Giurina v Greater Geelong City Council
[2021] VSCA 318
•18 November 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCI 2021 0044
| ERMANNO GIURINA AS EXECUTOR OF THE ESTATE OF C NACINOVICH | Applicant |
| v | |
| GREATER GEELONG CITY COUNCIL | First Respondent |
| and | |
| BUILDING APPEALS BOARD | Second Respondent |
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| JUDGES: | KENNEDY and WALKER JJA and MACAULAY AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 5 November 2021 |
| DATE OF JUDGMENT: | 18 November 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 318 |
| JUDGMENT APPEALED FROM: | [2021] VSC 103 (Whelan JA) |
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ADMINISTRATIVE LAW – Judicial review – Application for leave to appeal - Review of Building Appeals Board decision to refuse to cancel emergency order – Review of additional emergency order decision of municipal building surveyor – Whether judge erred in finding emergency orders were confined to dangers arising out of condition of buildings – Effect of failure to properly serve emergency order – Leave to appeal refused – Building Act 1993 ss 102, 105, 105B, 142, and 236 – Building Regulations 2018 regs 177 and 178.
PRACTICE AND PROCEDURE – Application by applicant executor to represent himself in separate capacity as lawyer – Applicant already represents estate – Application misconceived.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person | |
| For the First Respondent | Mr S P Woolley | Harwood Andrews |
KENNEDY JA
WALKER JA
MACAULAY AJA:
The applicant, Ermanno Giurina, is the executor of an estate whose assets include a property at 120 Elizabeth Street, Geelong West (‘the Property’). He is also admitted as an Australian lawyer, but does not hold a practising certificate.
On 12 August 2019, the municipal building surveyor of the first respondent, Greater Geelong City Council (‘the Council’), made, or purported to make, an emergency order under s 102 of the Building Act 1993 (‘the Act’) concerning the Property (‘the first Emergency Order’). The surveyor refused a request by the applicant to cancel that order, and the applicant appealed that refusal to the second respondent, the Building Appeals Board (‘the Board’), under s 142 of the Act. The Board rejected that appeal.
The first Emergency Order required the applicant to cause the Property to be inspected by the municipal building surveyor and others. After the Board rejected the applicant’s appeal, an inspection was carried out and a second emergency order was then made, or purportedly made, by the municipal building surveyor on 9 September 2019 (‘the second Emergency Order’). That second Emergency Order required the owner of the Property to carry out demolition and other work.
The applicant issued a judicial review proceeding under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’). Amongst other things, he sought an order setting aside the Board’s decision concerning the first Emergency Order, an order setting aside the second Emergency Order, and an order declaring that the second Emergency Order is null and void.
A judge dismissed the judicial review proceeding, with costs.[1] The applicant seeks leave to appeal that decision. For reasons expressed below, we consider that the judge was correct, that none of the proposed grounds have any prospect of success, and that leave to appeal should be refused.
[1]Giurina v Greater Geelong City Council [2021] VSC 103 (‘Reasons’).
Background
The applicant was granted probate in relation to the estate of Carolina Nacinovich (also known as Lina Nacinovich) in 2002, and is the beneficiary to whom the Property was left in the will. The Property was last used as a residence in 2003 or 2004. No one has stayed at the Property since it was bordered up in ‘around about 2006/2008’ (according to the applicant).
Issues between the applicant and the Council relating to the Property began in October 2003. Over a number of years, the Council has received complaints concerning the dilapidated condition of structures on the Property, which had (prior to the events concerning this application) already been the subject of previous orders under the Act.
On 4 June 2019, the applicant arrived at the Property to find that temporary cyclone fencing had been erected around its perimeter. He made telephone enquiries which resulted in the municipal building surveyor (‘Mr Nigido’), and two other officers of the Council attending the Property, who granted the applicant entry by use of a spanner. A meeting then took place between the applicant, Mr Nigido, and the two other officers. The applicant deposed that the men ‘spoke in a huddle’ inside the Property near the front entrance for about 20 to 30 minutes, and that the matters discussed were ‘off the record’. The applicant said that he never gave any consent to an ‘inspection’ of the Property. In Mr Nigido’s evidence before the Board, he deposed that the conversation ‘generally related to the condition of the Property’, and that during the discussion he identified the concerns that he had about ‘risk to property or life’. After the discussion finished, the three men gave the applicant their contact details, and left the Property.
On 12 August 2019, Mr Nigido made the first Emergency Order which required the applicant to cause the Property to be inspected by 5.00 pm on Monday, 26 August 2019. Because the challenge made by the applicant requires attention to the precise terms of that order, a copy of the first Emergency Order is set out, in full, at Annexure A of these reasons.
By an email of 19 August 2019, the applicant advised Mr Nigido that he had been served with the first Emergency Order. The applicant asserted that the order was invalid, and purported to ‘require’ Mr Nigido to cancel it. Mr Nigido did not cancel the first Emergency Order. His response to the applicant included reference to the asbestos debris scattered over the land which ‘was shown to you on 4 June 2019 as we walked around the [Property] together.’ Mr Nigido also requested a date and time for the inspection required by the order.
The applicant appealed Mr Nigido’s refusal to cancel the first Emergency Order to the Board.
Before the Board, the applicant submitted that the first Emergency Order was invalid for a number of reasons. Relevantly to this application, the applicant alleged (in a supplementary submission delivered after the hearing) that the first Emergency Order related to land, whereas under s 102(b) of the Act, an emergency order could only be made in relation to land ‘on which building work is being or is proposed to be carried out.’ Given that no building work was being, or proposed to be, carried out on the Property, it followed that the first Emergency Order was invalid.
In an affidavit of 28 August 2019, Mr Nigido deposed that the Property was a danger to life or property given its condition. In particular, he identified defects in sixteen categories, concerning the ‘front entry and porch area’, the ‘front fence’, the ‘rear outbuilding’, and the ‘main dwelling’. Insofar as the outbuilding was concerned he deposed:
The outbuilding is clad in asbestos cement sheeting which is severely perishing and breaking up.
A large quantity of broken asbestos pieces are scattered over the land and concrete paving. …
…
The condition is unacceptable for the public, including the maintenance person who mows the property lawns. It is likely they will be exposed to asbestos when running lawn mower machine over scattered pieces can cause it to become air borne.
The Board conducted a ‘fast track’ appeal on 29 August 2019, and, on 6 September 2019, affirmed the decision of Mr Nigido to refuse to cancel the first Emergency Order.
