Dean v City of Kalamunda
[2022] WASCA 90
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: DEAN -v- CITY OF KALAMUNDA [2022] WASCA 90
CORAM: BUSS P
MITCHELL JA
HEARD: 21 JULY 2022
DELIVERED : 21 JULY 2022
PUBLISHED : 22 JULY 2022
FILE NO/S: CACV 13 of 2021
BETWEEN: JAMES DEAN
Appellant
AND
CITY OF KALAMUNDA
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL
Coram: JUDGE D R PARRY, DEPUTY PRESIDENT
Citation: DEAN and CITY OF KALAMUNDA [2021] WASAT 30
File Number : DR 262 of 2020
Catchwords:
Appeal - Practice and procedure - Whether an extension of time to comply with a springing order requiring the filing of an appellant's case should be granted - Turns on own facts
Legislation:
Local Government Act 1995 (WA), s 6.26, s 6.28, s 6.82
State Administrative Tribunal Act 2004 (WA), s 47
Valuation of Land Act 1978 (WA), s 4(1)
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | A Watts |
Solicitors:
| Appellant | : | In person |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
A v C [No 2] [2015] WASCA 199
REASONS OF THE COURT:
On 21 July 2022, we ordered that:
1.The appellant's application in an appeal filed on 13 June 2022 is dismissed.
2.The appeal stands dismissed pursuant to order 2 of the orders made by this court on 27 May 2022.
We said that we would publish written reasons for making those orders later. These are our reasons for making the orders.
The primary proceeding
This appeal is against an order made by the State Administrative Tribunal on 19 February 2021, dismissing the primary proceeding on the basis it was misconceived. On 11 March 2021, the Tribunal published written reasons for making that order.
In essence, in the primary proceeding the appellant sought to establish that land on which he resided was not liable to pay local government rates. The Minister had, under s 6.28 of the Local Government Act 1995 (WA) (the Act), determined that the land on which the appellant resided was to be rated by reference to the 'gross rental value' of the land.
The phrase 'gross rental value' is relevantly defined in s 4(1) of the Valuation of Land Act 1978 (WA) to mean 'the gross annual rental that the land might reasonably be expected to realize if let on a tenancy from year to year' upon certain conditions.
In essence, the appellant contended that, because he did not lease his land or receive any rent, it was not subject to local government rates under the relevant provisions of the Act.
The appellant purportedly brought the primary proceeding under s 6.82(1) of the Act. That section relevantly provides for any person to refer to the Tribunal for resolution 'a question of general interest as to whether a rate … was imposed in accordance with this Act'.
Section 47(1)(a) and s 47(2) of the State Administrative Tribunal Act 2004 (WA) relevantly empower the Tribunal to dismiss a proceeding which it believes is misconceived. The Tribunal dismissed the primary proceeding in the exercise of this power.
The Tribunal believed the primary proceeding to be misconceived on two bases.
First, the Tribunal concluded that it did not have jurisdiction under s 6.82(1) of the Act to determine the question which the appellant sought to raise. The Tribunal held that the correct method of valuation to be used by a local government as the basis for a rate was determined by the Minister anteriorly to the imposition of a rate by a local government. Therefore, in the Tribunal's view, the determination of the correct method of valuation, whether by gross rental value or otherwise, was not a question as to whether a rate was imposed in accordance with the Act, within the meaning of s 6.82 of the Act.[1]
[1] Primary decision [18] - [19].
Second, the Tribunal concluded that a local government has no choice but to set a rate on the basis of the gross rental value of rateable land under s 6.32 of the Act, whether rent is received by the landowner or not, when the Minister has determined under s 6.28 of the Act that the method of valuation of the land to be used by the local government is the gross rental value of the land. The definition of 'gross rental value' refers to the gross annual rental which might reasonably be expected if the land was let on a tenancy from year to year. The Tribunal found that this did not mean that gross rental value could only be used if the rateable land in question has in fact been let on a tenancy from year to year. Rather, the Tribunal found that the term 'gross rental value' was defined by reference to a hypothetical tenancy, not an actual one.[2]
[2] Primary decision [20] - [21].
The Tribunal also noted the appellant's submission that, because his land was not rented out, it was not 'rateable land' as defined in s 6.26 of the Act. However, s 6.26 defines rateable land to be all land within a local government district other than land which was specifically exempted. The Tribunal held that the appellant's land was within the respondent's district and could not reasonably fall within any of the exemptions set out in s 6.26 of the Act.[3]
[3] Primary decision [22].
The appeal to this court
The appellant filed an appeal notice in this appeal on 9 March 2021. He filed an amended appeal notice on 17 March 2021.
On 15 October 2021, the acting Court of Appeal registrar extended the time for filing an appellant's case to 26 November 2021. On 25 March 2022, the registrar further extended the time for filing an appellant's case to 22 April 2022. The appellant did not file an appellant's case by 22 April 2022.
A registrar's notice to attend, issued to the parties on 26 April 2022, notified the appellant that a hearing of the appeal would take place on 27 May 2022 at 12.30 pm. The notice to attend indicated that the purpose of the hearing was for the appellant to show cause why the appeal should not be dismissed for the appellant's failure to file and serve an appellant's case. By letter dated 26 April 2022, the registrar advised the appellant that the court would contact the appellant on his mobile phone number five minutes prior to the start time of the hearing.
By 27 May 2022, an appellant's case had still not been filed in the appeal. The appellant did not appear at the hearing on 27 May 2022 and did not answer his phone when called by the court on multiple occasions at the time of the hearing.[4] The court (Murphy and Vaughan JJA) made the following relevant orders, in the absence of the appellant:
(1) The time for the appellant to file and serve the appellant’s case is extended to 17 June 2022, and the appellant must file and serve an appellant’s case on or before 4.00 pm on 17 June 2022.
