Coomealla Aboriginal Housing Co Ltd v Wentworth Shire Council

Land and Environment Court (NSW)|1999-09-14|Before: Sheahan J

These proceedings came on for hearing on 6 April 1999 for the court to determine an appeal brought by the applicant company against various rate notices issued to it by the Council in respect of the 1998-99 rate year .

The court had granted leave for the company to bring appeals in respect of 31 properties in the one proceeding. There are 31 properties listed in Annexure A to the Class 3 application, but only 27 rate notices were attached, one of which could actually cover 3 properties. In the principal affidavit filed on behalf of the applicant, details are given in respect of 29 properties.

Whatever their number, the company's relevant residential properties are situated at various locations within the Shire, mainly in the towns of Dareton, Buronga and Wentworth, and the court accepts that the company's housing stock represents a substantial proportion of Council's rating base.

The properties which are the subject of this application are not subject to any other rates or charges, save for those levied by the Shire of Wentworth.

The company asserts that the imposition of rates and charges by the Council causes the company severe hardship and has forced the sale of some of its properties, and asserts that, as a direct result, it has been unable to provide housing to needy, destitute and helpless members of the aboriginal community in the area.

The company appears to have been first registered on 9 December 1974. It derives its funding largely from Government sources, including the Aboriginal and Torres Strait Islander Commission ("ATSIC"), supplemented by rental and sale of its housing stock. It has been recognised by the Australian Taxation Office as a " non-profit " and tax-exempt entity.

It has a Board, elected in accordance with its Memorandum & Articles of Association, comprising seven directors, all of aboriginal descent, and employs a small staff many of whom have welfare-oriented, rather than administrative, functions.

Approximately 1500 persons of aboriginal descent currently reside in the area served by the company. Their rate of unemployment is approximately 80% and the community is afflicted with many social problems. Many of them are itinerant and move from family to family, house to house. At all relevant times during these proceedings, all occupants of the company's housing were aboriginal.

The company's Administrator is Glenn Milne , who has worked in his present position since September 1995. He was formerly a free-lance photographer, but has worked in the welfare sector since 1985. He has relevant qualifications, but is not an expert in the valuation of land, etc.

He testified that the company is the first port of call for people, especially aboriginal people, in need of welfare services within its housing estate. The company's premises are used as a sub-office of the Department of Social Security and officers of the company provide relevant referrals and information, particularly since front line welfare services have been withdrawn from Dareton. 30-50% of the applicants and the inquiries come from Dareton which incorporates a very poor aboriginal reserve. See Exhibit C1 .

Decisions to admit tenants to the company's housing stock are made by the directors of the company and not by Mr Milne as the manager. A lot of the decisions to admit tenants are made " on the run ", as it were, rather than at formal Board meetings, but the directors look at need, income, health of children, etc., current housing arrangements, and prioritise these among those on a waiting list.

Tenancies are not reviewed annually to reassess entitlement, but attempts are made to resettle occupants through the Department of Housing programmes and ATSIC programmes and, where possible, in the open market. The Company's houses are sold from time to time to tenants.

On 15 June 1998 Bignold J gave judgment in a similar case, between the same parties, concerning the rating year 1997-98 . See Coomealla Aboriginal Housing Co Ltd v Wentworth Shire Council (1998) 101 LGERA 10 (" the 1997 case ").

On 13 August 1997, the applicant company had resolved to amend its Memorandum of Association principally to take account of the effect of the decision of the Court of Appeal in Maclean Shire Council v Nungera Co-operative Society Limited (1995) 86 LGERA 430. The amendments formulated the objects of the company to accord with those considered by the Court of Appeal which held that they qualified the cooperative in Nungera as a " public benevolent institution " within the meaning of the exemption from rates granted by relevant sections of the Local Government Act (now s 556(h) of the Local Government Act 1993) which provides as follows: The following land is exempt from all rates, other than water supply special rates and sewerage special rates: … (h) land that belongs to a public benevolent institution or public charity and is used or occupied by the institution or charity for the purposes of the institution or charity.