The Board noted that its role was to stand in the shoes of the municipal building surveyor and determine, for itself, whether it was appropriate to cancel the first Emergency Order. It recorded that the applicant claimed that the order was made in error, and that the circumstances giving rise to the making of the order had changed (as provided for in s 105B, set out, below).
Prior to resolving the legal disputes in the case, the Board set out the following findings of fact:
(a) the cyclone fence surrounded the premises before the [first Emergency Order] was made;
(b) on the balance of probabilities, the debris on the ground was from the shed;
(c) there was a risk that the cement sheeting was in the grass, or could be blown onto the grass, and then cut and dispersed by the mowing of the land;
(d) there was a risk that the building could collapse on people who entered the land;
(e) there was an inspection conducted by the council officers before the [first Emergency Order] was made, the inspection included the taking of photographs and the making of observations; and
(f)the [municipal building surveyor] was satisfied, prior to the making of the [first Emergency Order], that ‘the order [was] necessary because of a danger to life or property arising out of the condition … of … a building’.
The Board next rejected the applicant’s arguments that the order was made in error because there was a failure to conduct a formal inspection prior to the making of the first Emergency Order.
Relevantly to this application, the Board also rejected the applicant’s submission that the first Emergency Order was issued in error because it was not confined to danger arising out of the condition of a building (where the Property was not ‘land on which building work is being or is being proposed to be carried out’). It stated:
23. The Board rejects this argument on the basis that:
(a) section 102 enables an emergency order to be made ‘if the municipal building surveyor is of the opinion that the order is necessary because of a danger to life or property arising out of the condition … of … a building’ — the order can be granted whether or not building work is occurring or proposed to occur at the premises;
(b) the definition of a ‘building’, for the purposes of the Act, ‘includes … any part of a building or structure’;
(c) for the purposes of an emergency order, the meaning of building, would include the house, shed, fence and debris that derived from the building, such as sheeting that appears to have come from the shed (building at the Subject Land);
(d) the Order was addressed to the building:
(i) the Order was ‘FOR’ the ‘dwelling’, ‘shed’ and ‘front fence’; and
(ii) the reference to ‘cement sheet’ on the land, in clause 3.1.4, was a reference to what was considered to be part of a building (ie debris that had apparently come from the shed).
24.Further, even if, contrary to the above conclusions of the Board, the cement sheet on the ground was not, for the purposes of section 102, a building, the cement sheet is still evidence of a risk that is posed by the shed, and the examination of the debris would provide information regarding the risk that is posed by the shed.
The Board went on to reject a submission that circumstances had changed since the making of the first Emergency Order, and also rejected the applicant’s request for a stay.
Subsequent to the decision of the Board, Mr Nigido undertook an inspection of the Property. He deposed to what occurred on and after that inspection as follows:
On 9 September 2019, pursuant to the [Board’s] orders, I caused an inspection of the Property to be conducted.
On that day, I attended the Property with Michael Burge (Building Inspector), Dale Aston (Senior Building Surveyor) and Tony Alsop (Engineer) to conduct an inspection of the Property.
On 9 September 2019, as a result of the inspection conducted on the same day, I caused a further Emergency Order [number specified] to be issued in respect to the Property.
The order referred to by Mr Nigido bears the date of 9 September 2019, and is the second Emergency Order, the subject of this proceeding. The order requires that the owner of the Property ‘[i]mmediately on 9 September 2019’ carry out demolition and other work. The terms of the second Emergency Order are fully set out at Annexure B of these reasons.
The evidence of Mr Burge (the process server engaged by the municipal building surveyor) was that he attended at the applicant’s residence at 7.15 pm on 9 September 2019. After knocking loudly and receiving no answer, Mr Burge placed an envelope containing a copy of the second Emergency Order into a faded red tin letterbox on the right side of the driveway.
On 10 September 2019, the applicant contacted the Supreme Court Registry to seek an urgent injunction preventing the Council from undertaking the inspection which was the subject of the first Emergency Order (although the inspection had already in fact taken place on 9 September 2019).
The applicant served the originating motion commencing the proceeding, by email on 25 September 2019. The Council’s solicitors replied to the applicant by email on 30 September 2019, advising that the application was futile, as the inspection had already occurred. This email also referred to the second Emergency Order which had been issued, and which ‘remains live’.
The applicant swears that the second Emergency Order was never served on him personally, and that he knew nothing of it until he received the Council’s solicitor’s email of 30 September 2019. The applicant also says that he attended the Property on 27 September 2019, and discovered that demolition work had been carried out. At this time, he says that he also found a notice taped near the front door entitled ‘Notice of Inspection – Emergency’ (‘the Notice of Inspection’). The Notice of Inspection was addressed to the applicant, and referred to an inspection scheduled to occur on 9 September 2019. He said that at no time had he been contacted prior to the demolition work being undertaken.
The applicant did not seek a merits review of the second Emergency Order (by requesting a cancellation and then proceeding to the Board if necessary[2]). Rather, he sought, and obtained, leave to amend his originating motion to include a challenge to this order. Thus, in his amended originating motion, as well as seeking orders challenging the first Emergency Order (the subject of the Board’s decision), the applicant also sought the following relief in relation to the second Emergency Order:
5. An order setting aside [the Second Emergency Order] as it relies on the validity of the [First Emergency Order] and contains a service provision on its face which at law does not apply to it nor was it served on the [applicant] prior to the works, as referred to in the [second Emergency Order], being carried out by the Municipal Building Surveyor of the [Council] and was otherwise not authorised to be issued by the [Council].
6. An order in addition to or in the alternative declaring that the [second Emergency Order] is null and void ab initio as it relies on the validity of the [first Emergency Order] and contains a service provision on its face which at law does not apply to it nor was it served on the [applicant] prior to the works, as referred to in the [second Emergency Order], being carried out by the Municipal Building Surveyor of the [Council] and was otherwise not authorised to be issued by the [Council].[3]
[2]See Building Act 1993 ss 105B, 142(3)(a).
[3]Paragraph 6 of the relief sought mirrored the terms of ground 6 relied upon in the amended originating motion: ‘The [second Emergency Order] is null and void ab initio as it relies on the validity of the [first Emergency Order] and contains a service provision on its face which at law does not apply to it nor was it served on the [applicant] prior to the works, as referred to in the [second Emergency Order], being carried out by the Municipal Building Surveyor of the [Council] and was otherwise not authorised to be issued by the [Council].’