(2) If the appellant fails to comply with order 1:
(a) the appeal is dismissed; and
(b) the appellant is to pay the respondent’s costs of the appeal to be assessed including any reserved costs.
[4] Appeal ts 2.
These orders, with an accompanying letter, were provided to the appellant by email on 27 May 2022.
No appellant's case was filed by 4.00 pm on 17 June 2022. Consequently, at that time the appeal was dismissed by operation of order 2 of the orders made by the court on 27 May 2022.
The application in an appeal
By application in an appeal filed on 13 June 2022, the appellant applies for a further extension of time in which to file his appellant's case (Application). The affidavit of the appellant sworn on 10 June 2022, filed in support of the Application, indicated, in effect, that the appellant required further time to file an appellant's case due to the effects of a stroke which limited the time he can spend preparing the case, and due to the pending outcome of a 'Freedom of Information' application to Landgate. No medical evidence was annexed to that affidavit.
On 15 June 2022, Mitchell JA made programming orders for the filing of evidence and submissions relating to the Application. The documents which the appellant was required to file by 4.00 pm on 29 June 2022 included:
Any additional affidavits (which should attach any medical evidence on which the appellant seeks to rely and any minute of proposed appellant's case which the appellant proposes to file if given an extension of time in which to do so)[.]
The appellant did not file any documents by 4.00 pm on 29 June 2022, as required by these programming orders.
On 6 July 2022, in compliance with the programming orders, the respondent filed an affidavit (which annexed relevant correspondence received by the respondent) and submissions in opposition to the Application.
The programming orders provided for the appellant to file and serve any affidavits or submissions in reply by 4.00 pm on 15 July 2022. On 8 July 2022, the appellant filed an affidavit sworn by him on 7 July 2022. The affidavit sought to raise issues as to the court providing the appellant with the telephone number that he should expect to receive a call from prior to hearings and the authority of the respondent's solicitor to act in the proceedings. It did not substantially add to the reasons why further time was required, attach any medical evidence or any minute of a proposed appellant's case which would be filed if an extension of time to do so were granted.
Disposition of Application
The fact that the time for complying with the springing order made on 27 May 2022 has now passed does not prevent this court from granting a further extension of time.
The principles governing the determination of an application to extend time for compliance with a springing order were summarised by this court in A v C [No 2],[5] in the following terms:
[5] A v C [No 2] [2015] WASCA 199 [2] - [4].
It has often been pointed out that the failure by a party to comply with a springing order is an egregious breach. A springing order is intended to be the last opportunity afforded to the party to put its case in order. The proper administration of justice, and the quality of justice for the other party, generally requires that it be just that, its last opportunity. …
There is, however, a discretion to extend the time for compliance with a springing order and while no hard and fast rules can be laid down as to the matters to which the Court should have regard in the exercise of that discretion, the Court will normally have regard to at least the following matters:
(1)the circumstances in which the springing order came to be made;
(2)the reason for non-compliance with the springing order;
(3)the prejudice to the defaulting party if the time were not extended; and
(4)the prejudice to the other party if the time were extended.
It will also normally be a relevant consideration whether or not the defaulting party has a reasonably arguable case on the merits, there being no point in resuscitating a case that is devoid of merit. However, the fact that a party has an apparently meritorious case cannot be permitted effectively to insulate it from the consequences of a failure to comply with a peremptory order of the Court[.] (citations omitted)
In our view, it is not in the interests of justice to grant an extension of time to comply with the springing order in the present case, having regard to the following matters.
First, the springing order was made after an egregious delay of over 14 months since the appeal notice was filed. The appellant has been given several opportunities to file an appellant's case but has not done so.
Second, there has been no adequate explanation for the failure to file and serve an appellant's case in compliance with the springing order. The appellant's statements about his medical condition are not supported by any medical evidence. We note that, by email sent on 19 July 2022, the appellant provided the Court of Appeal office with a report of a physician dated 19 July 2022 confirming that the appellant suffered an acute stroke in May 2021. However, that report, which is not annexed to an affidavit, says nothing about the appellant's current capacity to prepare an appellant's case. Even accepting that the appellant may suffer from some kind of impairment, the period of over 14 months since the appeal was instituted appears to us to be a reasonable opportunity for the appellant to have prepared an appellant's case.
Thirdly, the material before this court provides no basis for apprehending that the appellant will be in a position to file and serve an appellant's case within any reasonable period if an extension is granted. He has not proposed any specific time by which an appellant's case will be filed nor has he provided evidence of a specific date by which he will be in a position to do so.
Fourthly, the material provided by the appellant to date does not identify any reasonably arguable ground on which the orders of the Tribunal might be set aside. Nor are we able to perceive any such ground. We will assume (without deciding) there might be some room for debate as to correctness of the Tribunal's construction and application of s 6.82 of the Act. However, there does not appear to us to be any reason to doubt the correctness of the second alternative, and independent, basis for the Tribunal's conclusion that the primary proceeding was misconceived (referred to at [11] - [12] above).
Fifthly, there is some prejudice to the respondent, which has incurred costs in responding to the appellant's failures to comply with court orders.
In our view, in these circumstances there was no proper basis for us to provide an extension of the time for the appellant to comply with the springing order made on 27 May 2022. It was therefore appropriate to dismiss the Application and make an order confirming that the appeal was dismissed pursuant to that springing order.
For these reasons, at the hearing on 21 July 2022, we made the orders set out at [1] above.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EM
Associate to the Honourable Justice Mitchell
22 JULY 2022
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