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 determine. Section 28 provides the valuation rolls are available for public inspection and s 29 provides that a member of the public may obtain a certified copy of an entry in a valuation roll.
Part IV of the Act contains provisions for objections to valuations and for a review by the Tribunal of the decision of the Valuer-General in respect of an objection. Objections are governed by s 32 and relevantly it provides:
32.Objections to valuation
(1) Any person liable to pay any rate or tax assessed in respect of land who is dissatisfied with a valuation of such land made under Part III, may serve upon the Valuer-General or any rating or taxing authority a written objection to the valuation -
(a) in the case of land the subject of a general valuation, within 60 days after the date on which the making of the valuation was notified in the Government Gazette under section 21 or section 22; and
(b) in any case where the valuation is the basis of the assessment by a rating or taxing authority of any rate or tax, within 60 days after the issue of such an assessment.
…
(3)An objection to a valuation of land may be made on the ground that the valuation is not fair or is unjust, inequitable or incorrect, whether by itself or in comparison with other valuations in force under this Act.
…
(6)The Valuer-General may, for reasonable cause shown by a person entitled to make an objection, extend the time for service of the objection for such period as the Valuer-General considers reasonable in the circumstances and whether or not the time for service of the objection has already expired.
(7) The Valuer-General shall, with all reasonable despatch, consider any objection and may either disallow it or allow it, wholly or in part.
(8) The Valuer-General shall promptly serve upon the person by whom the objection was made written notice of his decision on the objection and a brief statement of his reasons for that decision.
Section 33 governs the procedure for reviewing a decision of the Valuer-General on an objection and s 35 governs applications to the Tribunal to review a decision of the Valuer-General to refuse to extend time for service of an objection or for service of a notice requiring the Valuer-General to refer a valuation to the Tribunal for a review. Section 35 provides:
35. SAT review of refusal to extend time for objection or review
(1) A person who is dissatisfied with a decision of the Valuer-General to refuse to extend the time for service of an objection against a valuation or for service of a notice requiring the Valuer-General to refer the valuation to the State Administrative Tribunal for a review may serve on the Valuer-General a notice requiring the Valuer-General to refer the decision to refuse to extend time to the State Administrative Tribunal for a review.
(2) Upon receipt of such notice the Valuer-General shall promptly refer the decision to the State Administrative Tribunal for a review.
(3) The Valuer-General is to effect the reference by forwarding the notice to the executive officer of the State Administrative Tribunal together with the objection and a copy certified by or on behalf of the Valuer-General of -
(a) the decision to refuse to extend the time; and
(b) the reasons, if any, for the decision.
The appeal
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 factual background
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.
The receivers retired on 6 March 2019 following settlement of the various disputes.
On 22 March 2019 the appellant's solicitors sent a letter to the State Solicitor's Office in response to the demand for payment of outstanding land tax of $717,556. The appellant's solicitors explained that its directors were in the process of updating its financial records and asked for 13 weeks to respond to the State Solicitor's letter. The appellant's solicitors requested that the Commissioner of State Revenue not issue a statutory demand for payment until the appellant could obtain documents, prepare accounts and provide a substantive response to the State Solicitor.
On 25 March 2019 the State Solicitor's Office agreed to extend the appellant's time to respond to the demand for payment of land tax to 25 June 2019.
On 16 July 2019 the appellant objected to the valuations of the land for each of the 2005/06 to 2019/20 financial years.
On 15 November 2019 the appellant lodged an application for an extension of time for service of an objection to the assessment of the unimproved value for the Land for the period 2005/2006 to 2018/2019.
On 28 January 2020 the Valuer-General refused to grant the appellant an extension of time for service of an objection in respect of each year in the period between 2005/06 and 2013/14. Extensions of time for the making of objections to the assessments for the 2014/2015 to 2018/2019 financial years were granted.
On 6 February 2020 the appellant served notice on the Valuer-General requesting the decision to refuse the application to extend time for the objections to the 2005/2006 to 2013/2014 assessments be referred to the Tribunal for review.
