Pedler & Anor v The Water Board

[1992] HCATrans 179

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S86 of 1988

B e t w e e n -

ROGER KEVIN FEDLER and STELLA

HILDAGARD PEDLER (Deceased)

Respondents/Plaintiffs

and

THE WATER BOARD

First Applicant/Defendant

and

THE ATTORNEY-GENERAL FOR THE

STATE OF NEW SOUTH WALES

Second Applicant/Defendant

Application to strike out

statement of claim

GAUDRON J ·

Pedler(2) 1 17/6/92

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 17 JUNE 1992, AT 10.20 AM

Copyright in the High Court of Australia

HER HONOUR:  Yes, Mr Pedler? You appear for yourself?

MR R.K. PEDLER:	I appear for myself, Your Honour.
HER HONOUR:	Yes, I am sorry, you are the respondent on this

occasion, are you not?

MR PEDLER:	I am, yes, Your Honour.
HER HONOUR:	Yes, I should have taken the other appearances

first.

MR P.E. KING: If Your Honour pleases, I appear for the

first defendant/applicant in relation to a motion

brought by it. (instructed by Roxburgh & Co)

MR B. WALKER:  May it please Your Honour, I appear for the

second defendant, the Attorney-General, who is also

an applicant on a motion. (instructed by the Crown

Solicitor for New South Wales)

HER HONOUR:  Have you two gentlemen agreed between

yourselves as to who should - yes.

MR WALKER:  Mr King should go first, may it please

Your Honour.

HER HONOUR:  Yes.

MR KING:  If Your Honour pleases. Your Honour, we have a

summons, dated 15 May 1992, for orders in relation

to this matter in its amended form. We effectively

seek the dismissal or stay of the proceedings.

HER HONOUR:  But, Mr King, you have pleaded and seemingly,

in your pleader, demurred.

MR KING:	Yes. Well, what we have done
HER HONOUR: Well, you cannot do everything, can you?
MR KING:	What we have done is we have pleaded as required

by the rules and then brought these proceedings to

have them struck out in limine, as it were.

HER HONOUR:	Yes. Well, that is a bit unusual, is it not?
MR KING:	Not really, Your Honour, because we do not rely

simply upon Order 20 rule 29; we rely, in the

first instance, upon Order 63 rule 2.

HER HONOUR:  Which is what?

MR KING: That is the procedure in relation to -

Pedler(2) 2 17/6/92

stay of proceedings on the ground that there

is not a reasonable or probable cause of

action or suit -

and the Court may in such circumstance proceed

under that rule -

whether the plaintiff does or does not admit

the allegations of fact -

which may or may not arise.

In the alternative, we rely upon Order 20

rule 29 to strike out the whole or portions of the

statement of claim, and consequent upon that,

Order 26 rules 17 and 18, to strike out the

statement of claim and then dismiss the proceedings

on the grounds that they are unsustainable.

It may be, Your Honour, that there is a

further basis for proceeding in the manner that we

have under Order 13 rule 9 but that would depend
upon agreement of Mr Fedler consequent upon

argument before Your Honour. But our principal

basis are the rules that are set out and referred

to in our summons, and it does not matter, with

respect, Your Honour, that we have put on a defence

because, as I have already stated, we would be

required to do so under the rules, but in any event

the fact that there is a defence on does not

prevent the summary disposal of the matter.	In
fact, it clarifies the basis upon which we do

attempt to defend the proceedings that have been

brought against us and assist the Court in

clarifying what may or may not be the issues.

HER HONOUR:  Yes. Well, it is most unusual, but there you

are.

MR KING: Here we are.

HER HONOUR:	Yes.
MR KING:	Your Honour, we have an affidavit which we rely

upon in support of our application and that is the

affidavit of Mr Peter Winters, sworn 15 May.

HER HONOUR:  Mr King, that deals with the matter up until

what year - deals with the question of what the

Water Board claims to be due to it, up until what

year?

MR KING:  It actually just sets out the background to the

various proceedings that Mr Fedler has brought

against my client in various courts.

Pedler(2)	17/6/92
HER HONOUR:	I thought one of them was a proceeding by your

client in the petty sessions court.

MR KING: That is true but in consequence for the payment of

some rates which were subsequently ordered, that

was put on as background to an application or a

fresh matter that he has brought in the common law division of the supreme court which has been stood over pending disposal of these proceedings in this
Court, and it was for those reasons that that

background matter was placed on the record as well.

HER HONOUR:  Perhaps you had better tell me the bases of

your application because I do not - - -

MR KING:	Can I take Your Honour to the statement of claim?
HER HONOUR:	Yes.

