Body Corporate for One The Esplanade Community titles Scheme 14060 v Chief Executive of the Department of Environment and Resource Management [2009] QSC 423

SUPREME COURT OF QUEENSLAND CITATION: Body Corporate for One The Esplanade Community titles Scheme 14060 v Chief Executive of the Department of Environment and Resource Management [2009] QSC 423 PARTIES: BODY CORPORATE FOR ONE THE ESPLANADE COMMUNITY TITLES SCHEME 14060 (applicant) v CHIEF EXECUTIVE OF THE DEPARTMENT OF ENVIRONMENT AND RESOURCE MANAGEMENT (respondent) FILE NO/S: BS 8974 of 2009 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 23 December 2009 DELIVERED AT: Brisbane HEARING DATE: 13 October 2009 JUDGE: Martin J ORDER: APPLICATION IS DISMISSED CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW – IRRELEVANT CONSIDERATIONS – ERROR OF LAW – Where applicant retained a management company to manage its affairs – Where management company was acquired by another management company – Where new management company did not notify the Chief Executive of Land Valuations of its change of address – Where redirection service established to direct mail from old to new management company – Where a valuation notice sent to the old management company – Where applicant claims the valuation notice was not received – Where applicant lodged objection to notice after expiry of objection period – Where respondent rejected the objection for being out of time but agreed to consider the matter under s 28 – Where respondent found no alteration to the valuation was warranted – Where applicant lodged an appeal – Where respondent agreed to consider matter pursuant to s 44(2) – Where respondent not satisfied that the failure to lodge a timely objection was through no fault of the applicant – Where applicant brings application for judicial review – Whether the respondent -- 1 of 9 -- 2 made a mistake of law - Whether the respondent took into account irrelevant considerations. Judicial Review Act 1991, s 20(2) Valuation of Land Act 1944, s 44 Blott v Almatrah [1998] 2 VR 83 MacFarlane v Burke, ex parte Burke [1983] 2 Qd R 584 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Perdis v Nominal Defendant [2004] 2 Qd R 64 Szklv v Minister for Immigration and Citizenship [2007] FCA 1927 Yx Finance Co Pty Ltd v Cummings [1964] ALR 667 COUNSEL: BWJ Kidston for the applicant MO Plunkett for the respondent SOLICITORS: Mahoney Lawyers for the applicant Crown Solicitor for the respondent [1] The applicant is the body corporate of the residential units building at One the Esplanade, Surfers Paradise (“the Property”). It wishes to object to a valuation of the Property made by the Chief Executive under the Valuation of Land Act 1944 (“the Act”) but cannot because its objection was lodged out of time and the Chief Executive decided to refuse to accept the late objection. The applicant seeks to review that decision to refuse under the Judicial Review Act 1991 (“JR Act”). [2] At the hearing of the application the applicant abandoned all the grounds in its application and, with leave, relied on the following: (a) That the making of the decision was an improper exercise of the power conferred by the Act (s 20(2)(e) of the JR Act), and (b) That the decision involved an error of law (s 20(2)(f) of the JR Act). [3] The basis of the applicant’s claim is that it did not receive the relevant valuation notice and that the Chief Executive made reviewable errors in holding that he was not satisfied that the applicant’s failure to make a timely objection happened through no fault of the applicant’s. [4] The relevant circumstances giving rise to this application are: (a) Up until about October 2007 the manager of the applicant was a firm called Body Corporate Administration (“BCA”). (b) BCA operated a post office box at the Gold Coast Post Office (“the BCA box”). (c) In about October 2007 Body Corporate Services “(BCS”) purchased BCA and, as a result, became the applicant’s manager. (d) BCS operated a post office box at the Broadbeach Post Office (“the BCS box”). (e) Although it had purchased BCA, BCS operated BCA as a separate business until it was finally integrated into BCS in February 2008. -- 2 of 9 -- 3 (f) When that integration occurred, BCS obtained a redirection facility from Australia Post, which was intended to have the effect of redirecting mail from the BCA box to the BCS box. (g) On 17 March 2008 the respondent issued the annual valuation notice in respect of the property (“the notice”). (h) That notice was addressed to the applicant, care of BCA and addressed to the BCA box. (i) The BCA box was the address notified to the Chief Executive as the address for service and had been since November 2003. Previous annual valuation notices had been sent to that address in November 2004, March 2005, and February 2007. (j) The applicant says that the notice was not received by BCA or by BCS or by it. (k) The notice was not returned to the department unclaimed. (l) In September 2008 BCS says that it realised that the notice had not been received and it caused enquiries to be made of the respondent. (m) A copy of the notice was sent to BCS on 5 September 2008 and that was forwarded by BCS to a member of the body corporate. (n) On 9 September the applicant lodged a notice of objection to the valuation. (o) On 10 September 2008 the respondent rejected the objection on the ground that it was received out of time but agreed to consider the matter under s 28 of the Act. (p) On 15 October the respondent advised the applicant that, in his