On 16 March 2020 the Valuer-General referred the appellant's request for review of his refusal decision to the Tribunal.
The basis of the appellant's objection to the assessed values of the Land was that no account had been taken of the adverse effect on value of the requirement for a structure plan under the local planning scheme. Before the Tribunal the appellant contended that a structure plan was required before the Land could be developed and adduced valuation evidence of the effect of this requirement on the unimproved value of the Land. The Valuer-General contended that there was no requirement for a structure plan and adduced valuation evidence that supported the assessed values.[3]
[3] Primary reasons [39] - [49].
The Tribunal's reasons
The Tribunal identified the issues for determination as follows:[4]
Issue 1:Whether Silkchime has shown 'reasonable cause' (as required by s 32(6) of the [Act]) for the time for service of objection to be extended for one or more of the years [from 2005/2006 to 2013/2014]?
Issue 2: If 'yes', should the Tribunal exercise its discretion to extend the time for service of the objection for one or more of the years [from 2005/2005 to 2013/2014]? What factors, if any, can be taken into consideration by the Tribunal in exercising its discretion?
[4] Primary reasons [51].
The Tribunal was required to resolve a dispute between the parties as to the construction of s 36(2) of the Act. The appellant contended, in effect, that if a person entitled to make an objection established 'reasonable cause' the Valuer-General could exercise their discretion to extend the time for service of an objection. The Valuer-General contended that the establishment of a reasonable cause was not determinative of a whether an extension of time should be allowed and, even if satisfied of the existence of a 'reasonable cause' there were other factors that the Valuer-General could take into consideration in exercising the discretion including the length of the delay, the prospects of success and whether there has been any material prejudice.[5]
[5] Primary reasons [60] - [69].
The Tribunal considered the meaning of the expression 'reasonable cause' and referred to the authorities in which the meaning of the expression had been considered.[6] The Tribunal concluded:[7]
In our view, s 32(6) of the VL Act is specific. It requires the ValuerGeneral (and the Tribunal on review) in considering whether to exercise his discretion (or the Tribunal's discretion on review) to extend the time to object to be limited to the express requirements of the section in the context of the statutory framework of the VL Act for objections to assessments which are required to be made within 60 days after the date of gazettal of the valuation or upon issue of an assessment by a rating or taxing authority. This means, in our view, the ValuerGeneral (and the Tribunal on review) must be satisfied that the person entitled to make the objection (in this case, Silkchime), has shown 'reasonable cause', that is a cause which a reasonable person would regard as sufficient, a cause consistent with a reasonable standard of conduct, the kind of thing that might be expected to delay the service of an objection by a reasonable person.
[6] Quinlivan v Portland Harbour Trust [1963] VR 25; Black v City of South Melbourne [1963] VR 34; Stevens v Motor Vehicle Insurance Trust [1978] WAR 232.
[7] Primary reasons [70].
The Tribunal concluded that the appellant had not shown 'reasonable cause' in its delay in objecting to the assessments.[8] The Tribunal's reasons for reaching this conclusion were expressed as follows:[9]
[91]It is Mr Carey's evidence that he was aware of the land tax debt some time shortly after the letter of the State Solicitor's Office dated 28 February 2019. Further, Mr Carey indicated that he knew how land tax was calculated and that he understood what the outstanding tax bill suggested about the valuation of the Land. This is because he gave evidence that he thought the valuation of the Land should have been three times less, perhaps in the order of $200,000 as he was roughly familiar with the value of the Land. Further, Mr Carey explained that in 2009 the directors took proceedings against the receivers which resulted in one set of receivers being forced to retire in 2011 and the other set of receivers in 2019.
