Guscott v Central Irrigation Trust - [2007] SADC 21

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master's Decision)
GUSCOTT v CENTRAL IRRIGATION TRUST
[2007] SADC 21
Judgment of Her Honour Judge Simpson
5 March 2007
PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS
Appeal against decision and orders of Master striking out plaintiff's Statement of Claim and dismissing proceedings - Held: complaint by plaintiff relates to sale of land by defendant in 1999 on account of outstanding water charges - complaint effectively considered and disposed of by another court - an action in contract or tort, if any, statute-barred - pleadings disclose no cause of action in any event - proceedings certain to fail and an abuse of court's process - Appeal dismissed.
District Court Act 1991 s 43(2)(a); Irrigation Act 1991 ss 3, 55, 63. 65(1)(f); Limitation of Actions Act 1936 ss 35, 48, referred to.
Reichel v Magrath (1889) 14 App Cas 665; Jackson v Goldsmith (1950) 81 CLR 446; Williams v Milotin (1957) 97 CLR 465; Metropolitan Bank v Pooley (1885) 10 App Cas 210; Walton v Gardiner and others (1992-1993) 177 CLR 378; Development Assessment Commission v Macag Holdings Pty Ltd (2001) 80 SASR 104, applied.

GUSCOTT v CENTRAL IRRIGATION TRUST
[2007] SADC 21

This is an appeal from a decision of a Master and consequent orders that the plaintiff’s Statement of Claim be struck out and the proceedings dismissed. The reasons for the decision of the learned Master were posted to the parties on 7 December 2006. The appellant, Ms Guscott, is the plaintiff in the action struck out by the Master and the respondent, Central Irrigation Trust, is the defendant. I will refer to the appellant as the plaintiff and to the respondent as the defendant.
The appeal from the decision of the Master is brought pursuant to section 43(2)(a) of the District Court Act 1991 and pursuant to District Court Rule 17, and lies as of right. Rule 283 provides that an appeal must be commenced within 21 days after the date of the decision subject to the appeal. In this case the plaintiff instituted the appeal on the 5 January 2007.
The plaintiff applies pursuant to Rule 290(1)(a) for an extension of time within which to commence the appeal. In support of an extension of time within which to institute the appeal, the Notice of Appeal filed on 5 January 2007 relies on difficulties the plaintiff has with the English language and on matters relating to the plaintiff’s personal circumstances from some time ago. The plaintiff does not depose in her affidavit sworn on the 5 January 2007 to any matter which could be regarded a basis for extending time for her to commence the appeal. However, having regard to the fact that the reasons for the decision of the learned Master were posted to the parties on the 7 December 2006, to the fact that the appeal was commenced only a few days beyond the proper time, to the fact that the plaintiff was not represented by a legal practitioner, and to the number of public holidays over Christmas and New Year, I extend the time for the plaintiff to commence the appeal.
Pursuant to Rule 292, the hearing of the appeal is to be by way of rehearing, and subject to the Rules, the Court may determine the appeal as the justice of the case requires, despite the failure by a party to raise relevant grounds of appeal, or to state grounds of appeal appropriately in the Notice of Appeal. The court may, amongst other things, draw inferences of fact from evidence taken at the original hearing and, in its discretion, hear further evidence on a question of fact.
The proceedings were instituted on 27 September 2006. The plaintiff claims compensation in respect of loss associated with action taken in 1999 by the defendant, as a result of which she was required to vacate property which she had acquired in 1987 and which had been her home since 1989. The plaintiff seeks orders for compensation in the sum of $600,000 for loss of her home, her income and the contents of her home and for such other orders as the court thinks fit. In his reasons for decision, the learned Master sets out the background and facts related to the proceedings. No issue was taken on the appeal by the plaintiff on any matter of fact.
The Certificate of Title in respect of the property in Crown Lease - Perpetual No 802 comprised in Register Book Volume 686 Folio 87 records a transfer to the plaintiff on 18 February 1987 and discloses a further transfer, pursuant to section 63 of the Irrigation Act 1994 on 6 August 1999, from the Chaffey Irrigation Trust Inc to third parties.
I assume for the purposes of these proceedings that no distinction is to be drawn between Chaffey Irrigation Trust Inc and the defendant, and that the defendant was at the relevant time the authority referred to in section 63 of the Act, that is, in accordance with section 3 of the Act, a trust constituted by the Act in relation to a private irrigation district.
