Marchenko v Adelaide Plains Council - [2025] SASC 178

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal to a Single Judge)
MARCHENKO v ADELAIDE PLAINS COUNCIL
[2025] SASC 178
Judgment of the Honourable Justice B Doyle
27 October 2025
ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - SOUTH AUSTRALIA - ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT AND ITS PREDECESSORS - RIGHT AND AVAILABILITY OF APPEAL AND REVIEW
ENVIRONMENT AND PLANNING - ENVIRONMENT PROTECTION - GENERALLY - OFFENCES - STATUTORY NUISANCE
The respondent has brought proceedings in the Environment, Resources and Development Court (‘ERD Court’) against the appellant pursuant to s 33 of the Local Nuisance and Litter Control Act 2016 (SA) (‘LNLC Act’). The respondent alleges that the noise associated with roosters kept by the appellant on land occupied by him constitutes a ‘local nuisance’. The appellant has a disability and contends that the roosters are therapeutic animals. He disputes that the noise made by the roosters amounts to a local nuisance.
The appellant sought a permanent stay of the proceedings. The application was heard and refused by a Commissioner of the ERD Court. He now appeals against that decision.
Held, dismissing the appeal:
1.the appellant has not established that the proceedings can clearly be seen to be foredoomed to fail, nor that the maintenance of the proceedings is oppressive or vexatious so as to amount to an abuse of process;
2.the Commissioner did not err in rejecting the various grounds for a permanent stay relied upon by the appellant.

Criminal Code Act 1995 (Cth) sch 1 s 274.2; Disability Discrimination Act 1992 (Cth); Environment, Resources and Development Court Act 1993 (SA) s 30; Equal Opportunity Act 1984 (SA); Local Nuisance and Litter Control Act 2016 (SA) ss 5, 17-20, 30, 33, sch 1 cls 2, 3, 4, 5; Uniform Civil Rules 2020 (SA) r 12.1(2)(o); United Nations Convention on the Rights of Persons with Disabilities and Optional Protocol, GA Res 61/106, UN Doc A/RES/61/106 (3 May 2008, adopted 13 December 2006); United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, GA Res 39/46, UN Doc A/RES/39/46 (26 June 1987, adopted 10 December 1984), referred to.
GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 280 CLR 442; Marmota Ltd v Commissioner of State Taxation [2025] SASCA 11; Willmot v Queensland (2024) 98 ALJR 1407; [2024] HCA 42, applied.
Adelaide Plains Council v Marchenko [2025] SAERDC 17; BRK v Police (No 2) [2020] SASC 151; Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission (2016) 242 FCR 153; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; House v The King (1936) 55 CLR 499; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; R v Blackett [2018] NSWCCA 114; Return to Work Corporation v Wastell [2024] SASCA 98; Walton v Gardiner (1993) 177 CLR 378, discussed.

MARCHENKO v ADELAIDE PLAINS COUNCIL
[2025] SASC 178
Single judge appeal—civil

B DOYLE J: The Adelaide Plains Council (‘Council’) has brought proceedings in the Environment, Resources and Development Court (‘ERD Court’) against the appellant (‘Mr Marchenko’) pursuant to s 33 of the Local Nuisance and Litter Control Act 2016 (SA) (‘LNLC Act’). The Council alleges that noise associated with the keeping of a number of roosters on land occupied by Mr Marchenko constitutes a ‘local nuisance’. Mr Marchenko has a disability and contends that the roosters are therapeutic animals. He disputes that the noise made by the roosters amounts to a local nuisance.
Mr Marchenko made an interlocutory application in the ERD Court seeking a permanent stay of the proceedings. That application was heard by a Commissioner who, for clear and comprehensively expressed reasons published on 2 September 2025,[1] dismissed the application.
[1] Adelaide Plains Council v Marchenko [2025] SAERDC 17 (‘Reasons’).
The Council’s substantive application is now listed for hearing in the ERD Court over two half days on 19 and 20 November 2025.
By a notice of appeal filed on 18 September 2025, Mr Marchenko challenges the ERD Court’s refusal to grant a permanent stay.
By an interlocutory application filed on 23 September 2025, Mr Marchenko sought an order that the ERD Court proceedings be temporarily stayed until the Supreme Court appeal is finally determined. At the first return of that application, I proposed, as an alternative to determining whether a temporary stay should be granted pending the hearing and disposition of the appeal, that the appeal be expedited and heard the following week. The parties agreed and that is what has occurred.
For the reasons that follow, the appeal must be dismissed.
Jurisdiction to order a permanent stay
The ERD Court was empowered on its own initiative or on application to make any order that it considered appropriate in the interests of justice, including ordering a stay of proceedings.[2]
[2] Uniform Civil Rules 2020 (SA), r 12.1(2)(o).
