Perilya Broken Hill Limited v Valuer-General

The first order: a stay of the Court's orders 10The first order sought by the Valuer-General and the Council is for a stay of the Court's orders 2 and 3. The Court has power to stay any proceedings before it (s 67 of the Civil Procedure Act 2005) or stay execution or enforcement of a judgment or order of the Court (s 135 of the Civil Procedure Act). When an appeal is made to the Court of Appeal against this Court's decision, this Court may suspend the operation of its orders or decision until the Court of Appeal makes its decision (s 59 of the Land and Environment Court Act 1979). In addition, the Court of Appeal has power to order that this Court's decision or the proceedings under the decision be stayed (Pt 51 r 51.44(1) of the UCPR). 11I am of the view that a stay of the Court's orders 2 and 3 should not be made for three reasons, each relating to the fact that those orders have no ongoing operation or effect to be stayed. 12First, the Court's orders 2 and 3, by their nature, have already done their work and they have no ongoing work to do. Once the Court made order 2, revoking the Valuer-General's determination, and order 3, making a decision in place of the Valuer-General's decision (both pursuant to the power under s 40(1)(a) and (b) of the Valuation of Land Act), the Valuer-General's decision that the land value of the land was $20.9 million was revoked and the Court's decision that the land value of the land was $4.9 million was made in place of the Valuer-General's decision. These orders took effect upon their pronouncement. 13True it is that the orders could have been amended, varied or recalled before they were entered under the power in r 36.16(1) of the UCPR, but that power was never exercised. Hence, the orders took effect and did their work upon pronouncement. In addition, the Court's orders have now been entered and there is very limited power in the Court to set aside the entered orders, under r 36.15 or r 36.16(2) of the UCPR. 14The consequence is that there are no orders having ongoing operation to be stayed or suspended. 15Such a conclusion was also reached by Carr J in Bunnings Forest Products Pty Ltd v Bullen (1994) 54 FCR 342 at 346-347 with respect to a declaratory order that the deed in that case was void; once the declaration had been made in that case, the order did its work and there was no ongoing operation to stay. 16Secondly, this conclusion that the orders have no ongoing operation to be stayed or suspended is reinforced by s 41 of the Valuation of Land Act. Section 41(2) provides that the decision of this Court is taken to become final, for the purposes of s 41, if no appeal from the decision is instituted within 30 days of the decision being made. Once the decision becomes final, the Valuer-General is required by s 41(1) to take action, within 60 days of the decision becoming final, to give effect to the decision, including by altering the Register of Land Values. 17In this case, the Valuer-General did not institute an appeal against the Court's decision within 30 days. The Court's decision was made on 19 October 2012 but the Valuer-General did not institute an appeal, by filing its notice of appeal, until 10 December 2012, which is more than 30 days after the decision was made. The Court's decision therefore was taken to have become final at the end of the 30 day period after 19 October 2012. The operation of s 41 of the Valuation of Land Act, therefore, also corroborates that the Court's orders have no ongoing operation which can be stayed or suspended. 18Thirdly, the Valuer-General's subsequent actions of, first, altering the land value of the land in the Register of Land Values under s 14DD(1) of the Valuation of Land Act and, secondly, giving a supplementary list to the Council with the altered land value under s 49(1) of the Valuation of Land Act, have given effect to the Court's decision. These actions of the Valuer-General now are the operative cause of any potential financial liability of the Council to refund to Perilya the overpayment of rates, and not the Court's decision itself. The Court's decision has no ongoing operation or effect, such as creating a right which Perilya could enforce against the Council. The right Perilya might have to seek a refund of any overpayment of rates arose once the Valuer-General altered the land value of the land in the Register of Land Values and issued the supplementary list. The right would need to be claimed in proceedings pursuant to s 14DD(2) of the Valuation of Land Act or in a restitutionary action. 19In these circumstances, therefore, there is no ongoing operation of the Court's orders 2 and 3 which can be stayed. 