Hallett v City of Port Phillip
[2015] VSC 313
•30 June 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2014 02225
| ARTHUR HALLETT | Appellant |
| v | |
| CITY OF PORT PHILLIP | Respondent |
S CI 2014 02226
| JACKART PTY LTD | Appellant |
| v | |
| CITY OF PORT PHILLIP | Respondent |
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JUDGE: | GINNANE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 February 2015 |
DATE OF JUDGMENT: | 30 June 2015 |
CASE MAY BE CITED AS: | Hallett v City of Port Phillip |
MEDIUM NEUTRAL CITATION: | [2015] VSC 313 |
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LOCAL GOVERNMENT – Public health – Nuisance caused by noise – Improvement notices issued by Council – Belief that nuisance likely to re-occur – Whether improvement notices specified actions and measures to be taken – Whether Council obliged to afford natural justice before issuing the improvement notices – Appeal to Magistrates’ Court against issue of improvement notices – Nature of appeal – Whether improvement notices validly served – Public Health and Wellbeing Act 2008 (Vic) ss 3(1), 4(1)(a), 5, 9, 61, 62, 194, 195, 208, 221, 222.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellants | Mr M Hines | John Dunne & Associates |
| For the Respondent | Mr A Burns | M & K Lawyers |
HIS HONOUR:
These two appeals are from a decision of the Magistrates’ Court at Melbourne affirming improvement notices issued by the City of Port Phillip (‘the Council’) in respect of excessive noise coming from an old house in Glen Eira Road, Ripponlea. The appellants have now appealed the Magistrate’s decision to this Court alleging errors of law.
The owner of the property was Jackart Pty Ltd (‘Jackart’) and its director was Mr Arthur Hallett. Improvement notices were issued to both of them and both of them have appealed the Magistrate’s decision.
The improvement notices were issued because the property was used for parties and band performances, and was a venue for live music. A ramp in the backyard of the property was used for skateboarding. All the noise, understandably, caused great annoyance to the neighbours.
Following complaints and an investigation, the respondent, the Council, acted and issued improvement notices to the appellants to abate the nuisance under s 194 of the Public Health and Wellbeing Act 2008 (Vic) (‘the Act’).
The improvement notices
The notices were based on the determination by an officer of the Council that noise was emanating from the property which was causing nuisance, in that it was offensive and injurious to health.
The two notices, both dated 12 December 2013, contained the same opening paragraphs in the following terms, save that one was addressed to Jackart and one to Mr Hallett. The notice issued to Jackart stated:
You, Jackart Pty Ltd, of Yarra Valley Business Centre ‘L1’ 292 Maroondah Highway, Healesville, have contravened section 61 of the Public Health and Wellbeing Act 2008 in that you have caused, or knowingly allowed or suffered a nuisance to exist on, or emanate from, any land owned or occupied by you at 10 Glen Eira Road Ripponlea (‘Property’). The circumstances of this nuisance make it likely that the contravention is continuing or will re-occur.
Grounds on which the issue of the Improvement Notice is based: Following a number of complaints received from residents neighbouring the Property and investigations by the of City of Port Phillip (‘Council’) it has been determined that there is noise emanating from the Property which is causing a nuisance, in that it is offensive and injurious to health. The noise emanating from the Property includes but is not limited to loud music, excessive use of the skateboard ramp at unreasonable times of the day, offensive language, screaming and general excessive party noise.
You are required to abate the nuisance.
You are required to carry out the specified actions to prevent the existence or reoccurrence of the nuisance:
Take whatever steps are necessary, including but not limited to the exercise of your powers under the Residential Tenancy Act to ensure that the occupiers of the Property do not emanate noise from the Property that is likely to cause a nuisance to neighbouring residents.
Unless otherwise specified above you must undertake these specified actions as soon as is practicable, but no later than 3pm on Thursday 18 December 2013.
If you do not undertake the specified actions, you will have contravened this Improvement Notice and such a contravention carries a maximum penalty of 120 units (for a natural person) or 600 penalty units (for a corporation).[1]
[1]Emphasis in original.
Under the heading ‘Important Notes’, the notices carried the following information:
You may appeal against the issue of this Improvement Notice to the Magistrates’ Court. You must do so within 21 days after this notice is served on you. Section 208 of the Public Health and Wellbeing Act 2008 (Vic) applies.
If you appeal against the issue of this Improvement Notice you must still comply with this notice until the Magistrates’ Court makes a determination on the appeal. Section 208 of the Public Health and Wellbeing Act 2008 (Vic) applies.
The issue of this Improvement Notice does not affect any proceeding for an offence against the Public Health and Wellbeing Act2008 (Vic) in connection with any matter in respect of which this Improvement Notice is issued. Section 195 of the Public Health and Wellbeing Act 2008 (Vic) applies.[2]
[2]Emphasis in original.
The notice issued to Mr Hallett was in the same terms, save that it did not specify 18 December 2013 as the date for taking the ‘specified action’, but instead stated:
You must undertake these specified actions immediately.
As previously stated, Jackart and Mr Hallett did appeal the issue of the improvement notices. There is an issue whether Mr Hallett’s appeal was brought within time and I deal with that issue later in the judgment. Their appeal was heard and determined on 11 April 2014 and the Magistrate affirmed both improvement notices and reserved costs.
Before the hearing of the appeals, Jackart had taken proceedings under the Residential Tenancies Act 1997 (Vic) (‘Residential Tenancies Act’) to evict the tenants of the property or parts of it. Jackart served a notice of breach of duty on Reece Hepner, Nathan Smith and Olga Watts of 2/10 Glen Eira Road, Ripponlea. The notice alleged that they had committed a nuisance and interference with the peace. On 2 April 2014, the Victorian Civil and Administrative Tribunal (‘VCAT’) made orders and granted associated relief in the following terms:
The Tribunal finds and declares that:
The tenant vacated the rented property on 01 April 2014.
