Cairns CC v Brits

[2005] QCA 94

SUPREME COURT OF QUEENSLAND

CITATION:

Cairns CC v Brits [2005] QCA 94

PARTIES:

CAIRNS CITY COUNCIL
(respondent/respondent)
v
ANGIE BRITS trading as CENTURIA CAFÉ
(appellant/applicant)

FILE NO/S:

Appeal No 8163 of 2004
DC No 240 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

8 April 2005

DELIVERED AT:

Brisbane

HEARING DATE:

16 March 2005

JUDGES:

McMurdo P, Cullinane and Jones JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal refused with costs to be assessed

CATCHWORDS:

ENVIRONMENT AND PLANNING – POLLUTION – WASTE DISPOSAL – REGULATION – OTHER MATTERS – where respondent council claimed applicant liable to pay for a trade waste permit and sewer loading charges in relation to café business – where applicant refused to pay and challenged power of respondent to grant an approval to discharge trade waster and the power to charge for doing so – whether council had the ability to make such approvals and fix such charges – whether applicant liable to pay charges

LOCAL GOVERNMENT – POWERS, FUNCTIONS AND DUTIES OF COUNCILS GENERALLY – PARTICUALR POWERS AND FUCTIONS – POWERS OF ENTRY – where applicant counterclaimed damages for trespass in relation to council officers’ entry onto café premises – where District Court judge disposed of Counterclaim by reference to s 1091 Local Government Act 1993 (Qld) – whether District Court judge erred in approach

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – PLEADING – DEFENCE AND COUNTER-CLAIM – where applicant in her Defence pleaded non-admission to all but one of the allegations in the respondent's Statement of Claim – where explanations given for non-admission did not satisfy r 166 Uniform Civil Procedure Rules 1999 (Qld) – where Magistrate gave judgment for respondent on Claim and Counterclaim after the applicant refused to take further part in the proceedings – where applicant appealed to District Court raising issues not raised on the pleadings – where District Court judge found the matter fell to be determined on the issues rased in the pleadings and refused the appeal – whether District Court judge erred in approach – whether leave to appeal should be granted

Local Government Act 1993 (Qld), s 963, s 974, s 1091
Uniform Civil Procedure Rules 1999 (Qld), r 153, r 166
Water Act 2000 (Qld), s 469

COUNSEL:

J T Bradshaw for the applicant
J D Henry for the respondent

SOLICITORS:

Myles Thompson for the applicant
Williams Graham & Carman for the respondent

1. MCMURDO P:I agree with Cullinane J's reasons for concluding that the applicant has not demonstrated any reason to warrant the grant of leave to appeal.  The application for leave to appeal should be refused with costs to be assessed.

1. CULLINANE J: The applicant seeks leave to appeal to the Court of Appeal under s 118 of the District Court of Queensland Act 1967 (Qld) against the decision of the District Court at Cairns dismissing an appeal from the Magistrates Court at Cairns.

1. Before leave is granted the applicant has to demonstrate some reason why leave should be granted.  This may be satisfied by identifying a point of law or principle of some importance or by demonstrating that an injustice would result if leave is not granted.

1. The respondent instituted proceedings in the Magistrates Court at Cairns claiming $685 from the applicant.

1. The applicant conducts or conducted a café business in Cairns. 

1. It is alleged in the Statement of Claim that the respondent, (a) had the power to make and levy general charges pursuant to s 973 and s 974 of the Local Government Act 1993 (Qld), (b) that the applicant conducted a café business which discharged trade wastes into the sewerage system, (c) that she was liable to pay for a trade waste permit and sewer loading charges, (d) that she had been charged in respect of such matters pursuant to invoices submitted to her by the respondent, and (e) that she had failed to pay. (The sewerage loading charge was erroneously stated in the Statement of Claim to be $155 but this error was obvious). The pleading is set out in detail in paragraph nine of the reasons for judgment of the learned District Court Judge.

1. In her Defence and Counterclaim the applicant pleaded by way of non-admission to all of the allegations in the Statement of Claim except paragraph five which is the allegation that the charges had not been paid.  This was denied although it is, of course, obvious from proceedings now in three courts that it is the fact that the charges have not been paid.

