Murray v Kingston City Council [2004] VSCA 49 (7 April 2004)

Last Updated: 31 March 2005

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 8407 of 2001

SHEILA ELIZABETH MURRAY
	v.
KINGSTON CITY COUNCIL

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JUDGES:	BUCHANAN and EAMES, JJ.A. and COLDREY, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 March 2004
DATE OF JUDGMENT:	7 April 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 49

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Courts – Jurisdiction – Council rates - Objection to valuation of land - Whether Supreme Court has jurisdiction to hear appeal against valuation – Process of objection and notice under Division III of Valuation of Land Act 1960 – Failure to give notice to Council under s.22(1) deprived Supreme Court of jurisdiction – Local Government Act 1989, s.184 – Valuation of Land Act 1960, ss.21, 22, 23.

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APPEARANCES:

Counsel

Solicitors

The Appellant appeared in person. For the Respondent

Mr M. Connock

Maddocks

BUCHANAN, J.A.:

1 I agree that, for the reasons stated by Eames, J.A., save as to the orders for costs, the appeal should be dismissed.

EAMES, J.A.:

2 This is an appeal from a decision of Beach, J. who dismissed an appeal from a decision of Master Wheeler, and in so doing confirmed the master’s order striking out the proceedings brought by the appellant in the Supreme Court on the basis that they were beyond the jurisdiction of this Court. The appellant had sought by way of originating summons to bring an appeal in the Supreme Court pursuant to s.184 of the Local Government Act 1989 in order to challenge the valuation of her property made by Kingston City Council.
3 On 4 October 2000 the respondent Council ("the Council") issued a rate and valuation notice to the appellant with respect to her property at 34 Hillston Road, Moorabbin ("the property"). The notice of valuation for the year ended 30 June 2001 fixed the capital improved value of the property at $245,000 and fixed the rates payable for that year at $549.82. The reverse side of the rates notice contained a wide range of information and both provided a form to be completed for the payment of rates by credit card and offered advice as to various alternative ways whereby the rates could be paid. Additionally, information was provided on a number of topics under the following headings:

Notice of Valuation/Objection to Valuation
Appeal to County Court
Basis of Assessment
Manner of Payment
Unpaid Rates and Charges
Penalties for Failing to Pay
Change of Address/Ownership
Pensioner Concessions

4 The appellant is not a lawyer. She is a widow and disability pensioner who lives on the property.
5 Under the heading "Notice of Valuation/Objection to Valuation" the following paragraph appeared on the back of the rates notice:

"The property described in this notice has been valued for the purpose of determining rates and the values assessed are shown on the front of this notice. The valuations represent the level of value as at 1 January 2000 and are effective from 1 July 2000. The Valuation of Land Act 1960 (as amended) provides for the owner or occupier who is aggrieved by an assessment of the value may lodge an objection to the valuation with the Council. An objection must be lodged within two months after the date of service of the Notice of Valuation and must be in the prescribed form, copies of which are available from council’s Property Services Department. Discussion between the objector and the valuer is recommended before completing the prescribed form. Regardless of any objection being made, the rates and charges shown on this notice must be paid by the due date otherwise interest will be charged. Please note that another authority may use these valuations for the purpose or (sic) levying a rate or tax."

The words in bold appear in that form on the original notice.
6 Immediately following that item there is the following item under this heading:

"Appeal to County Court

A person who is aggrieved by a rate or charge imposed by a Council, or by anything included or excluded from a rate or charge, may, within sixty days after receiving the rate notice, appeal to the County Court for a review of the rate or charge in accordance with the provisions of s.184 of the Local Government Act 1989 (as amended)."

