Perpetual Trustees (Australia) Limited v Valuer-General

[1999] NSWLEC 93

Land and Environment Court

of New South Wales

CITATION:	Perpetual Trustees (Australia) Limited - v - Valuer-General [1999] NSWLEC 93
PARTIES	Applicant: Perpetual Trustees (Australia) Limited
Respondent: Valuer-General
NUMBER:	30161 of 1998
CORAM:	Lloyd J
KEY ISSUES:	:- statutory construction - whether amending Act has retrospective operation
LEGISLATION CITED:	statutory construction - whether amending Act has retrospective operation
DATES OF HEARING:	03/24/1999
DATE OF JUDGMENT DELIVERY:	04/22/1999
LEGAL REPRESENTATIVES:	Applicant: M D Young Solicitors: Norton Smith & Co Respondent: J A Ayling Solicitors: I V Knight, Crown Solicitor

JUDGMENT:

Contents

Para

The facts 2

The legislation 12

The applicant’s submissions 17

The respondent’s submissions 28

Conclusions 33

Orders 65

_______________IN THE LAND AND Matter No: 30161 of 1998

ENVIRONMENT COURT Coram: Lloyd J
OF NEW SOUTH WALES Decision date: 22/04/99

PERPETUAL TRUSTEES AUSTRALIA LTD
Applicant

v

VALUER-GENERAL
Respondent

JUDGMENT



HIS HONOUR:

1. This is an appeal under the Valuation of Land Act 1916, s 38(1) against the decision of the Valuer-General on an objection to a valuation made under that Act. The matter comes before me for the separate determination of a preliminary question of law. The valuation in question is a supplementary valuation made on the basis of amendments to the Valuation of Land Act which were made after the making of a general valuation. The question of law is essentially whether it was lawful for the Valuer-General to make a supplementary valuation of the land as a consequence of and based upon changes to the Valuation of Land Act which were made after the making of the general valuation.

The facts

2, The applicant was at all material times the head lessee (from the Sydney Cove Redevelopment Authority) of land being lot 421, deposited plan 793830, used as an underground commercial carpark over which is erected a high rise building known as Quay West, 98 Gloucester Street, The Rocks. The land is rateable under the Local Government Act 1993 and is also subject to land tax.

3. The Valuer-General carried out a general valuation for the valuation district of the City of Sydney as at base date 1 July 1996 ( Valuation of Land Act , s 14A(1)(a)). The land in question was valued at $262,000. The “relevant date” under the Valuation of Land Act for the general valuation was 17 September 1966, being the date on which the valuation was made (s 14A(7)(a)). Notice of the valuation was forwarded to the applicant on or about 30 October 1996 (s 29) and was on or about the same date included in a valuation roll (s 16) and thus became effective (s 18).

4. The valuation was required to conform with s 6A(1) of the Valuation of Land Act , which is as follows:

6A (1) The land value of land is the capital sum which the fee-simple of the land might be expected to realise if offered for sale on such reasonable terms and conditions as a bona-fide seller would require, assuming that the improvements, if any, thereon or appertaining thereto, other than land improvements, and made or acquired by the owner or the owner’s predecessor in title had not made.

5. On 1 November 1996 the Valuation of Land Amendment Act 1996, No 67 commenced (“the Amending Act”). The amendments included the addition of sub-clause (d1) in the definition of “land improvements” in s 4, as follows:

‘Land improvements’ means:

…

(d1) Without limiting paragraph (d), any excavation, filling, grading or levelling of land for the purpose of the erection of a building, structure or work, not being for the purpose of irrigation or conservation;

…

6. The Amending Act also inserted s 26A which relates to the valuation of parcels of land that form part of the site of a building. These amendments were made in order to overcome the effect of this Court’s decision in Perpetual Trustee Company Limited v Valuer-General (1994) 83 LGERA 206. In that case Bannon J held that the excavation which had been made for the purposes of the underground carpark was not a “land improvement” for the purpose of s 6A of the Act.

7. The effect of the amendment to the definition of “land improvements” was that a valuation made in conformity with s 6A(1) must now include the value of the excavation for the purpose of creating the underground carpark. This meant that the value of the land occupied by the carpark was, following the amendment, considerably greater than its value before the definition was amended.

8. As a consequence of these amendments, the Valuer-General determined that a fresh valuation should be made. On 24 December 1996 the Valuer-General made a new valuation and this date became the “relevant date” (ss 14A(7), 19). The value was assessed as at the same base date as the original valuation (s 14A(1)(b)(i)). The new valuation valued the land at $5,900,000.

9. On or before 26 February 1997 the Valuer-General made the necessary changes to the valuation roll (s 17). On 27 February 1997 the Valuer-General forwarded a supplementary valuation list to Sydney City Council (s 49).

