| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : VALUATION OF LAND ACT 1978 (WA) CITATION : NINAN & ANOR and VALUER GENERAL [2012] WASAT 248 MEMBER : MR P McNAB (SENIOR MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 28 DECEMBER 2012 FILE NO/S : DR 162 of 2011 BETWEEN : GEORGE NINAN & ANOR Applicants
AND
VALUER GENERAL
Respondent
Catchwords: Valuation of land Unimproved value Gross rental value Challenges to 43 valuations on four separate lots Respondent refusing to extend time limit for objections in some cases Only one valuation challenged by expert valuation evidence Applicants resident overseas Reviews determined together on the documents Unsubstantiated allegations of conspiracy, fraud, forgery, corruption and misconduct by respondent, and other agencies and private organisations Claims for damages No jurisdiction in Tribunal to consider such claims Applicants placed on notice not to pursue such claims Applicants warned of costs implications Applicants filing confusing, repetitive, overlong submissions comprised of mainly irrelevant material Respondent filing expert valuation material in all relevant matters Reconsideration invited in sole matter
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where expert valuation in rebuttal lodged by applicants New valuation tending to support official valuation Tribunal finding reviews misconceived and an abuse of process Tribunal refusing to extend time as proposed reviews futile Applications dismissed Decisions under review affirmed Tribunal inviting costs applications by respondent and Executive Officer of Tribunal Legislation: State Administrative Tribunal Act 2004 (WA), s 46, s 47, s 48, s 88, Div 5
Valuation of Land Act 1978 (WA), s 32, s 32(1), s 32(6), s 33, s 35 Result: Applications for review dismissed
Valuation decisions and decisions not to extend the time limited for objecting affirmed
Summary of Tribunal's decision: The applicants in these combined reviews challenged over 40 valuations of the Valuer General in respect of the unimproved value (and in some cases the gross rental values) of three lots owned by them in Dawesville and another lot owned by them in Kalbarri. The challenges, some of which had become untimely, went back many years and appear to have arisen out of their concerns about the fluctuations in land values commencing around 20072008. However, their claims extended to allege conspiracy, fraud, corruption and misconduct by the respondent and other agencies (public and private, including major banks). Damages were sought by the applicants. None of these claims were supported by any evidence. The Tribunal described some of the allegations as 'outlandish' and 'bizarre'. For example, the Valuer General was alleged to have conspired with others to have 'caused the property crash' in the State of Western Australia.
The Tribunal directed the applicants not to raise these irrelevant matters and to engage with the valuation jurisdiction of the Tribunal. The applicants were placed on notice about the possible costs implications of continuing to raise irrelevant matters outside of the jurisdiction of the Tribunal. In the event, only one expert valuation report was lodged by the applicants which the Tribunal found was most probably filed only to keep the proceedings on foot. That expert valuation, in any case, tended to support the Valuer General's valuation. Otherwise, the applicants filed over 2,000 pages of submissions which the Tribunal found to be 'confusing, repetitive and [an] unrestrained
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torrent of overlong submissions and documents, most of which have been filed in direct contravention of the orders of the Tribunal'.
The respondent filed supporting valuation evidence and a detailed rebuttal, so far as was possible, of the claims and allegations made by the applicants.
The Tribunal found that the reviews in the manner and form advanced by the applicants were misconceived and an abuse of process. The Tribunal refused to extend time in those matters where an untimely objection had been made, as this would be 'futile' and a waste of resources. The reviews were dismissed and the valuations under review affirmed.
The Tribunal invited the respondent and the Executive Officer of Tribunal to make submissions on costs.
Category: B
Representation: Counsel:
Applicants : Self-represented
Respondent : Mr M Danger
Solicitors:
Applicants : N/A
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Bhagat v Global Custodians Ltd [2002] FCAFC 331
Butler v Crowley & Greenhalgh (Solicitors) [1999] QSC 339; SC No 6521 of 1996, 11 November 1999
Gallo v Dawson (1992) [1992] HCA 44; 66 ALJR 859
Gallo v Dawson [1990] HCA 30; 64 ALJR 458
Gawor and the Owners of Dawesville Caravan Park Old Coast Road Mandurah, Strata Plan No 14644 [2009] WASAT 170
McCauley v McInness [2008] ACTRTT 11
Medical Board of Western Australia and Kyi [2009] WASAT 22
Robertson and Valuer General [2007] WASAT 213
Tonkin and Valuer General [2010] WASAT 21
Tran and Town of Vincent [2009] WASAT 123
Wines and The Valuer General [2005] WASAT 263
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REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 Before the Tribunal are 38 (originally 50) matters purporting to seek a review of certain valuations and other decisions made by the respondent Valuer General, or a delegate of the Valuer General. Some 43 separate valuations are involved. They have been, in effect, administratively consolidated by the Tribunal into one lead matter - the chronologically first review filed in the Tribunal. For convenience of reference these remaining 38 matters will be collectively referred to as 'the review'. 2 Although ostensibly the review relates to the functions of the respondent Valuer General, in truth the review seeks to agitate much wider matters of alleged public and private corruption which are but very loosely connected (if connected at all) to the underlying issue of the values to be determined for particular public purposes of certain properties owned jointly by the applicants. As will be developed further below, and unfortunately for the applicants, none of these wider matters are capable of falling within the Tribunal's jurisdiction. This finding has more or less inevitable, and adverse, consequences for the disposition of the applicants' case. 3 The applicants have remained unrepresented throughout, despite encouragement by the Tribunal that they should seek legal advice. Given the way the case unfolded, the respondent was represented by the State Solicitor's Office. 4 The respondent's solicitor, in opposing the grant of an extension of time for any untimely - that is to say, out of time - objections (see further below), correctly, in my view, noted the more serious allegations found in the applicants' case as follows: The [applicants'] submissions include allegations of fraud, deception [and] conspiracy against (1) the ValuerGeneral, (2) various staff from the ValuerGeneral's office, (3) two local government authorities, (4) several land developers, (5) several Australian banks, and (Page 6)
