Spencer v Valuer General and Ors

[2009] NSWLEC 128

Land and Environment Court

of New South Wales

CITATION:

Spencer v Valuer General and Ors [2009] NSWLEC 128

PARTIES:

APPLICANT
Peter James Spencer

FIRST RESPONDENT
Valuer General

SECOND RESPONDENT
Local Government and Shires Association

THIRD RESPONDENT
Cooma Monaro Shire Council

FILE NUMBER(S):

31341 of 2008; 31342 of 2008; 31343 of 2008

CORAM:

Preston CJ

KEY ISSUES:

PRACTICE AND PROCEDURE :- PARTIES - joinder of persons as additional respondents to statutory appeal - orders sought against persons could not be made by the court and do not relate to statutory appeal - joinder of persons as respondents improper - proceedings struck out against respondents
PRACTICE AND PROCEDURE: - STRIKE OUT CLAIM - strike out of orders sought in originating process for statutory appeal - orders sought could not be made by the court and do not relate to statutory appeal

LEGISLATION CITED:

Land and Environment Court Act s 19B
Valuation of Land Act 1916 ss 37, 40

DATES OF HEARING:

16 June 2009

EX TEMPORE JUDGMENT DATE:

16 June 2009

LEGAL REPRESENTATIVES:

APPLICANT
Mr A E Maroya (barrister)
SOLICITORS
McKell's Solicitors

FIRST RESPONDENT
Mr P E Rankins (solicitor)

SECOND RESPONDENT
Mr J E Lazarus (barrister)
SOLICITORS
Local Government and Shires Associations of New South Wales

THIRD RESPONDENT
Ms C A Webster (barrister)
SOLICITORS
Walker Gibbs & King Pty Ltd

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PRESTON CJ

16 JUNE 2009

31341 OF 2009
31342 OF 2009
31343 OF 2009

PETER JAMES SPENCER v VALUER GENERAL AND ORS

JUDGMENT

1 HIS HONOUR: In proceedings 31341, 31342 and 31343 of 2008 the applicant, Mr Spencer, commenced three appeals in respect of three properties under s 37(1) of the Valuation of Land Act 1916 objecting to a determination by the Valuer General of a valuation of those properties. Such a right of appeal is assigned by s 19B of the Land Environment Court Act 1979 to class 3 of the Court’s jurisdiction.

2 The nature of the appeal is circumscribed by the Act as is the power of the Court on appeal. In particular, the powers of the Court are limited to those matters set out in s 40(1) of the Valuation of Land Act 1916.

3 The applicant, Mr Spencer, joined as respondent, not only the Valuer General, who of course is a proper respondent to an appeal under s 37(1), but also other persons. The other persons were the Local Government and Shires Association as the second respondent, and Cooma-Monaro Shire Council as the third respondent. In fact, there is no body known as the Local Government and Shires Association. There are two separate bodies, the Local Government Association of New South Wales and the Shires Association of New South Wales. Presumably Mr Spencer intended to refer to these bodies but has conflated the two organisations into one.

4 In each of the class 3 applications which commence the appeals under s 37(1) of the Valuation of Land Act, Mr Spencer set out the orders he sought. Not one of the orders, and there are ten in number, sought relief in terms of the matters that the Court could properly make under s 40 of the Valuation of Land Act. All of the matters are extraneous to the Valuation of Land Act.

5 The second and third respondents, by notices of motion, which were amended subsequently, seek orders of the Court that the proceedings as against them be dismissed with costs. The notices of motion were fixed for hearing today.

6 Mr Maroya of counsel appeared for Mr Spencer. He had been instructed to seek an adjournment of the notices of motion for a period of two weeks in order to obtain proper instructions. An affidavit was read of Mr Spencer which explained the circumstances that led to him being unable to properly brief Mr Maroya in preparation for defending the notices of motion. However I indicated that upon looking at the notices of motion and the class 3 applications filed by Mr Spencer, there really were no grounds for resisting the orders sought by the second and third respondents and, hence, to agree to an adjournment would be merely to postpone the inevitable and incur more costs, which costs, of course, may properly fall on Mr Spencer.