MR KING:  The amended writ of summons. Your Honour,

paragraph 1 simply sets out the fact that the first

plaintiff and his mother - a relationship between

the two. I would point out, firstly, Your Honour,

that there is no basis for joining Stella Hildagard

Fedler as a co-plaintiff, she being deceased.

Mr Fedler, in his own right, may have standing to

sue on her behalf, as Your Honour had previously

directed in an initial application of this matter but, in any event, Stella Hildagard Fedler should

be struck out as a co-plaintiff. There is no

basis, in the first paragraph, for her standing.

Your Honour, paragraphs 2 to 5 of this

statement of claim are totally irrelevant to any

cause of action which Mr Fedler brings in these

proceedings, on any view of the case. He, in

paragraphs 2 to 5, speaks of an irrelevant

transaction or an irrelevant series of transaction

involving the Hunters Hill Municipal Council and

none of those matters have anything to do with any

possible order that could be obtained against my

client.

In paragraph 5, for example, he refers to:

an interlocutory injunction obtained from
Mr Justice Hardie, a Land and Valuation Court
Judge sitting in Equity.

Apparently, some order was obtained by the Hunters

Hill Municipal Council for the demolition of part of his property in Hunters Hill. Obviously, the

reason for that was that they were unexecuted

works, that is, built without authority from the

local authority. Then he says that he appealed to

the Privy Council in paragraph 6.

Pedler(2) 4 17/6/92

Well, none of that has anything to do

whatsoever with anything that is later claimed in

the matters for relief against my client. So, on

any view of the case, paragraphs 2 to 6 should be

struck out. It may be Your Honour would be

satisfied without more that they should be

repleaded or some fresh matter put forward but I

would propose to put to Your Honour in due course that the whole pleading is hopeless and should be

struck out in all the circumstances.

Then, Your Honour, in paragraph 7 we come to

the first allegation against my client of some

breach of duty, and this is what he pleads against

my client:

The Water Board unlawfully abandoned its

statutory powers and duties -

pausing there, Your Honour:  no statutory powers

and duties have been pleaded at all prior to

paragraph 7, so we do not know which statutory

powers and duties he is talking about -

and the Council to usurp its functions.

So, if we come down to tin-tacks, what Mr Fedler is

saying in the first sentence in paragraph 7, which

is the first allegation he makes against my client,

is that somehow or other the Water Board allowed

Mr Justice Hardie of the Land and Environment Court

to usurp the functions of the Hunters Hill

Municipal Council. Now, that is the most

extraordinary proposition that one could imagine.

How could it possibly be said that the Water Board

had a duty to stop a judge doing something when it

was never a party to the proceedings? That is the

~ffect of what he is saying.

Then he goes on, in the second sentence -

particulars supplied by Mr Pedler is any one	there is no known law - nor in the letter of	referred to - which could possibly support that
cause of action. Then the next cause of action is the second sentence in paragraph 7:

It breached its statutory duties -

again, I pause to comment that no statutory duties

are pleaded anywhere; no statutory duty upon which

the breach is based is pleaded anywhere.

It breached its statutory duties owed to these

Plaintiffs to (i) ensure that the Plaintiffs'

work it had approved was not wrongfully

interfered with by the Council -

Pedler(2) 17/6/92

well, there is no allegation that we approved any

work at all and no basis whatsoever for a statement

that any approval that we gave to work that was

done on his house in some way had to be protected

from interference with by a local municipal

council. Now, stating that proposition out aloud,

I would respectfully submit, shows how preposterous

it is. But, in any event, whether it is or is not

preposterous, there is no basis in this pleading to

support it. There is no statutory duty pleaded;

there is no supererogatory duty, .such as one found

Sutherland Shire Council case grants or refusal to grant planning

in the or the other authority

local government authority cases which required the

permission to support the pleading.

And then the second subparagraph is the Water Board breached its statutory duties owed to the

plaintiffs to:

(ii) prevent the water to the said Hunters

Hill land from being turned off from 1971

until the end of 1983. The Council's intent

was to prevent occupancy of the house by the

Plaintiffs.

Now, as best one can understand that, what

Mr Pedler is saying is that Hunters Hill Municipal

Council intended, maliciously no doubt, because

there could be no other construction of that last

sentence, to prevent Mr Pedler and his mother from

living in their house at Hunters Hill. And then,

in that context, the Water Board, by some

conspiracy or otherwise - although a conspiracy is
not formally alleged - joined in that intent by

prev~nting water being supplied to the land between

J.971 and 1983.

Now, Your Honour, if there is going to be some

conspiracy alleged against the Water Board or some

malicious deliberate breach of a statute such that	it gives rise to a right to damages because we
deliberately prevented Mr Pedler occupying his
house, then we would like to know precisely what it
is.

HER HONOUR: Well, you seek particulars for that if you want

to know what it is.

