SILKCHIME PTY LTD -v- VALUER-GENERAL [2023] WASCA 114 (24 July 2023)

The Valuation of Land Act

1. The Valuer‑General's decision the subject of the application to the Tribunal was made under the Valuation of Land Act 1978 (WA) (the Act). Broadly summarised, the Act provides for the valuation of land in respect of which any rate or tax is assessed.
2. The Valuer‑General has, by s 7, the general administration of the Act.
3. The processes for determining the values of land are governed by pt III of the Act. The Valuer General is required to maintain valuation rolls of rateable land: s 26(1). The valuation rolls must contain a description of every portion of land separately valued, the gross rental value or the unimproved value of the land as determined by the Valuer‑General, the date on which the valuation comes into force, and such other particulars as the Valuer‑General may determine: s 26(4).
4. Valuation rolls are to be made available for public inspection: s 28(2). A member of the public may obtain a certified copy of an entry in a valuation roll: s 29(1).
5. Part IV of the Act provides for objections to valuations and for review by the Tribunal of decisions of the Valuer‑General in respect of an objection. Section 32 provides as follows:
   1. Objections to valuation

(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 Part III, may serve upon the Valuer-General 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.

(2) An objection to a valuation of land shall -

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

(b) identify the valuation objected to; 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 Valuer‑General 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 Valuer‑General considers reasonable in the circumstances and whether or not the time for service of the objection has already expired. [emphasis added]

(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 Valuer‑General 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. By s 33, a person dissatisfied with a decision of the Valuer‑General as to an objection may serve notice on the Valuer‑General requiring the Valuer‑General to refer the valuation to the Tribunal for a review.
2. Relevantly to the present proceedings, s 35 confers, on a person who is dissatisfied with the Valuer-General's decision to refuse to extend the time for service of an objection to a valuation, a right to serve notice on the Valuer-General requiring the Valuer‑General to refer the decision to refuse to extend time to the Tribunal for a review. Upon receipt of such a notice, the Valuer‑General must promptly refer the decision to the Tribunal: s 35(2).

1. In support of its application, the appellant relied on evidence from Mr Carey to establish reasonable cause under s 32(6) of the Act.
2. The Tribunal summarised the effect of Mr Carey's evidence, in terms not criticised by the appellant, as follows:[5]

Mr Carey gave evidence as to when Silkchime went into receivership, attempts to develop the Land, the land tax assessments, proceedings against the receivers, action taken after retirement of the receivers and request for further information for the expert valuation opinion.

In relation to the 2005/06 assessment, Mr Carey considered it was a fair and reasonable valuation of the Land and accordingly Silkchime did not object to the valuation under the VL Act and paid the land tax on the Land.

Receivers were appointed in 2006 and from 24 January 2006 to 6 March 2019 it is Mr Carey's position that neither he nor the other directors of Silkchime were aware in respect of 2006/07 onwards of: (a) any of the land tax assessments issued to Silkchime; and (b) any valuations of the Land. Further, Mr Carey says that neither he nor the other directors of Silkchime were in a position to object to any valuations of the Land and that the receivers had not informed him of what they had done, if anything, in relation to the assessments of land tax on the Land.

According to Mr Carey, it was in about 2009 that proceedings were instituted against the receivers where it was alleged the receivers had mismanaged the affairs and finances of Silkchime (and other Westpoint companies) and sought an order compelling the receivers to retire.

Following the retirement of the receivers on 6 March 2019, Mr Carey said one of the first documents which was drawn to his attention was a letter from the State Solicitor's Office dated 28 February 2019 alleging Silkchime owed $717,556 in unpaid land tax on the Land. He instructed his solicitor, Mony de Kerloy, to respond to the State Solicitor's Office.

Mr Carey says that when he resumed duties as a director of Silkchime he obtained from the receivers the records which they had kept during the receivership. He found the records did not accurately describe the cash receipts and payments and failed to record any accruals. He consequently requested the source documents from the receivers. Upon receipt of those documents, Mr Carey said he collated and verified Silkchime's financial information.

1. The Tribunal began by construing the term 'reasonable cause' in s 32(6). It construed 'reasonable cause' to mean a cause which a reasonable person would regard as sufficient, a cause consistent with a reasonable standard of conduct, the kind of thing that might be expected to delay the service of an objection by a reasonable person.[6] The question of reasonable cause was to be considered in the context of the statutory framework by which objections to assessments are required to be made within 60 days after issue of the assessment or the date of gazettal of the valuation.
2. The Tribunal identified the issues for determination as follows:[7]

Issue 1: Whether Silkchime has shown 'reasonable cause' (as required by s 32(6) of the [Act]) for the time for service of objection to be extended for one or more of the years [from 2005/2006 to 2013/2014]?

Issue 2: If 'yes', should the Tribunal exercise its discretion to extend the time for service of the objection for one or more of the years [from 2005/2006 to 2013/2014]? What factors, if any, can be taken into consideration by the Tribunal in exercising its discretion?

1. As will be seen, the Tribunal determined Issue 1 adversely to Silkchime. Further, assuming, contrary to the Tribunal's view, that reasonable cause had been shown, and assuming, without deciding, that the Tribunal had a discretion, the Tribunal also determined Issue 2 unfavourably to Silkchime.
2. The Tribunal found that, during the relevant period, Mr Carey knew of his right to object to the valuations of the Land. The Tribunal recorded that, according to Mr Carey, the appellant's difficulty in objecting to the valuations was that, because of the extraordinary circumstances of the receivership and the conflicts surrounding it, the appellant did not have the assessment notices and the land valuations and, therefore, did not know what the valuations were.[8]
3. The Tribunal's reasons for concluding that the appellant had not shown reasonable cause for its delay in objecting were expressed as follows:[9]

[91] It is Mr Carey's evidence that he was aware of the land tax debt some time shortly after the letter of the State Solicitor's Office dated 28 February 2019. Further, Mr Carey indicated that he knew how land tax was calculated and that he understood what the outstanding tax bill suggested about the valuation of the Land. This is because he gave evidence that he thought the valuation of the Land should have been three times less, perhaps in the order of $200,000 as he was roughly familiar with the value of the Land. Further, Mr Carey explained that in 2009 the directors took proceedings against the receivers which resulted in one set of receivers being forced to retire in 2011 and the other set of receivers in 2019.

