Perilya Broken Hill Limited v Valuer-General (No 2)
[2012] NSWLEC 276
•20 December 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: Perilya Broken Hill Limited v Valuer-General (No 2) [2012] NSWLEC 276 Hearing dates: 18 December 2012 Decision date: 20 December 2012 Jurisdiction: Class 3 Before: Preston CJ Decision: The Court orders:
(1)The Valuer-General's notice of motion filed on 18 December 2012 is dismissed.
(2)Broken Hill City Council's notice of motion filed on 10 December 2012 is dismissed.
Catchwords: VALUATION OF LAND - application to stay Court's orders revoking determination of Valuer-General and valuing land at lower amount - orders had already taken effect and had no ongoing operation - Valuer-General's subsequent actions of altering land value in Registry of Land Values and providing supplementary list to rating authority gave effect to Court's decision - discretionary considerations not in favour of granting a stay - no stay granted - applications to reverse alteration of land value in the Registry of Land Values and furnish a supplementary list refused - application under s 135(2) of the Civil Procedure Act 2005 to restrain successful party from bringing separate proceedings to recover any overpayment of rates - Court's decision itself did not give rise to claim for refund of overpayment - proceedings to recover overpayment of rates not an action to enforce Court's judgment or orders - Court has no power to prohibit party from bringing proceedings in another court other than to enforce Court's judgment or orders - local council sought to join proceedings as second respondent after Court's redetermination of land value - application for joinder refused Legislation Cited: Civil Procedure Act 2005
Land and Environment Court Act 1979
Land and Environment Court Rules 2007
Local Government Act 1993
Uniform Civil Procedure Rules 2005Cases Cited: Bunnings Forest Products Pty Ltd v Bullen (1994) 54 FCR 342
Chen v Lym International [2009] NSWCA 121
McBride v Sandland (No 2) (1918) 25 CLR 369Category: Consequential orders Parties: Perilya Broken Hill Limited (Applicant)
Valuer-General (Respondent)Representation: Mr R P L Lancaster SC with Ms L Thomas (Applicant)
Mr T S Hale SC with Mr J B Maston (Respondent)
Mr J E Robson SC (for Broken Hill City Council)
Sparke Helmore (Applicant)
I V Knight, Crown Solicitor (Respondent)
Maddocks Lawyers (for Broken Hill City Council)
File Number(s): 30076 of 2011
Judgment
Orders are made, entered and appealed
On 19 October 2012, Lloyd AJ of this Court gave judgment and made orders, first, upholding Perilya Broken Hill Limited's appeal under s 37 of the Valuation of Land Act 1916; secondly, revoking the Valuer-General's decision that the land value of Perilya's land at Broken Hill for the valuing year commencing 1 July 2007 was $20.9 million; and thirdly, making a decision that the land value of the land for the valuing year commencing 1 July 2007 was $4.9 million in place of the Valuer-General's decision. The Court's orders were entered on 14 December 2012.
The Valuer-General took action to give effect to the decision of the Court on the appeal in two ways: first, shortly after the Court gave judgment, by altering the Register of Land Values under s 14DD(1) of the Valuation of Land Act to record the land value as $4.9 million and, secondly, on 11 November 2012, by giving to Broken Hill City Council, the relevant rating authority, a supplementary list under s 49(1) of the Valuation of Land Act containing the altered land value of $4.9 million.
The Valuer-General is dissatisfied with the Court's decision. On 6 November 2012, the Valuer-General filed a notice of intention to appeal with the NSW Court of Appeal. The filing of the notice of intention to appeal did not operate to commence proceedings in the Court of Appeal (Pt 51 r 51.9(3) of the Uniform Civil Procedure Rules 2005 ('UCPR')). The Valuer-General filed a notice of appeal, which did commence the appeal proceedings, on 10 December 2012.
Applications are made to stay the orders
On 10 December 2012, Broken Hill City Council filed a notice of motion in the appeal in this Court seeking, first, an order for the Council to be joined as a second respondent to the appeal in this Court for the purpose of, next, seeking orders for a stay of orders 2 and 3 of the Court's orders and for the alteration of the Register of Land Values made by the Valuer-General consequent upon the Court's judgment to be reversed.
On 18 December 2012, the Valuer-General was granted leave to file in court and have returnable instanter, a notice of motion seeking the same orders that the Council wished to be joined in order to seek, namely that the Court's orders 2 and 3 be stayed and that the alteration to the Register of Land Values made by the Valuer-General be reversed.
