Jassls Pty Limited v Valuer General

Australand Holdings Pty Limited v Hornsby Council [1998] NSWLEC 128 (18 June 1998); Bursill v Chief Commissioner of State Revenue [2001] NSWLEC 298 (23 November 2001); Danny Kidron & Andrew Spail Architects Pty Ltd v Garrett (1994) 35 NSWLR 572; CASES CITED: Gallo v Dawson (1990) 93 ALR 479; Jackamarra v Krakouer (1998) 195 CLR 516; Perpetual Trustees Australia Ltd v Chief Commissioner of State Revenue [2000] NSWLEC 173 (9 August 2000); Pollak v Valuer General [1999] NSWLEC 37 (26 February 1999)

APPLICANT Ms S A Duggan (barrister) SOLICITOR LEGAL REPRESENTATIVES: Kirkby & Associates Lawyers RESPONDENT Ms J K Murray NSW Crown Solicitors Office

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

1 HIS HONOUR: The applicant, Jassls Pty Limited, moves the Court by notice of motion dated 8 December 2005 for leave to appeal under s 38(2) of the Valuation of Land Act 1916 (NSW) ("Valuation Act") after the 60 day period for making an appeal provided in s 38(1) of the Valuation Act has expired. 2 The applicant relies upon an affidavit of Mr Stephen John Coulter sworn 8 December 2005 in support of its motion. Mr Coulter is the director and secretary of the applicant. I will return to the substance of Mr Coulter's evidence in the course of the judgment. 3 Ms Duggan of counsel appeared for the applicant. Ms Murray, a solicitor with the Crown Solicitor's Office, appeared for the Valuer General. Ms Murray indicated to the Court at the outset that the respondent neither supports nor opposes the applicant's motion for leave to appeal after the 60 day period had expired.

Chronology 4 The applicant received its land tax assessment on 16 January 2005. The applicant's land was valued at $2,000,000. The applicant, as it was entitled to do, lodged an objection to the valuation. This was done on 22 February 2005. There was then a lengthy delay whilst the Valuer General considered and resolved the applicant's objection. 5 On 22 August 2005, the Valuer General wrote to the applicant disallowing the applicant's objection. The letter of the Valuer General was received by the applicant on 24 August 2005. Of some importance in understanding the reasons for the delay in lodging the appeal is the fact that the letter from the Valuer General merely informed the applicant that the applicant was entitled to appeal to the Land and Environment Court against the Valuer General's determination disallowing the objection. However, the Valuer General did not specify that the time period in which the applicant must lodge an appeal under s 38(1) of the Valuation Act was 60 days. Indeed, there was no specification in the letter of any time period in which an appeal needed to be instituted. 6 On 9 September 2005, the applicant sent to the Valuer General a letter requesting particulars as to what valuations and what physical characteristics the Valuer General relied on to make the initial determination and the subsequent refusal of the applicant's objection as notified in the letter of 22 August 2005. 7 On 11 October 2005, the applicant received a letter dated 7 October 2005 from the Valuer General attaching a list of sales in the Northmead area that were analysed by the Valuer General in carrying out the valuations in that area. That letter of the Valuer General again advised the applicant that it was entitled to appeal to the Land and Environment Court against the determination of the Valuer General disallowing the applicant's objection. However, again the letter failed to specify that the time period for appeal under s 38(1) of the Valuation Act was 60 days or that there was any time period at all. 8 Mr Coulter in his affidavit of 8 December 2005 says that after receiving the letter of 7 October 2005 from the Valuer General he tried several times to speak to a Mr Michael Davidson, being the person whom the letter advised the applicant should contact to discuss the letter or any aspect of the matter. 9 On 27 October 2005, Mr Coulter spoke to a Mr Peter McGovern of the Valuer General's office. There was a conversation of approximately half an hour during which there was a discussion as to the method by which the Valuer General had arrived at the valuation originally specified and that was the subject of objection by the applicant. During that conversation Mr McGovern informed Mr Coulter that he should speak to Mr Michael Davidson if Mr Coulter wished to take the matter further. Mr Coulter was not able to do that at that time because Mr Davidson was out of the office. 10 Mr Coulter states that over the next week he telephoned twice in an endeavour to speak to Mr Davidson. On each occasion Mr Coulter was advised that Mr Davidson was not in the office. 11 On 8 November 2005, Mr Coulter again telephoned the Valuer General's office and this time he was successful with his attempt to speak to Mr Davidson. Mr Davidson explained the method by which the Valuer General's office had arrived at the $2,000,000 valuation. Mr Davidson also advised that the Valuer General's office would "stay with" that valuation. Mr Coulter then said, "So I have no other alternative now other than to go to court?" to which Mr Davidson replied, "You have the right to appeal it at court." 12 By this time, that is 8 November 2005, the time period specified under s 38(1) of the Valuation Act for an appeal had already expired. The period had expired by 24 October 2005. Notwithstanding this fact, Mr Davidson still had advised Mr Coulter in the telephone conversation on 8 November 2005, that the applicant had a right to appeal the disallowance of the objection by the applicant. Again Mr Davidson of the Valuer General's office did not advise Mr Coulter that there was a period of time for appeal. 13 Later on 8 November 2005, Mr Coulter states he telephoned a solicitor, Linda Bryett, at Kirkby and Associates, Lawyers. In the course of that conversation Ms Bryett advised Mr Coulter that the applicant would have a problem appealing to the Land and Environment Court, there being a 60 day time limit from the date of the determination of the objection. That date of determination of objection was 22 August 2005. Nevertheless, Ms Bryett advised that a principal of the firm of solicitors, Mr Robert Kirkby, would look at the matter and provide advice to the applicant. It would appear that the applicant sent the relevant papers to Kirkby and Associates for advice. 14 On 11 November 2005, the applicant received advice from Mr Kirkby. As a result of that advice, the applicant became aware for the first time that the time for making an appeal had elapsed, the Land and Environment Court might allow the applicant to appeal after that time period, and that the applicant should obtain a report of an expert valuer to ascertain if there were reasonable prospects of success on any such appeal. 15 As a result of that advice, on 17 November 2005, Mr Coulter on behalf of the applicant instructed a firm of valuers, Kohler Bird Appraisals, to provide the applicant with a valuation report. 16 On 30 November 2005, the applicant received a valuation report from Kohler Bird Appraisals valuing the land value of the applicant's property at $1,000,000. This was half of the value as determined by the Valuer General of $2,000,000. 17 On the same day that the applicant received the valuation report, namely 30 November 2005, Mr Coulter telephoned his solicitor, Mr Kirkby, and instructed Mr Kirkby to lodge an appeal against the determination as soon as possible. 18 On 8 December 2005, the notice of motion seeking leave to appeal after the 60 day period was filed with this Court.