As Mr Hale noted in his written submissions in the current proceedings (par 1):

In determining whether the applicants lands are exempt from rates under s.556(h) of the Local Government Act , two questions arise: (i) how the land is owned; (ii) how it is used and occupied. Trustees of Church Property of the Diocese of Newcastle v Lake Macquarie Shire Council [1975] 1 NSWLR 521 at 532.

The primary object of an organisation, such as the company in this case, or the co-operative in Nungera , is to relieve poverty and distress through the provision of housing to members of the aboriginal and Torres Strait islander community. The relevant wording adopted in the amendment to the Memorandum of Association in this case is "… to relieve the poverty, sickness, destitution, distress, suffering, misfortune or helplessness of needy members of the aboriginal or torres strait islander communities …".

In the 1997 case some argument turned on the fact that the above amendment was made only after the rating year had commenced. Bignold J held that the changes in the objects were " fundamental and constitutional ", and concluded that there was binding authority that the question of whether land is rateable is to be determined by reference to the facts existing on the first day of the rate year. He, therefore, did not take into account the amended Memorandum of Association in determining the 1997/98 rate year appeal, holding (at 17) that the lands were not as at 1 July 1997 " lands belonging to a public benevolent institution or public charity within the meaning of s 556(h ) …".

His Honour went on to consider (at 17-18) the question of " use " and " occupation " and indicated that if he had concluded that the applicant was relevantly a public benevolent institution or public charity, he would have been satisfied on the evidence that the lands were relevantly occupied or used by the applicant, were used or occupied for the purposes of the institution or charity, and that those parcels of land which were vacant were not relevantly used or occupied. All land developed with housing and let by the applicant to tenants would have been relevantly so used or occupied.

The current proceedings, regarding the 1998-99 rate year

The amended objects, referred to above, have applied on and from 1 July 1998, and I have concluded that I would almost certainly have been prepared to adopt Bignold J's reasoning, and to apply it, in these proceedings, to the current rating year. (There are no longer any relevant vacant lands). However, in the end analysis I did not have to decide the substantive proceedings. Their passage needs now to be described in some detail.

On 19 November 1998 the applicant filed the following points of claim : 1. The applicant is and was at all material times: (i) carrying on the function of a public charity or public benevolent institution by relieving poverty, sickness, destitution, distress, suffering, misfortune or helplessness of needy members of the Aboriginal and Torres Strait Islander Communities in its area by providing housing and other ancillary services; and (ii) a company duly incorporated pursuant to the laws applicable in the state of New South Wales. 2. The respondent is and was at all material times a local government authority within the meaning of the Local Government Act 1993. 3. The applicant is the registered proprietor of the land described in annexure 'A' referred to in application number 30216 of 1998 ('the subject land'). 4. On each of the subject land are located residential dwellings. 5. The applicant has the proprietary rights to the subject land and the residential dwellings located on the subject land are occupied by tenants/members of the Aboriginal and Torres Strait Islander Communities in the Curlwaa, Buronga, Gol Gol, Dareton, Wentworth and Morpung area. 6. The subject land is used to provide housing to needy Aboriginal and Torres Strait Islander families to relieve poverty, sickness, destitution, distress, suffering, misfortune or helplessness. 7. On or about 23 July 1998 the respondent posted to the applicant rate notices for the subject land for the period 1 July 1998 to 30 June 1999 ('the current ratable [sic] year'). 8. The respondent purported to levy rates and charges on the subject land for the current ratable [sic] year. The said rate notices included in the quantum a component for rates and services in arrears and interest. 9. In the premises, the subject land is exempt from all rates other than water supply special rates and sewerage special rates by reason of Section 556(h) and 574 of the Local Government Act (1993) ('the Act'). 10. The applicant is not liable to pay any rates or charges levied by the respondent in the current ratable [sic] rate notices including the arrears of rates, charges and interest on arrears included in the quantum of the levied said notices.