Under section 55 of the Irrigation Act 1994, an irrigation authority had the power to impose a water supply charge in respect of land to recover costs of supplying water or to meet other liabilities. The plaintiff appears to have had some difficulty in meeting water supply charges. In her Statement of Claim, the plaintiff refers to the request in 1991 by the Engineering & Water Supply Department for $17,000 in relation to water rates in arrears and to letters of demand from the defendant in 1998 in relation to $58,000 water rates in arrears.
Section 63 of the Act provided:
(1)Where charges, or interest on charges, have been unpaid for one year or more, the authority may sell the land in respect of which the charges are payable.
(2)Before an authority sells land in pursuance of this section, it must serve notice on the owner and occupier of the land—
(a)     stating the period for which the charges or interest have been in arrears; and
(b)     stating the amount of the total liability for charges and interest presently outstanding in relation to the land; and
(c)     stating that if that amount is not paid in full within one month of service of the notice (or such longer time as the authority may allow), the authority intends to sell the land for non-payment of the charges or interest.
(3)     A copy of a notice must be served on—
(a)     the registered mortgagee or encumbrancee of the land (if any); and
(b)     if the land is held from the Crown under a lease, licence or agreement to purchase—the Minister for Environment and Heritage.
(4)If the outstanding amount is not paid in full within the time allowed under subsection (2), the authority may proceed to sell the land.
(5)The sale will, except in the case of land held from the Crown under a lease, licence or agreement to purchase, be by public auction (and the authority may set a reserve price for the purposes of the auction).
(6)An auction under this section must be advertised on at least two separate occasions in a newspaper circulating generally throughout the State.
(7)If, before the date of the auction, the outstanding amount and the costs incurred by the authority in proceeding under this section are paid to the authority the authority must withdraw the land from auction.
(8)     If—
(a)     an auction fails; or
(b)     the land is held from the Crown under a lease, licence or agreement to purchase,
the authority may sell the land by private contract for the best price that it can reasonably obtain.
(9)Any money received by the authority in respect of the sale of land under this section will be applied as follows:
(a)     firstly—in paying the costs of the sale and any other costs incurred in proceeding under this section;
(b)     secondly—in discharging the liability for charges and interest and any other liabilities to the authority in respect of the land;
(c)     thirdly—in discharging any liability to the Crown for rates, charges or taxes, or any prescribed liability to the Crown in respect of the land;
(d)     fourthly—in discharging any liabilities secured by registered mortgages, encumbrances or charges;
(e)     fifthly—in discharging any other mortgages, encumbrances and charges of which the authority has notice;
(f)    sixthly—in payment to the owner of the land.
(10)If the owner cannot be found after making reasonable inquiries as to his or her whereabouts, an amount payable to the owner must be dealt with as unclaimed money under the Unclaimed Moneys Act 1891.
(11)Where land is sold by the Minister or a trust in pursuance of this section, an instrument of transfer under the Minister's hand or the common seal of the trust will operate to vest title to the land in the purchaser.
(12)    The title vested in a purchaser under subsection (11) will be free of—
(a)     all mortgages and charges; and
(b)     except in the case of land held from the Crown under lease or licence—all leases and licences.
(13)An instrument of transfer passing title to land in pursuance of a sale under this section must, when lodged with the Registrar-General for registration or enrolment, be accompanied by a statutory declaration made by the Minister where the Minister is the authority, or in all other cases, by the presiding officer of the trust concerned stating that the requirements of this section in relation to the sale of the land have been observed.
(14)Where it is not reasonably practicable to obtain the duplicate certificate of title to land that is sold in pursuance of this section, the Registrar-General may register the transfer notwithstanding the non-production of the duplicate, but in that event he or she will cancel the existing certificate of title for the land and issue a new certificate in the name of the transferee.
(15)A reference in this section to land, or title to land, is, in relation to land held from the Crown under lease, licence or agreement for purchase, a reference to the interest of the lessee, licensee or purchaser in the land.
