Langsford v Kangaroo Island Council - [2011] SADC 25

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
LANGSFORD v KANGAROO ISLAND COUNCIL
[2011] SADC 25
Reasons for Decision of His Honour Judge Beazley
11 March 2011
LOCAL GOVERNMENT - LEGAL RELATIONSHIPS AND PROCEEDINGS - PROCEDURE RELATING TO LEGAL PROCEEDINGS BY AND AGAINST COUNCILS - OTHER MATTERS
Application for Minor Civil Review of decision of a Magistrate pursuant to Section 38 of the Magistrates Court Act – exercise of the discretion to permit tender of “fresh evidence” – confusion as to the quantum of the respondent’s claim for rates, service fees, fines and interest.
Minor Civil Review - the learned Magistrate concluded that judgment ought be entered for the respondent for a specific sum however expressed the judgment as being entered “upon the undertaking of [the respondent] to provide the relevant rates notices and calculations to [the applicant] within 7 days” – whether judgment ought to have been entered in favour of the respondent - purpose and objects of Section 38 of the Magistrates Court Act 1991 considered - complaint by applicant that Magistrate erred in failing to give detailed reasons for conclusions reached.
Held: Application for review granted – fresh evidence received – orders of learned Magistrate varied – in lieu of the final sum of $2,536.09, there be judgment for the respondent, as at 23 September 2009, in the sum of $2,191.37 inclusive of costs and interest.
Magistrates Court Act 1991 (SA) s 38; Local Government Act 1999 (SA) ss 155(8), 254, referred to.
Ventrice v Ipseftel [2008[ SADC 147; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, considered.

LANGSFORD v KANGAROO ISLAND COUNCIL
[2011] SADC 25
Introduction

This is an application by John Stuart Langsford (“the Applicant”) for this Court to review a judgment delivered in a Minor Civil Action pursuant to s 38 of the Magistrates Court Act 1991 (the M.C. Act). The applicant was the defendant in action no 1176 of 2009 in the Magistrates Court in which Kangaroo Island Council was plaintiff (“the Respondent”).
On 23 September 2009, following the delivery of brief ex tempore reasons, a Magistrate entered judgment in favour of the respondent, after setting off the quantum of the applicant’s successful counterclaim, in the net sum of $2,536.09 inclusive of costs. It is apparent from those reasons that the learned Magistrate had felt obliged to make certain assumptions as to the quantum of the respondent’s claim, because of the omission of both parties to produce the requisite rates notices at trial. The resolution of, what was objectively, a simple dispute in respect of a small claim and counterclaim, was made unnecessarily complex by the parties.
The proceedings have had a long and somewhat vexed history. It will be necessary to set out some of that history in detail to fully comprehend the basis of the learned Magistrate’s decision.
On an Application for Review, this Court is obliged, pursuant to s 38(7) of the M.C. Act, to proceed according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
The decision of this Court is final, and not subject to appeal.
The clear policy in the M.C. Act was to provide an efficient and economical means by which such small claims can be determined.
Unfortunately this matter has not proceeded in such an efficient and economical way.
Factual Background
·Previous Proceedings
On 2 May 2008 the respondent’s officers attended upon a certain property which is situate at Lot 11 Hogg Bay Road in the hundred of Haines on Kangaroo Island (“the subject property”), of which the applicant is and was at all material times the registered proprietor.
Those officers formed the opinion that the subject property was unfit for human habitation. In consequence the respondent issued an order pursuant to s 254 of the Local Government Act (the L.G. Act) requiring the applicant to, inter alia, remove certain rubbish from the site. In order to serve the requisite notice in accordance with the Act, it was necessary to affix the notice to the subject property. When they attended, the employees decided to use some wire which they found on site so as to affix three A4 sized copies of the notice on the subject property.
The applicant complained, at that time, that the notice ought not to have been issued, and that those employees had unlawfully converted his “expensive winding wire”.
On 21 May 2008 the applicant filed a Notice of Appeal to this Court in separate proceedings, being action no DCADD-08-170, seeking to set aside the order.
By letter dated 13 June 2008 the respondent notified the applicant that the order had been withdraw. Accordingly the applicant became entitled to an order for costs against the respondent in the sum of $87.50.
·The subject proceedings
On 3 February 2009 the respondent commenced the subject action in which it claimed from the applicant the sum of $2,416.59 for outstanding council rates, service charges, accrued interest and fines in respect of the subject property.
On 19 March 2009 the applicant filed a Defence and Counterclaim to the action. In his Defence he admitted “most of the claim” but pleaded a dispute as to whether service charges were payable by him pursuant to “s 155(8) of the Local Government Act”. In his Counterclaim he asserted that:
·The respondent’s employees had damaged his winding wire.