The Tribunal orders and directs that:
The landlord was entitled to possession of the rented premises on the date of vacation.
Subsequent to the Magistrate’s decision, on 12 June 2014, the Council revoked the improvement notices.
The evidence before the Magistrate
Evidence of the neighbours
There was ample evidence before the Magistrate that there was ‘noise emanating from the Property, which [was] causing a nuisance, in that it [was] offensive and injurious to health’.
The next door neighbour said that she had complained to the Council from 2011 about noise from the property, which she said occurred all night and all day. She said that:
There’s extremely loud drumming. Full amplified guitars, usually more than one, two or three. Screaming that’s over a microphone that I assume is supposed to be singing. .. Large amounts of people, yahooing, screaming, shouting, swearing , throwing bottles, abuse …
She also gave evidence of skateboard noise, which had affected her health greatly. The noise prevented her family from functioning as a normal family. The noise was so loud that it felt like it was invading her home. She kept a diary, recording instances when the noise occurred. She said that between 1 August 2013 and 14 December 2013, there were about 70 separate occasions when she noted excessive noise coming from the property. She said that on occasions she had to escape from the property and go away because she could not cope with the noise. She said that on some of the occasions about which she complained she saw Mr Hallett at the property.
Another neighbour gave evidence that she had complained ‘multiple times’ about the noise at the property, coming from the skate ramp, music, band practice and parties. She had kept a diary between 11 August 2013 and 22 October 2013, recording 19 noise events emanating from the property. She said the noise had affected her sleep and concentration at her work, because she worked at home. The police were called ‘multiple times’, but did not attend. She said her backyard was destroyed by the music, which included banging and loud heavy metal music. She produced a video showing footage of the property. Videos uploaded from a website on Facebook called ‘RipponLife’, which related to the property, were shown to the Magistrates’ Court.
Another neighbour gave evidence that he complained about the noise coming from the property. He had to sleep in his lounge room on a number of occasions with ear plugs because he heard people using skateboards and general noise from people leaving the premises. The noise continued, in some instances, until after midnight. Sometimes, in the case of big parties, the noise would go right through the night until the next morning. He became very tired and anxious.
A project engineer engaged by the Council gave evidence that he installed equipment for monitoring the noise that was emanating from the property. The equipment was installed between 27 October and 9 November 2013. His report referred to four instances over three separate days where items regulated by the Environment Protection Regulations were audible during prohibited times.
The Council officer
Mr Douglas Martin, the coordinator of the Council’s Public Health Department, gave evidence about the complaints received. His evidence was that after becoming aware of the complaints about noise emanating from the property, he interviewed the lead complainant and others, engaged noise recorders, and satisfied himself that a nuisance existed.
I will refer to Mr Martin’s evidence further when I consider the questions of law and grounds of appeal.
Mr Hallett’s evidence
Mr Hallett said that the noise had not affected him, but he was not at the property very much after 2010. He said that this was because he had experienced a home invasion. He said that he spent six months a year abroad and most of the rest of the time at a country property.
He said that noise had never been a problem for him and if there had been noise he would have asked the people responsible to stop it. There had been one complaint in early November 2013 by a Mr Pemberton, who lived next door, that a band had been playing until 2.00 am and was out of control. Mr Pemberton asked whether there was anything he could do about it. He spoke to the tenant who said that there was not a band playing, but they had amplified music, probably until too late, and they undertook not to do it again. The skateboard ramp had been investigated by the Council, which indicated that it complied with planning requirements.
What has to be decided
I have decided that Jackart’s and Mr Hallett’s appeals succeed. They succeed on legal grounds. I agree with the Magistrate’s description, based on the evidence before him, of the behaviour of the people creating the noise and nuisance as ‘appalling’.
The Magistrate referred to the videos and photographic evidence before him. He stated:
[I] can be well satisfied that the residents at No. 10 Glen Eira Road, those that inhabited Unit 2, in particular, had no regard for the amenity of the area for the health or wellbeing of the neighbours. The behaviour was in a word, appalling...
The neighbours’ rights appear to have been ignored. Jackart, of which Mr Hallett was sole director, as landlord, even if often absentee landlord, had a responsibility to prevent such ‘appalling’ behaviour.
Nevertheless, these appeals must be determined by reference to the law relating to the issue of improvement notices and appeals against their issue.
The legislation
The provisions of the Act of relevance are as follows:
4 Objective
(1) The Parliament recognises that—
(a)the State has a significant role in promoting and protecting the public health and wellbeing of persons in Victoria; …
5 Principle of evidence based decision-making
Decisions as to—
(a)the most effective use of resources to promote and protect public health and wellbeing; and
(b)the most effective and efficient public health and wellbeing interventions—
should be based on evidence available in the circumstances that is relevant and reliable.
9 Principle of proportionality
Decisions made and actions taken in the administration of this Act—
(a)should be proportionate to the public health risk sought to be prevented, minimised or controlled; and
(b)should not be made or taken in an arbitrary manner.
61 Offence of causing a nuisance
(1) A person must not—
(a) cause a nuisance; or
(b)knowingly allow or suffer a nuisance to exist on, or emanate from, any land owned or occupied by that person.
Penalty:In the case of a natural person, 120 penalty units;
In the case of a body corporate, 600 penalty units.
(2)A person is not guilty of an offence under subsection (1)(b) if the person had a lawful excuse for knowingly allowing or suffering a nuisance to exist on, or emanate from, any land owned or occupied by that person.
