Latrobe Council v Sheehan - [2017] TASSC 18

[2017] TASSC 18

COURT: SUPREME COURT OF TASMANIA

CITATION: Latrobe Council v Sheehan [2017] TASSC 18

PARTIES:  LATROBE COUNCIL
  v
  SHEEHAN, Wilfred Arthur
  SHEEHAN, Elizabeth Ingrid

FILE NO:  1954/2016
DELIVERED ON:  24 March 2017
DELIVERED AT:  Hobart
HEARING DATE:  23 March 2017
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Local Government – Legal relationships and proceedings – Procedure relating to legal proceedings by and against council – Other matters – Notice of intention to recover debt – Notice relating to future debt – Sufficiency of notices.

Local Government Act 1993 (Tas), s 133(2).
Aust Dig Local Government [122]

REPRESENTATION:

Counsel:
             Appellant:  P L Jackson SC
             Respondents:  In person
Solicitors:
             Appellant:  Tremayne Fay Rheinberger

Judgment Number: [2017] TASSC 18
Number of paragraphs: 20

Serial No 18/2017
File No 1945/2015

LATROBE COUNCIL v WILFRED ARTHUR SHEEHAN
and ELIZABETH INGRID SHEEHAN

REASONS FOR JUDGMENT BLOW CJ

24 March 2017

The respondents, Mr and Mrs Sheehan, own a house in Latrobe. The Latrobe Council formed the view that their house was in a state of disrepair, and that it constituted a nuisance for the purposes of the Local Government Act 1993 ("the Act"). The council served an abatement notice on the respondents, requiring them to do certain work in relation to the building. The council alleged that the respondents did not comply with the abatement notice. The general manager of the council had the necessary work done. The council charged the respondents for the work that was done. They did not pay. The council sued them in the Magistrates Court for the amount charged. The then Chief Magistrate, Mr M Brett, heard the case and, on 21 June 2016, dismissed the council's claim. The council appealed. On 23 March 2017 I heard the appeal and dismissed it. These are my reasons for dismissing the appeal.
The learned magistrate dismissed the council's claim because he concluded that the council had failed to comply with s 133(2) of the Act. That section requires a council to give a ratepayer "notice in writing of its intention to recover any debt" under s 133. The council relied on two letters to the respondents, but the learned magistrate held that they had not been sufficient for s 133(2) to be satisfied.
The powers of a council to abate a nuisance and recover the cost of doing so are conferred by s 201 of the Act. The relevant provisions in that section read as follows:
"(1) The general manager may take the necessary action to abate a nuisance if —
…
(c) an abatement notice has not been complied with.
…
(4) The council may charge the owner or occupier of land for the cost of any action taken under subsection (1).
(5) A charge under subsection (4) is a charge on the land and is recoverable in the same manner as rates and charges."
The Act provides for the recovery of rates and charges in s 133. The relevant provisions in that section read as follows:
"(1) A council may recover in a court of competent jurisdiction as a debt due to it—
(a) any outstanding unpaid rates; and
(b) …
(c) any additional amount payable as a result of an objection under this Part.
(2)     A council must give the ratepayer notice in writing of its intention to recover any debt under this section.
(2A) …
(3)     An action for recovery of any debts must not be instituted until at least 14 days after the date of a notice referred to in subsection (2).
(4)     …".
The first of the two letters relied on by the council was written by its solicitors on 3 May 2011, before any work had been done in reliance upon the council's powers to abate a nuisance. The letter advised the respondents that the council had resolved to authorise its officers and/or contractors to enter their property and to carry out certain works, which were listed. The letter then concluded with the following:
"Once the work has been completed then the Council will require that you pay to it the cost of the work being carried out and will ultimately proceed to recover the costs from you.
The purpose of this letter is to advise you of the work that is to be carried out and the fact that the Council intends to recover the costs thereof from you."
The second of the letters was written by a council officer on 22 March 2012, after the work had been completed. That letter read as follows:
"In May 2011 Council forwarded you correspondence via our solicitor Mr Geoff Tremayne of Jackson Tremayne and Faye [sic] Lawyers advising you of Council's intention to enter your property at 60 Gilbert Street, Latrobe and undertake remedial buildings works (copy of correspondence enclosed).
The correspondence also advised you that Council would require you to pay for the cost of the work which was carried out.
Please find enclosed the tax invoice for work carried out by Council at your premises, 60 Gilbert Street, Latrobe."
A copy of the first letter, a tax invoice for $11,734.36, and supporting documentation were enclosed with that letter.
The learned magistrate provided written reasons for his decision. He decided all the issues in the case except for the s 133(2) issue in the council's favour. In dealing with that issue, he said the following:
"25 In my view, s 133 (2) requires notice from the Council to the ratepayer that it intends to take appropriate action in a court of competent jurisdiction to recover the debt. This is clear from the relationship between the wording in s 133 (1) and (2). The reference in (2) to notice of intention to recover the debt has a clear nexus with the action authorised by s 133 (1), that is, the actual court action. This is a step beyond the creation of the legal liability to pay rates or, in the case of s 201, the cost of the action taken under the abatement notice. The notice required is not just that which will establish the liability, there must be notice that the council intends to commence a court action to recover that sum.
26        The letter of 4 May 2011 certainly indicated that Council intended at that time to recover the cost of the work. However, at that time, the work had not been commenced, the amount of the cost was unknown and the liability of the defendants to pay it had not been established. The relevant statutory provisions contemplate such notice being given in respect of a debt which has actually accrued. The contents of that letter cannot therefore satisfy the requirement of notice in respect of this action.
27 The letter of 22 March 2012 informed the defendants that Council had carried out the relevant work, the quantum of the value of the cost of work and the fact that Council required the defendants to pay for the work. In other words, it gave notice of Council's intention to hold the ratepayers liable for that cost pursuant to the provisions of s 201. This much was sufficient to charge the defendants for the cost of the action taken to abate the nuisance, pursuant to s 201 (4). However, Council's entitlement to recover that charge as a debt requires further legal authorisation. That authorisation is provided by s 201 (5), and, accordingly, the notice provisions are applicable.
