Barnett v Tasmanian Water and Sewerage Corporation Pty Ltd

[2018] TASFC 7

[2018] TASFC 7

COURT:        SUPREME COURT OF TASMANIA (FULL COURT)

CITATION:                  Barnett v Tasmanian Water and Sewerage Corporation Pty Ltd

[2018] TASFC 7

PARTIES:  BARNETT, Alan Joseph
  v
  TASMANIAN WATER AND SEWERAGE

CORPORATION PTY LTD (ACN 162 220 653)
trading as TASWATER

FILE NO:  FCA 1441/2018
DELIVERED ON:  24 October 2018
DELIVERED AT:  Hobart
HEARING DATE:  9 October 2018
JUDGMENT OF:  Wood J, Pearce J, Martin AJ

CATCHWORDS:

Energy and Resources – Water – Water management – Water supply – Tasmania.

Aust Dig Energy and Resources [1181]

Real Property – Rates and charges – Water, sewerage and drainage rates and charges – Making and levying – Generally.

Water and Sewerage Industry Act 2008 (Tas), ss 65, 66, 68, 68A, and 68AA.
Water and Sewerage Industry (Consequential and Transitional) Act 2008 (Tas), ss 5 and 6.
Aust Dig Real Property [1829]

REPRESENTATION:

Counsel:
             Appellant:  In person
             Respondent:  D Marcenko
Solicitors:
             Respondent:  Ogilvie Jennings

Judgment Number:  [2018] TASFC 7
Number of paragraphs:  49

Serial No 7/2018
File No FCA 1441/2018

ALAN JOSEPH BARNETT v TASMANIAN WATER AND SEWERAGE CORPORATION PTY LTD (ACN 162 220 653) trading as TASWATER

REASONS FOR JUDGMENT  FULL COURT
WOOD J
PEARCE J
MARTIN AJ
24 October 2018

Order of the Court

Appeal dismissed.

Serial No 7/2018
File No FCA 1441/2018

ALAN JOSEPH BARNETT v TASMANIAN WATER AND SEWERAGE CORPORATION PTY LTD (ACN 162 220 653) trading as TASWATER

REASONS FOR JUDGMENT  FULL COURT

WOOD J
24 October 2018

1. I agree with Pearce J.

Serial No 7/2018
File No FCA 1441/2018

ALAN JOSEPH BARNETT v TASMANIAN WATER AND SEWERAGE CORPORATION PTY LTD (ACN 162 220 653) trading as TASWATER

REASONS FOR JUDGMENT  FULL COURT

PEARCE J
24 October 2018

1. This is an appeal from a decision of Estcourt J published only to the parties. His Honour heard an appeal from a decision of a magistrate, Mr C Webster, concerning a claim brought by the respondent against the appellant in the Civil Division of the Magistrates Court. On 9 August 2017 the learned magistrate ordered judgment for the respondent against the appellant for $9,857.57. On 14 May 2018 Estcourt J dismissed the appellant's appeal.

2. The respondent's claim against the appellant was for unpaid water supply and sewerage removal charges for his property at 114 Gormanston Road, Derwent Park between 1 July 2009 and 30 September 2015. Before the magistrate there was no dispute that the appellant had not paid the charges. The issue was whether the charges were made in accordance with the law. For the reasons which follow, the decisions at first instance and on appeal were both correct. No other substantial wrong or miscarriage has been demonstrated. The appeal to this Court should also be dismissed.

Legislative basis for water and sewerage charges

1. Before referring to the magistrate's reasons for decision it is necessary to explain the various legislative provisions which applied to the supply of, and charging for, water and sewerage services to the appellant's land during the period for which the claimed charges were made. The appellant's property is in the municipality of Glenorchy in Southern Tasmania. Until 1 July 2009 the Glenorchy City Council was responsible for the provision of water and sewerage services in its municipality and, by the Local Government Act 1993, ss 93 and 94, could make service rates and charges for rateable land. The evidence before the learned magistrate established that, for the year ended 30 July 2009, the council made a service rate for water supply at 5.3491 cents per dollar, and a service rate for sewerage removal of 4.2906 cents per dollar. Both rates were to be applied to the assessed annual value of rateable land supplied with water or connected to a sewer. The evidence before the magistrate also established the assessed annual value of the appellant's property for each of the relevant years.

2. On 1 July 2009 the water and sewerage functions of councils were, by operation of a series of legislative changes, including enactment of the Water and Sewerage Corporation Act 2008 (the WSC Act 2008) and the Water and Sewerage Industry Act 2008 (the WSI Act), transferred to three regional corporations, the relevant one of which was Tasmanian Water and Sewerage Corporation (Southern Region) Pty Ltd (Southern Water). The statutory objectives of the regional corporations, in the case of water, included the collection, treatment, reticulation and supply of water and, in the case of sewerage, included the collection, reticulation and treatment of sewage: the WSC Act 2008, ss 4 and 7. The WSC Act 2008, Pt 3, provided for the water and sewerage assets of the councils to be vested in the regional corporations. Pursuant to s 41 of that Act, notice of the transfer in the case of the Glenorchy City Council was published in the Tasmanian Government Gazette on 1 July 2009.

