Atkins v District Council of Coober Pedy

[2020] SASC 156

Supreme Court of South Australia

(Magistrates Appeals: Civil)

ATKINS v DISTRICT COUNCIL OF COOBER PEDY

[2020] SASC 156

Judgment of The Honourable Justice Parker (ex tempore)

13 August 2020

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

LOCAL GOVERNMENT - POWERS, FUNCTIONS AND DUTIES OF COUNCILS GENERALLY - PARTICULAR POWERS AND FUNCTIONS

This is an application for an extension of time to appeal against an interlocutory decision to strike out a claim.

On 14 May 2020, a Magistrate granted the respondent’s application to strike out the appellant’s claim on the basis that it did not disclose a cause of action. The appellant failed to file the appeal on time. 

The appellant applied for an extension of time to file the appeal on three grounds:

1.  Very late delivery of the case outcome file;

2.  The Covid-19 virus when is it going to stop?; and

3.  The new filing rules and regulations, this was actually filed on time but rejected.

Held, per Parker J, dismissing the application — applying Jackamarra v Krakouer (1998) 195 CLR 516, the appellant does not have an arguable case on the grounds of appeal.

Local Government Act 1999 (SA) ss 183 and 186; Supreme Court Civil Rules 2006  ; Uniform Civil Rules 2020  , referred to.
Jackamarra v Krakouer (1998) 195 CLR 516, applied.
Atkins v Hughes [2019] SASCFC 49; Ulowski v Miller [1968] SASR 277, discussed.

ATKINS v DISTRICT COUNCIL OF COOBER PEDY
[2020] SASC 156

Magistrates Appeal:          Civil

1. PARKER J (ex tempore):              This is an application for an extension of time to appeal against an interlocutory decision to strike out a claim on the basis that it did not disclose a good cause of action.

2. The order dismissing Mr Atkins’ claim was made by the Magistrate on 14 May 2020.  There was a change in the Supreme Court Rules at just about that time and the conclusion I have come to is that the time limit is to be determined under the Previous Rules (the 2006 Rules) but all other questions are determined in accordance with what are now the Uniform Civil Rules, the new rules.  It does not ultimately matter because the time limit under both sets of rules is the same. It is just a technical lawyer’s point.

3. As the appeal was not lodged until 18 June this year, it was about two weeks late.  Mr Atkins stated in his notice of appeal that the reasons for the late lodgement were the very late delivery of the case outcome file, the COVID‑19 virus and the new rules and regulations.  He has added that he had actually filed it on time but his application was rejected.

4. I am not persuaded necessarily that they are particularly good reasons.  They are also not supported by evidence.  That is a point that Mr D’Assumpcao made in his written submissions, that the grounds advanced have not been supported by affidavit evidence.  But ultimately, I have to decide the matter on the basis as to whether Mr Atkins’ case is properly arguable and has a reasonable prospect of success.  I will not put any particular emphasis on the grounds advanced by Mr Atkins although I do not think they are particularly strong.  However, I acknowledge that Mr Atkins is not represented and he pointed me to particular difficulties he has with dyslexia.

5. In other circumstances, if I thought Mr Atkins had a strong case I may well have given him an extension of time applying the principles stated by Bray CJ in a case called Ulowski v Miller.[1]  However, I do not need to apply those principles here because, for the reasons I am about to come to, I do not think Mr Atkins has an arguable case.  In that respect, I apply what the High Court said in a case called Jackamarra v Krakouer.[2]  The High Court said that if an appeal is devoid of merit it would be futile to grant an extension of time.  That is the principle I am applying here.

   [1] [1968] SASR 277 at 280 (Mitchell and Walters JJ agreeing).

   [2] (1998) 195 CLR 516 at 519-521 (Brennan CJ and McHugh J). See also Ferdinands v District Courtof South Australia [2011] SASCFC 139.

6. Turning to the background of the matter, on 19 November 2019 Mr Atkins lodged a claim in the Magistrates Court against the council in which he sought payment of the amount of $26,962.28 together with interest and costs, thus his total claim was for $29,098.01.  While the circumstances were not made entirely clear in Mr Atkins’ statement of claim, they do become clear from reading the ex tempore reasons of the magistrate dated 14 May this year and also from the oral submissions that Mr Atkins has put to me today.