7 In my opinion, a member of the public reading those extracts might reasonably conclude, as did the appellant, that if they were "aggrieved by a rate ... imposed by Council" they had 60 days to appeal, and the appeal would be heard in the County Court. The appellant was, indeed, aggrieved by the valuation, contending that there was an inconsistency in the determination of the valuation by reference to capital improved value as required by the Local Government Act and the Valuation of Land Act, on the one hand, and, on the other hand, the method of valuation which the valuer-general and Council had announced would be employed by councils following the changes to municipal valuation which occurred by virtue of the Valuation of Land Act being amended in 1998. In particular, the valuer-general had announced, so it was said, that properties would be valued at "fair market value", which meant, the appellant believed, that factors such as encroaching buildings which adversely affected that value would be taken into account. Rather than the valuation of her property decreasing, as she says would have been appropriate having regard to buildings which encroached on her property, it substantially increased.
8 It is not necessary to elaborate further on the bases on which the appellant seeks to challenge the valuation, because the issue before us is whether the Supreme Court has jurisdiction to entertain the proceeding brought by the appellant in which she seeks to review the valuation. For the purpose of determining that question we have assumed that the appellant’s complaints concerning the valuation made by Council have substance.
9 Upon receiving her rate notice the appellant on 9 October 2000 attended the Moorabbin office of the Council and discussed the valuation with Mr Brett Reed, the contract valuer employed by the respondent. The following day she visited the Mentone office of the Council and spoke to Mr Peter Scollo, another valuer employed by Mr Reed’s company, K.A. Reed (Group) Pty. Ltd. On 11 October the appellant lodged an objection to the valuation, receipt of which was acknowledged by the Council by a letter dated 17 October 2000. The appellant wrote to the Council, critical of delay and of the manner in which Mr Reed had dealt with her. Mrs Murray wrote further letters complaining about delay as to the Council arranging for a valuer to visit her property. Eventually Peter Scollo attended the property as valuer. There is a dispute between the parties as to whether he was given proper access in order to conduct his valuation. In any event, on 24 November 2000 K.A. Reed made a recommendation to the valuer-general that the property valuation be revised so as to be fixed at $225,000 as capital improved value and with a site value of $185,000. A copy of that recommendation was sent to the appellant and, in tiny writing at the foot of the page, it contained a note stating that the objector, upon being advised of the determination of the valuer-general "has the right to have the objection treated as an appeal to the Supreme Court or the Victorian Civil and Administrative Tribunal". That statement was quite misleading and inadequate.
10 The appellant wrote to the valuer-general on 30 November "to lodge a strong objection against K.A. Reed (Group) Pty. Ltd., contract valuers for Kingston Council who have delayed me for almost two months regarding my notice of objection, leaving me with only a few days to appeal". The appellant complained that she had been the victim of delaying tactics and had been sent backwards and forwards between Moorabbin and Mentone offices for forms which they did not have, with people laughing at her, and that she had had eight faxes and phone calls ignored. In the course of this letter the appellant raised a whole range of other complaints as to the conduct of the Council and the method whereby her property had been valued. She wrote:

"I object to paying for buildings on my property that are not mine, rates for land I cannot use, and a property devalued to the extent that I would not be able to sell without considerable financial loss.

As I am being totally ignored and [given] the time restrictions on appeal I would be grateful if you could look into this matter for me."

11 On 4 December 2000 by originating motion issued in the County Court the appellant commenced proceedings against the Council. On 6 December 2000 Scollo wrote to her, on letterhead titled "City of Kingston" and signed as "Certified Practising Valuer for K.A. Reed (Group) Pty Ltd as Contract Valuers for the City of Kingston". Scollo said that K.A.Reed had made a recommendation to the valuer-general that the capital improved value be reduced to $225,000, the site value to $185,000 and the net annual value to $11,250. He said the Council would reconsider all of the objections to the new valuation if further evidence was provided. The letter concluded:

"Should you be dissatisfied with the current or any reviewed ‘recommendation of adjustment’, you have the right under Division 4 of the Valuation of Land Act 1960 to lodge with the rating authority a notice requiring the rating authority to refer the matter to the Victorian Civil and Administrative Tribunal or to treat the objection as an appeal to the Supreme Court."

12 The respondent replied to that letter by her own of 11 December 2000, which commenced:

"I was absolutely astounded to receive your correspondence of 6 December particularly in view of the fact that a Writ has already been issued."

