VAN OIJEN and SHIRE OF CUBALLING - [2019] WASAT 62

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: LOCAL GOVERNMENT ACT 1995 (WA)
CITATION:   VAN OIJEN and SHIRE OF CUBALLING [2019] WASAT 62
MEMBER:   MR S WILLEY, MEMBER
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   16 AUGUST 2019
FILE NO/S:   CC 569 of 2019
BETWEEN:   WILHELMUS VAN OIJEN
Applicant
AND
SHIRE OF CUBALLING
Respondent

Catchwords:

Local Government - Rates - Whether rates imposed in accordance with Local Government Act - Review rights under the Local Government Act - Affected person - Question of general interest - Service of rate notice - Extension of time - Delay in commencing proceedings - No explanation for delay - Whether applicant has arguable case

Legislation:

Interpretation Act 1984 (WA), s 18, s 32(1), s 75, s 76
Local Government (Financial Management) Regulations 1996 (WA), reg 55(a), reg 56, reg 56(4)(f), Pt 5
Local Government Act 1995 (WA), s 1.3(2)(c), s 3.25, s 6.39, s 6.39(1)(a), s 6.39(2)(a), s 6.40(1), s 6.42(2), s 6.46, s 6.50(1), s 6.50(2), s 6.76, s 6.77, s 6.79, s 6.80, s 6.81, s 6. 82, s 6.82(1), s 6.82(3), s 9.1(2), s 9.1(3), s 9.2, s 9.7(1), s 9.7(2), Pt 6, Div 6, Pt 9, Div 1
Rates and Charges (Rebates and Deferments) Act 1992 (WA), s 33
State Administrative Tribunal Act 2004 (WA), s 60(2)
State Administrative Tribunal Rules 2004 (WA), r 9, r 10
Valuation of Land Act 1978 (WA)

Result:

Leave to extend time refused

Summary of Tribunal's decision:

Wilhelmus Van Oijen (the applicant) has applied to the Tribunal pursuant to the Local Government Act 1995 (WA) (LG Act) in relation to the rates notice issued to him by the Shire of Cuballing (Shire) on 5 August 2016. Whilst the application was made under s 9.7(2) of the LG Act it was apparent that the applicant’s dispute was actually under Div 6 of Pt 6 of the LG Act which relates to the imposition of rates.
The applicant has a history of issues with his postal arrangements. He has written to the Commonwealth Ombudsman to outline his concerns with Australia Post.
However, in this instance, it is not disputed that the Shire posted the 2016 rates notice to the correct address provided by the applicant.
The issue in these proceedings is that the applicant says, which is not contested, that he did not receive his 2016 rates notice until late August 2016. By the time he received the 2016 rates notice the 8% discount for early payment was no longer available.
The applicant promptly paid the 2016 rates notice once he received it but maintained he was still entitled to the 8% rates discount for early payment. The applicant paid the 2016 rates notice on the basis that he was still eligible for the 8% discount. The Shire immediately advised the applicant that he still owed $39.92 in rates as his payment was not received in time so as to make him eligible for the 8% discount.
The applicant did not pay the additional rates owing before the end of the 2016/17 financial year. The consequence of there being outstanding rates at the end of the financial year is that the applicant lost his State Government Rebate under the Rates and Charges (Rebates and Deferments) Act 1992 (WA) (Rates Act). The State Government Rebate (of $490.44) that would have been available to the applicant was therefore lost and the applicant now owes the original $39.92 plus the $490.44 (a total of $530.36) in rates for the 2016/17 financial year. These outstanding rates are now 'deferred' pursuant to the Rates Act.
The Tribunal treated the application as a referral to the Tribunal pursuant to s 6.82 of the LG Act. Section 6.82 allows a question of general interest to be referred to the Tribunal as to whether rates have been imposed in accordance with the LG Act. Section 6.82 is within the Tribunal's review jurisdiction.
The delay in bringing these proceedings is two years and six months. Pursuant to the State Administrative Tribunal Rules 2004 (WA) the review period for applications such as under s 6.82 of the LG Act is 28 days. The applicant was invited to make submissions on the need to extend the time to allow the proceedings to be brought. Despite that invitation, the applicant has offered no explanation as to why it has taken him over two years to engage the Tribunal's jurisdiction.
The Tribunal applied the accepted tests in relation to applications to extend time. On the question of the length of the delay, the delay of two years and six months was found to be inordinate. On the question of the reason for the delay, no explanation has been offered. On the question of whether the applicant has an arguable case, it was found that he does not. The rates notice was imposed in accordance with the LG Act. Whilst there was a three week delay in effecting delivery of the rates notice, the notice was still imposed in accordance with the LG Act. There is nothing in the LG Act that requires a rates notice to be delivered so as to ensure that a ratepayer can take advantage of any discount that may be offered by a local government. No question of prejudice to the Shire arose.
Leave to extend time was refused.