7. In September 2019 Mr Atkins was in dispute with the council concerning payment of his rates for the 2018/19 year, in other words, the year ending 30 June 2019.  On 12 September 2019, he paid to the council the sum of $26,000‑odd which I have mentioned previously.  There was an exchange of emails with a council officer, and Mr Atkins made clear that he intended that this payment be applied to meet his rates for the then current year 2019/20.  Those rates would have been declared in about the middle of 2019, being prior to him making the payment in September 2019.

8. Sometime after Mr Atkins made the payment to the council, a council officer told him that the council could not accept the payment in relation to the 2019/20 rates because in their view the 2018/19 rates remained outstanding. The basis for the position taken by the council was that s 183 of the Local Government Act 1999 (SA) required that the payment be applied to meet the liability of Mr Atkins for rates for 2018/19 rather than 2019/20.

9. Notwithstanding that position, for reasons that are unclear, the council officer offered, in an email dated 24 September 2019, to repay the amount that had been paid by Mr Atkins.  That payment has not been made.  This litigation is about the request by Mr Atkins for an order requiring the council to refund that amount to him.

10. The Magistrate held that there were two barriers that prevented Mr Atkins from succeeding with his claim.  First, the promise by the council to repay the monies was not supported by any consideration and therefore was not legally enforceable.  For the benefit of Mr Atkins, I will briefly explain what lawyers mean by consideration.  If somebody says to you “I will give you my car if you pay me $10,000” and you agree, now there is an exchange of promises; one person is promising to transfer the car, the other one is promising to pay money.  That is an enforceable contract.  If, however, the person says, “I will give you my car” that is not enforceable because there is no consideration.  There has to be an exchange of promises to make a contract enforceable.

11. The problem identified by the Magistrate was that there was no consideration in this instance.  It was merely a unilateral promise and the courts cannot enforce promises that are made ex gratia; in other words, without consideration.

12. The second problem identified by the Magistrate was that s 183 of the Local Government Act directed the council as to how it was to apply monies that it received in respect of rates. That operates as a statutory prohibition which prevented the council from making the payment that was sought by Mr Atkins. Even if there had have been a proper contract that would have been unenforceable because it would have been contrary to law, contrary to s 183. On that basis, the Magistrate found that Mr Atkins’ claim had no prospect of success and he dismissed the claim with costs.

13. Turning to the grounds of appeal, Mr Atkins has advanced 10 grounds.  During the course of submissions, I expressed the preliminary view that some of those grounds were completely irrelevant to the present matter and I refer here to grounds 1 and 2.  Ground 1 is that the Magistrate refused to take any action against counsel for the council, that is not Mr D'Assumpcao but another practitioner, for failing to comply with the COVID-19 directions.  That is not a matter that is relevant in any way to the appeal.  It cannot affect a decision as to whether Mr Atkins was entitled to the money he claims, thus it is irrelevant.

14. Secondly, there was some suggestion that the Magistrate had lied in some way about whether counsel was present at the court at a particular time.  Again, that is not relevant for the reasons I have just given. 

15. There is a further complaint that the Magistrate had threatened the applicant that if he left the courtroom under protest the case would be dismissed immediately.  Mr Atkins suggested in the course of the submissions that this demonstrated bias on the part of the Magistrate.  I am not persuaded on the material before the Court that this is the case. The Magistrate is entitled to manage the courtroom in an appropriate fashion and the warning was simply, as I understand it, that if he was not there to present his case or walked out then a decision may be made adverse to his interest.

16. The fourth point Mr Atkins makes is that the Court should have observed, or the Magistrate should have observed, the point made by the Full Court in Atkins v Hughes,[3] an earlier case involving Mr Atkins, to the effect that when a court or tribunal is dealing with an unrepresented party they need to be careful to check whether there may be some possible merit in the claim even though it is presented in a way that is grossly deficient.  In other words, courts should take a bit of care with unrepresented parties.  However, I am not persuaded that the Magistrate erred in that respect.

