Pavlovich v Valuer-General
[2015] WASC 333
•1 SEPTEMBER 2015
PAVLOVICH -v- VALUER-GENERAL [2015] WASC 333
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 333 | |
| Case No: | GDA:10/2014 | 1 SEPTEMBER 2015 | |
| Coram: | TOTTLE J | 1/09/15 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted | ||
| B | |||
| PDF Version |
| Parties: | RATOMIR RAY PAVLOVICH VALUER-GENERAL |
Catchwords: | Valuation of land Appeal from the State Administrative Tribunal Leave to appeal Question of law Whether in the interests of justice for leave to be granted |
Legislation: | State Administrative Tribunal Act 2004 (WA), s 105 |
Case References: | Field Deployment Solutions Pty Ltd v SC Projects Australia Pty Ltd [2015] WASC 60 Lourey v Legal Profession Complaints Committee [2012] WASCA 112 McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 Paradis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 Pavlovich and Valuer-General [2014] WASAT 125 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Applicant
AND
VALUER-GENERAL
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram : MS L WARD (MEMBER)
Citation : PAVLOVICH and VALUER GENERAL [2014] WASAT 125
File No : DR 489 of 2013
Catchwords:
Valuation of land - Appeal from the State Administrative Tribunal - Leave to appeal - Question of law - Whether in the interests of justice for leave to be granted
Legislation:
State Administrative Tribunal Act 2004 (WA), s 105
Result:
Leave to appeal granted
Category: B
Representation:
Counsel:
Applicant : In person
Respondent : Ms C Ide
Solicitors:
Applicant : In person
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Field Deployment Solutions Pty Ltd v SC Projects Australia Pty Ltd [2015] WASC 60
Lourey v Legal Profession Complaints Committee [2012] WASCA 112
McKay v Commissioner of Main Roads [No 7] [2011] WASC 223
Paradis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Pavlovich and Valuer-General [2014] WASAT 125
- TOTTLE J:
(This judgment was delivered extemporaneously on 1 September 2015 and has been edited from the transcript).
1 The applicant applies for leave to appeal from a decision of the State Administrative Tribunal (Tribunal) made on 9 September 2014; see Pavlovich and Valuer-General [2014] WASAT 125. Leave to appeal is required pursuant to s 105(1) of the State Administrative Tribunal Act2004 (WA). By its decision, the Tribunal affirmed the respondent's disallowance of the applicant's objection to the valuation of lot 58, Carnalea Road, Moresby, Geraldton (the Property), of which the applicant was a part owner.
2 The applicant represented himself before the Tribunal and has conducted the application for leave to appeal on his own behalf and without the assistance of legal representation. The applicant has filed and served an affidavit sworn on 3 November 2014 which attached various items of correspondence. These included a letter dated 3 November 2014 from a valuer, Mr Stafford, who gave expert evidence on the applicant's behalf before the Tribunal. In that letter Mr Stafford sets out the reasons why he says the Tribunal's decision was wrong. In the main, those reasons strive to set out the merits of the applicant's case and highlight the weaknesses in the respondent's case, and explain why the Tribunal erred in preferring the evidence adduced by the respondent over that adduced by the applicant.
3 The applicant also attached a letter written by him to this court to his affidavit of 3 November 2014. The applicant relies upon the contents of that letter in support of his application for leave and, in addition, relies upon the contents of letters written by him to this court on 10 June 2015, 31 July 2015 and 26 August 2015, all of which set out material of an evidentiary nature upon which the applicant bases his arguments that the Tribunal's decision was wrong. In the course of addressing the court at the hearing of the application, the applicant drew my attention to a letter sent by him to the court in May 2015 in which, in substance, he invited the court to dismiss his appeal if the court considered that it had no merit.
Legal principles governing an appeal from the Tribunal
4 An appeal from a decision of the Tribunal can only be brought on a question of law; State Administrative Tribunals Act2004 (WA), s 105(2). The applicable principles governing applications for leave to appeal are well known. Leave to appeal should be granted if, in all the circumstances, it is in the interests of justice that there be a grant of leave. At [28] of Lourey v Legal Profession Complaints Committee [2012] WASCA 112, Murphy JA set out the principles which he considered could be extracted from the decision of the Court of Appeal in Paradis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361. Those principles are:
(a) leave should be granted, if, in all the circumstances, it is in the interests of justice that there be a grant of leave;
(b) although not rigid or exhaustive, the following guidelines are relevant;
(i) it will be necessary for the applicant to identify a question of law which is relevant to the granting of the relief sought on appeal;
(ii) the importance of the question of law, either generally, or to the proposed appellant in a particular case, will probably be relevant;
(iii) the applicant must show that there is a real or significant argument to be put on the question of law, at least to this extent: that there is sufficient doubt about it to justify the grant of leave; and
(iv) it may be necessary to show that to allow the error to go uncorrected would impose substantial injustice, although, where the order below is final, that injustice will often be more readily discernible.
