McFarlane v Outback Communities Authority - [2021] SADC 6

District Court of South Australia
(Civil: Minor Civil Review)
MCFARLANE v OUTBACK COMMUNITIES AUTHORITY
[2021] SADC 6
Reasons for Decision of his Honour Judge Slattery (ex tempore)
15 January 2021
ADMINISTRATIVE LAW - JUDICIAL REVIEW
Application for review of a decision of a magistrate.
Held:
Application dismissed. Decision of the learned magistrate affirmed.
Magistrates Court Act s 3, s 38; Fines, Enforcement and Debt Recovery Act 2017; Outback Communities (Administration and Management) Act 2009, referred to.

MCFARLANE v OUTBACK COMMUNITIES AUTHORITY
[2021] SADC 6

This is a minor civil review. It is brought pursuant to s.38(6)(7)(8) and (9) of the Magistrates Court Act. Those subsections provide as follows.
38—Minor civil actions
…
(6) The District Court (constituted of a single Judge) may, on the application of a party dissatisfied with a judgment given in a minor civil action, review the matter.
(7)     The following provisions apply to such a review by the District Court:
(a)     subject to paragraph (ab), the right of a party to be represented by a legal practitioner at the review will be determined in accordance with subsection (4);
(ab) if, in the case of a review that relates to a minor civil action in respect of a transferred proceeding within the meaning of Part 3A of the South Australian Civil and Administrative Tribunal Act 2013, a party was represented by a legal practitioner at the proceeding, then the party may be represented by a legal practitioner at the review by the Court;
(b)     the Court may inform itself as it thinks fit and, in doing so, is not bound by the rules of evidence;
(c)     the Court may, if it thinks fit, re-hear evidence taken before the Magistrates Court;
(d)     in determining the matter, the Court may—
(i)      affirm the judgment; or
(ii) rescind the judgment and substitute a judgment that the Court considers appropriate; or
(iii) if the review arises from a default judgment or summary judgment, rescind the judgment and—
(A) substitute a judgment that the Court considers appropriate; or
(B) remit the matter to the Magistrates Court for hearing or further hearing;
(e)     in hearing and determining the review, the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(8)     A decision of the District Court on a review is final and not subject to appeal.
(9) However, the District Court may reserve a question of law arising in a review for determination by the Court of Appeal which may determine the question and make any consequential orders or directions appropriate to the circumstances of the case.
The application for review is brought against an interlocutory decision made by the learned magistrate in relation to a proceeding which has now been set for trial in February 2021.
These proceedings have had a long and difficult history. That history exposes a number of unsatisfactory issues about applications for review of interlocutory judgments in minor civil claims in the Magistrates Court.
A party making an application under s.38(6) Magistrates Court Act must be dissatisfied with a judgment. Section 3 of the Magistrates Court Act defines a 'judgment' to mean an order or decision and includes an interlocutory judgment.
I recite below the history of this matter. It is replete with applications for review of interlocutory judgments. I consider that this application is symptomatic of the difficulties that arise when applications for review are brought against interlocutory judgments in minor civil claims in the Magistrates Court. I think that this is an unsatisfactory situation and I will develop those matters later.
It is first necessary to identify some of the immediate history of this matter, action ELCCI-14-14465, the action taken by Outback Communities Authority concerning a civil debt determination made by the Chief Recovery Officer (CRO) under the Fines, Enforcement and Debt Recovery Act 2017.
A second proceeding was then commenced by Mr McFarlane on 17 July 2019 (action 19-2851). It purports to be a response to a claim by the CRO about monies allegedly owed by Mr McFarlane and so there was complementarity between those two actions. The appropriate step would have been for Mr McFarlane to have raised the matters in this action in his defence to the first action. Following later orders by the court, the issues in both actions were effectively joined. Earlier, the action had been listed for trial on 12 March 2020 but that trial date did not proceed because of a review application brought by Mr McFarlane that was determined in this court. That review application was dismissed on 20 April 2020 and the matter was remitted to the Magistrates Court for hearing. There were subsequent interlocutory applications and orders.