MR KING:  I think the point we are making, Your Honour, is

hot so much - this pleading cannot be corrected by

particulars. It would have to be completely

reframed if that is what is intended, and I am

speculating as to that possibility. But as it is framed, there is no known cause of action in law,

none that Mr Pedler can point to, I would

Pedler(2) 6 17/6/92

respectfully submit, to support any of those

paragraphs in paragraph 7.

Then, Your Honour, in paragraph 8, for the

first time in this pleading, we come to an

allegation that one of the plaintiffs was entitled

to something as against the Water Board; in this

case, "entitled to a prescribed rebate". Now,

Your Honour, can I hand up to you a photocopy of

the relevant legislation, section 100A of the

Metropolitan Water, Sewerage, and Drainage Act.	I
have got a copy for Mr Fedler if he has not got
one.

MR FEDLER:	I have one.
MR KING:	You have, right, thank you.

Your Honour, this is the Act that Mr Fedler

relies upon in paragraph 8 of his pleading and

Your Honour will see effectively from the pleading

what he purports to be alleging: that his deceased

mother w~s an eligible pensioner. Now, if

Your Honour turns to section lOOA(l) of the Act,
Your Honour will see there described an "eligible

pensioner": essentially, someone who is in receipt

of benefits under the Social Services Act or the

Repatriation Act and who holds a health benefits

card.

Now, Your Honour, it is not until one comes to

subsection (iii) of that Act at page 87 that one

there finds the basis for an entitlement to a

rebate, and the entitlement to a rebate under the

provision has three conditions. The first

observation I make is that none of these conditions

are·pleaded in this statement of claim and, hence,

there could be no basis whatsoever for the

allegation that he makes in paragraph 8.

Firstly, there is no allegation in the statement of claim - no formal allegation - that

any of the plaintiffs were eligible persons at any

time. Secondly, there is no allegation that the

Water Board, as it was then constitute4, made a

decision that any of the plaintiffs were an

eligible pensioner, and I would ask Your Honour to

note in line 4 of subsection (3) a requirement

that:

the board is satisfied that an eligible

pensioner is the person solely ratable -

et cetera, in respect of that rate.

Now, of course, Your Honour, taking parody of

reasoning with the Superannuation-type cases where

Fedler(2) 7 17/6/92

an insurer is only required to pay out where it is

satisfied that a person falls within the terms of

the policy. In such cases a plaintiff has to prove

that the insurer has considered the question and

considered it favourably to the plaintiff so as to

entitle him or her to succeed or, alternatively, to

allege that they never considered it at all and

have a duty to consider it. We do not know what

the position is here, but there is no

allegation -

HER HONOUR: Well, of course, you know what the position is,

Mr King, or your client knows exactly what the

position is. Of course you do. Now, this is

silliness. I mean, you might be right as a

pleading point but it is absolute silliness to say

you do not know what the position is. Your client

has been in dispute with Mr Pedler for many, many

years for one reason and another.	You have been in
various courts.	Now, do not tell me that you do

not know what the position is. If you do not know

what the position is, it is about time your client

found out. It is about time, after the Court's

time - this Court, other courts' time - has been

taken up in what really is the most silly of things
that your client found out and if it does not know,

it ought to know, and it is no good coming here and

telling me you do not know what the position is.

MR KING: Well, it is not, Your Honour, that we do not know.

HER HONOUR:  Good.

MR KING:  What it is: we do not know what Mr - - -

HER HONOUR:	No, but you know exactly what the position is?
MR KING:	But we do not know what it is that Mr Pedler is

claiming.

HER HONOUR:  He is claiming that his mother was wrongly

refused a rebate. Now, that is perfectly clear,

and he has been claiming that for many years.

There is no doubt about that.

MR KING:  That would have to be, Your Honour, either on the

basis that the Board never considered it or,

alternatively, that if they did consider it they

took - - -

HER HONOUR:	They acted unreasonably or something, yes.
MR KING:	They acted unreasonably.

HER HONOUR: All right. Well, there is no doubt what the

complaint is, and it is a matter you can find out.

It is a matter about which the Board can satisfy

Pedler(2) 17/6/92

itself very easily as to whether an application was

made and what the Board did to it. If you like, we

can have discovery of the Board's records to find

out.

MR KING:  The third allegation, Your Honour, which we would

respectfully submit would be a condition of any

entitlement, let alone other problems in relation

to this aspect, is that an application was made to

the Board.

HER HONOUR: Well, that much is pleaded.

MR KING:  In the last sentence, yes. Your Honour, I will

come back to a related question in respect of that,

namely, whether or not this is the appropriate

court to claim a rebate.