[92] In cross-examination, Mr Carey testified that he was unable to identify the exact date he received a copy of the assessment notices but stated it was some three to four months approximately after the receivership in 2019 had ended. This is such a vague response, in our view, when Mr Carey gave evidence that he had raised the question of obtaining the land tax assessments with his lawyer on a weekly basis after the receivership was concluded and control of Silkchime was reverted to him and the other directors on 6 March 2019. This can only lead us to the conclusion, in the context where ordinarily a person is expected to act within 60 days after becoming aware of the assessment notices, that Mr Carey failed to act promptly once he was aware of the outstanding land tax per the letter of 28 February 2019. In our view, it was open to Mr Carey on or shortly after 6 March 2019, when the receivers retired and control of Silkchime was returned, to contact the State Solicitor's Office to obtain a copy of the assessments or to telephone the Office of State Revenue (details of which were provided in the letter of 28 February 2019) to obtain a copy of the assessments.

[93] Counsel for the Valuer-General submits that it is difficult to accept Mr Carey's evidence that he was aware of the Commissioner of State Revenue's notice of intention to commence legal action against Silkchime (as set out in the letter of 20 February 2014), and knew of an outstanding land tax debt, but was unaware of the amount due, when he wrote to the Commissioner of State Revenue in 2014 and 2017 and to the State Solicitor's Office in 2018 in his capacity as a director of Silkchime, where he expressed an intention to pay the outstanding tax when he could.

[94] In our view, Silkchime (as distinct from Mr Carey in his capacity as a director) had the opportunity to make an objection via its receivers. The evidence before us is that the receivers paid some of the assessments from 2006/07 to 2010/11 and chose not to object to any of the assessments. Whether the directors of Silkchime (who at the time had no power because of the receivership) would have objected is of no consequence, in our view.

[95] Further, in our view, Silkchime (by its receivers), or Mr Carey did have the opportunity to access the unimproved valuations of the land anytime after the commencement of the receivership period through the operation of s 29 of [the Act]. For example, Mr Carey could have requested the unimproved valuations in 2014 and 2017 when writing to the Commissioner of State Revenue and in 2018 when writing to the State Solicitor's Office. On obtaining the unimproved valuations, it would have been a relatively simple exercise to calculate or at least estimate the land tax liability for any of the years in the relevant period. That information could have been provided to the receivers if the valuations were considered to be incorrect and a request made to lodge an objection for Silkchime.

[96] Submissions made by counsel for Silkchime that the receivers did not advance Silkchime's interest and had no real concern regarding issues concerning the proper value of the Land unless it happened to suit the interests of their appointer, do not, in our view, support the conclusion of a reasonable justification for the receivers not objecting to the assessment notices. There is no evidence before the Tribunal that the legal proceedings taken against the receivers extended to a failure on the part of the receivers to object to the valuation of the Land relevant to this proceeding.

[97] Ultimately, we find that Silkchime has not shown 'reasonable cause' in its delay in objecting to the assessments for any of the years in the relevant period.

1. The appellant's contention in the appeal to the primary judge was, and in the appeal to this court is, that the Tribunal's conclusion in par 97 of its reasons is legally unreasonable.
2. The Tribunal found that, given the conclusion that the appellant had not shown reasonable cause, it was not necessary for the Tribunal to determine whether other factors may be considered in the exercise of discretion under s 32(6) of the Act. Nevertheless, the Tribunal went on to consider how its discretion would be exercised on the assumption that the appellant had shown reasonable cause and that other factors may be taken into account. The Tribunal concluded that, on those assumptions, it would not exercise its discretion to extend the time to object to the assessments.[10]
3. In summary, the Tribunal said that, bearing in mind the length of the delay, the reasons for the delay and the material prejudice to the Valuer‑General, it would not exercise its discretion favourably to the appellant.
4. In the course of considering the length of delay, the Tribunal observed that the length of the delay was significant and strongly militated against the exercise of discretion.[11]
5. The Tribunal then made the following observation as to the position after the receivers retired:[12]

There is also a delay of some four months from March 2019 when the receivers were forced to retire until the objections were lodged in July 2019 which according to Mr Carey was because he did not have the books and accounts or control of the company for 13 years. Counsel for Silkchime say that whilst there is a delay of four months from March 2019 to July 2019, the delay is understandable in the circumstances of Mr Carey being kept out of the company for 13 years and then having to go back in and to try to run the company dealing with numerous issues, not the least of which, was the debt in excess of $700,000 for land tax.

We do not accept that Silkchime lodged objections at the first reasonable opportunity after retirement of the receivers in about March 2019. A further delay of four months from March 2019 to when the objections were finally lodged in July 2019 reflects that Silkchime did not attend to the objections promptly.

1. The Tribunal found that there was material prejudice to the Valuer‑General.[13]
2. Considering that it was not clear whether there was an arguable case, the Tribunal proceeded on the assumption that there was an arguable case, finding that it would not exercise the discretion favourably to the appellant, bearing in mind the length of the delay, the reasons for delay and the material prejudice.[14]
3. The primary judge took the Tribunal's reasons to reveal that it concluded that reasonable cause was not shown for two distinct reasons. The first was that reasonable cause was not shown in relation to the period of the receivership. The second was that reasonable cause was not shown in connection with the four months between when the receivership ended and the notice of objection was lodged.
4. There is no complaint as to the primary judge's understanding of the Tribunal's reasons in that regard.