62 Notification of nuisance
(1)If a person believes that a nuisance exists, that person may notify the Council in whose municipal district the alleged nuisance exists.
(2)The Council must investigate any notice of a nuisance.
(3)If, upon investigation, a nuisance is found to exist, the Council must—
(a)take any action specified in subsection (4) that the Council considers appropriate; or
(b)if the Council is of the opinion that the matter is better settled privately, advise the person notifying the Council of the nuisance of any available methods for settling the matter privately.
(4) For the purposes of subsection (3)(a), the Council may—
(a)if section 66 applies, exercise the powers conferred by that section;
(b)issue an improvement notice or a prohibition notice;
(c)bring proceedings under section 219(2) for an offence against this Act.
Note
See section 197 in relation to the power of a Council to bring proceedings after it has issued an improvement notice or a prohibition notice in respect of a nuisance.
194Secretary or Council may issue improvement notice or prohibition notice
(1)This section applies if the Secretary or a Council believes that a person—
(a)has contravened a provision of this Act or the regulations administered by the Secretary or the Council in circumstances that make it likely that the contravention is continuing or will re-occur; or
(b)is likely to contravene a provision of this Act or the regulations administered by the Secretary or the Council.
(2)If this section applies, the Secretary or the Council, as the case requires, may issue to the person—
(a)an improvement notice requiring the person to remedy the contravention or likely contravention or the matters or activities causing the contravention or likely contravention; or
Questions of law and appeal grounds
The nature of the appeal
Underpinning the appellants’ questions of law and grounds of appeal was the question of the nature of the appeal created by s 208 of the Act. The appellants asserted that it was a de novo appeal where the Magistrates’ Court was entitled to take into account circumstances that had occurred since the issuing of the improvement notices. Thus, the Court should have taken into account that Jackart had forced the tenants and sub-tenants to leave the property. The Council contended that the appeals were limited to a reconsideration of the matters that were before the Council when it issued the improvement notices.
Section 208 of the Act states:
(1)A person on whom an improvement notice or prohibition notice is served may appeal to the Magistrates’ Court within 21 days after the improvement notice or prohibition notice is served on the person.
(2) The Magistrates’ Court must —
(a)reconsider the decision to issue the improvement notice or prohibition notice;
(b)hear any relevant evidence tendered by the applicant or any person on behalf of the person who issued the improvement notice or prohibition notice;
(c)affirm or revoke the issue of the improvement notice or prohibition notice.
(3)Unless the Magistrates’ Court otherwise orders, the appeal does not affect the status of the improvement notice or prohibition notice pending the determination of the appeal.
(4)The decision of the Magistrates’ Court on an appeal takes effect from the date that the decision is made.
The Magistrate considered the nature of the appeal provided by s 208(2)(a) of the Act. His Honour stated:
whilst the section doesn’t specifically say that this is a hearing de novo, when you look at the language of the section, quite clearly that’s what it is.
So we’re starting again. So you’ve raised your grounds for appeal. But having done that, that’s given me jurisdiction to deal with it. But I need to reconsider the decision.
Whilst I am obliged to hear evidence tendered by the appellant and the respondent, it is or it must be relevant to the council’s decision to issue the notice.
His Honour also stated:
There may be some matters, facts or things which come into existence post the issue of the notice. Factors such as the terms moving out is in my view not such a matter. What I am required to do today is to reconsider the decision of the council, not re-hear the matter and impose a decision based on separate or further information.
The Council submitted that the Magistrate’s decision was correct. The appellants submitted that the Magistrate had erred and that the appeal was a de novo appeal to be determined on the evidence before the Magistrate, including of relevant events occurring after the issuing of the improvement notices.
Conclusion
The nature of an appeal depends on the interpretation of the statutory provision creating it.[3]
[3]Kostas v HIA Insurance Service Pty Ltd (2010) 241 CLR 390, 399–400 [27]; Tasty Chicks Pty Ltd v Chief Commissioner of State Revenue of the State of New South Wales (2011) 245 CLR 446, 450 [5].
The structure of the Act must be considered. Section 208 is contained in Division 1 of Part 11 of the Act, which bears the title ‘Reviews and Appeals’. It allocates different decisions made under the Act to different review or appeal processes. Some go to a review by the Council or by the Secretary of the Department. Some go to review by VCAT. And then there is the appeal against improvement notices or prohibition notices provided by s 208. They are heard by the Magistrates’ Court.
The Magistrates’ Court must hear any relevant evidence tendered by the applicant or the person who issued the improvement notice.[4] No doubt the recipients of the notice could test that evidence and tender evidence of relevance to that issue.
[4]Section 208(6) states that nothing in subsection (2)(b) prevents the application of pt 3.10 of the Evidence Act 2008 (Vic) to an appeal under s 208. Part 3.10 deals with privileges.
The Magistrate can affirm or revoke the issue of the improvement notice. There is no power to vary the order or impose other conditions, as often appears in legislation providing for a review on the merits or a de novo appeal allowing for new evidence.
Unless the Magistrates’ Court otherwise orders, the appeal does not affect the status of the improvement notice pending the determination of the appeal.[5] While the appeal is pending, the improvement notice has the effect of law and the parties to whom it has been issued commit a criminal offence if they breach it. The decision of the Magistrates’ Court on an appeal takes effect from the date that the decision is made.[6]
[5]Section 208(3).
[6]Section 208(5).
The Magistrates’ Court was required to reconsider the decision to issue the improvement notices. ‘Reconsider’ means:
To consider again with a view to a change of decision or action.[7]
[7]The second meaning given in The Macquarie Dictionary (6th ed, 2013) 1228.