HER HONOUR: Clearly, this is not an appropriate court for

anything, but the Water Board, it seems to me, at

various stages of these proceedings, has adopted a

position which propels this plaintiff into other

courts.

MR KING: With respect, Your Honour, this is the first time

we have appeared in this case.

HER HONOUR: In this case, yes.

MR KING: In this Court.

HER HONOUR: In this case in this Court.

MR KING:  And we can only deal with the case that we have

been presented.

HER HONOUR:  You have been presented on many, many prior

occasions with a case which says that Mrs Fedler

was wrongly refused rebates.

MR KING:  Yes. Your Honour, let us assume that the various

conditions which would give rise to some sort of -
a basis for a proper claim were pleaded.	Even

then, as I think Your Honour has pointed out, if I
may say so with respect, correctly, this is not the

appropriate tribunal - - -

HER HONOUR:  All right, that is a question of remitter. Do

you apply for it to be remitted?

MR KING:  In the absence of it being struck out, yes.

Then, Your Honour, paragraph 9 is the next substantive allegation. Paragraphs 9	to 12 is
really the third group of allegations	which give
rise to a pleading against my client.	Basically,
what Mr Fedler is saying here is that	water rates

Pedler(2) 9 17/6/92

are really a land tax which are really an excise duty which are unlawful because of section 90 of

the Constitution. Now, that is an argument, of

course, with which we are familiar from numerous

occasions, and it was dealt with fully by the

magistrate, Mr Evans, on at least two occasions.

HER HONOUR:  I do not think that is right.

MR KING: Well, it was certainly considered by him.

HER HONOUR: Well, the transcript that you have annexed to

your affidavit does not suggest that at all; nor

does it suggest that it was dealt with on the

stated case.

MR KING:  No, it certainly was not dealt with on the stated

case because the stated case dealt with the

specific question that the - - -

HER HONOUR:  Indeed, my reading of the transcript was that

Mr Fedler specifically asked the magistrate not to

enter any judgment because there was an outstanding

issue of excise to be determined and said it was

pending in this Court.

MR KING:  I think that Mr Fedler - - -

HER HONOUR: Well, let us go to the transcript.

MR KING:  - - - at various times said to the magistrate that

he had a High Court proceeding.

HER HONOUR: Let us go to the transcript, the affidavit.

Now, where do you say the magistrate dealt with the excise?

MR KING: Mr Fedler first raised it during the argument at

page 23 and following, and then at page 26 and

following, counsel for the Board at that time made

certain submissions about it.

HER HONOUR:  Page 26, you say?

MR KING: Sorry, Mr Fedler at page 26 and following made

detailed submissions about the matter. He

mentioned a number of cases which are familiar in

this context such as the Chicory case and Parton

and he made detailed submissions.

HER HONOUR:  Yes, but the magistrate did not deal with it,

did he?

MR KING: Well, Your Honour, he did.

HER HONOUR:  He found against the Water Board on another

issue.

Pedler(2) 10 17/6/92

MR KING: Yes, but in so doing - - -

HER HONOUR:  And then the matter went on a stated case to

the supreme court, and then it came back.	The
supreme court did not deal with the excise
question, did it?

MR KING:  No, because that was completely unnecessary. The

only question there was - - -

HER HONOUR:  Yes, of course it was, but it was not

completely unnecessary when it got back to the

magistrate, was it?

MR KING:	Not when it got back to the magistrate.
HER HONOUR:	And the magistrate did not dealt with it.
MR KING:	Your Honour, I think, with respect, that the

magistrate, at pages 32 and following, did examine

the arguments but, in essence, rejected them

although he did not, in words, say so. For

example, at page 32, at about the middle of the

page:

Now there's been arguments from Mr Fedler and

cases given claiming that this becomes similar

to an excise duty and if the supply of water

isn't provided that there should be no

outstanding amounts paid by the owner of the

land. Now he has raised other arguments about

the New South Wales Constitution Act

and ..... the Trade Practices Act.

And then the bench then summarizes the argument for

the Board. And at page 33 and following, the

bench, Mr Evans, gave his judgment in respect of

the case that was before him, and he said at the

top of the page:

put to me by the Defendant but on the powers	findings in this matter not on the arguments My view is and I'm going to bring in
which I feel might be set down in the Water Board Act itself as to what the Water Board
can charge.

And then he goes on to say that in his view in that

respect the Water Board was not entitled to claim

in respect of their standard charges for provision

of supply of water being made available. But,

Your Honour, it is implicit - - -

HER HONOUR:	No, it is not.
MR KING:	- - - at the top of page 33, that he did consider

those arguments.

Pedler(2) 11 17/6/92

HER HONOUR: Well, it is not, because what the magistrate

said was, he was not going to consider them. He

was going to do it on the basis of what he thought

was in the Act.

