Stubberfield v The Valuer-General
[1993] QLAC 34
•5 November 1993
|
BRISBANE
5 November 1993
Re: Appeal against determination of the Valuer-General
Division of Kedron AV89-508
John R Stubberfield and Dorothy May Stubberfield
v
The Valuer-General
DECISION ON JURISDICTION
The appellants, JR and DM Stubberfield, have appealed to the Land Appeal Court against a decision of the Land Court dismissing their appeal against the determination of the Valuer-General that the unimproved value of Subdivision 11 of Portion 9, parish of Nundah, (the "subject land") as at 31 March 1988 was $75,000. The appellants estimate that the unimproved value of the subject land at that date was $50,000.
As a preliminary issue, the appellants submitted that this Court lacks jurisdiction to hear and determine their appeal, and that, for the same reason, the Land Court also lacked jurisdiction to hear and determine their appeal.
The basis for this submission is that there was no decision against which an appeal could be brought because the Valuer-General's decision on the appellants' objection to the valuation was given after the expiration of the period specified in the Valuation of Land Act 1944 (the "Act") for making the decision.
The appellants also made it clear that, so far as they are concerned, any decision in this case would have implications for other decisions in earlier years concerning the valuation of the subject land. They are seeking, by one means or another, to have a Court or the respondent review decisions of the Valuer-General concerning the valuation of the subject land in 1985 and 1986. Those valuations are not the subject of these proceedings and we express no opinion with respect to them.
Although the question concerning jurisdiction has been raised at a relatively late stage in the appeal process, the fact that it has not been raised or considered previously does not relieve this Court of the obligation to deal with it in the exercise of the Court's power to determine whether it has jurisdiction (see Re Liability to Forfeiture - Perpetual Lease Selection No 6337, Rockhampton District (1956) 26 CLLR 27 at 31; Beedell Farms and
Grazing Pty Ltd v The Valuer-General (1979) 6 QLCR 109).
The matter is one of statutory interpretation and must be resolved by reference to the relevant provisions of the Act under which the annual valuation of the subject land was made in 1988. Part IVA of the Act, which deals with annual valuations of land, was inserted in 1985. It contains the sections applicable to these proceedings. Those provisions have since been amended, but it is necessary to consider them in the form in which they were at all relevant dates. They are summarised as follows:
(a)Section 16B of the Act provided for the Valuer-General to make annually a valuation of all lands in the Area. An annual valuation shall be made at a date to be fixed by the Valuer-General in respect of that annual valuation.
(b)Sections 16E and 16F of the Act provided that the Valuer-General shall make particulars of each annual valuation available at such places as he thinks fit. After completing the annual valuation, the Valuer-General shall advertise in a local newspaper that:
(1)the valuation has been made;
(2)the particulars of the valuation will be available for inspection for 21 days from a specified date and at the places and during the times specified;
(3)an owner who is dissatisfied with the valuation of that person's land may, within 28 days after the specified date, post or lodge with the Valuer- General or with the district valuer for the relevant district an objection in writing against that valuation.
(c)Section 16G of the Act provided that an owner who is dissatisfied with the valuation made by the Valuer-General in the course of making an annual valuation may, within 28 days after the date specified in the advertisement, post to or lodge with the Valuer-General or the district valuer for the relevant district an objection in writing against the valuation.
(d)Section 16H of the Act provided that the Valuer-General shall consider the objection and issue to the objector written notice of his decision within 60 days after the period of 28 days referred to in section 16G, and may disallow the objection or allow it in the manner and to the extent he deems proper.
(e)Section 16I provided for the Valuer-General to consider late objections in certain limited circumstances.
Only after the objection process set out in those sections had been followed could an
appeal be brought to the Land Court for determination. Section 16J(1) - (3) of the Act provided:
"16J. Appeal. (1) An owner who has objected pursuant to section 16G against a valuation made by the Valuer-General may, if dissatisfied with the decision of the Valuer-General upon the objection, appeal to the Land Court against the valuation.
(2) Except as hereinafter by this section provided, an appeal shall not lie unless it is instituted within 28 days after the date of issue to the owner concerned by the Valuer-General of notice of his decision upon the objection (which date of issue shall be stated in such notice).