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	In Person

Solicitors:

Applicant	:	N/A
Respondent	:	N/A

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

Cardno BSD and Shire of Busselton [2007] WASAT 267
City of KalgoorlieBoulder [2017] WASAT 56
Citygate Properties Pty Ltd and City of Bunbury [2009] WASAT 142
Goedhart and Western Australian Planning Commission [2006] WASAT 49
Hartwig and City of Canning [2008] WASAT 243
Jackamarra v Krakouer and Anor (1998) 195 CLR 516
O'Connor and Town of Victoria Park [2005] WASAT 161
Owners of Kingsley Retirement Village Strata Plan 12484 and 12951 and City of Joondalup [2018] WASAT 26
Polo Enterprises Australia Pty Ltd v Shire of Broome [2015] WASCA 201; (2015) 49 WAR 134
Scolaro and Shire of Waroona [2014] WASAT 37
Shire of Cue [2016] WASAT 91
Shire of Toodyay [2016] WASAT 141
Shire of Yalgoo [2016] WASAT 136
Smith and City of Stirling [2006] WASAT 6
Smith and City of Wanneroo [2008] WASAT 182

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Wilhelmus Van Oijen (the applicant) has applied for a review of a decision of the Shire of Cuballing (the Shire or respondent) in relation to a rate notice issued by the Shire on 5 August 2016 (2016 Notice).
Three payment options were set out in the 2016 Notice. The first was an early incentive payment whereby an 8% discount was applied provided payment was received by 26 August 2016. The second was payment in full by 9 September 2016. The third was payment by way of four equal instalments with the first payment due by 9 September 2016.
The applicant is an 'eligible pensioner' for the purposes of the Rates and Charges (Rebates and Deferments) Act 1992 (WA) (Rates Act). The effect of the Rates Act, as it applies to the applicant, is that a State Government Rebate is available to assist the applicant in the payment of his rates. The State Government Rebate is a scheme that operates to provide pensioners and seniors with a rebate or deferment of a range of government charges including local government rates.
However, in order to obtain the benefit of the State Government Rebate the rates must be paid by June 30 of the relevant financial year. If the rates are not paid, the State Government Rebate is not available and the total unpaid rates accrue. Any unpaid or deferred rates are required to be paid upon the sale of the land.
From what I can ascertain, the substance of this dispute is that due to some kind of postal error the applicant did not receive the 2016 Notice until 26 August 2016. Payment of the rates based on an 8% discount was made on 30 August 2016 (but not received by the Shire until 31 August 2016).
The Shire advised the applicant on 31 August 2016 that due to his payment not being received until after 26 August 2016 the 8% discount was not available and the applicant was required to pay a further $39.92 by 9 September 2016 to pay his rates in full and thereby obtain the State Government Rebate.
It is common ground that the applicant did not make the further payment of $39.92. The opportunity to receive the State Government Rebate lapsed at the end of the 2016/17 financial year. The result is that the applicant still owes $530.36 in local government rates for the 2016/17 financial year.
On 9 April 2019 the applicant applied to the Tribunal for a review of the Shire's decision to issue the 2016 Notice.
This matter is to be determined on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA).

