of that certificate, and the remainder of the evidence to which I have referred, I infer that MCC did serve those notices on the tenants to whom they were addressed, pursuant to the written direction given by PMC to MCC under s.158(3A) of the Local Government Act 1989. In my opinion, the certificate taken with the other evidence to which I have referred are sufficient basis to found that conclusion. I should say that I am particularly influenced towards that conclusion by the contents of the certificate, and Mr Marsh’s evidence concerning the nature and significance of MCC’s records, and by the fact that PMC obviously knew of the values. I am, however, confirmed in that conclusion, in the sense that I am enabled more confidently to draw the inferences of which I have spoken, by reason of the complete lack of any contrary evidence from PMC or any of its tenants.[23]
[23]Jones v Dunkel (1959) 101 C.L.R. 298; Davies v Pyke [2004] VSCA 124 at [16], per Buchanan, J.A. cf Woods v Legal Ombudsman [2004] VSCA 247 at [30]-[34], per Chernov, J.A.
PMC finally contended that even if all that were so, the evidence still did not rise above the point of proof of service of the Class 2 occupancy notices on the tenants in accordance with the direction in writing given by PMC to MCC pursuant to s.158(3A) of the Local Government Act 1989, and it was submitted that there was nothing in s.158(3A) which authorised service on a tenant of a notice of valuation under s.15 of the Valuation of Land Act (as opposed to a rate notice under s.158 of the Local Government Act). The argument proceeded that a rate notice may contain the information required to be given in a notice under s.15 of the Valuation of Land Act, but it need not do so; for it may be that the s.15 information is given separately and in advance of the rate notice. It followed, it was said, that it was not enough for PMC to authorise MCC to serve PMC’s Class 2 occupancy rate notices on PMC’s tenants; for that was not necessarily to authorise MCC to serve PMC’s Class 2 occupancy valuation notices on the tenants. That means, it was contended, that MCC had still not proved that notices of valuation of the Class 2 occupancies were served on PMC in accordance with s.15.
But the answer to all that is in the correspondence exhibited to Mr Marsh’s affidavit of 25 May 2004 concerning the requests made by PMC for service of notices on the tenants. Exhibits RM3 to RM8 inclusive show that the direction to serve notices on tenants resulted from an offer by MCC on 20 May 1997 to send “rate and valuation notices” to the tenants and acceptance of that offer by PMC by letter dated 15 July 1997. Admittedly, the acceptance of the offer was expressed in terms of reference to “your letter [that] made mention that ‘all future rates can be sent directly to the individual tenants after the City of Melbourne receives written notification from the owner’”. But taken in context there can be little doubt that the word “rates” in that communication was a short hand expression for the “rate and valuation notices” mentioned in the MCC offer. That is confirmed by the facts, which emerge from the correspondence in exhibits RM6 and RM9, that MCC thereafter sent the rate and valuation notices relating to the Class 2 occupancies to the tenants of those occupancies and that PMC knew it to be so and acquiesced in that practice.
Section 18(2)(c)
As a fall back position, MCC argued that if it had failed to prove service of the notices of valuation in accordance with s. 15 of the Valuation of Land Act the notice of objection was still incompetent as to all occupancies except property 27, because of the operation of s.18(2)(c) of the Valuation of Land Act. In view of the conclusion I reached about the proof of service it is unnecessary that I say anything about that contention. But in case I am wrong about the adequacy of service or the proof of it, I should say that I think the MCC argument about s.18(2)(c) is correct.
On the facts as found, all of the valuations relied upon in the further amended assessment of 1 August 2001, except for the valuation of property 27, were stated in the original assessment of 9 March 2001 (and also the amended assessment of 24 May 2001). Consequently, even if PMC had not before been given notice of any of those values by MCC, it had only 2 months beginning on the day on which it received the 9 March 2001 assessment to object against the valuations relied on in the notice of assessment. As was found below, PMC did not lodge an objection to the original assessment of 9 March or the amended assessment of 24 May 2001 and it was not until 28 September 2001 that it lodged an objection to the further amended assessment of 1 August 2001. By then a good deal more than two months had expired since 9 March 2001 and it was thus too late to object against any of the values relied in the further amended assessment except for the value attributed to property 27.