20It is not necessary, therefore, to consider whether, if I had decided there was an order with ongoing operation to be stayed, I would have done so in the exercise of my discretion. Nevertheless, I consider that, on balance, the discretionary considerations would not favour granting a stay. 21I am prepared to find that the Valuer-General has identified reasonably arguable grounds of appeal, at least in relation to grounds 2 and 4, in its notice of appeal. I do not find that the prospects of success are 'very strong', as the Valuer-General submitted, but I also do not find that they are 'weak', as Perilya submitted. It is sufficient that the grounds of appeal are reasonably arguable. This is because the absence of reasonably arguable grounds of appeal is likely to be a determinative consideration against a stay application: Chen v Lym International [2009] NSWCA 121 at [15]. Nevertheless, the existence of arguable grounds of appeal is not necessarily sufficient to justify the grant of a stay: McBride v Sandland (No 2) (1918) 25 CLR 369 at 374. 22I am also prepared to find that neither the Valuer-General nor the Council have delayed unreasonably in applying, by their respective notices of motion, for a stay of the Court's orders. The Court's orders were only made on 19 October 2012 and entered on 14 December 2012. The Valuer-General filed a notice of intention to appeal on 6 November 2012 and a notice of appeal on 10 December 2012. The Council filed its notice of motion seeking joinder and a stay on 10 December 2012 and the Valuer-General filed its notice of motion seeking a stay on 18 December 2012. The notices of motion were heard on 18 December 2012. These periods of time after the Court's orders were made and entered are not long. Moreover, Perilya has not pointed to any prejudice it has suffered or will suffer as a result of the Valuer-General and the Council not applying for a stay of the Court's orders until they did. 23Nevertheless, I do not consider that refusal of a stay of the Court's orders 2 and 3 will cause harm to the Valuer-General, who is appealing the Court's decision, or to a third party, the Council. 24Refusal to stay the Court's orders 2 and 3 would not affect in any way the Valuer-General's appeal or render it futile, or affect in any way the Valuer-General's ability to prosecute its appeal, or cause the Valuer-General to incur any financial burden. The Valuer-General has no financial interest in the outcome of the appeal. The Valuer-General is the public officer vested with the duty of valuation of land under the Valuation of Land Act. The Valuer-General does not levy or receive payment of rates and taxes that are levied by reference to the land value of the land. The Valuer-General's interests are simply in the proper valuation of land and the proper administration of the Valuation of Land Act, which interests will not be affected if a stay is refused. 25Refusal to stay the Court's orders 2 and 3 will not impose irreparable harm in the event that the Valuer-General's appeal is successful. The Valuer-General will not suffer any irreparable harm for the reasons I have given above. The Council, although not a party to the proceedings, also will not suffer irreparable harm for two reasons. 26First, the harm which the Council fears it might suffer is the financial consequences of having to refund any overpayment of rates by Perilya. However, for the reasons I have given earlier, the granting of a stay of the Court's orders 2 and 3 would have no effect on the right of Perilya to bring proceedings claiming a refund of the overpayment of rates by Perilya. That right has its source other than in the Court's judgment and orders. The right has arisen as a result of the actions of the Valuer-General in altering the Register of Land Values and giving a supplementary list to the Council. Staying the Court's orders 2 and 3 will have no effect on those actions or their effect. Hence, staying the Court's orders is inutile to prevent the feared financial consequences to the Council arising from Perilya bringing proceedings claiming a refund. 27Secondly, on the evidence of Mr Zaknich, the financial consequences the Council says it might suffer are not likely to be suffered before the Valuer-General's appeal is heard and determined by the Court of Appeal. The financial consequences will not be suffered by Council unless and until the Council refunds the overpayment of rates (calculated by the Council to be around $6.8 million). Mr Zaknich's evidence explains the difficulty in the Council raising the funds necessary to make such a large refund and the consequences if it were to do so for the Council in funding its activities. However, before the Council would be required to pay such a refund, Perilya would need to commence proceedings and have those proceedings heard, and judgment for Perilya would need to be given. This process is likely to take considerably longer than the hearing and determination of the Valuer-General's appeal by the Court of Appeal. Moreover, the Council could apply in any such proceedings brought by Perilya against the Council for those proceedings to be stayed pending judgment in the Court of Appeal proceedings. The discretionary considerations concerning the financial consequences to the Council would have greater cogency in those proceedings than they do in these proceedings. 28On balance, therefore, I would decline in the exercise of my discretion to grant a stay of the Court's orders 2 and 3.