The term ‘reconsider’ has been discussed in a number of cases. I will mention two that illustrate the different appeal or review rights that its use can create. First, the High Court decision in Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal,[8] where s 44K(4) of the Trade Practices Act 1974 (Cth) was under consideration. It provided for a review of a decision by the Minister in the following terms:
The review by the Tribunal is a re-consideration of the matter.
[8](2012) 246 CLR 379. Cf R v Uxbridge Justices; Ex parte Heward-Mills [1983] 1 All ER 530.
The Tribunal’s powers, depending on the particular Ministerial decision, included to affirm, vary or set aside the decision. The High Court decided that the reconsideration was limited to the material before the original decision maker. French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ stated:
The contrast is best understood as being between a ‘re-hearing’ which requires deciding an issue afresh on whatever material is placed before the new decision-maker and a ‘re-consideration’ which requires reviewing what the original decision-maker decided and doing that by reference to the material that was placed before the original decision-maker (supplemented, in this kind of case, only by whatever material the NCC provides in answer to requests made by the tribunal pursuant to s 44K(6)).
The second case is the Victorian Court of Appeal decision in Victorian Legal Aid v Kuek,[9] where the distinction between review and reconsideration was considered. The legislation in issue was ss 34 and 35 of the Legal Aid Act 1978 (Vic), which dealt with reconsideration and review of decisions of the Victorian Legal Aid Commission with respect to the provision of legal aid. Section 34 provided that a person affected by a decision of the Commission or of an officer or independent reviewer with respect to the provision of legal assistance might request reconsideration of the decision. Section 35 provided for a review of the reconsideration by an independent reviewer. Buchanan JA stated:
In the present case, the nature of the decision to be made by the independent reviewer does not indicate that his attention is to be confined to the state of evidence at a particular time. The decision contains no temporal element. In my opinion, the review will be more valuable and efficient if it is made on the basis of the most up-to-date information available to the independent reviewer.[10]
[9](2010) 26 VR 700.
[10](2010) 26 VR 700, 705 [25].
Weinberg JA stated:
Secondly, there is a substantial body of authority to support his Honour’s statement at [23] that ‘when making decisions, administrative decision-makers are generally required to have regard to the best and most current information available’. In addition to the cases cited by his Honour, it is well established, in relation to the tribunal, that save for those matters involving accrued rights, it is the law in force when the tribunal comes to review the decision that must be applied, and not the law as it stood at the time that decision was made. The same is true in relation to the facts. The tribunal is obliged to take into account all relevant facts of which it is aware, even though they might not have been known to the original decision-maker.[11]
[11](2010) 26 VR 700, 706–7 [32] (Ross AJA agreed with Buchanan JA).
There are many decisions establishing that where a statute provides a review of an administrative decision or an appeal, then it is a review on the merits or an appeal de novo having regard to the evidence of circumstances at the time of the hearing of the appeal or review.[12]
[12]Shi v Migration Agents Registration Authority (2008) 235 CLR 286; Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307; Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; McDonald v Guardianship and Administration Board [1993] 1 VR 521.
In this case, s 208 provides an appeal to a Court, not to an administrative tribunal. The following statement of Mason J in Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd[13] is relevant:
Where a right of appeal is given to a court from a decision of an administrative authority, a provision that the appeal is to be by way of rehearing generally means that the court will undertake a hearing de novo, although there is no absolute rule to this effect…
…
The nature of the proceeding before the administrative authority may be of such a character as to lead to the conclusion that it was not intended that the court was to be confined to the materials before the authority. There may be no provision for a hearing at first instance or for a record to be made of what takes place there. The authority may not be bound to apply the rules of evidence or the issues which arise may be non-justiciable. Again, the authority may not be required to furnish reasons for its decision. In all these cases there may be ground for saying that an appeal calls for an exercise of original jurisdiction or for a hearing de novo.
On the other hand the character of the function undertaken by the administrative authority in arriving at its decision may differ markedly from the instances already supposed. The authority may be required to determine justiciable issues formulated in advance; to conduct a hearing, at which the parties may be represented by barristers and solicitors, involving the giving of oral evidence on oath which is subject to cross-examination; to keep a transcript record; to apply the rules of evidence; and to give reasons for its determination. In such a case a direction that the appeal is to be by way of rehearing may well assume a different significance.
But in the end the answer will depend on an examination of the legislative provisions rather than upon an endeavour to classify the administrative authority as one which is entrusted with an executive or quasi-judicial function, classifications which are too general to be of decisive assistance. Primarily it is a question of elucidating the legislative intent, a question which in the circumstances of this case is not greatly illuminated by the Delphic utterance that the appeal is by way of rehearing.
[13](1976) 135 CLR 616, 621–2.
In my opinion, the nature of the appeal created by s 208 is apparent from the power given to the Court to receive evidence tendered by the parties about the Council’s decision to issue the improvement notices. This is a case where, to apply the words of Mason J in Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd,[14] the nature of the procedures involved in the Council’s decision leads to the conclusion that the Magistrates’ Court was not to be confined to the material that was before the Council. There is no indication of a temporal limitation affecting the evidence that may be relevant to the Court’s reconsideration of the decision to issue the improvement notices.
[14]Ibid.
I consider that the s 208 appeal required a de novo reconsideration of the Council’s decision to issue the improvement notices. I consider that the effect of s 208 was that the relevant evidence that could be tendered included of events occurring since the improvement notices were issued. The order of VCAT, giving possession of the property to Jackart, was an example of such relevant evidence. I consider, with respect, that the Magistrate erred in his interpretation of s 208 and the nature of the appeal that it created.
The first question of law in Mr Hallett’s appeal — was the appeal out of time?