10. On or about 15 March 1997 the Valuer-General sent a second notice of valuation to the applicant valuing the land as at base date 1 July 1996 at $5,900,00 (s 29). On or about 23 April 1997 the applicant lodged with the Valuer-General an objection to the valuation (s 29(3A)). The Valuer-General thereafter amended the second valuation to $5,600,000. On 28 July 1997 the applicant appealed to the Court against the Valuer-General’s decision (s 38).

11. The applicant contends that the second valuation is void because -

(a) land value as at base date 1 July 1996 was required to be determined in accordance with the Act as in force as at that date; and the purported valuation came into existence because of, and was made on the basis of, the amendments made to the Act which came into operation on 1 November 1996; and

(b) further and in the alternative, the Valuer-General had no power to revalue the land as at the same base date on the basis of legislative changes occurring after the base date.

The legislation

12. The terms of s 6A of the Valuation of Land Act are set out in paragraph 4 above.

13. The dates at which the value is to be determined are set out in s 14A. Subsection (1) of that section relevantly provides:

14A (1) Subject to this section, where a valuation of the land value or the assessed annual value of any land or stratum is made on or after 1st July 1978, the value determined shall:


(a) if the valuation is part of a general valuation commenced on or after 1st July 1978, be the land value or the assessed annual value, as the case may be, of the land or stratum as at the first day of July in the year in which the general valuation was commenced; or

(b) if the valuation is not part of a general valuation, be the land value or the assessed annual value, as the case may be, of the land or stratum, as at the first day of July in the year in which the last general valuation of the land value or the assessed annual value, or both, as the case may be, in respect of the valuation district in which the land or stratum is situated:

(i) was, in the case of a supplementary valuation (other than a valuation made for the purposes of section 27(3)), commenced:”


14. Section 14A(7) defines the term “the relevant date” as follows:

‘The relevant date' means:


(a) in the case of a valuation of any land or stratum that is part of a general valuation or is a supplementary valuation (other than a valuation made for the purposes of section 27(3)), the date on which the valuation is made;

…

15. Section 17 enables the Valuer-General to amend valuation rolls in a number of circumstances, including “whenever in the opinion of the Valuer-General any sufficient cause renders amendment necessary”.

16. Section 19 provides:

A new valuation may be made by the Valuer-General at any time with respect to any parcel or portion of any parcel of land or any stratum or any portion or the whole of any district; and such new valuations shall be so made whenever necessary in order that the valuation rolls shall, so nearly as may be, represent correct values and ownership of all the lands and strata entered therein .

The applicant’s submissions

17. Mr M D Young, who appears for the applicant, submits that whenever a general valuation is carried out, that valuation must be of the land value of the particular land as at the first day of July in the year in which that general valuation was commenced (s 14A(1)(a)). Similarly, in the case of a supplementary valuation, that valuation must be of the land value as at the first day of July in the year in which the last general valuation of the land was commenced (s 14a(1)(b)(i)). In the present case that date was 1 July 1996.

18. The amending Act did not come into operation until 1 November 1996. It is not in issue that this amendment would have made a substantial difference to the valuation of the subject property had it become law before 1 July 1996. Mr Young submits that since the amendments came into operation four months after the base date, it is pertinent to consider whether they had retrospective effect.

19. Mr Young submits that the general rule of the common law is that an amending enactment is prima facie to be construed as having a prospective operation only. This presumption prevails unless a contrary intention appears with reasonable certainty from the amending Act itself. In Maxwell v Murphy (1975) 96 CLR 261 Dixon CJ said (at 267):

The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.

20. Mr Young also relies upon Fisher v Hebburn Ltd (1960) 105 CLR 188 in which Fullagar J said (at 194):

There can be no doubt that the general rule is that an amending enactment - or, for that matter, any enactment - is prima facie to be construed as having a prospective operation only. That is to say, it is prima facie to be construed as not attaching new legal consequences to facts, or events which occurred before its commencement.

21. Mr Young further submits that the presumption against retrospectivity arises where so to read the legislation would impinge on a person’s rights or duties. He refers to Carr v Finance Corp of Australia Ltd (1982) 150 CLR 139 in which Mason, Murphy and Wilson JJ held (at 157) that: “ the common law presumption against imputing to the legislature an intention to interfere retrospectively with rights which have already accrued does not call for a narrow conception of a right ."

22. In addition to the above mentioned cases Mr Young submits that the common law presumption is if anything stronger in the area of amending legislation relating to taxation. In Commissioner of Stamps (Qld) v Wienholt (1915) 20 CLR 531 Issac J held (at 540) that in the absence of either express words or necessary implication, the Stamp Acts will not be construed retrospectively. And in Commissioner of Stamps (Qld) v Hopkins (1945) 71 CLR 351 Dixon J held (at 373):

In 1918, a definition of ‘settlement’ was enacted which made a settlement of any form of property dutiable; but I do not think that this amendment would operate retrospectively to make the instrument completed in 1907 ‘chargeable’ within the meaning of s 4A.

