Brisbane City Council v Amos - [2016] QSC 131

SUPREME COURT OF QUEENSLAND

CITATION:

Brisbane City Council v Amos [2016] QSC 131

PARTIES:

BRISBANE CITY COUNCIL

(plaintiff)

v

EDWARD AMOS

(defendant)

FILE NO/S:

SC No 6704 of 2009

DIVISION:

Trial Division

PROCEEDING:

General Civil Trial

DELIVERED ON:

13 June 2016

DELIVERED AT:

Brisbane

HEARING DATE:

25 and 26 November 2015 and 12 February 2016

JUDGE:

Bond J

ORDER:

The order of the Court is that:

The parties bring in proposed short minutes of order to give effect to these reasons for judgment, with supporting submissions, in accordance with the following timetable:

1.   The Council, within 2 days of the date of this judgment.

2.   The defendant within a further 2 days.

3.   Any reply by the Council within a further 2 days.

CATCHWORDS:

LOCAL GOVERNMENT – POWERS, FUNCTIONS AND DUTIES OF COUNCILS GENERALLY – where Council commenced proceeding against defendant to recover unpaid rates and charges – where defendant disputes the rates and charges levied – whether the defendant is liable for unpaid rates and charges

STATUTES – ACTS OF PARLIAMENT – REPEAL – SAVINGS AND TRANSITIONAL CLAUSES WITHIN REPEALING ACT – where Council argued the effect of transitional provision required validity of decision to be determined by repealing Act – whether necessary to have regard to the repealed Act to determine validity of decisions made under the repealed Act

LOCAL GOVERNMENT – REGULATION AND ADMINISTRATION – MEETINGS – RESOLUTIONS – GENERALLY – where statute required that Council decide by “resolution” the rates and charges – where records showed that certain documents were “presented and passed” – where defendant argued records did not fulfil statutory requirements – whether adequate proof to establish resolutions were passed

LIMITATION OF ACTIONS – LIMITATION ON PARTICULAR ACTIONS – MORTGAGES AND CHARGES – WHAT CLAIMS ARE WITHIN LIMITATION STATUTES – where defendant argued claim was an action to recover sum recoverable by virtue of an enactment under s 10(1)(d) – where Council argued claim was an action to recover a principal sum of money secured by a charge under s 26(1) – whether s 10(1)(d) or s 26(1) applied

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – CONFIRMATION – ACKNOWLEDGEMENTS AND PROMISES TO PAY – where Council argued that action had fresh accrual on either acknowledgment or part payment by defendant – where defendant argued he reserved his rights and no such acknowledgment made out – whether contents of various correspondence amounted to express or implied admission of debt

Acts Interpretation Act 1954 (Qld), s 20, s 38
City of Brisbane Act 1924, s 6A, s 48, s 49, s 60, s 61, s 62, s 63, s 64, s 65, s 68C
City of Brisbane Act 2010, s 11, s 29, s 30, s 93, s 94, s 96, s 97, s 232, s 254, s 257
City of Brisbane (Finance, Plans and Reporting) Regulation 2010 (Qld), s 36, s 37, s 38, s 50, s 59, s 60, s 62, s 66
Fire and Emergency Services Act 1990 (Qld)

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Brisbane City Council v Amos and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] QSC 131
Decision Date: 13 June 2016

