Nash v The Corporation of the City of Marion
[2022] SASCA 95
•9 September 2022
Supreme Court of South Australia
(Court of Appeal: Civil)
NASH v THE CORPORATION OF THE CITY OF MARION & ANOR
[2022] SASCA 95
Judgment of the Court of Appeal (ex tempore)
(The Honourable President Livesey and the Honourable Auxiliary Justice Buss)
9 September 2022
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM SUPREME COURT - BY LEAVE OF COURT
REAL PROPERTY - RATES AND CHARGES - RATING OF LAND - RECOVERY OF RATES - SALE OF LAND
The applicant owes the respondent around $12,000 in unpaid council rates concerning land. On 28 March 2022, the respondent successfully obtained an order for possession of the land in this Court. By Notice of Appeal dated 17 August 2022, the applicant presses nine grounds of appeal against that possession order.
On 6 September 2022, the applicant sought to adjourn the appeal hearing and stay the possession order.
Held (the Court) refusing leave to appeal and the other applications made:
1.The appeal is without merit.
2.The applications for an adjournment, for a stay, for leave to appeal and an extension of time, are each dismissed.
Local Government Act 1999 (SA) s 184; Uniform Civil Rules 2020 (SA) r 213.1, referred to.
Anderson v The Council of the City of Lismore (2011) 185 LGERA 239; Harden Shire Council v Richardson (2012) 188 LGERA 200; The Corporation of the City of Marion v Nash [2022] SASC 29, considered.
NASH v THE CORPORATION OF THE CITY OF MARION & ANOR
[2022] SASCA 95Court of Appeal – Civil: Livesey P and Buss AJA
THE COURT (ex tempore):
Introduction
By Notice of Appeal dated 17 August 2022, the applicant presses nine grounds of appeal against an order for possession made in favour of the respondent on 28 March 2022.[1]
[1] The Corporation of the City of Marion v Nash [2022] SASC 29.
The applicant asserts that leave to appeal is not required. The appeal has been commenced well out of time and an extension of time is sought. The applicant is unrepresented.
For the reasons that follow, the appeal is without merit. Leave to appeal should be refused. As there is no utility in granting an extension of time, the application for an extension should be refused.
The grounds of appeal
It is not necessary to separately address each and every of the grounds. Some are difficult to understand. The appeal grounds are as follows:
1.That the learned MASTER erred in making a possession order based on malfeasance, maladministration of justice and FRAUD; and
2.That, without valid cause or reason, covertly perverted the course of justice, interfered and had removed from the CAA portal court file …
3.That the learned MASTER erred, contrary to Public policy and LAW, erroneously ignored and or failed to follow the LGA, LGA Regulations, Supreme Court Rules, HCA, and other Supreme court authorities,
4.That the learned MASTER erred, related to BIAS, in all its forms, contrary to the RULE of LAW, failed to address, decide andor react to applicant’s application to stand aside;
HH Dart approached the issues with a prejudiced closed or fixed mind, and would not have altered the outcome regardless of what evidence or arguments WERE put, in fact, HH Dart was “so committed to the Marion council side” frankly, a HCA judge, top QC, or ex HH CJDoyle would NOT have had a positive result; …
5.That the learned MASTER erred, contrary to LAW, as there was no legal basis nor method, for reaching the conclusion given, andor in the alternative, was against the Parliament, Government, public policies and LAW, where facts and evidence, are overwhelming in support the applicant’s appeal.
6.That the learned MASTER erred,
a) acted with prejudice, bias, andor in ignorance of LGA, property Law andor the LAW concerning seniors postponement of rates;
b) Interfered with the plaintiffs lawful right to a caveat [protecting his estate & interest] and ordered it be lifted, without any legal basis, reference to the WILL, constitution, authorities, common andor caseLaw;
c) Interfered with the plaintiffs lawful right to reside in the property, in peace and quiet, as defined and established by, the JD NASH \ WILL, common and probate LAW, since time immemorial *, constitution and statutes,
*Time immemorial (Latin: Ab immemorabili) is a phrase meaning time extending beyond the reach of memory, record, or tradition, indefinitely ancient, “ancient beyond memory or record”. In law, it means that a property or benefit has been enjoyed for so long that its owner does not have to prove how they came to own it.
7.That the learned MASTER erred, misused andor abused HH’s discretion and …
8. That the learned MASTER erred, in ignoring andor not following relevant HCA rule of Law principles that:-
1) .judicial decisions are to be made according to legal standards...;
2) .citizens have a right to a fair [hearing] trial [14 ] ;
3) .the content of the law should be accessible to the public [16 ] ;
4) .access to the courts should be available to citizens who seek to prevent the law from being ignored or violated, ...;
5) .courts have a duty to exercise a jurisdiction which is regularly invoked [18 ] ;
6) .that citizens are equal before the law [19 ] ;
9.HH DARTs Reasons didn't make sense andor are contradictory andor are a made up fabrication, not in a line with what was put by MCC andor the applicant, during the proceedings. …
The reasons of the master
Before the master, the applicant was both the respondent and the first interested party who was in occupation of the land.