On the hearing of its notice of motion on 18 December 2012, the Valuer-General orally sought two additional orders, namely, that, consequent upon the Valuer-General reversing the alteration to the Register of Land Values, the Valuer-General give another supplementary list to the Council containing information about the reversal of the alteration to the Register, and that Perilya be restrained from taking any step or action to recover any overpayment of rates pursuant to the Local Government Act 1993 based on the land value of the land for the valuing year commencing 1 July 2007.
At the hearing of the notices of motion, the Valuer-General and the Council each read in support of their notices of motion an affidavit by Mr Row, a senior solicitor in the Crown Solicitor's Office acting for the Valuer General, explaining that the delay of the Valuer-General in filing the notice of appeal was due to the delay in obtaining a transcript of the hearing of the appeal before this Court and an affidavit by Mr Zaknich, the general manager of the Council, explaining that the delay of the Council in seeking to be joined to the proceedings in this Court was because the Council was unaware of the proceedings until after judgment was delivered, and describing the financial consequences to the Council if it were to have to refund to Perilya the overpayment of rates (which the Council has calculated to be $6,878,830).
Perilya opposes the grant of the orders sought in both notices of motion and orally at the hearing.
Because the Council only wish to be joined to the appeal in order to seek orders for a stay and for reversal of the alteration to the Register of Land Values, which orders the Valuer-General now seeks, it is efficient to deal with the Valuer-General's notice of motion first and its resolution will be dispositive of the Council's notice of motion. I will deal with each of the orders sought by the Valuer-General and the Council.
The first order: a stay of the Court's orders
The first order sought by the Valuer-General and the Council is for a stay of the Court's orders 2 and 3. The Court has power to stay any proceedings before it (s 67 of the Civil Procedure Act 2005) or stay execution or enforcement of a judgment or order of the Court (s 135 of the Civil Procedure Act). When an appeal is made to the Court of Appeal against this Court's decision, this Court may suspend the operation of its orders or decision until the Court of Appeal makes its decision (s 59 of the Land and Environment Court Act1979). In addition, the Court of Appeal has power to order that this Court's decision or the proceedings under the decision be stayed (Pt 51 r 51.44(1) of the UCPR).
I am of the view that a stay of the Court's orders 2 and 3 should not be made for three reasons, each relating to the fact that those orders have no ongoing operation or effect to be stayed.
First, the Court's orders 2 and 3, by their nature, have already done their work and they have no ongoing work to do. Once the Court made order 2, revoking the Valuer-General's determination, and order 3, making a decision in place of the Valuer-General's decision (both pursuant to the power under s 40(1)(a) and (b) of the Valuation of Land Act), the Valuer-General's decision that the land value of the land was $20.9 million was revoked and the Court's decision that the land value of the land was $4.9 million was made in place of the Valuer-General's decision. These orders took effect upon their pronouncement.
True it is that the orders could have been amended, varied or recalled before they were entered under the power in r 36.16(1) of the UCPR, but that power was never exercised. Hence, the orders took effect and did their work upon pronouncement. In addition, the Court's orders have now been entered and there is very limited power in the Court to set aside the entered orders, under r 36.15 or r 36.16(2) of the UCPR.
The consequence is that there are no orders having ongoing operation to be stayed or suspended.
Such a conclusion was also reached by Carr J in Bunnings Forest Products Pty Ltd v Bullen (1994) 54 FCR 342 at 346-347 with respect to a declaratory order that the deed in that case was void; once the declaration had been made in that case, the order did its work and there was no ongoing operation to stay.
Secondly, this conclusion that the orders have no ongoing operation to be stayed or suspended is reinforced by s 41 of the Valuation of Land Act. Section 41(2) provides that the decision of this Court is taken to become final, for the purposes of s 41, if no appeal from the decision is instituted within 30 days of the decision being made. Once the decision becomes final, the Valuer-General is required by s 41(1) to take action, within 60 days of the decision becoming final, to give effect to the decision, including by altering the Register of Land Values.
In this case, the Valuer-General did not institute an appeal against the Court's decision within 30 days. The Court's decision was made on 19 October 2012 but the Valuer-General did not institute an appeal, by filing its notice of appeal, until 10 December 2012, which is more than 30 days after the decision was made. The Court's decision therefore was taken to have become final at the end of the 30 day period after 19 October 2012. The operation of s 41 of the Valuation of Land Act, therefore, also corroborates that the Court's orders have no ongoing operation which can be stayed or suspended.
