Tenstat Pty Ltd v Valuer-General

A single decision in two proceedings: an appeal from that decision in only one proceeding 7The appeal by Tenstat pursuant to s 56A of the Court Act has not yet been heard. When the appeal proceedings were listed for directions, the Court identified a concern as to whether there was legal utility in prosecuting the appeal. Notwithstanding the delivery of a single judgment by the Acting Commissioner, an order had been made in the Woolworths proceedings allowing its appeal and determining the land value to be the figure for which Woolworths contended. On its face, that order and determination would stand independently of any determination that might be made in favour of Tenstat should it be successful in its appeal. This circumstance gave rise to the prospect of there being conflicting decisions of the Court as to the land value of the Site at the base date. 8Tenstat and the Valuer-General, as parties to the s 56A appeal, were directed to provide short written submissions addressing the concern raised by the Court. Tenstat was also directed to advise Woolworths of the concern raised by the Court. The latter Company indicated that it wished to make a written submission directed to the concern raised by the Court and to do so as "amicus curiae". Neither Tenstat nor the Valuer-General objected to that course being taken by Woolworths. Following the filing of written submissions, the Court has, at the request of all three entities, heard short oral argument addressing and responding to the written submissions that had been filed.

The statutory framework 9By s 14CC of the Valuation Act, the Valuer-General is required to keep a Register of Land Values. Information included in the Register includes "information as to the value of the land" (s 14CC(2)(c)). By subsection (3), an entry in the Register as to a land value "is conclusive evidence" of the value shown in the entry. 10The land value entered in the Register may be altered not only to give effect to a land value that has been re-ascertained, but also "to give effect to any decision on an objection or appeal under this Act" (s 14DD(1)(b)). 11Notices of valuation that founded both the Tenstat proceedings and the Woolworths proceedings were given pursuant to s 29(1) of the Valuation Act. By subsection (1), notice of the valuation was required to be given to: "(a) the owner of the freehold estate in the land, and (b) any lessee or occupier of the land who, under any Act, is liable to pay any rate or tax to a rating or taxing authority in respect of the land, and (c) any lessee of the land under a written lease for a term exceeding 3 years who, under the lease, is liable to pay the whole or any part of any rate or tax to a rating or taxing authority in respect of the land, and (d) any mortgagee in possession of the land." Tenstat received the notice as owner of the freehold (paragraph (a)) while Woolworths received the notice because the obligations imposed upon it under the terms of its lease from Tenstat engaged the provisions of paragraph (c). 12Each person receiving a notice under s 29(1) is entitled to lodge an objection to that valuation with the Valuer-General (s 29(3A)). As I have earlier indicated, each of Tenstat and Woolworths exercised their respective rights to object pursuant to the subsection. 13Each objection was disallowed by the Valuer-General in exercise of his power so to do under s 35B(1). 14The right to appeal to this Court under the Valuation Act is afforded by s 37(1). The subsection provides: "(1) Any person entitled under Part 3 to object to the valuation may appeal to the Land and Environment Court if a person is dissatisfied with the Valuer-General's determination of any such objection to the valuation concerned (whether or not the person was the objector)." Each of Tenstat and Woolworths, being dissatisfied with the Valuer-General's determination of their respective objections, was entitled separately to exercise the right of appeal afforded by the section. 15The power exercised by the Acting Commissioner when determining the appeals as he did was that afforded by s 40. That power included a power either to confirm or to revoke "the decision to which the appeal relates" and also to "make a decision in place of the decision to which the appeal relates" (s 40(1)(a) and (b)). 16Section 41 of the Valuation Act is also relevant to be noticed for present purposes. It provides: "41 Giving effect to decision on appeal (1) Within 60 days after the decision on appeal becomes final, the Valuer-General must take any action that is necessary to give effect to the decision, which may include altering the Register of Land Values in any relevant respect. (2) If no appeal from a decision of the Land and Environment Court is instituted within 30 days after the day on which the decision is made, the decision of the Land and Environment Court is taken, for the purposes of this section, to have become final at the end of the 30-day period." 17Conformably with the decision made in the Woolworths proceedings, the Register of Land Values has since been altered so that it reflects a land value at the base date of $25,000,000. That alteration was made because the decision in the Woolworths proceedings had become final. As I understand the submissions made on behalf of Tenstat, it does not challenge the action of the Valuer-General in altering the Register as he did in accordance with the provisions of s 41(1). However, the relevance of s 41(2) to the determination of the present issue will be addressed in due course.