23. Mr Young further submits that s 30 of the Interpretation Act 1987 applies in this case. That section provides:

(1) The amendment or repeal of an Act or statutory rule does not -


(a) revive anything not in force or existing at the time at which the amendment or repeal takes effect; or

(b) affect the previous operation of the Act or statutory rule or anything duly suffered, done or commenced under the Act or statutory rule; or

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule; …

24. As to the possibility of s 19 of the Valuation of Land Act as being a source of power Mr Young submits that nothing in s 19 would permit a new valuation to be made as at 1 July 1996 on the basis of a definition of “land value” and other changes to the Act which did not come into operation until 1 November 1996. Under s 14(1)(b)(i) the “new valuation” must still be of “ the land value...as at the first day of July in the year in which the last general valuation of the land value...was....commenced” .

25. Finally, Mr Young submits that there is an obvious focus in s 19 on valuation rolls. Additionally it is submitted that s 19 does not contain anything within it which would permit the respondent to change land values simply because of amendments, such as those to s 4, so as to give those amendments retrospective operation through the means of a new valuation.

26. In reply to the respondent’s submissions Mr Young submits that it is “right” to have one’s land value on the valuation roll and receive a statutory notice of valuation. Mr Young also submits that the cases relied upon by the respondent (to which I refer below) are distinguishable.

27. Whilst conceding that in many cases the general rule against retrospectivity does not apply to procedural statutes , Mr Young submits that the Valuation of Land Act 1916 is not a procedural Act. In Re Killen and Crown Lands Act (1981) 8 NTR 8 (Muirhead J) is a case which, he submits, illustrates the principle.

The Respondent’s Submissions

28. Mr J A Ayling, appearing for the respondent, submits that the use of the so-called “base date” is a primary technique of the Act so as to maintain the necessary parity of values in valuation districts for rating and like purposes. During the period between general valuations all revenue collection based on land values proceeds on the fiction that land value remains as it was on 1 July in the year in which the last general valuation was commenced. The consequence in this case is that by virtue of the definition of “supplementary valuation” (s 4(1)) and the operation of s 14A(1)(b)(i), the value had to be expressed as at 1 July 1996. The other paragraphs of subsection 14A(1) demand similar fictional assumptions. So understood there is no retrospective operation at issue.

29. Mr Ayling relies upon the decision of the Full Court of the Supreme Court of Victoria in Robertson v City of Nunawading [1973] VR 819 as an example of a case where an amendment to a statute operated so as to effect past acts or events. I discuss this case more fully below. Mr Ayling also relies upon the judgment of the Privy Council in Director of Public Works v Ho Po Sang [1961] AC 901, referred to in Robertson v City of Nunawading . In that case the Judicial Committee, on a reference from Hong Kong, stressed the clear distinction to be made between rights of the kind to which both the common law and the typical codification thereof (for example, s 30(1) of the Interpretation Act ) afford protection from retrospective effect and mere states of fact giving rise to expectations or “hopes”. Mr Ayling submits that in the present case, what is said to require protection is merely an expectation or hope. He further submits that no substantive right can, on the principles discussed in Ho Po Sang have resided in the present applicant, just as no right to expect to be immune from the amending legislation was found to reside in the plaintiff in Robertson .

30. Mr Ayling further relies upon the judgment of Gobbo J in Geschke v Del-Monte Home Furnishers Pty Ltd [1981] VR 856. In that case Gobbo J held that a trader could be found to have engaged in unfair conduct proscribed by the Market Court Act 1978 (Vic) by having regard to conduct which pre-dated the Act. Mr Ayling further relies on Re A Solicitor’s Clerk (1957) 2 All ER 242, (1957) 1 WLR 1219, referred to by Gobbo J, in which a prohibition against employment as a solicitor’s clerk did not operate against a clerk convicted for larceny. The clerk had not stolen from his employer or his employer’s client. When the Act was amended to cover a conviction for larceny, the Court held that the amendment covered this clerk and no retrospective operation was in question. Mr Ayling submits that the present case raises similar questions and demands similar conclusions.

31. Mr Ayling submits that there is a number of other cases which are authorities for the principle that reliance on past events does not involve the retrospective operation of statutes. He refers to La Macchia v Minister for Primary Industry (1986) 72 ALR 23 (Full Court, Federal Court of Australia), per Toohey J at 26-27 and French J at 33; Commissioner for Corporate Affairs v X and Y [197] VR 460 (Full Court, Supreme Court of Victoria) per Marks J at 464/465; J R Exports Pty Limited v Australian Trade Commission (1987) 14 FCR 161 (Full Court, Federal Court of Australia) per Fox J at 163-165; Stott v Minister for Immigration (1985) 59 ALR 747 (Federal Court) per Toohey J at 750; and Ungar v City of Malvern [1979] VR 259.