The applicant also raised six grounds in his amended originating motion, although only two remain relevant on this application (ground 1[4] and ground 6[5]). In particular, no complaint was pursued in this Court to the effect that there was some error in making the orders on the basis that they were not necessary.
[4]Ground 1 relied upon in the amended originating motion was that ‘the [Board] erred in affirming the decision of the [Council] of 19 August 2019 refusing to cancel the [first Emergency Order] as the [Council] was not authorised to issue the [first Emergency Order].’
[5]Above, footnote 3.
The judge heard the matter on 25 February 2021. His Honour did not consider that the applicant lacked standing in respect of either of the emergency orders.[6] Nor did he consider that relief should be denied because of the applicant’s right to appeal the second Emergency Order under the Act (which had been compromised, ‘if not rendered nugatory’, by the fact that the work had already been carried out[7]). However, his Honour found that the applicant had failed to substantiate any of the grounds relied upon, such that the amended originating motion was dismissed by orders made on 11 March 2021. The applicant was also ordered to pay the respondents’ costs.
[6]Reasons [106]–[107].
[7]Ibid [106].
The applicant now seeks leave to appeal the judge’s orders. The proposed grounds for doing so fall into three categories:
(a) grounds which raise the complaint that the scope of both emergency orders wrongly extended to land (proposed grounds 1, 2, 3 and 6);
(b) grounds which challenge the validity of the second Emergency Order, on the basis of service defects (proposed grounds 4 and 5); and
(c) a ground which alleges that the judge erred at law in refusing the applicant leave ‘to represent the applicant’ (proposed ground 7).
Proposed ground 7 is somewhat unusual, and arises because the applicant sought leave, below, to appear as a ‘legal representative’ of the estate of Ms Nacinovich by reason of his admission as an Australian lawyer. The judge did not make an order in these terms, but said that he would hear the applicant ‘as the plaintiff’. The applicant challenges this ‘decision’, and also brought a separate preliminary application ‘to represent the Applicant’ before this Court. That application will be dealt with as part of the consideration of proposed ground 7, below.
The applicant also issued a separate application for a stay of the judge’s orders made on 11 March 2021, until the final determination of the application for leave to appeal. However, the Council provided an undertaking to the Court that it would not pursue the enforcement of any costs order, until such time as the appeal had been determined. Despite this, the applicant continued to seek a stay to prevent the Costs Court from taking steps in progressing the taxation of costs.[8]
[8]The applicant was advised, by letter dated 22 October 2021 from the Costs Court, of the Council’s estimated costs for which an order on taxation would be likely to be made, and was given 21 days to file a notice of objection to the estimate. If he filed a notice of objection to the estimate, the matter would be listed for taxation before the Taxing Officer responsible for the assessment.
At the hearing of this matter we refused the application for a stay. We considered that it was neither necessary nor appropriate to grant the application. Apart from the weak prospects of a successful appeal (as we explain in these reasons), we considered that the lower risk of injustice lay in permitting the taxation process to continue, subject to the limitation on any enforcement by reason of the undertaking.
The applicant presented as well able to address the Court. As the judge observed, his written and oral submissions revealed considerable attention to detail, and the application of his legal training. He was also granted leave to adduce further material before this Court.[9]
[9]The applicant adduced three colour photographs of the Property (two of which had been included at F371 and F372 of the application book in black and white). The third colour photograph was taken on 9 September 2021. He also relied upon an affidavit sworn 13 August 2021, which had not been accepted by filing; two sets of amendments to the Building Regulations 2018, delivered to the Court by email dated 1 November 2021 together with a further written submission explaining their relevance; and a set of transcript references delivered to the Court after the hearing, by email on 5 November 2021. This material was relied upon in addition to the remaining contents of the application book.
The Council was represented by counsel, but the Board did not appear, and filed a notice of intention ‘not to respond or contest’.
Before consideration of the three groups of proposed grounds, it is necessary to now turn to the relevant legal framework.
Legal framework
The two emergency orders which are the subject of this application were each made, or purportedly made, under s 102 of the Act.
Section 102 provides as follows:
A municipal building surveyor may make an emergency order under this Division if the municipal building surveyor is of the opinion that the order is necessary because of a danger to life or property arising out of the condition or use or proposed use of—
(a) a building; or
(b) the land on which building work is being or is proposed to be carried out; or
(c)a place of public entertainment.
Thus, as emphasized by the applicant, an emergency order may only be made in relation to land (under s 102(b)), if the surveyor is of the opinion that the order is necessary because of a danger arising out of the condition or use or proposed use of land ‘on which building work is being or is proposed to be carried out’.
Section 104(1)(b) of the Act provides that an emergency order may require the owner or occupier to carry out building work, or other work necessary to make the building safe. Section 104(2) provides that an emergency order may require the owner to cause an inspection to be conducted by a specified person within a specified time.
Section 3 of the Act defines the term ‘building’ as including a ‘structure … and any part of a building or structure’.
Section 105(1) of the Act provides that an emergency order must be in writing and must contain any matters required by the regulations.
Regulation 177 of the Building Regulations 2018 (‘the Regulations’) provides:
For the purposes of section 105(1) of the Act, an emergency order made under section 102 of the Act must include—
(a) the location of the building, land or place of public entertainment to which the order applies; and
(b) the name of the owner, occupier or builder to whom or which the order is directed; and
(c) the reason or reasons why the order was made; and
(d) the period within which the order must be complied with; and
(e) the date of any inspection of the building, land or place of public entertainment carried out by the municipal building surveyor or relied on by the municipal building surveyor when deciding whether to make the order (if applicable); and
(f) the name and qualifications of any person other than the municipal building surveyor who carries out an inspection referred to in paragraph (e); and
(g) the date of making of the order; and
(h) the name and address of the municipal building surveyor.
Regulation 178 provides that an emergency order made under s 102 of the Act ‘may be in the form of Form 10’.
Section 105(2) provides that the municipal building surveyor must cause an emergency order to be served on the person to whom it is directed without delay after it is made. Section 236 of the Act makes provision for how documents may be served. Documents may be served personally or by post. They may be left at the person’s usual residence with a person apparently not less than 16 years of age and apparently residing or employed there.
As the judge observed,[10] what Mr Burge did on the evening of 9 September 2019 (leaving a copy of the order in the letterbox) is not a mode of service provided for by s 236.