Background facts

The factual background, in large part, does not appear to be disputed. The materials put forward by the applicant evince a longstanding dispute between him and Australia Post and also between him and the Shire in relation to his postal arrangements.
While I have recorded the following as 'facts' which have been put forward by the parties, some of the facts do not appear to be completely consistent. I will say more about that later in these reasons.
In 2001/2002, the applicant was advised that his address for postal purposes would be 1199 Congelin Narrogin Road, Contine. Prior to this the applicant's postal details were: Location 1748 at Congelin Narrogin Road, Shire of Cuballing. However, the applicant used Roadside Mail Box 909 as his actual postal address as, he submitted, Australia Post did not know where Location 1748 was.
After the change in postal details in 2001/2002, the applicant became aware that he was not receiving mail. An agreement was then struck between the Cuballing Post Office, the Narrogin Post Office and the applicant whereby his mail was received at the Cuballing Post Office but was then placed back in the mail service to go to the Narrogin Post Office where it would be sorted and delivered to him.
In 2014 problems arose with that arrangement. The applicant said that Australia Post then refused to deliver his mail. He raised the matter with Australia Post which advised (on 18 March 2014) that:
As long as [you live] in Contine and the postcode remains 6311 [your] mail will go to [the Cuballing Post Office] and [that your reliance] on people remembering to forward [your] mail [was a process] guaranteed to fail at some point. Although these local people have tried to assist [you], by putting in a manual process, it just sets up the service to fail if it [is] not an official automated process.
Australia Post then advised that if the applicant chose to receive his mail at the Narrogin Post Office he could apply for a reduced rate Post Office Box or a mail redirection.
The applicant then wrote to the Commonwealth Ombudsman in relation to Australia Post's position and said the response he received was 'utterly repulsive'.
The applicant said there were problems with the rates notice for the 2015/16 financial year. However, he paid the rates in full.
That brings me to the facts that pertain directly to this dispute.
The Shire issued the 2016 Notice (to what is described as property A707 Williams 1748) on 5 August 2016. The 2016 Notice was addressed to 1199 CongelinNarrogin Road, Contine WA 6311. The 2016 Notice was for an amount of $955.53 plus an Emergency Services Levy of $71.00 which amounted to a total due of $1,026.53. The State Government Rebate was $490.44 leaving the applicant owing a residual amount of $536.09.
The 2016 Notice set out three options for payment. If the payment was made before 26 August 2016 an 8% discount would apply reducing the payment to $496.17. Payment of the full amount of $536.09 could be made between 26 August 2016 and 9 September 2016. Alternatively, payment in full could be made by four equal instalments of $134.00 with the first payment (of $134.09) due by 9 September 2016.
The Shire said that at 'some time after' 26 August 2016, the 2016 Notice was 'Returned to Sender' as undeliverable mail. The Shire said that this was the first time this had occurred. The Shire then emailed the applicant the 2016 Notice and also sent it by post to 1199 CongelinNarrogin Road, Cuballing WA 6312. The Shire considered that these supplementary steps to provide the 2016 Notice to the applicant went above and beyond the service requirements of the Local Government Act 1995 (WA) (LG Act).
The applicant says he received the 2016 Notice in his mailbox after 6 pm on 26 August 2016.
The Shire and the applicant's recounting of the facts do not align as to when the applicant was provided with the 2016 Notice. According to the Shire, it only received the 2016 Notice via 'Returned to Sender' after 26 August 2016. However, the applicant said he received the 2016 Notice in his mailbox on 26 August 2016.
The applicant said he paid the 2016 Notice by cheque which he posted on 30 August 2016. The applicant paid $496.17 which was based on the 8% discount for early payment.
The Shire said it received the applicant's payment on 31 August 2016. By letter the same day, the Shire advised the applicant that the 8% discount was not available to him as his payment was not made by 26 August 2016 and that therefore, $39.92 remained outstanding which was due by 9 September 2016. Because the applicant never paid the additional rates owing, the opportunity to take advantage of the State Government Rebate lapsed at the end of the 2016/17 financial year. The outstanding amount of $530.36 for the 2016/17 financial year was then 'deferred' pursuant to s 33 of the Rates Act.
The following email exchange provides a neat summary of the dispute giving rise to these proceedings. At 11.21 am on 6 September 2016 the applicant sent the following email to the Shire.
Rates Officer
I received your letter of 31 August 2006 on Friday 2 September 2016 after 6 pm.
The Shire rate notice was received on Friday, 26 August 2016 after 6 pm. The cheque for payment was mailed on Tuesday, 30 August 2016, I call this prompt payment.
Your original envelope that was enclosed with the payment shows that my Rate Notice has been sitting in the Cuballing Post agency until a few days before delivery.
It has been known by the Shire for the last three years that there is some shit at the Cuballing Post agency refusing to deliver my mail while Narrogin Post Office delivers my mail promptly. Why are you paying for postage if you know it will not be delivered?
I hold that the Shire Rates has been [paid] in full and any financial loss to the Shire should be recovered from Australia Post.
On 7 September 206 the Chief Executive Officer of the Shire sent the following email to the applicant.
Thanks for your email. I have also attached a copy of the receipt of your payment from 31st August 2016 for your records. The original receipt has been posted to you.
In response I can advise that in line with Council's policy because your rates were not received and receipted at the close of business by the Shire of Cuballing on Friday, 26 August 2016 you are not eligible for the early payment discount.
I have confirmed that the Shire of Cuballing mailed your rates notice to the address that you have requested that it be sent to. This mailing address is 1199 CONGELINNARROGIN ROAD, CUBALLING WA 6311. As we have discussed before, I am required to send official Shire correspondence to this address. If you wish to have the Shire of Cuballing use a different mailing address to this please advise us by email or in writing of your request and the new address.
The Shire of Cuballing takes no responsibility for the delivery actions provided by Australia Post in not delivering your rates notice to you that results in a delay in delivery and/or loss to yourself. You need to take this matter up with Australia Post.
At this time you owe $530.36 outstanding on your rates assessment. You are required to make an additional payment of $39.92 in order to allow the Shire of Cuballing to claim a pensioner rebate from the State Government.
Please be advised that the due date for payment of rates is Friday, 9^th September 2016. Outstanding rates after that date incur penalty interest charges of 11% per annum, calculated daily.
Should you wish to discuss payment of your outstanding rates please contact Council's Rates Officer … For any other queries regarding this matter, please don't hesitate to contact me.
Furthermore, the following exchange of correspondence from 2015 is also relevant. On 1 September 2015 the applicant sent the following letter to the Shire:
The CEO
In a dysfunctional community
Censored Shire of Cuballing
…
RE: Shire rates
I have not thus far received the Shire Rate Notice for the year 2015.
Because the fuc↓↔g cu↔t postmaster of the Australia post agency in Cuballing is still refusing to deliver my mail in a timely manner, would you please be so kind as to email your rate notice for the year 2015 to [email address supplied][.]
On 2 September 2015 the CEO of the Shire responded to the applicant in the following terms:
…
Thank you for your letter dated 1^st September 2015 enquiring about your 2015/16 Rates Notice. As it appears that you were aware, the envelope containing your 2015/16 Rates Notice was Returned To Sender on 24 August 2015.
I have attached a scanned copy of your 2015/16 rates notice as per your request. I have also attached incidental notices that were included with all this years [sic] Rates Notices.
For the record I would advise that it is your responsibility to provide the Shire of Cuballing with an effective postal address for your rates record. The Local Government Act doesn’t yet allow emailing of rates notices as a primary method of delivery.
I would also ask that any future correspondence to Council not include any profane preferences. I understand that you have a political view on the Shire of Cuballing and I am very happy for you to express it. However the use of profanity in doing so is not appropriate[.]
At the heart of the applicant's complaint is the fact that he says he was never provided with the 2016 Notice in order to be able to take advantage of the 8% discount. He considers that Australia Post are to blame for that and any loss occasioned to the Shire is a matter between it and Australia Post.