32. Finally Mr Ayling re-emphasised his submission that no question of retrospective operation arises. The consequences of the amendment to the valuation roll relates to future actions, albeit actions which presume “events” giving rise to the dating back of the valuation.

Conclusions

33. It is convenient to examine, firstly, the various authorities relied upon by Mr Ayling. In the first of those, Robertson v City of Nunawading , a developer had on 4 June 1971 submitted to the council a plan for an industrial subdivision. At that time the Local Government Act 1958 (Vic) empowered a council to request security for payment of a monetary contribution or to execute an agreement to dedicate land only in respect of a residential subdivision, failing which it was entitled to refuse to “seal” the plan of subdivision. On 16 June 1971 the Act was amended to allow such requests to be made also in respect of industrial subdivisions. The council made a request, with which the developer did not comply on the ground that the amendment to the Act did not apply in respect of plans submitted before it came into operation. The Full Court (Winneke CJ, Gowans and Starke JJ) held (at 825) that “ the taking of legislative action in a field where previously there was none is not an impairment of a right” which infringed the principle that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards a matter of procedure. Accordingly, the Full Court held that the Council had the power to request the security which it had sought from the developer.

34. I do not think that this judgment is of any value for present purposes. The Full Court went on to say (at 825-826):

If the new provision had the effect of subjecting the owner or the person submitting the plan to an impost or exaction for which he would not previously have been liable, there might be stronger grounds for saying that the provision should be treated as submitting him to the impost or exaction merely on account of the character he had assumed in submitting the plan prior to the change, and, therefore, as creating an obligation in respect of a past event. But the provision did not empower the council to enforce the transfer or payment but only to request it, and it did not empower the council to direct the request to the person who had submitted the plan but only to the owner for the time being of the land. The new provision cannot, therefore, be brought within the scope of the principle on this account.

…

The mere locus standi of a member of the community to take advantage of an enactment is not a right within the principle of being discussed, for otherwise there could be no effective repeal or amendment of any such enactment: cf. Abbott v Minister of Lands, [1895] AC 425. At p 431]. There must be a specific right. Resort to the enactment by the making of an application under it which looks to an expectancy of benefit from the application is not itself productive of such a right. The applicant, by reason of the mere launching of the application, acquires no vested right to have the application determined irrespective of the repeal of the enactment. The making of the application sets in train a procedure, but in the absence of some right otherwise existing, there is no right to have the procedure continued in the face of the repeal of the enactment under which it was instituted .

35. The statements from the judgment which I have quoted above are relevant to the present case. In the present case, the valuation formed the basis of a liability on the part of the applicant to pay local government rates and land tax. Unlike the developer in Robertson v City of Nunawading, the valuation forms the basis for an impost or exaction which the applicant was and is obliged to meet. In other words, the new valuation had the effect of subjecting the applicant to an impost or exaction for which it was not previously liable, based on the difference between a valuation of $262,000 and a valuation of $5,600,000. In Robertson there was no power by which the council could enforce payment of the security. It could only request it and then decline to refuse to seal the plan of subdivision if it was not complied with. As already noted, in the present case the applicant was and is under a compulsion to pay. The applicant is thus subject to a liability which the law in this case has defined by reference to a past event, namely the date of 1 July 1966. Accordingly it seems that the general principle described by Dixon CJ in Maxwell v Murphy and which I have quoted (in paragraph 19) above applies to the facts of this case.

36. In short, the question in Robertson was whether any existing rights were affected by the amending legislation in question. It was held that the developer did not have any existing right. That is not the case here. The present applicant is subject to an existing liability which is affected by the amendment made to the Valuation of Land Act . As I have said, the principle stated by Dixon CJ appears to apply to the facts here.

37. Similarly, the judgment of the Judicial Committee in Ho Po Sang , upon which Mr Ayling relies, is of no value for present purposes because of the finding in that case that the plaintiff had no existing right which could be affected.

38. In Geschke v Del-Monte Home Furnishers Pty Ltd , the Market Court Act 1978 (Vic) commenced on 1 June 1979. The Act provided in s 16(1) as follows:

Where the Court is satisfied that a trader has repeatedly engaged in unfair conduct within the meaning of s 15 it may make an order prohibiting the trader from engaging in such conduct.