[10]Reasons [58].
Section 105A(3) of the Act provides that an emergency order remains in force until it is complied with or cancelled. Section 105B provides that a municipal building surveyor may cancel an emergency order ‘if the order was made in error or the circumstances giving rise to the making of the order have changed’.
Section 142(3) of the Act relevantly provides that the owner or occupier of a building or land may appeal to the Board against a refusal of the municipal building surveyor to cancel an emergency order, or against a failure to cancel an order within a reasonable time.
Section 149(1) of the Act provides that the Board must consider and determine any such appeal and its determination may, amongst other things, affirm, quash, vary or set aside the decision. Section 149(2) provides that the Board has all the powers of the decision-maker in relation to the decision under appeal.
Section 118 of the Act relevantly provides that a person to whom an emergency order is directed must comply with that order, and makes provision for penalties if there is non-compliance. Section 121 of the Act relevantly provides that where an owner fails to carry out work as required by an emergency order, the municipal building surveyor may cause that work to be carried out; and s 123 provides for the recovery of the costs of that work from the owner.
In this case, the Council has not asked the applicant to pay for the costs of the works that the Council undertook, and it gave an undertaking to the Court that it will not ask the applicant to pay for those costs.
Apart from the provisions of the Act, it is also important to highlight that the current application concerns an application for judicial review under Order 56 of the Rules. The judge correctly recited the principles that operate in respect of such an application, and no challenge was made to his Honour’s summary of those principles.[11] The applicant needed to show that the relevant decision involved ‘jurisdictional error’, or was affected by a non-jurisdictional error of law that appears on the record. Critically, the Court does not reconsider the decision for itself, or engage with the merits of the decision.
Whether emergency orders were unauthorised because they extended to danger arising out of the condition of land
[11]Ibid [98]–[101].
Proposed grounds 1, 2, 3, and 6 are:
1.His Honour erred at law in concluding that the [first Emergency Order] was an order confined to danger to life or property arising out of the condition or use of three specified buildings.
2.The [first Emergency Order] could not authorise an inspection of buildings because its scope was confined to land.
3.The [second Emergency Order] and Notice of Inspection were invalid because they relied on the erroneous orders made by the [Board] on 6 September 2019.
6.The [second Emergency Order] was invalid because it applied to land where building work was not being or proposed to be carried out and therefore was not authorised to be made by the [Council].
Proposed ground 1
Judge’s reasons
The judge noted that the applicant relied on references made to the ‘land’ in the first Emergency Order, including:
·the fact that it was to be served on the ‘owner of the land’ (under the heading ‘FROM:’);
·the reference to the ‘location of the land’ to which the order applies;
·that the order requires inspection not just of the structures but also of the land; and
·that the reasons include a sub-paragraph addressing the land.[12]
[12]Ibid [126].
Notwithstanding these references, his Honour found that the Board’s analysis of this issue was correct, stating as follows:
128The land is not referred to in the section of the order next to the word ‘FOR’. It is differentiated from the defined italicised structures both by its absence from the section next to the word ‘FOR’ and by the fact that the references to the land are in normal font.
129The description of the ‘Shed’ next to the word ‘FOR’, is as follows: ‘Cement sheet-clad shed structures located along the eastern allotment boundary’. The reference to the land in the reasons section of the order reads: ‘The land contains broken material which is scattered over the land and which resembles asbestos cement sheet.’ … [He then extracts a passage from the affidavit of Mr Nigido cited above.[13]]
130The Board found as a fact ‘on the balance of probabilities’ that ‘the debris on the ground was from the shed’, and also found that ‘there was a risk that the cement sheeting was in the grass, or could be blown onto the grass, and then cut and dispersed by the mowing of the land’.
131The Board’s relevant conclusion was that the issue concerning the land which was addressed in the first Emergency Order was a danger to life or property arising out of the condition of a building. It reached this conclusion because the definition of ‘building’ includes any part of the building, which meant that debris derived from a building was within the ambit of that definition. Mr Giurina adopted the same construction of the definition in his submissions on this application. He submitted that there was no reason to refer to the land in the order if the concern was debris from the shed as the definition would mean that that debris was included in the term ‘Shed’.
132The Board concluded that the critical considerations were the references to the three structures next to the word ‘FOR’, and the explanation for the reference to the land which was set out in the reasons section of the order, which the Board found related to debris from the Shed.
133Mr Giurina’s contentions on this issue do have substance, but in my opinion the conclusion reached by the Board is the correct one. Reading the first Emergency Order as a whole and in the context, it seems to me that it is an order confined to a danger to life or property arising out of the condition or use of the three specified buildings. Parts of one of those buildings, the Shed, are creating danger on the land but this is a danger which, in the words of s 102, is ‘arising out of the condition’ of the Shed, as the Board found.
134I do not consider that Mr Giurina has established that the Board made a relevant error of law or a jurisdictional error in relation to the order’s references to the land.
[13]Above, [13].
Applicant’s submissions
The applicant made extensive written and oral submissions. His critical submissions include the following.
· The information prescribed by Form 10 (found at sch 4 to the Regulations) is exhaustive of what is to be included, if that form is used. Given that Form 10 had been chosen in this case, it was not to be altered, or amended, to include matters beyond what that form contains. Rather, any change to the form was to be effected by the Governor in Council (as he explained in his further written submission of 1 November 2021). He cited Ousley v The Queen (‘Ousley’)[14] in support of this proposition.
[14](1997) 192 CLR 69; [1997] HCA 49.
· Given that the Council had selected ‘LAND’ in the capitalised, bold, ‘LOCATION’ heading contained in Form 10, rather than choosing the ‘BUILDING’ heading, this selection defines the scope of the order, which cannot be varied. The Council should have been aware of the difference between the headings, having regard to previous orders made.
· The information next to the ‘FOR’ heading should be disregarded as ‘mere surplusage’ with no legal effect, since it is not provided for by prescribed Form 10 (which, again, is exhaustive of the matters to be included).
· It is also not appropriate to go beyond the first Emergency Order itself to aid construction as the judge did (when he considered the terms of Mr Nigido’s affidavit).
· Even if it was appropriate to look beyond the fact that land was selected at the ‘LOCATION’ heading, there are other references to ‘land’ in the order.
· Having regard to certain photographs, and the Notice of Inspection,[15] the reference to broken material contained in sub-para 3.1.4 is not confined to material from the shed.