As the majority observed in GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore:[3]
[t]he grant of a permanent stay to prevent an abuse of process involves an ultimate decision that permitting a matter to go to trial and the rendering of a verdict following trial would be irreconcilable with the administration of justice through the operation of the adversarial system. That ultimate decision must be one of last resort on the basis that no other option is available. This why only an exceptional case justifies the exercise of the power of a court to permanently stay proceedings. If a court refuses to exercise its jurisdiction to hear and decide cases in other than exceptional circumstances and as a last resort to protect the administration of justice through the operation of the adversarial system, that refusal itself will both work injustice and bring the administration of justice into disrepute.
[3] (2023) 280 CLR 442 at [3] (Kiefel CJ, Gageler and Jagot JJ).
In Willmot v Queensland,[4] the plurality endorsed the following summary of principles relating to a permanent stay of proceedings given by Bell P in Moubarak by his tutor Coorey v Holt:[5]
[4] (2024) 98 ALJR 1407; [2024] HCA 42 at [15] (Gageler CJ, Gordon, Jagot and Beech-Jones JJ).
[5] (2019) 100 NSWLR 218 at [71].
(1)the onus of proving that a permanent stay of proceedings should be granted lies squarely on a defendant …
(2) a permanent stay should only be ordered in exceptional circumstances …
(3)a permanent stay should be granted when the interests of the administration of justice so demand …
(4)the categories of cases in which a permanent stay may be ordered are not closed …
(5)one category of case where a permanent stay may be ordered is where the proceedings or their continuance would be vexatious or oppressive …
(6)the continuation of proceedings may be oppressive if that is their objective effect …
(7)proceedings may be oppressive where their effect is ‘seriously and unfairly burdensome, prejudicial or damaging’ …
(8)proceedings may be stayed on a permanent basis where their continuation would be manifestly unfair to a party … , and
(9)proceedings may be stayed on a permanent basis where their continuation would bring the administration of justice into disrepute amongst right-thinking people …
It is also accepted that, independently of the propriety of a plaintiff’s purpose in maintaining proceedings, civil proceedings may be stayed as an abuse of process ‘if they can be clearly seen to be foredoomed to fail’.[6]
[6] Walton v Gardiner (1993) 177 CLR 378 at 393 (Mason CJ, Deane and Dawson JJ), referring, inter alia, to General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125.
Intermediate courts of appeal have recognised a similar head of abuse of process in criminal prosecutions. In order to avoid undue interference with the prosecutorial discretion, the exceptionality of the jurisdiction to stay a criminal proceeding has been framed in terms of ‘plain beyond argument’, ‘truly exceptional circumstances’, ‘only in the most exceptional circumstances’ and ‘sparingly with the utmost caution’.[7]
[7] R v Blackett [2018] NSWCCA 114 at [31]-[41] (Leeming JA, Button and Fagan JJ relevantly agreeing).
The Council’s proceedings are plainly not criminal. Orders are sought under s 33 of the LNLC Act (titled ‘Civil remedies’). However, when a Council pursues a matter under s 33 it acts in the interests of the local community, and just as proceedings by an individual must be in the public interest,[8] it can be accepted that wider public interest considerations are relevant to a proceeding maintained by a Council or by the Minister. As well, the availability of many of the remedies contemplated by s 33(1) is conditioned upon demonstration of contraventions of the LNLC Act.
[8] LNLC Act, s 33(7)(c).
The Council’s proceedings therefore have something of a hybrid regulatory character. I will proceed on the basis that the ERD Court had power (and indeed a duty) to permanently stay proceedings brought pursuant to s 33 of the LNLC Act, if positively persuaded that the action could clearly be seen to be foredoomed to fail and was, for that reason, an abuse of process. I will decide this appeal on that basis (which is favourable to Mr Marchenko) and without bringing to bear any additional caution that may apply in criminal proceedings or, by analogy, in regulatory proceedings.
Where the focus of a permanent stay application is not solely upon its inevitable failure but on the oppressive nature of the proceeding itself, the relevant inquiry is whether any prospective trial will be unfair or so unfairly and unjustifiably oppressive as to constitute an abuse of process.[9]
[9] Willmot v Queensland (2024) 98 ALJR 1407; [2024] HCA 42 at [16] (Gageler CJ, Gordon, Jagot and Beech-Jones JJ). In considering a stay on this basis, where the proceedings are regulatory in character, it has been said that the interests of persons who would be affected by the withholding of a stay are to be weighed against the interests of those whose interests are affected by the granting of a stay, without specific regard to the identity or character of the holder of the interest as being significant in itself: Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission (2016) 242 FCR 153 at [61] (Dowsett, Tracey and Bromberg JJ).
The relevant approach on appeal
A decision to grant or refuse a permanent stay is an evaluative, not discretionary, decision. Accordingly, assuming a right of appeal is conferred, the applicable standard of appellate review is not the deference standard specified in House v The King,[10] but the correctness standard.[11]
[10] (1936) 55 CLR 499.
[11] GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 280 CLR 442 at [17], [23] (Kiefel CJ, Gageler and Jagot JJ), Willmot v Queensland (2024) 98 ALJR 1407; [2024] HCA 42 at [17] (Gageler CJ, Gordon, Jagot and Beech-Jones JJ).
