Hamon v City of Victor Harbor
[2022] SADC 101
•31 August 2022
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
HAMON v CITY OF VICTOR HARBOR
[2022] SADC 101
Judgment of his Honour Judge Slattery
31 August 2022
ADMINISTRATIVE LAW - JUDICIAL REVIEW
REAL PROPERTY - EASEMENTS
The applicant is the owner of a domestic property in Victor Harbor. The respondent, the City of Victor Harbor Council, is the owner of property adjacent to that property. Subsequent to her purchase of her land, the applicant discovered that a stormwater pipe ran under the front section of her property. It formed part of a local storm or water abatement scheme apparently installed at the time of subdivision of the property. The Council did not make the grant of an easement registered upon the title as a precondition to the consent for subdivision. The applicant became the registered proprietor of the land without notice of the existence of the pipe.
The applicant brought a proceeding in the minor civil (small claims) jurisdiction of the Magistrates Court seeking damages, inter alia, for nuisance, trespass and other remedies. Upon request of the Council, a magistrate made an order under s 19 Magistrates Court Act for the proceedings to be transferred to the District Court for hearing.
The applicant seeks a review of that decision of the learned Magistrate pursuant to s 38(6) and (7) Magistrates Court Act.
Whether the decision of the learned Magistrate is a reviewable decision for s 36(6) and (7) Magistrates Court Act.
Held:
1. The decision made in Magistrates Court is not a reviewable decision and any challenge to that decision must be the subject of an appeal to the Supreme Court.
2. The action is to proceed as a District Court action and orders for the management of the trial including for costs where appropriate to be made.
At the time the application for review first came before the District Court and when orders were made for the progress of the matter to trial, on 22 September 2022, no application had been taken by the Council for the grant of an easement pursuant to the Local Government Act 1999 (SA) and the Land Acquisition Act 1969 (SA). The Victor Harbor Council subsequently commenced a process under both of those Acts for the taking of an easement.
Whether the trial date set for 30 September 2022 should be vacated pending the further application of the Victor Harbor Council for orders for the grant of an easement.
Held:
3. In the exercise of the Court’s discretion, the trial date be vacated.
4. That the action fall into the ordinary list of civil cases in the District Court.
Magistrates Court Act 1991 (SA) s 3(1), s 19(1), s 38(6); Local Government Act 1999 (SA) s 191, R 21; Legislation Interpretation Act; Statute Amendment (Truth in Sentencing) Act 1994; Freedom of Information Act 1991 (SA) s 13; Motor Vehicles Act 1959 (SA) Part 4; “Statutory Interpretation in Australia” (9th Edition) D Pearce, LexusNexus Butterworths 2019; Real Property Act 1886 (SA) s 69, s 84; Land Acquisition Act 1969 (SA) s 6, s 10, s 12, referred to.
Owen v State of South Australia (1996) 66 SASR 251; Moloney v The Motor Accident Commission (2013) 117 SASR 189; Chevron Australia Holdings Pty Ltd v Commissioner of Taxation [2017] FCAFC 62; (2017) 251 FCR 40 ; Deguisa v Lynn [2020] HCA 39; 268 CLR 638, discussed.
Commissioner for Prices & Consumer Affairs (SA) v Charles Moore (Aust) Ltd (1977) 139 CLR 449 ; Wacando v Commonwealth (1981) 148 CLR 1; Commissioner of Taxation v Whitfords Beach Pty Ltd (1982) 150 CLR 355; Devine v Solomijczuk (1983) 32 SASR 538 ; Hoare v The Queen (1989) 167 CLR 348; Hadmor Productions Ltd v Hamilton [1983] 1 AC 191 ; Workers Rehabilitation and Compensation Corporation v Lu (1995) 183 LSJS 193 ; WorkCover Corporation of SA v Summers (1995) 65 SASR 243; State Government Insurance Commission v Paneros (1989) 51 SASR 213; Young v Bristol Aeroplane Co Ltd [1944] KB 718 ; Heydon's Case (1584) 3 Co Rep 7a; 76 ER 637 , considered.
HAMON v CITY OF VICTOR HARBOR
[2022] SADC 101
On 6 May 2022 I exercised my inherent discretion to dismiss this application by the applicant, Dr Hamon. In the application, Dr Hamon had sought a review of a decision made by a magistrate in a minor civil claim. I said that I would publish my reasons. These are those reasons.
Dr Rebecca Hamon is the registered proprietor of a domestic house property in Victor Harbor. This property runs generally in a north-south direction and at its southern end fronts onto the street which runs in a general east-west direction. At the western end of the street is another intersecting street which runs in a generally north-south direction and intersects with the street on which Dr Hamon’s property sits and to the west of Dr Hamon’s property.
There are domestic house properties to the west of the property owned by Dr Hamon. Four of those properties, numbered 10, 12, 14 and 16, front only onto the street. The next property, number 18, has frontages onto the side street as well.
There is an arrangement for the disposal of stormwater at the front of each of these blocks. It comprises, in part, an open drainage system and in part an underground pipe. For ease of reference, I will hereafter refer to it as “the waterway”. An inference arises on the papers that this waterway appears to have been in place since the subdivision of these blocks. It follows the course of a creek that previously existed in the area. That waterway is positioned about five metres north of the southern boundary of the blocks; this distance varies according to the particular block. There is a differential treatment of that waterway for blocks numbered 18, 16 and 14 than for blocks numbered 12, 10 and 8. For blocks numbered 18, 16 and 14, there is an open drain arrangement which is fortified by walls and some fences. These drains are crossed by driveways and bridgeways for access to the roadway.
The path of the waterway very near to the boundary of number 12 and number 14 is taken underground. A pipe has been laid underground across a small portion of number 14 and under all of number 12, number 10 and number 8. The pipe then continues on through the property at the eastern side of the street. By this method, the Council, as the relevant authority, has dealt with the discharge of stormwater that formerly drained naturally through the path of the creek. The evidence before me discloses that the pipe traverses about 15 metres of the property of Dr Hamon and for those 15 metres is underground.[1]
[1] Andrew & Associates survey plan dated 2 July 2020; Exhibit 5 to the Affidavit of Rebecca Elisa Hamon affirmed 18 September 2020.