[15]This is presumably if the applicant was wrong about whether extrinsic materials may be considered.
In relation to the penultimate point, the applicant highlights a number of references to ‘land’ that he had also raised before the judge. In oral submissions, he highlighted the order section at para 1.1 which included reference to ‘land’. He submitted that this was critical, because it provided the details of what the applicant needed to do to comply with the order, and thereby avoid committing a criminal offence. The order also enabled entry without a warrant (negating the law of trespass). The applicant submitted that (contrary to the finding of the judge) the italicised words do not confine the order to the building structures which are italicised. Italicisation simply indicates which three structures the Council wanted to inspect.
The applicant also highlights sub-para 3.1.4 in the ‘Reasons’ section, which refers to ‘broken material which is scattered over the land and which resembles asbestos cement sheet’. He submits that there is nothing in the wording of that paragraph to confine the inspection to debris from the shed, and that this was not his conclusion when he first read the order. He submits that the word ‘resembles’ indicates that the Council did not know what the material was. He also maintains that any reference to debris from the shed would have already been included within sub-para 3.1.3, as it was part of the shed.
In relation to the final bullet point, above, in oral submissions the applicant invited the Court to examine the Notice of Inspection, and various photographs, including a photograph taken on 9 September 2021 which showed no debris. He claimed that the Notice of Inspection made clear that Mr Nigido wanted to inspect the land, and that he did actually inspect the whole land. He also invited the Court to find that the photographs were inconsistent with there being fragments coming off the shed, and, among other things, suggested that they demonstrated that third parties were leaving rubbish on the Property. He further highlighted that the second Emergency Order made no reference to land in the ‘Reasons’ section, which confirmed that the first Emergency Order was related to land (and which led to an inspection of all of the land).
Analysis
The starting point in the analysis of proposed ground 1 is the legislation. Section 105(1) of the Act provides that an emergency order must be in writing, and must contain any matters required by the Regulations. Regulation 177, in turn provides that, for the purposes of s 105(1), an emergency order made under s 102 must include various matters. Regulation 178 provides that an emergency order made under s 102 ‘may be in the form of Form 10’.
There is no suggestion that the first Emergency Order does not include the matters prescribed by reg 177. Rather, the essence of the applicant’s submission is that, having chosen to use Form 10, there is some prohibition on including matters which are not specifically mentioned in that form, which matters must thereby be disregarded in ascertaining the scope of the order.
However, there is nothing in the legislation which suggests that the matters specified in Form 10 are to be exhaustive of the matters which may be included in an emergency order. An emergency order can still be ‘in the form of’ Form 10, even if further words are added (as in this case). Moreover, provided that an emergency order contains the matters mandated by reg 177, there is nothing in the legislation which requires that an emergency order be in the form of Form 10 at all.
The decision in Ousley[16] also does not assist the applicant because it is concerned with whether there was a statutory requirement to fully disclose the jurisdictional grounds relied upon in issuing a warrant (which there was not). In particular, the passage which the applicant read in oral submissions focused on the fact that a legislative statement about what a warrant ‘must contain’ should be regarded as exhaustive.[17] The case says nothing about whether other matters can be included and considered in construing the meaning of an order, when the relevant statute does not require that such matters be so included.
[16](1997) 192 CLR 69; [1997] HCA 49.
[17]Ibid 111.
There is therefore no reason to ignore the matters specified next to the word ‘FOR’, which suggest, as the judge found, that the first Emergency Order is directed to buildings, rather than land. Nor is there any reason to read the order solely by reference to what was described in the ‘LOCATION’ heading, ignoring all subsequent matters. The reference to the ‘location of the land’ (at 120 Elizabeth Street, Geelong West) is also readily explicable given that part of the process of identification of the buildings involves reference to the address at which those buildings are ‘located’. As the Council submitted, a person cannot fully and thoroughly inspect a building unless he or she goes onto the land where the building is to be found.
It is true that the first Emergency Order contains other references to ‘land’, which, as the applicant highlighted, include a reference to land at para 1.1 of the order. However, as the judge observed, the order must be read as a whole, having regard to the full terms of paras 1.1 and 3.1, as well as to the fact that the structures in those paragraphs are italicised, while the references to land are in normal font. There is no reason to ignore such italicisation in construing the true scope of the order.
Insofar as there are references to asbestos on the land (at paras 1.1 and 3.1.4), the judge correctly cited the factual findings of the Board, having regard to the evidence of Mr Nigido. The judge was engaged in a judicial review of the Board’s decision, and was not engaged in fact finding for himself. He was therefore both entitled, and required, to have regard to the findings made by the Board which have not been the subject of direct challenge.[18] These findings included the critical finding that the debris on the ground was from the shed. In the light of such a finding, and the definition of ‘building’,[19] the judge was entitled to find, as he did, that any reference to material located on ‘the land’, (at paras 1.1, and 3.1.4) was a danger ‘arising out of the condition’ of the building (being the shed) for the purposes of s 102.
[18]Although the applicant criticised the findings in oral submission before this Court (suggesting the findings were unnecessary and that the Board did not have the advantage of the Notice of Inspection, or the photographs), his amended originating motion did not contain any grounds which sought to suggest that findings of fact made by the Board were not open to it (save as concerns the finding that ‘there was an inspection conducted’).
[19]The definition at s 3(1) of the Act includes ‘any part of a building or structure’.
The applicant’s reference to photographs (including a photograph taken well after the making of the order) also did not assist him. It is not appropriate for this Court to revisit findings made by the Board on the basis of selective photographs. The Notice of Inspection also relates to an inspection which post-dated the making of the first Emergency Order, and thus cannot assist with the construction of that order.
Overall, then, we agree with the judge’s finding that, reading the first Emergency Order as a whole, and in context, it is an order confined to a danger to life or property arising out of the condition or use of the three specified buildings. We are not satisfied that the judge erred in finding that the applicant had failed to establish that the Board made a relevant error of law or jurisdictional error insofar as the order contained references to land.
Proposed ground 2
Proposed ground 2 appears to be a sub-set of proposed ground 1. Thus, the applicant submits that, given the ‘LAND’ option is selected under the ‘LOCATION’ heading of Form 10, it follows that the first Emergency Order only applies to the land. In oral submissions the applicant emphasized that, given that the form cannot be altered (save by action of Governor in Council), then the scope of the first Emergency Order is necessarily restricted to land.
