Glenorchy City Council v Wiertek
[2018] TASSC 59
•5 December 2018
[2018] TASSC 59
COURT: SUPREME COURT OF TASMANIA
CITATION: Glenorchy City Council v Wiertek [2018] TASSC 59
PARTIES: GLENORCHY CITY COUNCIL
v
WIERTEK, Nastassija
FILE NO: 2075/2018
DELIVERED ON: 5 December 2018
DELIVERED AT: Hobart
HEARING DATE: 27 November 2018
JUDGMENT OF: Blow CJ
CATCHWORDS:
Environment and Planning – Building control – Operation of statutory controls – Enforcement – Generally – Jurisdiction – Magistrates Court of Tasmania – Whether jurisdiction to order demolition when no prosecution pending.
Building Act 2016 (Tas), s 251.
Aust Dig Environment and Planning [285]
Procedure – State and Territory courts: jurisdiction, powers and generally – Matters specific to civil jurisdiction of Local or Magistrates' Court – Powers – Other matters – Tasmania – Power to strike out proceeding for want of jurisdiction – Failure to advise parties of right to apply for transfer to Supreme Court.
Magistrates Court (Civil Division) Act 1992 (Tas), s 12.
Aust Dig Procedure [1067]
REPRESENTATION:
Counsel:
Appellant: T Cox
Respondent: G O'Rafferty
Solicitors:
Appellant: Simmons Wolfhagen
Respondent: Leonard Fernandez
Judgment Number: [2018] TASSC 59
Number of paragraphs: 29
Serial No 59/2018
File No 2075/2018
GLENORCHY CITY COUNCIL v NASTASSIJA WIERTEK
REASONS FOR JUDGMENT BLOW CJ
5 December 2018
This appeal concerns an unsuccessful attempt to enforce a demolition order in the Magistrates Court. The respondent, Nastassija Wiertek, owns a residential property within the municipal area of the appellant, the Glenorchy City Council. The council contends that the respondent has had a substantial retaining wall constructed beyond the front boundary of her property on land that is part of the road reserve for her street, which is a local highway under the council's care and management. On 15 August 2017 the council commenced proceedings in the Civil Division of the Magistrates Court of Tasmania, applying for orders pursuant to s 251(2) of the Building Act 2016 requiring the respondent to demolish the retaining wall, remove the demolished building materials, and reinstate the site. The council did not prosecute the respondent. On 16 July 2018 a magistrate, Mr S Mollard, held that he had no jurisdiction to make the orders sought and dismissed the council's application. This is an appeal from that decision.
The council contends that s 251 of the Building Act conferred jurisdiction on the Magistrates Court to make the orders sought. Alternatively, if the Magistrates Court did not have jurisdiction, the council contends that the learned magistrate was required by s 12 of the Magistrates Court (Civil Division) Act 1992 not to make any order dismissing or striking out the application until 28 days after he had advised the parties that they could apply to transfer the application to this Court, and that he gave no such advice. Those contentions are disputed by the respondent.
Jurisdiction to make orders under s 251 of the Building Act 2016
Section 251 of the Building Act reads as follows:
"(1) The Director of Building Control, or a general manager, may apply to a court of competent jurisdiction for an order in relation to a contravention or likely contravention of —
(a) this Act; or
(b) a notice, order or determination under this Act.
(2) The court, if satisfied that a contravention has been or is likely to be committed, may make any one or more of the following orders:
(a) an order to restrain the contravention or other conduct by the person by whom the contravention is committed or is likely to be committed;
(b) an order requiring building work or plumbing work to be performed;
(c) an order requiring the payment of money into court in respect of any building work or plumbing work performed or to be performed by the permit authority;
(d) any necessary ancillary orders.
(3) An application for an order under this section —
(a) may be made during proceedings for an offence under this Act; and
(b) must not be made in relation to a matter that is subject to an appeal to the appeal tribunal that has not been finally disposed of.
(4) An order may be made under this section instead of, or in addition to, any other order or penalty imposed in proceedings under this Act."
The council contends that the Magistrates Court is "a court of competent jurisdiction" within the meaning of s 251(1). The respondent contends that it is not.
There is nothing in any other section of the Building Act of any relevance to the meaning of the expression "a court of competent jurisdiction", in s 251(1).
It is clear that this Court is a court of competent jurisdiction for the purposes of the subsection. The parties are agreed on that. This Court is a superior court of record. Subject to any statutes that deprive it of jurisdiction in relation to particular matters, it has unlimited jurisdiction by virtue of ss 3 and 4 of the Australian Courts Act 1828 (Imp). The very nature of a superior court, as distinct from an inferior court, is that "all matters are within its jurisdiction unless the contrary is shown": R v Commonwealth Court of Conciliation and Arbitration; ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 399. Section 251 creates a new statutory right of action. Since there is no legislative provision depriving this Court of jurisdiction over s 251 applications, they may be made to this Court.