The evidence before the court satisfies me that in the process of this subdivision, the Victor Harbor Council has dealt with the disposal of stormwater partly through an open drainage system with permanent walls and cross accesses, which progress down to a concrete plinth that is the commencement of the underground pipe which runs down to the eastern side of Dr Hamon’s property. At the eastern point of Dr Hamon’s property, there are two allotments, number 20 and 21 under division 120263. At least one (and perhaps both) of these appears to be owned by the Victor Harbor Council.
There is no clear evidence before me about when these waterway drainage works were done but it is plain enough that they were completed at the time of, or prior to, the land division for the blocks as part of a scheme for stormwater abatement. Later evidence which has been filed in this action discloses that the subdivision of the blocks took place some time in the 1960s and it may be presumed that the stormwater abatement scheme was completed then or very soon after that time. It is not necessary to reach any final conclusion about the date of the creation of these works by the Council. They were in place when Dr Hamon became the registered proprietor of the property.
The evidence discloses that Dr Hamon discovered the existence of this pipe when she was required to do plumbing work on her property. Photographs of the property in evidence show that trenches have been dug from Dr Hamon’s home down to a point very near to the boundary of the property. In the course of digging that trench, the pipe has been exposed. As a result of the discovery of this pipe, Dr Hamon commenced a proceeding in the minor civil jurisdiction of the Magistrates Court claiming damages for trespass, nuisance and for other remedies, all of which are connected to the presence of this pipe. The Council asked the Magistrates Court to exercise its discretion under s 19(1) Magistrates Court Act (MCA) to transfer the action to the District Court. That section provides as follow:
19—Transfer of proceedings between courts
(1) The District Court may order—
(a) that civil proceedings commenced in the Magistrates Court be transferred to the District Court; or
(b) that civil proceedings commenced in the District Court (but which lie within the jurisdiction of the Magistrates Court) be transferred to the Magistrates Court.
The Court heard argument on this application and in a decision of 1 February 2022, Magistrate White made orders that the proceedings be transferred to the District Court for hearing.
At [4] of her Honour’s decision, the learned magistrate summarised the proceeding that had been commenced by Dr Hamon. That paragraph provides as follows:
By her Originating Application Dr Hamon seeks a number of orders. In light of the issues that are determined in these reasons, it is necessary to set out the substantive relief claimed in full:
1. An extension of time under s.48 of the Limitation of Actions Act 1936 for the Applicant to bring the proceedings.
2. A declaration of trespass pursuant to ss.8 and 32 of the Magistrates Court Act 1991 (“the act”).
3. That the Respondent is liable for general damages/mesne profits and/or aggravated damages and/or exemplary damages, with quantum to be determined subsequently pursuant to s.33 of the Act.
4. Pursuant to ss.8 and 31 of the Act that the Respondent remove forthwith its stormwater infrastructure from the Applicant’s land and restore the land to its current condition and make good any consequential or incidental damage.
5. In the alternative to paras.2 and/or 3, pursuant to ss.8 and 31 of the Act, that the Respondent forthwith permanently seal the outlet located on the eastern wall of the detention basin located in the Russell Bird Reserve or take other such measure to prevent stormwater from said drainage basin entering the Applicant’s land.
6. In the further alternative to paras.2 and/or 3, pursuant to ss.8 and 31 of the Act, that the Respondent withdraw, cancel or otherwise notify affected property owners on Solway Crescent that any express or implied authorisations or representations made by the Respondent purporting to permit said owners to drain stormwater from their properties directly into the open drain or pipe located directly east of the Russell Bird Reserve are unlawful and invalid and, without the consent of all downstream property owners, such activity must cease immediately.
At [5] of her Honour’s decision, the learned magistrate explained that Dr Hamon had issued her proceedings in the civil (minor claims) division of the court because, as she said, the claim was a neighbourhood dispute within the meaning of s 3(1) of the Magistrates Court Act. Section 3(1) of that Act relevantly provides as follows:
3—Interpretation
(1) In this Act, unless the contrary intention appears—
interlocutory judgment includes—
an interlocutory order; and
an order or ruling relating to the admissibility or giving of evidence;
judgment means a judgment, order or decision and includes an interlocutory judgment;
minor civil action—see subsection (2);
minor statutory proceeding means—
an application under the Fences Act 1975; or
an application under Part 4 or section 33 of the Second-hand Vehicle Dealers Act 1995; or
(ba) an application under the Retail and Commercial Leases Act 1995, other than an application that involves a monetary claim for more than $12 000; or
(bb) an application under section 11(8) of the Second-hand Dealers and Pawnbrokers Act 1996; or
(bc) an application under Part 5 of the Building Work Contractors Act 1995; or
(bd) a transferred proceeding within the meaning of Part 3A of the South Australian Civil and Administrative Tribunal Act 2013; or
any other proceeding declared by statute to be a minor statutory proceeding;
neighbourhood dispute means a dispute between neighbours, or the occupiers of properties in close proximity, based on allegations of trespass or nuisance;
small claim means a monetary claim for $12 000 or less.
(2) Subject to subsections (3) and (4), a minor civil action is an action founded on—
(a) a small claim; or
(b) a claim for relief in relation to a neighbourhood dispute; or
(c) a minor statutory proceeding.
(3) If a claim that is not within one of the classes referred to in subsection (2) is introduced into a minor civil action, the action ceases to be a minor civil action unless the Court orders that the subsequent claim be tried separately.
(4) Subject to subsection (4a), if a neighbourhood dispute or a minor statutory proceeding involves—
(a) a monetary claim for more than $12 000; or
(b)a claim for relief in the nature of an order to carry out work where the value of the work is more than $12 000,
a party may elect, in accordance with the rules, to exclude the dispute or proceeding from the rules governing minor civil actions1, and in that case, the dispute or proceeding ceases to be a minor civil action.