(16)In this section-
"charges" means water supply and drainage charges and includes—
(a)     charges payable to an authority under an agreement with the owner or occupier of land outside the authority's district for the supply of water to, or the drainage of water from, the land;
(b)     rates or charges, and interest on rates or charges, payable immediately before the commencement of this Act under the Irrigation Act 1930 or one of the repealed Acts;
(c)     any other amount in which an owner or occupier of land is indebted to the authority under this Act or under an agreement made under this Act.
It appears that following the sale of the plaintiff’s interest in the property pursuant to section 63 of the Irrigation Act 1994, the plaintiff was initially required to vacate her property by 15 July 1999.
The plaintiff appealed to the Environment Resources and Development Court. On the initial hearing of the appeal on 15 July 1999, His Honour Judge Bowering made the following findings:
1.Notice of Intention to sell the property had been served and service was acknowledged by the plaintiff; and
2.The appeal brought by the plaintiff was out of time except in relation to the requirement that the plaintiff vacate the premises.
The appeal was set down for hearing on 22 July 1999. The decision of Her Honour Judge Trenorden given ex tempore on 22 July 1999 refers to the appeal by the plaintiff pursuant to section 65(1)(f) of the Irrigation Act1994 against the Notice to Vacate the property. The court noted:
·there had been a significant amount charged against the land by way of unpaid rates and interest
·the Irrigation Trust had issued a notice to the plaintiff of its proposal to sell the land for non-payment of rates
·following a Notice of Intention to sell the land for non-payment of rates under the Irrigation Act, a contract for the sale of the property was executed on 31 May 1999 and
·by letter dated 2 June 1999, the plaintiff was notified through her solicitor, that a tender for the purchase of the land had been accepted in the amount of $140,000 and that settlement was due on 15 July 1999.
The court took into account the history of the involvement of the plaintiff with the land, the plaintiff’s medical problems, the requirement that she move significant goods and chattels from the property, the plaintiff’s low income and the fact that at that stage, the plaintiff had nowhere else to go. On the other hand, the court noted that the plaintiff had been aware of the intention to sell the property for non-payment of rates for well over a year. Having regard to the difficulties facing the plaintiff, but bearing in mind the interest of the Central Irrigation Trust, the court extended the date for the plaintiff to vacate the premises by two weeks to 5 August 1999. The court took the view that it was not within its power to set aside the Contract for Sale, nor to interfere with the Notice to Vacate the premises, neither of which were properly the subject of the appeal.
It is clear that the plaintiff disagreed at the time and still disagrees with the sale of her interest in the property and with the requirement that she vacate the property. She sought to challenge the sale and the Notice for her to vacate the property on the appeal to the Environment Resources and Development Court on 22 July 1999. She was unsuccessful except that, out of consideration for the hardship the plaintiff said she faced in moving, the time for her to vacate the property was extended to 5 August 1999. An application by the plaintiff to the Supreme Court for a stay of the order to vacate the premises was dismissed by His Honour Justice Wicks on 3 August 1999.
The plaintiff is now seeking to challenge the action taken by the defendant in relation to recovery of outstanding charges and interest. The matters referred to in the documents filed by the plaintiff and in her submissions, before the Master and on appeal, relate in a broad sense to the plaintiff’s liability to the defendant for charges for the supply of water attached to the property in which the plaintiff previously has had an interest. In these proceedings, the plaintiff is apparently seeking to re-litigate her past liability for water rates and the consequent right of the defendant pursuant to section 63 of the Irrigation Act 1994 to sell the land, in respect of which the outstanding charges were payable.
Apart from the matters referred to in the Statement of Claim and in submissions to the Master on the application by the defendant to strike out the claim, the matters raised on appeal by the plaintiff included:
1The property was a returned soldier settlement and designated for various agricultural purposes;
2The plaintiff had undertaken further education in order to succeed in agriculture;
3The plaintiff’s years of labour have not been compensated;
4The plaintiff had an allocation for water which had not all been used;
5There was provision pursuant to section 69 of the Irrigation Act 1994 for financial assistance to the owner or occupier of an irrigated property;
6The defendant had no right to sell the property, or remove her from it, as it was a private residence of historic significance and one which she had restored;
7The property was the subject of a Crown Lease, and could not be sold by auction;
8The amount realised on the sale of the property after recovery by the defendant of outstanding amounts was insufficient to allow the plaintiff to find appropriate alternative accommodation;
9There has been family conflict as a result of the plaintiff’s accommodation being at the mercy of her daughter’s partner;
10The plaintiff has difficulties with the English language and is not legally represented; and
11Given an opportunity, the plaintiff could amend the pleadings to disclose a proper cause of action.