Thirdly, the Valuer-General's subsequent actions of, first, altering the land value of the land in the Register of Land Values under s 14DD(1) of the Valuation of Land Act and, secondly, giving a supplementary list to the Council with the altered land value under s 49(1) of the Valuation of Land Act, have given effect to the Court's decision. These actions of the Valuer-General now are the operative cause of any potential financial liability of the Council to refund to Perilya the overpayment of rates, and not the Court's decision itself. The Court's decision has no ongoing operation or effect, such as creating a right which Perilya could enforce against the Council. The right Perilya might have to seek a refund of any overpayment of rates arose once the Valuer-General altered the land value of the land in the Register of Land Values and issued the supplementary list. The right would need to be claimed in proceedings pursuant to s 14DD(2) of the Valuation of Land Act or in a restitutionary action.
In these circumstances, therefore, there is no ongoing operation of the Court's orders 2 and 3 which can be stayed.
It is not necessary, therefore, to consider whether, if I had decided there was an order with ongoing operation to be stayed, I would have done so in the exercise of my discretion. Nevertheless, I consider that, on balance, the discretionary considerations would not favour granting a stay.
I am prepared to find that the Valuer-General has identified reasonably arguable grounds of appeal, at least in relation to grounds 2 and 4, in its notice of appeal. I do not find that the prospects of success are 'very strong', as the Valuer-General submitted, but I also do not find that they are 'weak', as Perilya submitted. It is sufficient that the grounds of appeal are reasonably arguable. This is because the absence of reasonably arguable grounds of appeal is likely to be a determinative consideration against a stay application: Chen v Lym International [2009] NSWCA 121 at [15]. Nevertheless, the existence of arguable grounds of appeal is not necessarily sufficient to justify the grant of a stay: McBride v Sandland (No 2) (1918) 25 CLR 369 at 374.
I am also prepared to find that neither the Valuer-General nor the Council have delayed unreasonably in applying, by their respective notices of motion, for a stay of the Court's orders. The Court's orders were only made on 19 October 2012 and entered on 14 December 2012. The Valuer-General filed a notice of intention to appeal on 6 November 2012 and a notice of appeal on 10 December 2012. The Council filed its notice of motion seeking joinder and a stay on 10 December 2012 and the Valuer-General filed its notice of motion seeking a stay on 18 December 2012. The notices of motion were heard on 18 December 2012. These periods of time after the Court's orders were made and entered are not long. Moreover, Perilya has not pointed to any prejudice it has suffered or will suffer as a result of the Valuer-General and the Council not applying for a stay of the Court's orders until they did.
Nevertheless, I do not consider that refusal of a stay of the Court's orders 2 and 3 will cause harm to the Valuer-General, who is appealing the Court's decision, or to a third party, the Council.
Refusal to stay the Court's orders 2 and 3 would not affect in any way the Valuer-General's appeal or render it futile, or affect in any way the Valuer-General's ability to prosecute its appeal, or cause the Valuer-General to incur any financial burden. The Valuer-General has no financial interest in the outcome of the appeal. The Valuer-General is the public officer vested with the duty of valuation of land under the Valuation of Land Act. The Valuer-General does not levy or receive payment of rates and taxes that are levied by reference to the land value of the land. The Valuer-General's interests are simply in the proper valuation of land and the proper administration of the Valuation of Land Act, which interests will not be affected if a stay is refused.
Refusal to stay the Court's orders 2 and 3 will not impose irreparable harm in the event that the Valuer-General's appeal is successful. The Valuer-General will not suffer any irreparable harm for the reasons I have given above. The Council, although not a party to the proceedings, also will not suffer irreparable harm for two reasons.
First, the harm which the Council fears it might suffer is the financial consequences of having to refund any overpayment of rates by Perilya. However, for the reasons I have given earlier, the granting of a stay of the Court's orders 2 and 3 would have no effect on the right of Perilya to bring proceedings claiming a refund of the overpayment of rates by Perilya. That right has its source other than in the Court's judgment and orders. The right has arisen as a result of the actions of the Valuer-General in altering the Register of Land Values and giving a supplementary list to the Council. Staying the Court's orders 2 and 3 will have no effect on those actions or their effect. Hence, staying the Court's orders is inutile to prevent the feared financial consequences to the Council arising from Perilya bringing proceedings claiming a refund.