(6) all licensed valuers in general. 5 To take but three of the many outlandish claims made by the applicants as illustrativeof their motivations and beliefs (and as indeed the central basis of their case), we can look at these extracts, which are taken from pages 12 and 13 of the applicants' 'Volume 10C' (original emphasis): … We had implied that the property crash [in the State] was caused by [the] Valuer General by his own 'cheat & win' scheme of value inflation coupled with the developers' falsification of prices and demand. … Therefore we submit that not only that Valuer General had [sic] caused the property crash but also that he knows well that he had messed it up [and] caused it. … In conclusion, it is clear that [the] Valuer General, property developers, Valuers, licensees in real estate, Consumer Protection are all supporting [the] banks in deceptive business as their routine day to day business. 6 At page 22 of the same volume the applicants submit: VG [that is, the respondent] had failed to address the issues of forgery [of valuations]. We claim that he cannot walk away and [the State Administrative Tribunal] cannot let him either. Even the [Australian Property Institute's] president want[ed] to avoid looking at the issue; why the General [sic] is falsifying land values … it is not a simple forgery but a series of forgeries on forgeries on forgeries. The approach by [the respondent] and [the State Solicitor's Office] can only be compared to the statement in Court by the Swedish [sic, Norwegian] killer, Breivik of 70 over [sic] people on Utoeya island. He stated that the Courts had no jurisdiction to try him as he was the General. 7 The applicants also have included a detailed claim for 'general damages' in the extraordinary amount of approximately $250,000: see 'Volume 11B', page 2. On the same page the applicants state, in reference to those they describe as the 'looters': We have no word[s] to describe these other than 'acting as God & Satan at the same time'. (Page 7)
8 So far as the respondent is concerned, as these references make clear, the sole or dominant claims in the applicants' case relate to alleged serious misconduct in public office by the respondent and not to the 'correctness' of the valuations made by the respondent when viewed as exercises in the application of standard valuation methodology and what has been described as the 'valuer's art'. To the limited extent that the Tribunal received from the applicants any expert valuation material at all, as will appear below such material was, it seems, only filed to keep the applicants' proceedings on foot. 9 In the event, so far as these proceedings are concerned, the Tribunal has today dismissed all of the remaining 38 matters and has affirmed all of the decisions under review. This has included denying leave to bring a review out of time in any matter where the time limit for the service of the objection has elapsed and such leave was therefore required to have been obtained by the applicants (see below).
Structure of these reasons 10 After these introductory remarks (set out immediately above), I will begin by saying something about the applicants and their opinions and beliefs; I then record some of the procedural history of the matter before going on to consider the valuations that have been received by the Tribunal. I will then set out the statutory framework for decisionmaking; then summarise the steps that were taken to manage the applicants' rather complex case. Observations are then made as to why the applicants' case is fatally flawed. The respondent's case is then addressed, followed by findings on the extension of time applications and the effect of the reconsideration invitation in respect of one review matter. Some overall conclusions are then stated followed by a discussion of the costs implications for the applicants. 11 At various points in these reasons, it will be demonstrated why all of the applications for review must be dismissed.
About the applicants 12 The applicants are married and jointly own various parcels of freehold land in Western Australia. They currently reside outside of Australia. Four such lots are relevant to these proceedings, precise details of which are given below. It appears that these lots were purchased from the proceeds of the sale of the applicants' overseas assets. (Page 8)
13 In correspondence to the Tribunal dated 20 June 2011, the applicants allege that 'illegal actions' by the various parties identified above 'result[ed in] a uniquely steep inflation of land valuations' in Kalbarri (where one of these lots is located) and Port Bouvard (where the other three lots are located) 'until 2006/2007 and then a deep collapse of land valuations from 2007 till now'. According to the applicants, there have been financially devastating consequences for them. The applicants appear to be still financially afloat only because of various loans taken out by their son: see 'Volume 11C' at pages 38 and 39. 14 The applicants appear to have run a relentless, but unsuccessful, campaign to interest local and national regulators in these allegations. Consequently, those regulators have also been in effect drawn into the conspiracy. 15 The valuations of these lots by a public official, namely the Valuer General (and the rights of review attached to these valuations), have apparently provided the means to the applicants to attempt to ventilate the many extraneous issues identified above in the introductory part of these reasons. 16 The applicants currently reside in Dubai, in the United Arab Emirates. The review has been procedurally conducted (with the leave of the Tribunal) by telephone, email and by letter. The review was ultimately determined on the documents. 17 I mention at this point that it was necessary to print off hundreds of pages of documents that were lodged electronically by the applicants. The costs of both these overseas telephone calls and the printing of documents (which will have been not insignificant) have been, in the main, met by the Tribunal, and were therefore paid for by the taxpayers of this State. The assistance of the State Solicitor's Office (SSO) was properly required by the respondent to sieve through and respond to the various claims and allegations contained in these hundreds of pages of documents. I will return to these documents and the question of costs below.