The application to the Tribunal

The application for review is purported to be made under s 9.7(2) of the LG Act. Division 1 of Pt 9 of the LG Act allows for objections and review. Division 1 of Pt 9 applies where a local government makes a decision as to whether it will either:
(a)grant a person an authorisation under Pt 3 or under any local law or regulation that is to operate as if it were a local law; or
(b)renew, vary, or cancel an authorisation that a person has under any of those provisions.
Division 1 of Pt 9 also applies wherever a person is given a notice under s 3.25 of the LG Act (which requires a person to do certain things by an owner or occupier of land) and whenever a local law, or regulation that is to operate as if it were a local law, states that a decision under it is one to which Div 1 applies: s 9.1(2) and s 9.1(3) of the LG Act.
An 'affected person' is defined to mean a person affected by a decision to which Div 1 of the LG Act applies: s 9.2 of the LG Act. Section 9.7(1) provides a right of review to the Tribunal to 'affected persons'. The applicant is not an 'affected person' for the purposes of s 9.7(1) of the LG Act.
The 'review' is therefore misconceived to the extent that it is purported to have been made pursuant to s 9.7(2) of the LG Act.
However, the imposition and payment of rates (and objections) are dealt with under Div 6 of Pt 6 of the LG Act.

Rates and objections under the LG Act

Division 6 of Pt 6 of the LG Act deals with rates and service charges. Subdivision 3 of Div 6 deals with the 'imposition of rates and charges'. I note here that the heading of a subdivision of a written law forms part of the written law: s 32(1) Interpretation Act 1984 (WA) (Interpretation Act).
Section 6.39(1)(a) of the LG Act provides that:
[a]s soon as practicable after a local government has resolved to impose rates in a financial year it is to ensure that a record is compiled, at the time and in the form and manner prescribed, for that financial year of
(a)'all rateable land in its district[.]