MR KING:  Yes. Then, as Your Honour rightly points out, the

critical time for determining what he should do

about those arguments was when the matter came back

to him on 14 June and, whilst it is true he did

not, in any detail, go into the arguments about whether or not water could be the subject of an excise, the fact of the matter is that the

arguments were there before him and the bench

rejected them, or dismissed them. Whether you say

the bench dismissed them because it overlooked

them, or whether you say - - -

HER HONOUR:  Now that deals with the position up to - I

realize there are very considerable difficulties

about that judgment, and I, for the life of me, do not understand the submission made by Mr Brogan on

behalf of your client at page 4 of that transcript,

where he says:

The fact that in another case the same

argument is being run before the High Court

really shouldn't impinge on this case.

I simply do not understand that. It is not an

argument I would expect a government

instrumentality to be putting, but there you are.

MR KING: Yes. It may be that Mr Brogan was simply drawing

to the attention of the magistrate - - -

HER HONOUR:  It does give the impression, does it not, that

your client is determined to deal with this only on

the basis that it accepts - does not impinge on its

rights or the need to have matters adjudicated?

MR KING: Well, with respect, I do not think that is the

position, Your Honour. That is why we are here
now.	We submit that -

HER HONOUR: Well, that is the same thing, or it is struck

out, you do not want it adjudicated.

MR KING: Well, I think what we say is that the argument is

so untenable that the matter ought not be allowed

to proceed. Now, if Your Honour should be of the

view -

HER HONOUR: It is a constitutional question.

MR KING:  If Your Honour was of the view that it ought to be

adjudicated then, of course, we would say no more

about it. But the argument that I wish to put

Pedler(2) 12 17/6/92

briefly to Your Honour now is whether or not it was

ever considered by the magistrate - - -

HER HONOUR: Well, it was not.

MR KING: Whether or not it was, there is just simply no

basis for it on the pleading that is before this

Court and the matter ought to be stayed or

dismissed, if that is the only basis for bringing

the proceedings in this Court and if I may,

Your Honour, I would like now to deal with that

question.

Your Honour, the only case to which I would

refer is the recent decision on excise duties of
Phillip Morris Ltd v The Commissioner of Business

Franchises, (1989) 167 CLR 399. There are three

basic premises which we would put, Your Honour,

regarding the question as to whether a water rate for the supply of water by a public utility could

be applicable or be described as an excise and

those three matters are, firstly, that an excise is

a tax which falls upon a manufacturer or a person

involved in the manufacturing process and cannot

be, and is not, a tax which falls upon the

consumer, in this case, Mr Fedler. It would be

different if it was a tax imposed upon the Water

Board by the Commonwealth as the producer or

supplier of water - assuming for one moment that

water was goods - and then the Board passed that on

to Mr Fedler as an indirect tax. That is not this

case. This is a rate imposed directly upon

Mr Fedler as a cost or the price of making

available to his home the supply of water, in this

case called the base rate. Now the fact that he

did not pay his water rates - - -

HER HONOUR:  The fact that he did not get any water is the

problem, not that he did not pay the water rates.

What he is complaining about is he did not get any

water.

MR KING: Well, what he got was what all the other

householders in Hunters Hill got - - -

HER HONOUR:  They got water. When I lived there you used to

get water in Hunters Hill.

MR KING: Yes, Your Honour, clean water, very potable.

HER HONOUR: Well, I am not too sure about that but -

MR KING:  Well, we do our best, Your Honour. But as

Mr Justice Allen pointed out in his	judgment, what
the Board does is make available to	households, as
the Electricity Commission does and	other utilities
do, supply points, and the system -	the mains in

Fedler(2) 13 17/6/92

this case - from which water may be connected. In

this case Mr Fedler chose not to - well, it was not

a question of whether he chose to or not - - -

HER HONOUR:	No, I think that is right.
MR KING:	He did not pay his rates so we cut them off and

now he is saying because we cut them off we have

somehow or other breached the Constitution. But my

first point is, in short, Your Honour, that an

excise duty falls upon the manufacturer or the
distributor, or the person involved in this process

of manufacturing, to use Your Honour's words in

that case, Phillip Morris - - -

HER HONOUR:  Was I not in the minority in that case?

MR KING:  I do not think so, Your Honour. I think

Your Honour was with the tried and true, the majority. His Honour Mr Justice McHugh and

Mr Justice Brennan were in the minority.

HER HONOUR:  Yes. But there was not a common thread of

reasoning in the majority, I think that is right.

MR KING:  I think, with respect, there was, Your Honour,

certainly on the broad point that I am making, that

excise duties fall upon manufacturers or persons

involved in the manufacturing process, and whether

or not you call it a direct or an indirect tax -

and there were some interesting philosophical

arguments by the Chief Justice and with him, I

think, Mr Justice Deane on that question - does not

matter for our purposes because it does not fall

upon Mr Fedler - these water rates. Now that is

the first point.

