City of Port Adelaide Enfield No. DCCIV-00-402

CITY OF PORT ADELAIDE ENFIELD
DC No. 402 of 2000
[2000] SADC 122

HIS HONOUR JUDGE BOWERING

ADMINISTRATIVE AND DISCIPLINARY DIVISION

By summons issued out of this Court on 21st September, 2000, the City of Port Adelaide Enfield applied for an order pursuant to Section 54 of the Local Government Act 1999 to restore to office thirteen members of that Council including the principal member(The Mayor). The summons was made especially returnable for 9.30am on Monday 25th September, 2000. I directed that the proceedings be served on the Minister of Local Government. Upon the application coming on for hearing, the Minister appeared by counsel and advised me that she did not wish to be heard.
The circumstances leading to the institution of these proceedings are set out in the affidavit of Henderikus Jan Wierda, the Council’s Chief Executive Officer. Briefly stated, the thirteen members form portion of the seventeen elected members who make up the Council of Port Adelaide Enfield. All members of the Council were elected to office on 22nd May, 2000. The provisions of Section 65 of the Local Government Act 1999 and subsection 16(2) of the Local Government (Implementation) Act 1999 mean that every member so elected was required, within six weeks of that election, to submit to the Council’s Chief Executive Officer a primary return in accord with Schedule 3 of the Local Government Act. The returns are used by the Chief Executive Officer to establish and maintain a register of interests pursuant to Section 68. Subsection 68(2) provides that if a member of council fails to so submit the return, to the Chief Executive Officer within the six week period, the Executive Officer must, as soon as practicable, notify the member of that fact and include, within such notification, specific information as to the consequences of the members’ failure to submit their return. The relevant consequences are set out in placitum 54(1)(g) which provides that the office of a member who fails to submit the return before the expiration of one month from the end of the six week period becomes vacant.
The six week period came and went without any of the thirteen members the subject of these proceedings submitting a primary return as required. However, for reasons set out in the affidavit, the Chief Executive Officer of the Council failed to notify the members of their failure and advise them of the consequences thereof if such failure continued for a month as required of them by subsection 68(2). That month also came and went. This meant that, pursuant to subsection 54(1)(g) of the Local Government Act, the office of the thirteen members concerned became vacant from and including the 4th August. Although the members who so lost office are not presently members of the Council, I shall, in this judgement, refer to them as “members”.
Some time on or about 20th September, 2000, the penny dropped. As a consequence, these proceedings were promptly commenced.
Recent reports in the media indicate that not only the Council of Port Adelaide Enfield but other councils across the State have a similar problem. That situation inflicts upon these proceedings some of the characteristics of a test case.
The applicant seeks two orders, namely, first, leave to institute these proceedings after the expiration of the one month referred to in Section 54(4) of the Local Government Act 1999, and, secondly, an order to restore to office the thirteen members concerned with effect from 4th August, 2000.
The following provisions of the Local Government Act 1999 are relevant:-
“Casual vacancies
54. (1) Subject to this section, the office of a member of a council becomes vacant if the member-
.....
(g).... fails to submit a return under Division 2 of Part 4 of this Chapter before the expiration of one month from the end of the period allowed under that Division for the submission of the return;
......... .....
(4) If a member’s office becomes vacant because of the member’s failure to submit a return under Division 2 of Part 4 of this Chapter or Part 4 of this Chapter or Part 14 of the Local Government (Elections) Act 1999-
(a).... The District Court may, on application made within one month after the vacation of office, restore the member to office if satisfied that the failure arose from circumstances beyond the member’s control.
Lodging of primary returns
65. Each person who is elected as a member of a council (other than a person who was a member of that council immediately before the conclusion of that election) or is appointed as a member of a council must, within six weeks after election or appointment, submit to the chief executive officer a primary return in accordance with schedule 3.
.....
Register of Interests
68. (1) The chief executive officer must maintain a Register of Interests and must cause to be entered in the Register all information furnished pursuant to this Division and schedule 3.
(2) If a member of a council fails to submit a return to the chief executive officer within the time allowed under this Division, the chief executive officer must as soon as practicable notify the member of that fact and include specific information about the consequences under Division 1 of Part 2 of this Chapter if a return is not submitted in accordance with the requirements of this Division.
.....
Special jurisdiction