A question which had to be determined in the case was whether proscribed conduct should be restricted to conduct occurring only after the Act came into operation. Gobbo J held that the legislation in question did not come within the principle that may be extracted from the judgments in Maxwell v Murphy . Gobbo J said (at 859):

This is not a case where rights or liabilities are affected in any meaningful way, nor is it a case where accrued or vested rights are altered. It is at most a case where the trader, by reason of past events, may become amenable to control that would not otherwise be open. But the legislation does not make past breach of contract any less or any more a breach of contract. It may as a result of the legislation be possible to base future action, namely possible restraint from further unfair conduct, on the antecedent unfair conduct.

The above view draws support from those cases that illustrate use of antecedent facts as a base for future action or that approve reliance on past history as an indication of present fitness. Thus in R v Vine (1875) LR 10 QB 195 the Act in question provided that every person convicted of felony “shall forever be disqualified from selling spirits by retail and no licence shall be granted to any person who shall have been so convicted …” It was held that the appellant who had been convicted of a felony before the Act was automatically disqualified on the passing of the Act .

39. It seems to me that the case is thus no more than an authority for this: in determining whether to make an order prohibiting a trader from engaging in unfair conduct, it was permissible to have regard to antecedent conduct for the purpose of determining whether that trader had repeatedly engaged in such conduct. As Gobbo J observed, cases such as Re A Solicitor’s Clerk were concerned with past history as an indication of present fitness. I thus accept Mr Ayling’s submission that Geschke is not really a case about the retrospective operation of a statute.

40. In La Macchia v Minister for Primary Industries the appellant was the holder of a master fisherman’s licence and the holder of a fishing boat licence. On 13 June 1995 he was convicted of an offence against s 13(1)(i) of the Fisheries Act 1952 (Cth). On 31 August 1995 the Fisheries Act was amended to enable the Minister to cancel a licence if the holder of the licence is convicted of an offence against the Act. On 14 October 1986 the Minister cancelled the licences. Mr La Macchia argued that since the power did not exist at the time of his conviction, it was exercised retrospectively. Toohey J (with whom Bowen CJ agreed) held (at 26) that while the Minister could not have given a notice prior to the amendment coming into operation, he was not constrained thereafter to rely upon a conviction that itself occurred after the amendment came into operation: the Minister’s order did not have retrospective effect simply because it relies on conduct that occurred before the power existed. French J, relying on Re A Solicitor’s Clerk , held (at 33) that the use of the power conferred by the amending Act to cancel Mr La Macchia’s licence does not rely on any retrospective construction of the amending Act.

41. It seems to me that the present case is distinguishable from Geschke , Re A Solicitor and La Macchia for the reason that the valuation in the present case does have a retrospective effect. Although the valuation is one which is made after the commencement of the amendment to the Act, the valuation itself must be of the land as at 1 July 1966. I do not derive any great assistance from these cases.

42. In Commissioner for Corporate Affairs v X and Y (1987) VR 460, the Commissioner sought orders under s 541(3) of the Companies (Victoria) Code for the examination of two former receivers and managers of a company in respect of events which occurred before the commencement of s 541. The Full Court of the Supreme Court of Victoria held that an order under s 541(3) of the Code is procedural in nature and persons may be examined in relation to matters which occurred before its commencement. Marks J (with whom Murphy and McGarvie JJ agreed) described (at 464) s 541 as merely an alteration in the law as to the “mode” by which it may be demonstrated that any fraud or negligence etc had previously occurred or may have occurred. In his view (at 466) s 541 of the Code operates prospectively.

43. In the present case, however, the alteration in the law is not merely as to the mode by which the valuation is to be carried out. It is an alteration to the basis for the valuation and thus an alteration to the basis upon which the rates and tax upon which it is made is to be calculated and levied. It seems to me that it is thus an alteration in substance rather than of procedure. I thus do not think that Commissioner for Corporate Affairs v X and Y is of much assistance in the present case.

44. The decision of the Full Court of the Federal Court in J R Exports Pty Ltd v Australian Trade Commission (1987) 14 FCR 161 is not, I think, an authority which supports Mr Ayling’s submissions. In that case Fox J held that a statutory right to have an administrative decision reconsidered and a further right, in the event of dissatisfaction with such reconsideration to seek review by the Administrative Appeals Tribunal, was not an accrued right within the meaning of s 8(c) of the Acts Interpretation Act 1901 (Cth) (which is the equivalent of s 30(1)(c) of the Interpretation Act 1987 (NSW)). Beaumont J held to the contrary, that it was such a right. Sheppard J did not find it necessary to decide the question.