This proposed ground is without merit. There is nothing in the legislation to suggest that the scope of the order is exclusively defined by reference to the matters stated immediately next to the ‘LOCATION’ heading, ignoring all other matters. For reasons given in respect of proposed ground 1, the scope of the first Emergency Order is relevantly confined to a danger arising out of the condition of the buildings, and is certainly not ‘confined to land’, as alleged by proposed ground 2.
Proposed ground 6
Proposed ground 6 concerns the second Emergency Order.
Judge’s reasons
His Honour noted that the complaints about the second Emergency Order raised similar complaints which were raised in relation to the first Emergency Order, and stated:
136… Relevantly, whilst the wording is a little different, the same considerations apply. Again, there are references to the land, but in the second Emergency Order (like the first) the ‘FOR’ section, which here reads ‘FOR BUILDING/STRUCTURES’ specifies only the relevant structures, being the Front Porch, Chimney, Shed Outbuilding and Front Fence. The order itself refers to the land but only by reference to a requirement to remove ‘all asbestos cement sheet fragments’. There is no references to the land in the reasons section of the second Emergency Order.
137For the reasons already explained in relation to the first Emergency Order, I consider that the second Emergency Order is an order which the municipal building surveyor considered to be necessary because of danger to life or property arising out of the condition of a building.
Applicant’s submissions
The applicant submits that his Honour again erred because the ‘FOR’ heading in the second Emergency Order does not determine the subject matter and scope of the order. Rather, the ‘LOCATION’ heading again unambiguously states that it applies to land.
The applicant submits that, even if one were to look at other sections of the second Emergency Order, it is clear that it also applies to land. In particular, at sub-para 1.1.5, the order requires the removal of all asbestos cement sheet fragments ‘from the land’, without confining it to fragments from a particular building. If the order was to be confined to the shed, there would not have been any need for sub-para 1.1.5 given that debris from the shed is part of the shed (and therefore within the definition of ‘building’). In oral submissions, the applicant also emphasized that there was nothing in the second Emergency Order which indicates that there is any debris from the shed causing danger to the land, rather than debris from other sources.
Analysis
This proposed ground is without merit for reasons given under proposed ground 1.
Insofar as sub-para 1.1.5 contains an order to ‘remove all asbestos cement sheet fragments from the land’, it should be read in context, with the rest of the order. This includes the fact that, as the judge observed, the ‘FOR’ heading is directed expressly to ‘buildings/structures’, and that the ‘shed outbuilding’ sub-heading refers to ‘asbestos cement sheet structure with dislodged roof and wall cladding’. As highlighted by the judge, the ‘Reasons’ section then exclusively refers to damage arising out of ‘the condition of the building’, with no reference to the land at all. Having regard to these features, the asbestos cement sheet fragments are clearly referable to the shed.
Proposed ground 3
This proposed ground presupposes that the Board erred in its decision of 6 September 2019. In oral submissions, the applicant also suggested that this proposed ground flowed as a direct consequence of the invalidity of the first Emergency Order.
Given that the applicant has not shown that the Board has made any error, nor that the first Emergency Order was invalid, it follows that this proposed ground cannot succeed.
Grounds concerning service
Proposed grounds 4 and 5 are:
4.The [second Emergency Order] was invalid because it contained a service provision on its face (namely s 236(4A) of the Building Act 1993) which did not apply to it.
5.The failure to properly serve the [second Emergency Order] means that at law the issuing of the [second Emergency Order] itself was made null and void and rendered the [second Emergency Order] invalid and all work undertaken by the [Council] pursuant to the [second Emergency Order] was unlawful.
Judge’s reasons
His Honour noted the concession that the second Emergency Order was not served in any of the ways provided for by s 236 of the Act, but that the order came to the applicant’s attention on or by 30 September 2019. He stated:
140At the risk of stating the obvious, an order cannot be served before it is made. A failure to serve an order may result in consequences as to compliance or cost recovery, but a failure to serve an order otherwise validly made cannot render the order null and void.
His Honour considered various authorities relied on by the applicant, (including Craig v Kanssen[20] and Cameron v Cole[21]) and distinguished each of them given that they concerned the failure to serve an initiating process, and the failure to give notice of a hearing, each taking place prior to the making of the relevant order. Another case relied upon, Re Roberts,[22] concerned service of a bankruptcy notice, and did not seem to relevantly bear on any of the issues raised by the applicant’s amended originating motion.
[20][1943] KB 256.
[21](1944) 68 CLR 571; [1944] HCA 5.
[22][1989] FCA 484.
His Honour concluded:
142… There is no initiating process prior to the second Emergency Order which was not served upon him and which thereby rendered the order irregular. The order was regularly made. It was then required to be served. The failure to serve the order (if there was such a relevant failure) might affect issues of compliance and cost recovery but it cannot render the order which was regularly made irregular.
143… The order was not made in a court proceeding in relation to which he had an entitlement to appear and be heard. It is an order which a municipal building surveyor may make once they form the requisite opinion. Mr Giurina then has a right of appeal to the Board. On Mr Giurina’s account of events, the efficacy of this right of appeal was compromised by the fact that he was unaware of the second Emergency Order until after the Council had undertaken demolition and other work itself. As I have already said, this may have consequences in terms of compliance and cost recovery but, in my opinion, it cannot render the second Emergency Order null and void.
…
145In my opinion Mr Giurina has not established that the second Emergency Order is null and void, or that any relevant error of law or jurisdictional error was made in relation to it.
Proposed ground 4
Applicant’s submissions
The applicant submits that the judge erred because he did not give any consideration to part of ground 6 in the applicant’s amended originating motion below, namely, that the second Emergency Order was invalid because it contained a service provision on its face which did not apply to it.
The applicant submits that the second Emergency Order is not in the properly completed Form 10 because it contains an incorrect service provision which does not apply. The words commencing ‘WARNING’ at the top of the order were required to be deleted, because the order is not one referred to in s 103 of the Act, as referred to in s 236(4A).
The applicant emphasizes that service without delay is a mandatory requirement of an emergency order under s 105(2). In so submitting he notes that the word ‘must’ is contained in s 105(2). He also highlights the serious nature of an emergency order, given it authorises entry onto private property, and also that any breach of that order may have criminal consequences. As service of an emergency order without delay is a mandatory requirement, reference to the method of service on the face of the emergency order must also be correct, because otherwise the person to whom the order is issued may be led to believe that a mandatory service requirement has been met (when that is not the case).
