Rogers & Ors v City of Armadale

[1993] HCATrans 260

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P6 of 1993

B e t w e e n -

ALLAN EDWARD ROGERS, JOHN

MURRAY PACKHAM and BRUCE

WILLIAM NOTTAGE

Applicants

and

CITY OF ARMADALE

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 27 AUGUST 1993, AT 2.29 PM

Copyright in the High Court of Australia

Rogers 1 27/8/93

MR G.I. CHITTY: If it please the Court, I appear for the

applicants. (instructed by C.G. Nash)

MR D.H. NADEBAUM: If it please the Court, I appear for the

respondent. (instructed by Corrs Chambers

Westgarth)

MASON CJ: Yes, Mr Chitty.

MR CHITTY: With Your Honours' leave, I will omit

paragraphs 1 to 4 of the applicants' outline of

argument and go straight to paragraph 5.	I think
paragraphs 1 to 4 are uncontentious.

MASON CJ:	You might proceed, I think, immediately to that part of your argument that contends the decision of
the Full Court was wrong.
MR CHITTY:	It is submitted on behalf of the applicants that

the court below erred in law when it found that a

limitation contained in section 543(5) of the Local

Government Act applies to section 559(2) of the

Local Government Act so as to limit the rating

years in which amended notices of assessment could issue for the current year plus the preceding five

years. The applicants submit that the amended

notices of assessment ought to issue without any

limitation because the subject-matters of the two

provisions, sections 543 and 559(2), are distinct
and different. Section 543 addresses amendments in

the rate book whereas section 559(2) addresses

amended notices of assessment. Consequently, any

limitation found in section 543 does not apply to

section 559(2).

GAUDRON J:  Does not the context of section 559(2) make it

clear that it is ancillary to the amendment of the

rate book?

MR CHITTY: In my submission, no. Section 559(2) simply

says that the local authority:	shall issue a notice of an amended
assessment ..... when, in consequence of the allowance ..... an appeal ..... amendment of an assessment is necessary.

It simply does not address the question of the rate

book.

GAUDRON J: But subsection (1) which immediately precedes it

is concerned with the amendment of the rate book,

is it not?

MR CHITTY: That is correct.

Rogers 2 27/8/93

GAUDRON J: And in circumstances where there has been an

appeal.

MR CHITTY: Correct.

GAUDRON J:  Why would one not read subsection (2) as

ancillary to what is in subsection (l)?

MR CHITTY:	Because in this particular instance, 543, which must be read in conjunction with 559, refers only
to the rate book. It is the applicant's submission
that there is no necessary nexus between the rate
book and rate assessments.

GAUDRON J: But why would there not be?

MR CHITTY:  In this particular case there is not because the

obligation to issue amended notices arose out of

orders made by the Land Valuation Tribunal.

Whether or not there is an entry in the rate book

is, in my submission - - -

GAUDRON J:	Is there anything in the Act to suggest that there can be amended rate notices following upon an
alteration and evaluation without a prior amendment
of the rate book?

MR CHITTY: That specific question is not addressed by the

Local Government Act, so it is very much open as to

whether you must have an entry in a rate book

before you can have a notice. In my submission, it

simply is not necessary in these situations where

an appeal has been successful and it is by force of

the orders that the amendment to the assessments is

necessary. Whether there are amendments to the

rate book and how long any limitation that may

apply is another question. In these circumstances

where section 543, which contains the limitation,

addresses the rate book only, I say it simply

cannot apply to section 559(2) which deals with the

amended assessments.

GAUDRON J: Yes, I understand that, thank you.
MR CHITTY:	It is the applicant's submission - and this can

be found in paragraph 17 - that 559(2) of the Act

compels the respondent to issue amended assessment

notices for all rating years wherein valuations

were quashed and substituted by the orders of the

tribunal and any limitation contained in

section 543 is limited to entries in the rate book

only. If that proposition is not correct, and that

is not conceded, then 543, even though it refers

only to rate books, does somehow limit 559(2) which

deals with assessments. Then the applicants submit

that the court below erred further and construed

the phrase "the current year" in section 543 to

Rogers 27/8/93

mean the year in which the event imposed the

obligation was current.

