NINAN and VALUER GENERAL
[2014] WASAT 93 (S)
•17 DECEMBER 2014
NINAN and VALUER GENERAL [2014] WASAT 93 (S)
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2014] WASAT 93 (S) | |
| VALUATION OF LAND ACT 1978 (WA) | |||
| Case No: | DR:438/2013 | 22 SEPTEMBER 2014 | |
| Coram: | MR S ELLIS (SENIOR SESSIONAL MEMBER) | 17/12/14 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Applicants to pay respondent's costs of $4,000 in relation to allegations of fraud and impropriety. | ||
| B | |||
| PDF Version |
| Parties: | GEORGE NINAN MOLLY GEORGE VALUER GENERAL |
Catchwords: | Costs |
Legislation: | State Administrative Tribunal Act 2004 (WA), s 87 Valuation of Land Act 1978 (WA) |
Case References: | Ninan and Anor and Valuer General [2014] WASAT 93 Summerville and Department of Education & Training & Ors [2006] WASAT 368 (S) |
Orders | On the application heard before Senior Sessional Member Scott Ellis it is on 17 December 2014, ordered that:,1. The applicants pay the respondent $4,000 by way of costs within 14 days. |
Summary | The respondent sought an order pursuant to s 87 of the State Administrative Tribunal Act, 2004 (WA). The Tribunal considered that an order should be made under s 87 requiring the applicants to pay the respondent's costs in relation to allegations of fraud and impropriety against the respondent and its officers, which the Tribunal assessed at $4,000. The Tribunal did not consider an order for payment of costs was otherwise appropriate. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : VALUATION OF LAND ACT 1978 (WA) CITATION : NINAN and VALUER GENERAL [2014] WASAT 93 (S) MEMBER : MR S ELLIS (SENIOR SESSIONAL MEMBER) HEARD : 22 SEPTEMBER 2014 DELIVERED : 17 DECEMBER 2014 FILE NO/S : DR 438 of 2013
- DR 439 of 2013
DR 440 of 2013
- MOLLY GEORGE
Applicants
AND
VALUER GENERAL
Respondent
Catchwords:
Costs
Legislation:
State Administrative Tribunal Act 2004 (WA), s 87
Valuation of Land Act 1978 (WA)
Result:
Applicants to pay respondent's costs of $4,000 in relation to allegations of fraud and impropriety.
Summary of Tribunal's decision:
The respondent sought an order pursuant to s 87 of the State Administrative Tribunal Act, 2004 (WA). The Tribunal considered that an order should be made under s 87 requiring the applicants to pay the respondent's costs in relation to allegations of fraud and impropriety against the respondent and its officers, which the Tribunal assessed at $4,000. The Tribunal did not consider an order for payment of costs was otherwise appropriate.
Category: B
Representation:
Counsel:
Applicants : NO APPEARANCE
Respondent : Mr B Prentice
Solicitors:
Applicants : N/A
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Ninan and Anor and Valuer General [2014] WASAT 93
Summerville and Department of Education & Training & Ors [2006] WASAT 368 (S)
Introduction
1 In these proceedings, the applicants sought review of the Valuer General's valuation of the unimproved value of three properties owned by them. They were unsuccessful (see Ninan and Anor and Valuer General [2014] WASAT 93 (Decision)). The respondent sought an order pursuant to s 87(2) of the State Administrative Tribunal Act, 2004 (WA) (SAT Act) that the applicants pay its costs of the applications, which it puts at $22,000, representing a total of 78 hours of work by senior and junior legal practitioners in connection with the matter.
Backround
2 The relevant substantive background is sufficiently set out in the Decision.
3 Both parties provided written submissions in relation to this application. The applicants' submissions made broad allegations of impropriety, rather than addressing the substance of the application.
4 When the matter was called on for hearing, the applicants, who live abroad, were contacted by telephone. Mr Ninan, one of the applicants, answered the telephone, but declined to participate further in the hearing.
Relevant principles
5 Relevant principles are:
a) generally, the Tribunal is a 'no costs' or 'costs neutral' jurisdiction (s 87(1) of the SAT Act);
b) notwithstanding the above, an order for payment of costs may be made against a party in appropriate circumstances, unless the enabling Act provides otherwise (s 87(2) of the SAT Act);
c) section 87(4) of the SAT Act requires the Tribunal to consider whether:
i) the party bringing or conducting the proceedings before the original decision-maker genuinely attempted to enable and assist the decision-maker to make the decision under review on the merits; and
ii) whether the original decisionmaker genuinely attempted to make a decision on the merits;
d) if a party 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 a costs order may be warranted (Summerville and Department of Education & Training & Ors [2006] WASAT 368 (S) at [23] – [44]); and
e) it is not appropriate to attempt to exhaustively describe the circumstances in which an award of costs may be made.