The Magistrates Court of Tasmania, by reason of its position in the court hierarchy, is an inferior court. It therefore has no jurisdiction over any particular matter unless there is applicable legislation conferring jurisdiction on it. Under s 8 of the Magistrates Court (Civil Division) Act it has a common law jurisdiction "to hear and determine all actions for the recovery of an amount or goods", subject to a monetary limit, but the council did not apply for the recovery of any money or goods. Under s 9 of the same Act, it has jurisdiction to hear and determine claims for various equitable remedies, but, despite similarities, the orders sought by the council are distinct from the equitable remedies listed in s 9.
There are various provisions in the Building Act that create summary offences. For example, s 246(8) makes it an offence for a person who is served with a building order not to comply with that order. A prosecution for any such offence can be instituted by complaint pursuant to the Justices Act 1959 and can be heard and determined in the Magistrates Court in accordance with that Act. Section 251(4) must therefore be interpreted as conferring jurisdiction on the Magistrates Court to make s 251 orders when prosecutions are instituted under the Justices Act for contraventions of s 246(8). Section 251(3)(a), which permits a s 251 order to be "made during proceedings for an offence under this Act", could also be construed as conferring jurisdiction on the Magistrates Court when a prosecution is pending.
However, as I have said, no prosecution was instituted by the council against the respondent. The only legislative provisions that the council could rely upon as arguably conferring jurisdiction on the Magistrates Court in this matter were s 251(1) and (2).
As Hayne, Heydon, Crennan and Kiefel JJ said in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41, 239 CLR 27, at [47], "The language which has actually been employed in the text of legislation is the surest guide to legislative intention."
The language of s 251(1) and (2) does not purport to invest any court with jurisdiction. Those subsections should therefore not be treated as impliedly conferring jurisdiction on any court unless there is some compelling reason for such a construction to be adopted.
Since this Court is a court of competent jurisdiction within the meaning of s 251(1) whether a prosecution is pending or not, it cannot be said that the interpretation adopted by the learned magistrate would ever result in no court having jurisdiction. It may be inconvenient for relatively trivial s 251 applications to have to be instituted in this Court rather than the Magistrates Court, but that is a matter for the legislature. As Mason and Wilson JJ said in relation to statutory interpretation in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320, "Generally speaking, mere inconvenience of result in itself is not a ground for departing from the natural and ordinary sense of the language read in its context."
There is nothing in the legislative history to assist the council. Under s 444 of the Local Government Act 1962, when a municipal corporation or its surveyor had ordered a person to take down or alter any building or structure or do any other work, and that was not done, then the corporation or surveyor could have the work done and, if necessary, proceed by complaint under the Justices Act to obtain possession of the premises. After that Act was repealed in 1993, ss 60 and 61 of the Local Government (Building and Miscellaneous Provisions) Act 1993 conferred similar powers on councils. Those sections were repealed by the Building Act 2000, but ss 192 and 193 of that Act contained similar provisions. No such provisions were included in the 2016 Act. Section 273 of the 2000 Act was a new provision in very similar terms to the current s 251, which replaced it. However it did not use the words, "a court of competent jurisdiction". Instead it used the words "a court". Section 273(1) of that Act read as follows:
"(1) The Director or a permit authority may apply to a court for an order in relation to a contravention or likely contravention of —
(a) this Act or;
(b) a notice, order or determination under this Act."
In all other respects, s 273 of the 2000 Act appears to have been the same as the current s 251.
It may be that, on a proper construction of the old s 273, that section conferred jurisdiction on every Tasmanian court to make orders in respect of contraventions or likely contraventions. Alternatively, it may be that that section, properly construed, did not confer jurisdiction on any court but simply created a new statutory remedy that was within the jurisdiction of this Court as a court of unlimited jurisdiction, but not within the jurisdiction of any inferior court unless such jurisdiction was conferred by some other legislative provision. I do not need to decide which interpretation was correct. Although the words "a court" could be interpreted as meaning "any court", the same cannot be said of the words "a court of competent jurisdiction". Those words imply that the scope of the jurisdiction of each court is defined elsewhere.
Counsel for the respondent submitted that the wording of s 251 reflected an intention that an applicant would have a choice whether to seek to prove a contravention beyond reasonable doubt in proceedings for an offence in the Magistrates Court or to seek to establish a contravention or likely contravention on the balance of probabilities in proceedings in the Supreme Court. I am very reluctant to attribute such a degree of foresight or understanding to the author of s 251 or to the legislature. In my view it is extremely likely that nobody gave any thought to the likely consequences of the use of the phrase, "a court of competent jurisdiction".
However, for the reasons stated, I conclude that the Magistrates Court has jurisdiction to make s 251 orders only in relation to prosecutions instituted under the Justices Act. Since no such prosecution had been instituted in this case, the learned magistrate was right to conclude that he had no jurisdiction.