[92]In cross-examination, Mr Carey testified that he was unable to identify the exact date he received a copy of the assessment notices but stated it was some three to four months approximately after the receivership in 2019 had ended. This is such a vague response, in our view, when Mr Carey gave evidence that he had raised the question of obtaining the land tax assessments with his lawyer on a weekly basis after the receivership was concluded and control of Silkchime was reverted to him and the other directors on 6 March 2019. This can only lead us to the conclusion, in the context where ordinarily a person is expected to act within 60 days after becoming aware of the assessment notices, that Mr Carey failed to act promptly once he was aware of the outstanding land tax per the letter of 28 February 2019. In our view, it was open to Mr Carey on or shortly after 6 March 2019, when the receivers retired and control of Silkchime was returned, to contact the State Solicitor's Office to obtain a copy of the assessments or to telephone the Office of State Revenue (details of which were provided in the letter of 28 February 2019) to obtain a copy of the assessments.
[93]Counsel for the Valuer-General submits that it is difficult to accept Mr Carey's evidence that he was aware of the Commissioner of State Revenue's notice of intention to commence legal action against Silkchime (as set out in the letter of 20 February 2014), and knew of an outstanding land tax debt, but was unaware of the amount due, when he wrote to the Commissioner of State Revenue in 2014 and 2017 and to the State Solicitor's Office in 2018 in his capacity as a director of Silkchime, where he expressed an intention to pay the outstanding tax when he could.
[94]In our view, Silkchime (as distinct from Mr Carey in his capacity as a director) had the opportunity to make an objection via its receivers. The evidence before us is that the receivers paid some of the assessments from 2006/07 to 2010/11 and chose not to object to any of the assessments. Whether the directors of Silkchime (who at the time had no power because of the receivership) would have objected is of no consequence, in our view.
[95]Further, in our view, Silkchime (by its receivers), or Mr Carey did have the opportunity to access the unimproved valuations of the land anytime after the commencement of the receivership period through the operation s 29 of the VL Act. For example, Mr Carey could have requested the unimproved valuations in 2014 and 2017 when writing to the Commissioner of State Revenue and in 2018 when writing to the State Solicitor's Office. On obtaining the unimproved valuations, it would have been a relatively simple exercise to calculate or at least estimate the land tax liability for any of the years in the relevant period. That information could have been provided to the receivers if the valuations were considered to be incorrect and a request made to lodge an objection for Silkchime.
[96]Submissions made by counsel for Silkchime that the receivers did not advance Silkchime's interest and had no real concern regarding issues concerning the proper value of the Land unless it happened to suit the interests of their appointer, do not, in our view, support the conclusion of a reasonable justification for the receivers not objecting to the assessment notices. There is no evidence before the Tribunal that the legal proceedings taken against the receivers extended to a failure on the part of the receivers to object to the valuation of the Land relevant to this proceeding.
[97]Ultimately, we find that Silkchime has not shown 'reasonable cause' in its delay in objecting to the assessments for any of the years in the relevant period. (footnotes omitted)
[8] Primary reasons [97].
[9] Primary reasons [91] - [97].
The Tribunal elaborated on the conclusion expressed in [92] in a later passage of the reasons as follows:
[112]There is also a delay of some four months from March 2019 when the receivers were forced to retire until the objections were lodged in July 2019 which according to Mr Carey was because he did not have the books and accounts or control of the company for 13 years. Counsel for Silkchime say that whilst there is a delay of four months from March 2019 to July 2019, the delay is understandable in the circumstances of Mr Carey being kept out of the company for 13 years and then having to go back in and to try to run the company dealing with numerous issues, not the least of which, was the debt in excess of $700,000 for land tax.
[113]We do not accept that Silkchime lodged objections at the first reasonable opportunity after retirement of the receivers in about March 2019. A further delay of four months from March 2019 to when the objections were finally lodged in July 2019 reflects that Silkchime did not attend to the objections promptly.