The actions were relisted for trial on January 2021, however, that date will not proceed because of this further minor civil review. The matter has been set for trial on 17 February 2021. One day has been set aside.
On 8 September 2020, the learned magistrate gave leave to Mr McFarlane to file a defence. This was on his application, which also sought orders that his own action, that is, action 19-2851, await the outcome of the finalisation of this action. He sought leave, inter alia, to issue a subpoena on the OCA (Outback Communities Authority) and on the Andamooka Progress and Opal Miners Association (APOMA).
The interlocutory matters in contention before the learned magistrate, which are the subject of this application for review, were an application brought by Mr McFarlane seeking an extension of time to file a combined counterclaim and third party claim initiated on 8 October 2020. That application was dismissed by the learned magistrate on 20 October 2020 and this review application concerns Mr McFarlane's challenge to the interlocutory orders made by the learned magistrate. In order to understand that challenge, it is necessary, first, to have regard to the whole of the background which informs the detail of the decision of the learned magistrate. It is to those matters which I now turn.
The background is that a default judgment was entered against Mr McFarlane in 2014 arising from outstanding community contributions and penalties imposed upon him under the Outback Communities (Administration and Management) Act 2009 (the Act).
Mr McFarlane brought an application in 2016 to set aside this default judgment. This application was refused and Mr McFarlane then continued to refuse to pay the judgment debt. He separately issued proceedings against the OCA and APOMA in action 19-2851. The aspect of the action against APOMA was discontinued by order of Magistrate Kennewell on 9 August 2019.
In her decision, Magistrate Adair at [7] summarised Mr McFarlane's claim in action 19-2851 as being that the community contribution has been '... improperly levied on him and others for a number of reasons including that the OCA have acted unlawfully, without power and pursuant to deception ...'. This explains how these allegations were treated as a defence to action 14-14465 pursuant to her Honour's orders.
Following a further application, and by consent of the OCA, the learned magistrate set aside the default judgment on the condition that the OCA be permitted to pursue the original debt plus further levies and penalties accrued since the date of the original debt and on the basis that the claim in action 19-2851 be joined to or heard with his action. It was accepted that the claim in action 19-2851 was in effect Mr McFarlane's defence to this action. The learned magistrate decided that both matters could be determined together. The learned magistrate accepted that part of the claim in action 19-2851 was in essence the counterclaim that Mr McFarlane now sought to file in this action.
Her Honour therefore refused the application to file a separate counterclaim based upon the admission of Mr McFarlane that his proposed counterclaim was the same as his pleadings in action 19-2851 which would form his defence in this action. Her Honour found that it would be duplicitous and it would delay the finalisation of the action to make orders for a separate hearing of those matters.
I have closely read the content of both the proposed counterclaim, which is an exhibit to the affidavit of Mr McFarlane sworn 2 October 2020, together with the content of the defence to which the learned magistrate made reference in reaching her decision. I am satisfied, having read both documents, that the learned magistrate was correct in her findings and that conclusion is fortified as a result of all of the submissions that I have heard this morning. I consider that the learned magistrate was therefore correct in the orders that she made concerning the counterclaim.
Her Honour then turned her consideration to the proposed third party claim against APOMA. Her Honour found that this proposed claim lacked any merit. Given that the claim of OCA was for contributions or levies imposed under an Act, no basis was made out in any application or supporting affidavit to disclose any valid third party claim against APOMA, a party unrelated to that claim. No draft third party claim had been filed. None has been provided to me. The learned magistrate recorded that the claim of Mr McFarlane is that APOMA refused to allow, or its constitution did not allow a vote of the whole of the community about whether to enter into a community affairs, resourcing and management agreement. That agreement was required to be executed before a community contribution may be levied. These levies form the basis of the claim against Mr McFarlane. That appears to be a jurisdictional matter which has no connection to the question of whether Mr McFarlane is liable to pay the levies and the penalties imposed. That is because the right of the OCA to recover the levies is authorised under the Act and under the CARM agreement. Therefore, the disposition of that question would have no effect upon the right of OCA under its statutory powers to recover the levies.