1. The appellant sought leave to appeal against the Tribunal's decision under s 105 of the State Administrative Tribunal Act 2004 (WA).
2. The appellant's ground of appeal to the primary judge was in the following terms:
   1. The Tribunal erred in law by unreasonably concluding that the appellant had not shown 'reasonable cause' (as required by s 32(6) of the Valuation of Land Act 1978 (WA)) for the time for service of objections to valuations contained in the Land Tax Notices of Assessment issued for each year from 2005/06 to 2013/14 inclusive (Valuations) to be extended. That conclusion was beyond the bounds of reasonableness having regard to the following facts:

(a) between 24 January 2006 and 6 March 2019 the Appellant was under the control of receivers (Receivers);
>
> (b) the Receivers did not lodge any objection to any of the Valuations because, it may be inferred, that lodgement and pursuit of such objections was not necessary or convenient for the attainment of the objectives for which the Receivers were appointed and they had no duty, either to their appointers or the appellant, to do so;
>
> (c) between 24 January 2006 and 6 March 2019 neither the directors nor the shareholders of the appellant had any residual power or authority to lodge objections to the Valuations;
>
> (d) Mr Carey immediately engaged solicitors;
>
> (e) the appellant lodged the objections to the Valuations on 16 July 2019. Contrary to the Tribunal's finding at J[92], the time taken by the appellant to lodge the objections, following the retirement of the receivers on 6 March 2019, was not unreasonable having regard to the following facts: > > > (i) Mr Carey engaged solicitors on 20 February 2019 in connection with [the appellant's] land tax and Valuations and in anticipation of the retirement of the receivers;
> >
> > (ii) Mr Carey resumed his duties as a director of the appellant immediately upon the retirement of the receivers;
> >
> > (iii) upon resuming his duties he obtained from the receivers the records which they had kept during the receivership. He found the records did not accurately describe the cash receipts and payments and failed to record any accruals. He consequently requested the source documents from the receivers. Upon receipt of those documents, Mr Carey said he collated and verified [the appellant's] financial information;
> >
> > (iv) Mr Carey also became aware in or about late February 2019 of a letter of demand dated 19 January 2019 sent by the State Solicitor's Office on behalf of the Commissioner of State Revenue which demanded the appellant pay a land tax debt (which was based on the Valuations);
> >
> > (v) that letter stated that the amount of the land tax debt owed by the appellant for the years 2011/2012 to 2018/2019 totalled $110,271.25;
> >
> > (vi) Mr Carey also became aware of a second letter dated 28 February 2019 sent by the State Solicitor's Office also on behalf of the Commissioner of State Revenue which stated that the amount of land tax debt owed by the appellant for the same years totalled $717,556;
> >
> > (vii) on or about 22 March 2019 the appellant's solicitors wrote to State Solicitor's Office, to explain, as was the case, that the appellant was in the process of obtaining the appellant's books and records, preparing up to date financial statements and requesting 13 weeks to investigate the situation, obtain relevant information (and in particular from the receivers) and respond substantially to the demand;
> >
> > (viii) on 25 March 2019 the State Solicitor's Office granted the appellant an extension to 25 June 2019;
> >
> > (ix) on 16 July 2019 the applicant lodged the relevant objections. > >
>
> (f) in reaching its conclusion the Tribunal took into account the following irrelevant considerations: > > > (i) the opportunity that the Receivers had to lodge objections to the Valuations - J[94];
> >
> > (ii) the directors (including Mr Carey) being able to obtain the unimproved valuations of the land the subject of the Valuation, estimate the land tax liability and request the receivers to lodge objections to the Valuations - J[95];
> >
> > (iii) no evidence of legal proceedings being taken against the receivers for failure to object to the Valuations - J[96].

The true and only reasonable conclusion, having regard to the relevant facts referred to in paragraphs (a) to (d) and the matters referred to in paragraph (e) above, is that the appellant had shown reasonable cause in its delay in objecting to the Valuations.

1. After summarising the competing arguments, the judge outlined the principles of legal unreasonableness, as follows:[15]

(a) Legal reasonableness or an absence of legal unreasonableness is an essential element in the lawfulness of decision-making. This is because Parliament is taken to have intended that a statutory power will be exercised reasonably.
>
> (b) It must be remembered that Parliament has conferred the power on the decision maker and the court's function is a supervisory one as to legality. Thus, judicial restraint is required. The concept of legal unreasonableness does not provide a vehicle for the court to remake the decision according to its view as to reasonableness and by implication finding a contrary view unreasonable.
>
> (c) The concept of legal unreasonableness is not amenable to minute and rigidly defined categorisation or a precise textual formulary. A more sophisticated approach is required - one that focusses on the question of whether an administrative decision is one which is within the authority of the decision-maker. This requires close attention to be given to the relevant features of the particular statutory framework within which the authority arises. Vitiating unreasonableness may be characterised in more than one way to be susceptible to judicial review.
>
> (d) There are two categories of legal unreasonableness. First, there are those cases in which the reviewing court identifies an underlying jurisdictional error in the decision-making process, and second, there are those cases in which legal unreasonableness may be 'outcome focused'.
>
> (e) The first category encompasses specific errors in decision‑making: disregard of relevant considerations; consideration of irrelevant considerations; attaching disproportionate weight to some factor and a lack of proportionality.
>
> (f) The disproportionate exercise of administrative discretion may be unreasonable simply on the basis that it exceeds what on any view is necessary for the purpose it serves.
>
> (g) An outcome-focused conclusion of legal unreasonableness may be an inference drawn because the court cannot identify how the decision was arrived at, in which case the exercise of power may be seen by the supervising court as lacking 'an evident and intelligible justification'. It has the character of being 'arbitrary or capricious or to abandon common sense'. Outcome-focused unreasonableness occurs in an 'area of decisional freedom'.
>
> (h) Legal unreasonableness is 'invariably fact dependent' and requires a careful evaluation of the evidence.
>
> (i) The test for determining whether a decision is to be characterised as legally unreasonable is a stringent one.