Secondly, on the evidence of Mr Zaknich, the financial consequences the Council says it might suffer are not likely to be suffered before the Valuer-General's appeal is heard and determined by the Court of Appeal. The financial consequences will not be suffered by Council unless and until the Council refunds the overpayment of rates (calculated by the Council to be around $6.8 million). Mr Zaknich's evidence explains the difficulty in the Council raising the funds necessary to make such a large refund and the consequences if it were to do so for the Council in funding its activities. However, before the Council would be required to pay such a refund, Perilya would need to commence proceedings and have those proceedings heard, and judgment for Perilya would need to be given. This process is likely to take considerably longer than the hearing and determination of the Valuer-General's appeal by the Court of Appeal. Moreover, the Council could apply in any such proceedings brought by Perilya against the Council for those proceedings to be stayed pending judgment in the Court of Appeal proceedings. The discretionary considerations concerning the financial consequences to the Council would have greater cogency in those proceedings than they do in these proceedings.
On balance, therefore, I would decline in the exercise of my discretion to grant a stay of the Court's orders 2 and 3.
The second order: reversal of the alteration of the Register
The second order sought by the Valuer-General and the Council is for the Valuer-General to reverse the alteration of the land value of the land in the Register of Land Values that the Valuer-General had earlier made under s 14DD(1) the Valuation of Land Act. The Valuer-General and the Council submitted that if I were to make an order staying the Court's orders 2 and 3, my order would be a 'decision on an objection or appeal under this Act' (being the Valuation of Land Act) and the Valuer-General would therefore have power under s 14DD(1)(b) of the Valuation of Land Act to make another alteration to the Register of Land Values reversing its previous alteration, which reversal would give effect to my stay decision. Perilya submits that any decision to stay the Court's orders 2 and 3 would not be a 'decision on an objection or appeal' under the Valuation of Land Act within the meaning of that phrase in s 14DD(1)(b).
I decline to make the order sought by the Valuer-General and the Council for three reasons. First, because I decline to make an order staying the Court's orders 2 and 3, there can be no basis for the Valuer-General to make an alteration to the Register of Land Values to give effect to a decision to stay the Court's orders 2 and 3.
Secondly, even if I were to have made an order staying the Court's orders 2 and 3, my stay of the Court's orders 2 and 3 would not answer the description of being a 'decision on objection or appeal under this Act' within s 14DD(1)(b). The decision referred to in s 14DD(1)(b) is clearly the substantive decision disposing of the appeal under s 37(1) of the Valuation of Land Act by making one or more of the orders in s 40(1) of the Valuation of Land Act, which orders make it necessary to make an alteration to the Register of Land Values under s 14DD(1)(b). An order staying such a substantive decision is not itself such a substantive decision.
Thirdly, in any event, I am not persuaded that the Court has power, in the circumstances of this case, to order the Valuer-General to make an alteration to the Register of Land Values by way of reversal of the alteration the Valuer-General had earlier made. None of the Court's powers to stay proceedings, or stay execution of a judgment or order, or suspend the operation of a decision or order pending an appeal, would empower the Court to order the Valuer-General to reverse the alteration the Valuer-General had earlier made to give effect to the Court's orders. The power of the Court under s 40 of the Valuation of Land Act to make orders on an appeal under s 37(1) of the Valuation of Land Act also do not include making such an order.
There is no claim in these proceedings that the Valuer-General's action in altering the Register of Land Values was outside power. To the contrary, the alteration the Valuer-General made to the Register of Land Values was a proper exercise of the power under s 14DD(1) of the Valuation of Land Act and was necessary to give effect to the Court's decision revoking the Valuer-General's valuation of the land and making a valuation of the land in place of the Valuer-General's valuation. Accordingly, the Court cannot make an order in these proceedings that the Valuer-General reverse the alteration by way of remedying some ultra vires exercise of power.
The third order: giving of supplementary list
The third order sought, orally by the Valuer General, is for the Valuer-General to give a supplementary list to the Council reflecting the reversal of the alteration to the Register of Land Values. I decline to make this order for two reasons.
First, if I neither stay the Court's orders 2 and 3 nor order the Valuer-General to reverse the alteration to the Register of Land Values, there will have been no change in the information entered in the Register, which change could found the giving of a supplementary list to the Council under s 49(1) of the Valuation of Land Act.
Secondly, I am not persuaded that the Court has power, in the circumstances of this case, to order the Valuer-General to give a supplementary list. None of the powers to stay proceedings or execution of a judgment or orders or suspend the operation of orders, or the powers under s 40 of the Valuation of Land Act, would allow the making of such an order.