3. By operation of the Water and Sewerage Industry (Consequential and Transitional) Act 2008, ss 5 and 6 (the Transitional Act), Southern Water became entitled to charge owners of land in the southern region connected to water and sewerage infrastructure the amount specified in a notice. The specified chargeable amount was the service rates and charges made by the council under the Local Government Act, ss 93 and 94, for the 2008-2009 financial year, varied in accordance with an Interim Order made under the WSI Act, s 88. The Interim Price Order, which commenced on 1 July 2009, was published in the Tasmanian Government Gazette on 17 February 2010. As it applied to properties in the Glenorchy municipal area, it provided for sewerage charges to be made at the same rate as the previous year, and for an increase of 10% for water charges. The same Interim Order provided for increases for the two subsequent years: for the year ended 30 June 2011, 10% for water and 3.82% for sewerage, and for the year ended 30 June 2012, by 10% for both water and sewerage. By the WSI Act, s 3 and Div 4, the appellant as owner of land connected to a regulated entity's water infrastructure and sewerage infrastructure became a "customer" of Southern Water. By operation of the Transitional Act, s 6(5)(b), the appellant thereby became "liable" to pay Southern Water the charges of which he was given notice.

4. For the period 1 July 2012 to 30 June 2015, the price for water and sewerage services was fixed by a price determination made under the WSI Act, s 66. When enacted in 2008, the WSI Act provided, by s 66, that the Regulator appointed under s 11, who is the Regulator within the meaning of the Tasmanian Economic Regulator Act 2009, is to make price determinations for provision of a water service or a sewerage service. Each of the regional corporations, which held licences for provision of water and sewerage services, were required to submit a price and service plan for approval by the Regulator: s 65(1). The plan was to include proposed prices: s 65(3)(d). By s 65(5) the Regulator must approve a proposed price and service plan if satisfied that the proposed plan complies with the statutory guidelines and any relevant price determination under s 66.

5. Notice of the Regulator's price determination was published in the Gazette on 30 May 2012. The determination was in evidence before the magistrate. It is entitled "2012 Water and Sewerage Price Determination Investigation – Final Report". In making the determination the Regulator was required to take account of the pricing principles stated in s 68. The pricing and services plan submitted by Southern Water, and approved by the Regulator, was also in evidence before the magistrate. By s 68A, the owner of any land to which a service charge applies under a pricing and service plan approved by the Regulator under s 65 is liable for the payment of the service charge. Moreover, by s 60(2), the appellant was taken to have entered into a customer contract with the respondent in terms which were published. The contract thereby had statutory force. The contract imposed an obligation upon the appellant to pay fixed water and sewerage charges determined by the Regulator and charged by the respondent.

6. The price determination, and the pricing and services plan submitted by the respondent and approved by the Regulator, for the period 1 July 2012 to 30 June 2015 provided for what are referred to as "target tariffs". However, for customers like the appellant, whose charges for water and sewerage were above the target, the charges, both fixed and volumetric, were "frozen for two years" before reducing by five percent in 2014-2015. The price determination, at par 5.4.2, describes the "Proposed price reform approach" and re-states the relevant general determination that "customers above the target tariff will have their prices frozen (meaning maintained at current levels)", although noting that Southern Water customers will have their prices reduced "by five percent in the final year of the first regulatory period (2014-2015)". That general statement is found in its precise terms in the formula which is set out in Schedule 1 of the Southern Water Price Determination 1 July 2012–30 June 2015, found in Appendix A to the report under the headings "Water Charges, Fixed Charges" and "Sewerage Charges, Determining fixed charges in each year of the regulatory period".

7. From 1 July 2013, the water and sewerage assets, rights and liabilities of the regional corporations were, by operation of the Water and Sewerage Corporation Act 2012 (the WSC Act 2012), transferred to and vested in the respondent, a corporation incorporated under the Corporations Act 2001 (Cth) pursuant to the statutory direction given in the WSC Act 2012, s 5. The effect of the transitional provisions was to vest in the respondent the power to recover liabilities to it and to its predecessor, Southern Water.

The magistrate's determination

1. The learned magistrate delivered ex tempore reasons for judgment. They may conveniently be set out in full:

   "HIS HONOUR: Okay, well I'm going to give a decision now. Tasmanian Water and Sewerage are the claimants and the defendant is Alan Joseph Barnett. It concerns land at Gormanston Road. The claim was originally for $10,534 by the claimant against the defendant for outstanding water and service and sewerage charges from the 1st July 2009 to the 30th September 2015, and water usage from the 1st July 2009 to the 19th August 2015. The action was commenced on the 18th April 2016.