2. The primary judge began analysis by reference to authorities considering the effect of receivership, drawing on what was said by Owen J in Re Geneva Finance Ltd; Quigley v Cook.[16]
3. His Honour applied the construction adopted by the Tribunal as to the meaning of a reasonable cause, namely one 'which a reasonable man would regard as sufficient, a cause consistent with a reasonable standard of conduct, the kind of thing which might be expected to delay the taking of action by a reasonable man'.[17] His Honour observed that answering the question of reasonable cause involved more than a consideration of the legal status of the person entitled to object and required a real consideration of all relevant factual circumstances.
4. His Honour considered that the Tribunal was required to consider the anaesthetising effect of the extraordinarily lengthy receivership on the appellant, together with the effect of the litigation between the appellant's directors and the receivers. To his Honour, it was not apparent from the Tribunal's reasons that it gave consideration to those matters. His Honour considered the Tribunal had thereby erred. It attached disproportionate weight to the continuation of the appellant's legal personality during the receivership period and to the theoretical capacity of the receivers to make objections, while apparently attaching no weight to the practical reality of the receivership and to whether the receivership and its consequences would be regarded as 'the kind of thing which might be expected to delay the taking of action by a reasonable man'. Thus, his Honour concluded, the Tribunal misdirected itself and exercised its powers otherwise than in accordance with the Act.
5. His Honour considered that this error fell within the first category of legal unreasonableness, being a form of process unreasonableness. There is no challenge in this court to that conclusion.
6. As already noted, the primary judge considered that the Tribunal's view that the appellant, through Mr Carey, failed to act promptly after the receivers retired on 6 March 2019 formed a separate basis for the Tribunal's conclusion that the appellant had not established a reasonable cause. His Honour considered that conclusion was founded on the Tribunal's factual finding that it was open to Mr Carey to have obtained the valuation assessments from the Office of State Revenue or the State Solicitor's Office, and that he and the appellant's solicitors were not dependent on the former receivers as the sole source of information.[18]
7. His Honour noted that the appellant's challenge to the Tribunal's reasoning in respect of the post-receivership period was an outcome‑focused challenge on grounds of legal unreasonableness.[19]
8. His Honour observed that, on one reading, it appeared as if the Tribunal's conclusion that Mr Carey failed to act promptly was based on the Tribunal's characterisation of Mr Carey's recollection of when he received copies of the assessment notices, with his Honour observing that this would not be a sound basis on which to conclude that Mr Carey had not acted promptly. However, his Honour considered that the final sentence of par 92 of the Tribunal's reasons made clear that the Tribunal's conclusion was founded on the factual finding that it was open to Mr Carey to obtain the assessment notices from the Office of State Revenue or the State Solicitor's Office.[20]
9. His Honour emphasised the importance of the need for judicial restraint, the precept that legal unreasonableness is not to be viewed as a vehicle for a court to remake a decision according to its view of reasonableness, and the stringent nature of the test for legal unreasonableness. Bearing those principles in mind, the primary judge was not persuaded that the Tribunal's conclusion that the appellant failed to act promptly after the receivers retired, and thus had failed to establish reasonable cause, was legally unreasonable. His Honour added that the primary factual finding on which the conclusion was based was unimpeachable and the Tribunal's conclusion followed from that finding.[21]

1. The appellant appeals against the primary decision. While in form there are two grounds of appeal, in substance there is one.
2. Ground 1 asserts that the primary judge erred in law in failing to hold that the Tribunal's conclusion that the appellant failed to act promptly after the receivers retired merely because Mr Carey could have obtained the relevant assessment notices from the Office of State Revenue or the State Solicitor's Office, and the appellant had thus failed to establish a reasonable cause, was legally unreasonable. Ground 2 asserts that by reason of that error, the primary judge erred in failing to give leave to appeal and in dismissing the appeal.
3. Counsel for the appellant submits that the question of law on which the appeal is brought is whether the decision of the Tribunal was legally unreasonable.[22]
4. Although the respondent filed a notice of contention, the respondent did not advance the notice of contention at the hearing of the appeal.[23]

1. The appellant submits that the Tribunal's decision was informed only by (i) Mr Carey's theoretical ability to obtain, shortly after the receivers' retirement, the assessments from the State Solicitor's Office or the Office of State Revenue, and (ii) the Act's requirement that objections to valuations be lodged within 60 days of receipt.[24] However, the appellant argues, there was no evidence that Mr Carey could, in fact, promptly obtain the assessments from the Office of State Revenue or the State Solicitor's Office.[25]
2. The appellant submits that the Tribunal did not consider the following matters, which it characterises as 'facts' (although, as will be seen, not all reflect factual findings and some lack any identified basis):

(1) After 13 years of being shut out of the appellant's affairs, the appellant's directors were duty-bound to establish the appellant's financial position to determine whether it was solvent and could, or should, continue in business.[26]

(2) The directors needed to obtain the appellant's books and records to prepare a set of financial statements so as to determine the appellant's financial position, including how the appellant stood in relation to a number of other entities.[27] A reasonable period of time was required to make this determination, owing to the complexity of the receivership, which involved other companies beyond the appellant.[28]

(3) Promptly after the receivers' retirement, the appellant, by its lawyers, sought a 13-week extension from the Commissioner of State Revenue to re‑establish its books and records and determine its financial position.[29] The Commissioner of State Revenue granted an extension to 25 June 2019.[30]

(4) A period of 13 weeks for the appellant to re-establish its books and records and determine its financial position was, in the circumstances, reasonable, and the Commissioner of State Revenue - being a major creditor - accepted that period as reasonable.[31]

(5) The appellant could not have (and ought not have, having regard to its lawful duty) lodged objections to valuations or otherwise challenged the outstanding land tax debt, unless its directors had (within that period) resolved the appellant's financial position and its financial capacity to both object to and pay any land tax.[32]