The appeal is pursuant to s 30 of the Environment, Resources and Development Court Act 1993 (SA). Sub-section 30(2) provides that an appeal lies as of right on a question of law and with permission on a question of fact.
The notice of appeal lists some 11 grounds of appeal. A good number of them raise what must be questions of law, although they have not been formulated as the authorities would contemplate, at least where jurisdiction turns on the identification of a question of law.[12]
[12] Return to Work Corporation v Wastell [2024] SASCA 98 at [5]-[7], [31]-[33] (Livesey ACJ, Bleby and David JJA).
It is convenient to first consider the contentions that may be relevant to whether the proceedings can clearly be seen to be foredoomed to fail, before turning to grounds that concern the conduct or purpose of the Council in pursuing the proceedings, or the effect of the maintenance of the proceedings upon Mr Marchenko.
In the course of oral submissions, Mr Marchenko placed most emphasis upon arguments about the meaning of ‘local nuisance’ and the lawfulness of removing a therapeutic animal from a person suffering from a disability.
In respect of the effect of the proceedings upon him, Mr Marchenko’s oral submissions did not focus upon the absence of any particular procedural or other accommodations. He was unreceptive to measures that might alleviate any difficulties he is encountering in dealing with the stress of the claim (such as the appointment of a litigation guardian) short of terminating the proceedings. His claim of oppression and irreparable harm was to a large extent focused upon the fact that the proceedings expose him to the risk of removal of his roosters. That is at its core a concern about the consequence of the proceedings, if decided adversely to him, although, of course, it is generating anxiety on Mr Marchenko’s part whilst the proceedings remain pending.
For obvious reasons, it must be a rare case where a concern about the ultimate disposition of a proceeding, and consequentially its impact on a respondent whilst the proceeding remains undetermined, warrants a permanent stay, as distinct from an adjournment or some other accommodation to assist the respondent in participating effectively in the proceeding.
Legal proceedings, whether civil, criminal or hybrid in nature may often carry with them the prospect of an outcome that is almost unbearable for a party to contemplate. However, as was remarked in Marmota Ltd v Commissioner of State Taxation:[13]
Public confidence in the courts demands the exercise of jurisdiction where disputes are properly raised, in the absence of anything less than a conclusion that the Court would, in the event of continuance, become an instrument of unfairness.
[13] [2025] SASCA 11 at [110] (Livesey P, S Doyle and Bleby JJA).
Whilst there was no challenge to (and, to my observation, no reason to doubt) Mr Marchenko’s contention that he found the process of making submissions extremely draining, his demonstrated capacity to make fairly detailed submissions of law and fact on the appeal makes it difficult to conclude, particularly in the absence of cogent and admissible evidence directed to the particular topic, that he will be unable meaningfully to defend the matter in the ERD Court, including by availing himself of such accommodations or indulgences as the Court may be expected to extend to a self-represented litigant with an illness.
Can the proceedings clearly be seen to be foredoomed to fail?
The Council’s Originating Application claims that:
·Mr Marchenko is the occupier of premises at Thompson Beach;
·around April 2023, the Council was made aware of a potential noise nuisance originating from roosters crowing on the premises;
·an officer of the Council with relevant authority under the LNLC Act formed the opinion that the noise constituted nuisance that unreasonably interfered with the enjoyment of the area by persons occupying a place within, or lawfully resorting to, the area under s 17(1)(a) of the LNLC Act;
·between 3 May 2023 and 17 August 2023, that officer issued and served on Mr Marchenko three nuisance abatement notices pursuant to s 30(1)(a) of the LNLC Act, the most recent of which required him by 31 August 2023 to have all roosters on the premises relocated elsewhere and not have any roosters kept on the premises;
·the roosters were not removed as required.
The Council contends that Mr Marchenko is responsible for a ‘local nuisance’ within the meaning of s 17(1)(a) of the LNLC Act and has failed to comply with an abatement notice without reasonable excuse contrary to s 30(9). On that basis it seeks relief pursuant to s 33 of that Act.
The Originating Application is not prescriptive as to the form of relief that may be sought, and the Council accepted that, in any event, the wide powers of relief under s 33(1) are discretionary. That is to say, it is not inevitable that if a local nuisance is demonstrated the ERD Court would necessarily order removal of all of the roosters.
The Council accepts that in deciding what relief to grant, if a nuisance is established, it would not be an irrelevant consideration that the roosters are demonstrated to be therapeutically important to Mr Marchenko’s health.
The central argument made by Mr Marchenko is that noise generated by a rooster crowing between 8 am on weekdays (or 9 am on Sundays) and midnight cannot, on the proper construction of the LNLC Act and informed to the extent necessary by disability discrimination principles found in international conventions and domestic legislation, amount to a local nuisance.
Before turning to those arguments, I set out the important provisions relevant to Mr Marchenko’s submissions.