The facts referred to by the plaintiff, in the pleadings and in submissions, disclose no basis on which either her past liability for water charges or the sale of the land in respect of which the charges were payable could be challenged. The defendant was entitled, pursuant to section 63(8)(b) of the Irrigation Act 1994, to sell the land comprised in Crown Lease - Perpetual No. 802 by private treaty for the best price it could obtain. There is no evidence to suggest that the defendant did not follow proper procedures. The findings made by the Environment Resources and Development Court are otherwise. There is no evidence that the tender price for which the property was sold was other than the best price the defendant could obtain.
In so far as the plaintiff now seeks to deny liability for outstanding water charges on account of which recovery action has been taken by the defendant, the complaint which the plaintiff seeks to litigate is essentially the same complaint previously unsuccessfully pursued in the earlier proceedings in the Environment Resources and Development Court and the Supreme Court. Proceedings will be unjustifiably vexatious and oppressive where it is sought to re-litigate a case which has already been disposed of by earlier proceedings. (See, e.g., Reichel v Magrath (1889) 14 App Cas 665 at p 668) No other proceedings can be maintained on essentially the same cause of action, by whatever means the action is sought to be brought. (Jackson v Goldsmith (1950) 81 CLR 446 at 466)
These proceedings were instituted over seven years after the sale of the plaintiff’s property. If the cause of action were founded upon any simple contract, express or implied, or on tort, section 35 of the Limitation of Actions Act1936 applies and save as otherwise provided in the Act, it is to be commenced within six years after the cause of action accrued and not after. No reference is made to any facts material to the plaintiff's case not ascertained in a relevant period, or to any reasonable delay on account of representations or conduct of the defendant, or a person whom the plaintiff reasonably believed to be acting on behalf of the defendant, or any other matter, so as to allow for a court to consider an extension of time pursuant to section 48 of the Limitation of Actions Act1936.
I agree with the learned Master that the Statement of Claim, however broadly interpreted or understood, in fact discloses no reasonable cause of action. The expression ‘cause of action’ means ‘the essential ingredients in the title to the right which it is proposed to enforce’. (Williams v Milotin (1957) 97 CLR 465 at 474) The Notice of Appeal filed on 5 January 2007 only repeats the history of the matter and includes a reference to correspondence in 2001 with Members of Parliament. Nothing put by way of submissions on appeal establishes or even suggests a basis for a cause of action. There is no basis disclosed in the documents filed by the plaintiff or in her submissions to support a claim for compensation from the defendant on account of action taken in 1999. It is not for the defendant or for the court to try to guess the basis for any claim the plaintiff brings.
The plaintiff has not established that it would be appropriate to adjourn the appeal to allow her to bring in amendments to the Statement of Claim. The appellant has not shown that there is any factual or other basis on which amendment to the pleadings should be considered. I refuse an adjournment for that purpose. The proceedings are certain to fail and constitute an abuse of process. (See, e.g., Metropolitan Bank v Pooley (1885) 10 App Cas 210 at pp 220-221; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at pp 128-130)

It would be unfair to the defendant, and would be likely to bring the administration of justice into disrepute among right-thinking people, if the plaintiff is allowed to maintain the proceedings. (Walton v Gardiner and others (1992-93) 177 CLR 378 at 392; and see Development Assessment Commission v Macag Holdings Pty Ltd (2001) 80 SASR 104)
District Court Rule 104(b) allows the Court to strike out the whole of a pleading if a pleading is an abuse of process. Rule 117(2)(e) provides that the Court may make any order it considers necessary in the interests of justice. Rule 193(b) provides that the Court may dismiss proceedings if the pleadings disclose no reasonable cause of action or if the proceedings are an abuse of process.
The pleadings do not comply with the requirements of the rules, disclose no reasonable cause of action, seek to re-litigate the same complaints made to another court and constitute an abuse of the court’s process. I agree with the conclusions of the learned Master that the Statement of Claim should be struck out and the proceedings brought by the plaintiff should be dismissed.
The appeal against the decision of the Master is dismissed.