The learned magistrate concluded that it was inappropriate to deal with the issues arising on the proceedings using Court Rules and Procedures that were designed to provide “…an abbreviated and informal process by which simple disputes between neighbours could be inexpensively resolved…”[2]
[2] At [7].
At [33], the learned magistrate decided that “the scope and complexity of the issues raised in the minor civil proceedings… prevent(ed) the matter from being heard as a neighbourhood dispute within the meaning of the Act.
Although the learned magistrate used the expression “prevent”, at [33], it is apparent that her Honour was there referring to the position that, when properly construed, the proceeding was not a minor statutory proceeding, it was not a neighbourhood dispute and, because of its complexity, it was not a small claim (viz s 3(1) of the Act).
At [30], her Honour considered the issues that may need to be determined at trial. There were 25 separate issues described by her Honour in a list that she said was not exhaustive and other obvious issues may arise. Her Honour said at [30] as follows:
Against that background, the most effective means by which to demonstrate the inappropriateness of this action being heard as a minor civil claim and/or categorised as a neighbourhood dispute is to list out the sort of issues that may need to be determined at trial, having regard to the content of the application and response.
1. What cause of action arises against the respondent?
2. How did the stormwater pipe come to be located within the applicant’s land?
3. Should it be in some other location?
4. Was it foreseeable that the location of the stormwater pipe would cause the applicant to suffer a loss?
5. Has the applicant in fact suffered a loss?
6. What obligations and duties might arise between local government and rate payers?
7. How do obligations that might exist at common law or in equity interact with obligations that arise under the Local Government Act 1999?
8. Could any remedy extend to the removal of the pipe or would it be limited to damages? How would those damages be assessed?
9. Do the circumstances warrant aggravated and/or exemplary damages?
10. Who does the stormwater pipe belong to?
11. If the stormwater pipe belongs to the respondent, was it installed with the knowledge and consent of the landowner at the time? Is the respondent entitled to rely on that knowledge and consent?
12. Is there any prejudice that arises because of the passage of time? How should that prejudice be addressed?
13. If the applicant purchased the property unaware of the existence of the stormwater pipe, did the respondent breach any obligation to disclose its presence? How, at law, would that obligation arise? What countervailing obligations did the applicant have to make inquiries at the time of purchase? Is there a need to join the vendor of the land and would a claim against the vendor be out of time?
14. Can the tort of trespass be made out against the respondent if the stormwater pipe was installed at the request of ratepayers and for their benefit?
15. Who, in fact, does the stormwater pipe benefit?
16. Do any interested third parties need to be joined to the action? Or at least heard? Would any insurance companies seek to be heard?
17. Can (and should) the court make declaratory orders concerning ownership of the pipe or trespass and what would be the practical effect of those orders?
18. To what extent should the court be concerned with the practical effect of any declaratory relief?
19. What are the limits of the Magistrates Court jurisdiction?
20. If the proceedings are not a neighbourhood dispute, could the applicant instead seek relief pursuant to s.8(1)(b) of the act. What would be the practical effect of her succeeding with such a claim?
21. Who is responsible for stormwater management and to what extent does that responsibility override the competing entitlements of an individual ratepayer?
22. Should an easement have been created/would an easement be appropriate? If so, does any legal remedy exist against the respondent because of the absence of an easement on the title?
23. Will the applicant give evidence that she would not have purchased the land if she had been alerted to the existence of the pipe by a registered easement? How will her loss be quantified?
24. Does the presence of the stormwater pipe have any bearing on the value of the applicant’s land? Does it affect the way in which the land can be used?
25. If the stormwater pipe belongs to the applicant, can she simply remove it?
Other obvious issues are, for example, the availability of remedies for the respondent. One example is that the Council may to make an application under s 191 of the Local Government Act (“LGA”) and regulation 21 of the LGA for an application under the Land Acquisition Act 1969 for the grant of an easement over the property owned by Dr Hamon which, if granted, would largely resolve the issues raised by Dr Hamon.
All of those are complex and difficult matters that fall well outside of the purview and obvious statutory intention and operation of a minor civil claim as defined in s 3(1) of the Act. The learned magistrate therefore decided that this was not a neighbourhood dispute and the relief sought by Dr Hamon was outside of the jurisdiction of the Magistrates Court. The learned magistrate considered the arguments of Dr Hamon that her claim against the council was “…grounded in the tort of trespass which may be considered as a neighbourhood dispute…” Her Honour did not accept this submission because the nature of this dispute, and the need for its determination, did not fall within what may be described as “…a dispute where the… complexity of the dispute justified departing from the usual court processes…” Her Honour held that in the main, neighbourhood disputes concerning nuisance and trespass, required little legal analysis in the context of the inquisitorial role of a Magistrate at first instance or a Judge on review.
On the question of the meaning of “neighbourhood dispute”, the learned magistrate addressed the essential issues whether the “…intention of Parliament was that every dispute between neighbours as occupiers of property in close proximity about, for example, a trespass, or a claim of nuisance, was required to be resolved in the small claims jurisdiction…”; viz definition of neighbourhood dispute in s 3(1) MCA.