   Subsequent to that the claimant has amended their claim by discontinuing any claim for water usage, that is, the claim is now limited to the service charge for water and sewerage. The defence sets out – the defence was originally basically threefold. One, the claimant was supplying water to other properties which were being metered by the – on the defendant's meter and therefore the defendant was overcharged. Well to the extent that the claimant has now discontinued that part of the claim Mr Barnett has been successful, and the defence so far as that is concerned becomes irrelevant because service charges are not related to usage. It doesn't matter how much water you use you are charged a fixed service fee. The sewerage charge of course it has been emphasised a few times that is not charged. It's also – the principal part of Mr Barnett's defence is he's not been charged in accordance with the section 68 pricing principles, that is, he's not being charged in accordance with the principles – that's shorthand – for what he's alleging in defence. And the third part was that he'd entered into a repayment agreement and that there had been an acceptance of that agreement. That part of his defence has now been dropped. So he doesn't allege that there was a binding agreement that prevented the council – sorry – the Tasmanian Water and Sewerage authority from pursuing the claim.

   Evidence was given by Matthew Neil, recovery manager for TasWater. He put in the rates. Through him all the charges and the accounts between the defendant and the claimant were tendered, that is, that the – he proved that the council sent certain charges or bills, or invoices, to the defendant and the defendant is in arrears of those invoices. I don't think that's really an argument because Mr Barnett made it clear that he had stopped paying, that he didn't pay the invoices that were sent. Really the real argument is whether or not – I think we're now reduced to whether or not the charges were in accordance with the law and that the council was indeed entitled to charge the rate at the rate they did. Now I've heard Mr Barnett's arguments. It's basically that they should have charged in accordance with the Sewerage Act, and could only charge three per cent – I'm shorthanding the Acts, I'm not going to give the full names – only charged three per cent above that – above their infrastructure costs, and in relation to they should charge in accordance with the policy and charge in accordance with the target figures.

   Well I think that the claimant's solicitors set the matter out in an extremely detailed – in extreme detail, and have been very thorough in the presentation of the submissions. And really I agree with all of the submissions put to me by counsel for the claimant, and I can't see any fault in them. I don't accept Mr Barnett's argument. As it was pointed out the right to charge for water and sewerage is contained in section 68A of the Water and Sewerage Industry Act 2008. Section 68A says at paragraph 3 a service charge applies under a price and service plan approved by the Regulator under section 65, and a service rate or service charges applies under section 95 of the Local Government Act, immediately before the commencement of this Division – and is liable for the payment of – and the owner of the land is liable for the payment of the rates. Section 95 of the Local Government Act was put into evidence and showed that indeed it was unnecessary to even connect the pipes to the property, that provided they were within 30 metres of the property. The council and subsequently of course the Tasmanian Water and Sewerage, being the successor of that organisation, is entitled to charge for supply of the water service charge or is entitled to charge a service charge for water to the property, and sewerage charges as far as that goes. Its agreed that there's a 20 millimetre pipe on the property and that establishes a rate of payment.

   Well, indeed, it's never really been disputed by the defendant that he wasn't liable to pay something. He simply says that he was charged at the wrong rate. So all I've said at the moment is that the council has obviously – sorry, I get council mixed up with Tasmanian Water for obvious reasons, having paid bills to the council for 30 odd years and only TasWater for only a few years – but anyway TasWater is entitled to charge for provision of the service, and that I think Mr Barnett conceded wasn't really – he wasn't really arguing that they weren't entitled to charge something, he's saying well they've charged at the wrong rate. Well, I think that one of the main – well, one of the main complaints of Mr Barnett was of course there was inadequate piping done to his property – and I am not dismissing these arguments, these are probably very good complaints, he's probably well entitled to complain – but that's not my – I don't have to consider that because the council is entitled to charge because he's within 30 metres of the connection, and it doesn't really matter – he didn't claim – he didn't counter claim that the council, sorry, TasWater, put in 40 pipes and therefore he's entitled to something back, it cost him to rectify it, he simply – they're entitled to charge. It doesn't matter about the quality of the pipe at this stage.

   There's also the fact that there might have been someone else connected to his pipe becomes irrelevant because they haven't claimed that. They did originally but to the extent that there is a victor in the matter so far Mr Barnett has one that argument. So take your victories and – take your victory on that matter.

