Abuse of process - Baseless allegations of fraud and impropriety

State Administrative Tribunal Act 2004 (WA), s 47, s 47(2), s 47(3)

Valuation of Land Act 1978 (WA)

The applicants' applications are dismissed under s 47 of the State Administrative Tribunal Act 2004 (WA)

The applicants objected to the unimproved value determined by the Valuer General for two properties for the 2014­2015 assessment year.

On 15 November 2015, Mr George Ninan, on behalf of the applicants, requested the Valuer General to refer the valuation of the properties to the Tribunal for review.

The applicants have previously sought review of the unimproved value and gross rental value valuations for the properties as well as other properties. In the previous applications, the applicants had alleged fraud and impropriety against the Valuer General and others.

In their previous applications before the Tribunal it had been made absolutely clear to the applicants that their allegations of fraud and impropriety constituted an abuse of process.

In the present applications, the applicants once again alleged fraud and impropriety against the Valuer General and others.

The Tribunal determined that the applicants' applications were an abuse of process in that they sought to pursue allegations that are outside those of the Tribunal's jurisdiction; and an abuse of process in that the applicants used the Tribunal's proceedings to make very serious allegations which are completely baseless.

The applicants' applications are dismissed pursuant to s 47 of the State Administrative Tribunal Act 2004 (WA).

Laurent and Commissioner of Police [2009] WASAT 254

Medical Board of Australia and Woollard [2016] WASAT 26

Ninan & Anor and Valuer General [2012] WASAT 248

Ninan and Valuer General [2014] WASAT 93

1 Mr George Ninan and Ms Molly George (the applicants) objected to the unimproved value determined by the Valuer General for two properties in Dawesville, Western Australia, for the 2014­2015 assessment year.

2 On 15 November 2015, Mr Ninan, on behalf of the applicants, requested the Valuer General to refer the valuation of Lot 11 Sanctuary Court, Dawesville and Lot 276 Surf View, Dawesville (the Properties) to the Tribunal for review.

The applicants' previous matters before the Tribunal

3 The applicants have previously sought review of the unimproved value and gross rental value valuations for the Properties and other properties (Ninan & Anor and Valuer General [2012] WASAT 248 (Ninan 2012) and Ninan and Valuer General [2014] WASAT 93 (Ninan 2014)). In each of those matters, the applicants were ordered to pay the Valuer General's costs or part thereof (Ninan 2012 (S) and Ninan 2014 (S)).

Valuation of Land Act 1978 (WA)

4 In Ninan 2012, Senior Member McNab explained and set out the relevant provisions of the Valuation of Land Act 1978 (WA) (VL Act) and the relevant authorities in careful detail. Senior Member McNab stated at [32]­[35]:

1. Section 32 of the VL Act, so far as relevant, provides as follows:

(1) Any person liable to pay any rate or tax assessed in respect of land who is dissatisfied with a valuation of such land [made under relevant provisions of the VL Act] may serve upon the Valuer­General or any rating or taxing authority a written objection to the valuation ­

(a) in the case of land the subject of a general valuation, within 60 days after the date on which the making of the valuation was notified in the Government Gazette under section 21 or section 22; and

(b) in any case where the valuation is the basis of the assessment by a rating or taxing authority of any rate or tax, within 60 days after the issue of such an assessment.

(1a) In subsection (1), person liable to pay any rate or tax assessed in respect of land includes the authorised representative of such a person.

(a) describe the relevant land so as to identify it; and

(c) set out fully and in detail the grounds of objection and the reasons in support of those grounds of objection.

(3) An objection to a valuation of land may be made on the ground that the valuation is not fair or is unjust, inequitable or incorrect, whether by itself or in comparison with other valuations in force under this Act.

(4) A person may not make more than one objection to the one valuation during any period of 12 months.

(5) Where an objection to a valuation is served on a rating or taxing authority, that authority shall as soon as practicable refer the objection to the Valuer­General and advise him of the date on which the objection was served on that authority.

