Horton v Palerang Council (No 2)
[2012] NSWLEC 229
•05 October 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: Horton v Palerang Council (No 2) [2012] NSWLEC 229 Hearing dates: 5 October 2012 Decision date: 05 October 2012 Jurisdiction: Class 3 Before: Craig J Decision: 1. Strike out the application filed on 8 May 2012 for want of jurisdiction.
2. The applicant must pay the respondent's costs.
3. Exhibits may be returned.
Catchwords: PROCEDURE - Class 3 application - appeal pursuant to s 574 Local Government Act 1993 - basis for appeal not sufficiently made out - motion to strike out application - no jurisdiction - out of time - s 574(3) of the Local Government Act 1993 - proceedings struck out
COSTS - self-represented litigant - several opportunities given to identify basis for exercise of jurisdiction - no rational basis demonstrated - fair and reasonable that applicant pay respondents costsLegislation Cited: Land and Environment Court Act 1979
Land and Environment Court Rules 2007
Local Government Act 1993Cases Cited: Kyogle Shire Council v Muli Muli Local Aboriginal Land Council [2005] NSWCA 4; (2005) 62 NSWLR 361 Category: Procedural and other rulings Parties: Derek Horton (Applicant)
Palerang Council (Respondent)Representation: COUNSEL
n/a (Applicant)
Dr S M Berveling
SOLICITORS
Self represented (Applicant)
Forbes Dowling Lawyers (Respondent)
File Number(s): 30532 of 2012
EX TEMPORE Judgment
Palerang Council moves to strike out the Class 3 Application filed by Mr Horton on 8 May 2012. This Application was prepared by Mr Horton without the benefit of legal advice or assistance. Mr Horton has continued to represent himself in these proceedings.
Mr Horton's Class 3 Application is described as involving a claim under "Section 574-Miscellaneous Appeal". That description, as is now acknowledged, was a reference to an appeal pursuant to s 574 of the Local Government Act 1993. Annexed to the Class 3 Application is a Rate Instalment Notice, being the notice sent to Mr Horton by the Council for the fourth instalment of rates due for the 2011/2012 year.
The orders sought in Mr Horton's Application were stated as being:
"General Damages - $1,000
Aggravated Damages - $10,000
Exemplary Damages - $100,000"
The basis upon which those claims were made was not then and has not since been articulated by Mr Horton.
In accordance with the Court's practice requirements for proceedings of this kind, Mr Horton was required to file a Statement of Facts and Contentions (the Statement), being those facts on which he relied and those contentions which he proposed to make in support of his appeal.
The first attempt to provide the Statement was a document prepared by him on 16 August 2012. Without intending undue criticism of that document, it clearly demonstrated that the fundamental concern of Mr Horton was to require an account which, in his terms, properly accounted for payments that he had made and properly identified the amount of rates and charges that had been imposed on his land over a number of years, commencing in 2007 and extending through to 2012. This was not a document sufficiently identifying the basis of any claim falling within the terms of his Application to the Court.
Having been so advised on behalf of the Registrar, on 24 August a second document prepared in purported compliance with the requirement to file the Statement was provided. That document simply claimed that particulars of arrears of rates that had been sought by Mr Horton from the Council had not been supplied. Mr Horton was then directed to file the Statement in accordance with the requirements of the Court's Practice Notes, a copy of which had been provided to him. He was required to file that statement by 4 September 2012.
A further document described as a "Statement of Facts and Contentions" was filed with the Court on 5 September 2012. It reiterated, that the proceedings were by way of appeal pursuant to s 574 of the Local Government Act. The document also indicated that the subject matter of the appeal was the "rate notice" for "the fourth quarter of 2011/2012". It was contended that the "rate notice" and previous notices to which he had referred had not provided detail of the arrears of rates that were claimed from him. In substance, the manner in which the document was framed indicated or confirmed that Mr Horton was calling for an account to reflect proper allowance for payments said to have been made by him to the Council on account of rates and charges and taking account of those rates and charges due by him for the years to which he had earlier referred. This was the position that he confirmed on the hearing before me.
