Kwa v Cirty of Stirling

[1997] HCATrans 302

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P32 of 1996

B e t w e e n -

FRANCIS TAK LAU KWA

Applicant

and

CITY OF STIRLING

Respondent

Application for special leave to appeal

TOOHEY J
McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON FRIDAY, 24 OCTOBER 1997, AT 3.14 PM

Copyright in the High Court of Australia

MR F.T.L. KWA appeared in person.

MR J.C.W. SKINNER:   I appear for the respondent.  (instructed by Corrs Chambers Westgarth)

TOOHEY J:   Yes, Mr Kwa.

MR KWA:   Your Honour, I wish to ask permission if I can have a friend who might assist me in the presentation.  The grounds of this application has been submitted to you in my affidavit which is in the book.

TOOHEY J:   Did you say you would like someone to assist you?

MR KWA:   Yes, besides me to assist me because the grounds of which has been tabled in my affidavit - - -

TOOHEY J:   Yes, we have read that material.  I am not sure what you mean by someone to assist you.  Do you mean someone to provide you with material as you need it or to speak for you?

MR KWA:   Yes, the material, which I have already fully elaborated in my affidavit which is item 25.

KIRBY J:   Is that person in Court?

MR KWA:   The person is sitting in Court, yes, your Honour.

TOOHEY J:   Well, if you just want someone to sit next to you, Mr Kwa, that is all right.

MR KWA:   Yes, that is what I want.  Thank you.

TOOHEY J:   Would that gentleman come forward, please.  I want you to keep in mind, Mr Kwa, we are working from the material which has been provided to us and not from any other material.

MR KWA:   I understand.  The reason why I ask a person beside me because of my lapse of memory and then he would be able to assist me in that way, to conduct the case, your Honour.

TOOHEY J:   Mr Kwa, you also understand that you have 20 minutes in which to put your oral argument on the basis that the Court has had the benefit of all the written material?

MR KWA:   I understand.  It will be less than 20 minutes, your Honour.

TOOHEY J:   Thank you.

MR KWA:   I understand that this honourable Court is not a Court of Appeal in this sense, it has to be of something of national importance before the Court will hear this case.  In my view, there are three main points of national importance in this particular case.  Firstly, being that the onus of proof of the lower court have educated that the onus of proof rest on myself as a defendant rather than that onus of proof on the other party charging me.  That means the onus of proof was on .- in that respect was that in finding onus of proof of a non-conforming use lay on myself rather than on the respondent, which is wrong.

TOOHEY J:   I do not think that really is a fair construction of what the court below said, Mr Kwa, because it seems to me, reading the judgment, that without having to make a decision as to where the onus of proof lay, the court said that the evidence, both from the City of Stirling and from various admissions made by you, simply showed that the use of the land was not lawful.  In other words, wherever the onus lay, that was the conclusion that the court was driven to by reason of the evidence which had been led below and, in particular, certain admissions which you made during the hearing.

MR KWA:   Yes, your Honour, I appreciate that the onus of proof aspect of it was - even if this honourable Court will accept that the onus of proof is the issue which I - well, I believe that that was the issue because I was asked to prove that - if I can cite any particular material - the onus of proof part of it and I think particularly on the lower court one on the summary argument Justice French said that the onus of proof is on myself, not on the other party.

KIRBY J:   We have seen all this material.  Maybe it would be more helpful if you just tell us the point you want to make.

MR KWA:   It was right at the beginning on the particular - if your Honour will refer to the application book at page 5, K and L.  It is in K and L.  He says:

the defendant bearing the onus of establishing the non‑conforming use, I am satisfied that he has not discharged that onus.

Now, the onus of proof must rest of me as far as I was concerned, according to what is stated down there.

TOOHEY J:   But what you are referring us to there is, what, the Magistrates Court?

MR KWA:   The magistrate, yes, said the onus of proof is on me.

McHUGH J:   The magistrate immediately went on to say:

But in any event, on the contrary, the evidence suggests that there was a change of use - - -

TOOHEY J:   You see, if you go to page 34 and look at line H, and the court has been talking about the standard and onus of proof, and it says:

In the end however, there was no issue.  The prosecution evidence and the appellant’s admissions established that, at the time alleged in the complaint, the appellant’s use of the land was not a “lawful” use and consequently not a “non-conforming use” -

so, there is really nothing in that onus of proof point, Mr Kwa.

MR KWA:   Yes, your Honour, given that that was not quite right.  Another issue is that of lesser importance.  There is a distinct difference between the word “use” and “development” as in the town planning scheme which I have - that is in both the town planning scheme - that is a distinct difference.  Now, if I take your Honours to my submission, in my application for written argument.  I trust your Honours have read that.