Notices out of time invalid?
PMC contended in the alternative that the mere fact that the notices of objection to the land tax assessments may have been out of time was not sufficient to render them void or a nullity. Thus it was said that the Commissioner or the court could waive the excess of time and proceed with the substance of the matter. Reference was made Project Blue Sky Inc. v Australian Broadcasting Authority[24] and it was said that it would be contrary to the principles of statutory construction there essayed to hold the notices to be nullities.
[24](1998) 194 CLR 355 at 388-398, 390 [91] and [93].
That argument is not persuasive either. The failure to lodge a notice of objection within time does not necessarily mean that it is a nullity. But it does mean that the taxpayer has failed to exercise the right of objection which the statute affords him. It is a right to object within a limited time and so at the expiration of that time, the right if not exercised ceases to exist. Consistently with the approach which is taken to similar provisions in other revenue statutes, I see no reason to doubt that the time periods set by s.18 are absolute and incapable of extension by the Commissioner or the court. That is the construction which used to be placed upon the s.185 of the Income Tax Assessment Act 1936 (Com)[25], and there is here no relevant difference. There is nothing in the Land Tax Act or the Valuation of Land Act comparable to the provisions of s.100 of the Taxation Administration Act 1997, or s.14ZW of the Taxation Administration Act 1953 (Com), which would allow the Commissioner to deal with the objection as if it had been lodged within time.
[25]Federal Commissioner of Taxation v Hoffnung & Co. Ltd (1928) 42 C.L.R. 39 at 55.
Notices not in compliance with s. 15?
PMC argued in the further alternative that the notices of site value given by MCC in respect of a number of the properties comprised in the further amended assessment did not comply with the requirements of s.15 of the Valuation of Land Act and therefore did not cause time to begin to run. In particular it was said that the notices did not include a statement in accordance with s.15(1)(b) that some other authority might impose a rate or tax based upon the valuation therein; or a statement in accordance with s.15(1)(a)(iii) of the date as at which the valuation was made.
The judge below did not make any findings about the form and validity of the notices either. But subject to one matter which warrants specific mention, all of them appear to me to comply with the requirements of s.15 of the Valuation of Land Act. The Rate and Valuation Notices served by MCC on PMC all contain the date of valuation: 1 January 1999. The copy notices also show the Valuation Date: 1 January 1999 and have a statement on the second page which reads: “The Valuations as shown on the front page of this notice may be used by other authorities for the purpose of a rate or tax.”
There were for some time some doubts about the second page. Evidently, the problem was due to shortcomings in the photocopy reproduction of exhibits, as is explained in an affidavit sworn by Mr. Searle on 31 May 2004. The Exhibit RM-12 to an affidavit earlier sworn by Mr Marsh did not include photocopies of the reverse side of the Rate and Valuation Notices or of the Notices of Supplementary Valuation on which the statements were set out. But exhibits DAS-2 and DAS-3 to Mr Searle’s affidavit comprise complete copies of the notices, including the reverse sides, being those which correspond to tabs 3 and 11 of Exhibit RM-12 from which it can be seen that the statements were set out on the reverse side of each notice. In the absence of contrary evidence I should infer that a similar statement appeared in the same way on the reverse side of each of the notices that were served. It is I think a case in which the presumption of regularity ought be held to apply.
The one matter that warrants specific mention is that the notices of supplementary valuation did not include a statement to the effect that the site values may be used by some other authority. The point about that, however, is that a notice of supplementary valuation does not replace an original notice but, because of s.13 DF(3), must be treated as part of the valuation in force. It has the effect of cancelling anything contained in the original notice that is inconsistent with the supplementary notice, but that is as far as it goes. The original notice and the supplementary notice must be read together as one, and when they are it is plain that they incorporate the statement in accordance with s. 15(1)(b) included in the original statement.