45. In Stott v Minister for Immigration & Ethnic Affairs (1985) 59 ALR 747, Mr and Mrs Stott had arrived in Australia on 1 November 1981 on a temporary entry permit with permission to work. On 29 September 1982 they made application to remain in Australia as permanent residents. These applications were refused by the Minister on 13 May 1983. There was a subsequent reconsideration and a further refusal on 19 June 1983. In his reasons for decision, the Minister said that he had regard to a new policy which came into effect on 6 April 1983, that is, a policy that had not been in existence when the application was made but which was in existence when it was determined. Toohey J said (at 750) that this was not a case of an amendment to a statute, so that s 8 of the Acts Interpretation Act 1901 (Cth) did not apply. Nevertheless Toohey J was prepared to approach the case by analogy to that of an accrued right entitling an applicant to insist that his application be determined by the Minister in accordance with the policy in force at the time the right accrued. Toohey J (at 750) applied Robertson v City of Nunawading , namely that the making of an application which sets in train a procedure does not give rise to an accrued right to have the procedure continued in the face of the repeal of the enactment under which it was instituted. For the reasons to which I have referred above, that is not the case here, where the present applicant is under a liability which is affected by the amendment to the legislation and the amendment is one of substance and not of mere procedure.

46. In Ungar v City of Malvern (1978) VR 259, an owner of land applied to the council under the Melbourne Metropolitan Planning Scheme to use land as a car park. The council refused the application and the owner appealed to the Town Planning Appeals Tribunal. By the time the appeal came on for hearing the planning scheme had been amended so as to make it no longer permissible to use the land for a car park. The relevant provision in the Town & Country Planning Act 1961 (Vic) provided that upon publication of an amendment to a planning scheme in the Government Gazette -

(a) It shall be the duty of the responsible authority to observe the requirements of the scheme and to enforce observance of the requirements of the …. scheme by every other person;

(b) thereafter all use and development of land within the area included in the …. scheme shall be in conformity with the … scheme .

47. The Full Court of the Supreme Court of Victoria (Young CJ, Menhennitt and Crockett JJ), applying the Victorian equivalent of s 30 of the Interpretation Act , held that the law to be applied by the Appeals Tribunal was the law as it existed at the time the appeal came to be determined: as the Appeals Tribunal had a discretion as to whether or not it would grant permission, the question was open and unresolved, so that no right or privilege had been acquired by or accrued to the appellant.

48. In my view the facts in the present case are more akin to Shire of Lilydale v Albion Reid Pty Ltd (1966) VR 481, which was referred to by the Full Court in Ungar v City of Malvern and which the Full Court found to be distinguishable from that case. The Full Court said of Shire of Lilydale v Albion Reid Pty Ltd (at 266):

There a municipal council had refused an application for a permit under an interim development order to use land for extractive purposes. An appeal was taken to the Minister, who at that stage was the appellate tribunal. Before the appeal was heard by the Minister, the interim development order was replaced by a planning scheme which prohibited the use of the land for the purpose for which the permit was sought. In his reasons for his decision Adam, J. took the view that the combined effect of s.33(2) of the Town and Country Planning Act , which deals with the position where a planning scheme replaces an interim development order, and the provisions of the then s 22(3) of the Act produced the result that the Minister had jurisdiction to grant the permit. Section 22(3) then provided that a permit issued after the determination of an appeal was to be deemed to have been issued on the date of the original determination unless the Minister should otherwise direct.

49. Thus, notwithstanding that there had been a change in the law to prohibit the use of the land for the purpose for which the permit was sought, the fact that the permit was deemed to have been issued on the date of the original determination meant that the law to be applied was the law as at such date.

50. Similarly, in the present case irrespective of when the valuation is made it is to be the value of the land as at 1 July in the year in which the last general valuation of the land was commenced. In applying the reasoning in Shire of Lilydale v Albion Reid Pty Ltd it would seem that in the case of a valuation deemed to have been made on 1 July 1996, the law to be applied is the law as at that date.

51. In other words, whilst the Valuer-General was entitled to make a fresh valuation and amend the valuation roll at any time (ss 17, 19 Valuation of Land Act ) and to furnish a supplementary list to the relevant authorities (s 49), the value of the land nevertheless had to be expressed as at 1 July 1996 (s 14A(1)(b)(i)). The fact that the value had to be expressed as at that date is the fact which I find to be determinative. If the value had to be expressed as at a date later in time, as for example at the date upon which the valuation is made, then there may have been more force in Mr Ayling’s submissions. In that event the authorities on which Mr Ayling relies may have had more relevance.

52. As Mr Ayling correctly observed, the issue for determination is whether the valuation carried out after 1 November 1996 was invalid because in adopting a base date of 1 July 1996 it nonetheless took account of changes in the law which occurred on 1 November 1996.

53. I have referred (in paragraphs 19-22 above) to Mr Young’s reliance upon the general rule that a statute is prima face to be construed as having a future operation only and not as having retrospective effect. The general rule is, however, subject to two established exceptions. It does not apply if the statute either expressly or by implication provides otherwise. And it does not apply to a procedural statute or to statutes of a procedural character (examples of which are those regulating practice and procedure, as the Supreme Court Rules or the Land & Environment Court Rules ).

