Horton v Palerang Council
[2012] NSWLEC 215
•14 September 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: Horton v Palerang Council [2012] NSWLEC 215 Hearing dates: 14 September 2012 Decision date: 14 September 2012 Jurisdiction: Class 3 Before: Craig J Decision: 1. Stand over the respondent's notice of motion to Friday 5 October 2012 for hearing.
2. Direct that by 4.00pm on Thursday 27 September 2012 the applicant serve upon the solicitors for the respondent a document identifying the particular statutory or regulatory provisions upon which he relies to assert that the Court has jurisdiction to entertain the claim identified in the statement of facts and contentions filed by him on 5 September 2012.
3. Direct that by 4.00pm today (14 September 2012) the solicitors acting for the Council forward by email to [email protected] a letter notifying the basis upon which the Council claims that the appeal filed by the applicant pursuant to s 574 of the Local Government Act 1993 is time barred.
4. The applicant must pay the respondent's costs of today.
Catchwords: INTERLOCUTORY APPLICATION - motion to strike out proceedings - litigant in person - basis for exercise of jurisdiction not apparent - application for adjournment - applicant to seek legal advice - adjournment granted Legislation Cited: Local Government Act 1993
Local Government (General) Regulation 2005Category: Interlocutory applications Parties: Derek Horton (Applicant)
Palerang Council (Respondent)Representation: COUNSEL
n/a (Applicant)
Dr S Berveling (Respondent)
SOLICITORS
Self represented
Forbes Dowling Lawyers (Respondent)
File Number(s): 30532 of 2012
EX TEMPORE Judgment
These proceedings come before me today by reason of a notice of motion filed by the Palerang Council (the Council) on 17 August 2012. That notice of motion seeks an order that the application commencing the proceedings be struck out and the proceedings dismissed. The basis for that notice of motion is, in substance, that the Court lacks jurisdiction to entertain the proceedings.
On 8 May last, Mr Horton, the applicant, commenced these proceedings in Class 3 of the Court's jurisdiction. He did so as a litigant in person. His Class 3 application seeks to identify the basis for his claim in two ways. The type of claim is said to be one brought under "Section 574 - Miscellaneous Appeal". That would appear to be an intended reference to s 574 of the Local Government Act 1993. His Class 3 application also identified the Local Government (General) Regulation 2005 as being the "Act or instrument" under which proceedings were brought. Reference in that context is made to "Reg 127(f)".
The orders sought in Mr Horton's Class 3 application were expressed as follows:
"General Damages: $ 1,000
Aggravated Damages: $ 10,000
Exemplary Damages: $100,000".
The basis upon which these orders were claimed was not stated.
Attached to the Class 3 application is a copy of Rate Instalment Notice issued by the Council for the 2011-2012 financial year and stated to have been posted on 26 April 2012. The Rate Notice indicates that arrears of $524.08 were "payable immediately" and that the "fourth instalment" due on 31 May 2012, was in the sum of $172.00.
A request for particulars sought by Mr Horton from the Council, together with the Council's response, would seem to indicate that the basis for Mr Horton's claim is really one for account, having regard to payments said to have been made by him and rates and charges levied against him, as those rates and charges have been identified in a number of notices served over recent years. In short, Mr Horton's claim seems to be that he has not been given credit for payments made by him or that amounts levied or purported to be levied as rates and charges do not reflect amounts that the Council may properly impose upon him as rates and charges. That summary of position may not ultimately do justice to the claim that Mr Horton seeks to make although the true basis of his claim remains quite unclear.
The Council's notice of motion seeking to strike out the claim is supported by an affidavit sworn by its solicitor, Mr Jonathan Idas. Mr Idas identifies the Rate Notice that appears to be foundation for Mr Horton's claim, it being the notice annexed to the Class 3 application, and indicates that no information has been provided to indicate the basis upon which an appeal pursuant to s 574 of the Local Government Act 1993 is maintained. Mr Horton had been directed to file a Statement of Facts and Contentions in accordance with the Court's Practice Note but such documents as he has filed do not appear to direct themselves to the provisions of that section.