The second point, Your Honour, is this that

the water, in any historical and legal analysis of

the authorities, is not manufactured and is not a

product or consumable good that falls within the

common understanding of the subject of excise

duties, particularly where it is supplied by a

public utility.

HER HONOUR: This is the difficulty I have with this: you

have demurred to this case, to this excise issue,

in effect, in your pleading and in the normal

course a constitutional question of this kind would

be determined by that procedure.

MR KING: Well, what we say, Your Honour, is that the point

is so obvious and is of such inutility for the

Court to decide it that it ought to be struck out

now. Now, Your Honour has that power.	If
Your Honour thinks that - - -

Fedler(2)	14	17/6/92
HER HONOUR:	Well now, my power is very limited.	It would

have to be shown either that the proceedings were

an abuse of process or, in one or other of those

way, or that it is completely lacking in

foundation; that it is unarguable.

MR KING:  Well the words used in Order 63 are, "not a

reasonable or probable cause of action" - - -

HER HONOUR:  Yes.

MR KING: Well, Your Honour, we would submit that to claim

that water rates are an excise duty is not a

reasonable or a probable cause of action.

HER HONOUR:	I do not know that that is what -
MR KING:	That is what we submit, Your Honour. Now, if

Your Honour is against us on that well, so be it,

then we will just have go to a full hearing.

HER HONOUR:  But he is not claiming, you see, as I read it,

that the water rates, as such - you will have to

deal with the question that is talking about a tax

where no water is provided and what that is, not

the water rates as such; the land tax, there being

no water provided, that is how I read it:

paragraph 9.

MR KING: Sorry, Your Honour, paragraph 9 of the pleading?

HER HONOUR:  Yes, and 10, I suppose, and 11.

MR KING:  Yes. If we take them as read, well we just submit

that that forms no basis for an allegation that it

is an excise tax or "a duty of excise" to be more

precise, to use the words of section 90. Now, it

·is true, Mr Pedler has a different claim, that

there has been some breach of the Trade Practices

Act because for some reason or other we have not

provided him with - we have charged him a rate even

though we have not provided him with a service.

That argument, of course, was completely rejected

by His Honour Mr Justice Allen in the supreme

court.	We have provided him with a service
and - - -

HER HONOUR:  Yes, but, of course, that only goes up to a

certain year, does it not, that decision? It only

goes up to 1988 or 1986? There is no issue

estoppal - there is not res judicata beyond that

period, and Mr Justice Allen did not deal with what

I assume is a 109 inconsistency point between the

Water Board Act and The Trade Practices Act. I

mean, I assume that the gravamen of the complaint

here is a 109 inconsistency and that certainly was

not dealt with.

Pedler(2) 15 17/6/92

MR KING: That is not stated in the pleading, Your Honour,

which, of course - - -

HER HONOUR: Well, but how else could it be?

MR KING:  - - - is required under the rules. Your Honour,

can I just hark back to a point Your Honour raised

with me earlier? Of course, the water rate that we

charge Mr Fedler does include a sewerage component

and the sewerage, of course, was never cut off.

HER HONOUR: Is blocked off too.

MR KING:  No, it was never cut off from these premises -

constitutes about two-thirds of the rate.

MR FEDLER:  It was cut off, Your Honour .

HER HONOUR: Well, we will come to that.

MR KING:  We will come to that, Your Honour. It is not my

understanding of what he says. Now, Your Honour,

if we then just go back over the pleading to try

and summarize what it is that is alleged against

the Board, firstly, in paragraph 7 it appears
Mr Fedler says in some way we should have stopped
Mr Justice Hardie making the decision he made back
in 1969. Secondly, that we should have stopped

Hunters Hill Municipal Council bringing proceedings

to have his walls demolished because of a failure

by Mr Fedler to obtain planning permission. I have

made my submission that there is no basis in any

known law for that and hence should be struck out on any of the provisions that I have referred to,

that is paragraph 7.

. So far as paragraph 8 is concerned,

Your Honour, it is true, as Your Honour has pointed

~ut, that my objection is a more technical one. My

objection is that he has not pleaded any basis upon which he could rely on section 100A of the old Act,

on behalf of the second-named plaintiff, namely the	conditions to which I referred. But if Your Honour
is of the view that ought to be a matter of
particulars then we would make the further point
that this is not a matter which ought to be in this
Court and should never have been; that Mr Fedler in
relation to that matter has failed to comply with
the requirement of the rules to identify a matter
bringing it within the original jurisdiction of the
Court, Order 21, rule 2.