The 2000 objection
Procedural matters
Earlier in these reasons I referred to the first respondent’s notice of cross-appeal. Because of the facts and the basis on which the judge decided the first and second preliminary issues, (scil. that the time in which to object did not begin to run against PMC until PMC was assessed to a rate or tax) PMC could not appeal and would not have wished to appeal against her Honour’s decision on the 2000 objection until and unless the appellants were successful in an appeal in respect of the 1999 assessment.
The practical difficulties to which that gives rise were mentioned at the hearing of the appellants’ application for leave to appeal in August 2004 and it was thought that they could best be accommodated by PMC serving a contingent notice of cross appeal, on which PMC could seek to rely in respect of the 2000 objection if the appeal succeeded in respect of the 1999 objection. That has been done and PMC and all other parties have in the course of argument made submissions directed to the substance of the cross-appeal.
The facts
The facts as found by the judge concerning the 2000 objection were as follow:
Evidence
“43. A general valuation was made by the Council as at 1 January 2000 of all rateable properties within its municipal district. On or about 28 August 2000 the Council issued Rate and Valuation Notices in respect of properties owned by PMC, containing valuations as at 1 January 2000.
44.On 25 October 2000 Saana Bourne, then Manager, Property Management of PMC, wrote to Mr Marsh, Manager, Rates and Valuations of the Council, in the following terms (‘the 25 October letter’):
Dear Mr Marsh
Objection to Values of Melbourne Port Corporation properties
I am writing to lodge a formal objection to the values placed on the properties within the Melbourne Port Corporation's asset located within the City of Melbourne precinct.
At a glance, some of the values appear to be too high and I am currently undertaking an analysis of all the assets valued by MCC and need additional time to continue the review. As soon as I have completed the assessment, I will lodge a more detailed submission to you in due course.
I understand that this letter will satisfy the formal objection date of 31/10/00 and MCC will accept a detailed submission shortly. Please confirm if this is acceptable to you.
45. Mr Marsh replied by letter dated 27 October 2000 as follows:
Dear Ms Bourne
Objection to Valuation - Melbourne Port Corporation Properties
I acknowledge receipt of your objection on 26 October 2000 [sic] against the valuations of the above property, pursuant to section 16 of the Valuation of Land Act 1960.
It is a requirement of the Act that I must determine the objection within two months of it being lodged, after providing you with a reasonable opportunity to discuss the matter. Accordingly, could you please contact me upon receipt of this letter to arrange a mutually convenient time for an appointment with one of our valuers.
To assist our discussion it would be helpful if you could prepare a written submission, detailing your reasons for the objection. This should include factual details such as land and building areas, together with the most current rental and outgoings information relating to the property. Most importantly, the submission should also include a summary of your conclusions as to what the valuations should be for the property.
Please note that the lodgement of this objection does not alter the ratepayer's responsibility to pay the rates assessed on the property by the due dates set out on the rate notice. If valuation changes occur as a result of successful objection, rates will be adjusted retrospectively.
If you require further information regarding the objection process, please contact either myself on 9658 9328 or Terry Cerini, Senior Valuer, on 9658 9183.
46. On 9 February 2001 Mr Harvey was a Property Manager for PMC, having responsibility for some of the properties owned by that body and reporting to Saana Bourne. On that date he sent an e-mail to Mr Karutz, a valuer at the Council, which began "I have almost finished reviewing the council rates for 2000/2001". He went on to point out that four of the properties listed in the notice did not belong to PMC and submitted that one, an electricity sub-station, was "exempt from rating". He expressed the view that the site values attributed to five of the properties appeared to be too high. Mr Harvey deposes that he discussed the five properties with Mr Karutz by e-mail and by telephone. The e-mails exhibited to his affidavit end inconclusively with an e-mail dated 19 March 2001 in which Mr Harvey undertook to "get back to" Mr Karutz, which apparently was not followed up. Mr Harvey further deposes that on a date soon after 19 March 2001, he told Mr Karutz by telephone that PMC "had decided not to pursue its objections in relation to" those properties.