13 On 16 January 2001, Mr Roderick Pollard, the General Manager of the respondent, wrote stating that if she remained dissatisfied with "the supplementary valuation" then –

"The appropriate course is to lodge with council a written notice requiring us to refer the matter to the Victorian Civil and Administrative Tribunal in accordance with Part III of the Valuation of Land Act 1960. I enclose a copy of Part III of the Valuation of Land Act for your information (refer in particular to Division 4). Please note that the County Court does not have jurisdiction to determine the above proceedings. In this regard I draw your attention to s.184 of the Local Government Act 1989 (a copy of which is enclosed). Sub-section (1) provides that a person who is aggrieved by a rate or charge imposed by a council may appeal to the County Court for a review of the rate or charge. However, sub-s.(1A) provides that s.184 does not apply to a matter in respect of which an objection or appeal may be made under Part III of the Valuation of Land Act (or under s.183, which deals with differential rates). As your objection may be made under Part III of the Valuation of Land Act, s.184 of the Local Government Act does not apply.

Given that the above proceedings are beyond the Court’s jurisdiction, I suggest that the proceedings be withdrawn by consent. If the proceedings are withdrawn within the next 14 days, Council is willing to bear its own costs."

14 The writer said that if the proceedings continued they would be opposed and the Council would seek costs.
15 On 6 February 2001 the valuer-general confirmed the recommended adjustment to the valuation. In a notice to that effect which was given to the appellant, the appellant was advised that if she was dissatisfied with that decision she may within 30 days –

" . . . lodge with the rating authority, a written notice requiring it to treat the objection as an appeal and to refer it, subject to the provisions of s.22 of the Valuation of Land Act, to the Supreme Court or to the Victorian Civil and Administrative Tribunal. A copy of the notice must be sent to the Registrar, Land Valuation List of the Victorian Civil and Administrative Tribunal, 55 King Street, Melbourne, 3000."

16 The Council wrote again on 16 February repeating that "your current court action is based on a misunderstanding of s.184 of the Local Government Act and that your issues relate to the Valuation of Land Act and the processes allowed for objection." The appellant responded that the main thrust of her proceedings were that the valuer had failed to give her a fair and unbiased valuation by not taking into account a garage and other structures which intruded on to her property and affected its value.
17 The proceedings in the County Court came before Judge Harbison on 24 May 2001 and she referred the parties to what proved to be an unsuccessful mediation. On 7 September 2001 Master Patkin, in the County Court, heard an application by the respondent to strike out the proceeding as being beyond jurisdiction. He concluded that the County Court did not have jurisdiction but the Supreme Court might well have, and stayed the proceeding pending an application to transfer the proceedings to the Supreme Court pursuant to the Courts (Case Transfer) Act 1991. On 20 November 2001, by order of the Deputy Registrar of the County Court such a transfer was effected. On 13 December 2001 Master Bruce, in the Supreme Court, directed that any application brought by originating motion by the Council to strike out the proceedings in that court should be filed and served by 20 December 2001. That order was not complied with but a strike out summons was issued and filed on 21 December 2001. The appellant ratepayer was not served with that process until 24 December 2001. In response to the suggestion of Master Bruce that she issue a summons herself in the Supreme Court and make it returnable on the same date as the respondent’s summons the appellant took that course and issued proceedings on 1 February, returnable on 14 February, 2002.
18 On 14 February 2002 Master Wheeler heard the strike-out application and gave written reasons on 4 March 2002, stating that he agreed with the Council that the Supreme Court had no jurisdiction. He struck out the proceedings and ordered the ratepayer to pay costs of the County Court proceedings up to 1 November 2001 . The respondent Council was granted a certificate as to its own costs pursuant to the Appeal Costs Act. An appeal from that decision was heard by Beach, J. on 19 March, and on 10 April his Honour delivered detailed written reasons for dismissing the appeal with costs. From that decision the appellant now appeals to this court.
The legislation
19 The relevant provision of the Local Government Act 1989 is s.184.