Legislative provisions 19 The time for an appeal against the Valuer General's determination of an objection is specified in s 38(1) of the Valuation Act. This states that: "An appeal must be made not later than 60 days after the date of issue of the notice of the Valuer-General's determination of the objection".

20 There is, however, the facility for this Court to allow a person to appeal after the 60 day period. This facility is contained in s 38(2) of the Valuation Act. It was inserted in 2000. Prior to that there still was power of the Court to enlarge the time. However, this power was under the relevant rules of court. This Court exercised the power under the rules of court to enlarge time to appeal under s 37 of the Valuation Act in Pollak v Valuer General [1999] NSWLEC 37 (26 February 1999).

Principles governing exercise of discretion to allow appeal out of time 21 In Gallo v Dawson (1990) 93 ALR 479 at 480, McHugh J stated: "The grant of an extension of time under this rule [order 60 Rule 6 of the High Court Rules ] is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purposes of enabling the Court or Justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-195. When the application is for an extension of time in which to file an appeal it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes at 263-264; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has 'a vested right to retain the judgment' unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201." 22 The High Court again dealt with the question of the principles governing the exercise of a court's discretion to extend time for entering an appeal for hearing in Jackamarra v Krakouer (1998) 195 CLR 516. Of particular relevance is the discussion in relation to the guideline that it is necessary to consider the prospects of the applicant succeeding in the appeal. Brennan CJ and McHugh J at 521 [7] stated that: "where the applicant's right of appeal has gone, courts should insist, as they do, that the time for appealing will not be extended unless the proposed appeal has some prospects of success."

Kirby J at 540 [66] stated that: "The party seeking indulgence 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 [see Foreman v Federal Commissioner of Taxation (1983) 69 FLR 386 at 387-388]. However, this is basically because to grant it would be futile. The practice ordinarily adopted in judging the arguability of a point was described by Lord Denning MR for the English Court of Appeal in R v Secretary for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 at 1091. It ordinarily involves consideration of 'the outline of the case':