(6) Apart from establishing the appellant's financial position, the appellant's directors had to obtain the valuation assessments and consider, first, whether there were genuine and proper grounds for objection and, secondly, how those grounds would be formulated - with all of this being consistent with their directors' duties.[33]

(7) The appellant used the 13-week extension to resolve and determine its financial position, as well as to address the merits, or otherwise, of lodging objections to the valuations.[34]

(8) Once the appellant's financial position and the matters referred to above were determined, the valuations were promptly lodged on 16 July 2019.[35]

(9) Even if the valuation assessments had been the only matter to which the appellant's directors needed to attend, after 13 years of not knowing anything about the valuations underpinning the assessments - including not knowing how the valuations underpinning the assessments had been determined and not knowing the basis for the Commissioner of State Revenue's (bare) assertion that it had made a $607,000 error in the amount of land tax owing - the time taken, being four months and 10 days, for the appellant's directors to obtain the assessments, give proper consideration to the assessments and lodge the objections was not unreasonable.[36]

1. The appellant submits that, in failing to consider these 'facts' and in limiting itself only to the considerations referred to in [64] above, there was an arbitrariness about the Tribunal's decision, which rendered the decision legally u[37]easonable.37
2. Thus, the appellant submits, the outcome has all the character of being arbitrary, capricious or abandoning common sense; it was not an outcome that fell within the range of legally and factually justifiable outcomes; and there were no circumstances such that reasonable minds might differ about the outcome of, or justification for, the exercise of power.[38]
3. The appellant submits that, in upholding the Tribunal's decision, his Honour did not give any consideration, let alone real consideration, to all relevant factual circumstances and, instead, his Honour fell into the same error into which he had identified the Tribunal fell - with that error being the attachment of disproportionate weight to the appellant's theoretical capacity to obtain, promptly, the assessment notices and shortly thereafter lodge objections.
4. In evaluating these submissions, it is necessary to begin by locating the appeal in its proper legal framework. That requires regard to: first, the nature and limitations of an appeal under s 105 of the State Administrative Tribunal Act; secondly, the proper construction of s 32(6) of the Act; and, thirdly, the ambit of, and principles concerning, legal unreasonableness.

Appeals under s 105 of the State Administrative Tribunal Act - legal principles

1. Under s 105(1) of the State Administrative Tribunal Act, a party may seek leave to appeal against a decision of the Tribunal. By s 105(2), the appeal can only be brought on a question of law.
2. As has been explained in many cases, while termed an appeal, the 'appeal' is in the nature of judicial review. The function of the court is, and is only, to examine what the Tribunal has done for legal error.[39] Where, as here, an appeal lies 'on a question of law', the question (or questions) of law is the entirety of the subject matter of the appeal.[40] If, on proper analysis, the question raised by a litigant is not a question of law, linguistic gymnastics in the formulation of the grounds of appeal cannot convert it into a question of law.[41]
3. In a summary of principles adopted by this court on numerous occasions since, in Paridis v Settlement Agents Supervisory Board, Buss JA, as his Honour then was, stated the following further propositions (Wheeler and Pullin JJA agreeing):[42]

(1) A question of mixed fact and law is not a question of law within s 105(2).

(2) A ground of appeal which asserts the decision is against the evidence and the weight of the evidence does not raise a question of law.

(3) A tribunal does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis.

(4) A ground of appeal that a tribunal has made a finding which is manifestly unreasonable, in the sense that no reasonable tribunal could have made that finding, alleges an error of law.

(5) A ground of appeal that a tribunal has failed to take into account a consideration which, in the circumstances, it was bound to take into account alleges an error of law.

1. Section 105(9) confers powers on this court in aid of the exercise of its jurisdiction. Section 105(9) does not enlarge this court's jurisdiction, which is confined in the manner explained in [72[43]] above.43 As to this court's power to make substitutive orders under s 105(9), see Young v Legal Profession Complaint[44]Committee.44

The proper construction of s 32(6)

1. In evaluating whether the appellant has demonstrated an error of law, the provision under which the Tribunal determined the application must be construed.
2. In our view, s 32(6) confers a discretionary power on the Valuer‑General, which may be exercised upon, and only upon, the Valuer‑General being satisfied by the person entitled to make the objection that there was a reasonable cause for the delay in making the objection. In other words, when an application is made under s 32(6), there are two steps. First, the Valuer‑General must determine whether the person entitled to make an objection has satisfied the Valuer‑General of reasonable cause for the delay. If, and only if, the Valuer‑General is so satisfied, the second step arises: the Valuer‑General then has a discretion to extend the time for the period, if any, that the Valuer‑General considers reasonable in the circumstances of the case.
3. The first step - determination of whether reasonable cause is shown - is not a discretionary decision. Rather, it is an evaluative judgement reached upon the Valuer General's findings of, and inferences from, primary fact.
4. The second step involves, by contrast, a true discretion.