"184. Appeal to County Court

(1) A person who is aggrieved –

(a) by a rate or charge imposed by a Council under this or any other Act; or
(b) by anything included or excluded from such a rate or charge –

may appeal to the County Court for a review of the rate or charge.
(1A) This section does not apply to a matter in respect of which an objection or appeal may be made under Part III of the Valuation of Land Act 1960 or under section 183.
(1B) The person must lodge the appeal with the Court within 60 days after first receiving written notice of the rate or charge.
(2) The person may only appeal on one or more of the following grounds of appeal –

(a) in the case of a rate (other than a special rate under section 221), that the land in respect of which the rate was declared was not rateable land;

...

(c) that the rate or charge assessment was calculated incorrectly;
(d) that the person levied with the rate or charge was not liable to be rated."
20 The sections of the Valuation of Land Act 1960 relevant for present purposes are ss.21, 22 and 23 which read as follows:

"21. Determination of objection in any other case

(1) Except in the case of an objection referred to in section 20, the rating authority must cause an objection lodged with it to be considered and determined in accordance with this section.

(2) The rating authority must refer an objection to the valuer for that authority, who must provide a reasonable opportunity for the objector to discuss the matter with him or her.

(3) Within 2 months after receiving an objection, the valuer must –

(a) if he or she considers that no adjustment in the valuation is justified – give the objector written notice of that decision; or

(b) if he or she considers that an adjustment in the valuation is justified –

(i) recommend accordingly to the valuer-general; and

(ii) give the objector and the rating authority a copy of the recommendation.

(4) The valuer-general, after consultation if practical with the valuer, must determine the objection as follows –

(a) the valuer-general may disallow the recommended adjustment in whole or part if in his or her opinion the general uniformity of the valuation or the general trueness and correctness of the valuation will be substantially affected by the adjustment; or

(b) in any other case, the valuer-general must confirm the recommended adjustment.

(5) The valuer-general must give written notice of his or her decision, within 2 months after receiving the recommendation, to the objector, the valuer and the rating authority.

(6) Subject to any appeal or review under Division 3, the decision of the valuer-general must be given effect to by the rating authority and every other rating authority using that valuation.

21 In Division 4, under the heading "Reviews and appeals", the following sections appear:

22. Right of review or appeal

(1) Subject to section 23, if –

(a) an objector is dissatisfied with the determination of the Commissioner, a valuer or the valuer-general on the objection; or

(b) 2 months have passed since an objection has been lodged with the rating authority and the valuer for the rating authority has not determined the objection or the valuer has not given notice to the objector under section 21(3)(b)(ii); or

(c) 2 months have passed since a valuer has given notice to an objector under section 21(3)(b)(ii) and the valuer-general has not determined the objection –

the objector may lodge with the rating authority a written notice requiring the rating authority to refer the matter to the Tribunal or to treat the objection as an appeal and cause it to be set down for hearing at the next sitting of the Supreme Court.

(2) A notice under sub-section (1) –

(a) in the circumstances referred to in sub-section (1)(a) – must be lodged within 30 days after the date that notice of the determination is given to the objector; or

(b) in the circumstances referred to in sub-section (1)(b) or (c) – may be made at any time after the relevant 2 months period.

(3) At the time of lodging a notice under sub-section (1), an objector must send a copy of the notice to the Tribunal or the Supreme Court (as the case requires).

23. Jurisdiction of Tribunal and Court

(1) Subject to sub-section (3), a matter is to be referred to the Tribunal under this Division if it relates to a valuation of an amount being -

(a) a capital improved value less than $250,000; or

(b) a site value less than $100,000; or

(c) a net annual value less than $12,500.

(2) If a matter relates to a valuation of an amount equal to or more than an amount referred to in sub-section (1), the matter may be referred to the Tribunal or treated as an appeal to the Court –

(a) at the option of the objector; or

(b) at the option of the rating authority if the objector does not exercise the objector's option within 1 month after being requested to do so by the rating authority.

(3) A matter may be treated as an appeal to the Court irrespective of the amount of the valuation if the Court is satisfied on the application of any party that the appeal raises questions of unusual difficulty or of general importance."