Section 5 of the LNLC Act provides that:
5—Interaction with other Acts
(1)Except as specifically provided by this Act, the provisions of this Act are in addition to, and do not limit, the provisions of any other law of the State.
(2)Without limiting the generality of subsection (1), this Act is not intended to be construed so as to prevent any person from being prosecuted under any other enactment for an offence that is also punishable by this Act, or from being liable under any other law of the State to any penalty or punishment that is higher than a penalty or punishment provided by this Act.
(3)Nothing in this Act affects or limits a right or remedy that exists apart from this Act and compliance with this Act does not necessarily indicate that a common law duty of care has been satisfied.
…
Part 4 of the LNLC Act is headed ‘Offences’. Division 1 is concerned with ‘Local nuisance’. Section 17 provides as follows.
17—Meaning of local nuisance
(1)For the purposes of this Act, local nuisance is—
(a)     any adverse effect on an amenity value of an area that—
(i)is caused by—
(A) noise, odour, smoke, fumes, aerosols or dust; or
(B) animals, whether dead or alive; or
(C) any other agent or class of agent declared by Schedule 1; and
(ii)unreasonably interferes with or is likely to interfere unreasonably with the enjoyment of the area by persons occupying a place within, or lawfully resorting to, the area; or
(b)     insanitary conditions on premises that unreasonably interfere with or are likely to interfere unreasonably with the enjoyment of premises occupied by persons in the vicinity; or
(c) unsightly conditions, of a kind declared by Schedule 1, on premises caused by human activity or a failure to act; or
(d) a contravention of, or failure to comply with a provision of an environment protection policy, or of any other Act or law, declared by Schedule 1; or
(e) anything declared by Schedule 1 to constitute local nuisance,
but does not include anything declared by Schedule 1 not to constitute local nuisance.
Note—
Schedule 1 may be added to or amended by regulation—see section 51(2)(a) and (b).
(2)For the purposes of subsection (1)(b), conditions on premises will be taken to be insanitary if an authorised officer reasonably believes that—
(a)     the premises are so filthy or neglected that there is a risk of infestation by rodents or other pests; or
(b)     offensive material or odours are emitted from the premises.
(3)In this section—
animals includes insects.

Section 18 creates an offence where a person carries on an activity intentionally or recklessly and with the knowledge that local nuisance will result, and a lesser offence without a mental element. Section 19 identifies a number of exemptions from the application of s 18. Section 20 requires that a person must, on request by an authorised officer, cease an activity, or remove from premises owned or occupied by the person any substance, material or thing that, in the opinion of the authorised officer, is causing a local nuisance.
Schedule 1 of the LNLC Act is titled ‘Meaning of local nuisance (section 17)’. Part 2 of the Schedule is titled ‘Things that are local nuisance’ and Part 3 is titled ‘Things that are not local nuisance’. Relevantly, they provide as follows:
Part 2—Things that are local nuisance
2—Declared agents (section 17(1)(a))
The following are declared agents for the purposes of section 17(1)(a):
(a)vibration;
(b)light.
3—Unsightly conditions on premises (section 17(1)(c))
For the purposes of section 17(1)(c), the following unsightly conditions are declared:
(a)conditions on premises involving—
(i)    excessive or unconstrained rubbish, waste or vegetation; or
(ii)     stockpiled, excessive or unconstrained disused or derelict items or material that a reasonable person would consider to be rubbish or waste in the circumstances; or
(iii)    graffiti (other than authorised graffiti) that has been left on the premises—
(A) in the case of offensive graffiti—for more than 7 days; or
(B) in any other case—for more than 28 days,
where, in the opinion of an authorised officer, the conditions have had an adverse effect on the amenity value of the area or caused the premises to be significantly out of conformity with the general appearance of neighbouring premises; or
(b)conditions involving a building on the premises having been left partially demolished or in a state of disrepair, dilapidation or damage where, in the opinion of an authorised officer, the conditions have had an adverse effect on the amenity value of the area or caused the premises to be significantly out of conformity with the general appearance of neighbouring premises.