There is an obvious tension between the words used in the section that fit such a claim and the inherent differences between “…pedestrian conflicts…” and complex large‑scale litigation on the same issues. To resolve that question, her Honour had regard to the debates in Parliament concerning the amendment to the Minor Civil Claims provisions in the MCA (at [23]-[29]). Although this is an issue for another place, it is apparent that the common law rules about statutory interpretation applicable in South Australia (prior to the commencement of the Legislation Interpretation Act 2021 on 1 January 2022) permit the approach taken by the learned magistrate in the circumstances earlier outlined by me. The decision of the Full Court of the Supreme Court of South Australia in Owen v State of South Australia (1996) 66 SASR 251, considered the termination of the previous sentencing remissions system and the meaning of a transitional section in the Statute Amendment (Truth in Sentencing) Act 1994 (SA). Cox J, who wrote the decision of the Court, held at 255-256 as follows:
The first question is whether we may have regard to the Hansard extract at all. It was for a long time the unqualified rule that the courts would not look to proceedings in Parliament or to parliamentary debates as an aid to the construction of a statute. In Commissioner for Prices & Consumer Affairs (SA) v Charles Moore (Aust) Ltd (1977) 139 CLR 449 it was held that the rule was too deeply entrenched to permit of any exception, even though this curial act of self-denial might on occasions produce unintended results. Any change in the common law position was peculiarly a matter for Parliament. See, for example, per Mason J at 477-478. However, the tide was turning and in Wacando v Commonwealth (1981) 148 CLR 1 at 25-27 and Commissioner of Taxation v Whitfords Beach Pty Ltd (1982) 150 CLR 355 at 373-374, Mason J himself said that there were grounds for making an exception to the general rule for the case where a Bill was introduced to remedy a mischief. His Honour considered that to have regard to the purpose for which the legislation was enacted, as stated by the Minister in charge of the Bill, would conform to the rule that extrinsic material is admissible to show the mischief which a statute is designed to remedy. However, in Devine v Solomijczuk (1983) 32 SASR 538 a majority of the Full Court held, notwithstanding Mason J's observation, that it was not permissible for the court to have regard in that case to a Minister's Second Reading Speech even for the limited purpose of discerning the mischief that the legislation in question was designed to remedy. They relied on the Charles Moore case: see per Mitchell J at 541 and per Zelling J at 545. Since that time, however, and despite the stand taken in Charles Moore, there have been many decisions in other State courts and in the Federal Court in which recourse has been had to Hansard to identify the mischief or purpose of disputed legislation. See D C Pearce and R S Geddes, Statutory Interpretation in Australia (4th ed, 1996), par 3.2. In Hoare v The Queen (1989) 167 CLR 348 the High Court, in the absence of any objection, was prepared to assume for the purposes of that case that the court was entitled to refer to ministerial statements to identify the mischief or purpose of a section of the Criminal Law Consolidation Act. In many places the curial development of the interpretation rules has been overtaken by statutory changes that go further than our Acts Interpretation Act 1915 (SA), and an occasion for the High Court to re-examine its position on the common law rule as stated in Charles Moore has evidently not arisen. However, things have not stood still. In 1992 the House of Lords greatly modified the traditional rule so as to permit reference to Parliamentary material as an aid to statutory construction where the legislation is ambiguous or obscure or would lead to absurdity, and thereby departed radically from the decision in Hadmor Productions Ltd v Hamilton [1983] 1 AC 191 which was an authority that Zelling J had cited in Devine v Solomijczuk. See Pepper v Han [1993] AC 593. Closer to home, the Full Court of this State in two recent decisions, Workers Rehabilitation and Compensation Corporation v Lu (1995) 183 LSJS 193 and WorkCover Corporation of SA v Summers (1995) 65 SASR 243, held that it was permissible for the court to have regard to Hansard to ascertain the purpose which Parliament in the relevant legislation sought to achieve. See also the earlier decision of White J in State Government Insurance Commission v Paneros (1989) 51 SASR 213 at 221-222. The judgments in those cases do not refer to the earlier decision of the Full Court in Devine v Solomijczuk or to the rule of practice that inhibits a Full Court from overruling an earlier decision of another Full Court unless it was plainly decided per incuriam or was inconsistent with higher authority or was, in the opinion of the second Full Court, clearly wrong. It may be that Devine v Solomijczuk was not cited to the court in those cases or that the court considered that the inhibitory rule of practice does not apply in this area. Be that as it may, the fact is that we are now faced with conflicting decisions of the Full Court on the subject and are obliged to choose between them: Young v Bristol Aeroplane Co Ltd [1944] KB 718 at 729. I have no doubt, for the reasons that have generally prevailed in other places since Devine v Solomijczuk was decided, that that case should now be regarded as having been overruled or, preferably perhaps, superseded in this respect. It is permissible to look at the Minister's Second Reading Speech on the 1995 amendment to s 20 of the Truth in Sentencing Act in order to identify the purpose of the amendment.
While the rule in Heydon's Case (1584) 3 Co Rep 7a; 76 ER 637 is traditionally expressed in terms of mischief or purpose, to the exclusion of intention, the difference between those concepts is often difficult to draw or apply in practice. Obviously the intention of Parliament will frequently be to remedy a mischief, so that an express statement of intention in a Second Reading Speech may well, without more, be a reliable indicator of the mischief to be cured or, to put it another way, the purpose to be served. A Second Reading Speech' will not necessarily be irrelevant, then, simply because it is couched in terms of intention.
The judgment of Cox J did not purport to set the outer limits of these principles. In Moloney v The Motor Accident Commission,[3] an appeal involving the meaning of s 13 of the Freedom of Information Act 1991 (SA) in the context of the operation of Part 4 of the Motor Vehicles Act 1959 (SA) White J said at [89]-[91]:
[3] (2013) 117 SASR 189.
The Bill for the 2001 Amendment was introduced into the Legislative Council by the Minister for Disability Services on 25 July 2001. His Second Reading Speech does not assist presently, because, at that time, the Bill contemplated that MAC would be an exempt agency entirely. However, during the debate on the Bill in Committee in the Legislative Council, the Minister moved an amendment which led to para (f) being enacted in its present form. The Minister said by way of explanation of the amendment:
The effect of this amendment is that the Motor Accident Commission would be an exempt agency, but only in relation to claims or actions under Part 4 of the Motor Vehicles Act, those documents presumably ordinarily being accessed through the ordinary process of discovery rather than by means of a freedom of information application. The commercial operations of the Motor Accident Commission would not be subject to freedom of information.
Later, the Minister said:
If we had simply carried over from the SGIC to the Motor Accident Commission we would have been creating too wide an exemption.
Although these statements were made by the Minister at the Committee stage, I consider that they form part of the extrinsic materials to which this Court may have regard. It is true that ordinarily this Court has regard only to the relevant Minister’s Second Reading Speech and not to the statements of individual members during debate on a Bill in order to ascertain the purpose or intention of an enactment. However the underlying principle upon which the court acts would permit it to have regard to a Minister’s statement of explanation of an amendment even if it is made in the Committee stage. That principle is that resort may be had to extrinsic material, including the relevant content of the Parliamentary debates, for the purpose of showing the mischief which the statute is designed to remedy or purpose sought to be achieved.