The applicant submits that this failure to delete the inapplicable service provision therefore renders the second Emergency Order invalid, especially as it relates to the core issue of the method of service (citing Wright v Queensland Police Service[23] (‘Wright’)).
[23][2002] 2 Qd R 667; [2002] QSC 46.
Analysis
The second Emergency Order does contain a notation, next to the word ‘WARNING’ at the top of the form in bold capitalised letters, that ‘this order has been served in accordance with section 236(4A) of [the Act].’ The Council accepts that this is ‘misstated’ since s 236(4A) only applies to an emergency order ‘referred to in section 103’.[24] The second Emergency Order is not made under s 103 (which applies to orders to evacuate or vacate), but rather, is made under s 102.
[24]Section 236(4A) of the Act states: ‘An emergency order referred to in section 103, a building notice referred to in section 108(1) or a building order referred to in section 111(3) or (4) may be served on a person by putting the order or notice up in a conspicuous position on the building, land or place of public entertainment to which it applies.’
The applicant ‘noted’ that the warning was wrong in law in his written submissions below,[25] but did not otherwise appear to develop the submission before the judge. Nevertheless, given that ground 6 and (proposed) orders 5 and 6 of the amended originating motion included the allegation that the second Emergency Order ‘contains a service provision on its face which at law does not apply to it,’[26] the point needed to be considered.
[25]‘Outline of submissions of Ermanno Giurina’, 22 June 2020, [101]: ‘I also note that the method of service specified at the top of the [second Emergency Order], after the word ‘Warning’, is wrong at law because s 236(4A) of [the Act] only applies to an emergency order referred to in s 103 of [the Act] not one issued under s 102 as this one was.’
[26]Above, [26].
However, the complaint is without merit. Thus, there is nothing in the legislation which requires the insertion of the correct service provision on an emergency order. More particularly, there is nothing in ss 102 or 105, or reg 177, which imposes a requirement that an emergency order must contain a correct notice as to the method of service that is adopted. This distinguishes the case from that considered in Wright,[27] where the Court found that there was non-compliance with certain provisions of legislation directed to the requirements of an application for the issue of a search warrant (that is, provisions concerning steps that were required to occur prior to the issue of the warrant). In the absence of any non-compliance with the prerequisites for issue of an emergency order, the order itself is not invalidated.
[27][2002] 2 Qd R 667; [2002] QSC 46.
We also consider that the insertion of the incorrect warning is not liable to be misleading in circumstances where the critical issue will turn on the question of whether there has been proper service. Thus, if the incorrect warning does come to the attention of an addressee of an emergency order by way of service, the contents of the warning notice will be inconsequential, given service of the order will have been effected. If, on the other hand, the warning does not come to the attention of an addressee by reason of a failure to serve, then the notice itself is incapable of misleading the recipient.
The misstatement is therefore without consequence, and does not appear to have caused actual prejudice in this case in any event.[28]
[28]The applicant said that he actually thought, on sighting the second Emergency Order, ‘well this is wrong’ and that he ‘had a question mark over that’ (in relation to the incorrect warning).
Proposed ground 5
Applicant’s submissions
The applicant submits that the judge also erred at law by concluding at para 143 of the Reasons that the failure to serve the second Emergency Order on the applicant did not render the second Emergency Order null and void. The applicant highlighted that it had been conceded that the order was not served by any way provided for by s 236(1) of the Act. He only became aware of the second Emergency Order on 30 September 2019, after the required work had already been undertaken. This failure to serve was a breach of the requirement of s 105(2) of the Act.
The applicant also submits that s 105(2) contains a mandatory requirement which was not met, with the result that the second Emergency Order is invalid. He highlighted the use of the word ‘must’ in s 105(2), and that non-compliance with an emergency order is a criminal offence, and can authorise entry onto private property (removing the laws of trespass). He was also prevented from seeking a stay of the execution of the order, and from obtaining independent advice as to whether demolition was necessary. He cites various authorities, including Project Blue Sky Inc v Australian Broadcasting Authority,[29] Hatton v Beaumont,[30] and George v Rockett,[31] in support of this proposed ground.
[29](1998) 194 CLR 355; [1998] HCA 28.
[30][1977] 2 NSWLR 211.
[31](1990) 170 CLR 104; [1990] HCA 26.
The applicant also suggests that non-compliance with s 105(2) would render anything undertaken pursuant to the second Emergency Order unlawful. This would include entry onto the Property, and the action of demolishing the buildings. When the Court raised a concern as to whether orders had been sought before the judge to invalidate acts subsequent to and/or consequential on the second Emergency Order, the applicant raised various matters in response. He suggested that he had included a submission that a declaration could be sought as part of a proceeding under Order 56. He also pointed to para 10 of the amended originating motion (which sought ‘such further or other orders as to this Honourable Court appear fit’), as well as various parts of his written submissions and the transcript of the hearing before the judge. By way of reply, he also suggested that the relief sought would assist him with claims to be made against the Council in the future for damages or restitution. It would also close down his exposure to criminal prosecution.
Analysis
It may be accepted that the second Emergency Order was not served in accordance with s 105(2). However, this does not constitute a basis for a challenge to the making of the order itself. More particularly, it does not provide a basis for challenging the formation of the requisite opinion of the municipal building surveyor necessary for the making of the emergency order. That is, the applicant’s challenge to the second Emergency Order is based on conduct that occurred after that order had been made — the failure to serve it within a reasonable time. However, for reasons given by the judge, this does not render the second Emergency Order itself null and void.
Rather, as the judge also acknowledged, the failure to serve may have consequences in relation to compliance with the order, the lawfulness of the Council’s entry onto the Property, and its undertaking of works, or costs recovery by the Council under s 123. However, the undertaking given to the Court means that no costs will be sought under s 123(1) in this case.
The amended originating motion did not challenge any actions taken after the making of the second Emergency Order. As set out above,[32] the applicant instead sought orders that the second Emergency Order be set aside (para 5), and an order declaring ‘that the [second Emergency Order] is null and void’ (para 6).[33]
[32]Above, [26].
[33]Cf the amended application for leave to appeal before this Court which seeks the following at para 8 of ‘Orders sought’: ‘An order in addition declaring that the second Emergency Order is null and void ab initio and a declaration that all work carried out by the [Council] pursuant to the second Emergency Order was unlawful’ (emphasis added).