Consideration 18A review of the statutory provisions makes tolerably clear that once the land value is determined by the Valuer-General for any particular base date and notice of that valuation duly given, there may be multiple parties who have a right of individual objection to that land value. Upon dissatisfaction with a determination of such objection, each will have a separate right to appeal to this Court. Thus, the prospect of multiple proceedings in the Court, each directed to the land value at a given base date, arises by operation of the provisions of the Valuation Act. 19The fact that multiple proceedings are in prospect in respect of the determination of land value for a given base date necessitates consideration of the nature of the decision to be made by the Court in each case. As s 40 of the Valuation Act provides, it is open to the Court to "make a decision in place of the decision to which the appeal relates". While the right of appeal is predicated upon dissatisfaction on the part of the particular applicant with the Valuer-General's "determination" of the objection made by that applicant (s37(1)), the "decision" to which s 40(1)(b) refers is, so it seems to me, the decision of the Court as to land value in place of that made by the Valuer-General. Relevantly, such a decision meets the description of a "decision" which would require the Valuer-General to alter the Register of Land Values conformably with s 41(1). 20The operation of the statutory provisions to which I have referred, particularly ss 14CC, 14DD and 41, demonstrate that there can only be one land value determined for land at a nominated base date. Relevantly, the Court has determined in the Woolworths proceedings that the land value of the Site is $25,000,000 in place of the decision made in that regard by the Valuer-General. The value so determined by the Court has been entered in the Register of Land Values and is "conclusive evidence" of that value at the base date (s 14CC(3)). In that sense, the Court's determination is akin to a decision in rem (Handley, Spencer Bower and Handley: Res Judicata, 4th ed (2009) LexisNexis at [10.01] and [10.24]; P E Bakers Pty Ltd v Yehuda (1988) 15 NSWLR 437 at 442). 21Woolworths submits that by reason of the nature of the decision given in its proceedings, nothing determined in or as a consequence of the appeal instituted by Tenstat pursuant to s 56A of the Court Act can impinge upon the finality of the judgment in the Woolworths proceedings, determining the land value of the Site as $25,000,000 (cf s 39(5) of the Court Act). Thus, so it submits, the appeal by Tenstat is futile and an abuse of process. 22I am not persuaded that this analysis of the position is correct. As I have earlier recorded, the orders made in the Woolworths proceedings have resulted in the amendment of the Register of Land Values to reflect the determination made by the Acting Commissioner. That alteration having been made as a consequence of the Court's determination of a different land value, the Court's orders in the Woolworths proceedings "have already done their work and they have no ongoing work to do" (Perilya Broken Hill Limited v Valuer-General (No 2) [2012] NSWLEC 276 per Preston CJ at [12]; see also at [17]). 23The entitlement of a party to proceedings, regularly instituted, to exercise the right of appeal afforded by s 56A of the Court Act is not lightly to be denied. There are two factors weighing strongly against the denial of the right to appeal presently sought to be exercised by Tenstat. First, there is a right afforded by the Valuation Act to those holding different interests in land, each to commence separate proceedings in the Court following dissatisfaction with the Valuer-General's determination of their respective objections to the land value first determined. The second factor is the power of the Court itself to determine land value in place of that determined by the Valuer-General. 24It must also be remembered that the decision from which Tenstat seeks to exercise a right of appeal is the very same decision in which the land value was determined as Woolworths contended it should be. In that circumstance, it would appear to be unjust to deny Tenstat the right to contend, on appeal, that the decision was infected by error of law. 25This observation has significance given the submission of Woolworths that commencement of the s 56A appeal by Tenstat constitutes an abuse of process, with the consequence that the appeal should either be dismissed or permanently stayed. While recognising that the categories of cases that may constitute an abuse of process are not closed, Woolworths accepted that many cases of abuse of process will exhibit at least one of three characteristics, namely: (1)invoking the court's process for an illegitimate or collateral purpose; (2)the use of the court's procedures to unjustifiably oppress a party or non-party; or (3)the use of the court's procedures in a way that would bring the administration of justice into disrepute (Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251 per McHugh J at 286; Batistatos v Roads and Traffic Authority of NSW [2006] HCA 27; (2006) 226 CLR 256 at [15]). As I understand the submission of Woolworths, it is the third of the three characteristics that is presently relevant. 26In advancing the submission, reliance was placed upon the decision of the High Court in Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378 where the plurality (Mason CJ, Deane and Dawson JJ) accepted (at 393) as correctly stating the relevant principle, the observations of Lord Diplock in Hunter v Chief Constable of the West Midlands Police [1981] UKHL 13; [1982] AC 529. There, his Lordship said (at 536): " ... the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people". 27Where, as here, proceedings have been heard together, with the consequence that a single decision has been delivered disposing of two sets of proceedings, to allow the unsuccessful party in one of the proceedings heard concurrently to exercise a statutory right of appeal would not, to my mind, bring the administration of justice into disrepute. Indeed, Lord Diplock's "right-thinking people" might well conclude that in the circumstances that pertained in the present case, the denial of the statutory right to appeal would itself bring the administration of justice into disrepute. 28By parity of reasoning, I do not accept the submission by Woolworths that unless a permanent stay is granted the prospect exists, in the event of the appeal being successful, that there will be inconsistent judgments of the Court upon the very same matter, namely the land value of the Site at the base date. If the single decision that was delivered by the Acting Commissioner is found erroneously to have determined a question of law that was germane to the decision made, the consequence will be a reconsideration of the land value for the purpose of the Tenstat proceedings. Should that reconsideration result in a land value being determined that differs from that made by the Acting Commissioner in the judgment under appeal, the later determination would engage the provisions of ss 14DD(1)(b) and 41 of the Valuation Act, requiring alteration of the Register of Land Values. As I have earlier stated, the orders made in the Woolworths proceedings have no further work to do, the Register having already been altered to give effect to those orders conformably with s 41(1). 29However, the provisions of s 41(2) still have work to do in relation to the Tenstat proceedings. Applying the terms in which the subsection is expressed to the present circumstances, there is an appeal from the decision of the Acting Commissioner, exercising the jurisdiction of the Court, and that appeal was instituted within 30 days after the date of that decision. As a consequence, the decision in the Tenstat proceedings is not yet final for the purpose of determining whether the Register must be altered under s 41(1). This circumstance further supports my conclusion that there is no proper basis upon which to stay or dismiss the appeal filed by Tenstat under s 56A of the Court Act. 30In making reference to the provisions of s 41(2), I do not overlook the fact that the operation of the subsection is, in terms, predicated upon there being no appeal "from a decision of the Land and Environment Court" (added emphasis). In context, I read that provision to be referring to an appeal from the decision of the Court making the determination it is empowered to make under s 40(1). The operation of the subsection is not confined to an appeal taken to a court other than the Land and Environment Court. The subsection can only be given practical effect if the "appeal" to which reference is made includes an appeal available under s 56A of the Court Act. 31Related to the argument addressed by Woolworths that the decision in its proceedings was a judgment in rem, is the submission that Tenstat must be held to the manner in which it conducted the proceedings before the Acting Commissioner. While agreeing that both the Woolworths proceedings and Tenstat proceedings should be heard together and also agreeing that evidence in the one proceeding be evidence in the other, Tenstat did not seek to have the proceedings consolidated. Had such an order been made, Woolworths accepts that there would have been no question as to the entitlement of Tenstat to appeal from the decision pursuant to s 56A. However, so it is submitted, in the absence of an order consolidating the proceedings, Tenstat cannot now seek to resile from or re-agitate, by way of appeal, the orders made in the Woolworths proceedings. 32There can be no doubt that an order for consolidation of the two sets of proceedings would have been desirable. However, for the reason I have advanced in addressing the present consequence of the orders made in the Woolworths proceeding (see [22]), I do not accept that the failure to seek and have made an order consolidating proceedings is fatal to the prosecution of Tenstat's present appeal. 33Although the Valuer-General submits that the decision of the Acting Commissioner does not disclose any error of law, he maintains that Tenstat is entitled to bring its present appeal in order to contend that such an error was made. He seeks to address "the procedural difficulty" identified by submitting that the Court should now make an order retrospectively consolidating the two sets of proceedings. Particular reliance is placed upon the provisions of s 63 of the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005 (UCPR) Pt 2 r 2.1 in support of that submission. 34No authority is cited to support the submission that a retrospective order could be made for consolidation after the hearing of proceedings had concluded and judgment delivered. My research did not disclose the existence of any such authority. Moreover, I do not read the provisions to which my attention has been drawn as having the effect for which the Valuer-General contends. 35The Valuer-General also submitted that the joinder of Woolworths to the present appeal proceedings should be made pursuant to UCPR Pt 6, r 6.24(1). However, he also submitted that without consolidation of the proceedings, joinder alone would not "of itself ... cure the difficulty which has arisen in this pair of court cases". 36There are two responses to this submission. First, the rule identified does not provide the source of power for joinder in the present circumstances. That rule is apposite to the constitution of proceedings at first instance. However, there is another source of power for joinder to which I will turn shortly. Second, for reasons already stated, consolidation is unnecessary in order to give full effect to any different determination of land value that may be made as a consequence of success in the appeal.