Discussion
6 The enabling Act was the Valuation of Land Act 1978 (WA). It does not preclude an order for costs against the applicants. Consequently, the issue is whether there are features which warrant a departure from the approach ordinarily taken by the Tribunal to the award of costs under s 87 of the SAT Act.
7 I am satisfied that the respondent, as the original decisionmaker genuinely attempted to make a decision on the merits, the 'decision' being the decision of the respondent to reject the applicants' objections to the valuation previously adopted by it.
8 I am satisfied that the applicants did not genuinely attempt to enable and assist the decisionmaker to make a decision on the merits. The applicants provided voluminous material to the respondent in connection with the respondent's consideration of the merits of their objection. This material was referred to in the Decision as the 'objection package'. The objection package was almost entirely irrelevant to the value of the properties. The objection package contained serious allegations of impropriety against the respondent and its officers (amongst others) without any proper foundation. It reproduced part of materials provided by the applicants in other proceedings. It did not contain any evidence or material from a valuer directed to the value of the properties in question.
9 However the decision under review was a decision to reject the applicants' objection to the respondent's original valuation. The respondent's original valuations (to which objection was taken) was arrived at without participation by the applicants. The conduct of the applicants did not lead the respondent to adopt its original valuations of the properties. Nor did it affect the decision under review. The respondent relied upon its own information in making the decision under review. I do not consider that the conduct of the applicants in relation to the decision under review caused the application to the Tribunal. Consequently, s 87(4) of the SAT Act does not bear significantly on the present application.
10 I turn now to consider the conduct of the proceedings before the Tribunal by the applicants. For present purposes, there were three components to the applicants' claim:
a) the respondent and its officers valued the properties on a fraudulent basis, in order to inflate the value of land in the Dawesville region;
b) the value of the properties could be determined by reference to the median price for land in the Dawesville area; and
c) having regard to specific transactions, the respondent's valuations were wrong.
11 As stated in the Decision, there was no basis for allegations of fraud or impropriety on the part of the respondent or his officers, including those officers who prepared the valuations of the subject properties or dealt with the objections. In making these allegations, the applicants acted vexatiously and unreasonably. The allegations were an abuse of process. Further, the allegations of impropriety were not relevant to the matter in dispute. The value of land does not depend on the motives of the person valuing it. The applicants should bear the costs associated with responding to these allegations.
12 However:
a) there was a greater emphasis on the alleged impropriety in the 'objection package' than in the materials prepared specifically for the Tribunal proceedings; and
b) quite properly, the respondent did not respond to these allegations with a detailed denial and focussed on the substantive issue of the value of the property.
13 Adopting a robust approach to the assessment of costs, I accept that the respondent's solicitors devoted about 78 hours of work to the matter and that the costs of this work, applying the Supreme Court scale, would come to approximately $22,000. However, the costs associated with these allegations would have been a relatively small part of the work carried out by the respondent's lawyers. I would allow $4,000 in respect of this component of the application.
14 The second component of the applicants' case was that the value of the land should be determined by reference to the change in the average value of land in the Dawesville area. This was not a proposition supported by expert evidence. However, I do not consider that the argument was so unreasonable as to warrant the imposition of an order for costs against the applicants for putting it forward. Changes in the value of land in a neighbourhood may be relevant to changes in the value of particular pieces of land in the neighbourhood, although not in the direct, simplistic way advanced by the applicants.
15 The third, and largest component of the applicants' case was made up of a great deal of information about transactions which the applicants' contended should be taken into account as comparable transactions for the purpose of valuing the properties. I concluded that the transactions put forward by the applicants were not appropriate comparators. The applicants did not support their case with expert evidence from a valuer. The selection of appropriate comparators is a matter of valuation expertise. However, I do not consider that this aspect of the applicants' case warrants the making of a costs order against the applicants. Much of the debate about the comparators related to details of the circumstances of the sales. This is not inherently a matter requiring expertise. The submissions of the applicants about the comparable transactions may be seen as a process by which the applicants could put forward alternative factual circumstances and transactions for comment by the respondent's valuer. This approach which was not so unreasonable as to warrant a costs order, even if it was ultimately unsuccessful.
16 The 'ordinary rule' should apply, otherwise than in respect of that component of the applicants' case which related to allegations of fraud and impropriety against the respondent.
Order
17 The Tribunal therefore makes the following order:
1. The applicants pay the respondent $4,000 by way of costs within 14 days.
I certify that this and the preceding [17] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR S ELLIS, SENIOR SESSIONAL MEMBER
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