22 The question which fell for decision by Beach, J. was whether the above provisions gave jurisdiction to the Supreme Court to hear an appeal against the valuation.
The competing contentions.
23 The appellant contended that her application to review the decision of the valuer-general had been appropriately made in the County Court, pursuant to s.184(1)(a) of the Local Government Act. She was "aggrieved . . . by a rate or charge" imposed by the Council. Alternatively, the Supreme Court had jurisdiction.
24 It is submitted by Mr Connock, counsel for the respondent Council, that notwithstanding the impression which he agreed might have been conveyed by the words on the back of the valuation notice as to Mrs Murray’s right of appeal (although he contended that a careful reader would not have been misled), the terms of s.184 of the Local Government Act when read with the terms of the Valuation of Land Act 1960 meant that she did not in fact have a right of appeal to the County Court at all. Furthermore, she does not have any right of appeal to the Supreme Court either, he submitted. The only right she had to review the original valuation was by adopting the process of reconsideration set out in s.21. Thereafter - upon the valuer-general making a determination as to a new valuation - the review of the valuer-general’s determination had to be sought at VCAT. In this case, however, Mrs Murray had not met the preconditions for bringing such a review at VCAT, and, in particular, had not met the time limit for so doing imposed by s.22(2)(a).
25 In summary, the argument of counsel for the respondent was that s.184(1A) precludes an appeal to the County Court because the matter which the appellant sought to agitate by her originating summons was the correctness of the valuation on the property. That, so it was contended, was a matter "in respect of which an objection or appeal may be made under Part III of the Valuation of Land Act 1960". In my respectful opinion, Beach, J. was correct in agreeing with that contention. The County Court had no jurisdiction to hear the appellants "appeal" and nor did the Supreme Court have jurisdiction, although the question remains whether the appellant still has a right to apply to VCAT to review the valuation notwithstanding her failure to meet the time limits imposed by s.22.
The rights of review or appeal
26 Upon the determination of the valuer-general the objector had a right under s.22(1) to lodge a written notice requiring the Council to refer the matter to VCAT or else to treat it as an appeal and "cause it to be set down for hearing at the next sitting of the Supreme Court". Where, however, the matter relates to a valuation comprising a capital improved value of less than $250,000 then by virtue of s.23(1)(a) the Council must refer the matter to VCAT, not to the Supreme Court. If the CIV involved is greater than $250,000 then the objector has an option to send it to VCAT or the Supreme Court, and, otherwise, the Council may so decide, subject to the terms of s.23(2)(b).
27 In this case the appellant did not exercise her right under s.22(1) to give notice to the Council either to refer the matter to VCAT or to treat the objection as an appeal and cause it to be set down for hearing in the Supreme Court. The fact that she did not exercise that right does not mean, however, that the matter in issue was not "a matter in respect of which an objection or appeal may be made under the Valuation of Land Act". It may have been subject to an objection or appeal. That being so, then, by operation of s.184(1A), the right of appeal to the County Court was removed. Had it been exercised, then by virtue of s.21(1)(a), the right of review, given the capital improved value component of the valuation, could only have been to VCAT.
28 Had the right of review been exercised by the giving of notice under s.22(1), then the matter could have been heard in the Supreme Court (notwithstanding the fact that the capital improved value was under $250,000) only if, pursuant to s.23(3), the Supreme Court, being satisfied "on the application of any party that the appeal raises questions of unusual difficulty or of general importance" had assumed jurisdiction to hear the case.
29 Mrs Murray argued that she had, in effect, made an application to Master Wheeler or at least to Beach, J. that the Supreme Court assume jurisdiction to hear the matter. There was no formal application to that effect made by the appellant’s summons on originating motion which she issued in the Supreme Court on 1 February 2002. However, in her affidavit sworn on 15 March 2002, for the appeal to Beach, J. Mrs Murray deposed that Master Patkin and (as I take it to be) court staff of both the County Court and Supreme Court had said that the Supreme Court had jurisdiction. In her affidavit she summarised her complaint that the valuation had not addressed "fair market value" and set out the terms of the relevant legislation as it affected jurisdiction. In particular, Mrs Murray set out the terms of s.23(3) and underlined the words "(the) appeal raises questions of unusual difficulty or of general importance". She concluded by complaining about how misleading the rates notice was as to the right of appeal open to an objector.