The Tribunal's conclusion that the appellant had not established a 'reasonable cause' coupled with its view of the correct construction of s 32(6) of the Act (as recorded at [30]) meant it was unnecessary for the Tribunal to consider whether it may take into account other factors in exercising its discretion. Nevertheless the Tribunal expressed the view that even if it had found that the appellant had established a 'reasonable cause', it would not have exercised any discretion to extend the time to object to the assessments.[10] In reaching this further and alternative conclusion, the Tribunal considered the length of the delay,[11] the reason for the delay (though it accepted that this was another way of referring to the asserted 'reasonable cause'),[12] material prejudice[13] and whether the appellant had an arguable case.[14]
[10] Primary reasons [108].
[11] Primary reasons [109] - [113].
[12] Primary reasons [114].
[13] Primary reasons [115] - [119].
[14] Primary reasons [120] - 126].
Grounds of Appeal
The appellant's ground of appeal was as follows:
1.The Tribunal erred in law by unreasonably concluding that the appellant had not shown 'reasonable cause' (as required by s 32(6) of the Valuation of Land Act 1978 (WA) for the time for service of objections to valuations contained in the Land Tax Notices of Assessment issued for each year from 2005/06 to 2013/14 inclusive (Valuations) to be extended. That conclusion was beyond the bounds of reasonableness having regard to the following facts:
(a)between 24 January 2006 and 6 March 2019 the Appellant was under the control of receivers (Receivers);
(b)the Receivers did not lodge any objection to any of the Valuations because, it may be inferred, that lodgement and pursuit of such objections was not necessary or convenient for the attainment of the objectives for which the Receivers were appointed and they had no duty, either to their appointers or the appellant, to do so;
(c)between 24 January 2006 and 6 March 2019 neither the directors nor the shareholders of the appellant had any residual power or authority to lodge objections to the Valuations;
(d)Mr Carey immediately engaged solicitors;
(e)the appellant lodged the objections to the Valuations on 16 July 2019. Contrary to the Tribunal's finding at J[92], the time taken by the appellant to lodge the objections, following the retirement of the receivers on 6 March 2019, was not unreasonable having regard to the following facts:
(i)Mr Carey engaged solicitors on 20 February 2019 in connection with [the appellant's] land tax and Valuations and in anticipation of the retirement of the receivers;
(ii)Mr Carey resumed his duties as a director of the appellant immediately upon the retirement of the receivers;
(iii)upon resuming his duties he obtained from the receivers the records which they had kept during the receivership. He found the records did not accurately describe the cash receipts and payments and failed to record any accruals. He consequently requested the sources documents from the receivers. Upon receipt of those documents, Mr Carey said he collated and verified [the appellant's] financial information;
(iv)Mr Carey also became aware in or about late February 2019 of a letter of demand dated 19 January 2019 sent by the State Solicitor's Office on behalf of the Commissioner of State Revenue which demanded the appellant pay a land tax debt (which was based on the Valuations);
(v)that letter stated that the amount of the land tax debt owed by the appellant for the years 2011/2012 to 2018/2019 totalled $110,271.25;
(vi)Mr Carey also became aware of a second letter dated 28 February 2019 sent by the State Solicitor's Office also on behalf of the Commissioner of State Revenue which stated that the amount of land tax debt owed by the appellant for the same years totalled $717,556;
(vii)on or about 22 March 2019 the appellant's solicitors wrote to State Solicitor's Office, to explain, as was the case, that the appellant was in the process of obtaining the appellant's books and records, preparing up to date financial statements and requesting 13 weeks to investigate the situation, obtain relevant information (and in particular from the receivers) and respond substantially to the demand;
(viii)on 25 March 2019 the State Solicitor's Office granted the appellant an extension to 25 June 2019;
(ix)on 16 July 2019 the applicant lodged the relevant objections.
(f)in reaching its conclusion the Tribunal took into account the following irrelevant considerations:
(i)the opportunity that the Receivers had to lodge objections to the Valuations - J[94];
(ii)the directors (including Mr Carey) being able to obtain the unimproved valuations of the land the subject of the Valuation, estimate the land tax liability and request the receivers to lodge objections to the Valuations - J[95];
(iii)no evidence of legal proceedings being taken against the receivers for failure to object to the Valuations - J[96].