(3) An appeal shall be instituted by filing a notice of appeal in the Land Court registry. ...
The appellant shall serve a copy of the notice of appeal on the Valuer- General not later than 7 days after the notice is lodged in the Land Court registry."
The events involving the annual valuation of the subject land in issue in these proceedings were (following the order of sections summarised above) as follows:
(a)The date of valuation was 31 March 1988.
(b)The date of issue of the valuation (being the first day of the display period) was 26 September 1988 and the display period was for 21 days from that date.
(c)The appellants' notice of objection was lodged on 24 October 1988, which date was accepted by the Valuer-General as being within 28 days after the date specified by the Valuer-General in the advertisement concerning annual valuations.
(d)An objection conference was held on 14 November 1988 (within 60 days after the period of 28 days referred to in section 16G), but the Valuer-General's decision on objection was not issued until 31 July 1989, more than seven months after the final date of the combined 28 days and 60 days periods.
The appellants' Notice of Appeal was dated 23 August 1989 and was lodged in the Land Court registry on 24 August 1989, within 28 days after the date of issue of the notice of the Valuer-General's decision on objection.
It is apparent from the chronology of events that, although there was compliance with most provisions, the Valuer-General failed to comply with the statutory direction to consider the appellants' objection and issue a written notice of his decision within the period specified. The issue now before this Court is whether that failure to act in accordance with the terms of section 16H of the Act meant that the decision which the Valuer-General issued on 31 July 1989 was a nullity and hence there was no decision against which the appellants could appeal. If the decision was a nullity then, the appellants submit, this Court has no jurisdiction to hear and determine their appeal.
Toresolve the issue it is necessary to consider the precise wording of section 16H. "The Valuer-General to consider objection and notify objector. The Valuer-General shall consider the objection and issue to the objector written notice of his decision thereon within 60 days after the period of 28 days referred to in section 16G and may either disallow it or allow it in such manner and to such extent as he deems proper." (emphasis added)
As one leading Australian textbook on statutory interpretation notes, "one of the most intractable problems encountered by the courts in the interpretation of legislation is the meaning to be placed on words such as 'shall'" (DC Pearce and RS Geddes, Statutory Interpretation in Australia, 3rd edn, para 11.1). Another leading text book notes that the meaning of "shall" and "may" in statues conferring a power "is the subject of constant and conflicting interpretation". (SGG Edgar, Craies on Statute Law, 7th edn, 229)
In this case, as in many others, the question is whether "shall" is used in the sense of imposing a mandatory obligation on the Valuer-General or only directs the Valuer-General to act in a certain way within the period specified in section 16H of the Act. Although the cases in which this issue has arisen are legion, most have been decided in particular statutory and factual contexts. Few can be relied on for clear guidance in the present case. Indeed it has been recognised that the task of determining whether legislative provisions are mandatory or directory is one which must differ with each case and "that prior authority on other statutes is not of great assistance to the court in determining the intention of the legislature" (Nichol v Thompson (1976) 12 ALR 528 as 531 per Forster J quoting B v B [1961] 2 All ER 396 at 397 per Scarman J). Rather than review the numerous and disparate authorities on the meaning of "shall" in various statutes, it is
necessary only to determine the relevant principles of interpretation and to apply them.
Generally speaking, courts have chosen to probe the true effect of the legislation in an endeavour to determine whether a provision is to be regarded as mandatory or obligatory on one hand or discretionary or directory on the other. More than a century ago, Lord Penzance stated:
"I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject matter; consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory". (Howard v Bodington (1877) 2 PD 203 at 211)
Support for, and a detailed guide to, that approach is found in Tasker v Fullwood [1978] 1 NSWLR 20. The New South Wales Court of Appeal concluded (at 23-4) that the following proposition can be taken from leading Australian decisions:
"(1) The problem is to be solved in the process of construing the relevant statute. Little, if any, assistance, will be derived from the terms of other statutes or any supposed judicial classification of them by reference to subject matter.