The amended originating motion is consistent with the applicant’s written submissions. Thus, notwithstanding an extended discussion of the Court’s power to grant declaratory relief, the applicant affirmed that he sought the orders specified in his amended originating motion, including an order declaring that the second Emergency Order was null and void ab initio. His written submissions did not refer to relief directed to steps that were, or may in the future be, taken in reliance on that order. The applicant also identified the utility in seeking declaratory relief in relation to the second Emergency Order as being that it would prevent the Council from seeking to recover costs under s 123(1), and would also enable him to seek damages for unlawful entry and unlawful demolition.[34]
[34]See, in particular, ‘Outline of submissions of Ermanno Giurina’, 22 June 2020, [82], [84].
The transcript references provided also do not take the matter further for the applicant. Rather, they confirm that the applicant was seeking to obtain orders that the emergency orders were ‘unlawful’ or ‘incorrect’ so as to affect matters in the future, including as a ‘basis’ for later initiating proceedings for damages.
It is also of significance that the applicant never sought leave to further amend his amended originating motion to include orders in respect of the unlawful entry and/or unlawful demolition. This is notwithstanding that he was well able, consistent with his legal qualifications, to seek other amendments.[35]
[35]The applicant amended his originating motion below to include the challenge to the second Emergency Order. He also amended his application for leave to appeal in this Court to include proposed ground 7.
Thus, at no stage below did the applicant seek any orders directed to the steps taken after, and in reliance on, the second Emergency Order.
Although, then, there was non-compliance with the service provision contained in s 105(2), this has no effect on the orders the subject of this proceeding.
Application for leave to represent the applicant — proposed ground 7
Proposed ground 7 is:
7.His Honour erred at law in refusing Mr Giurina leave to represent the Applicant simply because Mr Giurina did not have a practising certificate.
As mentioned above, this proposed ground raises the same issue as a preliminary application made to this Court that the applicant be granted leave ‘to represent the Applicant’.
Extensive material was filed by both parties in relation to this matter, and the applicant was given an opportunity to supplement this material by way of oral submissions.
The applicant suggests that it was important for him to be granted the leave because he has two different capacities: one as an executor, and one as a lawyer. The leave is necessary to recognise his skill-set as a lawyer, with training to undertake the litigation (this was to be compared with the fact that he had no particular skill-set as an executor).
The applicant submits that he satisfies the requirements in Scotts Head Developments Pty Ltd v Pallisar Pty Ltd[36] (‘Scotts Head’), and that the judge erred because he did not consider the Scotts Head requirements. The applicant also cites the psychological principle of ‘Illeism’[37] to support the suggestion that he is a ‘third party’.
[36]Unreported, New South Wales Court of Appeal, Mahoney AP, Powell JA, O’Keefe AJA, 6 September 1994.
[37]The word is not defined in the Macquarie Dictionary, however the applicant suggested that it means ‘a person who refers to himself or herself in the third party when that person may have more than one capacity.’
Before turning to this ‘application’, and proposed ground 7, it is necessary to extract a transcript of the exchange between the applicant and the judge, below:
MR GIURINA: Your Honour, if it pleases the court I am actually the plaintiff, Ermanno Giurina, in this matter.
…
MR GIURINA: Well, um, what I had written down, the first thing I have to actually apply for leave because I’m actually an Australian lawyer and I actually first thing would want to apply for leave to actually represent the estate of Nacinovich. …
HIS HONOUR: Well, you are the plaintiff are you not?
MR GIURINA: I am, certainly am, yes.
HIS HONOUR: Well, I will hear you as the plaintiff.
MR GIURINA: Right, but my application is as - - -
HIS HONOUR: As far as I’m concerned you are self-represented.You are the plaintiff and you are representing yourself.
MR GIURINA: But I’m saying I should represent the estate as legal representative of that estate.
HIS HONOUR: No, I’m not going to do that.
MR GIURINA: Right. Okay. Because that’s the situation, I am an Australian lawyer so someone has to represent the estate.
HIS HONOUR: I’m not going to make an order that a person who doesn’t have a practicing certificate represents a party. But you are the party personally. You are the plaintiff personally and I’m certainly going to hear you in that capacity. You are the plaintiff.[38]
[38]Transcript of proceedings below, 25 February 2021, 1.7–3.3 (emphasis added).
The judge was correct when he said ‘you are the plaintiff and you are representing yourself’. He further appropriately indicated that he would ‘hear’ the applicant ‘as the plaintiff’ (which he then proceeded to do). It was otherwise unnecessary to go further. The fact that the applicant is a lawyer without a practising certificate is not to the point, since he is (already) the executor entitled to represent the estate.
The suggestion that the applicant should address the Court in two ‘capacities’ is also misconceived. The fact that the applicant might bring his legal skill-set to the executor role requires no further recognition by this Court, as he still remains the applicant executor. There is no need for any further order that he effectively ‘represent himself’. In fact, when he was asked whether he had been restricted in any way from using his skill-set as a lawyer by the absence of a formal ruling on his ‘application’, he was unable to identify any such restriction. Nor did he suggest that the judge had relevantly restricted him from using his legal skills.
The applicant’s reliance on authorities such as Scotts Head is also misconceived. Scotts Head is concerned with whether a director ought to be permitted to represent a separate entity from himself, namely a company. Such cases have no application to the present circumstances, where the applicant does not seek to represent a separate entity, but rather seeks to (and was already able to) represent himself.
It appears that what the applicant is really seeking to do by this ‘application’ is to ensure that he can obtain professional costs in respect of all three proceedings.[39] However, even if this issue ultimately arose for consideration,[40] this would only occur at the stage that costs were being considered. It does not warrant the making of the order sought which (wrongly) seeks to transform the applicant into a third party entity, separate from himself.
[39]See para 11 of ‘Orders sought’ in the amended application for leave to appeal which seeks: ‘An order that the [Council] pay the [applicant’s] costs (including professional costs) for this proceeding, [the proceeding below], and the proceeding before the [Board] which costs shall be fixed by this Court as a lump-sum.’
[40]As a general rule a self-represented litigant may not obtain any compensation in respect of the value of his time spent in litigation. The exception to this rule that formerly applied to solicitors (known as the ‘Chorley’ exception) is no longer part of the common law of Australia: Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333; [2019] HCA 29.
It follows that the application made to this Court (that the applicant be granted leave to represent himself) is misconceived, and that proposed ground 7 is without merit.
Conclusion
Leave to appeal is refused.
ANNEXURE A
ANNEXURE B
6
8
0