4—Things declared to constitute local nuisance (section 17(1)(e))
The following are declared to constitute local nuisance for the purposes of section 17(1)(e):
(a)noise, if an authorised officer forms the opinion—
(i)    that—
(A)in the case of fixed machine noise generated on domestic premises—the noise has travelled from the domestic premises to a habitable room, or an outdoor courtyard or entertainment area, on neighbouring premises; or
(B)in the case of noise other than fixed machine noise generated on domestic premises—the noise has travelled from the domestic premises to neighbouring premises between the hours of—
•8pm and midnight on any day; or
•midnight and 9am on Sunday; or
•midnight and 8am on any other day; or
(C)in the case of construction noise—the noise has travelled from the location of the construction activity to neighbouring premises—
•on any Sunday or public holiday; or
•after 7pm or before 7am on any other day; or
(D)in the case of waste collection noise—the noise has travelled from the place at which it was generated to neighbouring premises—
•before 9am or after 7pm on any Sunday or public holiday; or
•after 7pm or before 7am on any other day; or
(DA)in the case of noise from the operation of refrigeration equipment fitted on or in a vehicle that is parked and not being operated—the noise has travelled from the place where the vehicle is parked to neighbouring domestic premises between the hours of—
•8pm and midnight on any day; or
•midnight and 9am on Sunday; or
•midnight and 8am on any other day; or
(E)in the case of noise from a street or tree maintenance machine being used in a public place—the noise has travelled from the public place to neighbouring premises—
•before 9am or after 7pm on any Sunday or public holiday; or
•after 7pm or before 7am on any other day; and
(ii)     that the level, nature or extent of the noise (including its volume, pitch, vibrational frequency, prevalence or frequency of occurrence) is such as to constitute an unreasonable interference with the enjoyment of the neighbouring premises by persons occupying those premises;
(b)odour generated on premises, if an authorised officer forms the opinion that—
(i)    the odour has travelled to neighbouring premises; and
(ii)     the nature, intensity or extent of the odour is such as to constitute an unreasonable interference with the enjoyment of the neighbouring premises by persons occupying those premises;
(c)dust generated on premises, if an authorised officer forms the opinion that—
(i)    the dust has travelled to neighbouring premises; and
(ii)     the nature, extent, smell, density or texture of the dust is such as to constitute an unreasonable interference with the enjoyment of the neighbouring premises by persons occupying those premises;
(d)smoke generated on premises, if—
(i)    an authorised officer forms the opinion that—
(A)the smoke has travelled to neighbouring premises; and
(B)the nature, extent, colour, smell or density of the smoke is such as to constitute an unreasonable interference with the enjoyment of the neighbouring premises by persons occupying those premises; or
(ii)     without limiting the generality of subparagraph (i), in the case of smoke from a solid fuel heater—
(A)a visible plume of smoke extends into the air above neighbouring premises from the flue or chimney of the heater more than 15 minutes after the heater is lit; and
(B)an authorised officer forms the opinion that the nature, extent, colour, smell or density of the smoke is such as to constitute an unreasonable interference with the enjoyment of the neighbouring premises by persons occupying those premises;
(e)vibration generated on premises, if an authorised officer forms the opinion that—
(i)    the vibration has travelled to neighbouring premises; and
(ii)     the nature, intensity or extent of the vibration is such as to constitute an unreasonable interference with the enjoyment of the neighbouring premises by persons occupying those premises;
(ea)light emitted from a place, if an authorised officer forms the opinion that—
(i)      the light has travelled from the place at which it was generated to neighbouring premises; and
(ii)     the nature, intensity, colour, location, direction or extent of the light is such as to constitute an unreasonable interference with the enjoyment of the neighbouring premises by persons occupying those premises;
(f)installation of a fixed machine on domestic premises that, in the opinion of an authorised officer, when operated or used in accordance with the manufacturer's instructions, generates noise of a kind referred to in paragraph (a)(i)(A), the level, nature or extent of which is of a kind referred to in paragraph (a)(ii);
(g)projection of a promotional, obscene or offensive image onto property without the consent of the owner or occupier of the property;
(h)using an audible bird scaring device otherwise than in accordance with the Audible Bird Scaring Devices Environmental Noise Guidelines 2007 prepared by the Environment Protection Authority.
Part 3—Things that are not local nuisance
5—Things that are not local nuisance
The following are declared not to constitute local nuisance for the purposes of section 17(1):
(a)noise or other nuisance from blasting operations carried out as part of a mining operation within the meaning of the Mines and Works Inspection Act 1920 or Mining Act 1971;
(b)noise or other nuisance from any activity carried on in accordance with a program for environment protection and rehabilitation that is in force for mining operations under Part 10A of the Mining Act 1971;
(c)noise or other nuisance from the keeping of animals in accordance with a development authorisation within the meaning of the Development Act 1993;
(ca)noise, odour or waste from animals living in their natural habitat (other than such animals that have been actively encouraged, by feeding, to gather in a particular area);
(d)other than in the case of construction noise or other nuisance from construction activities carried out in accordance with a development authorisation within the meaning of the Development Act 1993 or the Planning, Development and Infrastructure Act 2016—noise or other nuisance from any other activity carried on in accordance with an authorisation (including an approval, consent, licence, permit, exemption or entitlement) granted under any other Act (other than this Act), provided that—
(i)    the authorisation imposes requirements to control, minimise or eliminate (as far as reasonably practicable) any noise or other forms of nuisance likely to result from the activity; and