'We never go into much detail on the merits but we do like to know something about the case before deciding whether or not to extend the time.' This description accords with my own experience of Australian practice. It appears to accord with that of the Federal Court of Australia where Mehta was cited and applied [see Jess v Scott (1986) 12 FCR 187 at 191-192]. In Esther Investments (1989) 2 WAR 196 at 205, Seaman J, talking of the practice of the Supreme Court of Western Australia, said that the assessment of the merits was necessarily 'broad' because the Court, on an application to extend time, will ordinarily have only 'limited materials and argument'. Reason and efficiency support this practice. On an application to cure a procedural time default, the parties are entitled to expect that the court will deal with procedural issues and not without warning or consent turn the motion into the substantive hearing of the appeal. Were that to be a common practice, the time of the courts in reviewing the factual and legal details of cases might be doubled - first in the practice list and then, if the matter were allowed to proceed, in the substantive hearing. That would not be an efficient use of the court's time or of the parties' attention to the case. Moreover, it could work an injustice on a party if a telescoped hearing, which should primarily be addressed to a procedural question, were converted into the determination of issues of complexity of substance, the proper treatment of which may require more time than is typically available in a busy practice court".

23 The Court of Appeal of New South Wales dealt with the question of the court's discretion to extend time to appeal in Danny Kidron & Andrew Spail Architects Pty Ltd v Garrett (1994) 35 NSWLR 572. Priestley JA, with whom Sheller JA agreed, stated at 578 that: "Where delay is small, an appeal is not hopeless, and no relevant prejudice will be caused by an extension of time, it seems to me that a due exercise of discretion requires the granting of an extension of time." 24 These principles have been considered by this Court in a number of cases involving applications for leave to appeal after the statutory period for appeal has expired. 25 I earlier referred to the decision in Pollak v Valuer General [1999] NSWLEC 37 (26 February 1999). In that case, Bignold J cited the principles in the Court of Appeal's decision in Danny Kidron & Andrew Spail Architects Pty Ltd v Garrett (1994) 35 NSWLR 572, to which I have earlier referred. His Honour applied the threefold principles to determine that it was proper to extend the time for appeal. As I have earlier noted, his Honour did so pursuant to the power in the rules of court. At that time, there was no express power in s 38(2) of the Valuation Act. 26 In Australand Holdings Pty Limited v Hornsby Council [1998] NSWLEC 128 (18 June 1998), Lloyd J considered an application for extension of time within which to institute an appeal under s 56A of the Land and Environment Court Act 1979 from a decision of a commissioner to a judge of this Court. Lloyd J stated the relevant principles to be as follows: "11. The proper exercise of the discretion of the Court to an application for an extension of time within which to appeal requires the consideration of whether strict compliance with the Rules will work an injustice ( Gallo v Dawson (1990) 64 ALJR 458 at 459). In determining this question the Court may have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, the consequences for the parties of the grant or refusal of the application for an extension of time and the prospects of the applicant succeeding in the appeal ( Gallo v Dawson (1990) 64 ALJR 458 at 459). The Court must also bear in mind that when the time for appeal expired, the party in favour of whom the judgment has been given has a vested right to retain the judgment unless an extension of time for appealing should be obtained ( Vilenius v Heinegar (1962) 36 ALJR 200 at 201; Gallo v Dawson (1990) 64 ALJR 458 at 459). It is arguably more correct, however, to say that the party for whom judgment has been given has a legitimate expectation rather than a vested right to retain the judgment unless an extension of time for appealing is obtained. Recently the High Court has, by majority, succinctly refined these considerations to the following main factors: length of delay, reason for delay, whether there is an arguable case, and the extent of any prejudice suffered ( Jackamarra v Krakouer ( 1998) 195 CLR 516)."

27 In Perpetual Trustees Australia Ltd v Chief Commissioner of State Revenue [2000] NSWLEC 173 (9 August 2000), Bignold J considered the issue in the context of another application for leave to extend the time period within which an appeal under s 56A of the Land and Environment Court Act 1979 against a commissioner's decision to a judge of the Court could be instituted. Bignold J referred to the helpful collection of principles by Lloyd J in Australand Holdings Pty Limited v Hornsby Council [1998] NSWLEC 128 (18 June 1998), namely length of delay, reason for delay, extent of prejudice, and whether there is an arguable case. His Honour adopted those four principles in determining that the Court ought to exercise its discretion to extend the time by which an appeal could be instituted. 28 In Bursill v Chief Commissioner of State Revenue [2001] NSWLEC 298 (23 November 2001), Cowdroy J referred to the principles summarised by Lloyd J in Australand Holdings Pty Limited v Hornsby Council [1998] NSWLEC 128 (18 June 1998). However, Cowdroy J considered that "the overriding matter" is that considered by the Court of Appeal in Danny Kidron & Andrew Spail Architects Pty Ltd v Garrett (1994) 35 NSWLR 572. Cowdroy J applied the threefold test in the latter case to determine that leave should be granted by the Court pursuant to s 38(2) of the Valuation Act to appeal after the sixty day period for making an appeal provided in s 38(1) of that Act has expired. 29 I propose to approach the exercise of the Court's discretion under s 38(2) of the Valuation Act having regard to the fourfold principles stated in the High Court decisions of Gallo v Dawson (1990) 64 ALJR 458 and Jackamarra v Krakouer (1998) 195 CLR 516, and summarised by Lloyd J in Australand Holdings Pty Limited v Hornsby Council [1998] NSWLEC 128 (18 June 1998), namely length of delay, reason for delay, extent of prejudice, and whether there is an arguable case.