54. In Mathieson v Burton (1971) 124 CLR 1, Gibbs J (at 22) adopted not only Dixon CJ’s statement of the common law principle in Maxwell v Murphy (quoted in paragraph 19 above), but also adopted the following statement of principle in In Re Athlumney; Ex Parte Wilson (1898) 2 QB 547 at 551-552:

Perhaps no rule of construction is more firmly established than this - that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only .

55. The general principle and the distinction between statutes which modify or abolish substantive rights or liabilities and those which regulate practice and procedure is explained by Fullagar J in Maxwell v Murphy as follows (at 285-286):

The general rule on which the respondent relies is perhaps as well established as anything in English law. It is that a statute is prima facie to be construed as not having a retrospective operation. Two typically succinct statements of the rule may be cited. In Moon v Durden (1848) 2 Ex. 22 [154 ER 389] Alderson B said that in construing statutes the general rule is that “they are not to be supposed to apply to a past, but to a future, state of circumstances ” Moon v Durden (1848) 2 Ex., at p 40 [154 E R at p 397]. In Gardner v Lucas (1878) 3 App Cas 582) Lord Blackburn said:- “ Prima facie, any new law that is made affects future transactions, not past ones” Gardner v Lucas (1878) 3 App Cas at p 603 . It is worthy of note that the word “retrospective” does not occur in either of these statements, but it has been used in many statements of the general rule. It may, of course, be said with some force that to construe the statute of 1953 in the present case as extending to all actions commenced after it came into force is not really to give it a restrospective operation. But this is simply a matter of terminology. I think that the word “retrospective” has acquired an extended meaning in this connexion. It is not synonymous with “ ex post facto”, but is used to describe the operation of any statute which affects the legal character, or the legal consequences, of events which happened before it became law. See Kraljevich v Lake View & Star Ltd , per Dixon J.

The established rule, however, is subject to an established exception. It is said not to apply to “statutes dealing with procedure” - “statutes of a procedural character”. The exception like the rule, has been stated in various forms. In Wright v Hale (1860) 6 H & N 227 [158 ER 94] Channell B said: - “In dealing with Acts of Parliament which have the effect of taking away rights of action, we ought not to construe them as having a retrospective operation, unless it appears clearly that such was the intention of the legislature; but the case is different where the Act merely regulates practice and procedure” Wright v Hale (1860) 6 H & N at pp 231, 232 [158 ER 94, at p 96]: cf Gardner v Lucas (1878) 3 App Cas 582 at p 603, per Lord Blackburn. A consideration of the cases generally cited in this connexion has led me to think that the distinction is probably best stated by saying that it is between statutes which create or modify or abolish substantive rights or liabilities on the one hand and statutes which deal with the pursuit of remedies on the other hand. In the former class of case there is a presumption against retrospective operation in the sense explained above. In the latter class of case there is no such presumption: on the contrary, the presumption is that the enactment applies in all proceedings commenced after it has became law, and it may be right to construe it as applying even in proceedings commenced before it became law.

56. It seems to me that neither the Valuation of Land Amendment Act 1996, which inserted paragraph (d1) in the definition of “land improvements” in the principal Act, nor the principal Act itself (the Valuation of Land Act 1916) is a procedural statute. They are both statutes which create or modify substantive rights or liabilities, rather than statutes which deal with the pursuit of remedies. In applying the distinction identified by Fullagar J (in the passage which I have quoted in paragraph 55 above) in Maxwell v Murphy , I am thus inclined to the view that this is a case about the retrospective operation of an amending Act and that the presumption against retrospectivity applies. That is to say, the amendment to the definition of “land improvements” does not operate retrospectively so as to apply to a valuation to be determined as at 1 July 1996, being a date prior to the enactment of the amendment.

57. I am reinforced in this view by the fact that the amending Act is silent as to whether it is intended to operate retrospectively. I therefore consider myself to be bound by what was accepted by Gibbs J in Mathieson v Burton (as set out in paragraph 54 above): “ If the enactment is expressed in language which is fairly capable of either interpretation, it should be construed as prospective only ”.

58. I am further reinforced in this view because both the Valuation of Land Amendment Act 1996 and the principal Act are statutes which relate to taxation. The valuations made thereunder form the basis for the exaction of local government rates and for land tax. As Mr Young submits and the authorities that he cites (in paragraph 22 above) show, in the absence of express words or necessary implication, the presumption against retrospectivity of amending legislation is stronger in the case of such statutes. This fact further distinguishes the present case from those relied upon by Mr Ayling.