(2) The task of construction is to determine whether the legislature intended that a failure to comply with the stipulated requirement would invalidate the act done, or whether the validity of the act would be preserved notwithstanding non-compliance: the Franklins Stores Pty. Ltd. case ([1977] 2 NSWLR 955 at 963 et seq).
(3) The only true guide to the statutory intention is to be found in the language of the relevant provision and the scope and object of the whole statute: Hatton v. Beaumont ([1977] 2 NSWLR 211 at 220).
(4) The intention being sought is the effect upon the validity of the act in question, having regard to the nature of the precondition, its place in the legislative scheme and the extent of the failure to observe its requirement: Victoria v. The Commonwealth ((1975) 134 CLR 81 at 179, 180).
(5) It can mislead if one substitutes for the question thus posed an investigation as to whether the statute is mandatory or directory in its terms. It is an invitation to error, not only because the true inquiry will thereby be sidetracked, but also because these descriptions have been used with varying significations.
(6) In particular, it is wrong to say that, if a statute is couched in directory terms, the act will be invalid, unless substantial performance is demonstrated: the Franklins Stores Pty. Ltd. ([1977] 2 NSWLR 955 at 965
et seq) case. A statute which, on its proper construction, does not nullify the act in question, even for total non-observance of the stipulation, is also described as directory in its terms: Victoria v. The Commonwealth ((1975) 134 CLR 81 at 118, 162, 179, 180)."
Statutory guidance is found in the Acts Interpretation Act 1954, section 14A of which provides that, in the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of that Act is to be preferred to any other interpretation. That rule of interpretation applies whether or not the purpose is expressly stated in an Act.
The question is not whether the terms of section 16H are mandatory or directory, but whether or not, on its proper construction, the statute discloses an intention that a purported decision made out of time is void and of no effect.
The purpose of the Act can be gleaned from its long title and scheme. It is "An Act to Make Better Provision for Determining the Valuation of Land for Rating and Taxing Purposes, and for Matters incidental thereto and consequent thereon". At all relevant times the Act was administered, subject to the Minister, by the Valuer-General. (The office of Valuer-General was abolished in March 1993, but that is of no relevance to these proceedings.) Part IV of the Act obliged the Valuer-General to make a valuation of the unimproved value of fee simple land. Part IVA of the Act was inserted to provide for annual valuations of land. Section 25 provides that the valuation of any land made under the Act shall be the unimproved value of that land for the purposes of the Land Tax Act 1915, the rateable value of that land for the purposes of the Local Government Act 1936, the unimproved value for the purposes of the City of Brisbane Act 1924, and the unimproved value or rateable value of land for the purposes of other legislation.
Generallyspeaking, the Valuer-General's determination is final. Section 13(7) stated:
"Any and every valuation, or alteration of the valuation, of any land made, or purporting to be made, under this Act by the Valuer-General shall be deemed to be correct until proved otherwise upon objection or appeal or until altered or further altered pursuant to a provision of this section."
The significance of this deeming provision was highlighted by the High Court in Brisbane City Council v The Valuer-General ((1978) 140 CLR 41, at 56-7; 5 QLCR 283, at 303). Section 13(7) expressly admits two means by which the Valuer-General's valuation may be changed. First, the Valuer-General may alter the valuation in accordance with criteria specified in section 13(2). Second, the valuation may be changed in the course of the process of objection and appeal summarised earlier in these reasons for decision.
Given that the Valuer-General's valuation is deemed to be correct unless and until it is varied in accordance with the Act, and that the process by which a land owner may seek to have the valuation changed is strictly confined, it is necessary to consider whether, by his own action (or inaction) at a critical stage in the objection and appeals process, the Valuer-General could substantially delay or destroy the limited rights of a landowner to have the valuation properly reviewed, even though the landowner has done all in his or her power to comply with the provisions of the Act.