1. In making the non-admissions however, the applicant gave no explanation which would satisfy the requirements of r 166 of the Uniform Civil Procedure Rules 1999 (“UCPR”). The effect then of r 166(5) is that the allegations in the Statement of Claim are taken to be admitted.

1. By a Counterclaim the applicant claimed damages for trespass against the respondent alleging that certain officers of the respondent trespassed on her premises.

1. The respondent applied for judgment on its Claim under r 292 and on the Counterclaim under r 293 supporting the application by a number of affidavits.

1. When the matter came before the Magistrate the applicant stated that she had not been served with the respondent’s Reply and Answer to the Defence and Counterclaim.

1. The solicitor representing the respondent informed the Magistrate that the pleading had been sent to the applicant and that he had a copy of the letter which accompanied the pleading. 

1. Upon the applicant’s insistence that she had not received a Reply and Answer the Magistrate adjourned the matter to enable another copy of the pleading to be served upon her. 

1. The matter came before another Magistrate on 20 June 2003.  It is with the decision on this occasion and the decision on appeal from it that this application for leave is concerned.

1. On this application the applicant who was present had another person with her who also took some part in proceedings.

1. The applicant sought to again raise the alleged failure to serve a Reply and Answer.  When the Magistrate refused to allow this to be done the applicant and the other person left with the latter being recorded as saying, “We’ll go and we’ll take it upstairs.”

1. Thereafter the applicant took no further part in the proceedings before the Magistrate. 

1. The Magistrate gave judgment for the respondent on both the Claim and the Counterclaim being satisfied that the respondent was entitled on the material before him to succeed on both.

1. The applicant appealed to the District Court.  This appeal was heard on 18 March 2004.

1. On this occasion the applicant was represented by counsel.

1. It is obvious from the reasons of the learned District Court Judge that the applicant raised or sought to raise issues which had not been raised in the pleadings.  Indeed, His Honour said that the applicant seemed to proceed on the basis that the respondent could be put to proof in a general way.

1. As His Honour correctly pointed out the matter fell to be determined on the issues raised in the pleadings. Rule 166 plays an important role in delineating the issues which are to be determined. In this case the cause of action pleaded in the Statement of Claim was, by virtue of r 166(5), in substance, admitted.

1. The learned trial judge expressed the view that the applicant’s pleadings were inadequate and incomprehensible.  Certainly they did not raise the issues which were sought to be raised before the District Court and on this application.

1. Some of these related to the power of the respondent to allow a discharge of trade waste into the sewerage system and thus it is said the right of the respondent to charge the fees claimed.

1. The power of a local authority to grant an approval to discharge trade waste into a sewerage system cannot be doubted.  Nor can the power to make and levy charges for doing so.

1. Section 963(2) of the Local Government Act 1993 (Qld) confers a general power to fix charges. Section 974 of the Act allows such charges to be fixed for services including the giving of an approval.

1. Section 469 of the Water Act 2000 (Qld) provides as follows:-

469 Trade waste approvals

(1)A local government that is a sewerage service provider may give a person an approval to discharge trade waste (a “trade waste approval” into the local government’s sewerage infrastructure.

(2)Before giving the approval, the local government must consider the effect of the proposed discharge on any existing or potential re-use of waste water or sludge.

(3)The local government may give the approval only if the local government is satisfied that –

(a)        having regard to the amount, type and strength of the proposed discharge, the discharge will not harm the sewerage or the health and safety of anyone working on the sewerage; and

(b)       the sewage treatment plant to treat the waste is capable of treating the waste to an acceptable standard; and

(c)        if the local government has an environmental plan about trade waste management, as defined under the Environment Protection (Water Policy) 1997 – the proposed discharge into the sewerage is consistent with the plan.

(4)          In this section –

“sludge”          means semi-liquid solids settled from sewage in septic tanks, arresters and sewage treatment plants.

“waste water” means the spent or used water of a community or industry that contains dissolved or suspended matter.