(ii)     those requirements are complied with;
(e)noise or other nuisance from fireworks displays;
(f)noise or other nuisance from sporting or associated activities at sporting venues;
(g)noise or other nuisance from community events run by or on behalf of a council (subject to any conditions imposed by the council);
(h)noise, vibration and other nuisance from public infrastructure works where—
(a)     the works are carried out because of an emergency or urgent public need; or
(b)     the works are carried out in the circumstances in order to avoid or reduce inconvenience or disruption to traffic or pedestrians during normal business hours;
(i)subject to Part 2 clause 4(a)(i)(D) and (DA), noise from vehicles (other than vehicles operating within, or entering or leaving, business premises);
(j)noise or other nuisance that may be the subject of proceedings under—
(i)    the Community Titles Act 1996; or
(ii)     the Strata Titles Act 1988;
(k)an activity on, or noise emanating from, licensed premises within the meaning of the Liquor Licensing Act 1997 in respect of which a complaint may be lodged with the Liquor Licensing Commissioner under section 106 of that Act;
(l)behaviour in respect of which a complaint may be lodged with the Liquor Licensing Commissioner under section 106 of the Liquor Licensing Act 1997;
(m)noise principally consisting of music or voices, or both, resulting from an activity at domestic premises;
(n)noise from activities carried on in the normal course of a school, kindergarten, child care centre or place of worship, other than noise consisting of amplified music;
(o) noise created by a dog barking or otherwise that may be the subject of an offence under section 45A(5) of the Dog and Cat Management Act 1995;
(p)     aircraft or railway noise;
(q)     noise caused by emergency vehicle sirens;
(r)    noise outside of the human audible range;
(s)     dust from unsealed public roads;
(t)    light emitted by or from the following:
…
The Schedule limits the noise that may qualify as ‘local nuisance’
Mr Marchenko contends that s 17(1)(a) of the LNLC Act should be seen as identifying circumstances, or rather agents, that may amount to a local nuisance, but that for particular categories of circumstances, the more specific provisions of Schedule 1 are controlling.
There are two aspects to this submission which forms the basis for appeal ground 1. First, Mr Marchenko contends that noise generated by his roosters is ‘noise other than fixed machine noise generated on domestic premises’ and is therefore governed by cl 4(a)(i)(B) of the Schedule. Noise can only amount to a nuisance under that provision if it travels from domestic premises to neighbouring premises during the specified hours of the evening and the early morning.
Mr Marchenko’s submission is that because the proceedings against him essentially concern noise at other times, the noise cannot amount to a local nuisance, or cannot properly be dealt with under s 17(1)(a). He contends that if the Council can allege that noise of that kind is a local nuisance during the course of the day, the Council could ‘bypass the carefully crafted exemptions’ in Schedule 1 and allow s 17(1)(a) to ‘override’ the Schedule.
The contrary construction is that, as the heading to cl 4 suggests, it declares (effectively ‘deems’) particular things to be a ‘local nuisance’, as contemplated by s 17(1)(e), without giving rise to any negative implication (or ‘exemption’) to the effect that particular categories of noise dealt with in cl 4 cannot otherwise amount to a local nuisance by reference to the criteria set out in s 17(1)(a).
On the Council’s approach, whilst the general definition of a local nuisance in s 17(1)(a) requires proof that the noise ‘unreasonably interferes with or is likely to interfere unreasonably with the enjoyment of the area by persons occupying a place or lawfully resorting to the area’, the need to establish an unreasonable interference of that kind falls away if, in the case of noise, it falls within one of the enumerated categories in cl 4(a)(i)(A)-(E) and the result is an unreasonable interference with the enjoyment of the neighbouring premises by persons occupying those premises.[14] On that approach, Part 2 of Schedule 1 can only do the work given to it by s 17(1)(e) of the LNLC Act, and no provision of the Schedule can limit what may otherwise amount to a local nuisance under s 17(1)(a) unless it is a ‘thing declared by Schedule 1 not to constitute local nuisance’ within the meaning of the chaussette of s 17(1). The Schedule makes clear that the only things that are declared by it not to constitute a local nuisance are those set out in Part 3. In those circumstances there is no basis for exemptions to be inferred from the limits of Part 2. The exemptions are exclusively to be found in Part 3.
[14] There is a separate question, which need not be resolved, whether, when the matter comes before the ERD Court, the Court focuses upon the authorised officer’s opinion (and if so, inquires whether it was reasonably formed), or whether it looks to the underlying facts and circumstances. Section 50 of the LNLC Act may bear on that question.
In order to decide whether a permanent stay was wrongly refused, it is only necessary to consider whether the Council’s construction is clearly doomed to fail. It is not. Indeed, it would appear to reflect an orthodox application of the principles of statutory interpretation which direct attention to text, context and purpose. It results in no absurdity, incongruity or surplusage.
Next, and in the alternative, Mr Marchenko contends that the reference in cl 5(m) in Part 3 of the Schedule to ‘noise principally consisting of music or voices, or both, resulting from an activity at domestic premises’ extends to the crowing of a rooster kept as a domestic animal.
As a matter of language, the word ‘voice’ could extend to the noise made by the vocal chords or syrinx of an animal. In the context of cl 5(m), for various reasons, including that animals are treated separately from humans in cll 5(c) and 5(ca), that meaning might be thought distinctly unlikely. Contrary to Mr Marchenko’s submission, the provision is not to be construed with any particular significance attaching to the fact that Thompson Beach is ‘situated within or associated with an International Bird Sanctuary’. The essential meaning of the LNLC Act definition cannot be influenced by such local considerations.