276. (1) The following proceedings may be taken before, and determined by, the District Court:
(a)     proceedings to try the title of a member to an office;
(b).... proceedings to try the right of a person to be admitted or restored to an office;
(c)     proceedings to compel restoration or admission;
(d).... proceedings to compel a council to proceed to an election, poll or appointment;
(e)     proceedings to try the validity of a rate of service charge;
(f)..... proceedings to try the validity of a by-law;
(g)     proceedings to compel the production or delivery of any books, voting-papers, or other documents or papers to the production or possession of which a council or person is entitled under this Act.
(2) The proceedings may be brought by-
(a)     the council; or
(b).... an elector; or
(c)     the Minister; or
(d).... any other person with a material interest in the matter.
(3) Proceedings under subsection (1)(a) must be commenced within two months from the date on which the person was elected or appointed to the relevant office, or on which the cause arose by reason of which the person is liable to be ousted from the relevant office (as the case may be).
(4) Proceedings under subsection (1)(e) must be commenced within two months from the date of publication of the notice of the declaration of the rate or service charge in the Gazette.
(5) The District Court may make an order-
(a).... declaring a person not to be entitled to the office then occupied by that person, and that the office or place is vacant, or that another person is entitled to the office;
(b)     requiring the council to proceed to take the necessary steps for an to hold an election or poll, or to make an appointment;
(c).... compelling a person or persons to proceed to any ballot or poll that may be necessary;
(d)     quashing a rate or service charge which is invalid;
(e).... declaring a by-law to be invalid;
(f)     compelling the production or delivery of any books, voting-papers, or documents by or to a council, or an employee of a council, to or by a person.
(6) No order to admit or restore a person to an office can be made while another person occupies the office.
(7) Except to the extent that this or another Act provides an express right to bring particular proceedings, no proceedings may be brought before a court or tribunal constituted by law-
(a).... to admit or restore to officer, or to compel a council to proceed to the election or appointment of, a principal member, councillor, auditor, office or other person to an office in, or in the appointment of, the council; or
(b)     to compel a person or persons to proceed to a ballot or poll; or
(c).... to challenge a valuation, assessment, rate or service charge, or to make or allow an alteration to a valuation, assessment, rate or service charge; or
(d)     to compel the production or delivery of any books, voting-papers or other documents or papers, to the production or possession of which a council or a person may be entitled under this Act.”
Section 16 of the Local Government (Implementation) Act 1999 is also relevant. The terms of that Section are as follows:-
“Registers and codes
16. (1) Subject to subsection (2), any register or code of conduct or practice in force under the 1934 Act immediately before the relevant day may, to the extent that a corresponding register or code is required under the 1999 Act, be taken to have been made under the 1999 Act (but may still be used for the purposes of the 1934 Act, if required).
(2) For the purposes of Chapter 5 Part 4 Division 2 of the 1999 Act-
(a).... any person elected as a member of a council at the general election to be held in May 2000 (including a person who was a member of the council before that election) must, within six weeks after election, submit to the chief executive officer a primary return under that Division; and
(b) a member of the public is not entitled to inspect the Register under that Division until six weeks after the general election to be held in May 2000.”
The proceedings have been brought pursuant to subsection 54(4) of the Local Government Act. Thus the first question is whether they should have been brought pursuant to Section 276. On the face of the legislation, Section 276 would appear to be the proper basis for the proceedings. Subsection 276(1) refers specifically to proceedings before the District Court “to try the right of a person to be admitted or restored to an office”. However, when one looks at subsection 276(5), which subsection lists the orders which the District Court may make when determining proceedings brought pursuant to subsection 276(1), the power to order that a person be restored to an office is conspicuous by its absence. Thus, on the face of the section, if proceedings are brought pursuant to subsection 276(1) to try the right of a person to be restored to an office, the provisions of subsection 276(5) do not confer upon the Court the power to so restore that person. Furthermore, a proper interpretation of the Court’s powers is not aided by the terms of subsections 276(6) and (7)(a). The practical effect of this, I think, is that if the provisions of 276(5) are to be used to restore a person to the office of councillor, a significant judicial re-writing of the subsection would be necessary.