That 'record [to be] compiled' is a 'rate record'. A local government is required to ensure the 'rate record' is current and correct: s 6.39(2)(a).
Part 5 of the Local Government (Financial Management) Regulations 1996 (WA) (LGFM Regs) prescribes the form and content of the rate record. The rate record is to be in a form that sets out the full name and postal address of the owner of the land: reg 55(a) of the LGFM Regs.
A local government is required to give to an owner of land a rate notice stating the date the notice was issued and must include the details prescribed by reg 56 of the LGFM Regs: s 6.41(1) of the LG Act. The rate notice is required to be given 'as soon as practicable' after the rate record has been completed: s 6.41(2) of the LG Act.
Notwithstanding s 75 and s 76 of the Interpretation Act, service of the rate notice is deemed to have been effected if delivered to the address shown on the rate record for the owner at the time of delivery: s 6.41(3) of the LG Act.
Section 6.46 of the LG Act allows a local government to resolve (by absolute majority) to grant a discount or other incentive to encourage the early payment of rates. If a discount is available, then that is to be set out in the rate notice: reg 56(4)(f) of the LGFM Regs.
Rates and charges become due and payable on such date as determined by the local government: s 6.50(1) of the LG Act. However, the date determined by a local government under s 6.50(1) is not to be earlier than 35 days after the date noted on the rate record as the date the rate notice was issued: s 6.50(2) of the LG Act.
Section 6.76 of the LG Act provides a right for a person to object to a rate record of a local government on the ground that there is an error in the rate record with respect to the identity of the owner or that the land or part thereof is not rateable land. A person dissatisfied with the decision of a local government on an objection may, within 42 days, apply to the Tribunal for a review: s 6.77 of the LG Act.
Section 6.79 of the LG Act provides that the Tribunal may consider new grounds in addition to those stated in the notice of objection. The capacity to add new grounds of objection before the Tribunal under s 6.79 does not operate to expand the scope of objections under s 6.76 of the LG Act. Section 6.79 of the LG Act merely confirms that the Tribunal's review jurisdiction is de novo in nature: Owners of Kingsley Retirement Village Strata Plan 12484 and 12951 and City of Joondalup [2018] WASAT 26 at [19].
Section 6.80 of the LG Act provides that an objection and associated review with respect to a valuation of rateable land should only proceed in accordance with the Valuation of Land Act 1978 (WA). The applicant's dispute does not relate to valuation.
Section 6.81 of the LG Act provides that the lodgement of an objection does not affect the liability to pay rates imposed under the LG Act pending the determination of the objection.
Section 6.82(1) of the LG Act provides that where a question of general interest arises as to whether a rate or service charge has been validly imposed in accordance with the LG Act, the local government or any person may 'refer' the matter to the Tribunal. If the Tribunal considers that the rate or service charge has not been properly made or imposed, the Tribunal may make an order quashing the rate: s 6.82(3) of the LG Act.

The applicant's complaint in the context of review rights under the LG Act

From what I can ascertain, the applicant's complaint is, in effect, that the 2016 Notice was not properly served on him pursuant to s 6.41(3) of the LG Act. That is not a dispute that is expressly provided for in Div 6 of Pt 6 of the LG Act.
The applicant's complaint does not fall within the scope of s 6.77 of the LG Act. That is so because the applicant does not object to a rate record of a local government on the ground that there is an error in the rate record with respect to the identity of the owner or that land or part thereof is not rateable land.
However, s 6.82 of the LG Act allows for a 'question of general interest' to be 'referred' to the Tribunal. Whilst the word 'review' does not appear in the body of s 6.82, it forms part of the Tribunal's review jurisdiction: Citygate Properties Pty Ltd and City of Bunbury [2009] WASAT 142 at [36] (Citygate Properties). In Citygate Properties Chaney J (as he then was) found (at [35]) that s 6.82 of the LG Act is:
… designed to provide a capacity for review of a limited aspect of the decision to impose a rate, namely any question of general interest as to whether the rate was imposed in accordance with the LG Act. It is an alternative method of challenging the decision to impose a rate from those more specific grounds identified in s 6.76 for which the different procedure of objection is provided. Because the right of review relates only to the role of the question of general interest in the imposition of the rate, the words chosen more appropriately described the process. The process involves a review of the decision to impose the rates albeit on a limited basis.
The majority of the applications under s 6.82 of the LG Act have applied generally to a district or area within a municipality. For example, the matters in Shire of Yalgoo [2016] WASAT 136; City of KalgoorlieBoulder [2017] WASAT 56, Shire of Toodyay [2016] WASAT 141 and Shire of Cue [2016] WASAT 91, all related to a general question of whether rates struck absent the approval of the Minister for Local Government, when such approval was required, were imposed in accordance with the LG Act.
However, the Tribunal has also found that applications which are expressed to relate to only one ratepayer may fall within the scope of s 6.82 of the LG Act. For example, in Smith and City of Stirling [2006] WASAT 6 (Smith), the Tribunal held that it has jurisdiction to consider an application on the basis that a specified area rate 'did not benefit me as a ratepayer': at [20].
In Smith, the Tribunal found that the applicant intended to raise the matter as one of public importance: at [23]. Smith stands for the proposition that the scope of a 'question of general interest' referred under s 6.82 of the LG Act can be quite narrow. Smith also suggests that it is appropriate that the Tribunal approach applications under s 6.82 in a manner which accords with Parliament's intent in establishing a right of review to the Tribunal: at [23].

Does the applicant's compliant fall within s 6.82 of the LG Act?