1. The absence of legal unreasonableness is an essential element in the lawfulness of discretionary decision‑making, as Parliament is taken to have intended that a statutory power will be exercised reasonably.[45]
2. Traditionally, Wednesbury unreasonableness was identified as involving an exercise of discretion that was so unreasonable that no reasonable decision‑maker could have arrived at it.[46] In Minister for Immigration and Citizenship v Li, Hayne, Kiefel and Bell JJ stated that the legal standard of unreasonableness is not limited to a decision that is so unreasonable that no reasonable person could have arrived at it.[47] A decision will be unreasonable where it is outside the parameters of reasonable decision‑making contemplated by the statute.[48] The parameters of reasonable decision‑making contemplated by a statute are discerned by the construction of the statute having regard to its terms, scope and purpose.[49]
3. It is basic, but nevertheless of critical importance, that the court's function is a supervisory one as to legality. The concept of legal unreasonableness is not a vehicle for the court to remake the decision according to its view as to reasonableness and, by implication, thereby find that a contrary view is unreasonable.[50]
4. A decision may be legally unreasonable on process‑related grounds. Alternatively, a decision may be legally unreasonable on outcome‑related grounds.[51] Process‑related grounds encompass specific kinds of error - for example, the failure to take into account mandatory relevant considerations, taking into account irrelevant considerations and acting for an improper purpose, as well as unreasonableness in the conduct of the hearing or other procedure adopted.[52]
5. Manifest unreasonableness as regards outcome may be found in a decision that is arbitrary, capricious or fanciful,[53] a decision that lacks an evident and intelligible justification,[54] or a decision where, in the circumstances, 'the result itself bespeaks error'.[55] These descriptive terms should not be given canonical force.[56]
6. Determining whether legal unreasonableness is established requires a close focus on the particular circumstances of the exercise of statutory power. The conclusion is drawn 'from the facts and from the matters falling for consideration in the exercise of the statutory power'.[57]
7. Just as linguistic gymnastics cannot transform a question into one of law - see [71] above - as Owen JA observed in Real Estate and Business Agents Supervisory Bo[58]d v Carey,58 it is both legally and intellectually wrong to 'dress up' an allegation that a decision‑maker made incorrect findings of fact or findings against the weight of the evidence as an allegation of legal unreasonableness.
8. The test for manifest unreasonableness remains a stringent one, and a finding of jurisdictional error on the ground of manifest unreasonableness would be uncommon.[59]
9. The appellant's grounds of appeal and submissions assume - without explicitly recognising any question - that the finding that reasonable cause was not established is one capable of review on grounds of legal unreasonableness as explained in Minister for Immigration v Li. That decision concerned the judicial review of an exercise of discretion - whether to adjourn the proceedings before the tribunal. At the hearing of the appeal, a question was raised as to whether the unreasonableness ground of review applies to a finding of fact, and whether it applies to an evaluative finding such as the absence of reasonable cause.
10. In Real Estate and Business Agents Supervisory Board v Carey,[60] Owen JA (with whom Buss and Newnes JJA agreed) observed that fact-finding cannot be challenged on the basis of Wednesbury unreasonableness, saying that only decision‑makers' discretionary decisions are amenable to review on this ground. The question was identified, but not determined, in Giudice v Legal Profession Complaints Committee[61] and in Legal Profession Complaints Committee v Rayney.[62] Authorities bearing on the question were analysed in some detail by Edelman J in The Pilbara Infrastructure Pty Ltd v Economic Regulation Authority.[63] See also the discussion in Judicial Review of Administrative Action and Government Liability, in which it is suggested that at least process‑related unreasonableness can be applied to findings of fact.[64]
11. A like question may arise as to whether legal unreasonableness is a ground of review of an evaluative finding. However, in the present case, the question of whether reasonable cause was shown to the decision‑maker's satisfaction can be characterised as more than just an evaluative decision. As already explained, the power to grant an extension arises only upon the Valuer‑General (or the Tribunal) being satisfied that there was reasonable cause for the delay in making the objection. The need for that state of satisfaction on the part of the decision‑maker may thus be described as a jurisdictional fact in the broad sense, as that notion has been explained in the cases.[65]
12. There is substantial authority concerned with the application of the concept of legal unreasonableness - or closely related grounds of review, such as irrationality and illogicality - to a decision‑maker's state of satisfaction, where such a state of satisfaction is a prerequisite to the exercise of a statutory function. For example, in D'Amore v Independent Commission Against Corruption, after close analysis of a number of decisions of the High Court,[66] Beazley P, with whom Bathurst CJ agreed, concluded that the decision‑maker's state of satisfaction that the appellant engaged in corrupt conduct had to be reasonable in a particular sense - namely, that it was a state of satisfaction that could be reached by a person with an understanding of the nature of the statutory function being performed, rather than a state of satisfaction that could be said to be irrational, illogical or based on facts or inferences not supported by logical grounds.[67] See also the discussion by Murphy and O'Bryan JJ in BFH16 v Minister for Immigration and Border Protection.[68]
13. In our view, it is neither necessary nor appropriate to determine any question as to the application of legal unreasonableness, as explained in Minister for Immigration v Li, to the Tribunal's finding that reasonable cause had not been established to its satisfaction. It is not necessary because, as explained below, assuming favourably to the appellant that legal unreasonableness, as explained in Minister for Immigration v Li, applies to the finding as to reasonable cause, the appellant has fallen well short of demonstrating legal unreasonableness in the Tribunal's finding. In those circumstances, and in circumstances where the parties did not address any detailed or considered submissions as to the applicability of the concept of legal unreasonableness to the finding that reasonable cause had not been established to the Tribunal's satisfaction, it is preferable not to determine any such question.

1. It was for the appellant to satisfy the Tribunal that there was reasonable cause for the delay in making the objections. We begin by outlining the evidence adduced by the appellant with a view to so satisfying the Tribunal.

1. The appellant relied on Mr Carey's witness statement to demonstrate the reasonable cause for the delay. In essence, the statement was to the following effect:

(1) Neither he nor any other director of the appellant saw or became aware of the Land Tax Notices of Assessment from the 2006/2007 financial year onwards until 2019. Neither he nor any other director of the appellant was aware of the valuations of the Land and nor were they in a position to object to any such valuations.[69]

(2) When Mr Carey first resumed duties as a director of Silkchime, he obtained from the receivers the records they had kept. However, after perusing those records, he considered he would require source documents. The statement then says, 'In the result, it took me several months to obtain the necessary documents from the ING receivers and to properly collate and verify all of the financial information of Silkchime'.[70]