The second order: reversal of the alteration of the Register 29The second order sought by the Valuer-General and the Council is for the Valuer-General to reverse the alteration of the land value of the land in the Register of Land Values that the Valuer-General had earlier made under s 14DD(1) the Valuation of Land Act. The Valuer-General and the Council submitted that if I were to make an order staying the Court's orders 2 and 3, my order would be a 'decision on an objection or appeal under this Act' (being the Valuation of Land Act) and the Valuer-General would therefore have power under s 14DD(1)(b) of the Valuation of Land Act to make another alteration to the Register of Land Values reversing its previous alteration, which reversal would give effect to my stay decision. Perilya submits that any decision to stay the Court's orders 2 and 3 would not be a 'decision on an objection or appeal' under the Valuation of Land Act within the meaning of that phrase in s 14DD(1)(b). 30I decline to make the order sought by the Valuer-General and the Council for three reasons. First, because I decline to make an order staying the Court's orders 2 and 3, there can be no basis for the Valuer-General to make an alteration to the Register of Land Values to give effect to a decision to stay the Court's orders 2 and 3. 31Secondly, even if I were to have made an order staying the Court's orders 2 and 3, my stay of the Court's orders 2 and 3 would not answer the description of being a 'decision on objection or appeal under this Act' within s 14DD(1)(b). The decision referred to in s 14DD(1)(b) is clearly the substantive decision disposing of the appeal under s 37(1) of the Valuation of Land Act by making one or more of the orders in s 40(1) of the Valuation of Land Act, which orders make it necessary to make an alteration to the Register of Land Values under s 14DD(1)(b). An order staying such a substantive decision is not itself such a substantive decision. 32Thirdly, in any event, I am not persuaded that the Court has power, in the circumstances of this case, to order the Valuer-General to make an alteration to the Register of Land Values by way of reversal of the alteration the Valuer-General had earlier made. None of the Court's powers to stay proceedings, or stay execution of a judgment or order, or suspend the operation of a decision or order pending an appeal, would empower the Court to order the Valuer-General to reverse the alteration the Valuer-General had earlier made to give effect to the Court's orders. The power of the Court under s 40 of the Valuation of Land Act to make orders on an appeal under s 37(1) of the Valuation of Land Act also do not include making such an order. 33There is no claim in these proceedings that the Valuer-General's action in altering the Register of Land Values was outside power. To the contrary, the alteration the Valuer-General made to the Register of Land Values was a proper exercise of the power under s 14DD(1) of the Valuation of Land Act and was necessary to give effect to the Court's decision revoking the Valuer-General's valuation of the land and making a valuation of the land in place of the Valuer-General's valuation. Accordingly, the Court cannot make an order in these proceedings that the Valuer-General reverse the alteration by way of remedying some ultra vires exercise of power.

The third order: giving of supplementary list 34The third order sought, orally by the Valuer General, is for the Valuer-General to give a supplementary list to the Council reflecting the reversal of the alteration to the Register of Land Values. I decline to make this order for two reasons. 35First, if I neither stay the Court's orders 2 and 3 nor order the Valuer-General to reverse the alteration to the Register of Land Values, there will have been no change in the information entered in the Register, which change could found the giving of a supplementary list to the Council under s 49(1) of the Valuation of Land Act. 36Secondly, I am not persuaded that the Court has power, in the circumstances of this case, to order the Valuer-General to give a supplementary list. None of the powers to stay proceedings or execution of a judgment or orders or suspend the operation of orders, or the powers under s 40 of the Valuation of Land Act, would allow the making of such an order.

