Nobes v Shire of Chittering
[2024] WADC 54
•23 MAY 2024
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: NOBES -v- SHIRE OF CHITTERING [2024] WADC 54
CORAM: HUGHES DCJ
HEARD: 23 MAY 2024
DELIVERED : 23 MAY 2024
FILE NO/S: APP 14 of 2024
BETWEEN: WILLIAM NOBES
Appellant
AND
SHIRE OF CHITTERING
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE HARRIES
File Number : JOO/DOUG/1179/2023
Catchwords:
Magistrates Court appeal - Application for the disposal of uncollected goods - Application to strike out appeal - Turns on own facts
Legislation:
Disposal of Uncollected Goods Act 1970 (WA)
District Court Rules 2005 (WA)
Magistrates Court (Civil Proceedings) Act 2004 (WA)
Planning and Development Act 2005 (WA)
Result:
Grounds 1 - 5 of the appeal are struck out
The appeal is dismissed
The appellant is to pay the respondent's costs, to be taxed if not agreed
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | Ms P A Honey |
Solicitors:
| Appellant | : | Not applicable |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
TSW Analytical Pty Ltd v The University of Western Australia [2017] WASCA 67
HUGHES DCJ:
[This judgment was delivered extemporaneously on 23 May 2024 and has been edited from the transcript.]
Introduction
This is an application by the respondent, the Shire of Chittering (the Shire), to strike out this appeal.
The appellant is Mr Nobes. Mr Nobes appeals the judgment and orders of the learned magistrate, Magistrate Harries, made on 13 February 2024 in the Joondalup Magistrates Court ordering the disposal of the vessel 'Iron Will' pursuant to s 19 of the Disposal of Uncollected Goods Act 1970 (WA).
The appeal notice was filed on 5 March 2024 and commenced within time, complying with s 40(3) of the Magistrates Court (Civil Proceedings) Act 2004 (WA).
In the notice of the respondent's intention filed on 26 March 2024 the Shire seeks an order that the appeal notice be struck out, pursuant to r 51(3) of the District Court Rules2005 (WA) and s 43(4)(a), s 34(4)(b) and s 34(4)(d) of the Magistrates Court (Civil Proceedings) Act.
On 16 April 2024 orders were made for the Shire's strike out application to be listed before a judge. The appeal has not yet been listed.
The factual background
The following matters were not in dispute:
(a)Mr Nobes owns the vessel 'Iron Will';
(b)Lot 89 Koomal Street in Bindoon (the lot) is land owned by the Shire;
(c)the vessel was deposited on the lot sometime during 2019 (most likely on or around November 2019 as found by Magistrate Harries at page 194 of the matter book); and
(d)as at 13 February 2024 when the orders were made by Magistrate Harries, the vessel remained on the lot owned by the Shire and was not collected by Mr Nobes.
The Shire's case is that on 27 September 2019 Mr Nobes made an application for development approval for 'information centre bear medical centre yacht (monument to dementia awareness)'.[1] On 20 November 2019 the Shire approved the application subject to conditions for two years.[2] The vessel was installed on the lot. The Shire said Mr Nobes did not comply with the conditions and on 20 May 2020 the Shire resolved to write to Mr Nobes directing him to remove the vessel.[3] On 20 November 2021 the development approval expired. On 29 November 2021, 14 February 2022 and 13 April 2022 the Shire wrote to Mr Nobes directing him to remove the vessel from the lot.[4] On 13 April 2022 the Shire issued Mr Nobes a direction notice pursuant to the Planning and Development Act 2005 (WA).[5] McLeods lawyers commenced acting for the Shire and issued the required notices on 16 January 2023 and 7 August 2023 under the Disposal of Uncollected Goods Act and lodged notices in The West Australian newspaper and Government Gazette on 9 August 2023 and 1l August 2023 respectively.[6] As at the date of trial on 30 January 2024 the vessel remained on the lot. In summary, two years after the expiry of the development approval, Mr Nobes had not removed the vessel from the lot as directed on a number of occasions to do.
[1] Matter book, page 45.
[2] Matter book, pages 54 - 63, minutes of meeting.
[3] Matter book, pages 73 - 79, minutes of meeting.
[4] Matter book, pages 91 - 93.
[5] Matter book, pages 94 - 95.
[6] Matter book, pages 106 - 117.