30 The date for appeal under s 38(1) of the Valuation Act expired on 24 October 2005, being 60 days after the date of determination of the objection had been given. The application for leave to appeal under s 38(2) of the Valuation Act was made to this Court on 8 December 2005. The delay is, therefore, 45 days. This period in itself is not excessive. 31 More importantly, the affidavit evidence of Mr Coulter explains the action taken by the applicant in that 45 days. I have summarised this action in the judgment above under the heading Chronology. Of relevance is, first, the endeavours by Mr Coulter of the applicant to discuss the method and reasons for the determination of the Valuer General in the initial valuation and in the disallowance of the applicant's objection, secondly, the applicant seeking advice from solicitors after exhausting the possibility of the Valuer General varying its decision (which was the purpose of the discussions between the applicant and the Valuer General's office), and, thirdly, the applicant seeking and obtaining valuation evidence to establish that there were reasonable prospects of success if an appeal to this Court against the disallowance of the objection by the Valuer General were to be made. None of the periods of time involved in the taking of each of these steps could be said to be unreasonable. 32 It is also relevant that at no time did the Valuer General notify the applicant of the fact that any appeal against the Valuer General's determination of the applicant's objection was required to be lodged pursuant to s 38(1) of the Valuation Act within 60 days. Of course, the applicant has an obligation to make enquiries of what is the law. However, good administrative practice would suggest that the Valuer General, in both its official notifications of determination of objections and in unofficial communications with applicants, would advise of the statutory period for lodging an appeal. 33 For these reasons, the length of delay of 45 days is acceptable in this case.

34 For the reasons I have given in the preceding section of the judgment, the applicant has provided an explanation for the delay which is reasonable.

35 In assessing this factor it is relevant to note the nature of the appeal. This is an appeal under s 37 of the Valuation Act by a person entitled to object to a valuation if that person is dissatisfied with the Valuer General's determination of any such objection to the valuation concerned. The respondent to the appeal is the Valuer General. The Valuer General carries out valuations of land and determines objections to valuations pursuant to statutory powers and by reason of a statutory obligation. The Valuer General has no proprietary interest in the outcome of the exercise of those powers or of the determination of any appeal to this Court. Accordingly, it is not relevant to refer to the respondent in any appeal under s 37(1) of the Valuation Act as having a vested right or a legitimate expectation that the original determinations would be maintained. Accordingly, it is difficult to conceive of what prejudice could ever be suffered by the Valuer General as a respondent to an appeal under s 37(1) of the Valuation Act. 36 In any event, the respondent in this case does not positively assert that it would suffer any prejudice if the Court were to allow the applicant to appeal after the 60 day period.

37 The Valuer General determined that the value of the land was $2,000,000. The applicant has engaged a valuer, Kohler Bird Appraisals, to prepare a valuation, which valuation determines that the same land has a value of $1,000,000. That determination is set out in a report of valuation of some 23 pages. It represents a careful consideration of the matter. It is not appropriate that, for the purposes of determining this notice of motion, the Court determine the correctness of that valuation. It is sufficient to simply note that there has been a careful consideration on the face of the report and that a valuation of half of the value determined by the Valuer General has been determined as appropriate. This is sufficient to establish that there is an arguable case for the applicant on an appeal under s 37(1) of the Valuation Act that the value of land should be less than that determined by the respondent.

38 Having considered each of the four principles, the Court is satisfied that this is an appropriate case to allow the applicant to appeal after the 60 day period.

1. Pursuant to s 38(2) of the Valuation of Lands Act 1916, the applicant is allowed to appeal after the 60 day period for making the appeal provided in s 38(1) of the Valuation of Lands Act 1916.

2. The time for filing an appeal be extended to 8 February 2006 and the application Class 3 purported to have been lodged on 8 December 2005 be now treated as having instituted the appeal in these proceedings. 3. That each party pay their own costs of the notice of motion dated 8 December 2005.

4. The proceedings be listed for a directions hearing on 22 February 2006 before the Registrar.

I certify that this and the 12 preceding pages are a true copy of the reasons for the judgment of The Honourable Justice B. J. Preston.

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