Both parties to these proceedings pointed to what they submitted are the consequences of holding that the section required the Valuer-General to make and give notice of a decision on objection within the 60 days period. Mr Stubberfield relied on views expressed by Mr Paterson in the course of submissions in Heaton v The Valuer-General (AV90-484) that, where a decision on objection was issued out of time, the decision is a nullity and any appeal to the Land Court from that decision is also a nullity. Consequently, Mr Paterson submitted in that proceeding, the Land Court had no jurisdiction to hear and determine such an appeal on the merits. It follows that no valuation had been made at the relevant date and so a fresh valuation would have to issue. The issue of a new valuation would be the first step in a process which would allow the landowner to make an objection and the Valuer-General to consider and make a decision about the objection. If the landowner remained dissatisfied, he or she could appeal against that decision to the Land Court in an attempt to have the valuation set aside and a new valuation made by the Court. Mr Paterson reiterated that view in these proceedings. It finds support in the decision of a member of the Land Court in RD and WHA Goodman v The Valuer-General (AV90-324, 15 February 1991, unreported) that a decision on objection made after the 60 days period was ultra vires the provisions of the Act, and hence no appeal could be made to the Land Court. Were an appeal made, the Land Court lacked jurisdiction to deal with the purported appeal. Following the decision in that case, the Valuer-General issued a new valuation which itself was the subject of appeal to the Land Court (see RD and WHA Goodman v The Valuer-General, AV91-306, 27 November 1992, unreported).
In the course of submissions, the parties speculated about other possible consequences for these proceedings of holding that every component of section 16H was mandatory. Mr Paterson pointed out that, if the subject decision on objection was void, it would be impossible for the appellants to seek a review of the original valuation as all the time limits (including that under section 16I) have long since expired. The only practical response to ensure procedural fairness to the appellants would be for a fresh valuation to be made. That could be done, he submitted, in a way analogous to a valuation made under section 11(2A)(ii) of the Act, where it came to the knowledge of the Valuer-General that he has omitted to make a valuation of any land. If a fresh valuation was not issued, the original valuation would be preserved by section 13(7) of the Act. The issue of a fresh valuation would, arguably, lead to the extraordinary result that there would be two extant valid (and possibly inconsistent) valuations.
Mr Paterson also submitted that, in this case, the Valuer-General lacked the power to make a fresh valuation because, whether or not it had jurisdiction to do so, the Land Court had made a decision concerning the unimproved value of the subject land as at the relevant date of valuation. Unless this Court were to decide that the Land Court and this Court lacked jurisdiction to deal with the appeal, the respondent felt bound by the decision of the Land Court.
We have concluded that a decision by the Valuer-General made or notified after the 60 days period specified in section 16H is valid and hence this Court has jurisdiction to deal with the appeal. In reaching this decision we have considered the statutory context of section 16H, the legislative history of that section, and decisions of other courts which give guidance about the approach to be adopted in cases such as this.
Statutory context
The purpose and scheme of the Act as summarised above show that it is an Act to facilitate the assessment and levying of amounts of money payable to the State and local government authorities. Section 13(7) provides a firm basis for the determination of those amounts. The objection and appeal process provides the only means whereby a valuation can be reassessed on its merits. A landowner is given more than the right to request a review of the valuation coupled with a legitimate expectation that the objection or appeal will be considered and resolved in accordance with law. Rather, the landowner has a statutory right to have the objection or appeal dealt with by the Valuer-General or Land Court respectively, so long as the landowner meets the statutory requirements. There is, in effect, a penalty on the landowner if he or she attempts to exercise those rights outside the statutory time limits. Failure to act in time leads to forfeiture of those rights. That much is clear from the sections just cited. So, for example, when section 16G is read with section 16I it is clear that a landowner may object to the valuation but must do so within the 28 day period specified. Section 16J provides that an owner may appeal against the decision of the Valuer-General upon the objection but an appeal "shall not lie" unless it is instituted within a 28 day period. That provision and comparable provisions in the Act have been strictly interpreted, so that the Land Court lacks jurisdiction to hear and deal with an appeal filed out of time (see, for example, Seaworld Pty Ltd v The Valuer-General (1978) 5 QLCR 309, Fischer v The Valuer-General (1990) 13 QLCR 129 at 131).