Then in paragraph 9 and following he raises

this question of the excise duty which he argued

before the magistrate, which we say the magistrate

impliedly rejected by refusing to find in his

favour on that point -

Fedler(2) 16 17/6/92

HER HONOUR:  But again that only takes the matter up to -

what year does that go up to?

MR KING:	The magistrate's decision?
HER HONOUR:	No, the water rates sued on - if there is any

issue estoppel or res judicata estoppel in relation

to the magistrate's finding - - -

MR KING:  '89, Your Honour.

HER HONOUR: It only goes up to - - -

MR KING:  1989.

HER HONOUR:  Well, was that the rate you sued upon. I

thought there was a -

MR WALKER:	I think it must be to '84.
HER HONOUR:	I thought it was '84.
MR KING:	No, '84 through to '89, Your Honour, as stated in

annexure A to Mr Winters' affidavit. Your Honour

will see there the plaint and default summons is

set out. It is outstanding service charge years,

Your Honour, from '84 to '89. Now, I point out -

Your Honour's point, as I understand it is, "Well,

that might deal with the matters before '89, but

what about the matters since '89?" But these proceedings were commenced in 1988.

HER HONOUR: Well, that is the problem. That is why I am

just appalled at the way the Water Board conducted

itself in the magistrates court. I regard what was

said by counsel on behalf of the Water Board as a

very, very - well, prima facie, as an attempt to

pre-empt these proceedings. At least in that

regard, I am quite appalled at the way that the

matter progressed there and what happened

subsequently.	I mean, I can well understand the
difficulties of your client with respect to these

proceedings, but ordinarily if there was a matter,

there would have been some attempt to either have

the proceedings in this Court concluded, or to have

the result of the earlier proceedings, the

magistrates proceedings, deferred pending the

outcome of these proceedings. Now, it is all very

well to say you were not then a party to the

proceedings - - -

MR KING:	No, that is right.
HER HONOUR:	- - - of this Court, but you and Mr Walker's

client are in, one respect, emanations - I mean,

you are both emanations of the same Crown, more or

Pedler(2) 17 17/6/92

less. You are not exactly strangers to each other,

and there were procedures which were available to

you.

MR KING:  Can I ask Your Honour which passage that

Your Honour was referring to when - - -

HER HONOUR: This refusal to - it was the statement by

Mr Brogan that the fact that there were proceedings in this Court should not deter him from concluding

the matter: page 2, 3, 4 of 14 June, particularly

page 4:

The fact that in another case the same

argument is being run before the High Court

really shouldn't impinge on this case. It may

be that Mr Pedler will win in the High Court - I mean, it just seems to me that there -

in which case that will have ramifications to

this decision.

But that is an absolute nonsense once you have got

judgment, an absolute nonsense, and I am really

quite appalled that a government instrumentality

would take that line and would now come along to

this Court and try to argue what is, in substance

and in effect - I mean you may be quite right in

your argument in this regard that there is now in

substance a res judicata or issue estoppel, but the

time for that to have been taken into account was

in the magistrates court, really, and you are a

responsible public body, after all - your client

is.

MR KING:  I.do not think I have put my case before

Your Honour, with respect, on the basis that the·re

is a res judicata. What I said to Your Honour, and

I hope I said it correctly, and if I did not - - -

HER HONOUR:  Well, it is an issue that has to be dealt with

because there probably is such a thing and it

probably does mean that to some extent these

proceedings are, as a consequence of the steps

taken by your client, now out of court.

MR KING:  I think that, Your Honour, the way we would put it

would be this way, that whether or not the

magistrate dealt with it - and I think I said this

earlier - what we say, about paragraphs 9 to 12 of

the amended statement of claim, which was pleaded
against us when we were joined only late last year,

is that they do not give rise to any reasonable or

probable cause of action or suit, and it is on that
basis that we would submit the proceedings ought to

be stayed or struck out.

Pedler(2) 18 17/6/92

Now, Your Honour, Mr Justice Sully had before

him recently, in common law proceedings - separate

proceedings commenced by Mr Fedler - the same

issues, but His Honour stood those proceedings over to await the outcome of these proceedings. Now the

fact that Your Honour may decide that it is

inappropriate to proceed in this Court on those issues for one reason or another, does not mean that Mr Fedler is estopped, or - - -

HER HONOUR:  But of course it does, Mr King; of course it

does. Judgments are judgments. Matters which have

passed into judgment cannot be relitigated in

collateral proceedings. You know that much law.

There can be appeals, but they cannot be subject to

collateral challenge.