1. As the respondent submits, Mr Carey's witness statement provided no specific evidence of steps taken to obtain copies of the notices of assessment or information about the valuation amounts or of any specific barriers to obtaining the notices or information. Mr Carey's evidence was also not specific about when the notices of assessment were finally obtained and about how long it took to lodge the objections after the notices were received. In that regard, Mr Carey's witness statement merely said that 'in the course of obtaining the source documents from the ING receivers', he had cause to consider the notice of assessment for the 2018/2019 financial year dated 26 September 2018, the valuation for which struck him as an enormous increase. Accordingly, on behalf of Silkchime, Mr Carey lodged the objection on 16 July 2019.[71]
2. With reference to what was said in his witness statement as to events after the receivers retired, Mr Carey was asked in cross‑examination when it was that he received all the source documents he requested from ING. His response was that his recollection was that it took about three or four months to get 'all the assessments they were referring to'. He then said that his lawyers 'ended up' getting some of the assessments from Landgate.[72]
3. When the question was put to Mr Carey that the opportunity was open to obtain the assessments directly from Landgate, he replied as follows:[73]

So to put things in context, when this settlement came about there was 100 things that needed to be done, and I got MDK, who were acting for me to deal with a whole range of things, and land tax was one of these things. So for many, many reasons what I wanted was the books and records as the director now in control of Silkchime. I had a legal right to have the books and records of Silkchime for a whole range of reasons. And we pursued that with the receivers, and they weren't cooperative, and once we had been through that then, I guess, in frustration because I said to the lawyers I want to get these assessments as quickly as possible. They then either sourced them from Landgate or from the State Solicitor's Office, I'm not sure where they came from.

1. Mr Carey said that he wanted to have a look at the assessments to see the values on which those assessments were based, because he thought the amount owed could not possibly be the case.[74] He said he was pressing the appellant's lawyers to get that information, which was important to him, and that he raised pursuit of that information at his weekly meeting with the lawyers.[75]
2. In re‑examination, Mr Carey explained that the $717,556 figure could not possibly be the correct amount owed, because Mr Carey was roughly familiar with what he thought the value of the Land was and he knew how land tax was calculated, so the figure seemed about three times as much as what the land tax ought to have been.[76]

1. It is unnecessary to focus on the primary judge's reasons with a view to discerning error in his Honour's approach. The task of this court is to determine for itself whether the Tribunal's decision was legally unreasonable.[77]
2. In our opinion, having regard to Mr Carey's evidence and to the evidence as a whole, there is no plausible basis to conclude that the Tribunal's finding - that the appellant had not demonstrated reasonable cause for its delay - was legally unreasonable and discloses legal error.
3. The Tribunal appreciated the effect of Mr Carey's evidence.[78] The Tribunal's reasons disclose an intelligible and rational basis for its conclusion, which may be summarised as follows:

(1) The onus was on the appellant to demonstrate reasonable cause for its delay.[79]

(2) The question of reasonable cause is to be evaluated in the context that ordinarily an objection must be lodged within 60 days of becoming aware of an assessment notice.[80]

(3) The objections for all relevant financial years were not made until 16 July 2019.[81]

(4) By early March 2019, Mr Carey knew the amount said by the State Solicitor's Office to be owing. As a result, Mr Carey knew that there was an issue as to the valuation of the Land, because the amount demanded seemed about three times as much as what Mr Carey thought it should have been.[82]

(5) Mr Carey knew of his right to object to a valuation.[83]

(6) The only evidence from Mr Carey as to the specific steps he took to obtain the assessment notices was his evidence in cross‑examination that he made a request of his lawyers at their weekly meeting.[84] Nor was there specific evidence as to when, in fact, the assessment notices were received.[85]

(7) It was open to Mr Carey to contact the State Solicitor's Office, or to telephone the Office of State Revenue, in order to obtain a copy of the assessments.[86]

(8) By implication, in the circumstances, the appellant had not established any good or sufficient reason, or explanation, for having failed to take that step.

(9) In the circumstances, the appellant did not attend to the objections promptly.[87]

(10) Consequently, the appellant had not shown reasonable cause for its delay.[88]

1. The appellant's submissions fall well short of meeting the high hurdle of demonstrating legal unreasonableness. In substance, the appellant's submissions are no more than an attempt to challenge unfavourable findings of fact and findings of mixed fact and law.
2. At some points in submissions, counsel for the appellant submitted that process‑related unreasonableness was established by the Tribunal's failure to take into account the matters on which the appellant relies as relevant considerations.[89] However, counsel properly conceded that the matters on which the appellant relies are not mandatory relevant considerations.[90] That is fatal to a claim that a decision is vitiated by a failure to take into account a relevant consideration.[91] Consequently, this strand of the appellant's argument falls away.
3. As Gordon, Edelman and Steward JJ observed in Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, it may be accepted, as an abstract proposition, that there may be circumstances where, by failing to consider a particular factual or evidentiary consideration in the context of a particular case, the decision-maker may be found to have acted outside the bounds of rationality.[92] However, the present case is far from being such a case. In reality, the appellant's complaint is not that the Tribunal failed to consider the matters on which the appellant relies but, rather, that the Tribunal was not persuaded by those matters. In other words, the appellant's case suffers from the flaw identified in [84] above. For the reasons in [100] and for the following further reasons, it was well open to the Tribunal to reach the conclusion it reached.
4. Significant elements of the matters to which the appellant points in its submissions are assertions of fact not supported by any finding and not based on matters incontrovertibly established by the material before the Tribunal. The nature of an appeal under s 105 means that it is not part of this court's role to engage in fact-finding.
5. In so observing, it should not be thought that we otherwise would have made findings to the effect asserted by the appellant. To the contrary, several of the matters asserted by the appellant as set out in [65] above seem to us to be conclusions that are not supported by the evidence. For example:

(1) As to (5), Mr Carey did not give any evidence that concerns as to the appellant's solvency led to delay in the making of objections.

(2) As to (6), as already noted, Mr Carey gave no evidence as to the time taken between receiving the notices of assessment and the lodging of objections.

(3) The statements in (7) and (8) are bald assertion, not made with reference to any identified finding or evidence.