MASON CJ: Just before you leave that, can I direct your

attention to the bottom of page 48 of the

application book, where there is a reference to

543(l)(f) and then part of the provisions of

543(l)(f) are set out and there is a reference to

section 559 there.	Does that correctly set out
543(l)(f)?

MR CHITTY:  I am sorry, Your Honour, I did not catch the

page of that.

MASON CJ: At the foot of 48 of the application book. At

the top of 49, there purports to be set out some

part of 543(l)(f) where there is a reference,

specifically, to 559.

MR CHITTY:  Yes.

MASON CJ: That is correct, is it?

MR CHITTY:  I believe so, Your Honour, yes. The simple

point that the applicants make is that any

reference to 559 must be read down to the reference

at 543.

MASON CJ: Yes, I follow that. Now, you are moving to the

second point.

MR CHITTY: 

The Court below decided that the event which

imposed the obligation were the orders made by the
Land Valuation Tribunal on 26 September 1991, and

accordingly the 1991/1992 rating year was the
current year for the purposes of both 559 and 543.

This construction of the current year leads to

an unjust and capricious result. There is obvious

justice in repaying the applicants the overpayments

that they made in consequence of the error of a
third party.	The decision is capricious in that

the effluxion of time dislocates the result of the

appeal from the subject-matter of the appeal,

namely, valuations in certain rating years.

The effect of this decision is that, to some

degree at least, the conduct of the parties, in

particular the opponents, can affect the result,

and obviously is open to abuse. In any event, it

is common for proceedings in the tribunal to take
more than one rating year to resolve. This is
because the rating notice against which objection

may be taken usually issues in October of the

rating year; the rate is struck and imposed on

1 July; the notice issues in October. There are 42

days within which to object to that assessment.

Rogers 4 27/8/93

The objection is dealt with. If the objection is

dealt with to the dissatisfaction of the ratepayer,

then they have 42 days within which to institute an

appeal to the tribunal, though it is fairly easy to

see that it is not unusual for at least half the

rating year to have expired before the appeal is

even filed in the tribunal.

DEANE J: But you have got five years, have you not, on the

argument against you?

MR CHITTY:  Indeed, there is the current year and the

proceeding five years, however, the argument is

with what is the current year.

DEANE J:  I follow that, but even if you be wrong, you have

still got five years.

MR CHITTY:  But they are not five years to which the appeals

relate. The appeals were instituted in 1986 rating

year against the 1985/1986 assessments.

DEANE J: Yes, I follow that, but assume the objections are

lodged, the appeals come on, and so on; as long as

finality is reached within five years on the

particular objection, effect can be given.

MR CHITTY:  Yes, I take the point, and that is valid in

respect of the case where there is only one rating

year, the subject of the appeals. In this case, it

was found to be a matter of general importance and

the entire 1985 general valuation for that district

came under scrutiny; it was found to be improper.

It then opened the way for scrutiny to the 1981 general valuation, which again was found, or agreed

between the parties, to have certain defects, which

opened the door to look at the general valuation in

1978, I believe it was.

So, while it perhaps commenced in respect of

one rate a year, when the problems were found and

wrong valuations, and substitute them with correct	investigated, it opened the way to affect changed
ones for much more than that one rate a year.

MASON CJ: But it is difficult to avoid the conclusion in

the immediate context that the power to alter, that

is referred to in (5), colours the reference to

"current". The natural reading is to read

"current" as relating to the exercise of the power,

and subsection (5) presumably is applying to a

variety of cases, cases where the power is being exercised voluntarily, and other cases where the

power is being exercised in consequence of a

decision of the tribunal.

MR CHITTY:	I am sorry, I do not quite follow the point.
Rogers	27/8/93
MASON CJ:	I was suggesting that subsection (5) relates to

cases other than the kind of case with which you

are concerned, cases where the council is acting of

its own motion.

MR CHITTY:  In my submission, that is not helpful in these circumstances. We do have a decision from a

tribunal which does affect rating years, 18 of

them, from 1971/72 through to 1989/90.

DEANE J:  Does it affect your valuation and your rates, or

everyone's valuation and everyone's rates?

MR CHITTY:  Yes. When the matter started, there was

evidence led and not contradicted, that there were
18 valuation districts in the State to which this

defect applied.

DEANE J: But it would be too late, would it not, for other

ratepayers to take advantage of the point?