Council has consistently argued that it is entitled to test, and be assured of, the " integrity " of any rate exemptions on a property-by-property basis. The Council argues that it, and, on appeal, the court, should investigate the particular circumstances of each letting. There was an extended dispute about the provision of " further and better particulars ", and the adequacy of the various court documents to provide the necessary information to enable such analysis to be carried out.

The applicant provided, essentially, the information compiled in the form of a schedule (Annexure "C" to Mr Milne's affidavit of 27 November 1998), which set out the address of each property, the annual rental, the identity of the " notified " occupants, the amount of rental arrears, and the known employment status of the occupants. This schedule was described during argument as " a ready reckoner ", which, although compiled between 1 July and 27 November 1997, was " generally correct " as at 1 July 1998.

Mr Hale, for the Council, did not contest ownership of the subject lands by a public benevolent institution . However, he argued that, as the 29 properties were not " occupied " by the applicant, the question was whether they were " used " by the applicant. The Council complained that the company refused to provide relevant information, as a result of which the Council was not in a position to make the relevant exemption decision. The schedule was not adequate for Council's purposes, nor for those of this court.

Mr Hale wanted to go behind the schedule and obtain further evidence. Relevant available documents, but certainly not a file in respect of each of the 29 properties, were produced in response to a Notice to Produce, and I made appropriate orders in respect of the confidentiality of the material touching upon the circumstances of each household.

Mr Hale's consistent position, on behalf of the Council, was that, until all the evidence was available, neither the Council nor the court could determine if the test in s 556(h) had been satisfied. He sought to cross-examine Mr Milne in respect of each of the properties, one by one. The court allowed him to do so, applying the test laid down by Brennan J in Pochi v Minister for Immigration & Ethnic Affairs (1979) 36 FLR 482 at 492, a test that is easier to apply ex post facto, such as on appeal, once all the evidence is considered, rather than on the question of admissibility. Mr Milne was closely cross-examined in respect of each property, and the schedule.

Mr Milne testified (affidavit of 27 November 1998) that: 11. The properties included in this application are rented to needy aboriginal member/families whom are experiencing poverty, distress, misfortune and or helplessness. The aforementioned is the criteria which the directors of the company use and implement in determining the waiting list and allocation of housing. Preference is given to families that can illustrate the aforementioned criteria and when family applicants include children. In the circumstances when an applicant family is not known to the directors an interview will take place to determine eligibility in accordance with the aforementioned criteria. 12. A majority of the tenants do not pay rental on a regular basis. The aim of the company is to assist the families to learn to pay rent and emphasis is placed on reliability in making payments. A majority of the families are in arrears with payment of rent and such arrears vary from $500.00 to approximately $7,500.00. … 16. The properties included in this application are used by the company for the purpose of providing welfare housing and essential services to relieve poverty, sickness, destitution, distress, suffering, misfortune or helplessness of needy members of the aboriginal and Torres Strait Islander communities in the area.

Mr Robertson, on the company's behalf, contended that Mr Milne's affidavit merely brought up-to-date the evidence placed before Bignold J. More information was provided in the " ready reckoner " than should be necessary for Council's purposes. It is up to the Directors of the company, and not the Council, to decide the compliance of particular tenancy applicants with the guidelines and objects, etc. of the company. Some of the tenancies predated the amendment of the criteria in the objects, and there is no systematic review of tenancies.

As Mr Robertson pointed out, these proceedings are not an appeal against the decision taken by the company in assessing the " poverty " of each applicant and either admitting him/her/them to tenancy, or allowing him/her/them to remain. Mr Milne's evidence is that the selection method is applied equitably across each property. The decision-maker may make a mistake, but the directors operate in good faith and intra vires . The court and the Council, therefore, have no right to investigate deeply each leasing decision.