In the present case, the relevant statement of purpose is that of the Minister when introducing his amendment to the Government’s own Bill. The happenstance that that occurred in the Committee stage, rather than in the Second Reading Speech is, to my mind, immaterial.
This approach is consistent with a large number of other decisions upon the same topic. They are usefully gathered in paragraph 3.8 of the annexure to the text “Statutory Interpretation in Australia”.[4]
[4] Pearce, D, Statutory Interpretation in Australia 2019 (9th Edition) LexusNexus Butterworths.
In the interpretation of the Magistrates Court Act, the learned magistrate did not adopt an approach of narrow textualism and her Honour also took into context the necessity to give the statute: “…the place, the wholeness and the relational reality to (the) words (used)…”; Chevron Australia Holdings Pty Ltd v Commissioner of Taxation.[5]
[5] [2017] FCAFC 62; (2017) 251 FCR 40 at [3] per Allsop CJ.
In that background, the learned magistrate has decided that under the operation of s 19(1) of the Act, it was appropriate to make an order that the proceedings commenced in the Magistrates Court be transferred to the District Court.
For the reasons which follow, I am of the opinion that this decision of the learned magistrate is not a reviewable decision under s 38(6) and (7) MCA. Those subsections provide as follows:
(6)The District Court (constituted of a single Judge) may, on the application of a party dissatisfied with a judgment given in a minor civil action, review the matter.
(7) The following provisions apply to such a review by the District Court:
(a) subject to paragraph (ab), the right of a party to be represented by a legal practitioner at the review will be determined in accordance with subsection (4);
(ab) if, in the case of a review that relates to a minor civil action in respect of a transferred proceeding within the meaning of Part 3A of the South Australian Civil and Administrative Tribunal Act 2013, a party was represented by a legal practitioner at the proceeding, then the party may be represented by a legal practitioner at the review by the Court;
(b) the Court may inform itself as it thinks fit and, in doing so, is not bound by the rules of evidence;
(c) the Court may, if it thinks fit, re-hear evidence taken before the Magistrates Court;
(d) in determining the matter, the Court may—
(i) affirm the judgment; or
(ii)rescind the judgment and substitute a judgment that the Court considers appropriate; or
(iii)if the review arises from a default judgment or summary judgment, rescind the judgment and—
(A) substitute a judgment that the Court considers appropriate; or
(B)remit the matter to the Magistrates Court for hearing or further hearing;
(e) in hearing and determining the review, the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
The learned magistrate has decided, for the reasons set out in her detailed decision, that because of the complexity of the action, and although the action has been commenced as a minor civil action, it should proceed in the usual way as a civil claim in the District Court.
The learned magistrate has therefore exercised her discretion to make an order under s 19(1) of the Act. The life of the action now reposes in the District Court. This leads inevitably to the conclusion that as a final order has been made by the learned magistrate, the only avenue of review of this decision by Ms Hamon is via an appeal to the Supreme Court. I do not need to reach a final conclusion on that argument as, on a proper analysis, the same result pertains where the decision of the learned magistrate is treated as being merely interlocutory. In turn, this means that rights of appeal provided under s 40(1) MCA are preserved as the action is no longer a Magistrates Court action. That section provides:
A party to a civil action (except a minor civil action) may, in accordance with the rules of the Supreme Court, appeal against any judgment given in the action.
For the reasons given, the exclusion in that subsection has no application. Dr Hamon has the right of appeal to the Supreme Court under that section and as a consequence, the review provisions in s 38(6) and (7) of the Act have no application. The same result pertains if the decision of the learned magistrate is viewed as merely an interlocutory decision. Any appeal from such a decision will involve a review by the Supreme Court of the merits of the Magistrates Court action, but in the context of the exercise of the discretion by the learned magistrate under s 19(2) of the Act.
For those reasons, I decided that the review commenced under s 38 (6) and (7) of the MCA should be dismissed on 6 May 2022. It was not a properly constituted application for review before this Court. Any challenge by Dr Hamon to the decision of the learned magistrate must be heard by way of appeal to the Supreme Court. I exercised my inherent discretion accordingly.
That is not the end of the matter. I made orders and gave directions for the continuation of the action in this court on 6 May 2022. This was the date that the application for a minor civil review first came before me. The status of the action was that it was a properly constituted action before the District Court. The action is based upon the pleaded cases of both parties concerning the existence under the land of Dr Hamon of the pipe discharging water flowing from west to east through that pipe as part of the council drainage system.
Accepting only for the purposes of discussion that Dr Hamon did not know of the pipe and there is no argument possible of any implied easement arises in some prescriptive way, it may be accepted that following the decision of the High Court in Deguisa v Lynn [2020] HCA 39 (“Deguisa”)[6] that Dr Hamon took the land without notice of any right inconsistent with her enjoyment of the land (above, on or below it but subject to the operation of such legislation as the Mining Act 1971). So much is made quite plain by s 84 Real Property Act 1886 (“RPA”) which provides:
No easement hereafter created by express grant or transfer over or in respect of any servient land under the provisions of this Act shall be binding on any registered proprietor subsequently taking the land bona fide for valuable consideration, unless such easement shall be entered on the certificate of such land.
[6] Deguisa v Lynn [2020] HCA 39; 268 CLR 638.