At every step of the way the landowner must comply with time limits. His or her statutory rights only survive so long as those requirements are met. But what of the Valuer- General? There is no suggestion in Part IVA of the Act that he suffered a penalty if he failed to act within the 60 days. Only the owner might suffer. On one view, the original valuation would stand unchallenged and unchallengeable. On another view, the Valuer- General would (or could) issue a fresh valuation so that the objection and appeal process could recommence. It would be unjust and contrary to the purpose of the objections and appeal process to hold that an owner's rights could be extinguished or frustrated in that way. To do so would mean that, for any one of a number of reasons, the Valuer-General could effectively defeat (or at least delay) any or all objections and potential appeals. The Valuer-General could simply delay making a decision. The Valuer-General might be unable to deal with the objection because of the number of objections awaiting decision, or the number of objections conferences to be held. He or she may desire to adjust some valuations relative to others where objections were lodged, and so might delay making a decision on a particular objection pending a decision on a number of other objections. The Valuer-General could decide not to make a decision until some other event occurs, such as a decision of the Land Court is delivered (as apparently happened in this case). Some of the reasons just listed might be explicable (though not necessary in light of sections 13(2) and 21A of the Act) as means of fairly dealing with particular objections.
An interpretation that section 16H was mandatory as to the time in which the decision on objection was to be made would lead to a result that is unreasonable, if not manifestly absurd. In our view, such a result is not compelled by the scheme of the Act.
Legislative history
The legislative history of section 16H gives some assistance in its interpretation. That history is informed by reference to admissible materials extrinsic to the legislation but indicative of what was intended by the Legislative Assembly.
Section 14B of the Acts Interpretation Act 1954 states:
"(1) Subject to subsection (2), in the interpretation of a provision of an Act, consideration may be given to extrinsic material capable of assisting in the interpretation -
(a)if the provision is ambiguous or obscure - to provide an interpretation of it; or
(b)if the ordinary meaning of the provision leads to a result that is manifestly absurd or is unreasonable - to provide an interpretation that avoids such a result; or
(c)in any other case - to confirm the interpretation conveyed by the ordinary meaning of the provision."
In determining whether consideration should be given to extrinsic material, and in determining the weight to be given to such material, regard is to be had to (among other things) the desirability of a provision being interpreted as having its ordinary meaning, that is, "the ordinary meaning conveyed by a provision having regard to its context in the Act and to the purpose of the Act". The extrinsic material for this purpose includes an explanatory note relating to the Bill that contained the provision that was laid before or given to members of the Legislative Assembly, and to the Minister's Second Reading speech on the Bill.
The legislative history can be stated briefly. Before provision was made for annual valuations of land, any objection against a valuation was dealt with under Part V of the Act. Section 20(1) enabled an owner to make a written objection within a specified period. Section 20(2) provided:
"The Valuer-General shall with all reasonable despatch consider the objection, and may either disallow it or allow it in such manner and to such extent as he deems proper." (emphasis added)
As noted earlier in these reasons, the advent of annual valuations was effectuated by the insertion of Part IVA, "Annual Valuations", in the Act in 1985. Part V of the Act (including section 20) was expressed not to apply to a valuation made under Part IVA "except to the extent otherwise indicated in this Act".
The insertion of a time limit within which the Valuer-General was to make decisions on objections is explicable by reference to the Government's desire to have objections and appeals against each annual valuation determined, as far as practicable, within the relevant valuation period. That much is implicit in the provisions of Part IVA and is explicit in the Second Reading Speech delivered by the relevant Minister, Hon MJ Tenni, who stated:
"The Bill provides a period of 21 days in which the particulars of the annual valuation will be available for public inspection during office hours. ... The objection period will be 28 days, commencing on the first day on which the particulars of the annual valuation are open for public inspection.
The Valuer-General will be required to consider all objections against an annual valuation and issue his decisions thereon within 60 days of the closure of the objection period. If dissatisfied with the Valuer-General's decision on his objection, a land-owner will have the right to appeal to the Land Court within 28 days after the issue of that decision. ...