Mr Milne, in his oral evidence, testified that he prepared the schedule from the documents available and from information provided by local community workers. The files produced concern only those in respect of which the occupants had current lease documents. Leases are not insisted upon. When a house is vacant it is often " squatted ", and the directors then, generally, review whether those people who have gone into occupation, should remain there.

Some tenants are far less needy, or become far less needy, than others. Employment is only one criterion of need. While there might be no review process, the directors regularly discuss approaching people to move out. In Mr Milne's view, the rent charged by the company is approximately half market price (he is a landlord himself). For a brick veneer home worth approximately $100,000 and less than 10 years old, the top rent charge would be $85 per week. Houses which are barely " livable " might attract a rent of $45 per week. One of the company properties is condemned and no rent is charged for it.

Mr Milne impressed me as a frank and open witness who sought to be co-operative. He was reluctant to undertake the large exercise he said was involved in answering the 30 September request for further and better particulars, but he also testified that he was not consulted about it. He currently has less staff resources to help him than he did during the 1997 case.

At the end of Mr Milne's cross-examination, Mr Hale took instructions and then conceded that, even in the absence of all the documents he would like, the respondent would consent to the orders sought by the applicant, but only for this year . The Council asserts the right to make its own assessment of the matter on a yearly basis.

Mr Hale then asked for an order for costs in favour of the Council.

In opposition to such an order being made, Mr Robertson recalled Mr Milne, but it was shortly apparent that, in the absence of the General Manager of the Council, Mr Hale was not in a position to deal with Mr Milne's evidence on the question of costs, and I, accordingly, adjourned the matter part-heard.

When the hearing resumed on 11 August 1999, Counsel for the parties agreed to proceed on the basis of filed affidavits, and tendered documents, and not call any further oral evidence.

The evidence now before the court discloses the following chronology of relevant events: 7-8 May 1998 Hearing before Bignold J 15 June 1998 Judgment of Bignold J 30 June 1998 The applicant's solicitor wrote to the respondent suggesting a global settlement of matters issue between the parties in the light of Bignold J's judgment, especially His Honour's " favourable " obiter dicta . The letter dealt with the (reserved) question of costs of those earlier proceedings and the payment of arrears out of the proceeds of the then forthcoming property sales. 23 July 1998 Council levied 1998-99 year rates on the subject properties, allegedly without responding to the applicant's propositions of 30 June, or making inquiries consistent with Bignold J's remarks on judgment. 19 August 1998 The current Class 3 application was filed. 24 August 1998 Council's solicitors sought from the applicant's solicitors " full details of each rated parcel of land, the present usage of each parcel and the grounds upon which your client seeks exemption ". They acknowledged that details were provided " in respect of the financial year 30 June 1997 " but queried if sales to tenants were " envisaged or may have in fact already occurred ". 26 August 1998 The applicant's solicitors responded that the " details " sought were " similar " to those provided, save for the omission of the two horticultural properties, that the grounds for exemption were " self explanatory ", and that " contracts of sale to tenants are still under negotiation ". 25 September 1998 The respondent " appeared " in these proceedings. 30 September 1998 The respondent made a more formal request for further and better particulars, and the applicant responded that the details regarding the properties, as provided during the earlier proceedings, " have not changed ", and that " we will oppose your request for further and better particulars " as it " is unnecessary and will provide an unnecessary duplication of work and costs ".

The assertion is made on the applicant's behalf, both in Mr Milne's affidavit of 23 April 1999 (par 6), and in Mr Robertson's oral submissions, that " no similar opposition, inquiry or scrutiny has been conducted by the respondent in relation to any non-Aboriginal organisation seeking rating exemption ".

In this vein the applicant also seeks to rely on a letter to Mr Milne from the Mayor of Wentworth, Mr D A McKinnon ( Exhibit C2 ) as evidence of bias, if not of racial prejudice, on Council's part. Inter alia , the Mayor spoke of " people " being " then faced with the ludicrous situation where not only do the Aboriginal community run riot and ruin the living conditions of other people, but they do not want to pay rates ".