For present purposes, it suffices to conclude that the contention that ‘voice’ does not extend to a rooster’s crowing cannot clearly be seen to be foredoomed to fail.
International obligations affect the interpretation or application of LNLC Act
Mr Marchenko relies upon the United Nations Convention on the Rights of Persons with Disabilities (‘CRPD’) and the Optional Protocol to the CRPD, as well as the United Nations Convention against Torture and Other Curel, Inhuman or Degrading Treatment or Punishment.
Mr Marchenko accepts, correctly, that international treaties are not direct sources of individual rights and obligations under the law.[15] He relies upon the proposition that an ambiguous provision of domestic legislation may be interpreted with a bias towards compliance with Australia’s international obligations. Under appeal ground 4 he complains that the Commissioner erred by failing to proceed accordingly.
[15] Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 286-287 (Mason CJ and Deane J).
It may be doubted that there is a relevant ambiguity in the provisions but, even if there is, it cannot be said, much less with the requisite confidence, that the influence of any international obligations will be such as to render the failure of the Council’s originating application inevitable.
Conceivably, in deciding what remedies if any to grant in the event that the Council demonstrates a local nuisance, an outcome which substantially addresses or mitigates the nuisance whilst accommodating, to the extent possible, any needs that Mr Marchenko has by reason of an established disability, would be favoured. Indeed, it is even conceivable that if a local nuisance can only be eliminated by causing a more serious harm to others, and that harm cannot reasonably be avoided, the Court might, after weighing the interests of those affected by the local nuisance, withhold relief.
But to acknowledge these possibilities is not to conclude that the Council’s proceedings are clearly to be seen as foredoomed to fail or otherwise abusive. And to the extent that there is a prospect that domestic law may ultimately be applied in a fashion that might be thought inconsistent with the protection afforded to those rights by international treaties, this cannot found a permanent stay. To conclude otherwise would be to give treaties and conventions a status in substantive and adjectival law domestic that they do not enjoy.
In these circumstances it is not necessary to engage directly with the content of the conventions, nor to consider whether Mr Marchenko led evidence that would establish a satisfactory foundation for the operation of the provisions of any conventions.
Application of other State or federal legislation
Under appeal ground 3, Mr Marchenko contends that whilst the Commissioner rightly recognised that the ERD Court lacked jurisdiction to entertain free-standing claims pursuant to the Equal Opportunity Act 1984 (SA) (‘EO Act’) and the Disability Discrimination Act 1992 (Cth) (‘DDA’), she erred by interpreting the ERD Court’s empowering statute consistently with that legislation. Reference was also made to s 109 of the Constitution.
It may be doubted that s 5(1) of the LNLC Act goes as far as Mr Marchenko contends. It is true that a Court will, in the case of two potentially conflicting State Acts, strive to give them a harmonious application before deciding whether one must be taken to override the other. It may also be accepted that in the event of a genuine inconsistency, any applicable federal legislation would render the LNLC Act inoperative to the extent of the inconsistency.
However, Mr Marchenko was not able to mount any clear argument that would enable the conclusion to be reached that, because of the influence or effect of either the EO Act or the DDA, the noise made by pets or animals that have a therapeutic benefit for a person with a disability cannot amount to a local nuisance within the meaning of the LNLC Act, such that the Council’s action is foredoomed to fail.
The Council is acting for an improper purpose or otherwise unlawfully
Mr Marchenko’s appeal grounds (most obviously, appeal grounds 6, 7, 9 and 10) include contentions that the Council has brought the proceedings for an improper purpose, or has, by bringing the proceedings contravened anti-discrimination laws or otherwise acted unreasonably. He also contends that the Council did not comply with its duty of disclosure or candour at an ex parte hearing that resulted in it being given leave to serve a summons upon Mr Marchenko to attend to answer the proceedings.

To the extent that Mr Marchenko’s contentions rest upon an inference that, because the claim is based upon a manifest misunderstanding of the LNLC Act, the Council must be acting for some improper purpose, my rejection of the proposition that the proceeding is clearly doomed to fail is sufficient in itself to preclude the drawing of such an inference.
In any event, an inference of that kind is a serious matter, not lightly to be drawn. There is nothing in the evidence that was before the Commissioner that would persuade me that the Council is acting for an improper purpose. The Commissioner did not err by reaching the same conclusion (Reasons [110]-[111]).
The complaint relating to the ex parte hearing is not made out. As the Commissioner found (Reasons [107]), Mr Marchenko has not established that the Council misled the Court or concealed vital information, and the contrary conclusion would not, without more, itself justify a permanent stay.
To the extent that Mr Marchenko contends that the Council has engaged in direct or indirect disability discrimination within the meaning of the DDA, the Commissioner was correct in failing to be satisfied that the Council engaged in conduct of the relevant kind by the mere fact of bringing and maintaining the proceedings (Reasons [128]-[139]).