The service of rates notices is dealt with in s 6.41 of the LG Act. The effect of s 6.41 is that a rates notice is deemed to be properly effected if delivered to the address shown in the rate record for the owner at the time of the delivery. As set out above at [36], s 6.41 is within Sub 3 of Div 6 of Pt 6 of the LG Act. That subdivision deals with the 'imposition of rates'.
To my mind, where there is a legitimate question as to whether a rates notice has been served in accordance with the LG Act, that may raise a question as to whether the rates have been imposed in accordance with the LG Act. It follows that I consider that the question of whether a rates notice has been served in accordance with the LG Act may fall within the scope of s 6.82 of the LG Act on the basis that it raises a 'question of general interest'.
Indeed in the applicant's final submissions, he indicates his application may have been better made under s 6.82 of the LG Act.
I am mindful of the observations made in Smith that the Tribunal should approach applications under s 6.82 of the LG Act in a manner which accords with Parliament's intent in establishing a right of review. It is also the case that s 1.3(2)(c) of the LG Act provides that the LG Act is intended to result in greater accountability of local governments to their communities: Polo Enterprises Australia Pty Ltd v Shire of Broome [2015] WASCA 201; (2015) 49 WAR 134 at [60] (Martin CJ, Newnes and Murphy JJA) (Polo Enterprises Australia). Section 18 of the Interpretation Act also requires me to consider the purpose of the LG Act in a manner which promotes the underlying purposes or objects of the written law: Polo Enterprises Australia at [60].
I am satisfied that a question as to whether rates have been served in accordance with the requirements of the LG Act goes to the question of whether rates have been imposed in accordance with the LG Act. That is a question of public importance.
For these reasons, I will treat the applicant's application as being a referral to the Tribunal under s 6.82 of the LG Act in relation to a question of general interest as to whether the 2016 Notice was imposed in accordance with the LG Act. Given the effluxion of time since 2016, the application requires an extension of time under the State Administrative Tribunal Rules 2004 (WA) (SAT Rules).

The delay in bringing these proceedings

Reviews made under 6.82 of the LG Act arise in the Tribunal's review jurisdiction: Citygate Properties at [36]. It follows that r 9 of the SAT Rules applies to these proceedings. Rule 9 requires that an application for review be made within 28 days of the reviewable decision. Rule 10 allows the Tribunal to extend the time in which a proceeding may be commenced.
In this instance, the reviewable decision was the decision to impose the 2016 Notice on 5 August 2016. The events that gave rise to these proceedings took place almost three years ago. It is therefore apparent that there has been a considerable delay in bringing these proceedings.
The applicant was provided with a number of opportunities to put forward his case. At the third directions hearing in this matter (on 27 May 2019), a senior member of the Tribunal made an order allowing the applicant to file submissions that, in particular, addressed 'the issue of an extension of time for bringing the application'.
Despite the express invitation extended to the applicant to allow him to address the Tribunal on the question of the need for an extension of time, the applicant has not offered any explanation as to why it has taken him three years to seek to engage the Tribunal's jurisdiction.
The criteria which the Tribunal considers in relation to applications to extend time are well known and settled: O'Connor and Town of Victoria Park [2005] WASAT 161 at [40] (O'Connor). These considerations are:
(a)the length of the delay,
(b)the reason for the delay;
(c)whether there is an arguable case; and
(d)any questions of prejudice to the respondent.