1. Further, the appellant's submissions, as a whole, appear to be founded on an assumption that the directors of a company can and should deal with only one matter at a time, so that only after completing their enquiries as to the appellant's financial position could the appellant's directors engage in the process of making an objection to the assessment of land tax. That assumption is ill‑founded. In circumstances where, by March 2019, Mr Carey (i) knew that the appellant had substantial outstanding land tax based on assessments spanning a number of years, and (ii) had formed a view that the assessments reflected an excessive valuation of the Land, it was incumbent on him to take prompt action to ensure objections were lodged as soon as possible. In that regard, contrary to some of the appellant's submissions that the appellant was only 61 days late,[93] the appellant could not be treated as having a 60‑day period, commencing at the end of the receivership, for the lodging of objections in relation to land tax, the assessments in respect of which had been served years earlier.
2. For all these reasons, the appellant's grounds of appeal are not established.

1. For the above reasons, we would dismiss the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Silkchime Pty Ltd and Valuer‑General [2021] WASAT 151 (Tribunal reasons).

[2] Silkchime Pty Ltd v Valuer‑General [2022] WASC 253 (primary reasons).

[10] Tribunal reasons [108], [126].

[12] Tribunal reasons [112] - [113].

[15] Primary reasons [37] (references omitted).

[16] Re Geneva Finance Ltd; Quigley v Cook (1992) 7 WAR 496.

[17] Tribunal reasons [63]; primary reasons [41].

[26] Appellant's submissions [41]; appeal ts 11.

[27] Appellant's submissions [42]; appeal ts 11.

[32] Appellant's submissions [46]; appeal ts 17, 18.

[33] Appellant's submissions [47]; appeal ts 18.

[39] Osland v Secretary, Department of Justice [2010] HCA 24; (2010) 241 CLR 320 [18]; Commissioner for Consumer Protection v Carey [2014] WASCA 7 [67] ‑ [70], [163]; Giudice v Legal Profession Complaints Committee [2014] WASCA 115 [70].

[40] Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [53]; Commissioner for Consumer Protection v Carey [164] ‑ [165]; Giudice v Legal Profession Complaints Committee [73].

[41] Paridis v Settlement Agents Supervisory Board [53].

[42] Paridis v Settlement Agents Supervisory Board [53] - [57].

[43] See, for example, Osland [19]; Commissioner for Consumer Protection v Carey [164]; Giudice v Legal Profession Complaints Committee [72].

[44] Young v Legal Profession Complaints Committee [2022] WASCA 52 [295] ‑ [313].

[45] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 [26], [29], [63], [89]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 [4], [53], [59], [80], [89], [131]; Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 271 CLR 550 [26].

[46] See, for example, Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24, 41.

[47] Minister for Immigration v Li [68].

[48] Minister for Immigration v Li [67].

[49] Minister for Immigration v Li [67].

[50] Minister for Immigration v Li [30], [66]; A v Corruption and Crime Commissioner [2013] WASCA 288; (2013) 306 ALR 491 [123]; Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 [8], [12], [92], [103].

[51] Minister for Immigration v Li [27] - [28], [72]; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 [44].

[52] As to the last of these, see ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439 [19] - [20].

[53] Minister for Immigration v Li [65].

[54] Minister for Immigration v Li [76].

[55] Minister for Immigration v Li [85].

[56] Minister for Immigration v Stretton [2] ‑ [3], [6] ‑ [7].

[57] Minister for Immigration v Li [76]; Minister for Home Affairs v DUA16 [26].

[58] Real Estate and Business Agents Supervisory Board v Carey [2010] WASCA 109 [58].

[59] Minister for Immigration v Li [113].

[60] Real Estate and Business Agents Supervisory Board v Carey [58].

[61] Giudice v Legal Profession Complaints Committee [35].

[62] Legal Profession Complaints Committee v Rayney [2017] WASCA 78; (2017) 51 WAR 142 [193] fn 144, [244].

[63] The Pilbara Infrastructure Pty Ltd v Economic Regulation Authority [2014] WASC 346 [148] ‑ [194]. See also Minister for Immigration and Border Protection v Singh [53] ‑ [55].

[64] Aronson M I, Groves M and Weeks G, Judicial Review of Administrative Action and Government Liability (7th ed, 2022) [5.350] - [5.470].

[65] See, for example, Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 [130] ‑ [137]; Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144 [57]; Perrinepod Pty Ltd v Georgiou Building Pty Ltd [2011] WASCA 217; (2011) 43 WAR 319 [101] ‑ [105]; Laing O'Rourke Australia Construction Pty Ltd v Samsung C&T Corporation [2016] WASCA 130; (2016) 50 WAR 399 [194]; Samsung C&T Corporation v Duro Felguera Australia Pty Ltd [2018] WASCA 27; (2018) 52 WAR 281 [141] ‑ [144].

[66] Including R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407, 430; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992 [37] ‑ [38]; Minister for Immigration v SZMDS [2010] HCA 16; (2010) 240 CLR 611 [40], [102], [119]; Minister for Immigration v Li [105] ‑ [110].

[67] D'Amore v Independent Commission Against Corruption [2013] NSWCA 187; (2013) 303 ALR 242 [71] ‑ [91].

[68] BFH16 v Minister for Immigration and Border Protection [2020] FCAFC 54; (2020) 274 FCR 532 [27] ‑ [37].

[69] Statement of Mr Carey [37] - [52], [64].

[71] Statement of Mr Carey [84] - [89].

[77] Minister for Immigration and Border Protection v SZVFW [18], [55] ‑ [56], [85] ‑ [87], [154] ‑ [155]; Humich Nominees Pty Ltd v Commissioner of Main Roads [2020] WASCA 175 [125].

[78] Tribunal reasons [33] - [38]. See [34] above.

[79] Tribunal reasons [51] - issue (1).

[91] Minister for Aboriginal Affairs v Peko‑Wallsend (39); A v Corruption and Crime Commissioner [88], [227].

[92] Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 96 ALJR 819 [41].