30 Beach, J. held that no application under s.23(3) had been made and even if it had been the matters raised were not of the degree of importance or difficulty to justify the Supreme court hearing the matter. In my opinion, having regard to the fact that the appellant did not have legal representation, the matters stated in her affidavit ought to have been held to have constituted an application under s.23(3). There can be little doubt that had she been asked if she desired to make such an application she would have said yes. Furthermore, I am by no means persuaded that an appeal against this valuation might not have met the requirements of importance or complexity for s.23(3). However, even if I disagreed with the conclusions of Beach, J. as to those matters, I respectfully agree with him that s.23(3) could not have been applied in this case to give jurisdiction to the Supreme Court. That is so because s.23(3) did not come into play unless there had first been a notice given to Council under s.22(1). That was not done in this case.
31 In other words, an aggrieved ratepayer cannot make an application for a hearing in the Supreme Court, pursuant to s.23(3), unless the process of objection and notice under Division 3 had first been undertaken. Counsel for the respondent submitted that the failure to give notice under s.22(1) was compounded by the fact that the originating summons, by its terms, sought to challenge the original valuation, not the re-valuation which the Commissioner adopted by his determination. It is unnecessary to determine that question, having regard to the conclusion I have otherwise reached. Whilst it may have been necessary for the summons to have referred to the re-valuation (about which I draw no conclusion) it was, as presently advised, at worst, a technical defect which may well have been capable of cure by amendment of the summons.
32 The appellant says to all of this, that if there is an obligation for her to strictly comply with the requirements of the Valuation of Land Act then a similar obligation should fall on the Council and the valuer-general. Mrs Murray submitted that the Council failed to meet its obligation under s.21(2) because she was not given a reasonable opportunity to discuss the matter with the valuer it appointed to deal with her objection. The appellant contends that both valuers, Mr Reed and Mr Scollo, were unreasonable in their approach to her, required her unnecessarily to journey between council offices, told lies about her willingness to cooperate with them, and failed to properly consider the substance of the objections she had to the valuation. Those contentions are disputed by counsel on behalf of the Council, and that dispute of fact can not be resolved, and does not fall for resolution, by us on this appeal. For present purposes, only, I will assume that there is substance in Mrs Murray’s complaint that she was not given reasonable opportunity to make her case to the valuers.
33 But whilst the complaint concerning the valuers can not be resolved by us on this appeal, a different situation pertains with respect to the complaint that the valuer-general failed to comply with the terms of the Act. By s.21(5) the valuer-general must give written notice of his decision within two months of receiving the recommendations from the valuer reviewing the initial valuation, pursuant to s.22(3). Although Mr Connock would not concede it to be so, it seems to me to be demonstrated by the evidence before us that there was non-compliance with s.21(5).
34 It is, then, understandable that the appellant should complain about an apparent double standard being applied as to strict compliance with the Act but that complaint cannot affect the question as to whether this court has jurisdiction. Proven failure of the valuer to give a reasonable opportunity to the objector to be heard might well have enlivened a claim for declaratory or injunctive relief, but that was not what the originating summons sought either in the County Court or the Supreme Court. Complaint about such inadequate consultation might, indeed, also be relevant to an Appeal or review brought under s.22(1), but as I have said, no such review or appeal was initiated in this case.
35 As to the failure of the valuer-general to meet the requirements of s.21(5), that may well have carried a consequence that by virtue of s.22(2)(b) the objector had an unlimited time in which to give a notice under s.22(1), although Mr Connock submitted that that consequence would not have arisen, because an unlimited time for giving notice of review or appeal was allowed only so long as a determination had still not been made by the valuer-general. Once a determination was made then, he submitted, by virtue of s.22(2)(a) the objector had only 30 days in which to give such notice. Beach, J, agreed with that argument. It is not necessary to resolve that question since, in this case, no notice was given at all. It is however, clear, in my opinion, that compliance with s.21(5) is not a pre-condition to the Council’s right to contend that the appellant is bound to conduct an appeal according to the strict requirements of s.23. Indeed, s.23 presupposes that situations may exist where the valuer-general does fail to comply with s.21(5), and yet, still, the section has effect.
