Ngurampaa Limited v Brewarrina Shire Council

[2015] NSWSC 1553

Supreme Court

New South Wales

Medium Neutral Citation:	Ngurampaa Limited v Brewarrina Shire Council [2015] NSWSC 1553
Hearing dates:	19 October 2015
Decision date:	20 October 2015
Jurisdiction:	Common Law
Before:	Button J
Decision:	(1) The notice of motion of Mr Eckford of 18 September 2015 is dismissed. (2) The proceedings between the plaintiff, Ngurampaa Limited, and the defendant, Brewarrina Shire Council, are listed before the Common Law Registrar at 9 AM on Tuesday 3 November 2015. (3) Each party must pay their own costs of the motion.
Catchwords:	PRACTICE AND PROCEDURE – application for joinder – whether a third party should be joined as a party to proceedings in the Supreme Court – whether the joinder is necessary to the determination of all matters in dispute – application dismissed
Legislation Cited:	Judiciary Act 1903 (Cth), s 40 Uniform Civil Procedure Rules 2005 (NSW), r 6.24
Cases Cited:	Ngurampaa Limited v Brewarrina Shire Council (Supreme Court (NSW), Button J, 3 March 2014, unrep).
Category:	Procedural and other rulings
Parties:	Ngurampaa Limited (Plaintiff) Brewarrina Shire Council ABN 22664205362 (Defendant)
Representation:	Counsel: S Bell (Defendant)   Solicitors: G Eckford (Litigant in person) SR Law (Defendant)
File Number(s):	2014/00058631

Judgment

Introduction

1. This matter came before me in the Duty List yesterday morning. It was founded upon a notice of motion of Mr Ghillar Eckford (the applicant). It can be seen that, in a nutshell, the applicant seeks to be joined in longstanding proceedings in this Court between Ngurampaa Limited (the plaintiff), and Brewarrina Shire Council (the defendant).

2. To state the background with great succinctness, many years ago the defendant council obtained a judgment against the plaintiff in the Local Court. It was in the sum of approximately $12,000 for unpaid rates. The proceedings in this Court are in the nature of an appeal by the plaintiff founded on an error of law, or an application for prerogative relief.

3. Those proceedings have been on foot for quite some time. Indeed, reference should be made to the judgment that I delivered as long ago as 3 March 2014, when the matter previously came before me as Duty Judge: see Ngurampaa Limited v Brewarrina Shire Council (Supreme Court (NSW), Button J, 3 March 2014, unrep).

4. There was no dispute before me yesterday that the plaintiff company is limited by guarantee. There was also no dispute that the company was placed in liquidation a few months ago, on 20 July 2015, on the petition of the Deputy Commissioner of Taxation, and it remains in that state. Nor was there dispute that the position of the liquidators is that they do not propose to proceed with the proceedings seeking to impugn the Local Court judgment.

Submissions

5. The applicant does not dispute any of those background facts. Rather, what he seeks to do is be joined in the proceedings so that he can make some very wide-ranging and deep submissions, not only about matters of law (including constitutional law and the law of real property), but also about the provision of social justice to Aboriginal people. Indeed, an application that was recently brought by the plaintiff company (although I infer that, at that stage, the moving party was, in truth, Mr Eckford) to have these proceedings removed into the High Court of Australia pursuant to s 40 of the Judiciary Act 1903 (Cth) was rejected by two Justices of that Court on 4 September 2015.

6. The submission of counsel for the defendant council is, whatever may be the legal or moral rights and wrongs of what the applicant seeks to say, this simple dispute between a council and a company over unpaid rates on land is not the appropriate forum. And it was submitted that, as a matter of law, it is up to the liquidators for a company in liquidation to determine its approach to pending litigation, and no-one else.

Determination

7. I think that there is force in the defendant’s submission. And in any event, there may be many members of the Aboriginal community of Brewarrina and its environs, or more generally, who have submissions to make about legal matters or matters of social justice that differ from those of the applicant. Whilst I accept that the applicant has had a connection with the company, and that his views are deeply and sincerely held, I think there is a danger in his views being given inappropriate primacy over others who may wish to make differing, or indeed contrary, submissions.

8. The question of the adding of plaintiffs and interveners is governed by r 6.24 of the Uniform Civil Procedure Rules 2005 (NSW). That rule is as follows:

6.24 Court may join party if joinder proper or necessary

(1) If the court considers that a person ought to have been joined as a party, or is a person whose joinder as a party is necessary to the determination of all matters in dispute in any proceedings, the court may order that the person be joined as a party.

9. In the circumstances as they were placed before me, both as revealed on the last occasion and on this occasion, I do not consider it appropriate that the applicant become further involved in this straightforward monetary dispute about a small sum. Without meaning the slightest disrespect to his approach, I think that his points must be made in other forums, and this very limited dispute must now come to an end.

10. Counsel for the defendant council also sought to have the summons dismissed, along with the motion, but I think that that could be precipitous on my part without the liquidators formally consenting to that course. Instead, I propose to list the summons before the Registrar in two weeks’ time.

Costs

11. Turning to the question of costs, the council sought costs of the motion. Certainly, the normal rule is that costs should follow the event. But here is an Aboriginal man who has sought to agitate, perfectly courteously and respectfully, his deeply held views about matters of law and justice. It was only recently – that is, on 20 July 2015 – that I infer that his ability to do so in the proceedings directly came to an end. In the circumstances, and as a matter of discretion, even despite the trouble and expense to which the council has been put, I make no order as to costs of the motion. That should not be taken by the applicant as an indication of any future costs orders that could be made by other judicial officers or me, if further applications on his part are rejected.

Orders

12. I make the following orders:

1. The notice of motion of Mr Eckford of 18 September 2015 is dismissed.

2. The proceedings between the plaintiff, Ngurampaa Limited, and the defendant, Brewarrina Shire Council, are listed before the Common Law Registrar at 9 AM on Tuesday 3 November 2015.

3. Each party must pay their own costs of the motion.

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Decision last updated: 23 October 2015