In Mr Hallett’s appeal, there was an initial question of law and grounds of appeal which concerned whether his appeal was brought within time. The question of law was:
Whether the Magistrates’ Court erred in law by holding that the purported improvement notice dated 12 December 2013 issued by the respondent to the appellant was properly served on 17 December 2013 and that in consequence his appeal was not made within the time allowed under s 208 of the Public Health and Wellbeing Act 2008 (‘the Act’) and thereby incompetent; or whether, on the contrary, there was no evidence that service was effected more than 21 days (being the time allowed) before 11 February 2014, being the date when the appellant appealed to the Magistrates’ Court under s 208 of the Act and the court was bound to hold that the appeal was competent.
Section 221 of the Act states:
221 Service of notices, orders and other documents
(1)Any notice, order or other document under this Act or the regulations required or authorised to be given or served to or upon any person may be served by—
(a)giving it or serving it personally on the person; or
(b)sending it by post or electronic communication to the person at that person’s usual or last known place of residence or business; or
(c)leaving it at that person’s usual or last known place of residence with a person on the premises who is apparently at least 16 years old; or
(d)leaving it at that person’s usual or last known place of business with a person who is apparently employed at the premises and who is apparently at least 16 years old.
(2)This section is in addition to, and not in derogation from, sections 109X and 601CX of the Corporations Act.
(3)If a notice, order or other document is addressed to the owner or occupier of premises, the notice, order or document may be served by—
(a)delivering the notice, order or other document or a true copy to a person on the premises who is apparently at least 16 years old; or
(b)if there is no person on the premises who can be so served, by fixing the notice, order or other document on some conspicuous part of the premises.
…
‘Premises’ is defined to include:
(a) land (whether or not vacant);
(b)the whole or any part of a building, tent, stall or other structure (whether of a permanent or temporary nature);
(c) a pontoon;
(d) a vehicle;
(e) a caravan or camper-trailer;[15]
[15]Section 3(1) of the Act.
‘Residence’ is not defined in the Act.
Under s 208(1), Mr Hallett had 21 days to appeal after service of the improvement notice on him.
The affidavit of service of Kathleen Ben Yair, a process server, showed service on Andrew Webb at 10 Glen Eira Road on 17 December 2013 of the improvement notice issued to Mr Hallett. Ms Yair stated:
[I] served an original letter from Macpherson & Kelley dated 13 December 2013 and original improvement notice (Section 194 Public Health and Wellbeing Act 2008 (Vic)) dated 12 December 2013 on ARTHUR HALLETT by handing the documents to tenant/occupier Andrew Webb at 10 Glen Eira Road, Ripponlea, Victoria on 17 December 2013 at 2.25pm.
At the time of service Mr Webb confirmed he is the current tenant and occupant of the property and was over the age of 16 years.
Ms Yair exhibited the letter and improvement notice to her affidavit.
The affidavit was tendered by the Council without objection by the appellants. They did not request that Ms Yair attend to be cross-examined on behalf of Mr Hallett.
If service of the notice on Mr Webb constituted service on Mr Hallett, then his appeal was out of time under s 208(1) of the Act. The Act does not provide for the extension of the appeal period.
The Magistrate referred to the affidavit of service and said that, as its contents had not been challenged, it constituted prima facie evidence of service. He noted the definition of ‘premises’ contained in s 3, as including land whether vacant or not, and the whole or part of any building. He stated that he was satisfied that notice was properly served on 17 December 2013 by leaving it with Mr Webb at 10 Glen Eira Road, Ripponlea. The Magistrate stated that if he was wrong on the service issue, he would have been of the view that in the proper exercise of discretion he should affirm the issue of the improvement notices.
Mr Hallett submitted that there was no evidence that he was served with the improvement notice more than 21 days before 11 February 2014, being the date when he appealed to the Magistrates’ Court under s 208 of the Act. Accordingly, his appeal was competent.
Mr Hallett gave evidence before the Magistrate that the house at 10 Glen Eira Road, Ripponlea, was a 19th century boom-style villa, which was divided into three units. They were separate self-contained units, units 1, 2 and 3, all owned by Jackart, of which he was the sole director. He said that he ‘officially’ was the occupant of unit 1. Unit 2 was let to a Mr Hepner and he had two sub-tenants. Mr Hallett gave evidence that unit 2 was the back freestanding structure, which was independent of the main house. It had its own kitchen, bathroom and a porch. Ms Godfrey occupied unit 3.
Mr Hallett gave evidence that the house was divided into the three separate units when Jackart purchased the property and it had always functioned in that manner. Each unit had its own entrance door, with its own number on it. It had a communal letter box.
Mr Hallett submitted that there was no evidence that he owned or occupied unit 2 or that it was his usual or last known place of residence or business. The improvement notice was not served on him on 17 December 2013. The affidavit of service shed no light on Mr Webb’s whereabouts at the time of delivery; he could have been in unit 2 or unit 3.
The Council had not proved that it complied with the requirements for valid service permitted by s 221 of the Act.
The Council could have contacted him about the nuisance by using his email address. The Council knew of that address because of contacts that it had had with him, when previously investigating whether he was conducting a boarding house. The Council determined that he was not conducting a boarding house.
Mr Hallett said that he became aware of the intervention of the Council just prior to Christmas in 2013, when a notice was sent to the office of Jackart. That office was in Healesville He only became aware of the improvement notice issued to him when he attended Court on the first return date of Jackart’s appeal against the improvement notice issued to it. He then made enquiries of the tenants and sub-tenants, and a Nathan Smith subsequently gave him the improvement notice issued to him. Mr Hallett only learned of Mr Webb when Nathan Smith spoke of him as someone who lived there for a period of time and stayed with them. Mr Webb had received the document, but never passed it on.