The land is in Marion. The registered proprietor had been Mr John David Nash, the brother of the applicant, who passed away during 2016. The applicant opposed the respondent’s application for possession. He did so as the personal representative of the deceased estate of his brother. There is a probate proceeding in the Supreme Court seeking to pass over the applicant as executor and seeking the appointment of a different executor.
The first interested party on appeal is the remainder beneficiary of the whole of the deceased estate. Her interest arises following what the master says appeared to be a life interest in favour of the applicant in the land. Having said that, Ms Yule today contended that the interest of the applicant is better described as a right to reside rather than a life interest.
The evidence before the master disclosed that, since the death of the deceased, no council rates have been paid.
The respondent’s application for possession was sought so as to enable it to sell the land and recover unpaid rates.
Pursuant to s 184 of the Local Government Act 1999 (SA) (the Act) notice was served on the applicant on or about 25 November 2020. The notice was served by affixing it to the subject land. A copy of the notice was also published in The Advertiser. The notice followed a lengthy period during which the applicant was advised about the need to pay the unpaid council rates.
At the time of the notice, the unpaid rates approximated $8,000. The unpaid rates now approximate $12,000.
Relying upon Anderson v The Council of the City of Lismore,[2] and Harden Shire Council v Richardson,[3] the master held that the respondent council had an implied entitlement to possession so as to permit sale and recoup unpaid council rates. As the master found:[4]
I am satisfied that the applicant is entitled to an order for possession. It has a right to sell the property to recover the debt owed to it. The rates are unpaid for more than three years and the required notice was given. A right to possession is to be implied to facilitate the sale of the property. None of the submissions put by the respondent are such as to require a different outcome. There is no reason in the exercise of the Court’s discretion to decline to make an order for possession.
[2] Anderson v The Council of the City of Lismore (2011) 185 LGERA 239, [28] (Brereton J).
[3] Harden Shire Council v Richardson (2012) 188 LGERA 200, [175]-[177] (Johnson J).
[4] The Corporation of the City of Marion v Nash [2022] SASC 29, [18] (Judge Dart).
The master added, “for completeness”, that the respondent could resolve the matter at any time by paying the unpaid council rates.
Leave to appeal
Leave to appeal is required because the master made an order for possession under Chapter 19, Part 11 of the Uniform Civil Rules 2020 (SA):
Part 3—Leave to appeal—Supreme Court
Division 1—General
213.1—When required
(1)Subject to any statute to the contrary, leave to appeal is required—
(a) against an interlocutory decision (order or judgment), or any judgment or order (final or interlocutory) under Chapter 19 Part 3, 5, 11, 12, 13, 15, 16 or 17 by a judicial officer of the Magistrates, Youth, District or Supreme Court;
When considering whether to grant leave to appeal, this Court acts in the interests of justice and by reference to three, inter-related questions. They are:
(1)whether the decision is attended with sufficient doubt to warrant its reconsideration on appeal;
(2)whether the decision raises an issue of principle or general importance; and
(3)whether allowing the decision to stand would work a substantial injustice to the applicant.
The hearing of this appeal
At the callover of this matter last week, it was clear that the applicant was in some difficulty putting together the requisite appeal books. Accordingly, the Court directed the respondent to prepare the appeal books, reserving to the applicant the right to supplement them.
In addition, the parties were directed to file their submissions on the questions of leave to appeal and the merits generally.
The Court’s directions regarding these matters were punctuated by interruptions from the applicant who maintained that the respondent had refused to allow him to make payment of the unpaid council rates. When this issue was explored last week, it became clear that the applicant was frustrated by the respondent’s failure to respond to his request for further time to pay. This frustration underscores many of the applicant's arguments and we will return to the arguments he pressed today.
When the orders proposed by the Court were outlined, the applicant (who had been given permission to attend by telephone) said:
MR NASH: I have been looking at the rules and this is not the way appeals are handled. I have never had this in all of my life. I have had appeals and never had the other side preparing an appeal book, that is ridiculous. I have never heard that in my life. What the hell is going on here?
HIS HONOUR: Mr Nash, I will repeat the orders. Please be quiet.
MR NASH: I heard what you said but this is not in accordance with the rules. It is not in accordance with the rules. You give me two days, right, is that right, two days? How do you get away with this. It is just ridiculous. Is there a transcript of this hearing?
HIS HONOUR: Please adjourn the court.
MR NASH: You are shocking. You are shocking mate. I tell you what you are unbelievable.
Before the hearing of the appeal, the applicant applied to adjourn the hearing of the appeal ex parte. No argument was put to justify an ex parte adjournment save that a stay of “SALE & Possession orders” was sought. The adjournment and stay applications were referred to the hearing of the appeal today.