·He was entitled to offset “court charges, as a result of malicious orders made by council and overturned in the District Court May 2008”.
The subject hearing in the Magistrates Court
With the benefit of hindsight, it is now clear that the parties were not ad idem as to the matters in dispute between them. The respondent and indeed the learned Magistrate had assumed that the only issues were respectively the correct rate to be applied to service charges levied against the subject property and the merits of the applicant’s counterclaim. The applicant assumed that the quantum of the respondent’s rate notices and the proper allowances for concessions were also to be determined, despite the absence of any pleading as to those topics.
·The respondent’s case
The respondent called two witnesses.
The respondent’s environmental health officer, Mr Moors, deposed to attending at the subject property and “snipping a piece” of some wire which he found on the subject property.
The respondent’s senior finance officer, Mr Paul Duka, explained that the respondent’s claim was for rates, waste management charges and various fines and interest. He said that he did not bring his source documents to the hearing as he had been led to believe that the applicant only wished to argue about what was a minor part of the quantum, namely the waste management charges. He explained that the latter component of the claim involved the charge of $285 per year for 3 years, while the current rate of $290 applied in the then current year.
He explained that that rate is fixed in respect of “occupied land”, whereas “unoccupied or vacant land” was assessed at $190. He explained why the applicant’s property was deemed to be “occupied”. He said it was because the subject property was rated on the basis of primary production, which had the legal effect that it was in fact “used” by the applicant, and was accordingly deemed to be “occupied” for rating purposes.
As to the question of the rates notices, the following discussion took place.
His Honour:
QAre you willing to undertake to provide a full copy of the calculation of how $2,416.59 is arrived at within 7 days?
Mr Duka:
AYes
His Honour:
QSend a copy to the Court?
His Honour to the applicant:
QAnything you want to add?
The applicant:
AWell there may be something I wish to add after I got the figures from them.
Mr Duka:
AAs I said the argument wasn’t with the rates. Its only with the waste management charge.
As to the applicant’s counterclaim, Mr Duka said that the Respondent had offered to credit the sum of $5 for the use of the applicant’s wire, and the sum of $87.50 in respect of the costs incurred in respect of the previously withdrawn order.
·The applicant’s case
The applicant gave evidence, but called no other witnesses in respect of the defence and counterclaim. While acknowledging his liability to pay outstanding rates, he complained about the alleged failure of the respondent to discover all rating documents to enable him to determine that the rates were correct. He said that he needed those documents so as to quantify the total amount of the rates outstanding and what fines had been incurred by him.
In respect of his counterclaim, he described the converted wire as “winding wire”. He explained that he had purchased an 8 kilogram roll of that wire at a cost of $60 per kilogram.
He explained that he used the wire in 2½ kilogram lots in respect of work on wind powered generators. He explained that by converting about 1 metre of that wire, the council employees had rendered about 2½ kilograms of wire at a rate of $60 per kilogram as being useless. He therefore claimed the sum of $150.
He was cross-examined about his use of the winding wire. He was asked specifically about an alleged contract that he asserted he had with a Mr Crabbe.
When asked why he had not completed that contract with Mr Crabbe, the applicant asserted that it was because he didn’t have sufficient wire available to him. He acknowledged that in the past he had in fact received his rates notices regularly. He asserted that he had passed them to a lawyer, who could no longer locate them.
The Magistrates ex tempore Reasons – Delivered 23 September 2009
The learned Magistrate commenced by noting that the only live issue before him was whether waste management fees were properly charged by the respondent, and what was the value of the applicant’s wire for the purposes of the counterclaim. Therein lies the confusion complained of by the applicant, as he asserts that it was not merely the correct rate for the service charges, but also whether he had been given the appropriate concessions.
In brief the learned Magistrate found that the applicant and his legal adviser had received the appropriate notices from the respondent. He said that he could not “see any possible basis upon which the applicant can argue in this Court about the rates”. He noted that the respondent had not brought the various documents with him but concluded:
On the undertaking by the Council that the notice and calculation will be posted within 7 days to (the applicant’s then address), I now intend to enter judgment for “the Council” for the amount of rates and taxes outstanding.
As to the applicant’s counterclaim, the learned Magistrate said
“I am sceptical about the commercial validity of the transaction with Mr Crabbe but I will take the sworn evidence of [the applicant] at face value about that.”
Accordingly he accepted that the applicant had suffered a loss of $150 in consequence of the misuse of his winding wire. After crediting the applicant with the sum of $150 in respect of the counterclaim, the learned Magistrate made the following comments and orders:
Judgment on the claim is $2,416.59. Judgment for the defendant on the counterclaim is $150. I will allow costs to the Council on the issue of the claim of $357 but I deduct $87.50 for costs allowed by the District Court in a related matter. Costs after discounting $87.50 is $269.50. The balance therefore owed by the applicant to the Council is the sum of $2,536.09. Order the applicant to pay that sum at $40 per fortnight commencing on 29 October 2009.