The present Act provides for 60-day periods for objection and appeal against general valuations. However, the shorter time periods are absolutely essential if the Valuer-General is to cope with objections and the Land Court is to determine appeals on an annual basis." (Queensland Parliamentary Debates, Volume 298, 7 March 1985, at 3848)
Section 16H was amended by the Lands Legislation Amendment Act 1991 which omitted the words "within 60 days after the period of 28 days after the period of 28 days referred to in section 16G" and inserted in their place "as soon as is reasonably practicable". Accordingly, decisions on objection after the amendment took effect on 31 December 1991 have not had to be made within a specified number of days. The Explanatory Notes to the Bill state that the amendment to section 16H "provides for the Valuer-General to advise an objector of the outcome of an objection as soon as is reasonably practicable after a decision is made. The present 60 day arbitrary limit is removed." There is nothing in the Minister's Second Reading Speech which would assist in the interpretation of the 1991 amendment to section 16H.
The legislative history points to an understandable desire that the 1985 amendments would facilitate, if not ensure, the prompt disposition of objections and appeals within a period consistent with the annual revaluation of blocks of land. The limited extrinsic evidence concerning the 1991 amendments suggests that the Valuer-General had difficulty in complying with section 16H in every case.
As a matter of fact, compliance with section 16H did prove to be administratively difficult. Mr Paterson advised this Court that, in any year, hundreds of decisions on objections have been made out of time. Pursuant to section 44(15)(c) of the Land Act 1962 we requested the Program Director, Land Valuation, Department of Lands to provide information about objections to the valuation of land in the City of Brisbane as at 31 March 1988. In a letter dated 4 November 1993 we were advised that:
(a)1,272 objections were received (of which some 120 were late objections received under section 16I of the Act); and
(b)1,193 of the objections were processed outside the requirements of section 16H.
The letter listed the steps taken in dealing with the objections and described how various factors affect the Department's ability to meet the time frame set out in section 16H. In some cases, as in Goodman, the Land Court has been advised that new valuations were issued.
At least as far back as 1946, Dixon J recognised that it is permissible to ascertain the intention of the legislature with regard to prior legislation by reference to amending legislation (see Grain Elevators Board (Vict.) v Dunmunkle Corporation (1946) 73 CLR 70 at 86 per Dixon J, as discussed by Dawson J in Hunter Resources Ltd v Melville (1987-88) 164 CLR 234 at 254-5). The 1991 amendment, although expressly providing a more flexible (or less "arbitrary") period within which a decision must be made, does not mean that section 16H as it operated in 1988 and 1989 was mandatory as to the time within which a decision was to be made. Neither the legislative history nor the practice adopted by the Valuer-General in some cases compels, or even prompts, the conclusion that a decision on objection made out of time was void. The views that we have expressed and the conclusion that we have reached should not be read as indicating that the Valuer- General (or the statutory officer who now acts in place of the Valuer-General) should unduly delay any decision on an objection. While circumstances may justify some delay in a particular case, the obligation imposed by section 16H in its amended form is clear.
Judicial decisions
Finally, we turn to consider a line of judicial authority which supports our conclusion in this case.
Time limits within which a public officer is to act have been held to be directory if to do otherwise would be to deny a member of the public a right provided by a statute. That proposition is well illustrated in Caldow v Pixell ((1877) 2 CPD 562) in which the court considered a statute which provided that
"within three calendar months after the avoidance of any benefice ... the bishop shall direct the surveyor, who shall inspect the buildings of such benefice and report to the bishop what sum, if any, is required to make good the dilapidations to which the late incumbent or his estate is liable".
The court held that, despite the use of "shall", the provision as to the time within which the bishop was to act was directory only and not imperative. Denman J agreed that the scope and object of a statute are the only guides in determining whether its provisions are directory or imperative. That approach has been taken by superior Courts in Australia (see Attorney-General (NSW); Ex rel Franklins Stores Pty Ltd v Lizelle Pty Ltd [1977] 2
NSWLR 955 at 964 per Reynolds JA; TVW Enterprises Ltd v Duffy (1985) 62 ALR 63 at 83 per Beaumont J; Australian Capital Television Pty Ltd v Minister for Transport and Communications (1989) 86 ALR 119 at 146 per Gummow J; Hunter Resources Ltd v Melville (1987-8) 164 CLR 234 at 251 per Dawson J). Denman J also accepted that a distinction may be drawn between provisions which create public duties (directory) and those that create private rights (imperative). In the absence of an express provision the intention of the legislature is to be ascertained by weighing the consequences of holding a statute to be directory or imperative (at 566).