(6) The Valuer-General may, for reasonable cause shown by a person entitled to make an objection, extend the time for service of the objection for such period as the Valuer­General considers reasonable in the circumstances and whether or not the time for service of the objection has already expired.

(7) The Valuer-General shall, with all reasonable despatch, consider any objection and may either disallow it or allow it, wholly or in part.

(8) The Valuer-General shall promptly serve upon the person by whom the objection was made written notice of his decision on the objection and a brief statement of his reasons for that decision.

(9) Where the Valuer-General decides to allow an objection, wholly or in part, he shall also advise the person by whom the objection was made of any consequent amendment of valuation; and where the Valuer­General decides to disallow an objection, wholly or in part, he shall also advise that person of the time within which and the manner in which a review of the valuation may be sought.

1. In Robertson and Valuer General [2007] WASAT 213 (Robertson) it was noted that, at [22]:

Section 33 of the VL Act provides that any person who is dissatisfied with the decision of the Valuer General on an objection may, by notice, require the Valuer General to 'refer the valuation to the State Administrative Tribunal for a review'. Section 36A(1) states that, upon a review by the Tribunal on a referral under s 33, the Tribunal may consider grounds in addition to those stated in the notice of objection and reasons in addition to those previously given by the Valuer General. Section 27(1) of the State Administrative Tribunal Act 2004 (WA) states as follows:

The review of a reviewable decision is to be by way of a hearing de novo, and it is not confined to matters that were before the decision­maker but may involve the consideration of new material whether or not it existed at the time the decision was made.

1. Section 35 of the VL Act deals with refusals to extend the time limited for making an objection fixed under s 32(6), set out above. Section 35 provides as follows:

(1) A person who is dissatisfied with a decision of the Valuer General to refuse to extend the time for service of an objection against a valuation or for service of a notice requiring the Valuer General to refer the valuation to the State Administrative Tribunal for a review may serve on the Valuer General a notice requiring the Valuer General to refer the decision to refuse to extend time to the State Administrative Tribunal for a review.

(2) Upon receipt of such notice the Valuer General shall promptly refer the decision to the State Administrative Tribunal for a review.

(3) The Valuer General is to effect the reference by forwarding the notice to the executive officer of the State Administrative Tribunal together with the objection and a copy certified by or on behalf of the Valuer General of -

1. The general statutory and administrative context of the more usual reviews of this nature (including the relevant statutory dates taken for valuation purposes, at least as regards UV in albeit predominately rural settings) is set out in cases such as Robertson at [10] ­ [15]; Wines and The Valuer General [2005] WASAT 263 at [15] ­ [19] and Tonkin and Valuer General [2010] WASAT 21 (Tonkin). It is therefore unnecessary to reproduce all of that or similar background material here, except to set out some key definitions found in the VL Act, as follows:

'Improvements' in relation to land 'means the value of all works actually effected to land, whether above or below the surface, and includes fixtures, but does not include ... machinery, whether fixed to the land or not'.

'Gross rental value of land' means 'the gross annual rental that the land might reasonably be expected to realize if let on a tenancy from year to year upon condition that the landlord were liable for all rates, taxes and other charges thereon and the insurance and other outgoings necessary to maintain the value of the land ... [exceptions and qualifications not reproduced].'

'Unimproved value' means 'the capital amount that an estate in fee simple in the land not including improvements might reasonably be expected to realize upon sale'.

5 In Ninan 2012 at [4], Senior Member McNab described the more serious allegations found in the applicants case' as follows:

The [applicants'] submissions include allegations of fraud, deception [and] conspiracy against

(2) various staff from the Valuer­General's office,

6 In Ninan 2012, Senior Member McNab at [2] explained that:

Although ostensibly the review relates to the functions of the respondent Valuer General, in truth the review seeks to agitate much wider matters of alleged public and private corruption which are but very loosely connected (if connected at all) to the underlying issue of the values to be determined for particular public purposes of certain properties owned jointly by the applicants. As will be developed further below, and unfortunately for the applicants, none of these wider matters are capable of falling within the Tribunal's jurisdiction. This finding has more or less inevitable, and adverse, consequences for the disposition of the applicants' case.