7 The issue of whether any of the orders sought could properly be made in an appeal governed by s 37(1) was explored with counsel for the parties in submissions. It is self-evident, upon inspection of each of the ten orders sought in each of the class 3 applications, that none of the orders could properly be made by the Court under s 40 and none of them relate to the nature of the Valuation of Land Act appeal under s 37(1). In these circumstances, the joinder of the second and third respondents was improper and the notices of motion seeking the dismissal of proceedings against the second and third respondents ought to be upheld.

8 For these reasons, I propose to dismiss the proceedings in each of the three matters against the second and third respondents. Furthermore, each of the particular ten orders sought in each of the class 3 applications should be struck out. The applicant may have a proper claim under s 37(1), however it will be necessary for the applicant to amend its class 3 application to seek orders that are appropriate to the nature of the appeal under s 37(1) and are within the Court’s power on hearing and determining such an appeal under s 40 of the Valuation of Land Act. I propose to grant the applicant leave to amend the application to seek the appropriate orders.

9 There would then need to be some consequential orders in relation to filing the amended application and putting the matter before the list. It is evident that, although these proceedings were commenced on 22 December 2008, no proper preparation has been undertaken having regard to the nature of the appeal under the Valuation of Land Act. I provided a copy of the Court’s Practice Note for class 3 valuation objection appeals to the parties. This should be used by the applicant to prepare the matter for hearing. The first step will be to make the appropriate orders at what is referred to as the first directions hearing. I propose to set a time when that can occur and the applicant and the Valuer General should undertake the preparation required by the Practice Note in the anticipation that the Court will make the usual directions that are made at the first directions hearing on the occasion that I fix.

10 In relation to costs, although being class 3 proceedings, costs orders are not ordinarily made unless it is fair and reasonable in the circumstances to make a costs order. The fact that the joinder of the second and third respondents had no prospects of success having regard to the orders sought and the fact that they were wholly outside the scope of the appeal under s 37 of the Valuation of Land Act, makes it appropriate that there be an order for costs in this case. The second and third respondents have been put to an expense to which they could not reasonably be expected to be put. They were not proper parties. The orders sought against them were not within the jurisdiction of an appeal under s 37 of the Valuation of Land Act.

11 In these circumstances, it is fair and reasonable to make an order for costs. Although the second and third respondents do request indemnity costs, I am not minded to make an order for indemnity costs. It was misguided by the applicant. However, he did so without legal advice at the time and these things can occur when people commence proceedings without seeking proper advice. Having regard to the fact that the matters have now been brought by the second and third respondents to the Court to remedy the wrongful joinder of them promptly, I do not consider that a higher level of costs than the ordinary level of costs should be ordered.

12 For those reasons, I propose to make the following orders in each of the matters number 31341, 31342 and 31343 of 2008:

1. I order that the proceedings, as against the second and third respondents, be dismissed.
2. I strike out orders 1 to 10 in each of the applications class 3 filed on 22 December 2008.
3. I grant leave to the applicant to amend each application class 3 to seek orders appropriate to an appeal under s 37(1) of the Valuation of Land Act 1916 and within the Court’s powers under s 40(1) of the Valuation of Land Act 1916 .
4. I direct the applicant to file and serve the amended applications class 3 by 4pm on 23 June 2009.
5. I list the matters before the list Judge on 26 June 2009 for the purpose of fixing a hearing date and making appropriate directions for the preparation of the proceedings for the hearing.
6. I direct the parties to prepare for the directions hearing on 26 June 2009 as if it is the first directions hearing and in accordance with the Practice Note - Class 3 Valuation Objections.
7. I order the applicant to pay the costs of the second and third respondents in the proceedings.