It was in the face of these attempts by Mr Horton to indicate the basis upon which his proceedings were commenced that the Council applied by Notice of Motion to strike out his Class 3 Application. It did so on two bases. First, the Council contended that there was no jurisdiction to entertain the claims brought by Mr Horton, having regard to the material that he had provided. Second, it was contended, assuming that s 574 of the Local Government Act was properly engaged, that it was an application commenced out of time, having regard to the provisions of s 574(3). It is convenient to address each of these grounds in turn.
As I have already indicated, both in the documentary material that has been filed and on each of the two occasions upon which Mr Horton has appeared before me to address the Council's Notice of Motion, the only basis upon which the jurisdiction of the Court is said to be engaged is by reference to s 574 of the Local Government Act. This requires that attention be given to the ambit of the appeal available under that section. That consideration is necessary not only because it is the provision invoked by Mr Horton but also because s 19 of the Land and Environment Court Act 1979 is specific in identifying the jurisdiction that this Court is able to exercise. By s 19(d) of the Court Act the Court is given power to hear an appeal under a s 574 of the Local Government Act. The Court Act does not provide a general power to consider disputes that, in effect, involve the taking of accounts concerning the payment of rates.
Subsection (1) of s 574 of the Local Government Act identifies the basis upon which an appeal pursuant to that section may be brought. Subsection 1(a) requires that any such appeal be brought against the levying of a rate on land on the ground that the land or part of it is not rateable or is not rateable to a particular ordinary rate or to a particular special rate. Subsection (1)(b) of the same section also enables an appeal to be brought in respect of a charge imposed by a Council but only where the appeal is founded on the basis that the land in question is not the subject of any charge or is not subject to a particular charge.
Neither in the documents filed in support of his claim nor in the hearing before me today has Mr Horton identified a particular rate or a particular charge to which his land is not liable. In short, he does not identify any matter which would support an appeal by reference to paragraphs (a) and (b) of s 574(1). His claim, as I have said, turns upon the absence of a proper account as between the Council and himself for rates levied and charges made on the one hand and payments that he claims to have made on the other. In short, he does not assert that his land is not liable to a particular rate or a particular charge.
On this analysis of the material it is apparent that the Court does not have jurisdiction in these proceedings to entertain the claim that Mr Horton brings. The difficulty that his claim faced, having regard to the true nature of his grievance with the Council, is a matter that I have endeavoured to make clear to Mr Horton both today, before argument concluded, as well as on the previous occasion upon which he appeared before me to argue this motion.
On the previous occasion upon which the motion was before me, I adjourned the hearing at his request, albeit in the face of opposition from the Council. I did so in order to afford him the opportunity to seek legal advice which he then foreshadowed seeking in order to determine whether his claim could be framed in a manner that engaged the limited jurisdiction of the Court under s 574. Today, he informed me that such legal advice had been sought.
When I adjourned the matter on the last occasion, I directed that he identify in writing the basis upon which he claimed that the jurisdiction of the Court was engaged. Although he provided a document in purported compliance with that direction, his written statement did no more than make reference to s 574 of the Local Government Act but in no way sought to identify how his claim fell within subsection (1) of that section.
In the absence of any argument or material identifying the basis upon which Mr Horton's claim for accounting to him falls within s 574(1) of the Local Government Act, it is apparent that the Court has no jurisdiction to determine his application. The absence of any jurisdiction to determine the application has the consequence that not only must it be dismissed but also that the Court has no capacity to order the Council to respond to a request for particulars that Mr Horton has made.
Against the possibility that my determination of the first basis upon which the Council seeks to strike out Mr Horton's application is found to be wrong, it is necessary to consider the second basis upon which the Council seeks to have Mr Horton's application struck out. In that regard, it relies upon s 574(3) of the Local Government Act, the subsection being in the following terms:
"(3)An appeal must be made within 30 days after service of the rates and charges notice."
The statutory provision pertaining to the levying of rates and charges is s 546 of the Local Government Act. Subsection (1) of that section requires that a rate or charge levied on land for a given year be specified "in a rates and charges notice" to be served after 1 July in the year for which the rate or charge is made. The notice for rates and charges levied on Mr Horton's property for the 2011/2012 year was tendered in evidence. It states that the notice was posted on 29 July 2011.