7 In Ninan 2012 at [36], Senior Member McNab stated:

It is trite to observe that none of this statutory context (which is the sole jurisdiction available to the Tribunal in respect of these reviews) has any relevance whatsoever to resolving the misconduct, conspiracy, damages and corruption claims alleged against the respondent and the various third parties named by the applicants.

8 In Ninan 2012 (S) at [12], Senior Member McNab noted that:

In any case, the central claims advanced by the applicants of misconduct, conspiracy and fraud (dealt with in the principal decision) could not be determined in the Tribunal's jurisdiction and were, in any case, unsupported in any material way other than by mere assertion by the applicants.

9 Senior Member McNab went on to explain why the applicants' case in Ninan 2012 was flawed:

1. These mostly bizarre allegations found in the applicants' case are extremely unlikely to have any merit at all, but even if in the improbable event that they could be sustained, they are not in any case, as has been indicated, matters for the Tribunal to investigate or rule upon. Although the Tribunal could theoretically engage in an examination whether a particular valuation was irregular having been, for example, derived in connection with an improper purpose, that is manifestly not what the applicants' case is about. Rather, the applicants see, in effect, a vast conspiracy stretching from the point of sale to the financing and valuing of the subject land. The respondent's valuations are but a convenient hook - found in a generally costs neutral administrative review jurisdiction - to hoist this alleged conspiracy out into the open.
2. The central and serious allegations made by the applicants against various named figures and authorities may also generally be said to be 'scandalous' in the legal and procedural sense of that word. This is because they are not relevant to any relief that this Tribunal may award the applicants and otherwise they tend to unnecessarily sully the reputation and character of those named or identified, that is to say, for apparently no legitimate forensic purpose in connection with the proceeding. In Butler v Crowley & Greenhalgh (Solicitors) [1999] QSC 339; SC No 6521 of 1996, 11 November 1999 Muir J said, at [4] (internal citations omitted, emphasis added):

... Matter is 'scandalous' if, as well as being irrelevant, it is indecent or offensive or consists of allegations made for the purpose of abusing or (possibly) prejudicing the opposite party ... Also of relevance to a determination of whether material should be regarded as 'scandalous' is the interest of the Court in the maintenance of the integrity of its processes.

1. Unsurprisingly, there is not a jot of real evidence (as opposed to surmise or assertion) to support any of the applicants' allegations. In any case, as already indicated, the Tribunal would not, or possibly even could not, receive such material in its present form, given the nature of these review proceedings and the limited jurisdiction of the Tribunal.
2. In Gawor and the Owners of Dawesville Caravan Park Old Coast Road Mandurah, Strata Plan No 14644 [2009] WASAT 170 (Gawor) the Tribunal noted also the attitude of courts and tribunals to the making of indiscriminate and unwarranted allegations of fraud, as has repeatedly happened in this case. Here, these allegations have extended to a range of unrelated third parties. The Tribunal referred there, for example, to the observations made in Bhagat v Global Custodians Ltd [2002] FCAFC 331, at [13]:

[W]e must express our concern as to the content of the notice of appeal and the written submissions. An allegation of fraud is a serious matter and must be particularised in a precise and clear manner ... It is quite inappropriate and unacceptable to make an allegation of fraud without proper particulars of the conduct relied upon. In the present case [the applicant] has used the expressions 'fraud' and 'fraudulent' indiscriminately, seemingly without regard to the consequences of what is conveyed by the use of those words.

10 In Ninan 2012, Senior Member McNab stated at [71]:

While the applicants seem to genuinely hold the view that they are the victims of a widespread conspiracy to damage their interests and that this Tribunal in its review jurisdiction is a suitable vehicle to expose this conspiracy, neither proposition has any basis in law or objective fact.