CaseChat Overview and Summary

Brisbane City Council commenced proceedings against the defendant to recover unpaid rates and charges. The defendant disputed the rates and charges levied and the proceedings raised several legal issues, including the validity of the Council’s decisions, the application of the transitional provisions in the relevant Act, and the limitation periods for actions to recover sums recoverable by virtue of an enactment. The Council argued that the transitional provision in the 2010 Act preserved the force and effect of decisions made under the 1924 Act, and that the validity of such decisions should be determined by reference to the 2010 Act. The defendant contended that the transitional provision preserved the validity of decisions made under the 1924 Act, and that their validity should be determined by reference to the 1924 Act. The Court held that the transitional provision preserved the force and effect of decisions made under the 1924 Act, and that their validity should be determined by reference to the 1924 Act. The Council further argued that the action was an action to recover a principal sum of money secured by a charge under s 26(1) of the Limitation of Actions Act 1974 (Qld), and was therefore subject to a limitation period of six years. The defendant contended that the action was an action to recover a sum recoverable by virtue of an enactment under s 10(1)(d) of the Limitation of Actions Act 1974 (Qld), and was therefore subject to a limitation period of three years. The Court held that the action was an action to recover a sum recoverable by virtue of an enactment under s 10(1)(d) of the Limitation of Actions Act 1974 (Qld), and was therefore subject to a limitation period of three years. The Court further held that the limitation period had not been extended by any acknowledgment or part payment by the defendant. Finally, the Court held that the Council’s records were sufficient to establish that the Council had decided to levy the rates and charges by resolution, as required by the relevant statute. The Court held that the records showed that certain documents were “presented and passed” by the Council, which was sufficient to establish that the Council had decided to levy the rates and charges by resolution, as required by the relevant statute. The Court ordered that the parties bring in proposed short minutes of order to give effect to these reasons for judgment, with supporting submissions, in accordance with the following timetable.

Orders

Orders of the court

The order of the Court is that:

The parties bring in proposed short minutes of order to give effect to these reasons for judgment, with supporting submissions, in accordance with the following timetable:

1. The Council, within 2 days of the date of this judgment.

2. The defendant within a further 2 days.

3. Any reply by the Council within a further 2 days.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Section 257 of the 2010 Act expressed the relevant transitional provision in these terms (emphasis added):257Decisions under repealed Acts(1)A decision under the following repealed Acts, that was in force immediately before the commencement of this section, continues in force as if the decision were made under this Act, made at the same time as it was made under the repealed Act – (a)[the 1924 Act];…(2)A decision includes an agreement, appointment, approval, authorisation, certificate, charge, consent, declaration, delegation, determination, direction, dismissal, exemption, immunity, instruction, licence, memorandum of understanding, order, permit, plan, policy, protocol, rates, release, resolution, restriction, settlement, suspension and warrant. The evident intention of the transitional provision was to preserve the force and effect of a wide group of “decisions” which were made under the 1924 Act and which were in force immediately prior to 1 July 2010. It did so by stating that such decisions would continue in force as if they were decisions made under the 2010 Act, made at the time they were in fact made under the 1924 Act. For example, a resolution made on 1 December 1999, under the 1924 Act would continue in force as if it was a resolution made under the 2010 Act, but made on 1 December 1999. As a matter of general principle, the phrase “decision under the … repealed Acts, that was in force …” must be read as a reference to decisions which were valid decisions[10] under the relevant Act, in the sense that they were decisions which complied with any legislative requirements which, on the application of the Project Blue Sky test[11], were properly to be regarded as conditions of validity of the decision. [10]Cf, Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506 [76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).[11]In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 390 [93] the plurality said “A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. ... In determining the question of purpose, regard must be had to ‘the language of the relevant provision and the scope and object of the whole statute’.” The result would be that if, for example, the validity of a resolution made on 1 December 1999 was in issue, that question would be resolved, first, by reference to the conditions of validity created by the 1924 Act in respect of such a resolution and, second, by the application of the transitional provision set out in s 257 in the 2010 Act. The defendant supported that approach and contended that the statutory intention of the 2010 Act was to preserve the force and effect of decisions which were validly made under the 1924 Act rather than to apply retrospectively the validity requirements of the 2010 Act to decisions made under the 1924 Act. The Council submitted that the defendant’s interpretation of s 257 had an “initial attraction”, but that when one considered the provision as a whole, the remaining sections in the relevant Chapter and the explanatory notes, the question of the validity of a “decision” was only ever to be considered by reference to the conditions of validity specified in the 2010 Act. The Council argued that the qualification that a decision must first be “valid” under the 1924 Act did not sit comfortably with: (a)the wide and inclusive definition of “decision” in s 257(2), which includes commercial matters not ordinarily subject to administrative review; (b)the inclusion in s 257(1) of a list of repealed Acts and the absence of words expressly imparting a validity requirement, indicating that the legislative intention is to refer to a decision being made during the currency of those Acts rather than “in accordance with” or “pursuant to” those Acts; (c)the remaining provisions in Chapter 8, including s 254, which provides for “the transition…(including the transition of rights, liabilities and interests, for example)” from certain repealed Acts to the 2010 Act; (d)the City of Brisbane Bill 2010 (Qld) Explanatory Notes, which stipulate that the policy objectives of the 2010 Act were to provide a contemporary legislative framework for the Council to undertake its governance and service delivery role and for the 2010 Act to be “comprehensive and contemporary, making [the repealed Acts] unnecessary”; and(e)if s 257 was to be construed in the way for which the defendant contends, it would achieve nothing more than would have been achieved in any event by the operation of s 20(2) of the Acts Interpretation Act 1954 (Qld), which provides that the repeal of an Act does not affect “anything suffered, done or begun” or “a right, privilege or liability acquired, accrued or incurred” under a repealed Act.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Brisbane City Council v Amos [2016] QSC 131
PARTIES:	BRISBANE CITY COUNCIL (plaintiff) v EDWARD AMOS (defendant)
FILE NO/S:	SC No 6704 of 2009
DIVISION:	Trial Division
PROCEEDING:	General Civil Trial
DELIVERED ON:	13 June 2016
DELIVERED AT:	Brisbane
HEARING DATE:	25 and 26 November 2015 and 12 February 2016
JUDGE:	Bond J
ORDER:	The order of the Court is that: The parties bring in proposed short minutes of order to give effect to these reasons for judgment, with supporting submissions, in accordance with the following timetable: 1. The Council, within 2 days of the date of this judgment. 2. The defendant within a further 2 days. 3. Any reply by the Council within a further 2 days.
CATCHWORDS:	LOCAL GOVERNMENT – POWERS, FUNCTIONS AND DUTIES OF COUNCILS GENERALLY – where Council commenced proceeding against defendant to recover unpaid rates and charges – where defendant disputes the rates and charges levied – whether the defendant is liable for unpaid rates and charges STATUTES – ACTS OF PARLIAMENT – REPEAL – SAVINGS AND TRANSITIONAL CLAUSES WITHIN REPEALING ACT – where Council argued the effect of transitional provision required validity of decision to be determined by repealing Act – whether necessary to have regard to the repealed Act to determine validity of decisions made under the repealed Act LOCAL GOVERNMENT – REGULATION AND ADMINISTRATION – MEETINGS – RESOLUTIONS – GENERALLY – where statute required that Council decide by “resolution” the rates and charges – where records showed that certain documents were “presented and passed” – where defendant argued records did not fulfil statutory requirements – whether adequate proof to establish resolutions were passed LIMITATION OF ACTIONS – LIMITATION ON PARTICULAR ACTIONS – MORTGAGES AND CHARGES – WHAT CLAIMS ARE WITHIN LIMITATION STATUTES – where defendant argued claim was an action to recover sum recoverable by virtue of an enactment under s 10(1)(d) – where Council argued claim was an action to recover a principal sum of money secured by a charge under s 26(1) – whether s 10(1)(d) or s 26(1) applied LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – CONFIRMATION – ACKNOWLEDGEMENTS AND PROMISES TO PAY – where Council argued that action had fresh accrual on either acknowledgment or part payment by defendant – where defendant argued he reserved his rights and no such acknowledgment made out – whether contents of various correspondence amounted to express or implied admission of debt Acts Interpretation Act 1954 (Qld), s 20, s 38 City of Brisbane Act 1924, s 6A, s 48, s 49, s 60, s 61, s 62, s 63, s 64, s 65, s 68C City of Brisbane Act 2010, s 11, s 29, s 30, s 93, s 94, s 96, s 97, s 232, s 254, s 257 City of Brisbane (Finance, Plans and Reporting) Regulation 2010 (Qld), s 36, s 37, s 38, s 50, s 59, s 60, s 62, s 66 Fire and Emergency Services Act 1990 (Qld)