   The simple question is whether or not he was overcharged for the water service charges, well quite frankly I'm convinced that TasWater and Sewerage authority has charged him appropriately. Mr Marcenko has given me detailed figures. I put to Mr Barnett direct show me where it's wrong. He pointed to figures and said well in 2014 and said this is how it's wrong, but he's compared the target figure with his actual cost. And it's been quite eloquently pointed out to me and thoroughly set out that the target figures are not the law. They're not what the council is entitled to claim. I agree with the submissions of the claimant that the target figures, as the name implies, are targets, they're hopes, they really – I doubt whether they really have much more force than a politician's promise. It's something that they hope to do in the future. It's not something they're allowed to do, they have to do, and what they are allowed to do is set out in the directions and the relevant legislation referred to in counsel's submission and you were in fact charged what they were entitled to charge. Therefore I am going to give judgment for the claimant."

2. In his reasons the learned magistrate, in addition to the findings he expressly made, made clear that he accepted the submissions of counsel for the respondent about the evidence. It followed that the magistrate was satisfied that:

   ·     Southern Water gave notice to the appellant of water charges and sewerage charges for his property for the years ended 30 June 2010, 30 June 2011 and 30 June 2012;

   ·     The charges were calculated in accordance with the legislation, that is based on the Glenorchy City Council resolutions for the year ended 30 June 2009 subsequently adjusted in accordance with Interim Orders for the years ended 30 June 2010 to 30 June 2012 inclusive;

   ·     Southern Water gave notice to the appellant of water charges and sewerage charges for his property for the year ended 30 June 2013;

   ·     The respondent gave notice to the appellant of water charges, sewerage charges and trade waste charges for the years ended 30 June 2014, 30 June 2015 and for the three months ended 30 September 2015;

   ·     The charges were in accordance with the price determination made by the Regulator and thus subject to the customer contract to which the appellant was subject;

   ·     Allowance had properly been made for any payments made by the appellant and any remissions to which he was entitled;

   ·     The respondent had power to recover the charges from the appellant for the entire period covered by the claim.

3. Estcourt J found no error in the learned magistrate's findings and conclusions. His Honour found that the magistrate had come to the only decision reasonably open to him.

Appeals

1. An appeal from the decision of a magistrate is brought under the Magistrates Court (Civil Division) Act 1992, s 28. A judge hearing the appeal "may make such orders as the judge considers appropriate in the circumstances". It is a re-hearing conducted on the evidence before the magistrate: State of Tasmania v Boyd [2010] TASSC 13 at [27]; Eagle Sea Pty Ltd v Radford and Dick t/as Radford Cartage Contractor [2012] TASSC 41 at [16]. Nevertheless, it was necessary for the appellant to demonstrate error. The primary judge was to conduct a "real review" of the evidence, and of the magistrate's reasons for judgment, to determine whether the magistrate erred in fact or law. If the court concluded that the magistrate erred in fact, it was required to make its own findings of fact and to formulate its own reasoning based on those findings. The court hearing the appeal was, however, not to interfere with the magistrate's findings of fact unless, allowing for the magistrate's advantage in seeing and hearing the witnesses, the findings are demonstrated to be wrong by "incontrovertible facts or uncontested testimony", or they are "glaringly improbable" or "contrary to compelling inferences": Fox v Percy [2003] HCA 22, 214 CLR 118 at [29]; Miller and Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd [2010] HCA 31, 241 CLR 357 at [76]; Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22, 331 ALR 550 at [43].

1. An appeal from a magistrate to a judge is not to succeed merely on the ground of misdirection or the improper reception or rejection of evidence unless some substantial wrong or miscarriage has been occasioned by the misdirection, reception or rejection: Supreme Court Rules 2000, r 693(6). Thus, in the terms used by Estcourt J in in Tubb v Reissig (No 2) [2014] TASSC 13 at [17], an error is only appealable under s 28 where it is "material and operative", or where the error is indicative of an erroneous finding or conclusion reached by the magistrate.

2. The appeal to this Court is also by way of re-hearing: SCR, r 657(1). Thus, the function of the Court is to review the material before Estcourt J and determine whether, in the same sense, his Honour erred by failing to find that the magistrate came to the wrong decision.

The grounds of appeal

1. Throughout the proceedings before the learned magistrate, in the appeal to Estcourt J and before this Court, the appellant has been unrepresented. In proceedings of this nature it must be that the appellant has chosen to prosecute his appeal without incurring the expense of competent representation. It can readily be inferred from the contents of the appeal documents he has prepared that he has not sought legal advice or assistance in their preparation despite having had adequate time to do so. As Samuels JA said in Rajski v Scitec Corporation Pty Ltd unreported, New South Wales Court of Appeal, 16 June 1986 at 27, recently applied in Nobarani v Mariconte [2018] HCA 36 at [47]:

   "The absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent."