Mr Nobes' case is he is the owner of the vessel and his intention in October 2019 was to raise awareness about dementia and aged care in the area. Mr Nobes wanted the case heard in the Supreme Court. His main complaint is about the governance of the Shire, and he alleges fraud, corruption and a conspiracy against him by the Shire. This is evident in a statutory declaration sworn by Mr Nobes on 18 December 2023.
The Magistrates Court proceedings
The matter proceeded to trial before Magistrate Harries on 30 January 2024 and it appears to have lasted a day.
Mr Nobes represented himself at trial.
The Shire was represented by Ms Honey.
In providing detailed and considered reasons Magistrate Harries was satisfied to the required standard that the requirements pursuant to s 19 of the Disposal of Uncollected Goods Act had been met. Namely, that there was a bailment of the yacht or vessel in excess of $3,500 in value, that the yacht was accepted by the bailee being the Shire, that the yacht was ready for delivery and that the respondent, being Mr Nobes, failed to take delivery in accordance with the notices.[7]
[7] Matter book, page 217.
As evident from the judgment the magistrate was well aware that Mr Nobes was a self-represented litigant and afforded him various accommodations to ensure he had the opportunity to fairly present his case. I note when judgment was handed down and orders made Mr Nobes commented to the magistrate 'no Miss, I'm going to the Supreme Court ... but as I said, this is no reflection on this court whatsoever'.[8]
[8] Matter book, page 219.
Further, at the end of the judgment the magistrate offered Mr Nobes a further month to remove the vessel which Mr Nobes declined and said he was now going to the Supreme Court.[9]
[9] Matter book, page 219.
The grounds of appeal
There are five grounds of appeal contained in the appeal notice filed on 5 March 2024. Ground 1 reads:
Reason for the appeal is that I feel I have been cheated and wronged by the Shire of Chittering for the past 5 years and a close friend of mine feels it is elder abuse. I'm unable to afford legal advice because my life savings approximately $150,000 was spent on purchasing, transporting and positioning the monument boat on the site provided by the council for the reason to promote aged and dementia care for the betterment of the Bindoon community.
Ground 2 reads:
On the 20/11/2019 the current CEO was not employed at the Shire of Chittering, so the evidence given was hear say or from unconfirmed minutes, so it was understandable that she could not recall any abuse during a meeting towards me. (Attachment A)
Ground 3 reads:
At the conclusion of the hearing on 13/02/2024 I handed the Shire of Chittering legal representative a copy of Mr Don Gibson's affidavit. The then Shire President Mr Don Gibson has sworn in his affidavit that he did not confirm or sign these minutes of 20/11/2019 because they were not a true and correct record of the meeting. (Attachment B)
Ground 4 reads:
Since 13/02/2024 the date of the hearing, and the date they received Mr Don Gibson's affidavit, the minutes of the Shire of Chittering meetings of 20/11/2019 and 11/12/2019 have been falsified. (Attachment C)
Ground 5 reads:
The application for development approval (MP2) which was used as evidence was not signed by me and has been falsified and was given as evidence at the hearing by the Shire of Chittering. (Attachment D)
The strike out application
The respondent seeks orders that the notice of appeal be struck out under r 57(2)(b) of the District Court Rules on the following basis:
(a)the notice of appeal be struck out in whole as it does not comply with r 51(3) of the District Court Rules;
(b)further or alternatively, the notice of appeal be struck out pursuant to s 43(4)(a) of the Magistrates Court (Civil Proceedings) Act, as none of the grounds disclose any reasonable basis for the appeal;
(c)further or alternatively, the notice of appeal be struck out pursuant to s 43(4)(b) of the Magistrates Court (Civil Proceedings) Act, as it has no reasonable prospects of succeeding; and
(d)further or alternatively, the notice of appeal be struck out pursuant to s 43(4)(d) of the Magistrates Court (Civil Proceedings) Act, as it is based on assertions that are frivolous, vexatious, scandalous or improper.
Magistrates Court (Civil Proceedings) Act 2004
Part 7 of the Magistrates Court (Civil Proceedings) Act concerns appeals from the Magistrates Court. Part 7 includes s 43 of the Magistrates Court (Civil Proceedings) Act. Section 43(1) provides:
(1)This section applies to a court (the appeal court) that is dealing with an appeal under section 40, 41 or 42 against an order or judgment of another court (the lower court).