Length of the delay

In Scolaro and Shire of Waroona [2014] WASAT 37 Judge Parry (Scolaro) made detailed comments in relation to applications to extend time under r 10 of the SAT Rules: at [8] to [16].
At [9] of Scolaro Judge Parry set out the Tribunal's approach to other cases involving applications to extend time under the r 10 of the SAT Rules. For example in:
(a)O'Connor, a delay of just over five weeks was described as 'borderline' at [41];
(b)Goedhart and Western Australian Planning Commission [2006] WASAT 49 (Goedhart) a delay of between 81 and 87 days was described as 'considerable' at [16];
(c)Hartwig and City of Canning [2008] WASAT 243 a delay of approximately five months was described as 'clearly significant' at [49];
(d)Smith and City of Wanneroo [2008] WASAT 182 (Smith and Wanneroo), a delay of over three years was described as 'extraordinary' and 'exceptional' at [4] and [10]; and
(e)Cardno BSD and Shire of Busselton [2007] WASAT 267 (Cardno BSD), a delay of three years and 10 months was described as 'very significant' at [28].
Whilst Judge Parry stressed (at [9]) that care should be taken in comparing cases where extensions of time are sought, it is relevant that extensions of time were refused in both Smith and Wanneroo (a delay of just over three years) and in Cardno BSD (a delay of three years and ten months). Leave to extend time was also refused in Scolaro (a delay of four years and eleven months).
In this instance, the delay is from 2 September 2016 (being 28 days after the decision to issue the 2016 Notice). The proceedings were commenced on 12 April 2019. That is a delay of two years and six months. The delay is therefore broadly comparable with Smith and Wanneroo, Cardno BSD in particular and, to a lesser extent, Scolaro.
There are significant consequences in an excessive delay in bringing proceedings. As Judge Parry observed in Scolaro (at [10]) that:
[A] delay of almost five years in the context of a 28 day period for the commencement of review proceedings is so extraordinary as, if an extension to commence the proceeding were granted, to greatly undermine the utility and purpose of the 28 day period for the commencement of the proceeding. The purpose of the 28 day period is to ensure that persons who are aggrieved by, relevantly, planning decisions and have a right of review by the Tribunal, should exercise their right to seek review promptly[.]
In Smith and Wanneroo Judge Chaney (as he then was) stated at [13] that:
A delay of three years, against a prescribed period of 42 days to commence proceedings, might well be approaching, if not past, the point where the delay is so great that an application for an extension of time should not be entertained. The matter was not, however, argued on that basis by the respondent, although it submitted, and I accept, that the delay is 'extraordinary'. I would not, therefore, dismiss the application purely on the basis of the length of delay alone. Rather, it is necessary to have regard to the surrounding circumstances, including the explanation of the reason for delay, and the nature of the issues sought to be ventilated, before determining the proper outcome of the application.
Those observations are apposite in this instance. The delay in bringing these proceedings, while not as excessive as in Scolaro, is nonetheless inordinate and tends to render the 28 day review period somewhat inutile.
However, as was the case in Smith and Wanneroo, the Shire has not made submissions about the delay in bringing these proceedings. I will not refuse the application on the basis of delay alone, although given the extent of the delay, I consider that conclusion is certainly open. However, in considering whether to extend time I will also consider the other tests set out in O'Connor in particular the reason for the delay and whether there is an arguable case.
The reason for the delay
As explained, despite the express invitation to address the Tribunal on the question of the need for an extension of time, the applicant has not offered any explanation as to why it has taken him two years and six months to seek to engage the Tribunal's jurisdiction. The delay is inordinate and no explanation has been offered for it.
Whether there is an arguable case
In Smith and Wanneroo Judge Chaney rejected an argument that this was the 'paramount consideration' in applications to extend time: at [30].
In Goedhart Senior Member Parry (as he then was) referred (at [21]) to the observations of Kirby J in Jackamarra v Krakouer and Anor (1998) 195 CLR 516 at 540 where he said:
… The party seeking indulgence [of an extension of time] bears the burden of persuading the decision-maker to grant its request. A consideration relevant to that exercise is whether the case is arguable. If it is hopeless, unarguable or bound to fail, the request for an extension of time will be refused. However, this is basically because to grant it would be futile[.]
Given the long standing dispute that gives rise to these proceedings, out of fairness to the applicant it is appropriate that I give careful consideration as to whether there is an arguable case.
The scheme of the LG Act as it relates to the service of rates is as follows. If a local government resolves to impose rates in a financial year it is to establish the rate record: s 6.39 of the LG Act. Once the decision to issue rates has been imposed, a rate notice is then required to be given to each owner. The rate notice is to include the date on which the rate notice was issued: s 6.40(1) of the LG Act. That rate notice is to be given as soon as practicable after the rate record of the land is completed: s 6.41(2)(a) of the LG Act. Service of the rate notice is deemed to have been effected if delivered to the address down in the rate record: s 6.41(3) of the LG Act. The rates become payable on such date as is determined by the local government: s 6.50(1). However, such date cannot be less than 35 days after the rates notice was issued: s 6.50(2) of the LG Act.
The apparent purpose of the statutory scheme is that where a local government decides to impose rates it is required to inform owners of the rate notice 'as soon as practicable' after the rate notice has been issued.
Doing the best that I can from the 'facts' that have been put forward, it is not in contest that the applicant did not receive the 2016 Notice until 26 August 2016. That is almost three weeks after the Shire issued the 2016 Notice on 5 August 2016. It is therefore apparent that compliance with s 6.42(2) of the LG Act was not satisfied until at least 26 August 2016 because the 2016 Notice was not delivered to the applicant before that date.
It is at this point that the 'facts' become less clear. The Shire says it became aware that the 2016 Notice had not been received until 'some time after' 26 August 2016 as it was returned as 'undeliverable mail'. It says it then made other arrangements to advise the applicant of the 2016 Rates Notice.
However, on this same day the applicant says he received the 2016 Notice in his mail box (after 6 pm). Therefore, on the applicant's case, the 2016 Notice was delivered to him on 26 August 2016. Therefore, any defect in the service of the 2016 Notice was cured upon its delivery to the applicant on 26 August 2016. I find that the applicant received the 2016 Notice on 26 August 2016.
Whilst there was an undoubted delay in the delivery of the 2016 Notice, I am satisfied that the Shire acted 'as soon as practicable' in serving the 2016 Notice (including re-sending the 2016 Notice after it had been returned) and that the 2016 Notice was ultimately delivered two weeks before it was due. I also find that the Shire posted the 2016 Notice to the address nominated by the applicant. The applicant did not contest otherwise.
While the minimum period of 35 days between when rates are issued and when they are to become payable is no doubt to ensure that landowners are given reasonable notice of their rates notice, I do not interpret s 6.50(2) of the LG Act as a providing for a minimum notice period for a rate notice.
This is because a local government is only required to act 'as soon as practicable' in serving a rate notice after the rates are issued. Assuming that a local government adopts the statutory minimum of 35 days as to when rates become due and payable (which the Shire did in this instance) in practical terms that will mean that every ratepayer is provided with less than 35 days' notice. The length of notice each ratepayer is given will depend on when their rates notice is delivered. However, no minimum notice period for a rate notice is expressly provided for, and nor can one reasonably be inferred, into the LG Act.
It is also the case that the LG Act does not require a landowner to be offered a discount payment for rates. The decision to offer a discount on the payment of rates is at the discretion of the local government and requires an absolute majority: s 6.46 of the LG Act. Through no fault of the applicant, nor the Shire, the simple fact is that the Shire never received the applicant's payment within the period in which a discount was available that was specified in the 2016 Notice.
I therefore find that the Shire imposed the 2016 Notice in accordance with the LG Act. This is because, despite the delay, the 2016 Notice was delivered to the applicant and he paid it. Having regard to the relevant background, I do not consider that the fact there was a delay in the applicant being served the 2016 Notice, such that he was no longer able to take advantage of the early payment discount, leads to a conclusion that the 2016 Notice was not imposed in accordance with the LG Act. There is nothing in the LG Act that requires a rates notice to be delivered in such time so as to ensure that a ratepayer can take advantage of any discount that may be offered by a local government.