What options exist to review this valuation?
36 Mrs Murray says, quite understandably, where do I go now? She issued proceedings in the County Court within the 60 day time limit she thought applied to her case, having regard to the advice on the back of the valuation notice. She says she was also told by Master Patkin, in effect, that the Supreme Court might have jurisdiction and it was he, not she, who caused the matter to come to this court. Other material tended to support the conclusion that the Supreme Court was, indeed, the appropriate jurisdiction. For example, the language of the advice given, in small print, on the copy of the valuer’s recommendation which was sent to her suggested that an objector "has the right to have the objection treated as an appeal to the Supreme Court" or VCAT. Furthermore, the language of the advice as to her rights which was contained at the foot of the valuer-general’s determination also spoke of rights of hearing in the Supreme Court, but without adequately setting out the restrictions on that right. Having got to the Supreme Court she was told by Master Wheeler, then by Beach, J., and now by me, that while the Supreme Court may in some circumstances hear an appeal on such a matter, it can not do so in this case because she failed to give a notice to the Council under s.22(1), and that is a pre-condition to making an application for the appeal to be heard in the Supreme Court..
37 Counsel for the respondent says that the appellant was warned that the County Court proceedings were beyond jurisdiction and warned, again, about the Supreme Court proceedings being beyond jurisdiction. True it is that the appellant did not take that advice, but it is perhaps understandable that she would be wary of proffered advice from the very body, or its representatives, with whom she was in conflict. It was not until 16 January 2001 that she was sent copies of the legislation by Mr Pollard, and his assertion that she was proceeding by incorrect process was at odds with what she considered she was otherwise being told. She says she has followed the advice on the forms given to her, and when she issued proceedings in the County Court counter staff of that court told her she was in the right place. She said that Master Patkin told her that many others had made the same mistake she did in reading the advice on the valuation form to mean that an appeal was to be made to the County Court. The appellant says she has been pushed from pillar to post by the judicial system and has still not got a hearing on the substance of her complaint about her valuation. In the meantime she has been the subject of very substantial orders for costs in favour of the Council.
38 All this, in my opinion, arises from the hopelessly inadequate nature of the advice initially provided on the valuation form as to the rights of an aggrieved ratepayer to challenge the decision of the Council.
39 Although I am satisfied that the appeal must be dismissed and the decision of Beach, J. as to jurisdiction must be confirmed, it does not necessarily follow that the appellant can now never agitate her complaints about this valuation. By s.126 of the Victorian Civil and Administrative Tribunal Act 1998 and Rule 4.19 of the Victorian Civil and Administrative Tribunal Rules 1998 VCAT has a right to extend the time for the bringing of an application which would otherwise be within its jurisdiction. It may be, but I do not decide, that the appellant has rights in that respect which she could exercise. In any event, the appellant has challenged two subsequent valuations, and proposes to run the same argument she wished to advance with respect to the merits of this valuation. Because of increased capital improved values for those valuations, it seems that a right of hearing in the Supreme Court has been achieved by virtue of s.23(2). The parties told us that a hearing in the Supreme Court was fixed for the
week following our hearing.
40 In my view, there being no jurisdiction in the Supreme Court to hear the appellant’s summons, the appeal from the orders of Beach, J. should be dismissed, save as to the orders as to costs made by his Honour. Beach, J. confirmed the order as to costs made by Master Wheeler and additionally ordered the appellant to pay the costs, including reserved costs, of the hearing conducted before him. Given the history of this matter a real question arises whether the orders for costs made against the appellant by Master Wheeler and Beach, J. should stand. It will be necessary to hear argument as to those costs orders.

COLDREY, A.J.A.:

41 I agree that, for the reasons stated by Eames, J.A., save for the question of costs, the appeal should be dismissed.

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