Procedural history 18 In order to give some context to the review and how it was managed I set out below some of the formal procedural history of the review, commencing with a directions hearing held a few weeks after the application was filed in May 2011. (Page 9)
19 On 3 June 2011, so far as is relevant, the Tribunal ordered as follows: 1. … 2. … [T]he respondent is to consider referring to the Tribunal, as related matters and as part of this proceeding, the other outstanding objections made by the applicants for other years, in respect of the same land. 3. Such consideration is to extend to whether the respondent will include 2005 in such referrals, notwithstanding that such objection may or appears to be out of time. 4. The applicants are to consider seeking advice about expert valuation evidence and practice, especially in the light of the Tribunal's observations about such matters and the related question of costs found in Tonkin and Valuer General [2010] WASAT 21 (available from the Tribunal's website at: 5. The applicants are directed not to plead or raise matters by way of the making of serious allegations which are likely to be matters outside of the Tribunal's jurisdiction, or which might otherwise amount to an abuse of process within the meaning of s 47 of the State Administrative Tribunal Act 2004 (WA). 20 Thus, from almost the very commencement of proceedings the applicants were on notice that they might face adverse consequences (including a costs order) if they failed to engage with the jurisdiction of the Tribunal and in an appropriate manner relevant to the issues to be determined. Unfortunately, it appears that those very clear signals were ignored by them. 21 Then, on 8 July 2011, so far as is relevant, the Tribunal ordered as follows: 1. The Tribunal records that the applicants have elected not to seek a review of the decision of the Executive Officer [of the Tribunal] made on 7 July 2011 to reject an application for want of jurisdiction in what would have been proceeding DR/230/2011, being a purported review of certain rates payable under the Local Government Act 1995 (WA). 2. The Tribunal records that the respondent has agreed, in principle, to refer to the Tribunal (to the extent that this has not already occurred) over the next six weeks all of the applicants' outstanding objections, if necessary on a without prejudice basis as to, say, jurisdiction, in respect of properties owned by them in Dawesville (Page 10)
22 On 11 January 2012, the following orders were made (emphasis added): 1. Subject to these orders, all of the proceedings described as 'Ninan and another and the Valuer General', as listed by the Tribunal for [preliminary] hearing on 11 January 2012, are, subject to any further order of the Tribunal, to remain as separate proceeding[s], but are to be heard and determined together (referred to in these orders as 'the combined Ninan reviews'). 2. For administrative convenience, the Tribunal's orders in relation to the combined Ninan reviews may refer to one relevant DR reference number of the Tribunal which reference shall be taken to include a reference to all of the then extant DR reference numbers in the combined Ninan reviews. 3. By consent and with no order for costs, but subject to paragraph 4 of these orders, leave is granted to the parties in the following matters (matters which are part of the combined Ninan reviews) for the proceeding to be withdrawn, and the proceeding is hereby withdrawn: DR 467/11; DR 466/11; DR 463/11; DR 462/11; DR 458/11; DR 438/11; DR 442/11; DR 445/11; DR 443/11; DR 476/11; DR 472/11; and DR 473/11. 4. Paragraph 3 of these orders does not come into effect for a period of 14 days, or such longer period as the Tribunal allows, in order that any administrative error or oversight in respect of the DR proceedings so listed may be corrected or amended. 5. Subject to paragraph 6 of these orders, the preliminary and jurisdictional matters argument, part heard on 11 January 2012, is adjourned to a date to be fixed. 6. It is a condition of the adjournment that the applicants undertake to do what they have indicated in respect of the obtaining by them of relevant, expert advice on valuation matters. (Page 11)
23 The matters withdrawn were, I understand, either matters referred to the Tribunal in error or matters that the applicants did not wish to pursue, or both. It appears that seven of the reviews were matters where an objection had been made in respect of lots that had not yet been created. In response to paragraph 6 of these orders the applicants filed the inspection report on the value of Lot 124 (No 15) Lawrencia Loop, Kalbarri (Lot 124) prepared by a qualified valuer, Mr Rex Stafford of Opteon (see below). 24 Finally, the Tribunal made the following orders on 24 February 2012: 1. Having regard to certain expert valuation evidence filed by the applicants (but subject to any question arising as to relevant dates of ownership), in proceeding [DR 162/2011] the respondent is invited, pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA), to reconsider his decision under review. 2. To the extent necessary, and by consent, the Tribunal extends the time for review or referral in order for proceeding DR 477/2011 to come within the jurisdiction of the Tribunal, but only to the extent that any time limit for review, determination or referral by the Tribunal has expired and otherwise without prejudice to the respondent's position in this or any other proceeding. 3. Subject to these orders, all remaining substantive and procedural matters outstanding between the parties in the consolidated proceedings shall be determined on the documents. 4. All expert evidence filed on behalf of the respondent shall be filed and served in summary form by 30 March 2012. 5. At the respondent's election, the reconsideration response or part thereof in proceeding DR 477/2011, if adverse to the applicant's case in that proceeding, may stand as the expert evidence filed on behalf of the respondent in that proceeding. 6. The respondent's final submissions in the consolidated proceedings shall be filed and served by 30 March 2012. (Page 12)
7. If, in respect of any proceeding, the Tribunal determines in favour of the applicants on any procedural matter where the respondent has not filed expert evidence on the substantive issue in that proceeding, then the Tribunal shall suspend consideration of the consolidated proceedings and invite the respondent to file a summary of his expert evidence on the substantive issue or issues in that proceeding. 8. The applicants may file and serve such further responsive material as they see fit within 14 days of the receipt by them of the respondent's material which is due by 30 March 2012. 9. The respondent may, at his election, within seven days file and serve a response to the applicants' material filed and served under paragraph 8 of these orders. 10. Without the leave of the Tribunal first had and obtained, a party to the consolidated proceedings shall not file or serve evidence or submissions (or further such material) except as contemplated by these orders. 11. Without prejudice to his position, and on the same basis as the other referrals to the Tribunal in the consolidated proceedings, the respondent is, by consent, to refer to the Tribunal for review or determination, and as matters in the consolidated proceedings, the matters identified by the applicants in their email correspondence to the Tribunal dated 18 January 2012. 25 The evident purpose of these last-mentioned orders was, amongst other matters, an attempt to avoid any unnecessary technical hurdles and to place before the Tribunal all disputed valuation matters, to preserve the rights of the respondent to maintain any jurisdictional objections (including objections to timeliness) while allowing for a reconsideration by the respondent in respect of the one piece of expert valuation material actually filed by the applicants. The outcome of the reconsideration is considered below.