1. It was argued for the respondent to succeed on its claim it was incumbent on it to prove the matters referred to in s 469(3)(a) above. His Honour disposed of this, correctly in my view, by holding that any failure on the part of the respondent in this regard is a matter which the applicant was obliged to plead if she wished to allege that the respondent did not have the power to charge the amounts claimed as charges. His Honour held that this was the effect of r 153 of the UCPR which provides as follows:-

153 Condition precedent

(1)An allegation of the performance or occurrence of a condition        precedent necessary for the case of a party is implied in the party’s          pleading.

(2)A party who denies the performance or occurrence of a condition               precedent must specifically plead the denial.

As I have said I agree with His Honour’s conclusions on this point.

1. The appellant also argued that given the definition of trade waste under the Water Act 2000 (Qld) the respondent had no power to permit the discharge of the applicant’s waste into the sewerage system. This, it is said, was because of the definitions under the Water Act 2000 (Qld) of trade waste and prohibited substance in the Schedules to the Act.

They provide respectively as follows:-

“trade waste” means water-borne waste from business, trade or manufacturing premises, other than—

(a)       waste that is a prohibited substance; or
           (b)       human waste; or
           (c)       stormwater.

Prohibited Substances

1            A solid or viscous substance in a quantity, or of a size, that can obstruct    sewerage, or interfere with the operation of sewerage.

Examples of solids or viscous substances that are prohibited substances if         of a size or in the quantity mentioned in item 1 –

·ash, cinders, sand, mud, straw and shavings

·metal, glass and plastics

·paper and plastic dishes, cups and milk containers whether whole or ground by garbage grinders

·rags, feathers, tar and wood

·whole blood, paunch manure, hair and entrails

·oil and grease

·cement laden waste water, including, wash down from exposed aggregate concrete surfaces

1. His Honour found, not surprisingly, this submission to be remarkable.  Its consequence would be that if the applicant’s trade waste fell within the definition of prohibited substances in the first Schedule no approval to discharge it could be given by the respondent. 

1. His Honour dealt with this issue and found, again in my view correctly, that the reference in the Schedule to oil and grease by way of example is no more than a reference to certain types of oil and grease of a size or in a quantity that can obstruct sewerage or interfere with the operation of sewerage. It plainly does not apply to all oil and grease and there is nothing whatsoever to suggest that it had any relevance to the discharge from the applicant’s café business, the subject of the claim. If it were otherwise it would be difficult to see what area of practical operation would remain for s 469 of the Water Act 2000 (Qld). In any case the effect of the applicant’s pleading is, to admit the discharge of trade waste. In addition there was ample evidence on this point in the material supporting the application. There is no substance to this part of the applicant’s claim.

1. The applicant sought to agitate other matters before us which were not raised before the learned District Court Judge. These relate to alleged procedural irregularities which would have no relevance to the validity of the judgment challenged.

1. In relation to the Counterclaim the learned District Court Judge disposed of this by reference to the terms of s 1091 of Local Government Act 1993 (Qld) as amended. This provides as follows:-

1091 Entry to places

(1)An authorised person may enter a place under this division if –

(a)        its occupier agrees to the entry; or

(b)        the entry is permitted by a warrant.

(2)        An authorised person, without the occupier’s agreement or a warrant, may –

(a)        enter a public place when the place is open to the public; or

(b)       enter land to ask for the occupier’s agreement to the authorised person entering the land or a building or structure on the land.

1. The powers conferred by this Act to enter a public place are not affected by any purported withdrawal of consent to a particular person’s entry onto premises. As His Honour points out it remains a place open to the public and the lawfulness of the entry is dependent only upon whether the terms of the protection provided for by s 1091 are met.

1. This application which concerns a little under $700 raises no issue of general importance which would justify the grant of leave.  The applicant walked out of the proceedings before the Magistrate.  In some instances the learned District Court Judge, presumably out of deference to the argument advanced before him, dealt with issues which were not before the Magistrate and which, on the state of the pleadings, could be taken to have been admitted.

1. There is no reason to doubt the correctness of His Honour’s conclusions overall and I would refuse leave with costs to be assessed.

1. JONES J: I have read Cullinane J’s reasons and agree that the application for leave to appeal should be refused with costs.