Murray v Kingston City Council
[2002] VSC 100
•10 April 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
No. 8407 of 2001
| SHEILA ELIZABETH MURRAY | Plaintiff |
| v. | |
| KINGSTON CITY COUNCIL | Defendant |
---
JUDGE: | BEACH, J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 19 MARCH 2002 | |
DATE OF JUDGMENT: | 10 APRIL 2002 | |
CASE MAY BE CITED AS: | MURRAY v. KINGSTON CITY COUNCIL | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 100 | |
---
CATCHWORDS: Municipal rates – Objection to valuation by Council – No appeal to County Court – Appeal to Victorian Civil and Administrative Tribunal – Local Government Act 1989, s.184 – Valuation of Land Act 1960, ss.21, 22 and 23.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In Person | |
| For the Defendant | Mr. J. Delany | Maddocks |
HIS HONOUR:
This is an appeal from the order of Master Wheeler made on 4 March 2002 whereby the Master dismissed the proceeding.
The plaintiff Sheila Elizabeth Murray is the registered proprietor of the property at 34 Hillston Road, Moorabbin (the property).
On 4 October 2000 the Kingston City Council issued a rate and valuation notice for the year ended 30 June 2001 in respect of the property whereby it fixed the capital improved value of the property at $245,000 and the rates for that year at $549.82.
The rate notice contained the following paragraphs:
"NOTICE OF VALUATION/OBJECTION TO VALUATION
The property described in this notice has been valued for the purpose of determining rates and the values assessed are shown on the front of this notice. The valuations represent the level of value as at 1 January 2000 and are effective from 1 July 2000. The Valuation of Land Act 1960 (as amended) provides for the owner or occupier who is aggrieved by an assessment of the value may lodge an objection to the valuation with the Council. An objection must be lodged within two months after the date of service of the Notice of Valuation and must be in the prescribed form, copies of which are available from Council's Property Services Department. Discussion between the objector and the valuer is recommended before completing the prescribed form. Regardless of any objection being made, the rates and charges shown on this notice must be paid by the due date otherwise interest will be charged. Please note that another authority may use these valuations for the purpose of levying a rate or tax.
Appeal to County Court
A person who is aggrieved by a rate or charge imposed by a Council, or by anything included or excluded from a rate or charge, may, within 60 days after receiving the rate notice , appeal to the County Court for a review of the rate or charge in accordance with the provisions of Section 184 of the Local Government Act 1989 (as amended)."
On 11 October 2000 the plaintiff wrote a letter to the Council objecting to the valuation.
On 4 December 2000 the plaintiff filed an originating motion in the Court in which she named the Council as defendant. On 9 March 2001 she filed an amended originating motion in the Court.
Between those two dates the Valuer-General issued a confirmation notice pursuant to the provisions of s.21(4)(b) of the Valuation of Land Act 1960 whereby he reduced the capital improved value of the property to $225,000.
The confirmation notice contains the following paragraph:
"Section 21(6) of the Valuation of Land Act provides that the decision of the Valuer-General shall be given effect to by the ruling authority. If, however, you are dissatisfied with the decision you may, within 30 days after the date this notice is given to you, lodge with the rating authority, a written notice requiring it to treat the objection as an appeal and to refer it, subject to the provisions of section 22 of the Valuation of Land Act, to the Supreme Court or to the Victorian Civil and Administrative Tribunal. A copy of the notice must be sent to the Registrar, Land Valuation List of the Victorian Civil and Administration Tribunal, 55 King Street, Melbourne 3000."
The amended originating motion is headed:
"Appeal Under Section 184 of the Local Government Act 1989 Against Recent Rates Valuation".
The endorsement on the originating motion concludes with the following words:
"I am appealing pursuant to Section 184 of the Local Government Act 1989 No. 11
184. Appeal to County Court
(1)I am aggrieved on the basis that the rates that are being charged are exorbitant –
(b)by anything included or excluded from such rate or charge."
On 30 August 2001 the Council filed a summons in the County Court whereby it sought the following orders:
"1.That the proceeding be dismissed pursuant to Rule 23.01 of the Rules of the Court, alternatively, the inherent jurisdiction of this Honourable Court, on the grounds that:
1.1the Originating Motion does not disclose a cause of action; and/or
1.2pursuant to Section 184 of the Local Government Act 1989, this Court does not have jurisdiction to hear and determine this proceeding.
2.Further, or alternatively, that the Indorsement of claim on the Originating Motion be struck out pursuant to Rule 23.02 of the Rules of the Court, alternatively, the inherent jurisdiction of this Honourable Court, on the grounds that the Indorsement:
(a) does not disclose a cause of action; and/or
(b)may prejudice, embarrass or delay the fair trial of the proceeding."
The summons came before Master Patkin on 7 September 2001. Master Patkin took the view that the proceeding should be in this Court and made (inter alia) the following orders in the proceeding:
"1.Stay the proceeding pending an application to transfer the matter to the Supreme Court under the Courts (Case Transfer) Act for a period of 30 days.
2.If such an application is made within 30 days, stay the proceeding until the resolution of that application or further order."
Why the Master took the view that the proceeding should be transferred to this Court is not clear to me, although he may have taken the mistaken view that as the property had been valued at $225,000 the County Court had no jurisdiction to deal with it.
On 20 November 2001 it was ordered by the Deputy Registrar of the County Court that the proceeding be transferred to this Court.
On 13 December 2001 Master Bruce ordered that any application by the Council to strike out the proceeding be filed and served by 20 December 2001.