Matters appearing to be within the jurisdiction of the Tribunal: the first application/referral 26 As is mentioned above, these proceedings initially commenced in May 2011. On their face they were a review (although apparently untimely) under s 33 of the Valuation of Land Act 1978 (WA) (VL Act) of the Valuer General's determination of both the 'unimproved value' (UV) as in force as at 1 August 2006 and the 'gross rental value' (GRV) as in force on 1 September 2006 in respect of Lot 124. The proposed review is one (Page 13)
of the matters identified below in relation to those matters that required, it was submitted, an extension of time for the service of the objection. 27 At neither point in time was the land owned by the applicants. Registered ownership by transfer occurred on 29 September 2006. This lot is the same land that a qualified valuer, Mr Stafford, eventually valued for the applicants in February 2012. I will return to these matters below. 28 A timely application for a review under s 33 of the VL Act of the Valuer General's determination of the UV of the same Lot 124 with effect from 30 June 2007 was disallowed and referred by the respondent to the Tribunal in May 2011. The 2008 valuation of UV was referred to the Tribunal in July 2011. 29 In the result, the respondent, at the invitation of the Tribunal, 'referred' to the Tribunal on a without prejudice basis (as to jurisdiction) all of the applicants' apparent objections in respect of Lot 124's UV and GRV (including, it appears, purported objections for 2004, when the lot had not yet formally come into existence following subdivision; however, these matters have been withdrawn by consent). It appears that in respect of the 2005 valuation the applicants were not 'liable to pay any rate or tax assessed in respect of land' within the meaning of s 32(1) of the VL Act and thus they were unable to bring a review in that matter in any case. 30 A letter dated 29 July 2011 from the respondent sets out the position for Lot 124 and other land (up to 2009) in a comprehensive tabular form (including valuations and revaluations in dollar amounts). It includes any relevant GRVs. This should be read with a further table from the respondent's solicitor, dated 5 January 2012 (part of the respondent's 'Submissions regarding jurisdiction') which cross references these referrals with matter numbers in the Tribunal's system. For Lot 124, later referrals have taken the position up to 2011 - 2012 (see the respondent's solicitor's consolidated submissions dated 30 March 2012). All of this must be read with the respondent's solicitor's submissions dated 30 March 2012, which summarises those matters withdrawn by consent and the matters which remain as untimely.
The subsequent applications/referrals 31 This pattern has been more or less repeated, so far as is applicable, and for both UV and GRV valuations in respect of the three other properties owned by the applicants: Lot 227 (No 78) Channel View, Dawesville; Lot 276 (No 26) Surf View, Dawesville; and Lot 11 (No 104) Sanctuary Circuit, Dawesville. It is unnecessary for present purposes to (Page 14)
set out the details of these matters. They can be found in the respondent's documents referred to immediately above.
The statutory framework 32 Section 32 of the VL Act, so far as relevant, provides as follows: (1) Any person liable to pay any rate or tax assessed in respect of land who is dissatisfied with a valuation of such land [made under relevant provisions of the VL Act] may serve upon the ValuerGeneral or any rating or taxing authority a written objection to the valuation (1a) In subsection (1), person liable to pay any rate or tax assessed in respect of land includes the authorised representative of such a person. (2) An objection to a valuation of land shall - (3) An objection to a valuation of land may be made on the ground that the valuation is not fair or is unjust, inequitable or incorrect, whether by itself or in comparison with other valuations in force under this Act. (4) A person may not make more than one objection to the one valuation during any period of 12 months. (5) Where an objection to a valuation is served on a rating or taxing authority, that authority shall as soon as practicable refer the objection to the ValuerGeneral and advise him of the date on which the objection was served on that authority. (6) The Valuer-General may, for reasonable cause shown by a person entitled to make an objection, extend the time for service of the objection for such period as the ValuerGeneral considers (Page 15)
reasonable in the circumstances and whether or not the time for service of the objection has already expired. (7) The Valuer-General shall, with all reasonable despatch, consider any objection and may either disallow it or allow it, wholly or in part. (8) The Valuer-General shall promptly serve upon the person by whom the objection was made written notice of his decision on the objection and a brief statement of his reasons for that decision. (9) Where the Valuer-General decides to allow an objection, wholly or in part, he shall also advise the person by whom the objection was made of any consequent amendment of valuation; and where the ValuerGeneral decides to disallow an objection, wholly or in part, he shall also advise that person of the time within which and the manner in which a review of the valuation may be sought. 33 In Robertson and Valuer General [2007] WASAT 213 (Robertson) it was noted that, at [22]: Section 33 of the VL Act provides that any person who is dissatisfied with the decision of the Valuer General on an objection may, by notice, require the Valuer General to 'refer the valuation to the State Administrative Tribunal for a review'. Section 36A(1) states that, upon a review by the Tribunal on a referral under s 33, the Tribunal may consider grounds in addition to those stated in the notice of objection and reasons in addition to those previously given by the Valuer General. Section 27(1) of the State Administrative Tribunal Act 2004 (WA) states as follows: The review of a reviewable decision is to be by way of a hearing de novo, and it is not confined to matters that were before the decisionmaker but may involve the consideration of new material whether or not it existed at the time the decision was made. 34 Section 35 of the VL Act deals with refusals to extend the time limited for making an objection fixed under s 32(6), set out above. Section 35 provides as follows: (Page 16)