Mr Hallett filed his appeal to the Magistrates’ Court within two or three days of receiving the improvement notice from Nathan Smith.
He corresponded with the Council’s solicitor, but did not receive details of the complaints. He only received a vague statement that there was a loud noise, bad language, and use of the skateboard ramp.
Mr Hallett said that after he received some details, he issued a notice under the Residential Tenancies Act against the occupants of unit 2. He obtained an order from VCAT giving him possession of the property. Unit 2 is now vacant. The tenants said they would dismantle the skate ramp, but that had not occurred at the time of the Magistrate’s hearing of the appeal.
Mr Hallett said that the affidavit of service spoke of the property globally and did not recognise the reality of the three separate units.
The Council relied on the fact that Mr Martin had given evidence that the property was rated as one residential property. That was supported by the land title search and the rates database. Mr Martin gave evidence that Council records showed that the property at 10 Glen Eira Road was rated as one residential property with Jackart as the owner. A land title search confirmed the ownership. An ASIC search stated that Mr Hallett was a director of Jackart and that his address was 10 Glen Eira Road, Ripponlea.
Conclusion
In my opinion, the process server’s affidavit does not establish that the improvement notice was left at Mr Hallett’s usual or last known place of residence with a person on the premises, as was required as the Council relied on s 221(1)(c). Mr Hallett’s evidence before the Magistrate established that the property was divided into three units and that his usual place of residence was unit 1. The term ‘premises’ must mean the ‘premises’ on which the person to whom the improvement notice was issued has his residence. Despite the wide definition of ‘premises’ in the Act, in the context of s 221(1)(c), the term cannot mean any premises, but must mean premises which were the usual or last known place of residence of the person to whom the notice was issued. Once the evidence before the Magistrate established that the property contained three units, the process servers’ statement that she served the letter on Andrew Webb at 10 Glen Eira Road, Ripponlea did not establish that it was served at Mr Hallett’s usual or last known place of residence. The fact that the process server described Mr Webb as tenant/occupier might be some indication that she may have served him with the letter and notice at unit 2, the freestanding building at the back of the property.
The Council’s rates records and the copy of title that were in evidence before the Magistrate go no further than recording that Jackart was the owner of the property at 10 Glen Eira Road, Ripponlea. They do not give assistance on the issue of Mr Hallett’s address. The Council served Jackart with its improvement notice by sending it to its registered office at Healesville.
I have taken into account that Mr Hallett recorded his personal address as a director of Jackart as 10 Glen Eira Road Ripponlea, with ASIC[16] with no reference to a unit number. In some circumstances, providing an address to ASIC may be evidence of the person’s usual or last known place of residence.[17] However, in this case, the evidence established that Mr Hallett’s usual place of residence was in unit 1 of 10 Gen Eira Road. In these circumstances, I do not consider that the term ‘last known place of residence’ should permit service to be taken to be effected by an affidavit that only states the address for service as 10 Glen Eira Road, Ripponlea.
[16]Under s 205D of the Corporations Act 2001, Mr Hallett, as a director, was required to provide his personal address unless he was entitled to have an alternative address.
[17]See eg Skalkos v T &S Recoveries Pty Ltd [2004] FCAFC 321 and Robertson v Deputy Commissioner of Taxation [2010] NSWCA 58.
The process server’s affidavit does not establish that the improvement notice addressed to Mr Hallett was served on a person on the premises that were his usual or last known place of residence.
Mr Hallett agreed that on 10 January 2014 he became aware of the issue of an improvement notice to him when at a preliminary hearing of Jackart’s appeal, counsel for the respondent told the Magistrate of the notice issued to Mr Hallett and handed Mr Hallett a copy of the process server’s affidavit. But it has not been established that he was then served with the improvement notice. His notice of appeal was filed 11 February 2014.
On one view, it might be argued that Mr Hallett has never been served with the improvement notice and therefore has no right of appeal. I do not consider that I should adopt that approach. Mr Hallett filed a notice of appeal in the Magistrates’ Court. The Council argued that the appeal was out of time. I have not accepted the Council’s submission that the service of the improvement notice on Andrew Webb by the process server on 17 December 2013 had effect as service on Mr Hallett. I consider, therefore, that the Court should treat Mr Hallett’s notice of appeal as being served within time.
I will now consider the remaining questions of law and grounds of appeal. I will take the order from Jackart’s amended notice of appeal, converting the alphabetical references to numerical references. Mr Hallett’s first ground of appeal related to the question I have just dealt with, namely whether his appeal was in time. The parties’ other grounds of appeal were expressed in substantially identical terms.
The first question of law — issuing the notices
The first question of law was whether the Council could issue the improvement notices only if it believed that the appellants had contravened s 61 of the Act in circumstances that made it likely that the contravention was continuing and would re-occur.
The second question of law
The second question of law was a related ground asserting that there was no evidence of the Council’s belief that the appellants had contravened s 61 of the Act in that they had caused a nuisance or knowingly allowed or suffered a nuisance to exist on, or emanate from, any land owned or occupied by them within the meaning of the Act. The appellants also contended that there was no evidence that they had contravened a provision of the Act in circumstances that made it likely that the contravention was continuing or would re-occur, as is required by s 194(1) for the issue of an improvement notice. Therefore, the notices could not be issued and the Court could not affirm them.
The Council relied on the evidence of its officer, Mr Martin, who interviewed a number of the neighbours and asked them to maintain diaries of the noise. He was satisfied himself that a nuisance existed and caused the improvement notices to be issued.
Conclusion
These two grounds were essentially lack of evidence grounds.