MR CHITTY:  I am not certain on that question.

DEANE J:  Does that not go to your argument of justice. I

mean, one can fully understand your argument if A

has got money from B, but A was not entitled to,

and therefore A should get it back. It is not

quite so powerful if one ratepayer can get a refund

of rates for the last 15 years which all the other

ratepayers of that particular year have to fund.

MR CHITTY:	I think the answer to that is that that option of objection, appeal, was open to all other
ratepayers.  They chose not to exercise that
option.

DEANE J: But some of the ratepayers you would have to fund

for 15 years, on your argument, may not even have

been ratepayers. The liability is going to be

spread on ratepayers at the time of, and subsequent

to the time the council has to make the refund.

MR CHITTY: That is correct, but I would say there are two

considerations there, and one is the fact that that
liability of the council will be spread, very much

so, upon all ratepayers, so the impost will be

insignificant in the overall scheme of things.

DEANE J:  That depends. What if it is the biggest ratepayer

in the whole area?

MR CHITTY:  I suppose the question then becomes: why should

the innocent and blameless ratepayers not be

recompensed because of the mistake of a third

party?

Rogers 6 27/8/93

DEANE J:  I follow what you are putting. All I am

suggesting is that in a context where existing

ratepayers probably have to bear the burden of any

refund that the council has to make, it is not

self-evident that there is any injustice in

limiting it to the current year and five years back

on the basis that the ratepayer, by taking all

steps, can get his objection and appeal on within

that period without any trouble.

MR CHITTY:  If there was no dislocation between the outcome

of the appeal and the years which were the subject
of the appeals - and quite clearly here there is -

in our submission, that is a legal nonsense to have

that dislocation, to have that lack of

relationship, between the outcome of an appeal and

the subject-matter which was appealed. As to

whether or not current ratepayers should somehow

bear this burden, as I said, the burden would be
spread.

The other alternative is to allow the local

authority to retain a windfall, quite
inappropriately, in my submission. The local

authority was aware for many years that these

valuations were being questioned and could have

made provision as it went but chose not to. In my

submission, it is not appropriate to impose the

burden, if you like, on the innocent and blameless

people who quite rightly brought their appeal and

were vindicated in the appeal.

DEANE J:	I follow what you say, yes.
MR CHITTY:	I do not think I need to go into the point about

the fact that appeals can take some time to get to

fruition. Another example of how this construction

dislocates the result from the appeal is that in

this case the appeal was heard in one rating year

and the decision delivered in the next rating year.

Such a construction can clearly lead to injustice,
and it does in this case.	The current year, in the

applicants' submission, ought to be construed to

mean the rating year in which the appeals in the

tribunal were filed and commenced, because any

statutory time limits which are referred to in the

judgment of Mr Justice Murray apply only to the

filing of the appeals, not to their continuing

prosecution or ultimate resolution.

This gives the result that these statutory

time limits will ensure that the appeals are

generally filed and commenced in the current rating

year, but there are no statutory limits to ensure

the appeals will be prosecuted and resolved in the

current rating year. Of course, much again depends

on the conduct of one's opponents.

Rogers 27/8/93

The construction which says that the current

year is the current year of the appeal would ensure
that if there are years in which the land has been

rated too highly as a result of wrongly inflated

valuations and ultimately those valuations are

quashed and substituted, then there will be

repayment to the ratepayer in respect of the rating

years in which overpayments were made. Those are the applicants submissions but, with the leave of the Court, I would seek briefly to make three

comments on the respondents' submissions.

MASON CJ: Yes.

MR CHITTY:  The respondents say that the questions of law

posed are unlikely to arise again, but then outline

four sets of circumstances where such a question of

law could arise again. Further, in paragraph 2(b)

of the respondents' outline, it is contended that

it is only possible to issue amended notices if the

rate book is so amended. As a generalization that

would be true but, in this case, we submit, the

obligation to issue fresh notices of assessment

arose from, and crystallized upon, the tribunal's
orders. And lastly, having had personal
involvement for quite some years with these

matters, I take exception to the contention in

paragraph 3(b)(iii), that the delays were solely

the result of the applicant's behaviour. No

evidence has been led on this point below because

the point has not been taken, but there can be

ample evidence, if this application for special

leave is successful, there can be ample evidence

presented in the appeal proper to show that that is

simply not the case.