Section 43(4) ‑ s 43(6) of the Magistrates Court (Civil Proceedings) Act provide:
(4)The appeal court may strike out any ground of the appeal if -
(a)there is no reasonable basis for it; or
(b)it does not have a reasonable prospect of succeeding; or
(c)although it has a reasonable prospect of succeeding, no miscarriage of justice would occur by striking it out; or
(d)it is frivolous, vexatious, scandalous or improper.
(5)The appeal court may make an order under subsection (3) or (4) on its own initiative.
(6)If the appeal court strikes out all of the grounds of the appeal the court may give judgment accordingly without a full hearing of it.
The court is bound to be circumspect in considering any submission that the appellant's appeal has no reasonable basis or no reasonable prospect of succeeding. As Mitchell J observed in the case of TSW Analytical Pty Ltd v The University of Western Australia [2017] WASCA 67 [87] - [88]:
87Primary and appellate litigation about what is arguable can result in considerable wastage of time and resources while the issue is resolved. The summary determination of proceedings also risks injustice to the unsuccessful party who was denied a full opportunity of presenting the party's case. These considerations inform the court's general approach of summarily determining contested questions only in the clearest of cases, where one party can demonstrate that the question will certainly be resolved in their favour.
88Parties considering making an application which depends on establishing the absence of any arguable case or defence should consider the risks involved before embarking on the exercise, in which they bear a heavy onus. Courts exercising a broad case management powers in O 4A of the Rules of the Supreme Court 1971 (WA) (Rules), in a manner consistent with the case management principles of O 1 of the Rules, should consider other options when a party is contemplating such an application. For example, particularly where there are few primary facts in dispute, a prompt trial of whether a claim is established may be achievable in a similar time frame required to decide whether the claim is arguable. Active case management to determine, with the parties, the most efficient manner of resolving the case may reduce the extent to which the time and resources of the court and the parties is distracted by arguments about what is arguable. While there will be cases where summary determination is appropriate, they will not involve complex and contestable issues of fact or law.
Rule 51(3) of the District Court Rules states that:
The grounds of appeal in a notice of appeal must not merely allege that an appealable decision is against the weight of the evidence or that it is wrong in law, they must specify the particulars relied on to demonstrate that the decision is against the weight of the evidence and the specific reasons why it is wrong in law.
Rule 57(2)(b) of the District Court Rules, relevantly, provides that before the hearing of an appeal, the court, on application, may order the notice of appeal or any part of it, be struck out.
Whether grounds 1 - 5 should be struck out
The Shire submits that none of the grounds 1 ‑ 5 allege or disclose any error, or particulars of any error, and all are in breach of r 51(3) of the District Court Rules. Further, the grounds do not disclose a reasonable basis for the appeal or have reasonable prospects of succeeding, pursuant to s 43(4)(a) and s 43(4)(b) of the Magistrates Court (Civil Proceedings) Act. Specifically, in relation to grounds 2, 3 and 4, Mr Nobes alleges or complains that the minutes from the Shire meetings on 20 November 2019 are either falsified, inaccurate or wrong, and that the current CEO gave hearsay evidence in relation to the Shire meeting minutes, from 20 November 2019.
The Shire submits, firstly, that the minutes from 20 November 2019 were properly admitted into evidence pursuant to s 79(c) of the Evidence Act 1906 (WA). Secondly, neither ground states how or in what way, are the minutes either falsified, inaccurate or wrong. Any allegation of fraud or wrongdoing is made without foundation or basis. And that, thirdly, neither ground discloses how any falsification, inaccuracy or error in the minutes led to an error by the magistrate in determining the requirements in s 19 of the Disposal of Uncollected Goods Act have been met.
The Shire further submits that leave is required for the affidavit of Mr Gibson to be admitted in any appeal. Mr Gibson was not called as a witness at trial and the affidavit was sworn after the trial had been completed. Therefore, there is nothing that would constitute special circumstances to justify the admission of the affidavit on any appeal. In any event, even if Mr Gibson's affidavit was accepted, it does not depose any inaccuracies in the minutes. Finally, in respect to ground 5, the Shire submits it merely states the application was not signed by Mr Nobes and does not disclose a basis for it having been falsified, when on the face of it, it appears to have been signed by him.
Similarly, with the minutes, even if the application was found to be falsified, the ground does not disclose how it is relevant to the magistrate's determination of whether s 19 and the requirements therein had been met. Even if the application and the minutes were falsified, inaccurate or wrong, it does not affect the Shire's entitlement to relief under s 19 of the Disposal of Uncollected Goods Act.