2. In presentation of his appeal the appellant was required to, in his notice of appeal, state specifically and concisely the grounds of appeal: SCR, r 657(4)(b). He was required to comply with the Practice Direction that written submissions are required in all appeals heard by the Full Court or the Court of Criminal Appeal. The appellant's notice of appeal to this Court filed May 2018 refers to grounds of appeal in an attached document. The attachment is a rambling and imprecise recitation of complaints. It contains 17 paragraphs, which I have treated as grounds of appeal. Each ground contains submissions in support of it, and have been addressed by the respondent. I will distil and address them in turn. The last few words of the attachment purport to incorporate, by mere reference to them, the contentions made by the appellant in his appeal to Estcourt J. It is difficult to determine whether those grounds raise any matter additional to the new grounds, but no other submissions were made in support of them. In light of what was said in Rajski v Scitec Corporation, and with due allowance to the disadvantage arising from the appellant's lack of representation, it would be unfair to the respondent for this Court to entertain, in this appeal, any argument asserting error not sufficiently identified in the notice of appeal, even if it may be somehow remotely and vaguely identified in a previous document produced at first instance or at the primary appeal.

Grounds 1, 10 and 11 – Pricing policy and principles

1. These three grounds may be dealt with together as they all concern the way in which the magistrate addressed the appellant's contentions about "pricing principles".

2. Ground 1 asserts that the appellant was dealt with unfairly by the learned magistrate because his submissions about the application of the pricing principles referred to in the WSI Act, s 68, were not permitted or addressed. The complaint extends to the failure of Estcourt J to allow the primary appeal on this basis. The ground has no merit because nothing which could have been said about the pricing principles in the Act, how they were considered and applied, could have constituted a defence to the respondent's claim. As was explained earlier in these reasons, the charges for the period 1 July 2009 to 30 June 2012 were determined in accordance with the Water and Sewerage Industry (Consequential and Transitional) Act 2008, ss 5 and 6, and fixed by interim order. The appellant's contentions about application of the pricing principles could only have relevance after 1 July 2012. However, Pt 5 of the WSI Act, entitled "Pricing regulation", makes clear that the prices, terms and conditions for water and sewerage services are a matter for determination of the Regulator, not the respondent. It was for the Regulator to take the pricing principles into account in making the price determination under s 66, and the pricing and service plan submitted by the respondent could only have been approved if it was in accordance with the determination: s 65(5). Challenges to the determination of the Regulator are a matter for administrative review in accordance with the WSI Act, Pt 5. Once prices are determined according to the statutory process, the legislation permits the respondent to charge for services in accordance with the price as determined. It is not open to a person in the appellant's position to make collateral challenge to the determination of the Regulator in civil proceedings for recovery of charges made in accordance with the Regulator's determination.

3. The appellant correctly submitted that the prices he was charged for his property for the years following 1 July 2012 were well above the "target tariff" provided for in the Regulator's price determination for the period 1 July 2012 to 30 June 2015, which were then reflected in the respondent's price and services plan. However, the WSI Act, by s 68AA, provides that during the "transition period" the Regulator was not required to apply the pricing principles in the making of a price determination, or in the formulation or approval of a price and service plan, to the extent that it would adversely affect the sustainability of a regulated entity or the ability of a regulated entity to deliver regulated services. The appellant was not charged the "target tariff". The Regulator's determination was that prices for supply of water and sewerage services by Southern Water were frozen for the years ended 30 June 2013 and 30 June 2014, and were to be reduced by five percent for the following year. The purpose of, and reason for, this determination emerges from a passage in the respondent's approved price and service plan:

   "… if Southern Water were to immediately move everyone whose tariffs are above the equitable level to the target tariff it would reduce the revenue Southern Water could recover and compromise the funds available to upgrade ageing infrastructure and improve services, undermining the purpose of the industry reforms."

4. By the Water and Sewerage Industry (Pricing and Related Matters) Regulations 2011, the transition period for the purposes of s 68AA of the WSI Act commenced on 22 September 2011 and ends eight years after the date the first price determination took effect. That period covers all of the period relevant to the respondent's claim against the appellant. The combined result of the provisions to which I have referred is that submissions to the magistrate about the proper application to the respondent's claim of the pricing principles in the WSI Act, s 68, which the appellant says he was deprived of the opportunity to make, were and are irrelevant. It is not unfair to disallow irrelevant contentions. This ground fails.

5. Ground 10 is difficult to understand. It contends that the magistrate did not address a submission that "the Act says the charge can be 3% above the actual cost of the actual infrastructure". It may be a reference to the WSI Act, s 68(1A)(c)(iii) which states, as one of the numerous pricing principles which apply to the Regulator's determination of price, an assumed pre-tax return on the assets of a regulated entity. The significance of the contention is not explained, but there is no reason to conclude that the magistrate impermissibly failed to address any submission the appellant made. The contention could not have advanced the appellant's defence to the claim. This ground fails.