(3) The Valuer General is to effect the reference by forwarding the notice to the executive officer of the State Administrative Tribunal together with the objection and a copy certified by or on behalf of the Valuer General of - 35 The general statutory and administrative context of the more usual reviews of this nature (including the relevant statutory dates taken for valuation purposes, at least as regards UV in albeit predominately rural settings) is set out in cases such as Robertson at [10] [15]; Wines and The Valuer General [2005] WASAT 263 at [15] [19] and Tonkin and Valuer General [2010] WASAT 21 (Tonkin). It is therefore unnecessary to reproduce all of that or similar background material here, except to set out some key definitions found in the VL Act, as follows: 'Improvements' in relation to land 'means the value of all works actually effected to land, whether above or below the surface, and includes fixtures, but does not include ... machinery, whether fixed to the land or not'. 'Gross rental value of land' means 'the gross annual rental that the land might reasonably be expected to realize if let on a tenancy from year to year upon condition that the landlord were liable for all rates, taxes and other charges thereon and the insurance and other outgoings necessary to maintain the value of the land … [exceptions and qualifications not reproduced].' 'Unimproved value' means 'the capital amount that an estate in fee simple in the land not including improvements might reasonably be expected to realize upon sale'. 36 It is trite to observe that none of this statutory context (which is the sole jurisdiction available to the Tribunal in respect of these reviews) has any relevance whatsoever to resolving the misconduct, conspiracy, damages and corruption claims alleged against the respondent and the various third parties named by the applicants.
Managing the applicants' case 37 Putting aside the original referrals to the Tribunal from the respondent (that is, of disallowed internal reviews, or decisions not to extend the time for seeking a review), and the various associated correspondence, the applicants' case is contained in around 2,000 pages of extensive but mainly irrelevant, repetitious, hard to follow and prolix documents and submissions. These are to be found in some 40 'Volumes' (Page 17)
(with extensive indices). Despite all of this apparent structure and attempts at orderly numbering by the applicants, following, understanding and responding to the applicants' case remains problematic - and not only for the respondent. 38 The management of the case by the Tribunal has resulted in approximately 150 pages of transcript covering six separate directions hearings. 39 The respondent has produced extensive submissions in rebuttal and supporting material in support of the subject valuations (where appropriate). This is considered further below. 40 As has already been indicated, some of the applicants' material was filed in direct contravention of the orders of the Tribunal, a matter to which I will return below. 41 This brief summary is a pale reflection of the extensive resources the Tribunal (and others) have had to divert into managing the applicants' legally hopeless cause - hopeless at least as far as this Tribunal's jurisdiction is concerned. 42 Only one document (mentioned above), a 2005 and 2006 valuation report Lot 124 (No 15) Lawrencia Loop, Kalbarri (and undertaken by a qualified valuer, Mr Rex Stafford of Opteon, with an inspection date of 1 February 2012) is possibly germane or responsive to the matters of substance in the review. That document was received by the Tribunal only after, it appears: 43 With this one possible exception - which is dealt with separately below - the review (as formulated and advanced by the applicants) is wholly outside the Tribunal's jurisdiction and is otherwise 'misconceived'. (Page 18)
Why the review is flawed and the consequences thereof 44 These mostly bizarre allegations found in the applicants' case are extremely unlikely to have any merit at all, but even if in the improbable event that they could be sustained, they are not in any case, as has been indicated, matters for the Tribunal to investigate or rule upon. Although the Tribunal could theoretically engage in an examination whether a particular valuation was irregular having been, for example, derived in connection with an improper purpose, that is manifestly not what the applicants' case is about. Rather, the applicants see, in effect, a vast conspiracy stretching from the point of sale to the financing and valuing of the subject land. The respondent's valuations are but a convenient hook - found in a generally costs neutral administrative review jurisdiction - to hoist this alleged conspiracy out into the open. 45 The central and serious allegations made by the applicants against various named figures and authorities may also generally be said to be 'scandalous' in the legal and procedural sense of that word. This is because they are not relevant to any relief that this Tribunal may award the applicants and otherwise they tend to unnecessarily sully the reputation and character of those named or identified, that is to say, for apparently no legitimate forensic purpose in connection with the proceeding. In Butler v Crowley & Greenhalgh (Solicitors) [1999] QSC 339; SC No 6521 of 1996, 11 November 1999 Muir J said, at [4] (internal citations omitted, emphasis added): … Matter is 'scandalous' if, as well as being irrelevant, it is indecent or offensive or consists of allegations made for the purpose of abusing or (possibly) prejudicing the opposite party … Also of relevance to a determination of whether material should be regarded as 'scandalous' is the interest of the Court in the maintenance of the integrity of its processes. 46 Unsurprisingly, there is not a jot of real evidence (as opposed to surmise or assertion) to support any of the applicants' allegations. In any case, as already indicated, the Tribunal would not, or possibly even could not, receive such material in its present form, given the nature of these review proceedings and the limited jurisdiction of the Tribunal. 47 In Gawor and the Owners of Dawesville Caravan Park Old Coast Road Mandurah, Strata Plan No 14644 [2009] WASAT 170 (Gawor) the Tribunal noted also the attitude of courts and tribunals to the making of indiscriminate and unwarranted allegations of fraud, as has repeatedly happened in this case. Here, these allegations have extended to (Page 19)