Application for Review
The applicant complained about the “lack of detail” as to the quantum of the respondent’s claim in the learned Magistrate’s ex tempore reasons. The applicant also asserted that he was prejudiced in the conduct of his defence by the failure of the respondent to make appropriate discovery of rates notices; and the consequential “fines and other fees”; and establishing credits for concessions to which he was allegedly entitled. Finally he asserted a denial of natural justice in respect of the award of costs to the respondent.
He sought orders as follows:
“(a)   A case against various charges be heard and judgment altered in any manner thought fit by the Court.
(b)    A case against excessive rate rises be heard and judgment altered in any manner thought fit by the court.
(c) A case against RATES and TAXES not in accordance with the LOCAL GOVERNMENT ACT as amended be heard and judgment altered in any manner thought fit by the Court.
(d)    The defendant’s costs in the Magistrates Court be considered and judgment altered in any manner thought fit by the Court.”
Subsequent events
When the Review initially came on for hearing before another Judge of this Court, attempts were made to resolve the underlying issues. These attempts produced new material in the nature of “fresh evidence”. Following a reconsideration of the rates notices by the respondent in November 2009, the respondent substantially reduced the quantum of “its claim” on 25 November 2009, only to find another error on 30 November 2009.
On 1 December 2009 those “errors” in rates notices had been confirmed by the respondent. These included an error in a credit of $186 in the 2005/2006 year. By contrast the respondent conceded that in the same year in consequence of large increases in valuations, the applicant ought to have received a rebate of $196. Ultimately the respondent’s “claim” for rates, services, interest and fines was specified to be the sum of $2071.87, in lieu of the initial sum of $2,416.59 claimed by the respondent.
The applicant however asserted an entitlement to a further rebate of $100 for the same year on the basis that he received no or little “service” pursuant to Section 155(8) of the L.G. Act. The respondent asserted that the $100 was, in effect, included in the proposed $196 rebate.
On the undertaking by the applicant to continue to pay $40 per fortnight, the review was adjourned.
On 15 February 2010 it became apparent that any attempt to resolve the then widening dispute was pointless, and the matter was referred to a full hearing.
Since 29 October 2009 the applicant has continued to pay the sum of $40 per fortnight to discharge whatever sum is eventually fixed as to the quantum of the rates, service fees, fines and interest.
The hearing on Review
·Preliminary matters
I respectfully adopt the dicta of his Honour Judge Smith in Ventrice v Ipseftel[1] that, given the clear legislative policy embodied in Section 38 of the M.C. Act, that Minor Civil Actions ought be disposed of efficiently and economically, this Court should be reluctant, without proper reason, to permit a Review to become a full hearing.
[1] [2008] SADC 147
In the subject case however there was no alternative but to embark upon a limited form of rehearing because of the acknowledged errors in respect of the rate notices provided by the respondent to the applicant.
·The applicant’s refined complaints
The applicant complained that the learned Magistrate did not detail his reasons. In the event there is no substance to this complaint by the applicant.
As to the question of not giving specific reasons for a finding, McHugh J for the Court of Appeal in NSW in Soulemezis v Dudley (Holdings) Pty Ltd[2] said:
What is decisive is that his Honour’s judgment reveals the ground for, although not the detail reasoning and support of, his finding of fact. That is enough in a case where no appeal lies against the finding of fact. Accordingly, there was no failure to give reasons sufficient to constitute an error of law.
[2] (1987) 10 NSWLR 247 at 282
In the subject case, despite its brevity, the ex tempore reasons adequately explained the basis for the learned Magistrate’s decision.
The applicant asserted that had he received proper discovery of the rates notices, he would not have incurred any fines or interest penalties.
The applicant’s complaint as to the alleged failure of the respondent to make discovery of its rate notices had no substance. He acknowledged that he had received copies of all relevant notices but had given them to his legal advisors. In any event it is the notices themselves which are the problem. It is conceded by the respondent that they contain errors and omissions. In addition the applicant had paid nothing to the respondent notwithstanding that he knew that he owed at least the undisputed rates, and some of the services fees.
On one view of the Reasons, it could be said that the learned Magistrate had accepted the oral evidence of Mr Duka as to the quantum of the outstanding rates, services charges, fine and interest. On that basis, there was no need to seek any undertaking from the respondent as to the production of documents.
I was initially concerned that the learned Magistrate had entered judgment without sufficient evidence as to the quantum of the respondent’s claim, and that he had erred by seeking an undertaking from the respondent to subsequently provide details of the quantum of the outstanding rates. If indeed he was not satisfied as to the quantum, he ought to have adjourned the matter until evidence of the quantum had been produced by the respondent.