6. Ground 11 also attacks the way in which the learned magistrate addressed the submissions about the "pricing policy" in the legislation. The provisions of the legislation dealing with pricing principles were relevant only to the determination of the Regulator, and were not amenable to challenge in the proceedings before the magistrate. The appellant's submissions to the magistrate were irrelevant. This ground fails.

7. Counsel for the respondent made detailed written submissions directed to persuading this Court that the pricing principles were, despite what the appellant contends, correctly applied by the Regulator. Similar submissions were made to the magistrate and to Estcourt J. I see no error in the submissions but, for the reasons I have explained, none of the appellant's criticisms of the manner in which the charges were calculated affect the entitlement of the respondent to recover the amount it claimed. The charges were made in accordance with the statutory mechanism for fixing and recovery of the charges.

Ground 2 – Payment plan

1. In his defence to the claim the appellant pleaded that the claim should not be allowed because he had agreed with the respondent to repay the debt by a "payment plan". Before the learned magistrate the appellant expressly withdrew the plea. He now claims that, in a vague and unspecified way, he was misled by the magistrate into doing so.

2. This was not a ground of appeal to Estcourt J, although it was mentioned in submissions. For that reason alone it ought not be entertained. In any event, it is without merit. The appellant must demonstrate error by the magistrate. The magistrate cannot have erred by not dealing with a defence which was not before him and about which the appellant called no evidence. He should be bound by his conduct of the trial. Moreover, the transcript of the pre-trial proceedings before the magistrate makes clear that the appellant, with proper allowance for the fact that he was unrepresented, was not misled in any way. There was no procedural unfairness. During a directions hearing conducted on 21 November 2016, the magistrate attempted, with considerable patience, to explain to the appellant that if he contended that there was an agreement which compromised the respondent's claim, then it was necessary for him to adduce evidence sufficient to establish the existence and terms of such an agreement. Despite having many months to consider his position, the appellant did not subsequently seek to adduce such evidence and withdrew that part of the defence.

Ground 3 – Failure to deal with an interlocutory application

1. By this ground the appellant asserts that the magistrate erred by failing to deal with an interlocutory application he had made. Again, although the appellant mentioned the issue in his submissions to Estcourt J, this was not a ground of the primary appeal, and for that reason should be rejected. However it is obviously unmeritorious. The application sought orders that the learned magistrate instruct the respondent to do work on his property, for example to fix water leaks and move the location of the water meter. The magistrate did not fall into error by not determining the application. It was irrelevant to the proceedings before him, and he had no power to make any of the orders sought. This ground fails.

Grounds 4 and 9 – Power to recover the claimed sum

1. This ground asserts that the magistrate was wrong to find that the respondent had the statutory power to recover the charges it claimed. No specific error is identified. Estcourt J found no error in the magistrate's reasoning. His Honour was correct. The power to recover the charges derives from the legislation outlined earlier in these reasons. This ground fails.

2. The substance of ground 9 is the same. By this ground the appellant contends that the learned magistrate, on proper consideration of the WSI Act, should not have been satisfied that the respondent was entitled to make the charges it claimed. No specific error is identified, either at first instance or on appeal. This ground has no merit and fails.

Grounds 5, 12, 16 and 17 – Agreed facts

1. Ground 5 asserts that the magistrate failed to take account of agreed facts. At the hearing a statement of agreed facts, inferentially, although not expressly, in accordance with the Evidence Act 2001, s 191, was produced. According to the notice the following facts were agreed:

   "1At all relevant times the Defendant was the owner of 114 Gormanston Road, in Derwent Park.

   2Michael Brewster sent the Defendant the letter dated 22 December 2015: attached [according to its terms, the letter is from Michael Brewster, Chief Executive Officer of the respondent, and responds to a letter from the appellant dated 8 December 2015 seeking a review of service charges for water and sewerage].

   3The Defendant was charged $1,082.36 for water services between 1 July 2014 - 30 June 2015.

   4The applicable 'target tariff' between 1 July 2014 and 30 June 2015 was $305.97 for water services.

   5At all times the Defendant had a 20mm water connection.

   6The Claimant's services are provided to the Defendant under a monopoly or near-monopoly conditions.

   7On 31 March 2015, the Defendant was sent a letter by Holly Pedder: attached [according to its terms the letter is from a Complaints Investigation Officer and responds to a telephone inquiry made by the appellant on 17 March 2015].

   8The Claimant no longer seeks to enforce any water usage charges applied to the Defendant's account during the period of the Claim.

   9On 14 August 2015, the Claimant undertook works on the Defendant's property and his neighbour's property at 112 Gormanston Road in Derwent Park to relocate the meter nearer to the front of the Defendant's property.

   10Michael Truman, an employee of the Claimant told the Defendant that he had assumed that the amenities and toilet block on 112 Gormanston Road was actually located on the Defendant's property."