The principles in Deguisa reflect on the operation of s 69 of the RPA which provides:
The title of every registered proprietor of land shall, subject to such encumbrances, liens, estates, or interests as may be notified on the certificate of title of such land, be absolute and indefeasible, subject only to the following qualifications:
(a) Fraud
in the case of fraud, in which case any person defrauded shall have all rights and remedies that he would have had if the land were not under the provisions of this Act: Provided that nothing included in this subsection shall affect the title of a registered proprietor who has taken bona fide for valuable consideration, or any person bona fide claiming through or under him;
(b) Forgery or disability
in the case of a certificate or other instrument of title obtained by forgery or by means of an insufficient power of attorney or from a person under some legal disability, in which case the certificate or other instrument of title shall be void: Provided that the title a registered proprietor who has taken bona fide for valuable consideration shall not be affected by reason that a certificate other instrument of title was obtained by any person through whom he claims title from a person under disability, or by any of the means aforesaid;
(c) Erroneous inclusion of land
where any portion of land has been erroneously included, by wrong description of parcels or boundaries, in the certificate of title or other instrument evidencing the title of the registered proprietor: In which case the rights of the person who but for such error would be entitled to such land shall prevail, except as against a registered proprietor taking such land bona fide for valuable consideration, or any person bona fide claiming through or under the registered proprietor;
(d) Omission of easement
where a right-of-way or other easement not barred or avoided by the provisions of the Rights-of-Way Act 1881, or of this Act, has been omitted or mis-described in any certificate, or other instrument of title: In which case such right-of-way or other easement shall prevail, but subject to the provisions of the said Rights-of-Way Act 1881 and of this Act;
(e) Several certificates for the same land
where 2 or more certificates of title shall be registered under any of the Real Property Acts in respect of the same land: In which case the title originally first in time of registration shall prevail but without prejudice to the effect of anything done under Part 19A of this Act;
(f) Certificate of title to be void if any person is in possession and rightfully entitled adversely to the first registered proprietor
any certificate of title issued upon the first bringing of land under the provisions of any of the Real Property Acts, and every certificate of title issued in respect of the said land, or any part thereof, to any person claiming or deriving title under or through the first registered proprietor, shall be void, as against the title of any person adversely in actual occupation of, and rightfully entitled to, such land, or any part thereof at the time when such land was so brought under the provisions of the said Acts, and continuing in such occupation at the time of any subsequent certificate of title being issued in respect of the said land;
(h) A lease or letting for not more than a year
where at the time when the proprietor becomes registered a tenant shall be in actual possession of the land under an unregistered lease or an agreement for a lease or for letting for a term not exceeding one year: In which case the title of the tenant under such lease or agreement shall prevail;
(i) Failure of mortgagee to comply with verification requirement if—
(i)the person by or on whose behalf a mortgage was signed or executed as mortgagor (the purported mortgagor) is not the registered proprietor of land subject to the mortgage; and
(ii)the mortgagee failed to comply with a requirement under this Act or the Electronic Conveyancing National Law (South Australia)—
(A)to verify the purported mortgagor's identity or authority to enter into the mortgage; or
(B)if the mortgage was transferred to the mortgagee—to establish that the transferor complied with an obligation imposed under this Act on the transferor, as mortgagee, to verify the identity of the purported mortgagor or to verify the purported mortgagor's authority to enter into the mortgage,
the mortgagee's interest under the mortgage is not indefeasible.
There is no evidence of an easement created by express grant or transfer over or in respect of the land owned by Dr Hamon (as the servient land) at that time she became registered proprietor. The Council apparently did not consider the need for such an easement at the time that the pipe was installed and the subdivision was created.
Section 191 of the Local Government Act1999 (“LGA”) provides:
191—Compulsory acquisition of land
(1) A council may, with the Minister's written approval, acquire land compulsorily.
(2) However, Ministerial approval is not required for the compulsory acquisition of land for a purpose classified by the regulations as an approved purpose.
(3) The Land Acquisition Act 1969 applies to the acquisition of land under this section.
Regulation 21 of the LGA provides:
Pursuant to section 191(2) of the Act, the following are classified as approved purposes for which Ministerial approval is not required for the compulsory acquisition of land:
(a) a purpose for which the compulsory acquisition of land is approved or authorised under an Act;
(b) for the acquisition of land required for the construction of a community wastewater management system;
(c) for the acquisition of land required for the purpose of carrying out work for the prevention or mitigation of floods.
For the reasons which follow (connected with the operation of s 10 of the Land Acquisition Act 1969), the applicable subparagraph is Regulation 21(a) by virtue of the operation of s 191(2) and (3) of the LGA.
Section 10 of the Land Acquisition Act 1969 provides:
10—Notice of intention to acquire land
(1) Subject to this Act, if the Authority proposes to acquire land (other than native title), the Authority must give a notice of intention to acquire the land to each person whose interest in the land is subject to acquisition, or such of those persons as, after diligent inquiry, become known to the Authority.
(2) If the Authority proposes to acquire native title in land, the Authority must—
(a)if there is a native title declaration for the land—give notice of intention to acquire the land to the registered representative of the native title holders and the relevant representative Aboriginal body;
(b) if there is no native title declaration for the land—
(i)give a notice of intention to acquire the land to all persons who hold, or may hold, native title in the land;1 and
(ii) in a case to which Part 4 Division 1 applies—
(A)give a copy of the notice of intention to acquire the land to the Registrar of the ERD Court and the Commonwealth Registrar; and
(B)as soon as practicable after completing all requirements for service of the notice, give the Registrar of the ERD Court, the Commonwealth Registrar, the relevant representative Aboriginal body and any other prescribed persons a statutory declaration—
•specifying the steps that have been taken to effect service, the date of each step, and when the requirements for service were completed; and
•exhibiting any supporting materials required under the regulations.
(3) The notice of intention to acquire the land must comply with the following requirements:
(a) it must define the subject land with reasonable particularity; and
(ab) it must set out the operation of section 26B; and
(b)if Part 4 Division 1 applies to the proposed acquisition—it must include a statement that Aboriginal groups who are not registered, and have not applied for registration, under the law of the State or the Commonwealth as holders of or claimants to native title in the land but want to participate in the negotiations must take the necessary steps under that law to become native title parties in relation to the relevant land within three months after service of the notice; and
(c) if—
(i) the Authority is the Crown or an instrumentality of the Crown; and
(ii) the Authority proposes to acquire native title; and
(iii)the Authority does not propose to acquire the land for the purpose of conferring rights or interests on someone other than the Crown or an instrumentality of the Crown,
it must state that the purpose of the acquisition is to confer rights or interests in relation to the land on the Crown or an instrumentality of the Crown.
