Silkchime Pty Ltd v Valuer-General - [2022] WASC 253

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   SILKCHIME PTY LTD -v- VALUER-GENERAL [2022] WASC 253
CORAM:   TOTTLE J
HEARD:   6 MAY 2022
DELIVERED          :   9 AUGUST 2022
FILE NO/S:   GDA 15 of 2021
BETWEEN:   SILKCHIME PTY LTD
Appellant
AND
VALUER-GENERAL
Respondent

Catchwords:

Administrative law - Appeal against decision of State Administrative Tribunal - Legal unreasonableness - Correct interpretation of s 32(6) of the Valuation of Land Act 1978 (WA) - Whether State Administrative Tribunal erred in law by unreasonably concluding that the appellant had not shown reasonable cause for delay in service of objections

Legislation:

State Administrative Tribunal Act 2004 (WA), s 105
Valuation of Land Act 1978 (WA), s 6, s 7, s 26, s 28, s 29, s 32, s 33, s 35, s 36

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	K de Kerloy
Respondent	:	J F Bennett

Solicitors:

Appellant	:	Mony De Kerloy
Respondent	:	State Solicitor's Office

Case(s) referred to in decision(s):

Black v City of South Melbourne [1963] VR 34
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Quinlivan v Portland Harbour Trust [1963] VR 25
Re Geneva Finance Ltd; Quigley v Cook (1992) 7 WAR 496
Stevens v Motor Vehicle Insurance Trust [1978] WAR 232

TOTTLE J:

Introduction

On 28 January 2020 the respondent, the Valuer-General, refused to grant the appellant an extension of time for service of objections to valuations of land recorded in Land Tax Notices of Assessment issued in respect of land owned by the appellant for each assessment period (financial year) from 2005/06 to 2013/14.
The State Administrative Tribunal dismissed the appellant's application to review the Valuer-General's decision.[1] The appellant applies for leave to appeal against the Tribunal's decision.
[1] Silkchime Pty Ltd v Valuer-General [2021] WASAT 151 ('primary reasons').

The statutory framework

The Valuer-General's decision was made under the Valuation of Land Act 1978 (WA) (the Act). The long title of the Act is '[a]n Act to provide for the valuation of land and for other purposes'. Part II of the Act governs the administration of the Act. Section 6 empowers the Governor to designate a person to be the Valuer-General who, by s 7, shall have the general administration of the Act.
Part III of the Act governs the processes for determining the values of land. It includes s 26 which requires the Valuer-General to complete and maintain valuation rolls of the rateable land. By s 26(4) the valuation rolls are required to contain a description of every portion of land separately valued, the gross rental value of the unimproved value of the land as determined by the Valuer-General and the date on which the valuation comes into force and such other particulars as the Valuer‑General may…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] WASC 253
Decision Date

CaseChat Overview and Summary

Silkchime Pty Ltd sought leave to appeal from the decision of the State Administrative Tribunal (SAT) that rejected its application for relief from the payment of outstanding land tax. The SAT held that the appellant had failed to demonstrate that the decision was legally unreasonable, and that the application was not otherwise an appropriate case for relief. The appeal concerned the SAT's determination of whether it should grant the appellant relief from payment of outstanding land tax. The appellant submitted that the SAT had erred in finding that it had not demonstrated that the decision was legally unreasonable. The appellant submitted that the SAT's approach was inconsistent with the principles of legal unreasonableness. The SAT was required to consider the principles of legal unreasonableness as articulated in the authorities. The SAT concluded that the appellant had not demonstrated that the decision was legally unreasonable. The Court considered whether the SAT's conclusion that the appellant had not demonstrated that the decision was legally unreasonable was open on the evidence. The Court held that the SAT had not erred in finding that the appellant had not demonstrated that the decision was legally unreasonable. The Court held that the SAT's approach was consistent with the principles of legal unreasonableness, and that the SAT's conclusion was open on the evidence. The application for leave to appeal was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The application for leave to appeal is brought under the State Administrative Tribunal Act 2004 (WA) s 105 that provides:105. Appeal from Tribunal’s decision (1) A party to a proceeding may appeal from a decision of the Tribunal in the proceeding, but only if the court to which the appeal lies gives leave to appeal. (2) The appeal can only be brought on a question of law. (3)The appeal lies to - (a) the Court of Appeal, if the decision was made by - (i) a judicial member; or (ii) the Tribunal constituted by members who include a judicial member; (b) the Supreme Court exercising its other jurisdiction, in any other case. The background was not controversial. The following account is derived from the primary reasons,[2] and from evidence that was not controversial. [2] Primary reasons [56]. The appellant is the registered proprietor of five parcels of land located in the Perth suburb of Warwick (collectively 'the Land'). At all material times, Mr Norman Carey has been a director of the appellant. Between 24 January 2006 and 6 March 2019 the appellant was under the control of receivers appointed by first mortgagee financiers. There was protracted and bitterly fought litigation between Mr Carey and interests associated with him and the receivers. Various facets of the dispute resulted in 10 first instance and appeal judgments of this court between 2010 and 2018. The receivers paid some of the land tax due in respect of the Land between 2006/07 and 2010/11 and the balance was paid on settlement of certain court proceedings in 2011. The receivers paid no land tax or other statutory charges in relation to the Land after the 2010/11 financial year. The receivers took no steps to challenge the assessment notices issued in respect of the Land for any of the financial years between 2005/06 and 2013/14. Mr Carey wrote to the Office of State Revenue on 20 February 2014 and again on 23 January 2017 and provided updates as to the appellant's circumstances and an explanation of why the outstanding land tax had not been paid. These letters were written in response to notices that the Commissioner of State Revenue intended to take legal action in respect of the land tax then outstanding. Mr Carey wrote to the State Solicitor's Office on 27 April 2018 in reply to a letter dated 5 April 2018 and explained the appellant's circumstances and requested that an application to wind up the appellant not be made because it was his intention to pay the land tax debt as soon as the dispute with the receivers was resolved. On 26 September 2018 the Commissioner of State Revenue issued to the receivers a Land Tax Notice of Assessment for outstanding amounts for the Land in respect of the 2011/12 to 2018/19 financial years. On 30 January 2019 the State Solicitor's Office sent a letter to the appellant demanding payment of a land tax debt for the years 2011/2012 to 2018/2019 amounting to $110,271.25. On 28 February 2019 the State Solicitor's Office sent a letter to the appellant on behalf of the Commissioner of State Revenue demanding payment of $717,556 for the same years referred to in the letter of demand sent on 30 January 2019.