a range of unrelated third parties. The Tribunal referred there, for example, to the observations made in Bhagat v Global Custodians Ltd [2002] FCAFC 331, at [13]: [W]e must express our concern as to the content of the notice of appeal and the written submissions. An allegation of fraud is a serious matter and must be particularised in a precise and clear manner ... It is quite inappropriate and unacceptable to make an allegation of fraud without proper particulars of the conduct relied upon. In the present case [the applicant] has used the expressions 'fraud' and 'fraudulent' indiscriminately, seemingly without regard to the consequences of what is conveyed by the use of those words. 48 Also in Gawor, the Tribunal spoke of the obligation on every applicant, even a party not legally represented, to present their case in a restrained, relevant and logical way. At [37], the Tribunal said: [Here] a great deal of energy must be expended in distilling the true nature of each of the claims made. Even in a non-court jurisdiction, such as here, there remains an obligation upon an applicant to recite, particularly in complex matters, allegations of relevant fact in as straightforward, neutral and logical way as is possible … Such a recitation should make reference to identified legal rules … Regard should be had to previous matters in the Tribunal or its predecessor body where advice has been given concerning the proper formulation of any claim. Regard should also be had to following, for example, basic reasoning such as the chronological presentation of claims[.] 49 In the Australian Capital Territory, in McCauley v McInness [2008] ACTRTT 11, certain observations were made which are relevant to the present case concerning the difficulties for the decision-maker or tribunal where such basic 'rules' are not followed. There the Tribunal said, at [36]: Most of this volume of correspondence [filed with the tribunal by the applicant] deals with a range of historical and emotional issues which have no bearing on the issue before the Tribunal. The sheer volume and intensity of the Applicant's emotional outpouring in these letters makes it difficult to sift the 'chaff from the wheat' in terms of relevance. … 50 Even allowing for the limited assistance to be afforded by a tribunal to an unrepresented party it is simply not the job of such a body to sift through mountains of documents (in this case, well over 2,000 pages) looking for a kernel of relevant material. 51 Importantly, the applicants' attention was also expressly drawn (see paragraph 4 of the Tribunal's orders dated 3 June 2011, reproduced above) to the following passages in Tonkin, at [59] - [62]: (Page 20)
Speaking generally, an unsuccessful applicant in this Tribunal appearing as a citizen seeking an independent review in good faith of a decision of a government agency affecting them will be immune from a costs order made against them. However, costs still remain a matter of discretion for the Tribunal. This review illustrates the difficulty where an applicant, even after both 'advice' and a full explanation of the decision, persists in refusing to engage in a meaningful way (including furnishing expert advice or its equivalent) with respect to the precise issue at hand (here, the hypothetical value of land in a certain assumed state at a fixed date), and engages instead largely in the agitation of issues patently outside of the control of either the agency [that is, the Valuer General] or the Tribunal … As arguably occurred here, the cost to the taxpayer in such circumstances will be considerable, and seems both disproportionate and unjustified, having regard to the applicant's real concerns. Moreover, attention to other, perhaps more deserving cases, will be postponed unnecessarily while the review takes place. I would thus wish to reserve for future cases whether the question of costs in such circumstances ought to be visited upon such an applicant. 52 On the face of it, the applicants are such persons as are contemplated by these extracts. The applicants' attention was also drawn to the other relevant passages in Tonkin and to the authorities cited therein on the usual consequences of the failure to provide any expert valuation evidence in rebuttal, which, except for one proposed review, has occurred here. See Tonkin, at [27] [29]. 53 These are matters to which I will return below in connection with the question of costs.
Respondent's case 54 The respondent's case may be shortly stated. First, the respondent unsurprisingly drew attention to the nature and the width of the allegations made compared with the actual (and limited) jurisdiction of the Tribunal. Moreover, the respondent pointed to the confusing, bizarre and unsubstantiated nature of much of what had been alleged by the applicants, much of it filed contrary to the express orders of the Tribunal. All of this was compounded by the sheer volume and complexity of the applicants' case. Notwithstanding these matters, the respondent methodically rebutted, to the extent practicable, each and every one of the applicants' allegations. (Page 21)
55 I generally accept the respondent's submissions on these matters. My own views on the nature of the applicants' case and the consequences for the applicants are summarised below. 56 In addition, in respect of four matters, the respondent objects to the Tribunal taking jurisdiction to review any valuation as, for those proposed reviews, the applicants were not 'liable to pay any rate or tax assessed in respect of land' within the meaning of s 32(1) of the VL Act: see page 12 of the respondent's submissions dated 30 March 2012. This submission appears sound, but it is not necessary to reach a final conclusion on the point as the reviews have been dismissed on other grounds. 57 On the question of the valuations themselves, the respondent has, apparently out of abundant caution, filed comprehensive witness statements from Mr Sam Scuderi (a valuer with 26 years' experience, dealing with Lot 124), Ms Tania PeartWhalan (a valuer with more than 6 years' experience, dealing with Lots 227, Lot 276 and Lot 11) and Mr Mark Hebbard (a valuer with 27 years' experience, dealing with Lot 227, Lot 276 and Lot 11). These valuations appear to cover all relevant valuation periods. 58 Apart from one valuation report, the applicants have not sought to file any material evidence in response, only to convey to the Tribunal their idiosyncratic views of the respondent's expert evidence and, it seems, of valuers generally: see, for example, the allegations (unsupported by any evidence) of 'collusion' between 'Mr Scudery' [sic] and others and a relevant developer, which appear in 'Volume 10C' at page 27, and the references to 'forged evidence' on page 3 of that same volume. 59 There is nothing whatever to suggest that such evidence from the respondent does anything other than support the decisions under review relevant to those valuations and, if necessary, it may be accepted with that effect. 60 However, for the reasons discussed above, the applicants' case is critically impaired on other grounds besides their failure to adduce any evidence of substance rebutting the respondent's valuations.