11 The reasons for decision were delivered to the applicants. Even though self­represented, in the light of Senior Member McNab's careful and detailed reasons, the applicants could not fail to understand the requirements of the Valuation of Land Act 1978 (WA) and the scope of the Tribunal's powers and further that their application was an abuse of process.

12 Undeterred in Ninan 2014, the applicants again made allegations of fraud and impropriety on the part of the Valuer General. At [23] Senior Sessional Member Ellis stated:

There was no basis for any allegation of impropriety, deliberate falsification of valuations or inappropriate links with developers on the part of the Valuer General, the Valuer General's officers or Mr Elkins. The applicants' allegations to this effect are rejected.

13 In Ninan [2014] (S) at [11] Senior Sessional Member Ellis stated:

As stated in the Decision, there was no basis for allegations of fraud or impropriety on the part of the respondent or his officers, including those officers who prepared the valuations of the subject properties or dealt with the objections. In making these allegations, the applicants acted vexatiously and unreasonably. The allegations were an abuse of process. Further, the allegations of impropriety were not relevant to the matter in dispute. The value of land does not depend on the motives of the person valuing it[.]

Section 47 application to dismiss the proceedings

14 On 4 January 2016, the Tribunal ordered that the parties make written submissions as to whether the proceeding ought to be dismissed or struck out under s 47 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).

15 Section 47 of the SAT Act provides that where the Tribunal believes that a proceeding:

(a) is frivolous, vexatious, misconceived or lacking in substance; or

(b) is being used for an improper purpose; or

(c) is otherwise an abuse of process;

the Tribunal may order that the proceeding be dismissed or struck out and make any appropriate orders.

16 As the Tribunal recently stated in Medical Board of Australia and Woollard [2016] WASAT 26 at [12] and [13]:

Section 47(1)(c) of the SAT Act gives the Tribunal an express power to order that the proceedings be dismissed or struck out or to make any appropriate orders where it believes that a proceeding is an abuse of power.

The expression 'abuse of process' has an acquired legal meaning. Unless a contrary indication appears from the context, it is presumed that it is used in s 47 of the SAT Act in that context. There is no contrary indication in the SAT Act. Section 47(1) shows an intention to use the expression in its acquired meaning, that is, as that expression is used in the sense understood in a superior civil court of record (Erujin Pty Ltd v Western Australian Planning Commission [2010] WASC 326 at [28], [56] cited with approval in Medical Board of Australia and Costley [2011] WASAT 171 at [12]­[13]).

17 The Tribunal accepts the Valuer General's submissions that:

The power to dismiss a proceeding for abuse of process enables a court or tribunal to ensure that its processes are not abused by litigation that is brought for a purpose which does not fall within the range of purposes for which the court's processes exist (McKechnie v Campbell (1996) 17 WAR 62 (McKechnie) at 74). A proceeding will constitute an abuse of the process of a court or tribunal when it is used to exert pressure to effect an object not within the scope of the process, or where it is used for a purpose other than that for which the proceedings are properly designed, or where the plaintiff is seeking a collateral advantage beyond what the law offers (Packer v Meagher [1984] 3 NSWLR 486 at 492 (Hunt J), adopted with approval in Brunswick NL v Blossomtree Pty Ltd (1992) 7 WAR 226, 234 (Franklyn J, Malcolm CJ and Rowland J agreeing)).

18 Any application to dismiss or strike out proceedings in the Tribunal should be approached with a great deal of caution, particularly where a party is self-represented (Laurent and Commissioner of Police [2009] WASAT 254 at [18]).

19 In the paragraphs set out above, Senior Member McNab correctly explains why the applicants' actions in Ninan 2012 was an abuse of process. Senior Sessional Member Ellis' in Ninan 2014 also found that the applicants' actions constituted an abuse of process.