47. Those five properties were the only properties in respect of which there is any evidence of discussion as to valuation between the Council and PMC following the 25 October letter. There is no evidence of any other action taken by PMC of the kind foreshadowed in that letter. The objection contained in the 25 October letter was disallowed on 21 June 2001.
48. On or about 4 August 2001 the Council issued rate and valuation notices in respect of all rateable property within its municipal district. Mr Marsh deposed that those notices contained the same valuations as at 1 January 2000 as appeared in the notices issued on 28 August 2000.
49. On or about 4 October 2001 the Council received two notices of objection signed by Mr Searle, for PMC, which have together been referred to here as ‘the 2000 objection’. Both notices were specifically expressed as objections to the site value, capital improved value and net annual value of the properties to which they applied. The 2000 objection was disallowed on 10 January 2002.”
The judge’s reasons.
The validity of the 2000 objection depended on whether the letter of 25 October 2000 from Ms Bourne to Mr Marsh constituted an objection to the site values as at 1 January 2000 of the properties covered by the 28 August 2000 notice of valuation. The judge held that it did, and thus that because of s.19(1) of the Valuation of Land Act a further objection could not be made within 12 months of 25 October 2000. Her Honour concluded that because the 2000 objection was lodged on 4 October 2001, and so within the 12 month period, it was incompetent except as to ten properties which had been the subject of supplementary valuations after 25 October 2000. Her Honour’s reasoning was that:
“52. While the 25 October letter is somewhat vaguely expressed, in my view it was intended to be an objection to all valuations - site value, capital improved value and net annual value, in respect of all properties owned by PMC. Mr Marsh's reply of 27 October 2000 indicates that it was received as a valid objection, although it did not contain the information needed to enable it to be dealt with as an objection. However, section 16(3) provides that an objection cannot be disallowed only because of a failure to comply with the requirements of section 16(2). The sending of the 25 October letter appears to have been intended as a holding operation, relating to all properties owned by PMC, thus enabling PMC to provide later detailed information to the Council in respect of any properties as to which an objection to any assessment of valuation was thought to be appropriate. The only properties in respect of which any further action was in fact taken were those which Mr Harvey discussed with Mr Karutz.
53. It is to be noted that Mr Harvey's e-mail of 9 February 2001 refers to "reviewing the council rates", and to the sub-station as "exempt from rating", although he then goes on expressly to query the site values, which are relevant only to the assessment of land tax.
54. Mr Marsh's letter of 27 October 2000 in reply to the 25 October letter similarly refers to "the ratepayer's responsibility to pay the rates assessed on the property by the due dates set out on the rate notice." It may be that Mr Marsh took the 25 October letter to constitute an objection only to net annual value and capital improved value, the values relevant to rates, and not to site value, which was relevant only to the assessment of land tax. It may be that that is what was intended by Ms Bourne when she used the expression "the values placed on the properties within the Melbourne Port Corporation's asset located within the City of Melbourne precinct". The only specific reference to "site values", in the limited documentation before the Court relating to this whole issue of the 2000 objection, is in the e-mail correspondence between Mr Karutz and Mr Harvey.
55. However, on balance, I have, as I have said, formed the view that the 25 October letter was intended as an objection to all three assessments of value.”
PMC’s contentions
PMC contends that the judge erred in concluding that the letter of 25 October 2000 was an objection to values of which notice had been given on 28 August 2000. PMC submitted that the judge had reached her conclusion on an impermissible basis of what she considered to be the subjective intention of PMC in sending the latter and MCC’s subjective perception of the nature of the letter upon receipt, whereas the nature and character of the letter was properly to be determined objectively by reference to its own terms in the context of relevant circumstances.
PMC further contended that even if the letter were properly to be considered as an objection, it was an objection only as to the five properties mentioned in the email sent by Mr Harvey to Mr Karutz on 9 February 2001 and that the judge had erred in regarding it as an objection to “the values placed on [all] the properties within the Melbourne Port Corporation's asset located within the City of Melbourne precinct.”