Extensions of time required for the service of some of the applicants' objections 61 The question of the Tribunal granting an extension of time for certain proposed reviews (see s 35 of the VL Act) arises in respect of the following matters: six valuations of Lot 227; three valuations of Lot 276; (Page 22)
12 valuations of Lot 11; and two valuations of Lot 124. These figures are taken from the respondent's solicitor's submissions dated 30 March 2012. I understand that the applicants do not object to this summary of dates and relevant proceedings prepared by the respondent's solicitor. 62 The respondent submits that the ordinary principles concerning such matters (for example, the length of time; the explanation for the delay; and the prejudice to the other party - see the discussion found in Judge David Parry and Dr Bertus De Villiers' Guide to Proceedings in the WA State Administrative Tribunal (1st ed, 2012) at pages 67 69) are applicable here. I agree. Further, the respondent submits that the Tribunal's discretion should be not be exercised in favour of the applicants. I also agree with that submission. 63 Having regard to the nature and presentation of the applicants' case here, one of the overarching factors to be considered in exercising any discretion to, in effect, extend the time for a proposed review, is whether there is, in fact, 'an arguable case': see Parry and De Villiers at page 68, fn 34. The respondent submits that plainly there is no arguable case here. 64 In Gallo v Dawson [1990] HCA 30; 64 ALJR 458 (affirmed: Gallo v Dawson (1992) [1992] HCA 44; 66 ALJR 859), McHugh J, at [5], dismissed an application for an extension of time on grounds which included a central finding that the proposed appeal 'would have no prospect of success'. Part of the proposed appeal contemplated an amendment to the proceedings which McHugh J described as follows, at [4]: The proposed amendment … is futile … It would be a waste of time, money and court resources to extend the time for appealing to enable the applicant to seek the relief which she proposes in her amended claim. 65 Clearly, the untimely reviews here, if permitted to go forward, would also be a waste of resources, futile and doomed to failure, given the result in the other reviews. On these grounds alone the Tribunal must refuse leave to bring a review in those matters where this is necessary because they are untimely in respect of the time limited for the service of the objection.
Reconsideration invited in respect of one valuation 66 As is mentioned above, on 24 February 2012 the Tribunal made the following order: (Page 23)
1. Having regard to certain expert valuation evidence filed by the applicants (but subject to any question arising as to relevant dates of ownership), in proceeding [DR 162/2011] the respondent is invited, pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA), to reconsider his decision under review. 67 The expert valuation evidence, as appears above, is the 2005 and 2006 valuation report filed in the proceedings on Lot 124 (No 15) Lawrencia Loop, Kalbarri undertaken by a qualified valuer, Mr Rex Stafford, with an inspection date of 1 February 2012. Mr Stafford valued the UV of the lot as $250,000 on 1 August 2005, and $285,000 on 1 August 2006. The respondent's delegate reconsidered this decision in the light of the fresh valuation provided but declined to vary the valuation figure. 68 The history of the applicants' previous objections made in respect of this lot are set out in Mr Scuderi's witness statement. These objections were made outside of these proceedings (with at least one objection made relying on an expert's report). The statement shows that on three occasions the respondent reduced the UV for this lot. The varied value (down from $510,000) for 1 August 2006, and made in May 2011, is $270,000. The difference between the two valuations is therefore $15,000. Putting aside the relatively small margin of difference between the two valuations, as the respondent pointed out, this second valuation, in any case, tends to support the respondent's valuation. 69 There is thus nothing arising from the reconsideration which affects in anyway the general conclusions reached above about the overall nature of the reviews or otherwise detracts from the strength of the respondent's case (including the respondent's case on the denial of leave to extend time). 70 I should also state my view that such material that was filed and led to the reconsideration was most probably only placed on the record by the applicants because the Tribunal repeatedly warned them (see, for example, the transcript of proceedings of 8 July 2011, page 32) that they faced early dismissal of their case by making 'serious allegations which [were] likely to be matters outside of the Tribunal's jurisdiction, or which might otherwise amount to an abuse of process' and by not otherwise engaging with the valuation jurisdiction of the Tribunal. To this end, it was made a condition of the adjournment in January 2012 for such material to be filed. (Page 24)
Conclusions 71 While the applicants seem to genuinely hold the view that they are the victims of a widespread conspiracy to damage their interests and that this Tribunal in its review jurisdiction is a suitable vehicle to expose this conspiracy, neither proposition has any basis in law or objective fact. 72 I have found that the applicants have advanced in these reviews a 'legally hopeless' case, one that was misconceived and outside of the Tribunal's jurisdiction. The Tribunal's statutory jurisdiction has no relevance whatever to resolving the serious misconduct, conspiracy, damages and corruption claims of the applicants that have been made against various individuals and organisations (including the respondent). Further, such irrelevant, serious and unfounded allegations amount to 'scandalous' allegations in the legal and procedural sense of that word. The additional epithet 'fraudulent' directed by the applicants against any party who they apparently disagree with is likewise procedurally improper. All of this has been compounded by the applicants' confusing, repetitive and unrestrained torrent of overlong submissions and documents, most of which have been filed in direct contravention of the orders of the Tribunal, and notwithstanding the repeated warnings of the Tribunal not to do so. The applicants' conduct therefore amounts to an abuse of process. 73 The applicants were warned of the potential consequences of such conduct right from the very start of proceedings. They have, in the words of Tonkin, at [60]: … persist[ed] in refusing to engage in a meaningful way (including furnishing expert advice or its equivalent) with respect to the precise issue[s] at hand (here, the hypothetical value of land in a certain assumed state at a fixed date), and engage[d] instead largely in the agitation of issues patently outside of the control of either the agency or the Tribunal. 74 Prima facie, those consequences are what was foreshadowed in Tonkin, at [62], namely 'whether the question of costs in such circumstances ought to be visited upon such an applicant'. 75 Subject to any further order made as to costs, all of their applications must be dismissed. All of the decisions under review will be affirmed.