opinion, no alteration to the valuation was warranted. [5] An appeal was instituted but, following negotiation, the parties reached an agreement that the respondent would make a decision pursuant to s 44(2) of the Act in relation to the original objection to valuation. [6] On 17 July 2009 the respondent sent a letter in which he gave notice of his decision that the applicant had not satisfied him in terms of s 44(2) of the Act and that he would not accept the late objection. Valuation of Land Act [7] Section 37 of the Act provides that the Chief Executive must, subject to certain conditions, make an annual valuation of all land in a particular area. The valuation the subject of this application was made with respect to the property under the Act. [8] Section 41A provides that, as soon as practicable after making an annual valuation, the Chief Executive must give to each owner of land in the area a notice about the valuation of that land. [9] Section 84 of the Act provides that the address for service last given to the Chief Executive by any person shall, for the purposes of the Act, be the person’s address for service. [10] Section 44 of the Act provides: “Late objection (1) This section applies if— -- 3 of 9 -- 4 (a) a person was entitled to make a timely objection about a valuation of the person’s land but failed to do so; and (b) the person posts to or lodges with the chief executive an objection in writing against the valuation within 1 year after the date of issue of the notice of valuation; and (c) the person is, at the time of the late objection, the owner of the land. (2) If the chief executive is satisfied that the person’s failure to make a timely objection happened through no fault of the person, the chief executive must accept the late objection. (3) A late objection accepted by the chief executive is to be dealt with under this part as if it were a timely objection. (4) In this section— late objection means an objection mentioned in subsection (1)(b). timely objection means an objection under section 42 within the time stated in that section.” The decision [11] The Chief Executive’s decision is contained in a letter from the Department of Environment and Resource Management dated 17 July 2009. It reads: “I refer to your letter of 5 June 2009 concerning your late objection to valuation of the Body Corporate for One The Esplanade (formerly Allawah) property. I can confirm that I have the authority as a delegate for the Chief Executive to determine under s. 44 (2) of the Valuation of Land Act 1944 whether the failure to make a timely objection happened through no fault of the person entitled to do so. To assist in my consideration of this matter I have been provided with four affidavits from the following: Gregory James Nunn dated 12 May 2009 Kevin Miller dated 12 May 2009 Richard Ward Allard dated 12 May 2009 Ben Walker Seccombe dated 12 May 2009 My review of these affidavits confirms that no action was taken to identify the location of the annual valuation notice until the 5th September 2008 when Mr Allard made an enquiry to the department. The statement of Mr Allard does not identify the destination of the original notice issued 17th March 2008 nor detail any mail system/process to confirm that it was not delivered. -- 4 of 9 -- 5 However, the statement of Mr Allard does identify that the address on the notice received on 5 September 2008 was a post box address on which the manager maintained a mail forwarding service. I have made enquiries and Mr Terry Wilkinson of this office has confirmed to me that the original notice was not returned to this office unclaimed. I note that s. 84 of the Valuation of Land Act 1944 provides that the address for service last given to the Chief Executive shall be the person’s address for service and where the person has not notified the Chief Executive of a change of address (either in a return or by separate written advice) then the address as recorded in the Chief Executive’s records is the person’s address for service. I am of the view that not notifying the Chief Executive of a change of address would be a failure by the person. Therefore any claim that a notice sent to an old address (albeit one with a mail forwarding service) has not been received through no fault of the person would therefore fail. In the absence of anything to the contrary, I can only believe that the notice was properly sent and therefore received. On the basis of the Affidavit material provided I am not satisfied that the lodgement of the late objection was through no fault of the person entitled to do so. Accordingly, I find the lodgement of your client’s objection on 10 September 2008 remains as an invalid objection.” [12] In considering the manner in which the decision is expressed, a reviewing court must bear in mind the principles enunciated in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, where, at 271-272, Brennan CJ, Toohey, McHugh and Gummow JJ said: “When the Full Court referred to ‘beneficial construction’, it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic … In that case, a Full Court of the Federal Court … collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be ‘concerned with looseness in the language ... nor with unhappy phrasing’ of the reasons of an administrative decision-maker ... The Court continued: ‘The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error’. These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.” -- 5 of 9 -- 6 [13] Thus, one approaches these reasons from the standpoint