For these reasons I have come to the conclusion that these proceedings have been properly instituted pursuant to subsection 54(4) rather than under subsection 276(6). As far as I can see, subsection 54(4) is the only provision of the Act which specifically confers upon this Court a power to restore a member to office.
My view of the situation raises the question of whether this Court has the power to extend the period of one month within which an application must be made pursuant to subsection 54(4)(a), that period having now expired. I appreciate that, on one construction, subsection 54(4)(a) does not impose a time limit at all - it may, perhaps, be construed as saying that if, upon making an application, one wishes to rely on a particular ground, namely that the failure to submit the return pursuant to Section 65 arose from circumstances beyond the member’s control, the application must be brought within a month. However, given that the subsection appears to be the only provision in the Act which specifically authorizes this Court to restore a member to office, I think it appropriate to view it as a specific time limit - an application to restore a member to office on the ground that the person’s failure to submit the return arose from circumstances beyond the person’s control must be made within one month: see General Motors - Holdens Limited v Di Fazio (1979) 141 CLR 659.
Although the Local Government Act contains no provisions empowering this Court to extend the time within which legal proceedings must be commenced, Section 48 of the Limitation of Actions Act 1936 may be of assistance. The relevant terms of that Section are as follows:-
“General power to extend periods of limitation
48. (1) Subject to this section, where an Act, regulation, rule or by-law prescribes or limits the time for-
(a)     instituting an action; or
(b)     doing any act, or taking any step in an action; or
(c).... doing any act or taking any step with a view to instituting an action,
a court may extend the time so prescribed or limited to such an extent, and upon such terms (if any) as the justice of the case may require.
(2) A court may exercise the powers conferred by this section in respect of any action that-
(a)     the court has jurisdiction to entertain; or
(b).... the court would, if the action were not out of time, have jurisdiction to entertain.
(3) This section does not-
(a)     apply to criminal proceedings; or
(b).... empower a court to extend a limitation of time prescribed by this Act unless it is satisfied-
(i).... that facts material to the plaintiff’s case were not ascertained by him until some point of time occurring within twelve months before the expiration of the period of limitation or occurring after the expiration of that period and that the action was instituted within twelve months after the ascertainment of those facts by the plaintiff; or
(ii)that the plaintiff’s failure to institute the action within the period of the limitation resulted from representations or conduct of the defendant, or a person whom the plaintiff reasonably believed to be acting on behalf of the defendant, and was reasonable in view of those representations or that conduct and any other relevant circumstances,
and that in all the circumstances of the case it is just to grant the extension of time.”
I am satisfied that the reference to the period of one month within subsection 54(4)(a) of the Local Government Act is a time limit to which Section 48 of the Limitations of Actions Act applies. Furthermore, I am satisfied that the action presently before the Court is one which, if the action were not out of time, this Court would have had jurisdiction to entertain. Thus I turn to consider whether I can be satisfied with respect to the matters referred to in subsection 48(3)(b)(i) of that Act and whether, in all the circumstances of this case, it would be just to grant the extension of time now sought. As far as the question of material facts is concerned, the comments which fell from Cox J in Wright v Donatelli (1995) 65 SASR 307 suggests that the hurdle is not high. His Honour said, at page 310:-
“Perhaps one might be permitted a general observation about these s 48 applications. Everyone now understands that the test for an ascertained material fact under s 48 is extremely modest, even some would say to the point of absurdity. The solicitor must be bereft of all ingenuity and imagination who cannot in practically every case discover, or even create, some material fact that his out-of-time client can than ascertain within the limitation period in order to meet the first requirement of the statutory provision.”