It is important to keep in mind that the appeals are limited to questions of law. Phillips JA in S v Crimes Compensation Tribunal[18] stated that ordinarily a determination of fact will not give rise to an error of law ‘unless it is shown that the fact-finding tribunal arrived at a finding that was simply not open to it’.
[18][1998] 1 VR 83, 90; State of Victoria v Subramanian (2008) 19 VR 35, 348 [32] (Cavanough J).
The Magistrate stated that he was satisfied that the actions of Mr Martin in serving the notice were proportionate to ‘the wish to be preventative’. The Magistrate found that the conduct of the residents had no regard for the amenity of the area or neighbours.
The Magistrate found that Mr Martin had a belief that s 61 had been contravened. The Magistrate also rejected a submission that there was no evidence that the appellants had knowingly allowed or suffered a nuisance to occur.
I do not consider that Grounds 1 or 2 are established. There was clear evidence that Mr Martin of the Council believed that the appellants had contravened s 61 of the Act and that, at the time the notices were issued, 12 December 2013, the contraventions were likely to re-occur. There was evidence on which he could infer a belief in a continuing nuisance. The fact that he had such a belief can be inferred from his evidence about the extent of the nuisance. The evidence of the neighbours, to whom he had spoken and to which I have referred, justified that belief.
The appellants have not established that questions of law 1 and 2 and the associated grounds of appeal contain an error by the Magistrate.
The third question of law — did the notices state the actions that the appellants had to take?
This question of law contended that, as a matter of statutory construction, the requirement in s 194(3)(c) of the Act was that an improvement notice must specify the actions or measures that the person to whom the notice was issued was required to take. The appellants contended that that requirement was not satisfied merely by requiring that person to take whatever steps were necessary to bring about a particular result.
The grounds of appeal alleged that there was no evidence that the notices satisfied that requirement and that the Court misdirected itself by ignoring that lack of evidence.
The appellants contended that the improvement notices did not specify anything. They lacked the required degree of detail and particularity and failed to list each and every necessary step. The notices were therefore invalid and could not be affirmed.
The Council submitted that the improvement notices complied with the requirements of s 194 of the Act. It pointed to the requirement that the notices required the use of the landlord’s powers pursuant to the Residential Tenancies Act and these were in fact utilised by the appellants.
The Magistrate stated:
On the other hand, I do not believe that the failure of the council to specify such things as times and decibel limits amounts to a breach of natural justice, it is at worst a mere irregularity in my view, s 222 has application and I’m satisfied on the evidence before me that the notice is a valid one. I’m not satisfied that Mr Hallett has been prejudiced by the lack of any further information that potentially could have been provided to him.
Section 222 of the Act states:
222 Validity and effect of notices, orders and other documents
(1)The validity of any notice, order or other document or of the service of the notice, order or other document is not affected by any error, misdescription or irregularity which in the opinion of the court is not likely to mislead or which in fact does not mislead.
(2)If due service of a notice, order or other document required under this Act or the regulations to be given or served on any owner or occupier has been once made on any owner or occupier, the notice, order or other document is binding on all persons claiming by from or under that owner or occupier and on all subsequent owners or occupiers to the same extent as if served on each of those persons respectively.
Conclusion
In my opinion, the error alleged in this question of law and the associated grounds is not established. The notices, in effect, required that Jackart and Mr Hallett take action, including under the Residential Tenancies Act, to ensure that the occupiers of the property did not allow noise to emanate from the property that was likely to cause a nuisance to neighbouring residents. It was open to the Magistrate to conclude that the notices specified the measures to be taken. The notices have to be read as a whole. They gave details of the noise that was said to constitute the nuisance. The recipients of the notices were being required to stop that noise to the extent that it was likely to cause a nuisance to neighbours. No error is established by the third question of law and the associated grounds.
Fourth question of law — did the Council have to give the appellants notice of the allegations and a fair opportunity to be heard?
The fourth question of law was whether the Council was required to give the appellants notice of the allegations against them and an opportunity to be heard. The appellants’ question of law stated that, having regard to a general duty to act fairly under the common law and by construction of the Act, the Council was required to take steps to give the appellants notice of the allegations against them and a fair opportunity to be heard, and it had not done so. Because it had not done so, the notices were invalid and therefore could not be affirmed.[19]
[19]The appellants relied on the decision in Byrne v Marles (2008) 19 VR 612, [77]–[82], [88]–[90], [91]–[93].
Mr Hallett said that he contacted the solicitor for the Council, but received little information about the noise. He did not know what action to take. Jackart ultimately issued a notice for breach of the Residential Tenancies Act against the tenants of unit 2. He could only do so in March 2014, after the Council’s solicitor sent him the affidavits of neighbours complaining about the noise.
Mr Hallett said that the Council also served the tenants with improvement notices in the middle of January 2014, after he raised that matter at a contest mention.
Mr Martin said that he had the option of issuing the improvement notices and had no responsibility to make contact with Mr Hallett. He said that his experience of 20 years told him that the most effective way to remedy a nuisance was to issue a notice. He said that his practice was to issue a notice against the property owner.
The Council contended that the Act did not require the notification of the person to whom an improvement notice was to be directed to give them an opportunity to be heard, before it was in fact issued. The appeal process, in s 208 of the Act, created the opportunity to be heard at a later stage and therefore satisfied the requirements of natural justice.
The Magistrate found that the Act did not oblige the Council to inform a resident or a person of complaints regarding a nuisance. His Honour found that the action of the Council was proportionate to the public health risk to be prevented, minimised or controlled within the meaning of s 9 of the Act.