The fourth order: restraining the successful party from bringing separate proceedings
The fourth order sought, orally by the Valuer-General, is to restrain Perilya from taking any step or action to recover any overpayment of rates by Perilya from the Council. The Valuer-General submits the power to make such an order lies in s 135(2)(c) of the Civil Procedure Act, which provides that the Court may make 'an order prohibiting any other person from taking any further action, either permanently or until a specified day, to enforce a judgment or order of the Court'.
Perilya submits that any proceedings Perilya might institute for a refund of any overpayment of rates paid to the Council, whether under s 14DD(2) of the Valuation of Land Act or in a restitutionary action, does not involve an action 'to enforce a judgment or order of the Court' within the meaning of that phrase in s 135(2)(c) of the Civil Procedure Act.
I decline to make an order restraining Perilya from taking action to recover any overpayment of rates paid to the Council for two reasons.
First, any action Perilya might take would involve the commencement of proceedings claiming such a refund. The right which constitutes the cause of action to recover overpaid rates arises from a source other than the Court's judgment and orders. The right may arise from s 14DD(2) of the Valuation of Land Act or it could have a restitutionary source, but it does not arise directly from the Court's judgment and orders. Perilya cannot take action directly to enforce the Court's judgment or orders, such as by the issue of a writ of execution for the levy of property for enforcement of a judgment or order for the payment of money, because the Court's judgment or orders do not order the payment of money or the refund of overpayment of rates. As I have said, the Court's orders simply revoked and made a decision in place of the Valuer-General's decision as to the land value of the land. The Court's decision did not have any effect on the rate that could be levied by the Council on Perilya unless and until, first, the Valuer-General made an alteration under s 14DD(1) to the Register of Land Values to give effect to the Court's decision and, secondly, the Valuer-General gave the Council under s 49(1) a supplementary list containing information on such alteration to the Register of Land Values. Only when those actions were taken by the Valuer-General could there be an alteration which affects the land value of the land and gives rise to there being an overpayment of the rates levied by the Council. In this case, the Valuer-General has taken both of those actions. It is the taking of those actions that gives rise to any claim Perilya might have for a refund of any overpayment of rates, not the Court's decision itself.
Hence, any action Perilya might take to claim a refund of any overpayment of rates is not an action 'to enforce a judgment or order of the Court' under s 135(2)(c) of the Civil Procedure Act.
Secondly, I am not persuaded that this Court has power to prohibit a party to proceedings in this Court, Perilya, from taking action to commence proceedings in another court to claim a refund of any overpayment of rates otherwise than by way of enforcement of this Court's judgment or orders. No party suggested that this Court would have jurisdiction to hear and dispose of any such proceedings by Perilya. As I have said, any such action would not be to enforce the judgment or orders of the Court, but would have another source of right. In these circumstances, this Court cannot make an order prohibiting Perilya from bringing other proceedings making that claim of right.
Notices of motion should be dismissed
These four orders are the only orders the Valuer-General and the Council have sought. For the reasons I have given, I decline to make any of them. The Valuer-General's notice of motion should therefore be dismissed.
The Council's notice of motion should also be dismissed. There is no utility in joining the Council to the proceedings in this Court as the only reason the Council sought to be joined was to be able to argue that the Court should make the stay and other orders that have now been sought by the Valuer-General in its notice of motion. As I have determined that those orders should not be made, there is no utility in joining the Council. Accordingly, I also dismiss the Council's notice of motion.
Order for costs not made
Perilya seeks an order that the Valuer-General and the Council pay its costs of the notices of motion. The Valuer-General's and the Council's notices of motion are in an appeal under s 37(1) of the Valuation of Land Act. Rule 3.7(2) of the Land and Environment Court Rules 2007 is applicable to appeals under s 37(1) of the Valuation of Land Act. Rule 3.7(2) provides that:
The Court is not to make an order for the payment of costs unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable ...
Rule 3.7(3) gives (without limitation) some circumstances in which the Court might consider the making of a costs order is fair and reasonable.
I do not consider the making of a costs order is fair and reasonable in the circumstances of this case. I do not consider any of the circumstances given in r 3.7(3) are applicable or that there are any other circumstances justifying the making of a costs order. Accordingly, I would not make a costs order in relation to the notices of motion.
Orders of the Court
The Court orders:
(1) The Valuer-General's notice of motion filed on 18 December 2012 is dismissed.
(2) Broken Hill City Council's notice of motion filed on 10 December 2012 is dismissed.
Decision last updated: 14 January 2013