The learned magistrate also considered the contentions of Mr McFarlane that OCA should join APOMA but her Honour decided there was no basis for any claim between APOMA and the OCA. Her Honour also said that in action 19-2851, APOMA had originally been a respondent but another magistrate made an order for the discontinuance of the action against APOMA on 9 August 2019. On 14 January 2020, another magistrate made orders prohibiting Mr McFarlane from bringing an application to join APOMA to the proceedings. An application for review of that decision was brought and Judge McEwen dismissed that application in his judgment of 20 April 2020. Therefore, the question of the rights, obligations and liabilities of APOMA have been considered on a number of occasions. I am satisfied that nothing new has been raised by Mr McFarlane on the papers filed in relation to this matter or in relation to any of the submissions made before me today which would cause this court to look again at that issue or to reach a different conclusion.
I refer to the submissions made today by before me by Mr McFarlane, particularly in relation to a number of further affidavits which being document FDN9 of 13 January 2021 and FDN26 of 8 December 2020. Prior to and during the course of the submissions being received from Mr McFarlane, I have closely read those documents. I am satisfied that they relate to internal matters which are irrelevant to the issue before me and are matters that do not add anything to the issues for determination by me. I also interpolate that any and all of the issues that I have seen within the pleadings that have been proposed by Mr McFarlane, particularly in relation to APOMA, are issues that may arise separately between citizens and APOMA and therefore, are matters that may justify another proceeding. That is not to say that there is any merit in those matters; the position is simply that if there is to be a ventilation of those matters in a court, it must be in a separate proceeding between Mr McFarlane and anyone else he wishes to join the proceedings and APOMA. It is a matter for those parties whether such a proceeding should or ought to be brought.
It follows, therefore, that I agree with the decisions made by the learned magistrates in relation to the discontinuance of the action against APOMA, the orders preventing APOMA being joined, and the orders made by Judge McEwen dismissing an application for a review from those decisions.
In the exercise of her discretion, the learned magistrate said that the joining of yet another party would delay the proceedings. I agree with her Honour's decision. The debt claim arose in 2014. It was later initially listed for trial on 14 January 2020. It was adjourned to 12 May 2020, then January 2021 and now it will be heard on 17 February 2021.
Her Honour then separately dealt with the question of service by email and whether any subpoena may be directed to OCA and APOMA. Her Honour held that OCA is a party of the proceedings and there is no challenge to the sufficiency of its disclosure. Her Honour also held that although APOMA is not a party to the proceedings, no basis is identified for seeking documents from that entity. Her Honour refused those applications.
I turn then to s.38(7)(d) of the Magistrates Court Act. Under the operation of s.38(7)(d)(i) and (ii), I may affirm the judgment or rescind the judgment and substitute a judgment that I consider appropriate. S.38(7)(d)(iii) has no application because this is not an application for review from default judgment or a judgment and so the limit of my jurisdiction is as set out as above. There is no basis for remitter of the application to the learned magistrate.
The respondent OCA contends that it is contrary to the principles applicable to the determination of minor civil actions that the District Court should review interlocutory orders made by a magistrate where the interlocutory orders have not finally disposed of the rights of the parties. This submission has its basis in the distinction between appeals from interlocutory judgments and final judgments and how such appeals are to be disposed of by an appellate court. The argument of the OCA is that the continual review by the District Court of interlocutory orders made in minor civil actions would result in the disposition of minor civil actions being prolonged. There would also be an unnecessary fragmentation of the proceedings together with a risk that the court's power to properly review a minor civil action may be fettered. This is because interlocutory judgments may be reviewed in the absence of a full consideration of the facts.