On 21 December the solicitors for the Council filed a summons in the Court identical in form to the summons filed in the County Court on 30 August 2001. The plaintiff informed me during the course of the hearing in this Court on 19 March 2001 that she received the summons on 24 December 2001.
It is clear that in filing its summons at the time it did the defendant did not comply with the order of Master Bruce; nor was service of its summons effected in compliance with the order.
The plaintiff who appeared in person before me, made much of those matters during the course of her submissions. I shall return to that aspect in due course.
The defendant's summons was heard by Master Wheeler on 14 February 2002. On 4 March the Master dismissed the proceeding.
On 5 March the plaintiff filed a notice of appeal against Master Wheeler's order.
The basis upon which the Master dismissed the proceeding is that this Court does not have jurisdiction to entertain it.
In my opinion the Master's view of the matter is correct.
The sub-sections of s.184 of the Local Government Act 1989 relevant for present purposes are sub-sections (1), (1A), (1B) and (2) which read:
"184. Appeal to County Court
(1) A person who is aggrieved –
(a)by a rate or charge imposed by a Council under this or any other Act; or
(b)by anything included or excluded from such a rate or charge –
may appeal to the County Court for a review of the rate or charge.
(1A)This section does not apply to a matter in respect of which an objection or appeal may be made under Part III of the Valuation of Land Act 1960 or under section 183.
(1B)The person must lodge the appeal with the Court within 60 days after first receiving written notice of the rate or charge.
(2)The person may only appeal on one or more of the following grounds of appeal –
(a)in the case of a rate (other than a special rate under section 221), that the land in respect of which the rate was declared was not rateable land;
…
(c)that the rate or charge assessment was calculated incorrectly;
(d)that the person levied with the rate or charge was not liable to be rated."
The sections of the Valuation of Land Act 1960 relevant for present purposes are ss.21, 22 and 23 which read:
"21. Determination of objection in any other case
(1)Except in the case of an objection referred to in section 20, the rating authority must cause an objection lodged with it to be considered and determined in accordance with this section.
(2)The rating authority must refer an objection to the valuer for that authority, who must provide a reasonable opportunity for the objector to discuss the matter with him or her.
(3)Within 2 months after receiving an objection, the valuer must –
(a)if he or she considers that no adjustment in the valuation is justified – give the objector written notice of that decision; or
(b)if he or she considers that an adjustment in the valuation is justified –
(i)recommend accordingly to the valuer-general; and
(ii)give the objector and the rating authority a copy of the recommendation.
(4)The valuer-general, after consultation if practical with the valuer, must determine the objection as follows –
(a)the valuer-general may disallow the recommended adjustment in whole or part if in his or her opinion the general uniformity of the valuation or the general trueness and correctness of the valuation will be substantially affected by the adjustment; or
(b)in any other case, the valuer-general must confirm the recommended adjustment.
(5)The valuer-general must give written notice of his or her decision, within 2 months after receiving the recommendation, to the objector, the valuer and the rating authority.
(6)Subject to any appeal or review under Division 3, the decision of the valuer-general must be given effect to by the rating authority and every other rating authority using that valuation.
Division 4 – Reviews and appeals
22. Right of review or appeal
(1) Subject to section 23, if –
(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 objection –
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) –
(a)in the circumstances referred to in sub-section (1)(a) – must 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) – may be made at any time after the relevant 2 months period.
(3)At the time of lodging a notice under sub-section (1), an objector must send a copy of the notice to the Tribunal or the Supreme Court (as the case requires).
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 being -
(a) a capital improved value less than $250,000; or
(b) a site value less than $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 Court –
(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."
There has been no application to the Court pursuant to s.23(3) nor in my opinion would any such application have succeeded if it had been made. Any appeal by the plaintiff would not raise any question of unusual difficulty or of general importance. The only question which would arise on an appeal is whether the re-valuation, of the property by the valuer, as approved by the valuer-general, was appropriate in the sense that it was the fair value of the property.
It is clear from the provisions of s.184(1A) of the Local Government Act that s.184 does not apply when, as is the present case, the objection is against the valuation of the property, rather than the fact that the property was assessed as rateable land, or that the rate of charge assessment was calculated incorrectly, or that the plaintiff was not liable to be rated.
In that situation, if the plaintiff was to pursue any further objection the only course available to her was to lodge with the Council a written notice requiring it to refer the matter to the Victorian Civil and Administrative Tribunal pursuant to the provisions of s.22(1) of the Valuation of Land Act; further such notice was required to be given within 30 days after the date that the notice of the valuer-general's confirmation was given to her (see s.22(2) of that Act).
In that situation this Court simply has no jurisdiction to deal with the matter; and as the plaintiff has not given any notice as required by s.22(1) of the Valuation of Land Act she has now forfeited her right to do so.
The plaintiff was much aggrieved by the fact that the defendant did not comply with the order of Master Bruce concerning the filing and service by the defendant of any application to strike out the proceeding.
The plaintiff could not point to any prejudice suffered by her as a consequence of the defendant's failure. Indeed, in the circumstances there could not have been any. That being so, in my opinion it is appropriate to extend the time for taking such steps to 25 December 2001 and I do so.
I note for the record that during the course of the hearing I gave special leave to the plaintiff to rely on her further affidavit sworn 15 March 2002 and the defendant to rely on the affidavit of Michelle Elizabeth Dinoc sworn 18 March 2002. It seemed to me that it was appropriate for the Court to have regard to that material in determining the appeal.
The plaintiff's appeal from the order of Master Wheeler made 4 March 2002 is dismissed with costs to be taxed including any reserved costs and paid by the plaintiff.
---
0
0
0