A duty to adjourn incompetent proceedings
Section 12 of the Magistrates Court (Civil Division) Act provides as follows:
"(1) If an action or matter is commenced over which the Court does not have jurisdiction, the Court must, unless a consent is filed under section 11, order it to be struck out and has power to make an order as to costs.
(2) Before making an order under subsection (1), the Court must advise the parties to the action or matter that they may make application under section 30 to have the action or matter transferred to the Supreme Court.
(3) The Court must not make an order under subsection (1) before the expiration of 28 days from the day on which it advises the parties of their right to make an application under section 30."
Section 30 of that Act permits a party to a proceeding before that court to "apply to the Supreme Court or a judge for the proceeding to be transferred to the Supreme Court". Such an application cannot be made to a magistrate.
When the learned magistrate finished stating his reasons for holding that he had no jurisdiction, he immediately said, "The application is dismissed." The council contends that he erred in law in dismissing the application at that stage because s 12(2) obliged him to advise the parties that they could apply under s 30 to have the application transferred to this Court, and obliged him to adjourn the proceedings for at least 28 days.
The respondent contends that the learned magistrate complied with s 12(2) more than 28 days before he decided that he had no jurisdiction, that he was not obliged to tell the parties about s 30 again, and that it was open to him to dismiss the application without further delay.
Counsel for both parties appeared before the learned magistrate on 16 April 2018, told him that there was a dispute as to jurisdiction, and sought directions. Counsel for the council asked that it be given seven days to file an application to transfer the matter to this Court if it decided to, and directions as to an exchange of outlines if no such application were made. The learned magistrate gave directions as sought. He said this:
"If the claimant has not filed an application for the transfer of the action to the Supreme Court within seven days then within 14 days after that, one, the defendant is to file and serve an outline of submissions on the issue of jurisdiction within 14 days ... and secondly ... the claimant is to file and serve responding submissions within 14 days thereafter."
On that occasion the learned magistrate did not, in the words of s 12(2), "advise the parties to the action or matter that they may make application under section 30 to have the action or matter transferred to the Supreme Court". Counsel for each party plainly knew what s 30 permitted, and the learned magistrate referred to a possible transfer application, but he did not do what s 12(2) contemplated. The respondent does not contend that he complied with s 12(2) on any other occasion.
Counsel for the respondent submitted that s 12 was concerned with natural justice, and that the learned magistrate did not deny the council natural justice because the council was plainly aware of its right to make a transfer application under s 30. However, as the recent decision of the Full Court in Lacroix v Lacroix [2018] TASFC 8 illustrates, if a statutory provision concerned with procedural fairness requires a step to be taken as a prerequisite to the making of an order, and an order is made without that step having been taken, the order is impeachable even if there has been no denial of procedural fairness to the individual disadvantaged by the order.
In this case, s 12(2) required the learned magistrate to "advise the parties to the action or matter that they may make application under section 30 to have the action or matter transferred to the Supreme Court". He did not ever do that. It was therefore not open to him to make an order under s 12(1) striking out the application for want of jurisdiction. Although he used the word "dismissed", his order was in substance a striking out order of the type contemplated by s 12(1). It was not open to him to make that order because he had not complied with s 12(2).
Counsel for the council submitted that it was implicit in s 12 that the provision of advice required by s 12(2) was required to be given only after it had been concluded that the Magistrates Court had no jurisdiction. As no such advice was given at any time, I see no need to determine that point, though I am inclined to agree with the submission. The purpose of s 12(2) and (3) is to facilitate a transfer of proceedings from a court that lacks jurisdiction to one that possesses jurisdiction, rather than putting an applicant in the position of having to start again. An interpretation of the section that would promote that purpose or object is to be preferred to one that does not: Acts Interpretation Act 1931, s 8A. The section does not appear to contemplate the possibility that the provision of advice will occur at a stage when the existence of jurisdiction is in dispute.
Counsel for the respondent made submissions to the effect that this appeal should not succeed on the basis of non-compliance with s 12(2) because no point about that subsection was taken on behalf of the council in the court below. I reject that submission. The learned magistrate simply had no power to make the order dismissing the application, and it therefore cannot stand. Further, he did not afford the council an opportunity to make submissions after announcing his finding that he had no jurisdiction, and the respondent has not suffered any prejudice as a result of the point being taken for the first time in the notice of appeal.
Disposition
Since s 12(2) was not complied with, the appeal must be allowed and the orders of the learned magistrate must be quashed.
I do not have the power to stand in the shoes of the learned magistrate and give the advice required by s 12(2). I have wide powers to make orders under s 28(3) of the Magistrates Court (Civil Division) Act, but there is nothing in that Act or in the Supreme Court Rules 2000 that gives me the power to do what s 12(2) requires. If need be, the council's application will have to be remitted to the Magistrates Court so that it can be struck out in accordance with the proper procedure. I expect that that will not be necessary. I expect that the council will apply for the proceedings to be transferred to this Court. I will grant the respondent liberty to apply in the event that such a transfer application is not made within the next 42 days, or is made and refused.
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