2. There is no reason at all to conclude that the learned magistrate did not have regard to the agreed facts. They were referred to at the hearing, and it is inconceivable that his Honour had impermissibly overlooked them or put them out of his mind. However the contention advanced by this ground has a more fundamental flaw. The appellant does not identify how any of the agreed facts, if taken into account, could have altered the result of the claim. To the contrary, none of the facts advanced any defence open to the appellant to the slightest degree. Estcourt J rejected a ground put in somewhat similar terms. He was correct to do so. This ground fails.

3. By ground 12 the appellant contends that there was a miscarriage of justice because the agreed facts were not read by the magistrate and "not read into evidence correctly". The agreed facts had evidentiary effect by operation of the Evidence Act, s 191. For reasons already explained when addressing ground 5, the ground has no merit and fails.

4. Grounds 16 and 17 can conveniently be dealt with together. Ground 16 contends that the magistrate did not read or understand the agreed facts, even though they were read out to him and were in evidence. Ground 17 contends that the magistrate did not "deliberate" on them before giving his decision. Neither ground has merit. Both grounds fail.

Ground 6 – Mr Neil

1. Before the magistrate the respondent adduced evidence from Matthew Neil, its debt recovery manager. Mr Neil produced documents extracted from the respondent's business records evidencing the charges made to the appellant and the various credits which had been applied to them either as remissions or payments. This ground of appeal contends, in substance, that:

   ·     the magistrate erred by not permitting cross-examination of Mr Neil;

   ·     the learned magistrate wrongly concluded that the appellant had not asked Mr Neil any questions; and

   ·     the appellant was wrongly refused the opportunity to ask Mr Neil a question about calculation of the charges.

2. There is no merit in any of those contentions. The appellant cross-examined Mr Neil, and the assertion that he was not permitted to do so is wrong. He was interrupted by the magistrate when he asked Mr Neil questions about why the respondent had "decided" to charge at a particular rate. The questions were correctly disallowed. The statutory basis for determining the amount of the charges is explained in addressing grounds 1, 10 and 11. Mr Neil could give no relevant evidence concerning that question. The appellant did not, in cross-examination, seek to challenge any of the evidence given by Mr Neil, or through the documentary evidence adduced through Mr Neil, about the amount which had been charged but not paid. Later in the proceedings, an exchange occurred between the magistrate and the appellant about the effect of Mr Neil's evidence concerning the charges made to the appellant. The magistrate commented "you didn't ask him any questions so I assumed that there was no disagreement". When his comments are read in context, the magistrate was not wrongly suggesting that the appellant had not asked any questions at all, just that he had not challenged the evidence of the total amount charged. Nor was the appellant wrongly refused the opportunity to ask about the calculation. What the appellant was seeking to do was to challenge the witness to explain the statutory and policy basis for the charges, not the amount. As the magistrate correctly pointed out to the appellant, in this case that was a matter for argument on the proper application of the legislation, and was not an issue Mr Neil could give evidence about.

3. In any event, the errors complained of by the appellant are of no consequence unless he can point to relevant evidence which the magistrate wrongly omitted or overlooked. He does not do so.

Ground 7 – Adjournment applications

1. This ground asserts that the learned magistrate wrongly refused two applications for an adjournment, and that he was thereby denied natural justice. The hearing before the magistrate resumed on 9 August 2017, having been adjourned part heard from 28 March 2017. Before 28 March 2017 it had been subject to a number of directions hearings. On 9 August the respondent tendered a bundle documents by consent, and then closed its case. At that point counsel for the respondent handed to the magistrate written submissions. The submissions explained, in considerable detail, the statutory provisions, published notices, determinations and orders, which gave rise to the respondent's entitlement to the claimed sum. The submissions were based on the evidence the respondent had adduced, or legislation. The submissions were given to the magistrate and to the appellant before the appellant was invited by the magistrate to give and adduce evidence. The appellant then did give evidence at some length and was briefly cross-examined.

2. The appellant now contends that he should have been given time to consider the submissions given to the magistrate.       He also contends that he should have been given an adjournment of the hearing to enable him to call a witness who he wished to give evidence about the location of a pipe on his property.

3. A failure to accede to a reasonable request for an adjournment can constitute procedural unfairness if a party is thereby deprived of a reasonable opportunity to answer a case brought against that party: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11, 209 CLR 597 at 611 [40]; Sullivan v Department of Transport (1978) 20 ALR 323 per Deane J at 343. However, appellate courts should be slow to interfere with decisions to grant or refuse an adjournment unless injustice is demonstrated: Sali v SPC Ltd (1993) 116 ALR 625 at [10]-[11]; Newton v Ellis [2012] NSWCA 106 at [17].