MASON CJ:  Mr Chitty, one would have expected to find

somewhere in the legislation a specific provision

that required the authority to amend the rate book

in consequence of a decision of the valuation

tribunal; is there no such provision?

MR CHITTY:  The only way you can construe a provision is to

marry section 559(1) with section 543(l)(f).

MASON CJ:  I see.

MR CHITTY: But that affects the rate book only.

MASON CJ:  So that although 543(l)(f) is expressed in terms

of granting a power to do something, in this

instance the decision of the tribunal is regarded

as requiring the authority to exercise that power.

MR CHITTY:	I would agree with that in that section 559(1) would seem to give that compulsion.
Rogers	27/8/93

MASON CJ: Well, 559 can be regarded as imposing that

obligation because that is what is says:

shall make any amendment of the rate book

which shall be necessary in consequence of -

a decision -

under this Act or the Valuation of Land Act

1978.

MR CHITTY:  Yes, the applicants have no argument with the

fact that the rate book should be amended when

559(1) is read with 543(l)(f).

GAUDRON J: And you have got no difficulty with the notion

that it can only be amended for five years?

MR CHITTY:  The current year and the preceding five years,

yes. The question is, "What is the current year?"

The applicants say, "Well, it must be the year that

is appealed against," not the year in which the

outcome of the appeal comes.

MASON CJ: Yes, Mr Chitty, is that all you want to put to

the Court?

MR CHITTY:  Those are my submissions, if the Court pleases.

MASON CJ: Thank you. Mr Nadebaum.

MR NADEBAUM:  May it please Your Honours, the respondent has

filed with the Court an outline of submissions, in

three parts, and nothing the applicant has said to
the Court would lead me to make comments over and

above those listed in those submissions, unless the

Court had any queries in relation to them. I would
simply be reading from them, and I assume

Your Honours have cited the document?

MASON CJ: Yes.

DEANE J: In section 543(5), what meaning to the word "so"

do you give?

MR NADEBAUM:	We would say that what subsection (5) relates to is the entirety of the matters mentioned in 543,
of which there are a number, whereby amendments can
be made, that is, the reasons set out in 543(l)(a), (b), (c) and so on.

DEANE J: Well now, that mean that 543(5) cannot apply

directly to 559(1) if the word "so" confines it to

the powers of alteration conferred by the earlier

subsections of section 543.

Rogers 9 27/8/93

MR NADEBAUM: Well, Your Honour, the respondents' submission

would be that, in view of 559 being specifically

mentioned in 543(l)(f), that links the entire

section.

DEANE J:  Now, that is what I am missing, 543(l)(f). I was

looking at a copy of it which was blurred.

MR NADEBAUM:  The addition of the section 559 to 543(l)(f)

came about by way of an amendment after 559 was

brought into being by way of an earlier amendment

to the Act. So, having linked that, the

respondent says that, as it is linked there - - -

DEANE J:	You have answered my query, thank you.
MR NADEBAUM:	Thank you.
MASON CJ:	Is that all you wish to put to the Court?
MR NADEBAUM:	Yes, in the absence of any further queries by

Your Honours.

MASON CJ: Yes, thank you. Mr Chitty, do you want to

address the Court in reply?

MR CHITTY: Only to say, Your Honours, that I think it has

emerged quite clearly that, because of the
difference in the subject-matter between section

559(2), it can be seen that any amendments which

have to be made as a consequence of 559(1) via 543

simply do not apply to amended notices and,

accordingly, there is no time limit imposed.

MASON CJ: Thank you.

MR CHITTY: If the Court pleases.

MASON CJ:	The Court is not persuaded that the proposed appeal would enjoy sufficient prospects of success
to warrant the grant of special leave to appeal.
The application is therefore refused.
MR NADEBAUM:	May it please Your Honours, the respondent

would seek a cost order against the applicant.

MASON CJ: Yes, you do not oppose that, Mr Chitty?

MR CHITTY:	No, Your Honours.
MASON CJ:	The application is refused with costs and the

Court will now adjourn sine die.

AT 3.00 PM THE MATTER WAS ADJOURNED SINE DIE

Rogers 10 27/8/93