59. Finally, I am of the view that s 30 of the Interpretation Act relating to the amendment of an Act applies in this case. I am mindful of the considerations which led Sheppard J to avoid having recourse to s 8(c) of the Commonwealth Acts Interpretation Act in J R Exports Pty Ltd v Australian Trade Commission (at 165):

The application of that provision to a given case often gives rise to difficulty. As was said by the Privy Council in Sri Lanka Insurance Co Ltd v Ranasinghe [1964] AC 541 at 552, the distinction between what is and what is not “ a right ” for the purposes of a provision such as s 8 must often be one “of great fineness” .

Despite these difficulties, in applying s 30 I think that the amendment in the present case falls within s 30(1)(c) of the Interpretation Act . The effect of that provision is that the amendment in the present case does not affect an obligation or liability acquired, accrued or incurred under the Act. It cannot affect a valuation which, pursuant to s 14A(1)(b), must be of the land value as at 1 July 1966, being a date prior to the amendment.

60. Before concluding I should refer to Re Killen and Crown Lands Act (1991) 8 NTR 8, upon which Mr Young relies, which illustrates the operation of the principles discussed above and in particular the operation of a provision such as the equivalent of s 30 of the Interpretation Act . In that case Mr Bryce Killen was the lessee of two pastoral leases. On 13 July 1979 the Minister’s delegate notified the lessee that conditions of the leases had not been complied with and that the leases were thus liable to forfeiture. The lessee was required to furnish reasons for non-compliance. The letter was written pursuant to s 24A(1) of the Crown Lands Ordinance . Subsection (2) of that section provided that the Administrator, if satisfied with an explanation, could waive the breach and pursuant to subsection (3) if not so satisfied or if he considered non-compliance wilful, could forfeit the lease. On 10 August 1979 the lessee submitted his explanation to the Minister’s delegate. On the same day assent was given to an Act which omitted s 24A(1) and substituted a new subsection which provided that a lease may be forfeited after 28 days’ notice for breach of conditions set out in the notice. An Act comes into operation on the day on which the assent is given, at the commencement of that day. On 30 October 1979 the Minister wrote to the lessee and advised that he considered no real effort had been made to comply with the covenants of the lease, that such non-compliance was wilful and that the lease was accordingly forfeited pursuant to s 24A(3).

61. The lessee argued that the forfeiture was contrary to statute and cannot stand because the Minister had failed to comply with s 24A(1) of the Act, namely he had failed to give 28 days’ notice of the intended forfeiture. Counsel for the lessee argued that although the matters which led to forfeiture had occurred before the alteration to the legislation, the old scheme was, as it were, struck down by the amendment: to this extent counsel argued that the new provisions apply retrospectively.

62. After referring to the judgments of Dixon CJ and Fullagar J in Maxwell v Murphy and to Pearce’s Statutory Interpretation in Australia , Muirhead J said (at 10-11):

Having considered the cases I very much doubt whether the amendment can be classified as procedural only, and the presumptive rule of construction is against giving it operation so “as to impair the legal character or legal consequences of events which happened before it became law” (See Deposit and Investment Co Ltd v Greenaway [1969] VR 714).

Be that as it may, that is an issue I do not think I am now called upon to decide, as I consider the matter is governed by the Interpretation Act 1978. Section 12 provides, inter alia ,: “The repeal of an Act or part of an Act does not … affect a right, privilege, obligation or liability acquired, accrued or incurred under an Act or the part of the Act so repealed, …

63. Muirhead J held that he was satisfied that there had been a substantive repeal of s 24A(1), that the Interpretation Act served to preserve the statutory right of the Minister, in this case to forfeit the lease under s 24A(3) and the new provision which prevents forfeiture without 28 days’ notice did not apply. As indicated in paragraph 60 above, this is an illustration of an amending Act effecting a substantive change and which thus did not operate retrospectively.

64. I therefore find that the valuation in the present appeal made by the Valuer-General on 24 December 1996 and notified to the applicant on or about 15 March 1997 is void. This is not to say that the Valuer-General cannot make an amendment to the valuation rolls under s 17 of the Valuation of Land Act , or make a fresh valuation under s 19 of that Act. If the Valuer-General does do, however, a valuation of the land as at a base date of 1 July 1996 it must conform with the legal requirements applicable to a valuation carried out as at that date. Although the matter comes before me as a preliminary question of law, this finding is determinative of the appeal. It is therefore appropriate that an order be made allowing the appeal.

65. Accordingly I make the following orders:

1. The appeal is allowed and the objection to the valuation is upheld.

2. The valuation of the land being lot 421 in deposited plan 793830 made by the Valuer-General on 24 December 1996 and notified to the applicant on or about 15 March 1997 is set aside.

3. Liberty to apply.

4. The exhibits may be returned.