There has been much debate about the detailed request for further and better particulars dated 30 September 1998. The applicant contends that most of the information thereby sought was already known by the respondent, and that the balance, if relevant, was the subject of ongoing dialogue between Mr Milne and various Council officers.

It is also clear, from the evidence, that the respondent was well aware of " significant financial pressure " upon the applicant, resulting in difficulties regarding the payment of rates and arrears. Indeed the respondent had notified the applicant on 9 October 1996 of its intention to sell ten of the applicant's houses for unpaid rates.

For its part the Council's position on the questions of the particulars, its alleged discriminatory stance, and the contents of many discussions between its officers and Mr Milne, was explained by McMillan, Spitty and Thompson in their affidavits filed 4 June 1999 in response to Mr Milne's of 23 April 1999.

Council also points to its solicitors' letter to the applicant's solicitors dated 8 January 1999 (see Exhibit W1 ) as indicating its good faith and its openness to exemption. That letter says: You will note from the Points of Defence that notwithstanding that details were provided in the 1998 action, all properties must be considered on their merits as at 30 June 1998 and not 30 June 1997 and accordingly we again seek the further and better particulars as set out in the attached letter. Upon receipt of this updated information, we may be in a position to seek instructions concerning whether some of the properties may in fact be exempt from the payment of general rates.

The court has also had regard to the Council's solicitors' letter to the applicant's solicitors dated 23 March 1999 ( Exhibit W1 ), two weeks before the hearing, and in which reference is made to the " refusal to answer " the request for particulars and other matters regarding some of the affidavit evidence upon which the applicant intended to rely. The letter goes on: You will recall that when the matter was set down for hearing counsel for the respondent drew attention to this and pointed out that the objection would be taken at the final hearing. It was pointed out that in these circumstances the setting of the matter down for hearing was at the applicant's risk.

Your client has also refused to provide particulars about the specific details of each property. This leaves our client and the ratepayers of the council in an impossible position in that you have denied our client the opportunity to defend or contest the assertions. It has also denied our client the opportunity of assessing the strengths or weaknesses of your client's claim and hence to obtain any proper instructions as to whether or not the proceedings should be defended.

In the event that the objections fail we propose to cross examine Mr Milne to obtain all the relevant information that should have been provided and prior to the conclusion of the cross examination will make application to adjourn the hearing to enable us to check the accuracy of his assertions. We will of course make application that the applicant pay the costs thrown away by reason of this adjournment.

The applicant's refusal to provide the council with any relevant material to enable it to either properly consider the claim for exemption so as to either approve or refuse it or to contest the proceedings rather suggests that the applicant has refused to supply this information in the hope that it might obtain a forensic advantage. In doing so the applicant has sought to deny the respondent procedural fairness. In approaching the matter in the way it has in the face of the warnings by the respondent, the applicant must be taken to have recognised the risk of an order for costs against it

We have written this letter to put the applicant on notice, yet again, of the risks it runs and the unfairness to the respondent.

The solicitors for the applicant responded in strong terms on 25 March 1999 (see again Exhibit W1 ). Inter alia , that letter said: We note you failed to attend the call over on the 12th of January 1999 and that at the adjourned call over on 10th February 1999 the Court ordered that the matter be set down for a two day hearing on 6 and 7 April 1999. At this call over you did not seek an order for further and better particulars of our clients claim or affidavit nor did you seek an order for late filing of any affidavit material upon which you intend to rely or for liberty to serve a notice to produce.

We reiterate that we will be objecting to any evidence being adduced by the respondent at the hearing other than what is contained in your points of defence.