To the extent that it is contended that the decision to bring the proceedings is vitiated by legal unreasonableness, I reject the contention that the Council’s conduct can be so characterised, making it unnecessary to consider whether that contention would, if made out, avail an applicant for a permanent stay. The Commissioner made no mistake in disposing of this and related contentions (Reasons [126]-[127]).
The impact of the proceedings upon Mr Marchenko
Mr Marchenko contends that the maintenance of the proceedings is causing and, unless a permanent stay is granted, will continue to cause, severe and potentially irreparable harm to him. Appeal grounds 5 and 9 most obviously raise these contentions.
He also contends that the ERD Court, by allowing the matter to progress towards a trial:
·is causing or permitting torture, contrary to s 274.2 of the Criminal Code Act 1995 (Cth) (‘Criminal Code’);
·is denying procedural fairness and conducting itself in a way that results in apprehended bias;
·is failing to comply with the obligation owed by the ERD Court under the EO Act to provide ‘special assistance’ to him as a disabled person.
Before the ERD Court, Mr Marchenko relied upon a letter from his clinical psychologist, Mr Tim Upsdell, with whom he has been consulting intermittently since 2014. Based on Mr Upsdell’s impressions of Mr Marchenko and his review of another report (which was not in evidence), he considered that Mr Marchenko suffers from very high anxiety, sleeps very poorly and experiences nightmares and body cramps. Mr Upsdell considered that Mr Marchenko suffers from complex PTSD and that his relationship with the roosters is very therapeutic, and that their removal will cause considerable distress and aggravation of the complex PTSD.
The letter is not an expert report and it is not sworn evidence. But even taking it as some evidence of the matters to which it is addressed, it suggests that one possible outcome of the proceedings may well be detrimental to Mr Marchenko’s health. Whilst an inference might be drawn that the prospect of that outcome is such that the mere existence of the proceedings is a source of considerable stress and anxiety, the opinion expressed falls short of establishing that Mr Marchenko’s stress or anxiety makes it impossible for him fairly to participate in and defend the proceedings.
Before such a conclusion could be reached, so as to sustain a basis for a permanent stay, it would be necessary to investigate measures (such as the obtaining of legal representation, the appointment of a litigation guardian, or other supports) and conclude that they are unavailable or would be entirely ineffective in facilitating meaningful participation by Mr Marchenko in the proceedings.
Mr Marchenko carries the onus of establishing the facts and circumstances that warrant the grant of a permanent stay. Neither Mr Upsdell’s letter, nor the somewhat conclusory assertions made in Mr Marchenko’s own affidavit, discharge that onus.
Although it seemed clear that Mr Marchenko was finding the process of addressing the Court stressful and extremely draining, the fact remains that he was able to prepare comprehensive written submissions and make oral submissions which conveyed his concerns about the fairness of the relief that may be sought by the Council and which, at a legal level, were comprehensible, even if they were not ultimately persuasive.
That his arguments for a stay have not been accepted does not mean that many of the underlying concerns or facts may not be accepted as relevant to the ERD Court’s ultimate disposition of the matter. I am unable to conclude that Mr Marchenko’s complex PTSD renders it impossible for him to meaningfully participate in the defence of the Council’s claim.
If his difficulties mean that he requires additional time, or adjournments, or other accommodations, those will be matters which, no doubt, the ERD Court will carefully consider.
I would reject any contention that the ERD Court’s conduct of the matter to this point has involved a failure to make appropriate accommodation for Mr Marchenko’s condition, or that it has been relevantly unfair. In that respect, and in rejecting the contention of apprehended bias, I agree with the Commissioner (Reasons [118]-[125]).
I also unhesitatingly reject any submission that the ERD Court or the Council has subjected Mr Marchenko to torture, much less that the Council has committed the offence of torture within the meaning of s 274.2 of the Schedule to the Criminal Code. Even if it were established that Mr Marchenko has, by the proceedings, suffered severe physical or mental pain or suffering, there is, as the Commissioner held, no evidence capable of establishing that the Council acted for any of the proscribed purposes in s 274.2(1)(b) (Reasons [68]).
Other grounds
By appeal ground 2, Mr Marchenko contends that the ERD Court erred by failing to refer questions of statutory interpretation to the Court of Appeal. He has not identified any distinct question of statutory interpretation, the resolution of which would be of such clear utility that there could be said to be an error in the exercise of the discretion to make a referral.[16] Even if he had done, this would not form a basis for a permanent stay.
[16] BRK v Police (No 2) [2020] SASC 151 at [24] (Livesey P).
By appeal grounds 10 and 11, Mr Marchenko complains that the ERD Court otherwise erred in its assessment of the interests of justice, and that the Commissioner’s decision was vitiated by a combination of jurisdictional or other errors. I do not consider that these grounds raise any separate basis upon which it could be found that the decision not to grant a permanent stay was wrong.
Disposition
The appeal is dismissed.