TOOHEY J:   Yes, we have read that, thank you.

MR KWA:   In which I have annexure “B” which is page 18.  On page 18 I actually separate the whole factual history of the whole issue of the whole matter.  Now, they are the facts which has not been denied by the respondent.  The crux of the issue being that while a person been using the land since 1972 for a particular purpose, that was well before any planning scheme come into effect.  The first planning scheme came into effect in 1974 and all this one is just like what a child is saying is that, “....., but you change” meaning that one picture will tell a thousand words. 

Now, this picture will tell you, this Court, a thousand words of the whole history which is a fact not disputed by the other party.  Now, it is not right for a person that having used the land for a particular purpose of 20 years and all of a sudden, because the other party just turn up 20 years after, and said, “You have been using the land unlawfully”.     If your Honour like me to take you through page 18 of that.

TOOHEY J:   Yes, we have had regard to that.

KIRBY J:   Even if that is so, it does not appear to be a matter of general importance to the law.  This is simply the application not even of an Act, not even of a regulation, not even of a by-law, but of a local planning scheme.  I suppose you could say that under the Act you are claiming that you have a continuing use or an existing use, a non-conforming use.  It is purely a local problem and a problem of applying an Act in a very well worn area of the law to your particular facts.  This is not the sort of matter that normally attracts the attention of the highest Court in the country.

MR KWA:   But on the same token, your Honours, I go back to the non‑conforming use, the onus of proof aspect of it.  Well, a prosecution have to prove - - -

TOOHEY J:   But, you see, you have a finding against you from the court below that the use of the land was not lawful and therefore it was not a non‑conforming use.

MR KWA:   Right.  The use of land was lawful because - - -

TOOHEY J:   I know you say that, Mr Kwa, but, as I say, that is the finding that is against you.

MR KWA:   Yes, and it is not right for after a person operating for 20 years and all of a sudden say it is not lawful because there was no law governing the use of land before 1974, your Honour, and I was using the land in 1972 for that purpose.  As your Honour would appreciate, there is a long‑established fact that where there is a void, there is a freedom of movement, and there was no law in 1972 for me to use my land.  In this country the law is created to serve people, not the people to serve the law, and it is very important.

TOOHEY J:   Yes, I understand that.  Is there anything else that you wanted to say, Mr Kwa.

MR KWA:   If I could read through this to you.

TOOHEY J:   Could I just interrupt you.  Is that something that we have in the material before us?

MR KWA:   Yes, yes.  No, no, no, it is not, no.

TOOHEY J:   What is it, please?

MR KWA:   The one I just read out to you was not in the material before you.  I was not repeating what I said.  It is a fundamental part of civilised society as society develop more law of intense capacity are to develop to meet increasing needs.  Laws are created to serve the people, not the people to serve the laws in order to establish individuals to regulate their behaviour and activities according to law.  The law of the land must be generally understood by everybody.  If an activity is not an offence at the time of the committal, a person cannot be prosecuted retrospectively by the subsequent case, not the law.

May it please the Court, I direct your Honour to annexure A which I have already directed you to on page 18 in which a table outlining factual background.  It shows that I received approval to develop a duplex dwelling on lot 180 in 1971.  A duplex dwelling, your Honour, is a type of residential building which is defined in clause 1.8 of City of Stirling District Planning Scheme 1974 and included in July a hostel, hotel and boarding house.  Therefore, this approval allow me to use lot 180 for the purpose of short term accommodation.

Paragraph 2 and 3 of the affidavit of Tom Reid sworn on 9 October 1992 can be found at page 112 of the paper for the judge which was the paper responding for a Supreme Court case in CIV 2107 of 1992 confirms that I was using lot 180 for the above purpose.

In my written summary of argument I refer to a number of authorities which suggest that where one block of land is being used for a particular purpose, adjoining block owned by the same person may also be deemed to be put to this use, namely Eaton & Sons v Council of the Shire of Warringah and Kismet Engineering v Brisbane City Council.  The latter two of these cases involve a company, Kismet Engineering, who owns five adjoining lots in Brisbane.  Those case law are in front of your Honours:

The company, without permission of the Registration Board, caused a building.....to be removed bodily from that part of the block of land upon which it stood -

lot 110 and 111, to another part of the same lot of land, lot 112 -

and continued to use the building -

for that purpose.  This building, together with the whole of the block of land on part of which it was erected had been used for specific non-residential purpose before an ordinance made by Brisbane City Council came into force.  This ordinance prohibited the use or the erection of any building or on any land of the city for any purpose other than residential.  It was held by the High Court of Australia that the moving of a building did not amount to an erection as the use of the building and the use of the land has not changed.  That case stands for the proposition that as long as the use of land is preserved, new development on the land which do not alter the use are lawful. 