28        There is no evidence that any further notice of council's intention to recover that sum by action was given to the defendants prior to the commencement of the proceedings. It follows that Council have not complied with the requirements of s 133 (2) and hence the action has been commenced in breach of the prohibition contained in s 133 (3).
29        The question then arises as to the consequences of the commencement of the action in breach of that prohibition. The usual approach of the courts towards provisions which prescribe procedural requirements as a precondition of the commencement of an action is to require strict compliance, with the result of non-compliance being invalidity (see commentary in cases collected in Pearce and Geddes Statutory Interpretation in Australia 6th edition, para 11.25). However, each individual case will depend on the proper construction of the relevant statute (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355).
30 I agree with Mr Tremayne that s 10A, Acts Interpretation Act 1931 is not applicable to the provision under consideration. Having said that, the provision is a requirement expressed in clear words. Further, the clear words of the section prohibit commencement of proceedings where notice has not been given. These provisions are in place to provide an opportunity to ratepayers to avoid the consequences of legal action. In those circumstances, I conclude that the required notice is fundamental to the right to bring action, and the failure to do so will deprive the court of jurisdiction to entertain the proceedings.
31        It follows that the action must fail. The claim will be dismissed."
On the hearing of the appeal, the council's principal contentions were as follows:
· That s 133(2) is satisfied if a council gives notice in writing of its intention to recover a future debt, including a debt that will become payable in the future in respect of work that will be done in the future.
· That the second letter constituted notice in writing as required by s 133(2).
· That the two letters, taken together, had the effect of satisfying s 133(2).
· That the learned magistrate erred by holding that s 133(2) required the notice from the council to say that it intended "to take appropriate action in a court of competent jurisdiction" to recover the debt, and in saying that the required notice must be "notice that the council intends to commence a court action" to recover the debt.
Section 8A(1) of the Acts Interpretation Act 1931 provides that "In the interpretation of a provision of an Act, an interpretation that promotes the purpose or object of the Act is to be preferred to an interpretation that does not promote the purpose or object."
In my view the purpose of the notice provisions in s 133 is clear. In substance, s 133(2) and (3) prevent a council from suing a ratepayer for a debt without first giving the ratepayer 14 days' notice of its intention to do so. The underlying policy must be to give ratepayers at least 14 days' warning of the council's intention to institute court proceedings so that they will have a reasonable opportunity to pay the amount claimed without court proceedings being instituted against them. It would be inconsistent with that purpose for the council to be able to give the required notice before the debt has been incurred or quantified.
If s 133(2) could be satisfied by giving notice of an intention to recover an unquantified future debt, the consequences would be most unreasonable. An unscrupulous or badly managed council would be able to give the required notice far in advance, abate a nuisance, charge the landowner for abating it by delivering an invoice, and immediately thereafter sue the landowner for the amount invoiced. That result would be absolutely inconsistent with the purpose of the relevant provisions.
Section 133(2) should therefore be interpreted as applying only to debts that have been quantified and have become payable. It follows that the first letter was not, at least by itself, a notice that satisfied s 133(2).
When the council officer wrote the second letter to the respondents on 22 March 2012, the council was entitled to do two things. It was entitled under s 201(4) to "charge" them for the cost of abatement action taken under s 201(1). And it was entitled under s 133(2) to give them notice in writing of its intention to recover the debt thereby created.
In my view a council may do both of those things in the one letter. And in my view no particular form of words needs to be used when a council gives notice in writing pursuant to s 133(2) of its intention to recover a debt. Any form of words that informs the debtor that the council proposes to sue to recover the debt must be sufficient. There is certainly no need to say anything about an action in a court, but any error by the learned magistrate as to that point was inconsequential.
The letter of 22 March 2012 did a number of things. It reminded the respondents of the correspondence in May 2011 about the council's intention to enter the property and undertake works. It provided them with a copy of the first letter. It reminded them that they were told in May 2011 that council "would require" them to pay for the cost of the work. It said that a tax invoice for the work was enclosed. Clearly, by that letter, the council charged them for the cost of the abatement action pursuant to s 201(4).
But that letter did not inform the respondents that the council then intended to "recover" the amount charged. At most, it reminded them that that was what the council had in mind at the time of the first letter in May 2011. It certainly did not tell them that the council not only required them to pay, but also proposed to take some sort of action to enforce its right to payment.
It is clear therefore that the second letter did not, either alone or when read together with the first letter, constitute "notice in writing" of the intention referred to in s 133(2).
It follows that the learned magistrate was right to conclude that s 133(3) prohibited the institution of the council's proceedings, and that he was right to dismiss the council's claim. That is why I dismissed the appeal.
When I dismissed the appeal, I neglected to refer to the fact that the council had applied for an extension of time. Rule 684 of the Supreme Court Rules 2000 required this appeal to be instituted within 14 days after the date on which the learned magistrate dismissed the claim. The council's solicitor mistakenly assumed that the time limit was 21 days, and filed the notice of appeal six days too late. The council applied for an extension of time. Having regard to the length of the six days' delay, the reason it occurred, and the fact that the delay did not disadvantage the respondents in preparing their case, I would have granted an extension of time if the appeal had had merit. Because I had decided that the appeal should not succeed, the appropriate course was to dismiss the application for an extension of time. I have made an order to that effect in chambers without reconvening the Court.