Ratio Decidendi

Legal Principle Established

The following principles may be extracted from the authorities that have considered legal unreasonableness:(a) Legal reasonableness or an absence of legal unreasonableness is an essential element in the lawfulness of decision-making. This is because Parliament is taken to have intended that a statutory power will be exercised reasonably.[17](b) It must be remembered that Parliament has conferred the power on the decision maker and the court's function is a supervisory one as to legality. Thus, judicial restraint is required. The concept of legal unreasonableness does not provide a vehicle for the court to remake the decision according to its view as to reasonableness and by implication finding a contrary view unreasonable.[18](c) The concept of legal unreasonableness is not amenable to minute and rigidly-defined categorisation or a precise textual formulary.[19] A more sophisticated approach is required - one that focusses on the question of whether an administrative decision is one which is within the authority of the decision‑maker. This requires close attention to be given to the relevant features of the particular statutory framework within which the authority arises.[20] Vitiating unreasonableness may be characterised in more than one way to be susceptible to judicial review.[21](d) There are two categories of legal unreasonableness. First, there are those cases in which the reviewing court identifies an underlying jurisdictional error in the decision-making process, and second, there are those cases in which legal unreasonableness may be 'outcome focussed'.[22] (e)The first category encompasses specific errors in decision‑making: disregard of relevant considerations; consideration of irrelevant considerations; attaching disproportionate weight to some factor and a lack of proportionality.[23](f)The disproportionate exercise of administrative discretion may be unreasonable simply on the basis that it exceeds what on any view is necessary for the purpose it serves.[24] (g)An outcome focussed conclusion of legal unreasonableness may be an inference drawn because the court cannot identify how the decision was arrived at, in which case the exercise of power may be seen by the supervising court as lacking 'an evident and intelligible justification'.[25] It has the character of being 'arbitrary or capricious or to abandon common sense'. Outcome focussed unreasonableness occurs in an 'area of decisional freedom'.[26](h) Legal unreasonableness is 'invariably fact dependent' and requires a careful evaluation of the evidence.[27](i)The test for determining whether a decision is to be characterised as legally unreasonable is a stringent one.[28][17] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 [26] and [29] (French CJ), [63] (Hayne, Kiefel & Bell JJ) and [88] (Gageler J).[18] Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 [8] (Allsop CJ) citing Minister for Immigration and Citizenship v Li at [30], [66] and [105].[19] Minister for Immigration and Border Protection v Stretton [10] (Allsop CJ).[20] Minister for Immigration and Border Protection v Stretton [62] (Griffiths J).[21] Minister for Immigration and Citizenship v Li [26] (French CJ) and [72] (Hayne, Kiefel & Bell JJ).[22] Minister for Immigration and Border Protection v Stretton [61(c)] (Griffith J) citing Minister for Immigration and Citizenship v Li [66] (Hayne, Kiefel and Bell JJ) and [105] (Gageler J).[23] Minister for Immigration and Citizenship v Li [72] - [74] (Hayne, Kiefel & Bell JJ).[24] Minister for Immigration and Citizenship v Li [30] (French CJ) and [73]-[74] (Hayne, Kiefel & Bell JJ).[25] Minister for Immigration and Citizenship v Li [76] (Hayne, Kiefel & Bell JJ).[26] Minister for Immigration and Citizenship v Li [28] (French CJ).[27] Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 [42].[28] Minister for Immigration and Citizenship v Li [108] - [113] (Gageler J).