The judge was not in error
I do not accept either of those contentions. It is trite law that the nature and effect of the letter of 25 October 2000 was to be discerned objectively from the terms of the letter itself in the context in which it was sent and received,[26] and it appears to me that that is what the judge did. It is true that her Honour spoke in paragraph 52 of her reasons of what was “intended to be an objection to all valuations” and that it “appears to have been intended as a holding operation, relating to all properties owned by PMC.“ But I see no reason to doubt that her Honour used those expressions as pertaining to intention objectively discerned from the contents and context of the letter.[27] It is also true that the judge made reference to what may or may not have been Mr Marsh’s subjective intentions, but evidently her Honour did so in order to contrast subjective intentions with the notion of intention objectively discerned, and thereby to stress that the matter was properly to be decided on the basis only of intention objectively discerned.
[26]Pacific Carriers Ltd v BNP Paribas (2004) 78 A.L.J.R. 1045, 208 ALR 213 at [20]–[30]; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 at [35]-50].
[27]Ermogenous v Greek Orthodox Community of S.A. Inc. (2002) 209 CLR 95 at 105[25].
As I understood the argument put in support of the second contention it was that because the email of 9 February 2001 referred to only five of the properties the subject of assessment the objection should be taken as confined or limited to those five properties. But that argument appears to me to fly in the face of the evidence. The letter of 25 October 2000 speaks for itself that it is directed to “the values placed on the properties within the Melbourne Port Corporation's asset located within the City of Melbourne precinct” and the contents of the email of 9 February 2001 implicitly confirm that the objection of 25 October 2000 went to all the properties listed in the notice of 28 August 2001 and that of those there were only five of which the site value now appeared to be too high.
PMC’s third and final contention concerning the 2000 objection was that the operation of s.19(1) was predicated on an objection having first been considered by the valuer of the rating authority under s. 21 of the Act, and that the judge had erred in holding that there had been a consideration by MCC of the objection of 25 October 2000. In particular it was submitted that the judge misconstrued or misapplied the word “considered” in s.19(1), and thus proceeded in error on the basis that the provision to PMC of the reasonable opportunity to be heard by one of MCC’s valuers (not being the valuer of/for MCC) constituted the valuer of/for the authority having “considered” the objection.
I do not think that there is any substance at all in that contention. Her Honour in effect dealt with it in her reasons for judgment as follows:
“61.If I understood Mr Delany correctly, he submitted that requirement in section 21 that the valuer provide an opportunity for discussion with "him or her" had the effect that the objection must be "considered" personally by the valuer of the responsible authority. There was no evidence that Mr Marsh had personally considered the objection of PMC. The five properties were considered by Mr Karutz of his staff, but not by him.
62. I do not accept Mr Delany's submission. I am satisfied that in his letter of 27 October 2000 Mr Marsh provided to Ms Bourne a "reasonable opportunity" as required by section 21, to discuss the objection contained in the 25 October letter with one of the Council's valuers. Discussion with a valuer employed as such by the responsible authority must be a satisfactory compliance with section 21(2) and thus with the requirement for consideration in section 19(1). It is clear from the e-mails that Mr Karutz directed an "active intellectual process" at the matter of the value of the five properties.
63. Thus, if the 25 October letter can be read as constituting an objection to site values, I would accept the submission of the Council that section 19 has the effect that the 2000 objection is not competent.”
With respect, I agree with all of that except for her Honour’s observation that there was no evidence that Mr Marsh had personally considered the objection of PMC. Plainly there was. It is true that Mr Karutz and his staff carried out what might be described as the leg work of interviews and investigations, but on 16 May 2001, after that work had been carried out, Mr Marsh wrote to PMC formally disallowing the objection, concluding with the words:
“Having considered your objection to the valuation of the above property and having provided a reasonable opportunity to you to discuss the matter with me, I advise that your objection has been disallowed.”[28]
Mr Marsh was cross-examined on a number of matters, but it was never suggested that what he wrote in that letter was false or otherwise that he had not considered the objection before determining to disallow it. In those circumstances, it is unnecessary to consider the question of whether Mr Marsh’s function as valuer to consider an objection under the Valuation of Land Act was of a kind capable of being exercised by one of Mr Marsh’s officers, like Mr Karutz, without specific delegation of that function.[29]
[28]My emphasis.