(4) If the Authority changes the boundaries of the land it proposes to acquire in any respect, the Authority must immediately serve a notice of amendment to the notice of intention to acquire the land on the same persons as the notice of intention to acquire.
(4a) To avoid doubt, a notice under subsection (4)—
(a)need not be given to a person in the same way as the notice of intention to acquire land was given to the person; and
(b) does not constitute a new notice of intention to acquire the relevant land.
(5) However, a notice of amendment need not be given to a person who was given notice of intention to acquire the land if—
(a) the notice of intention to acquire was given because the person held an interest in the land and the person no longer holds that interest; or
(b) the notice of intention to acquire was given because the person claimed to hold an interest in the land and—
(i) the claim has been abandoned; or
(ii)a court has determined the claim and found that the claimant has no
interest in the land.
(6) A notice of intention to acquire land does not bind the Authority to acquire the subject land.
Section 10 of the Land Acquisition Act 1969 operates if an Authority proposes to acquire land. Under s 6 of that Act, land is defined to mean ‘including an interest in land.’ “Interest in land” is separately defined as follows:
‘Interest in land’ means:
(a) …; or
(b) An easement, right, power, or privilege in, under, over, affecting, or in connection with, the land; or
(c) …
It follows that, for the purposes of s 10(1) of the Land Acquisition Act 1969, if an Authority proposes to acquire land, then this includes an interest in land which in turn, is defined to mean an easement. I think it is well settled that under s 10(1) of that Act, the Authority proposing to acquire land may, by operation of the interpretation provision, acquire an easement in the land.
By operation of s 191 LGA, the Council is an Authority for s 10 of the Land Acquisition Act. Under the operation of that Act, Dr Hamon has a right to object under s 12 which provides as follows:
12—Right to object
(1) A person who has an interest in the subject land may within 30 days after notice of intention to acquire the land is given or, if an explanation of the reasons for the acquisition is required, within 30 days after the explanation was provided, by written notice—
(a)request the Authority not to proceed with the acquisition of the subject land; or
(b) request an alteration in the boundaries of the subject land; or
(c)request that a particular part of the subject land be not acquired, or that further land be acquired.
(2) For the purposes of this section—
(a)the registered representative of claimants to, or holders of, native title in land is taken to have an interest in that land; and
(b)the relevant representative Aboriginal body is taken to have an interest in the land if—
(i) the land is native title land; and
(ii) there is no native title declaration for the land; and
(iii) —
(A)there are no registered representatives of claimants to native title in the land; or
(B)an Aboriginal group that claims to hold native title in the land and for which there is no registered representative has, in accordance with the regulations, authorised the representative Aboriginal body to act on its behalf.
(3) A request may be made under subsection (1)—
(aa)on the ground that acquisition of the land or a particular part of the land is not necessary for the purposes of carrying out the undertaking to which the acquisition relates; or
(a)on the ground that acquisition of the land or carrying out the purposes for which the acquisition is proposed would—
(i) seriously impair an area of scenic beauty; or
(ii)destroy, damage or interfere with an Aboriginal site within the meaning of the Aboriginal Heritage Act 1988; or
(iii)destroy or impair a site of architectural, historic or scientific interest; or
(iv)prejudice the conservation of flora or fauna that should be conserved in the public interest; or
(v) prejudice some other public interest; or
(b) on some other ground stated in the request.
(4) The Authority must consider any request made to it under this section and must, within 14 days after receipt of the request, serve notice in writing on the person by whom the request was made, indicating whether it accedes to, or refuses, the request.
If the Council, as the Authority, refuses this request, there is a right of review for Dr Hamon under s 12A of the Land Acquisition Act 1969. It is unnecessary that I consider the content of the Land Acquisition Act 1969 any further.
My review of the applicable South Australian legislation discloses that by operation of s 6 and s 10 of the Land Acquisition Act 1969, the Council, as an Authority, may obtain an interest in the land of Dr Hamon in the form of an easement for the stormwater pipe. In ordinary circumstances, the appropriate process for the council was to have required the grant of an easement for stormwater drainage as a condition of the grant of consent for the subdivision of the land. That easement would then run with the land and any subsequent registered proprietor would take an interest in the land with notice of that registered easement and thereby be bound by that registered interest. For reasons that appear to have been lost in the mist of time, this was not done by the council. It is therefore left, as an Authority, with the rights granted to it under the Land Acquisition Act 1969. It may be accepted that Dr Hamon did not know of and as a purchaser she was not made aware of the existence of the stormwater pipe at the time she became a registered proprietor of the property.
Dr Hamon then took an action in the minor civil claims jurisdiction of the Magistrates Court alleging that the pipe was, inter alia, a form of trespass and nuisance. It was upon that action, as pleaded, that the learned magistrate made her decision to transfer the action to this Court.
That decision is not reviewable in this Court; if it is challenged, it must be the subject of an appeal to the Supreme Court of South Australia.
At the hearing before me on 6 May 2022, I raised with counsel for the Victor Harbor Council whether any thought had been given to use the mandatory provisions available to the council to acquire a superior interest in the land through an easement (Deguisa, supra). It became apparent to me that the council had not given any thought to that possibility. In that context, I made orders for the continuation of Dr Hamon’s action in the District Court. I gave directions for the filing of further pleadings, for discovery and other ancillary orders. I also made an order that the action be heard in this court on 22 September 2022. In the whole of that context, including the fact that it was apparent no thought had been given by the Victor Harbor Council to the obtaining of an easement in relation to the pipe, I received an application from Dr Hamon that I make a costs order of the action that any cost be limited to the scale that would otherwise be applicable in a minor civil review. Over the opposition of counsel for the Council, I made the following orders:
The trial of this action is set for 30 September 2022, one day set aside; subject always to the right of the parties at any time and from time to time to make any application on the question of costs of the action or of any step in the action, and subject always to the absolute discretion of the court to make any other or different order as to costs of the action or of the quantum thereof, the costs of this action are to be determined in accordance with the rules and principles applicable to a small claim in the Magistrates Court.