In paragraph 6 of your letter you refer to the inability of your client council to 'properly consider the claim for exemption so as to either approve or refuse it or to contest the proceedings' . We strongly reject your assertions that your client Council has been denied procedural fairness and say further that it could be construed by your clients conduct that our client has been denied natural justice. We are concerned with regard to your clients conduct regarding the aforementioned issue and the time lapse from 18 February 1999 to 23 March 1999 to raise this issue at such a late stage. We will rely on this letter and previous correspondence between the parties regarding the issue of costs for any application. … We are at a loss to know what more information you need to consider this matter. You have full details of each property. Your client has rate records for each property and you have more than adequate information containing the tenant status. If there is specific information that you consider you require then we invite you to specify the same by 5.00pm on 29th March 1999 and we will consider the same. This is not an invitation to make a general request but is an offer made in good faith in an attempt to get this matter properly before the Court without expensive and unnecessary time delays associated with procedural matters that to date you have failed to address at the call overs that were the proper forum venue for such matters.

Costs orders are compensatory and not punitive in character. Latoudis v Casey (1990) 170 CLR 534.

When it comes to the issue of costs in cases such as this, which fall within Class 3 of this court's work, the court has to be satisfied that " the circumstances are exceptional ". (Practice Direction 22 December 1995, par 10A).

Such conclusions regarding the circumstances of each case must be drawn from the factual situation peculiar to that case.

I am satisfied that the possible rating of these properties is a major impost on the applicant company, but also that their exemption from rates is a serious policy and financial issue for the Council.

I am also satisfied that Council has a statutory obligation to satisfy itself of any entitlements to exemption from rates. Each year there must be a fresh application and a separate determination, and the applicant bears an onus of proof. The exemption is not discretionary, but its basis, in the terms of s 556(h) of the LG Act, must be made out. Also, sales of any properties may affect their rateability and/or entitlement to exemption.

If Council refuses exemption, the company has, and is perfectly free to exercise, a right of appeal to this court. Once such appeal proceedings are commenced, the Council is unquestionably entitled to seek further and better particulars, and, even if those particulars have already been provided, in some other context or form, or their contents " should " have been known to the Council, the Council is entitled to some constructive response.

In this case, I accept that some information, which Council believed it needed in order to decide the question of exemption for the 1998-99 rating year, became specifically available only during Mr Milne's oral evidence, and the inspection of documentary material, on the first day of hearing of these proceedings, namely 6 April 1999.

Feeling aggrieved by one's dealings with other parties, even if one party perceives it has been unfairly treated, may not amount to " exceptional circumstances ". It may be necessary to show, for example, that the other party has acted capriciously, or in a way which lacks plausible justification. See Anibal 21 Pty Ltd v Waverley Council (1998) 98 LGERA 296.

" Disentitling conduct " by one party must be " connected with " the litigation in some way. Donald Campbell & Co v Pollak [1927] AC 732 at 811-812.

The parties' relative capacity to pay costs, either their own or those of an opponent entitled to an order, is " a consideration extraneous or irrelevant to the proper exercise of the [court's] discretion " on questions of costs . Director General of the Department of Land & Water Conservation v Ramke [1999] NSWLEC 22.

It would seem to me, with respect, that the most relevant principle to guide me in the circumstances of this case is that espoused by McHugh J of the High Court in his learned survey of a range of cases on the costs discretion, in his judgment in Re the Minister for Immigration and Ethnic Affairs; Ex Parte Lai Qin (1997) 186 CLR 622, at 625, namely: If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings. This approach has been adopted in a large number of cases: [See, eg, (Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194)].

It is trite to observe, with the wisdom of hindsight, that some aspects of this matter could have been dealt with differently, and perhaps to better effect in the resolution of relevant differences between these parties. However, that is the nature of much litigation, and, regrettably, not truly " exceptional ".

One can only hope that any future differences between the parties on the question of the rating of company properties prove easier to resolve, but, so far as the present proceedings are concerned, I have concluded that the interests of justice and fairness are best served by my making no order as to costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Land and Environment Court of New South Wales CITATION: Coomealla Aboriginal Housing Co Ltd v Wentworth Shire Council [1999] NSWLEC 211

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