Although the Council has not tendered evidence determining when that notice was placed in the post, Mr Horton candidly acknowledged that he did receive that notice and in all likelihood would have received it by the end of August 2011. Once it is accepted that the notice was received, the date of actual receipt would not appear to be presently material, having regard to the provisions of s 710 of the Local Government Act (Kyogle Shire Council v Muli Muli Local Aboriginal Land Council [2005] NSWCA 4; (2005) 62 NSWLR 361 at [32-36]). Nonetheless it is acknowledged by Mr Horton that the rate notices said to have been posted on 29 July 2011 had been received long before April 2012. This is relevant having regard to the date upon which the present application by way of appeal was filed.
The notice levying rates and charges referred to in ss 546 and 574(3) is to be distinguished from a notice directed to the payment of a rate instalment. Section 562 of the Act draws that distinction by requiring, amongst other things, that where payment of rates and charges by instalments are being made by a rate payer, the Council is to issue an instalment notice on 31 October, 31 January and 30 April in each rating year. The requirement to issue an instalment notice is to be distinguished from the notice by which rates and charges are levied on land pursuant to s 546. The notice attached to Mr Horton's Class 3 Application and which is said to be the basis for his appeal was an instalment notice rather than a notice levying rates and charges.
Assuming that Mr Horton's Application did fall within s 574(1) of the Local Government Act, it is apparent that his proceedings were not commenced within the time limited by s 574(3) in that on 8 May 2012 when his Class 3 Application was filed in the Court, a period in excess of 30 days had expired after service of the notice imposing rates and charges on his land. On that account alone, his application cannot be entertained, there being no power in the Court to extend the time for compliance with the 30 day period imposed by the subsection.
While Mr Horton may have genuine concerns as to the amounts which the Council claims against him by way of rates and charges, his concerns in that regard do not identify a matter falling within the Court's jurisdiction to determine in an appeal under s 574 of the Local Government Act. Whatever other recourse Mr Horton may have for consideration of those concerns, they do not fall within the Class 3 jurisdiction of the Court which Mr Horton has sought to invoke. I therefore propose to uphold the Council's Notice of Motion to strike out his Application.
The Council seeks an order that Mr Horton pay its costs. These being Class 3 proceedings, the ordinary rule that costs follow the event does not apply (Pt 3, r 3.7(1)(c)(iv) of the Land and Environment CourtRules 2007).
In the context of the Council's Application, I note that considerable latitude has been afforded to Mr Horton, as a litigant in person, in seeking to have him identify to the Council and to the Court the basis upon which he sought to bring his proceedings within the provisions of s 574 of the Local Government Act. The prospect that the Court may not have jurisdiction to entertain his claim was identified to and discussed with Mr Horton on the first occasion upon which he appeared in opposition to the Council's Notice of Motion.
The prospect that, if the Court found in favour of the Council's Notice of Motion, an order for costs may be made against him was also a matter to which his attention was directed. That prospect was one of the bases upon which an adjournment of the Council's Notice of Motion was granted to him on a prior occasion. At that time, he appeared to understand that this may be a consequence of maintaining his opposition to the Council's Notice of Motion
I also note that in the various email exchanges between Mr Horton and the solicitors acting for the Council, it was indicated to Mr Horton on behalf of the Council that if he was prepared to withdraw and discontinue his proceedings by 3 October, the Council would not seek an order for costs against him. However, the email on behalf of the Council indicated that if he continued to oppose the Council's Motion, as he has done today, then the Council would seek its costs.
In all the circumstances, it seems to me to be fair and reasonable, having regard to the way in which these proceedings have been conducted, particularly the absence of attempt to demonstrate jurisdiction on any rational basis, that the discretion as to costs should properly be exercised in favour of the Council.
Accordingly, the orders that I make are these:
1. Strike out the application filed on 8 May 2012 for want of jurisdiction.
2. The applicant must pay the respondent's costs.
3. Exhibits may be returned.
**********
Decision last updated: 17 October 2012
2
1
3