The true and only reasonable conclusion, having regard to the relevant facts referred to in paragraphs (a) to (d) and the matters referred to in paragraph (e) above, is that the appellant had shown reasonable cause in its delay in objecting to the Valuations.
Summary of the appellant's principal contentions
The appellant's contentions were to the following effect:
(a)The 'objection, appeal and extension rights' included in the Act recognised four important matters:
(i)valuations should be 'fair, just, equitable and/or correct';
(ii)the Valuer-General is not infallible (and is not deemed to be infallible by the Act) and can on occasions arrive at valuations which are not 'fair, just, equitable and/or correct';
(iii)valuations which are not 'fair, just, equitable and/or correct' can be rectified, either by the Valuer General themselves or the Tribunal or this Court; and
(iv)the expiry of time for making an objection or seeking a review is no bar to rectification, provided that the party making an objection or seeking a review is able to show reasonable cause for the delay.
(b)The Tribunal's conclusion that the appellant had had the opportunity to object via the receivers was not defensible when regard was had to the facts, particularly, that the receivers were privately appointed by mortgagees and their primary duty was to their appointors, and thus, they had no interest in objecting to the valuations.
(c)The time taken by the appellant to object to the valuations after the receivers had retired could not reasonably have been assessed as constituting a failure to act promptly. The appellant points to 'the myriad of things' that needed to be dealt with so that the directors could obtain a clear understanding of the appellant's financial position. It draws support for this contention by referring to the fact that the Office of State Revenue was prepared to extend the appellant's time for dealing with the unpaid land tax by 13 weeks. The critical point made on the appellant's behalf was expressed as follows:[15]
[15] Appellant's submissions filed on 7 April 2022 [39].
In circumstances where the appellant’s directors:
(a)were excluded from any involvement in the affairs of the appellant for a period of 13 years and had no information about the appellant’s financial position;
(b)did not have the appellant’s books and records and were unsure of its financial position upon retaking control following the retirement of the Silkchime Receivers;
(c)promptly sought to obtain those books and record from the Silkchime Receivers within weeks of regaining control and promptly instructed solicitors to obtain copies of the assessment notices in order to gain a proper understanding of the appellant’s financial position and the claims against it, including the claim for unpaid land tax; and
d)through the appellant’s solicitors, promptly sought and obtained from the Office of State Revenue a 13-week extension to deal with the unpaid land tax (which was initially stated to be in an amount of $110,271.25 but was subsequently corrected to an amount of $717,556 and which undoubtedly added to the need to gather the relevant information in order obtain (sic) a proper understanding of the basis of liability);
the period taken to consider whether to pay or object to the assessment notices and to formulate and lodge objections of 4 months was not, and could not reasonably be assessed as constituting, a failure to act promptly - particularly as the Office of State Revenue itself agreed that a 3 month period to review matters was acceptable.
(d)The appellant acknowledges that it, acting through the receivers, retained the power to object to the valuations but contended that the Tribunal's reliance on the existence of the legal power to object misses the fundamental point that the receivers did not do so, and the appellant could do nothing about it. The appellant emphasises the receivers were not under a duty to act in the best interests of the appellant. That receivers might, in an appropriate case, pursue an objection is not a bar to finding that the receivership in this case constituted a reasonable cause.
(e)The reasoning in [95] of the primary reasons was unintelligible. The appellant's main point was that the reasoning assumed that the appellant's directors knew that the valuations were incorrect when there was no justification for that assumption.
(f)The reasoning in [96] of the primary reasons was also unintelligible.
Summary of the respondent's principal contentions
The Valuer-General's contentions were to the following effect:
(a)The rights of appeal conferred by s 105 of the State Administrative Tribunal Act are limited to a question of law, and where an appeal lies on a question of law the subject matter of the appeal is the question of law.[16] By reference to these provisions the Valuer-General made these points: a question of mixed law and fact is not a question of law; the appeal was in the nature of an application for judicial review; questions of fact were for the Tribunal and the court must be aware of challenges to factual findings being dressed up as questions of law.