A proper reading of this order is that I have not circumscribed my discretion on costs in any hearing in the District Court. The order recognises that the issue remains minor, compounded by the presence of the pipe and its consequences. An argument was put by the Council that the pipe was a fixture and that this, in some way, assisted the Council. The merit of that argument was then and still remains unclear to me. If the pipe is a fixture, it is owned by Dr Hamon as the registered proprietor of the property and the Council can have no interest in the pipe. This argument did not assuage the obvious concerns that I had about the position of the Victor Harbor Council not being settled.
Consistent with the views that I expressed on 6 May 2022, on 3 August 2022, the Victor Harbour Council brought the following application.
1. The trial date listed on 30 September 2022 be vacated;
2. That Orders 4-9 made by the Court on 6 May 2022, requiring the parties to do various things in preparation for Trial, be dispensed with;
3. Any other orders this Honourable Court deems fit to make.
The application as supported by an affidavit of a solicitor, the pertinent paragraphs of which are as follows:
4.This affidavit is sworn in support of the respondent’s interlocutory application filed contemporaneously herewith, which seeks the following orders:
4.1 The trial date listed on 30 September 2022 be vacated.
4.2 That Orders 4-9 made by the Court on 6 Ma6y 2022, requiring the parties to do various things in preparation for Trial, be dispensed with.
4.3 Any other orders this Honourable Court deems fit to make.
5.These proceedings concern a subterranean stormwater pipe (Pipe) which runs through the applicant’s property located …….. (Property).
6.The applicant alleges that the respondent owns the Pipe and is by virtue of the location of the Pipe trespassing on the Property. The applicant seeks various orders in relation to, or to remedy, the alleged trespass.
7.The respondent denies that it is liable to the applicant on the basis alleged, or at all.
8.I am informed by Kathy Hayter (who is employed by the respondent as Director of Environment and Infrastructure) and verily believe that on 25 July 2022 the respondent’s elected members unanimously passed a resolution authorising the respondent to negotiate and ac quire an easement at the Property in the location of the Pipe (Resolution).
9.I am instructed that the respondent is pursuing the Resolution without any admission that it is currently liable to the applicant or interfering with the Property in any way.
10.The respondent wrote to the applicant by letter dated 12 July 2022 informing her that the Council was investigating the merits of obtaining drainage easements over the Property and the properties located at 10, 12, 14, 16 and 18 ……... Exhibited hereto and marked AJB1 is a true and correct copy of that6 letter.
11.The respondent wrote to the applicant by letter dated 3 August 2022 informing her of the Resolution. Exhibited hereto and marked AJB2 is a true and correct copy of that letter.
12.I am instructed by Chris Bowey (who is employed by the respondent as Team Leader Property) and verily believe that the respondent anticipates:
12.1 that a letter will be sent to the applicant over the coming fortnight which will enclose a formal easement plan and an offer which, if accepted, will result in the respondent ac quiring an easement over the Property by agreement.
12.2 that the respondent will attempt to negotiate for an easement to be acquired by consent of the applicant, and that this negotiation period will take approximately 3 months (based on his past experience in such matters). It is anticipated that this period of time will allow for the applicant to consider the respondent’s offer, allow the applicant to obtain any legal or valuation advice relating to the offer and / or acquisition process, correspondence to pass between the applicant and respondent, and for any meeting to take place regarding the proposal; and
12.3 in the event that all reasonable avenues of negotiation between the applicant and respondent relating to obtaining the easement by consent are exhausted, the respondent anticipates serving the applicant with notice of its intention to acquire an easement as required by section 10 of the Land Acquisition Act 1969.
13. Given the nature of these proceedings and with reference to the orders sought by the applicant, the Resolution and subsequent steps to be taken by the respondent in furtherance of the Resolution will have a significant impact upon the litigation and in particular the content and form of the pleadings and the issues in dispute.
14. Upon the acquisition of the easement foreshadowed in the Resolution, the respondent’s position in the proceedings is likely to include that there can be no allegation of ongoing trespass or other unlawful interference with the applicant’s land or legal rights. I say further that the utility of the continuation of the proceedings upon the acquisition of an easement by the respondent is unclear.
15. I am instructed to seek that the trial date listed on 30 September 2022 be vacated to allow for the respondent to:
15.1complete the acquisition of an easement as contemplated by the Resolution;
15.2reconsider its position in relation to these proceedings upon said completion; and
15.3for any subsequent negotiation between the applicant and respondent to take place, with respect to matters arising out of the alleged trespass resulting from the presence of the Pipe.
On 6 May, I also made an order for the action to proceed to trial in September 2022. I made that order because the action falls into a reasonably concise set of factual circumstances, all of which could be agreed. That is, the matter could be argued as a commercial cause, subject, of course, to any evidence to be led in relation to questions of damage. In the event that the council prosecutes and is successful in its application under the Land Acquisition Act 1969, it is apparent that a number of the claims for damage may also fall away. However, that is a matter about which I can make no prediction at the moment because the application will be determined elsewhere. That being the case, and bearing in mind the importance of the intended application by the Victor Harbor Council and the significant effect its result will have upon these proceedings, I then made a decision to exercise my discretion to vacate the trial date that I had given for the action. The trial is now to fall into the general list for trials in the District Court. It will therefore attract a trial date in 2023. In order to ensure the protection of the interests of Dr Hamon, I have decided that I will continue to manage the matter rather than send the action back to the Masters’ list. The respondent council has announced that it will commence the appropriate application under the Land Acquisition Act 1969.
Within that process, there are rights of objection and rights of review. It is not until those matters have been resolved that the claim of Dr Hamon should proceed in this Court because the resolution of the Land Acquisition Act 1969 process may have a significant effect upon the remedies sought by Dr Hamon. It is impossible to predict what may develop from that application and, in the exercise of my discretion, it is appropriate that time be given for the resolution of that application. That is also a matter which is necessary for this Court to keep under review.
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