Costs 76 The enabling Act (that is, the VL Act) does not deal with the question of costs of proceedings in the Tribunal. So far as is relevant, (Page 25)
Div 5 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) dealing with costs provides as follows: 87. Costs of parties and others (1) Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal. (2) … (3) The power of the Tribunal to make an order for the payment by a party of the costs of another party includes the power to make an order for the payment of an amount to compensate the other party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding or the matter because of which the proceeding was brought. (4) Without limiting anything else that may be considered in making an order for the payment by a party of the costs of another party where the matter that is the subject of the proceeding comes within the Tribunal’s review jurisdiction, the Tribunal is to have regard to - (a) whether the party (in bringing or conducting the proceeding before the decision-maker in which the decision under review was made) genuinely attempted to enable and assist the decision-maker to make a decision on its merits; (b) … (5) … (6) … 88. Costs of proceeding (Page 26)
(a) the party brought or conducted the proceeding frivolously or vexatiously; or (b) section 87(4) applies to the party; or (c) circumstances have arisen in which the Tribunal could make an order under section 46, 47 or 48. 77 These last-mentioned provisions of the SAT Act (s 46, s 47 and s 48) regulate when proceedings in the Tribunal may be dismissed for want of prosecution, for being frivolous, vexatious, misconceived or lacking in substance or are being used for an improper purpose or are otherwise an abuse of process or are being conducted so as to cause disadvantage. In light of the findings that I have made above, such circumstances of an abuse of process are prima facie made out for the purposes of any costs application. 78 The relevant principles concerning costs are set out in the Guide to Proceedings in the WA State Administrative Tribunal at pages 190 193 and 208 212. It is there suggested that there will only be an award of costs in 'special circumstances' (page 190). Thus, successful costs applications in the Tribunal have been described as a 'rare bird' indeed: Tran and Town of Vincent [2009] WASAT 123 at [29]. However, costs might be awarded against a party in circumstances illustrated in this passage taken from Medical Board of Western Australia and Kyi [2009] WASAT 22 at [73], endorsed as of general application by the learned authors (at page 191): … If a party has conducted itself in such a way as to unnecessarily prolong the hearing, has acted unreasonably or inappropriately in its conduct of the proceedings, has been capricious, or the proceedings in some other way constitute an abuse of process, then this may give rise to an exercise of the discretion to award costs. This encompasses a situation where proceedings should not have been maintained against a party because it is clearly untenable and no reasonable person would have believed they could be successful. … 79 Again, it would seem that in the light of the findings that I have made above, the applicants' case and their conduct meet this threshold. Further, the learned authors note, at page 208, that s 88 of the SAT Act 'enables the Tribunal to make an order requiring a party to pay the Tribunal's costs of a proceeding'. As is mentioned above, the administrative arm of this Tribunal appears to have been exposed to not insignificant costs in accommodating the applicants' communications with the Tribunal. (Page 27)
80 In these circumstances I will invite both the respondent and the Executive Officer of the State Administrative Tribunal to make submissions on the question of costs.
The conduct of the State's officers 81 Finally, I express my gratitude to Mr Martin Danger of the SSO who with the respondent's officers patiently and methodically analysed and marshalled the applicants' morass of material served on the respondent into a form which assisted the Tribunal and enabled his client (the Valuer General) to respond, to the extent that that was either relevant or necessary, in an orderly and logical way to the many and varied claims. Moreover, Mr Danger, as did officers of the respondent, behaved throughout with considerable professionalism, restraint and detachment in the face of the most serious but unfounded allegations of misconduct, fraud and corruption repeatedly and unfoundedly made against the respondent's valuers (and others).
Orders 82 For the reasons set out above, the Tribunal orders: 1. Subject to any order as to costs, the applications for review are dismissed. 2. The decisions under review (including any review of a decision not to extend the time for service of an objection) are affirmed. 3. For the avoidance of doubt, these orders have concurrent application to each and every valuation proceeding extant in the Tribunal between the applicants and the respondent (as at the date of these orders). 4. The respondent may within 14 days, or such further time as the Tribunal allows, file and serve short written submissions on costs including, if costs are claimed, identifying in short form the amount or amounts or proportion of costs sought to be recovered. 5. The Executive Officer of the State Administrative Tribunal may within 14 days, or such further time as the Tribunal allows, file and serve short written submissions on costs including, if costs are claimed, identifying in short form the amount or amounts or proportion of costs sought to be recovered. 6. Thereafter, by no later than a further 14 days, or such further time as the Tribunal allows, commencing from the receipt of the last submission as to costs, the applicants may file and serve short submissions in reply (limited to, unless the Tribunal gives leaves, no more than a total of 12 pages), and confined solely to the question of costs. (Page 28)
7. I direct that a copy of these reasons be served upon the Executive Officer of the State Administrative Tribunal. |