that they do not purport to be the type of carefully structured reasons that one might expect to be created in response to a request under the JR Act. They should be construed in the light of what they are – a response to an application contained within an ordinary item of correspondence. The applicant’s case [14] The applicant bases its case on two broad arguments which it describes as “the person/agent distinction” and the “causation limitation”. [15] The “person/agent distinction” is a reference to the argument by the applicant that s 44(2) of the Act requires the respondent to distinguish between fault attributable to “the person” and fault which may be attributable to “the person’s agent”. In other words, the applicant argues that the word “person” in s 44(2) does not extend to that person’s agent. [16] The words “person” and “agent” are defined in s 2 of the Act as follows: “person includes – (a) a person or entity representing the State; and (b) a society, institute, partnership or other body, even if not incorporated; and (c) a trustee or agent.” “agent includes every person who, in Queensland, for or on behalf of any person (the principal) has the control or disposal of any land belonging to the principal, or the control, receipt or disposal of any rents, issues, or proceeds derived from any such land.” [17] The use of the word “includes” in the definition of both “agent” and “person” should, in my opinion, be read so that the definitions of those words are not exhaustive but are intended to enlarge the ordinary meaning of those particular words. That conclusion is supported by the definition of “person” being extended to an unincorporated body which would not, in ordinary parlance, be regarded as a person. Thus, where “person” is defined to include “agent” it is not confined to the specific type of agent referred to in the inclusive definition of “agent” in s 2. The definition of “agent” is, likewise, a non-exhaustive definition. [18] These definitions can be contrasted with the definition considered by the High Court in YZ Finance Co Pty Ltd v Cummings [1964] ALR 667. In that case the definition of “security” was said to include several matters, each of which would have fallen within the ordinary meaning of the word “security”. The majority of the court said that, in those circumstances, the list of matters was intended to be exhaustive. That a definition is expressed to “include” one or more items that might fall within the ordinary meaning of the word does not necessarily mean that it is not intended to be an exhaustive definition: MacFarlane v Burke, ex parte Burke [1983] 2 Qd R 584 at 589. [19] It follows, then, that where s 44(2) speaks of the “fault of the person”, it should be read so as to cover any fault on the part of such a person’s agent. -- 6 of 9 -- 7 [20] Notwithstanding that construction of the meaning of “person”, the applicant argues that, as s 44(2) is remedial in nature, it should not be construed in a way which fails to distinguish between the acts of the principal and the agent. I was referred to decisions in the Land Court and the Land Appeal Court where failures to appeal within time were considered and the errors of solicitors were not sheeted home to the applicant/appellant. With respect to the failure to lodge a notice of appeal within time, the Act provides in s 57 that if a notice of appeal is filed after the time limited, then the registrar must notify the owner that the appeal may not be heard unless the owner satisfies the court that the owner has a reasonable excuse for filing the notice after the time stated. [21] This was considered by Mr Trickett, President, in Trust Company of Australia Limited v Department of Natural Resources and Water [2007] QLC 45. Mr Trickett relied upon a decision of the Land Appeal Court in Director General, Department of Transport v Congress Community Development and Education Unit Limited (1998) 19 QLCR 168. The matter to be determined in that case was whether or not, under the former legislation, the applicant had demonstrated that there was “a reasonable cause or explanation for the lateness of the … lodgement”. The circumstance in that case was that the applicant’s solicitor had, for reasons explained, failed to file and appeal within time. Justice Muir, sitting as President of the Land Appeal Court, did not find it necessary to consider whether an applicant was “necessarily fixed with his agent’s conduct to the extent that the agent’s conduct is in all respects to be treated as that of the applicant”. The application for leave to extend time was allowed but the test was a different one to that which applies under s 44(2). There is a clear distinction between having to establish that one has a “reasonable excuse” for filing a document late and the test in s 44(2) where one has to satisfy the Chief Executive that the failure to object in time happened through “no fault” of the applicant. In the latter case, a reasonable excuse will not necessarily be congruent with the absence of fault. I am, therefore, not persuaded that the decisions in the Land Court should be followed. [22] Similarly, I was referred to Perdis v Nominal Defendant [2004] 2 Qd R 64, in which the Court of Appeal considered s 37(3) of the Motor Accident Insurance Act 1994 and the question of “a reasonable excuse for the delay”. In that case it was held that a reasonable excuse for delay would exist if an applicant had entrusted the matter to a solicitor who was reasonably believed to be competent to do whatever was