It is clear that the provisions of subsection 48(3)(b)(i) relate to “facts material to the plaintiff’s case” and not to mistakes of law. In this case the plaintiff - or, put more correctly, the applicant - is the Council. The Council is, of course, a body corporate. Although a legal entity, it has no separate physical existence. The misconception and mistake of the Chief Executive Officer was not, in this case, the mistake of the Council, for the legislation placed the obligation to issue the notice squarely upon him. The Chief Executive Officer is not the party to these proceedings. Thus, when determining whether there were facts material to the applicant’s case which were not ascertained until after the expiration of the relevant one month I am not concerned with the knowledge of the Chief Executive Officer of the Council but rather with the knowledge of the members. The affidavit of the Chief Executive Officer filed in these proceedings indicates, at least to me, that the mistake of the Chief Executive Officer which gave rise to the course of events now under consideration was a mistake of law rather than of fact. However, as a consequence of that mistake he failed to give to the members the notice which he was required to give pursuant to subsection 68(2) of the Local Government Act. Furthermore, a perusal of the correspondence exhibited to his affidavit dated 24th September, 2000, indicates that he positively misled them. The terms of that subsection - set out earlier in this judgement - show that the purpose of the notice referred to in the subsection is to advise members of certain facts. Whilst, without doubt, the facts to be set out in the notice have their root in the relevant provisions of the Act, the terms of the subsection require the executive officer to “notify the member of that fact and include specific information about the consequences under Division 1 of Part 2 of this chapter if a return is not submitted in accordance with the requirements of this division.” As I construe the “fact” as referred to in the subsection, it is a reference to the fact that the member had failed to comply with a legal obligation imposed by the Act. The words “specific information about the consequences” refer, in my view, to the fact that, should the member fail to heed the notice and act appropriately, he or she will no longer be a councillor at the end of the month. Furthermore, it was not until the 20th September that the members concerned became aware of the fact that they were no longer members of the Council.
For these reasons I have come to the conclusion that there are facts, material to the Council’s case and relevant to each councillor named in these proceedings to be restored to office, which were not ascertained by the Council until the expiration of the one month period referred to in subsection 54(4)(a). I am further satisfied that, in all the circumstances of the case and with respect to each of the councillors named in these proceedings, it is just to grant a sufficient extension of time to render the proceedings now before me properly instituted. I now grant such extension.
Before departing the Limitation of Actions Act, I think it appropriate to add that I have considered whether the provisions of Section 47 might be applicable in this case. Although these proceedings relate to the restoration to office rather than to try the title to office, I do not think the Section applicable as, in my view, the purpose of the limitation referred to in subsection 54(4) is essential.
At long last I turn to the principal issue in this case, namely whether the members should be restored to office. Having regard to the facts set out in the affidavit of the Chief Executive Officer, I am satisfied that the failure of each councillor referred to in these proceedings to lodge a primary return as required by Section 65 arose through the failure of the Chief Executive Officer to give the notice required by subsection 68(2) and, perhaps to some extent, from correspondence which he sent to them. However, although I do not regard the failure of the members to submit a primary return as being a matter beyond the control of each member, I am satisfied that such failure arose from - indeed, as a direct consequence of - circumstances beyond the control of each member, namely the failure of the Chief Executive Officer to give the notice required. In these circumstances, I am satisfied that it is proper to order that all thirteen members be restored to office.
The application seeks an order that each of the thirteen members be restored to office as from 4th August, 2000, ie, the day immediately following the expiration of the one month period referred to in subsection 54(1)(g). As I construe the provisions of Section 54, the office of a member who fails to submit a return within the one month period becomes vacant by operation of law. Mr Roder, who appeared for the Council, submitted to me that the power of the Court to “restore the member to office” is a power to restore such member to the same position as if the office had not been vacated. Thus, he put to me, this Court has the power to restore each member retrospectively to the 4th August. However, having considered the relevant provisions of the Act, I think that the position is that the office of a member remains vacant until either the member is restored or another person fills the vacancy. The power of the Court is limited to the restoration of a member “to office”, ie to the same office - rather than to the same situation or circumstances - previously held by that member. Thus, in my view, the Act does not empower this Court to fill the void between the vacancy occurring and it being subsequently filled, however fair and desirable such a course may appear. Whilst I appreciate the difficulties which my view may create, such difficulties do not justify the exercise of a power which, in my view, the Act does not confer. Accordingly, the application that the members be restored retrospectively is refused and the restoration will date from the sealing of the order.

I will hear counsel as to the terms of the order.

[2000] SADC 122

25 September 2000