[29]See O’Reilly v Commissioner of the State Bank of Victoria (1983) 153 C.L.R. 1 at 11; DFCT v Sadler (1983) 83 ATC 4552 at 4555; Hutchins Re Jarlas Pty Ltd. v Commissioner of Taxation (1987) 14 F.C.R. 510 at 534; Joosse v DCT [2002] VSCA 48 at [14], per Batt, J.A, cf. Minister for Aboriginal Affairsv Peko-Wallsend Ltd (1986) 162 C.L.R. 24 at 30-31; Tickner & Ors. v Chapman (1995) 57 F.C.R. 451 at 462.
Counsel for PMC submitted that inasmuch as the only concerns ever pressed by PMC were confined to the five properties, it had to follow that Mr Marsh’s consideration had been confined to the values of those five properties, and hence that s.19 applied only to those five properties. I think that submission to be misconceived. As found, the objection was to the values of all of the properties of which MCC gave notice to PMC. When asked to particularise the objection, PMC confined its contentions to the five properties mentioned. The objection remained, however, an objection to all values of which notice had been given and it had to be considered by Mr Marsh as such. When he disallowed the objection in respect of the properties other than the five specifically mentioned, it was no doubt on the basis that because nothing specific had been advanced in opposition to any of the values, he saw no reason to change the values which he had originally attributed to those other properties. But the fact remains, that he was required to consider the objection and to rule upon it and he did. It follows that no further objection could be made to those values within the next 12 months.
Conclusion
For the reasons given I am of the opinion that the judge erred in holding that the 1999 objection was valid. In my view PMC was a person aggrieved by the notices of valuation given by MCC in 1999. Consequently, and with the exception of properties 27, 44, 45 and 46, the time in which PMC might have objected against the values of which notice was so given began on receipt of the notice and expired two months thereafter. The 1999 objection was lodged outside that time and thus was ineffective as to all properties except 27, 44, 45 and 46. It is not to the point that the assessment of site value did not “bite” until issue of a rate or tax assessment.
The 1999 objection was, however, also out of time with respect to properties 44, 45 and 46, because the latest time at which PMC may have been given notice of the values of those properties was at time of service of the original assessment of 9 March 2001, and hence the time of two months for objection limited by s. 18(2)(c) had long expired by the time that PMC lodged its notice of objection on 28 September 2001.
I also conclude, contrary to the judge’s conclusion, that the letter of 25 October 2001 was a valid objection and consequently that s.19 had the effect of invalidating the 2000 objection as to all properties comprised within the objection except for those listed in Exhibit 6. That follows from my rejection of the judge’s reasoning as to the assessment of site value not “biting” until issue of an assessment of rate or tax, and my agreement with the judge that the effect of the letter of 25 October 2001 objectively discerned was to object against all the values of which MCC gave notice to PMC on 25 August 2001.
In the result I would allow the appeal; grant leave to the first respondent to file the notice of cross appeal; treat the cross appeal as having been heard instanter; and allow the cross appeal. In my opinion the judgment should be set aside and in lieu thereof I would order that the two questions contained in the Order of 7 June 2004 (which are referred to in the judgment) be answered as follows:
(i) the first Respondent’s objection to 1999 levels of site value lodged with the Melbourne City Council on 28 September 2001 was not a valid objection under the Valuation of Land Act 1960, except as to the property numbered 27 in the schedule thereto;
(ii) the first respondent's objection to 2000 levels of site value lodged with the Melbourne City Council on 4 October 2001 was not a valid objection under the Valuation of Land Act 1960, except as to those properties listed in Exhibit 6.
The remainder of the matter should be remitted to the Common Law Division for further hearing according to law.
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