necessary but did not, in fact, do what was necessary. Those circumstances do not apply to s 44(2). In any case, it is not said by the applicant that either BCA or BCS failed in any particular duty they might have had to receive and transmit the notice of valuation to the applicant. Rather, the case was left on the basis that it was more likely than not that the notice of valuation had not been received at all. I am not prepared to proceed on that basis for a number of reasons, not least that the law recognises a presumption of regularity with respect to the post and a letter is presumed to be delivered in accordance with the sender’s instructions in the ordinary course of the post: Blott v Almatrah [1998] 2 VR 83; SZKLV v Minister for Immigration and Citizenship [2007] FCA 1927. [23] The applicant also argues that there is a “causation limitation”. It is described as being an additional limitation on the conduct or action of the person which the respondent can take into account. The applicant submitted that the presence of the word “through” in s 44(2) “limits the action or conduct of the person the respondent -- 7 of 9 -- 8 can have regard to to that action or conduct which is causative of the person’s failure to make a timely objection.”. [24] It is the intention of s 44(2) that an applicant who is late but whose lateness is not due to any fault of the applicant will have the objection accepted for consideration. The Chief Executive, if satisfied of the matters in s 44(2), has no choice - the late objection must be accepted. The “causation limitation” (to the extent that it differs from the “person/agent distinction”) proposed by the applicant would impose an unnecessary gloss on the statute. The Chief Executive is entitled to consider any matter which relates to the reasons for lateness, where those reasons are connected to conduct or omissions of the objector, Irrelevant/relevant considerations [25] Were irrelevant considerations taken into account? The facts which are said by the applicant to have been irrelevant but which were taken into account were: (a) That no notice of change of address had been given to the Chief Executive. When somebody is considering whether or not there has been fault in responding to a notice, I think that a failure to notify of a new address must be relevant to that consideration. It is not made irrelevant because of what was, essentially, an arrangement with a third party for the redirection of mail (b) The Chief Executive’s delegate found that, in the absence of anything to the contrary, he could only believe that the notice was properly sent and received. That is said to be irrelevant because it did not matter whether the notice had been received by BCS. This does not assist the applicant as it is based on the flawed person/agent distinction. (c) It is said that the delegate took into account the fact that no action had been taken to identify the location of the notice until 5 September 2008, and that was irrelevant. It was argued that the delegate could only consider what occurred up to and including 45 days after the date the notice was issued. It is, in my view, plainly relevant that someone who stands by and does nothing is in a different position to someone who acts in a way designed to determine the existence or location of such a notice. The applicant and its agent did nothing until 5 September 2008. [26] There are other matters referred to by the applicant in its submissions but they are based upon flawed distinctions, such as the person/agent distinction, with which I have already dealt. [27] Were relevant considerations not taken into account? The facts which are said by the applicant to have been relevant but which were not taken into account were: -- 8 of 9 -- 9 (a) The agency agreement that existed between the applicant and BSC. Failing to take this agreement into account meant that the respondent treated the applicant and BCS as one entity. As discussed above, there is no reason not to take the approach that the applicant is bound by the acts and omissions of its agent. (b) That valuation notices may not issue annually and that this could explain why the applicant made no inquiry within the 45 days. It is difficult to accept that the issuer of valuations would not take into account something which it does as a matter of course. There is no evidence that this occurred. (c) That the notice was lost in the post. This is an interesting submission from the applicant for, to accept it, would mean that any objector could rely on it without more to obtain extensions of time within which to object. It should be rejected as, in the absence of any evidence that it was lost, it conflicts with the presumption of regularity referred to above. (d) There was a properly working redirection notice. If one assumes that there was a properly working redirection notice, there is no reason advanced, apart from the unproved possibility of the notice not reaching the BCA box, for the notice not to have been received by the applicant. At any rate, having clearly considered that there had been no notice of change of address given, it can be inferred that the respondent took into account associated issues related to the applicant’s address. [28] The applicant has failed to demonstrate any reviewable error on the part of the Chief Executive in arriving at the conclusion that he could not be satisfied that the failure to make a timely objection happened through no fault of the applicant. [29] The application is dismissed. -- 9 of 9 --