20 There can be no question that the decision in Ninan 2012 and Ninan 2014 made absolutely clear to the applicants that the allegations of fraud and impropriety made by them constituted an abuse of process.

21 The applicants' grounds as set out in their letter of 15 November 2015 include allegations of:

1. fraud by the Valuer General;
2. fraud by the banks; and
3. fraud by Senior Member McNab.

22 The applicants' letter of 8 April 2016 encapsulates the applicants' mind set:

Let me remind you once again, which I reminded you innumerable times, the following:

1. It is indeed my inalienable right to allege fraud on the part of Valuer General.
2. It is indeed my inalienable right to allege fraud on the part of SAT, SAT officers and SAT president.
3. It is clear as sun and sun shine that all are engaging in fraud; a fraud now of a cover up of land valuation fraud for years since 2002 or earlier in a systematic and clandestine way.
4. Even if the above statements are not true, it is the statutory duty of SAT to ensure that I have not made any claim or allegation which is improper by giving clear and valid arguments; not false arguments; that SAT is above law.
5. This statutory duty makes the initiation by SAT (not by Valuer General) to dismiss my claim without first exercising your statutory duty a serious fraud.
6. History will be the judge; not SAT; nor Supreme Court; nor Federal Court; of the above matters.
7. What history would prove is not only that Valuer General had engaged in habitual fraud for years; but that when this truth came in front of SAT; and that when it came in front of Federal Court & that when it came in front of Supreme Court, they all wholeheartedly engaged in fraud of cover up.
8. The reason is also clear as sun & sun shine; all are living in land and houses conceived in fraud.

23 The applicants' conspiratorial mind set is further reflected in their earlier letter of 9 December 2015:

Australians may silently allow & even encourage the fraud of Peter Costello, Glen Stevens, Twiggy, RIO and BHP to sell the dirt (iron orde and land) at false prices to the world.

The world silently allowed Saudi King to do this with crude oil. The Syrian silently allowed Assad to plunder Syria.

But there is a natural consequence to these notwithstanding the false actions of SAT and Supreme Court.

The current false advertisements (the repeat of the past conduct) that 'GDP in Australia is increasing' and 'employment in Australia is booming' may not succeed to overcome the fraud.

24 Yet again, the applicants' applications and correspondence have alleged fraud and impropriety on the part of the Valuer General and others.

25 It is evident from the applicants' applications and correspondence that anyone and everyone who disagrees with the applicants are fraudulent and party to a conspiracy.

26 The role of this Tribunal is to provide access to justice to the members of the community. It can only do so within the limits laid down by the relevant legislation. It is not the role of this Tribunal to provide an outlet for the applicants' serious and baseless allegations.

27 The principles explained by Senior Member McNab's finding as to an abuse of process in Ninan 2012 and Sessional Member Ellis' finding in Ninan 2014, apply equally to this application.

28 The Tribunal finds that the current proceedings have been instituted by the applicants for the primary purpose of bringing allegations of misconduct and fraud against the Valuer General and others.

(a) an abuse of process in that it seeks to pursue allegations that are outside those of the Tribunal's jurisdiction; and

(b) an abuse of process in that the applicants used the Tribunal's proceedings to make very serious allegations which are completely baseless.

30 There are references to various property sales in the applicants' submissions and correspondence. However, in the overall context of the applicants' applications, it is not appropriate to consider them.

31 If there is any basis for a review under the VL Act, then an entirely new application should be made in the appropriate manner.

32 No party can be permitted to utilise the process of this or any Tribunal when they so blatantly abuse those processes. The entire application should be struck out.

33 The applicants' applications are dismissed pursuant to s 47 of the SAT Act.

In matter DR 420 of 2015 and in matter DR 421 of 2015:

1. The applicants' application is dismissed under s 47 of the State Administrative Tribunal Act 2004 (WA)
2. The respondent is to file submissions for costs by 22 April 2016.
3. The applicants are to file submissions in response by 29 April 2016.

I certify that this and the preceding [33] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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