In relation to Mr Nobes' submission, Mr Nobes has told me a number of things that are very important to him and are views held firmly by him, and I respect that these are his subjective beliefs. Mr Nobes has said to me:
1.That it is not about the yacht and that the yacht was a symbol of how cheated he feels.
2.That the Shire hates him and that he feels disrespected by the Shire.
3.That the Shire demonstrates arrogance and ignorance in making the decisions that they have. And that he disagrees with a number of their decisions.
4.That he wants a chance to start over again with another shire. But in the end, and in able to achieve that, he needs to be able to put these proceedings to an end. And that the only way it can come to an end, is with the truth.
5.That he wants another hearing and that he deserves an appeal.
Determination
Firstly, the Shire's strike out application has been brought promptly, resulting in the costs of the appeal being kept to a minimum, given the matter is still at the early stages of the appeal process. Secondly, ground 1 does not disclose any error on the part of the magistrate. Ground 1 sets out Mr Nobes' dissatisfaction with the orders, the opinion of his friend and why he remains self‑represented in this appeal.
Therefore, I strike out ground 1 pursuant to r 57(2)(b) of the District Court Rules and s 43(4)(a) and s 43(4)(b) of the Magistrates Court (Civil Proceedings) Act.
Secondly, in relation to grounds 2 - 5, even if it was accepted the minutes and the application were either falsified, inaccurate or erroneous, or all three, it is not material, in any way, to the determination of whether or not the requirements contained in s 19 of the Disposal of Uncollected Goods Act were met or not. The incontrovertible facts of this case are, that the vessel is owned by Mr Nobes, the Shire accepted the vessel pursuant to the bailment, the vessel was ready for re-delivery, and that Mr Nobes failed to take re‑delivery of the vessel.
Mr Nobes himself agrees that this case is not about the vessel. What the precise terms of any approval were or were not, does not change those facts. Even if Mr Nobes was granted leave to admit the affidavit of Mr Gibson and managed to prove that there was no application, then it does not assist his case in any event. Just because there may have been no conditions or gratuity attached to the bailment, means that he simply left his vessel on the Shire's land for an extended period of time. And that when the Shire asked him to accept delivery or to take re-delivery, he failed. It only makes him appear even more unreasonable in refusing the re-delivery, in all of the circumstances.
For these reasons, to the extent that grounds 2 - 5 rely on bare assertions that the minutes and applications were either falsified, inaccurate or erroneous, without further particularisation as to how the allegations relate to the findings by the magistrate as to the requirements contained in s 19 of the Disposal of Uncollected Goods Act, it seems, to me, that neither ground has a reasonable basis or prospect of succeeding.
Therefore, I strike out grounds 2 - 5 pursuant to s 43(4)(a) and s 43(4)(b) of the Magistrates Court (Civil Proceedings) Act.
In making the findings that I have, I am cognisant of the fact that Mr Nobes is self-represented, and I am required to provide Mr Nobes with a certain degree of latitude in relation to matters of practice and procedure in relation to the hearing of this application. During the course of the hearing and, also, during submissions made by Mr Nobes, I was unable to find any basis that may give rise to an appeal ground either in fact or law. As I have already identified, during the hearing of this application, Mr Nobes' primary complaint was of the disrespect and the behaviour of the Shire that led him to feel cheated. I understand that this is his subjective belief. And I understand that that has left him greatly dissatisfied, not only with the Shire but also with the justice system in general.
It is clear to me, from the hearing of this application and when considering Mr Nobes' decision not to take up the magistrate's offer to suspend the orders for 28 days to allow Mr Nobes to take re‑delivery of the vessel, that Mr Nobes does not seek a remedy at law. He seeks this court to go on a fact-finding mission and to make findings as to a list of his grievances. This is not the purpose of this hearing of the application or any subsequent appeal. Hence, whilst I decline to strike out either of the grounds of the appeal on the basis that the grounds are frivolous, vexatious, scandalous or improper, I simply note that Mr Nobes does not wish to make any submission about the vessel itself, rather he seeks to be vindicated on matters unrelated to the Shire's original application.
Orders
In conclusion, I make the following orders:
1.Grounds 1 - 5 of the appeal are struck out.
2.The appeal is dismissed.
3.The appellant is to pay the respondent's costs, taxed if not agreed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CK
Associate to Judge Hughes
25 JUNE 2024
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