In that case, Denman J held that the provision was directory because it imposed a public duty on the bishop and because great inconvenience may have been occasioned and great injustice done if the period of three months could not have been extended. The default of the public officer in the discharge of the duty committed to him might defeat the object of the statute. His Honour also observed that the fact that the failure to perform the duty affected only one person (at least in the first instance) was not decisive. It was immaterial whether that failure affects a greater or less number of persons. He concluded that the authorities cited established that:
"where a public officer is directed by a statute to perform a duty within a specified time, the provisions as to time are only directory, and also that in considering whether a statute is imperative, a balance may be struck between the inconvenience of rigidly adhering to, and the inconvenience of sometimes departing from, its terms." (at 567)
Lopes J agreed with Denman J. He added that, in construing the statute, the court must "strike a balance between the inconvenience of holding the direction of the bishop and the proceedings subsequent thereto to be null and void, and the inconvenience of giving effect to the direction when it has been made after the prescribed time" (at 568).
In Montreal Street Railway Co v Normandin the Privy Council expressed the principle as follows:
"When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done." ([1917] AC 170 at 175)
Seventy years later, after quoting that passage and citing Caldow v Pixell, Dawson J saw the issue as one of determining what consequences, if any, were intended to flow from the failure to comply with a statutory requirement. He concluded that "even if the difference between the performance of a public duty and the acquisition or exercise of a private right is not conclusive, that distinction does at least provide some guidance in distinguishing those provisions with which strict compliance was intended from those with which it was not" (Hunter Resources Ltd v Melville (1987-88) 164 CLR 234, at 251-2, citing Clayton v Heffron (1960) 105 CLR 214 at 247 per Dixon CJ, McTiernan, Taylor and Windeyer JJ).
Theoccasion for the drawing of this distinction has been explained as follows:
"Where a duty arises under a statute, the court, charged with the task of enforcing the statute, needs to decide what consequence Parliament intended should follow from breach of the duty.
This is an area where legislative drafting has been markedly deficient. Draftsmen find it easy to use the language of command. They say that a thing 'shall' be done. Too often they fail to consider the consequence when it is not done. What is not thought of by the draftsman is not expressed in the statute. Yet the courts are forced to reach a decision.
It would be draconian to hold that in every case failure to comply with the relevant duty invalidates the thing done. So the courts' answer has been to devise a distinction between mandatory and directory duties." (Bennion: Statutory Interpretation, pp 21-2) quoted in Formosa v Secretary, Department of Social Security (1988) 81 ALR 687 at 691)
Conclusion
Although no universal rule can be laid down for determining whether provisions are mandatory or directory (see Formosa v Secretary, Department of Social Security (1988) 81 ALR 687 at 692, quoting Halsbury's Laws of England, 4th edn, vol 44 "Statutes" para
933 and SS Constructions Pty Ltd v Ventura Motors Pty Ltd [1964] VR 229 at 237-8), we are satisfied that the time limit in section 16H was directory, not mandatory. We do not mean that it was optional on the part of the Valuer-General whether he would perform the duty imposed on him by the Act, but that, if he neglected to perform the duty within the period specified, that neglect would not invalidate the whole operation with respect to which the statutory duty was to be performed. (See Craies on Statute Law, op cit, 250)
We conclude that section 16H was mandatory to the extent that the Valuer-General was required to consider the objection and issue a written decision on the objection, but his failure to consider the objection and issue his written decision within the period specified was not fatal to the land owners' rights.
Consequently, we hold that the Land Appeal Court has jurisdiction to hear and determine the appellants' appeal.
(signed Lee J) Justice of the Supreme Court
(signed RE Wenck) Member of the Land Court
(signed GJ Neate) Member of the Land Court
0
9
0