Upon reflection however it seems clear that the learned Magistrate had proceeded on the basis that the only matters in issue were the determination of the correct rate for waste management services at the subject site, and the quantum of the counterclaim. He accepted the evidence of the respondent that the subject property was properly determined as “occupied” and subject to that relevant rate. He had understood that there was no dispute as to quantum, once the correct rate for the service charges had been established.
I am satisfied that the rate for service charges fixed as it is by reference to the “occupied” rate, is and was the correct rate, as deposed to by Mr Duka.
The learned Magistrate thought it would save the parties costs, particularly coming from Kangaroo Island if he put in place a mechanism for the various calculations to be provided to the applicant, so that the applicant could satisfy himself that the correct concessions had been allowed. I repeat that he did not understand that the quantum was in issue, despite the complaints by the applicant. However there was clearly some confusion on this issue of quantum.
In hindsight it would have been better to have adjourned the hearing so that there could be no ongoing dispute as to quantum.
In the event I permitted the parties to produce such evidence as they could with respect to the true quantum of the respondent’s claim. There was no dispute by the respondent as to the quantum of the counterclaim as fixed by the learned Magistrate.
Fresh Evidence
The respondent tendered a copy of a letter from it to the applicant dated 15 March 2010. Annexed to that letter was a Schedule which detailed all relevant rates, the appropriate fines and interest in consequence of non payment, and a deduction for all relevant concessions. Mr Duka explained the detail in that Schedule. He pointed out that not only had the applicant received the full concessions, including discretionary concessions, but that the fines and interest payments had been redrawn to reflect the lesser amounts owing by the applicant from time to time.
The applicant asserted that he was entitled to further concessions, and repeated that he would not have incurred any fines or interest penalties if the correct notices had been sent. I do not accept the submissions of the applicant in these respects. I repeat that the applicant had paid nothing over the many years notwithstanding that he was aware that he was obliged to pay at least the outstanding rates.

In my opinion the Schedule prepared by the respondent accurately details the total amount owing by the applicant at the relevant time. The quantum of that sum was in fact the sum of $2071.87, rather than the sum of $2,416.19 fixed erroneously by the learned Magistrate. I see no reason to vary the order for costs because it was necessary for the respondent to issue proceedings following the failure of the applicant to pay any of the rates.
It is necessary to vary the order of the learned Magistrate to the limited degree accordingly.
Conclusion and Order
In fixing the quantum of the respondent’s claim, it is necessary to point out that the quantum is fixed as at the date of the judgment on 23 September 2009. This is so because the applicant has continued to pay the outstanding sum at the rate of $40 per fortnight since 29 October 2009.
No allowance has been made for those sums in this judgment.
Applying the same methodology employed by the learned Magistrate I would vary the judgment on the respondent’s claim by substituting the sum of $2,071.87 for the sum of $2,416.59 affixed by him. The judgment for the applicant on the counterclaim remains unchanged at $150, as do the costs of the respondent in the sum of $357, and the costs of the applicant in the sum of $87.50 on the related matter.
Accordingly after the adjustments and set offs referred to herein, the sum fixed as owing by the applicant to the respondent as at 23 September 2009 is the sum of $2,191.37 inclusive of costs. The order for payment by the applicant of that varied sum at the rate of $40 per fortnight commencing on 29 October 2009 remains unchanged and in force.
Costs
Pursuant to Rule 6 DCR 279A of the Rules of Court, this Court has a general discretion to make an order for the costs of the review. In this case there were some errors in the claim as presented by the respondent. Although the applicant succeeded in reducing the quantum of the judgment sum, in my opinion no order for costs ought be made.
I note that pursuant to Section 38(5) of the M.C. Act the philosophy of Parliament is that in minor civil actions, costs are not to be awarded unless there are special circumstances justifying the award of such costs.
This is a case in which there were defaults on both sides. Notwithstanding the fact that it was necessary for the applicant to seek a review in order to vary the amount of the respondent’s judgment, and that he was successful in that respect, in my opinion there is no proper basis for an award of costs in light of the way the matter was conducted before the Magistrate and in this Court by both parties.
Order
The formal orders of the Court are:
1.That the Application for Review is granted for the limited purpose of varying the quantum of the respondent’s claim by substituting the sum of $2,071.87 for the sum of $2,416.59 as fixed by the learned Magistrate.
2.That the judgment for the respondent inclusive of costs after allowing for the set offs for the applicant on his counterclaim and his costs as entered on 23 September 2009 be varied by substituting the sum of $2,191.37 for the sum of $2,536.09 fixed by the learned Magistrate.
3. That otherwise the decision of the learned Magistrate be affirmed.
4. That each party bears its own costs of the Application for Review.