Furthermore, the applicant was plainly alive to the issues surrounding the delivery of his rates notice and the address the Shire was required to post it to. The exact same issue arose in the 2015/16 where his rates notice was not delivered. In September 2015 he wrote to the Shire and requested his rates notice be emailed to him. The Shire complied but advised that it was the applicant’s responsibility to provide an effective postal address for his rates record.
It seems remarkable that the applicant is surprised that the 2016 Notice was not delivered to him in a timely manner given the events from September 2015. It would appear that the applicant did not change his contact details between 2015 and 2016. There is only so much that the Shire can do in that situation. It is required to post 2016 Notice as per the rates record.
It is also the case that the applicant did not do what he should have done when he was alerted to the fact that he no longer qualified for the 8% rates discount. The basic premise of s 6.81 of the LG Act is that even if there is a dispute around rates, the obligation to pay the rates remains. Upon receipt of the Shire's letter dated 31 August 2016, the applicant should have paid the residual $39.92 the Shire advised was outstanding and then continued to press his concerns in relating to the delayed delivery of the 2016 Notice.
The consequences of the decision not to pay the residual rates owing has meant that at the end of the 2016/2017 financial year the applicant lost his State Government Rebate. That is a function of the Rates Act. There is nothing that the Shire or the Tribunal can do to rectify that. That outcome is most unfortunate but the applicant ultimately bears responsibility for that.
The applicant is seeking to use the 2016 Notice to agitate his longstanding frustrations with Australia Post and the Shire in relation to his postal arrangements. However, for the reasons I have set out, I am satisfied the Shire imposed the 2016 Notice in accordance with the LG Act. Therefore, I do not consider that the applicant has an arguable case.

Prejudice

The Shire did not raise any question of prejudice. I therefore find that there would not be prejudice to any person if an extension of time was granted.

Decision

The delay of two years and six months in bringing these proceedings, in the context of a 28 day review period, is inordinate and unexplained. I have addressed in detail the applicant's dispute and I am satisfied that the 2016 Notice was imposed in accordance with the LG Act. Therefore, I am not satisfied that the applicant has an arguable case. The question of prejudice does not arise.
Due to the inordinate delay in bringing the proceedings, the absence of any explanation for the delay and my finding that the Shire imposed the 2016 Notice in accordance with the LG Act, leave to extend time under r 10 of the SAT rules is refused.

Order

For the reasons given:
1.Leave to extend time is refused.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR S WILLEY, MEMBER
16 AUGUST 2019