Conclusion
In my opinion, the appellants established that the Magistrate did err in law on this issue. I consider that the principles of natural justice were not excluded by the terms of the Act. Those principles apply unless excluded[20] where a decision adversely affects the interests of a person. The decision to issue, and the issuing of, an improvement notice adversely affects the person against whom it is issued. It has effect until overturned. A breach of it is a criminal offence.
[20]Twist v Randwick Municipal Council (1976) 136 CLR 106, 110 (Barwick CJ); Kioa v West (1985) 159 CLR 550, 584 (Mason J).
There are many decisions over more than 150 years that establish that a statutory authority, such as a Council, having power to affect the rights of a person is bound to hear the person before exercising that power. That rule is ‘both fundamental and universal’.[21]
[21]Barwick CJ in Twist v Randwick Municipal Council (1976) 136 CLR 106 at 109 referring to Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180, 143 ER 414 and see Carroll v Sydney City Council (1989) 15 NSWLR 541 and the cases which it discusses; see also Woolf and others, De Smith’s Judicial Review (Sweet & Maxwell, 7th ed, 2103) 351–2. Cf Isbester v Knox City Council [2015] HCA 20.
Section 62(2) requires the Council, once notified of a complaint, to investigate the notice of the nuisance. That provision is hardly consistent with an intention to exclude the principles of natural justice. An investigation would normally involve an attempt to contact both sides and give the party alleged to have committed the nuisance an opportunity of putting their side of the story. It would be an incomplete investigation to speak only to one side. There is no apparent reason why the Council, in the course of its lengthy investigation, did not attempt to speak with Mr Hallett, tell him of the nuisance complaint and give him an opportunity to respond before the notices were issued. All of that would be perfectly sensible investigatory practice. It is possible that it may have ended the nuisance without the need for further action. The Council had previously spoken to Mr Hallett about other matters.
I consider, with respect, that the Magistrate erred in finding that there was no obligation to inform the appellants of the allegations against them and give them an opportunity to respond before the improvement notices were issued.
The obligation to give natural justice is not removed because there is a right of appeal, although if a de novo appeal right is exercised, that may in some circumstances cure such a denial of natural justice.[22]
[22]Calvin v Carr [1980] AC 574.
In emergency circumstances, natural justice does not have to be followed. However, the Council investigation lasted for some months.
The principles applicable in this case differ from those applying to a decision by the police or prosecution authorities to commence a prosecution. They do not have to comply with the requirements of natural justice.[23] But their decision does not have immediate legal effect in restricting the exercise of a person’s rights. Here, the Council both investigated the nuisance complaints and then reached a decision to issue improvement notices, which had to be complied with under penalty imposed by the criminal law. It did so without contact with the persons said to have caused or knowingly allowed the nuisance to continue.
[23]Commissioner of Police v Reid (1989) 16 NSWLR 453, 461; Director of Public Prosecutions v Patrick Stevedores Holdings Pty Ltd (2012) 41 VR 81 [26].
The appellants have established an error of law in respect of the fourth question of law and the associated grounds.
Fifth question of law — consideration of whether the matter could be settled privately
The next question of law and associated grounds of appeal concern whether the Council was required to consider the question of whether the matter was best settled privately. The question of law proposed was that there was no evidence that, when considering whether the Council should be of the opinion that the matter concerning the alleged nuisance was better settled privately, the Council gave any attention to any facts other than its satisfaction that the nuisance was found to exist. The Council therefore had not complied with s 62, and had no power to issue the notices. There was no evidence to support Mr Martin’s evidence that his experience and knowledge meant that it was not appropriate to settle the matter privately.
Mr Martin gave evidence that he did consider this issue and did not consider that the matter would be better settled privately. He said that it was his job to remedy nuisances that occurred in the municipality. In addition, the Victorian Dispute Settlement Centre was unable to assist in the resolution of the case.
The Magistrate referred to Mr Martin’s evidence that he was not of the opinion that the matter could be settled privately and that his opinion was based on his experience of some 25 years in the industry.
Conclusion
The appellants did not establish any error in the Magistrates’ decision as stated in the fifth question of law or the associated grounds of appeal. The Magistrate had Mr Martin’s evidence, that was based on his experience, that the matter was not one that could be settled privately. Clearly Mr Martin did consider that issue. He was not obliged to take the course of attempting to settle the matter privately. Therefore, there was evidence before the Magistrate on which he could base his decision.
The sixth ground — did the Magistrate consider matters occurring after the issue of the improvement notices?
The appellants contended that the Magistrate erred by refusing to have regard to evidence of matters occurring after the issue of the improvement notices. That ground is connected with the nature of the appeal provided by s 208. There was uncontested evidence that, after receiving the notices, the appellants had served a notice of breach on the tenants under the Residential Tenancies Act, and that the tenants emptied and vacated the premises and promised to dismantle the skateboard ramp. After they left, there were no problems with noise or use of one source of noise. The Council submitted that there was no requirement on the informant, or the Court, to reconsider whether the nuisance existed at the time of the hearing. The Magistrate’s duty was to reconsider the decision to issue the improvement notices and hear relevant evidence.
Conclusion
In my opinion, because of the nature of the appeal to which I have previously referred, the Court should have taken the evidence of, and effect of, the proceedings under the Residential Tenancies Act into account. The Magistrate, with respect, erred in not doing so.
Final conclusion
Mr Hallett’s appeal was competent. The appellants have established that the Magistrate erred in law by finding that the Act did not oblige the Council to inform them of the nuisance allegations and give them an opportunity to respond to them before issuing the improvement notices. The Magistrate also erred in deciding that the appeal created by s 208 did not entitle the Magistrates’ Court to take into account matters occurring after the issue of the improvement notices, such as the VCAT orders.
I will hear the parties about the appropriate form of orders.
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