As was made clear to Mr Horton by me, the Court's jurisdiction is not at large in relation to the payment of rates, but rather the basis for appeal under s 574 is confined to the matters identified in paragraphs (a) and (b) of subsection (1) of that section. He did not appear to be basing his claim upon the rateability of his land for any particular rate.
The Council's notice of motion was originally returnable before the Court on 24 August, 2012. However, the matter was adjourned on that day because Mr Horton was unable to attend, due to storm damage that was occasioned on the previous day to the dwelling on his land.
When the matter came before me today, the Council indicated that it wished to proceed with the hearing of its notice of motion. As a consequence, Mr Horton was asked to explain the basis upon which the Court had jurisdiction to entertain his claim and, in particular, the basis upon which he sought to sustain the claim for damages that he had made. He was unable to identify any statutory provision that assisted his position. However, he also stated that he had spoken to a solicitor last night and as a result of advice given at that time, he sought an adjournment so that he could further consider his position and pursue more detailed advice.
Dr Berveling, appearing for the Council, opposed Mr Horton's application for an adjournment. Alternatively, he indicated that if an adjournment was to be granted then the Council would seek to have Mr Horton pay its costs thrown away by reason of the adjournment.
As a result of matters put to me by Mr Horton, it seems that until he received the legal advice given to him last night, coupled with observations made during the course of the hearing today, insufficient attention had been given by him to the basis upon which the Court could entertain his proceedings. His wish to obtain further legal advice so that he could consider his position seemed to me to be appropriate and so I foreshadowed that I would accede to his application.
At one point, Mr Horton foreshadowed that he may wish to discontinue the proceedings. To enable him to consider his position, including the implication for costs that such course may have, I granted a short adjournment.
Upon resumption, Mr Horton indicated his understanding that if the proceedings were to be adjourned it was likely that he would have to pay the costs of today. Notwithstanding the potential for such an order, he pursued his application for an adjournment.
I should add that in the course of making his submissions, Dr Berveling indicated that apart from the jurisdictional argument already identified, he also intended to argue that any appeal under s 574 of the LocalGovernment Act was now time barred. This, he said, was a consequence of the operation of subsection (3) of that section. This submission having been raised, it seemed to me all the more important that Mr Horton be given the opportunity to seek advice and otherwise consider his position in relation to the Council's Notice of Motion.
In the circumstances, I have acceded to the application for an adjournment that Mr Horton makes. Given that his application had not been foreshadowed to the Council and that it had come prepared to argue the matter today, it seemed to me that the proper exercise of my costs discretion was to require that Mr Horton pay the Council's costs of today.
As will be apparent from the orders that I am about to announce, it is important that Mr Horton, aided by such assistance as might be given to him, identify the statutory basis upon which the Court is able to entertain his claim which, as presently understood, would seem to be a claim for account. It is also important that the Council identify to Mr Horton the basis for the argument that if his claim is otherwise able to be made pursuant to s 574(1) of the Local Government Act, it is nonetheless time barred by the provisions of subsection (3) of that section.
Orders
The orders that I make are these:
1. Stand over the respondent's notice of motion to Friday 5 October 2012 for hearing.
2. Direct that by 4.00pm on Thursday 27 September 2012 the applicant serve upon the solicitors for the respondent a document identifying the particular statutory or regulatory provisions upon which he relies to assert that the Court has jurisdiction to entertain the claim identified in the statement of facts and contentions filed by him on 5 September 2012.
3. Direct that by 4.00pm today (14 September 2012) the solicitors acting for the Council forward by email to [email protected] a letter notifying the basis upon which the Council claims that the appeal filed by the applicant pursuant to s 574 of the Local Government Act 1993 is time barred.
4. The applicant must pay the respondent's costs of today.
**********
Decision last updated: 17 September 2012
0
2