GROUNDS
1.ABUSE of THE RULE OF LAW;
2.ABUSE of INTEREST OF JUSTICE;
3.IMPOSSIBLY (of TASK)
4.DISCRIMINATION & ABUSE OF HANDICAPPED DSP;
5.LACK OF OFFICE RESOURCES;
6.LACK OF LEGAL KNOWLEDGE, RESOURCES & ADVICE;
7.APPEAL BOOK(DIGITAL) NOT FILED / RECEIVED / SERVED;
8.ABUSE OF SC RULES & PROCESSES;
9.JUDICIAL BIAS;
10.BREACH OF HCA JUDICIAL STANDARDS;
11.BREACH OF AUSTRALIAN LEGAL STANDARDS / PROTOCOLS AS HOW LIPS ARE TREATED WITHIN JUDICIAL SYSTEM;
see BENCH BOOKS eg QLD, NSW, VICTORIA
12.BREACH OF JUDICIAL OATH;
13.PROTECTION of PROPERTY, SUBJECT OF LITIGATION;
No basis to justify a stay was advanced in the application. Earlier applications for a stay were refused by Tilmouth AJ on 5 August and by Bampton J on 12 August 2022. At that stage the respondent Council proposed to proceed to public auction of the land on 17 August 2022.
The contentions of the applicant and the respondent
Today, the applicant argued two points. It was in connection with these two points that a large volume of further material was provided by the applicant. He handed to the Court a number of documents, including an exhibit, marked FDN45, which appears to have been filed in the testamentary causes jurisdiction.
On the first point, the applicant contended that the master was actually biased because he had made a possession order on an earlier occasion in respect of a different property and removed documents from the file. In our view that earlier possession order does not demonstrate that the master was actually let alone ostensibly biased. Otherwise, insofar as the applicant complains that the master removed documents from the file, there is no basis to suggest, even assuming that this occurred, that this demonstrates bias or fraud or that the applicant has been denied the opportunity to put whatever documents he wanted to put before the master or, indeed, before this Court.
Secondly, and in addition, the applicant has relied on Anderson v Lismore for a different point.[5] That is, the proposition that he was entitled to a stay because he has applied for remission and postponement of rates pursuant to the Council’s policy. The applicant says that pursuant to that policy he is not obliged to pay more than $500 per annum; he says that he has paid the first payment in respect of that policy in the amount of $41.67 and he has shown to this Court a receipt in that amount.
[5] Anderson v The Council of the City of Lismore (2011) 185 LGERA 239.
The respondent Council responds to this second point in essentially two ways: first, the Council says that the policy referred to in s 182 of the Act confers an absolutely discretion. In addition, that provision and the policy require that the Council be satisfied that requiring payment would cause “hardship”. The Council contends that there is no evidence of hardship and it refers to the fact that the applicant owns other land which is worth in the order of $800,000 which is subject to a compulsory acquisition order (which was not disputed by the applicant).
Secondly, insofar as the applicant has in fact applied pursuant to Council’s policy under s 182A of the Act, ss 182A(1) permits a person to apply for a postponement of the payment of a prescribed proportion of rates for “the current or for a future” financial year. Even assuming that the applicant is an “owner” for the purposes of that provision, the respondent emphasises that the application was only made on 5 August 2022 and applies to the current year and not to the arrears which arose in prior years.
Resolution of the applications
In our view, the decision of Brereton J in Anderson v Lismore depended upon the particular terms of the policy in place in that case and is accordingly not directly relevant to the provisions and policies put before us today.[6] Neither of the matters raised by the applicant, even assuming he could demonstrate that the requirements for the admission of fresh or further evidence were satisfied, demonstrate that the master’s decision was wrong or that, with the benefit of that new material, the master’s decision should now be considered to be wrong.
[6] Anderson v The Council of the City of Lismore (2011) 185 LGERA 239.
Today we were also told that at the auction on 17 August 2022 the land was passed in because the reserve set by Council was not reached. The land later sold for $575,000. The applicant says that the land is worth more than $640,000. Settlement on the sale is to occur on 23 September 2022 when vacant possession must be given. We observe that it is now clear that third party interests have intervened.
No basis for an adjournment or a stay has been established. Those applications must be dismissed.
The applicant has put no argument to suggest that any aspect of the reasoning of the master was wrong or otherwise contrary to the law. Insofar as it might be said that the master exercised a discretion, no argument was put to impeach the exercise of that discretion.
In circumstances where no arguable error has been identified, let alone established, the appeal appears to be without merit. Rather, the applicant has simply reiterated that he was and is entitled to the benefit of Council's policies or to otherwise strike a commercial arrangement by which he may make payment of unpaid council rates over a time period that suits his personal interests.
Insofar as leave to appeal is required, it should be refused. As there is no utility in granting an extension of time, the application for an extension of time should also be refused.
Conclusion
The applications for an adjournment, for a stay, for leave to appeal and an extension of time, are each dismissed. In addition, and for the avoidance of doubt, the appeal is dismissed.
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