1. Nowhere in the record of proceedings does it appear that the appellant asked for an adjournment to enable him to consider the written submissions given to the magistrate by counsel for the respondent. In any event, Estcourt J found no error and no denial of natural justice. His Honour was correct to so find. The document the appellant said he wanted to consider was a submission. It is to be distinguished from evidence which the appellant may have met if given time. The force of the submission depended on the evidence adduced at the hearing. The submission contained nothing which could or should have taken the appellant by surprise. Counsel for the respondent had no obligation to give notice of a submission until it was made. Most importantly, the appellant does not identify any matter which, had he been given time, he would have been able to successfully address. Nor does the appellant identify any other form of injustice resulting from a failure to adjourn.

2. The same conclusion applies to the evidence from the proposed witness. The witness was not present at the hearing. There had been many months to arrange for him to be present. The magistrate properly suggested that he would not further delay the hearing, and pointed out to the appellant that he could give evidence of the location of a pipe in any event. The appellant replied, "I'm not asking you to adjourn for him …". The appellant does not identify any relevant evidence which, given an adjournment, he could have adduced. It was an agreed fact that the appellant's property had a water connection. Evidence of the location of the pipe was irrelevant. No injustice arose. There is no merit in this ground and it fails.

Ground 8 – The amenities and toilet block

1. By this ground the appellant claims that the magistrate erred by not taking proper account of an aerial photograph which showed that an amenities and toilet block were partly on his land and partly on the neighbouring property. No error is demonstrated. The evidence is irrelevant. The appellant does not identify any reason why the location of the amenities and toilet block made any difference to the respondent's entitlement to the claimed sum. There were agreed facts that the appellant owned 114 Gormanston Road and that throughout the period of the claim, the property had a 200 mm water connection. None of the respondent's claim was for water use.

Ground 13 – Evidence of photographs

1. The appellant contends that he was prevented from adducing evidence of photographs and evidence from a plumber about the standard of work done by the respondent when the water meter was moved. It was not a ground advanced before Estcourt J and should be rejected for that reason. In any event, the evidence was irrelevant to the claim, and there was no proper basis for it to be admitted. This ground fails.

Ground 14 – Procedural fairness

1. This ground asserts a denial of procedural fairness because the magistrate precluded the appellant from making all of his submissions. Estcourt J dealt with the argument at [10]-[13] of his reasons:

   "[10]     Equally there is no substance, in my view, to any of the procedural errors asserted to have been made by his Honour, notwithstanding that a close reading of the transcript of the hearing before him discloses that greater concession could have been made by him to the fact that the appellant was unrepresented.

   [11]     There was no denial of procedural fairness in my view. As Pearce J observed in Streets v Lucas [2013] TASSC 45 at [26], 'The content of natural justice varies from case to case.' To the like effect, in Russell v Duke of Norfolk [1949] 1 All ER 109, Tucker LJ observed at 118 that the requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, and the subject-matter that is being dealt with. The appellant may well have a legitimate grievance arising from the manner in which the learned magistrate proceeded but, given the view I have reached, the same legal result would be the only outcome of a rehearing. The same applies to the appellant's contentions in relation to his unsuccessful adjournment applications.

   [12]     As I apprehend it, the learned magistrate's decision was not only 'open' to his Honour, but it was the only possible disposition of the respondent's claim that could have been open.

   [13]     I adopt as my reasons for arriving at each of the foregoing conclusions, the exhaustive, and what I regard as unassailable, written submissions made by counsel for the respondent."

2. The transcript of the proceedings before the magistrate discloses that the appellant was asked, after he had already been afforded a considerable opportunity to make submissions, whether he "wanted to say anything else in reply [to the claimant's submissions]". The transcript records "No audible reply", whereupon his Honour proceeded to give reasons for his decision. The appellant now contends that the absence of an audible response does not mean that he had nothing else to say, even if the magistrate formed the opposite impression. The appellant said nothing to the magistrate at the time. He had already made oral and written submissions. More importantly, however, he does not now identify any submission that he would have made at the time, if given the opportunity, which could have made the slightest difference to the result of the claim. No error is established, either at first instance or on appeal. Even if the appellant was interrupted in his submission, no substantial wrong or miscarriage has been occasioned. This ground fails.

Ground 15 – An affidavit

1. This ground makes an assertion of fact about an affidavit prepared by counsel for the respondent on the appeal to Estcourt J. It is a scurrilous allegation with no relevance which should be disregarded.

Result and order

1. None of the grounds of appeal are made out. I would dismiss the appeal.

Serial No

File No FCA 1441/2018

ALAN JOSEPH BARNETT v TASMANIAN WATER AND SEWERAGE CORPORATION PTY LTD (ACN 162 220 653) trading as TASWATER

REASONS FOR JUDGMENT  FULL COURT

MARTIN AJ
24 October 2018

1. I agree the appeal should be dismissed for the reasons given by Pearce J.