This point is reinforced by Newcastle City Council v Royal Newcastle Hospital, case No 12, where:

a public hospital.....owned 291 acres of unfenced land in its virgin state adjoining other land.....owned by and on which the hospital stood. 

That adjoining vacant land:

had been acquired for the purposes of the hospital -

which included, among others, to:

give room to expand the activities of the hospital. 

It was held by the Privy Council:

that an owner can use land by keeping it in its virgin state for his own special purposes, and the -

whole 291 acres of the vacant land was used for the purposes of the hospital.  Thus, the decision of the High Court of Australia was affirmed.  The facts in that case are virtually - - -

TOOHEY J:   I do not think you need take us into the facts, Mr Kwa, because you have your own particular factual situation here that has been dealt with by the courts below and it has been held to constitute an unlawful use and therefore not a non-conforming use.

MR KWA:   If your Honour would bear with me, I have only got about a half a page to go through which is relevant to what I - - -

TOOHEY J:   Well, if it is relevant.

McHUGH J:   Nothing you have said has the slightest relevance so far.  What you have been reading out has no relevance whatever to the problems here.  In respect of lots 181 and 183, Magistrate French held that you had not complied with the condition for the development of the lots, including a necessarily implied condition that the old house on lot 181 be demolished and a condition that lot 183 be used only for residential flats, as distinct from the short-term holiday rental accommodation.

So far as lot 180 was concerned, the prior approval for use was as a duplex dwelling and that did not include use for a short-term rental accommodation.  Accordingly, you had no lawful use for the purposes of clause 1.5.1, whatever it is, and that is the beginning and end of the case.  This is a pure factual case.  There is nothing special about the case requiring this Court to come here, even if other people may come to a different view of the facts which I am far from thinking would be open.

MR KWA:   Your Honour, it took me 20 years to build up my business and it was there - - -

McHUGH J:   It may have, Mr Kwa, but the point is that this ordinance came in or this scheme came in and you were required then to comply with it and what you were doing was contrary to it unless you could bring yourself within the exception and, on the facts, you could not.

MR KWA:   But I had the non-conforming use, your Honour, because I was using the land.  It was all the facts of that before.  I know that the law could dispute that use but there is a very big denial of justice.  I was not a represented person.  I was unrepresented, your Honour, not by choice.

McHUGH J:   You were using the land all right but it was held that you were using it unlawfully.

MR KWA:   But it was a criminal prosecution on a person who was not represented.  I was not represented, not by choice, and I put my submissions to that particular case that I was unrepresented person.  Also, the prosecution was done way out of time.  The whole thing is wrong just because I did not have legal representation, not by choice, which was been strengthened by - confirmed by the High Court in Dietrich Case in this particular Court, that where an unrepresented person appear in court there he should be represented.  I was not represented.

TOOHEY J:   Mr Kwa, that is not a matter that, as far as I can see, was aired before the court below and nor does it seem to feature in the material that you have presented to us.

MR KWA:   It is the only thing I can go on to is that the prosecution was brought well beyond the limitation of time because I.....that, I ran the business 20 years ago and they wait until 20 years before they did a prosecution.  That is not right.  Nobody can run a business like that.  This is Australia.  A person running a business for 20 years and then there is a

limitation which is restricted to six months.  Why not prosecute me when I started.  They knew about it many years ago and they decided to prosecute at the last minute.  That is a great denial of justice to a person.  You cannot get people just keep going and build up a business and after many years, whereas the limitation it only allows six months and they let it lapse until ‑ ‑ ‑

TOOHEY J:   Mr Kwa, the time that is allowed for the hearing of argument has expired.

MR KWA:   Okay, thank you, your Honour.

TOOHEY J:   Thank you.  We need not trouble you, Mr Skinner.

Notwithstanding Mr Kwa’s submissions, the decision of the Full Court did not depend upon a decision as to the standard and onus of proof in relation to an alleged non-conforming use.  The Court held that the evidence of the respondent and the applicant’s admissions established that his use of the land was not lawful and consequently was not a non-conforming use.  An appeal would have no prospects of success. 

Accordingly the application for special leave to appeal is refused.

MR SKINNER:   Your Honour, the respondent would seek costs in the matter.

TOOHEY J:   Mr Kwa, there is an application against you for costs by the City of Stirling’s solicitors.  The practice in this Court is if an application is refused and costs are asked for, that costs are awarded.

MR KWA:   I ask for mercy of the Court, that is all, because I ‑ ‑ ‑

TOOHEY J:   I am afraid in accordance with the Court’s practice, there being no circumstances why that practice should not be followed, the application is refused with costs.

AT 3.38 PM THE MATTER WAS CONCLUDED