(b)Ultimately the question for this court was whether the Tribunal's decision was so unreasonable that no reasonable Tribunal could have come to it.
(c)The grounds upon which the Tribunal rejected the appellant's primary submission that the receivership constituted a 'reasonable cause' is to be found in [92] and [94] of the primary reasons and the views expressed in [95] and [96] are ancillary findings not determinative of the ultimate outcome.
(d)The finding that Mr Carey failed to act promptly after the receivers retired was a finding open to the Tribunal having regard to the fact that he was aware of the outstanding land tax from the letter of 28 February 2019, he had resumed control of the affairs of the appellant on 6 March 2019 and could have obtained the assessments from either the State Solicitor's Office or the Office of State Revenue and ordinarily a person entitled to object must do so within 60 days of 'becoming aware of the assessment notices'.
(e)The Tribunal was correct to focus on the continuing right of the appellant as distinct from its directors to object to the assessments. That the receivers may have chosen not to object because it did not suit the interests of their appointers could not form a satisfactory justification for the appellant's failure to object to the assessed values for the purposes of s 32(6) of the Act. The plain fact was that they did not object when they had the opportunity to do so. Whether that decision was a correct one, from the perspective of the applicant's directors or any other person, was not relevant to the review.
(f)Even if reasonable cause was established the Valuer-General had a residual discretion to refuse an extension of time and it would be open to this court to have regard to the views expressed by the Tribunal on the discretionary matters to refuse to exercise the discretion to extend the time for objections.
[16] State Administrative Tribunal Act 2004 (WA), s 105(2).
Legal unreasonableness
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).
Analysis and disposition
The appellant's primary argument before both the Tribunal and this court rested on the proposition that the 'reasonable cause', which delayed the making of objections, was that it was subject to a receivership for approximately 13 years during which period its directors were involved in protracted and bitter litigation with the receivers.
To evaluate this proposition and the way in which the Tribunal addressed it, reference to the authorities considered by Owen J (as his Honour then was) in Geneva Finance Ltd,[29] is helpful. In that case his Honour observed:[30]
The overall effect of the appointment of a receiver on the company was described in George Baker (Transport) Ltd v Eynon [1973] 1 WLR 1461; [1973] 3 All ER 374 in these terms (at 1469-1470; 380)
'… the appointment of a receiver by the debenture holder does not end the life of the company. The company is, so to speak, anaesthetised but the receiver may carry on business on its behalf. The legal persona of the company will continue to subsist until liquidation, and the company in the case of the most successful receiverships may be restored in full conscious activity when the anaesthetic is no longer applied after the debts owing to the debenture holders have been paid.'
Another very useful comment can be extracted from Hawkesbury Development Co Ltd v Landmark Finance Pty Ltd (1969) 92 WN (NSW) 199 where Street J said (at 209):
'Receivership and managership may well dominate exclusively a company's affairs in its dealings and relations with the outside world. But it does not permeate the internal domestic structure. That structure continues to exist notwithstanding that the directors no longer have authority to exercise their ordinary business - management functions. A valid receivership and management will ordinarily supersede, but not destroy, the company's own organs through which it conducts its affairs. The capacity of those organs to function bears a direct inverse relationship to the validity and scope of the receivership and management.'
[29] Re Geneva Finance Ltd; Quigley v Cook (1992) 7 WAR 496.
[30] Re Geneva Finance Ltd; Quigley v Cook, 508 - 509.
The Tribunal's response to the appellant's reliance on the receivership as a reasonable cause is found primarily in [94] of the reasons. The focus of the reasoning in that paragraph is on the continuation of the legal personality of the appellant and the ability of the receivers to object to the assessments on behalf of the appellant. Parenthetically, I observe that it is not correct to say, as the Tribunal did, that the directors of the appellant did not have the power to object because of the receivership. As the extract from Street J's judgment in Hawkesbury Development Co Ltd v Landmark Finance Pty Ltd quoted by Owen J in Geneva Finance makes clear, when a receiver is appointed the powers of the directors are superseded but not destroyed.