The fourth order: restraining the successful party from bringing separate proceedings 37The fourth order sought, orally by the Valuer-General, is to restrain Perilya from taking any step or action to recover any overpayment of rates by Perilya from the Council. The Valuer-General submits the power to make such an order lies in s 135(2)(c) of the Civil Procedure Act, which provides that the Court may make 'an order prohibiting any other person from taking any further action, either permanently or until a specified day, to enforce a judgment or order of the Court'. 38Perilya submits that any proceedings Perilya might institute for a refund of any overpayment of rates paid to the Council, whether under s 14DD(2) of the Valuation of Land Act or in a restitutionary action, does not involve an action 'to enforce a judgment or order of the Court' within the meaning of that phrase in s 135(2)(c) of the Civil Procedure Act. 39I decline to make an order restraining Perilya from taking action to recover any overpayment of rates paid to the Council for two reasons. 40First, any action Perilya might take would involve the commencement of proceedings claiming such a refund. The right which constitutes the cause of action to recover overpaid rates arises from a source other than the Court's judgment and orders. The right may arise from s 14DD(2) of the Valuation of Land Act or it could have a restitutionary source, but it does not arise directly from the Court's judgment and orders. Perilya cannot take action directly to enforce the Court's judgment or orders, such as by the issue of a writ of execution for the levy of property for enforcement of a judgment or order for the payment of money, because the Court's judgment or orders do not order the payment of money or the refund of overpayment of rates. As I have said, the Court's orders simply revoked and made a decision in place of the Valuer-General's decision as to the land value of the land. The Court's decision did not have any effect on the rate that could be levied by the Council on Perilya unless and until, first, the Valuer-General made an alteration under s 14DD(1) to the Register of Land Values to give effect to the Court's decision and, secondly, the Valuer-General gave the Council under s 49(1) a supplementary list containing information on such alteration to the Register of Land Values. Only when those actions were taken by the Valuer-General could there be an alteration which affects the land value of the land and gives rise to there being an overpayment of the rates levied by the Council. In this case, the Valuer-General has taken both of those actions. It is the taking of those actions that gives rise to any claim Perilya might have for a refund of any overpayment of rates, not the Court's decision itself. 41Hence, any action Perilya might take to claim a refund of any overpayment of rates is not an action 'to enforce a judgment or order of the Court' under s 135(2)(c) of the Civil Procedure Act. 42Secondly, I am not persuaded that this Court has power to prohibit a party to proceedings in this Court, Perilya, from taking action to commence proceedings in another court to claim a refund of any overpayment of rates otherwise than by way of enforcement of this Court's judgment or orders. No party suggested that this Court would have jurisdiction to hear and dispose of any such proceedings by Perilya. As I have said, any such action would not be to enforce the judgment or orders of the Court, but would have another source of right. In these circumstances, this Court cannot make an order prohibiting Perilya from bringing other proceedings making that claim of right.

Notices of motion should be dismissed 43These four orders are the only orders the Valuer-General and the Council have sought. For the reasons I have given, I decline to make any of them. The Valuer-General's notice of motion should therefore be dismissed. 44The Council's notice of motion should also be dismissed. There is no utility in joining the Council to the proceedings in this Court as the only reason the Council sought to be joined was to be able to argue that the Court should make the stay and other orders that have now been sought by the Valuer-General in its notice of motion. As I have determined that those orders should not be made, there is no utility in joining the Council. Accordingly, I also dismiss the Council's notice of motion.

Order for costs not made 45Perilya seeks an order that the Valuer-General and the Council pay its costs of the notices of motion. The Valuer-General's and the Council's notices of motion are in an appeal under s 37(1) of the Valuation of Land Act. Rule 3.7(2) of the Land and Environment Court Rules 2007 is applicable to appeals under s 37(1) of the Valuation of Land Act. Rule 3.7(2) provides that: The Court is not to make an order for the payment of costs unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable ... 46Rule 3.7(3) gives (without limitation) some circumstances in which the Court might consider the making of a costs order is fair and reasonable. 47I do not consider the making of a costs order is fair and reasonable in the circumstances of this case. I do not consider any of the circumstances given in r 3.7(3) are applicable or that there are any other circumstances justifying the making of a costs order. Accordingly, I would not make a costs order in relation to the notices of motion.

Orders of the Court 48The Court orders: (1)The Valuer-General's notice of motion filed on 18 December 2012 is dismissed. (2)Broken Hill City Council's notice of motion filed on 10 December 2012 is dismissed. 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. Decision last updated: 14 January 2013