Conclusion 37There is utility in allowing the appeal brought by Tenstat pursuant to s 56A of the Court Act to proceed to hearing. If that appeal is successful and a land value is determined that differs from that determined by the Acting Commissioner, the Register of Land Values must be altered accordingly (ss 14DD(1)(b) and 41(1)). 38However, as Woolworths is potentially affected by the outcome of the appeal, it must be accorded procedural fairness before the appeal is determined. That procedural fairness is accorded if it is joined as a party to Tenstat's appeal. 39The procedural rules for the conduct of an appeal under s 56A of the Court Act are those found in the UCPR. Part 50, r 50.5(3) provides: "(3) The court may order the addition or removal of any person as a party to an appeal." I propose to order that Woolworths be joined as a respondent to the present appeal proceedings.

Orders 40I therefore make the following orders:

1. Determine that the present appeal commenced by summons filed on 25 January 2013 may proceed to hearing on the grounds stated in that summons.
2. Order that Woolworths Limited be joined as a respondent to the present appeal proceedings.
3. Direct that a copy of this order together with an amended summons naming Woolworths Limited as second respondent be served on that Company not later than 5.00pm on Tuesday 15 October 2013.
4. Stand over the proceedings to Friday 18 October 2013 for directions and to fix a date for hearing.

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: 11 October 2013