Section 32(6) of the Act directs attention to the question of whether a reasonable cause has been established. As the Tribunal held, a reasonable cause is one 'which a reasonable man would regard as sufficient, a cause consistent with a reasonable standard of conduct, the kind of thing which might be expected to delay the taking of action by a reasonable man'.[31] Answering that question involves more than a consideration of the legal status of the person entitled to object and requires a real consideration of all relevant factual circumstances.
[31] Primary reasons [63] citing Stevens v Motor Vehicle Insurance Trust [1978] WAR 232 [235].
The Tribunal was required to consider the anaesthetising effect of the extraordinarily lengthy receivership on the appellant, together with the effect of the litigation between the appellant's directors and the receivers. It is not apparent from the Tribunal's reasons that consideration was given to these matters. In my respectful judgment, in this aspect of its reasoning, the Tribunal made an error. It attached disproportionate weight to the continuation of the appellant's legal personality in the period of the receivership and to the theoretical capacity of the receivers to make objections and seemingly no weight to the practical reality of the receivership and to whether the receivership and its consequences would be regarded as 'the kind of thing which might be expected to delay the taking of action by a reasonable man'. The Tribunal's approach indicates that it misdirected itself. Consequently, it exercised its powers otherwise than in accordance with the Act. In so far as it is necessary to characterise the error, it can be characterised as falling within the first category of legal unreasonableness - process unreasonableness.
The Tribunal's view that the appellant, through Mr Carey, failed to act promptly after the receivers retired on 6 March 2019 forms a separate basis for the Tribunal's conclusion that the appellant had not established a reasonable cause for the purposes of s 32(6) of the Act. Of course, the receivership and the difficulties it caused for the directors when they resumed management formed an important part of the background against which the appellant's approach in the post-receivership period to the issues of land tax and the valuation assessments are to be assessed.
The Tribunal's reasoning is to be understood as conveying a conclusion that even if the receivership constituted a 'reasonable cause' which justified the grant of an extension of time for making an objection, the appellant failed to make objection at 'the first reasonable opportunity' after the receivership. This conclusion is founded on the Tribunal's factual finding that it was open to Mr Carey to have obtained the valuation assessments from the Office of State Revenue or the State Solicitor's Office, and that he and the appellant's solicitors were not dependent on the former receivers as the sole source of information.
The appellant's challenge to the Tribunal's reasoning in respect of the post-receivership period is, in effect, 'outcome focussed'. It contends that no reasonable tribunal could have found that the appellant had failed to act promptly when regard is had to the various circumstances identified in its ground of appeal.
Although on one reading it appears as if the Tribunal's conclusion that Mr Carey failed to act promptly is based on its characterisation of his recollection of when he received copies of the assessment notices, which would not be sound basis to conclude that he had not acted promptly, the final sentence of [92] of the reasons makes it clear that the conclusion is founded on the factual finding that it was open to Mr Carey to obtain the assessment notices from the Office of State Revenue or the State Solicitor's Office.
When I identified the various principles underlying the concept of legal unreasonableness I referred to the need for judicial restraint and that the concept of legal unreasonableness was not to be viewed as a vehicle for a court to remake a decision according to its view of reasonableness. I referred also to the stringent nature of the test for legal unreasonableness. Bearing those important principles in mind I do not accept that the Tribunal's evaluative conclusion that the appellant failed to act promptly after the receivers retired and thus it had failed to establish a reasonable cause, is legally unreasonable. The primary factual finding on which this conclusion is based is unimpeachable and the Tribunal's conclusion follows from that finding.
It is unnecessary to consider the appellant's criticism of the Tribunal's reasoning in [95] and [96] of the reasons.
Conclusion
Leave to appeal will be refused and the appeal will be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RC
Associate to the Honourable Justice Tottle
9 AUGUST 2022
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