The background to those submissions is that the OCA contends that the District Court should review a matter only once there has been a final determination consistent with the operation of s.38(8) and (9) Magistrates Court Act. It also contends that this action is ready for trial, has been listed for trial on two occasions and both dates have been vacated because of the lodgement of minor civil review applications. These have been dismissed. The OCA also points to the fact that the whole purpose of minor civil actions is for the court to provide an efficient and economical means for the determination of such small claims free from the burden of legal costs and the technicalities that are associated with claims in the general list. The court is required to take an inquisitorial role and act with equity, good conscience and without undue technicality. At one level that approach is not necessarily consistent with an approach to be taken by a court upon an appeal from an interlocutory decision. I consider that this highlights what appears to be the intention of parliament that a review under s.38 Magistrates Court Act should finalise a whole action and not merely be a step along the way of the disposition of such an action.
Although I accept the general tenor of the submissions of the OCA, one difficulty is that the definition of judgment for s.3 Magistrates Court Act includes an interlocutory judgment. The decisions under review are interlocutory judgments. I accept that it is anathema to the determination of minor civil actions that there should be one or more review applications brought against interlocutory decisions of magistrates at first instance. Such an approach is entirely inconsistent with the philosophy and process of the determination of such actions as established by parliament under the Act.
I consider that this matter requires the attention of parliament. An obvious solution is that the definition of judgment in s.3 Magistrates Court Act should exclude an interlocutory judgment in a minor civil action. By that process, the whole of the issues in a minor civil action can be reviewed at one time and not in some piecemeal unsatisfactory fashion as currently occurs.
I turn then to the question of the matters raised on the notice of review brought by Mr McFarlane. I have read paras.1-15 of the grounds of appeal and these are in the nature of submissions. They do not require any determination by me. They are not raised within the determination made by the learned magistrate on 20 October 2020. In particular, the matters raised at paras.2, 3 and 4 are not the subject of any determination by the learned magistrate.
I am satisfied that no error has been made by the learned magistrate in refusing the application for leave to Mr McFarlane to file a counterclaim and third party claim. There has been a delay in filing that document and there is no justiciable cause disclosed on the face of the document and so under the rules the court's discretion would not ordinarily be exercised in favour of an extension of time to file a document to join a third party.
I repeat my earlier comments, that the content of the defence is almost identical to the content of the counterclaim and therefore the question of the content of the counterclaim are matters to be ventilated in the minor civil claim hearing in any event.
In relation to the pleadings as they exist in relation to the application for joinder of APOMA, those matters would be struck out even if the document was filed within time. The reason is because they do not disclose any cause of action or any justiciable cause.
In any event, any application involving APOMA may separately be brought by Mr McFarlane and he would not otherwise be prejudiced by a separate determination of any other matters.
It is a matter for Mr McFarlane but if he brought separate proceedings he may yet apply for consolidation or joint listing of those proceedings. This is a question for the exercise of the discretion of the learned magistrate who may hear such an application and I would certainly not express any view one way or the other upon that matter.
It is obvious that issues of the due administration of justice apply in relation to notification to any party joined to a proceeding, particularly at this late stage. Such considerations may militate against the joinder of the action to the hearing on 17 February 2021.
In summary, it is sufficient to say that having closely read the documents I find that the proposed pleading, called the counterclaim, and which makes reference to a number of matters concerning APOMA and the OCA is no more than a rambling discourse. It does not disclose a cause of action. It pleads no basis for the orders sought in part 4 of the proposed pleading and it is not comprehensible as a pleading. In the ordinary course, it would not likely attract the favourable discretion of the court in relation to leave to file an amending document.

Having expressed those views I am fortified in my views that having regard only to the facts and issues raised on the face of the proposed pleadings, if those matters are to be ventilated they must form part of some separate claim if it is to be brought by Mr McFarlane.
In the application of s.38(7)(d)(i) and (ii) of the Magistrates Court Act there is no basis to rescind the judgment and to substitute a judgment that I may consider appropriate. I affirm the judgment of the learned magistrate which I think is correct. I will hear the parties in relation to costs and any consequential orders.