    [3] [2019] SASCFC 49 at [39].

17. Now the remaining grounds of appeal can be dealt with together.  They all boil down to what the council was entitled to or permitted to do with the money once it had been received from Mr Atkins.  They are all essentially different angles on the same point.

18. Turning to the orders that Mr Atkins seeks in this appeal, if he were to succeed, the first is that the Magistrate be dismissed from office – that is something this Court cannot do.  Only the Governor, as advised by the Parliament, from memory, can do that.  Certainly, it is ultimately a matter for the Governor, not this Court, and I have not seen any possible reason why that should occur in any event.

19. The complaint that counsel should be prosecuted for breaching, allegedly, the COVID-19 directions, again, is a matter that this Court cannot deal with.  That can be dealt with by the police if there was a proper case.

20. Ultimately, Mr Atkins seeks that this Court order that he be paid the money that he paid to the council and that he be awarded costs of these proceedings and, further, that the council be ordered to commence a separate action against him in relation to payment of rates.  I cannot direct the council what to do.  In some circumstances I might make a declaration, but for the reasons about to emerge, that would not be right and not appropriate.

21. Mr Atkins made a number of submissions, but essentially, they boil down to the proposition that he says he paid the amount due for the 2018/19 rates to the council. He did so by bank transfer and, in essence, he is saying that the council records are wrong, that he has paid the money and does not owe them anything, and therefore s 183 of the Local Government Act is entirely irrelevant.  That is the substance of the submissions made by Mr Atkins.

22. Turning to the merits of the appeal. Whether or not Mr Atkins was led to believe by a council officer that he could make a payment against his 2019/20 rates while there was still a dispute about whether he had paid the previous year’s rates, is really beside the point. The fact is the council was asserting a debt. They put evidence before the Magistrate to support their contention that there was a debt and the fact is that the council was bound to deal with the money that it received in relation to rates in accordance with s 183 of the Local Government Act.  Mr Atkins also informed this Court that he had not obtained proof from his bank that the payment had been made. 

23. I also notice, and it is perhaps not quite on point here but is to some degree relevant, that s 186 of the Local Government Act provides that a right of a council to recover rates is not suspended by the fact that a person is challenging the liability to pay. That perhaps does not apply here because really, it is a question of not whether the council was entitled to charge rates, or rates of that amount, but rather, whether or not Mr Atkins had paid. So perhaps s 186 does not apply.

24. The fact is that the council was, as I have said, required to apply the money it received in accordance with s 183. It did not have any choice in the matter. The promise by the council officer, which I have already said could not be enforced as a contract because there was no consideration, but secondly, any such promise was contrary to s 183. It seems to me that s 183 covers the field as to the application of monies paid as rates. It sets an order of priority and requires that monies received as rates not be applied other than in accordance with that provision. While there remained a claim by the council that the rates had not been paid it did not have any option but to apply the monies it received in September 2019 against the liability for rates for the previous year.

25. For all of these reasons I am not persuaded that the Magistrate erred.  I think the correct position is, as I put in the course of argument, that if the previous year's rates remain unpaid, any monies received by the council have to be applied against those rates.  There is, in effect, a rolling liability, so payments are credited against the earliest liability.  If Mr Atkins persuades the council that he did, in fact, pay them the amount due for 2018/19, then the fact that he has already paid the 2018/19 rates in September 2019 – not that that was his intention to apply the money in that way – but the effect is that he has already covered off on the 2018/19 liability.  The dispute is really then about the ongoing liability to the council.

26. Mr Atkins put to the Court that he was entitled to rely on the council to sue him to recover the rates it was owed.  That may or may not be so but certainly this Court cannot direct the council to institute proceedings against Mr Atkins in these circumstances.  It is a matter entirely for the council to resolve and I am not persuaded, for all these reasons, that the Magistrate erred.  For that reason, as I have previously indicated, I refuse permission for the late lodgement of the appeal and the appeal, in substance, is dismissed.