(c) an appeal 'on a question of law' is narrower than an appeal which merely 'involves' a question of law;
(d) a question of mixed law and fact is not a question of law within s 105(2);
(e) a ground of appeal which alleges that a decision is against the evidence and the weight of evidence does not raise a question of law;
(f) the Tribunal does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis;
(g) a ground of appeal that a Tribunal had failed to take into account a consideration which, in the circumstances, it was bound to take into account, alleges an error of law; however, it is not sufficient if the consideration is merely one that may properly be taken into account, or that many persons might have taken into account;
(h) there is a distinction between failing to take into account relevant considerations which a tribunal is obliged to take into account, on the one hand, and failing to take into account a particular piece of evidence, on the other; and
(i) the question of whether a discretionary decision is manifestly unreasonable in the sense that it is so unreasonable that no reasonable person could have come to it, is a question of law.
5 I should add that it is not sufficient to demonstrate that there has been an error of law. It must be an error of law which might have affected the ultimate decision; see the authorities discussed in Field Deployment Solutions Pty Ltd v SC Projects Australia Pty Ltd [2015] WASC 60 [93] - [101] (Mitchell J).
The grounds of appeal
6 Commendably, and very helpfully, the respondent's solicitors have distilled out of the applicant's rather discursive submissions a number of grounds of appeal. These are set out in par 11 of the respondent's submissions and are as follows:
1. Regard ought to have been given to post valuation date comparable sales and the Tribunal failed to have regard to those sales;
2. The Tribunal erred in having regard to potential uses of the subject land if it were rezoned from rural to rural residential in the future;
3. The Tribunal erred in having regard to a sale pre-dating the date of valuation by four years at Lot 80, Hackett Road;
4. The Tribunal had regard to a hypothetical subdivision analysis provided by the Valuer-General's expert valuer; and
5. The Tribunal failed to have regard to the valuation from the Australian Valuation Office of $400,000 for the Property, and the appraisals of 4 real estate agents provided by the applicant.
Whether leave to appeal should be given
7 The respondent concedes that ground 1 of the applicant's grounds, as expressed on the appellant's behalf in the respondent's submissions, namely that the Tribunal ought to have had regard to post-valuation date comparable sales and that it failed to do so, constitutes a ground on a question of law. The question is this: was it open to the Tribunal to have regard to the evidence of comparable sales effected after 1 August 2011, that being the relevant valuation date, for the purposes of determining the gross rental value of the property as at 1 August 2011?
8 At [24] of the Tribunal's reasons, the Tribunal set out its understanding of the relevant law:
Importantly, post valuation date events such as sales of comparable properties are not relevant to prove hindsight. That is, such evidence is not relevant to prove the market value of the subject at an earlier time or to justify or confirm an opinion of market value made for an earlier time.
9 As the respondent concedes, the correct approach to comparable sales which were effected after the valuation date was stated by Beech J in McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [320] (citations omitted):
It is common ground that comparable sales after the date of taking can be taken into account in determining the value of the land. This is well established by authority. As Mahoney JA explained in Falconer (576), evidence of subsequent sales is not admitted on the basis that the hypothetical parties would have known or could have foreseen them. Rather, it is admitted because it assists the court in the process of identifying what the hypothetical parties would have found acceptable for the land at the relevant time.
10 The Tribunal applied the law as it had stated it to be at [24] of its reasons and excluded evidence which the applicant had sought to adduce of comparable sales which took place after the valuation date. At [53] and [54] of its reasons, the Tribunal stated:
Thirdly, the applicant relies on Mr Stafford's written report of 30 April 2014. Mr Stafford gave evidence before the Tribunal and was cross-examined by the respondent. Mr Stafford has worked for 38 years as a valuer and he has spent the past three years in Geraldton as a valuer. He is a certified practising valuer. Mr Stafford's expert opinion was that the market value of the property as of 1 August 2011 was $500,000. Mr Stafford used the direct market comparison as the method of valuation. Mr Stafford's report includes reference to the sale of four properties from a selection of sales transactions. Only one of the four sales listed in the report pre-dates 1 August 2011.
In accordance with McKay (and as set out in Edwards at [36] and [37]), the post-valuation date sales evidence is not relevant to this proceeding. It follows that any attempt to adjust any post-valuation date sales back to the 1 August 2011 must also fall foul of the relevance rule. Such an adjustment is not one contemplated by the courts: see McKay at [2216].
11 The Tribunal took a similar approach to the evidence of the respondent and excluded evidence which the respondent's valuer had sought to adduce in respect of comparable sales effected after the valuation date.
12 I am satisfied this was an error on the part of the Tribunal on a question of law. The excluded comparable sales evidence is not presently before this court and, thus, I am not in a position to consider whether the error on the part of the Tribunal was a vitiating error of the kind described by Mitchell J in Field Deployment Solutions.
13 The balance of the applicant's grounds of appeal, as identified by the respondent in its written submissions, are very much in the nature of attacks on the findings of the Tribunal on the basis that the Tribunal erred in its assessment of the evidence. In my view, none of those grounds identify a question of law and do not justify the grant of leave to appeal.
14 For these reasons, I grant leave to the applicant to appeal from the Tribunal's decision on the question of law which I have described in these reasons. I adjourn for the consideration of the appeal to another date.
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