MR KING:  I think the other point, too, Your Honour, is that

in this case Mr Fedler only set declarations in

relation to that matter and that, of course, is -

which involves questions of interpretation. Now,

it is true, as my friend Mr Walker has pointed out,

he also seeks an order that he have certain amounts

repaid to him. The fact, he has not paid them yet,

I would respectfully submit, ought not to impact

upon the position. So, Your Honour, the long and

short of it is that Mr Pedlar's claim that water

rates are an excise cannot and ought not to succeed

and whether that argument was determined before or

after that magistrate made his decision, really is

neither here not there, I would respectfully

submit.

HER HONOUR:  Now, what do you say about the inconsistency

aspect?

MR KING:  Between which statutes?

HER HONOUR: Well, I imagine - I would have read it as being

between the Water Board Act and the Trade Practices

Act.

MR KING: Well, we say there is simply no inconsistency,

Your Honour, that if - - -

HER HONOUR:  I know you say that, but do you say that is

unarguable?

MR KING: Yes, Your Honour. It may be that the Water Board

is a trading corporation - I will withdraw that.

It may be that the Water Board comes within the

purview of the Trade Practices Act, but the fact

that it may have contravened a provision of the

statute does not mean that there has been any

inconsistency between the enabling statute that

sets up the Water Board and the Commonwealth

statute, otherwise that same argument would apply

Pedler(2) 19 17/6/92

to all sorts of public utilities. Your Honour, if

that is the case, that is the case, and Mr Pedler

will be greatly encouraged, but we would

respectfully submit that that is just unreasonable,

or improbable, and the matter ought not to be

allowed to go further.

Now, if Your Honour, of course, is of the view

that the matter ought to be aired in a fuller forum

then, of course, we are happy to have that done,

but it is our submission inlimine that there is

just no basis for these claims, as pleaded, and

that they ought to be dealt with now.

HER HONOUR: Well now, assuming that I were against you to

some extent, or in whole, where would you like to

litigate these matters, fully?

MR KING:  Well, we have been in so many different courts,

Your Honour, I will just check: supreme court,

Your Honour, because that is where one of the other

actions that Mr Pedler has commenced is presently

based. What we do about the claim for a rebate

will perhaps have to be dealt with in the supreme

court.

HER HONOUR:  You seem to be on good ground there although

you do not take it.

MR KING: So, those are our submissions, Your Honour, that

these proceedings should be struck out or

dismissed, and if not, then remitted to the supreme

court.

HER HONOUR:  Yes, thank you. Yes, Mr Walker.

MR WALKER:  Your Honour, might I formally rely on the

affidavit of my solicitor filed in support of our

motion and then, as my friend Mr King has done, if

that is suitable to Your Honour, to proceed

directly to why we seek the orders we do.

HER HONOUR:	Yes.
MR WALKER:	Your Honour, we in a somewhat peculiar position

as the Attorney because, be it assumed that there

is an action to be heard in this Court or in any

court raising the question under section 90, it

would be an irony for me to try hard now, no longer

to be sued as a party, and then to intervene

pursuant to a 78B notice.	As Your Honour I think
appreciates - - -

HER HONOUR:  The question is: is it so patently unarguable

that it should be struck out?

Pedler(2)	20	17/6/92
MR WALKER:	Yes.	Your Honour, I raise that matter because

Your Honour would appreciate that technically, we

could strenuously seek to demonstrate from this

pleading that it says nothing about the Attorney

and we should not be sued as a party, but as the

Attorney, we do wish to be here for the excise

argument. We make no concessions, Your Honour, by

not pressing on with those technical and useless

arguments, but we observe that the Attorney really

ought to be here only pursuant to an invitation to

argue a constitutional point.

HER HONOUR:  He is a competent party, though, whenever a

constitutional issue arises.	I think that was held
very early.

MR WALKER:  Yes. Whether the State as such should be joined

or whether the Attorney in his name, is a point

which -

HER HONOUR:  No, I think it was held very early in terms of

constitutional decision making that the

Attorney-General was a competent party.

MR WALKER:  Yes, we accept that and indeed, if nothing else,

the printing of what is printed in the Commonwealth

Law Reports demonstrates that must be the case.

Your Honour, partly at least, it appears that we

were sued alone in order, as Mr Fedler put it, to

represent the Water Board for fear the Water Board

did not exist, an Irishism which need not detain

us. Your Honour, as I say, we are here and we

would be here in one guise or another, so we wish

to remain here.

Why we seek the relief we do in the application is that notwithstanding the efforts we

aave made since last year to have the pleading

present the case in a manner in which this Court,

for example, could think of proceeding to setting a

demurrer down for argument, we have failed.	The
statement of claim, as the thirteen numbered

paragraphs are to be called, does not in fact set

out either material facts, let alone all the

material facts.

Partly, at least, some of our complaints which

are similar to some of the ones my learned friend

Mr King has raised, do not have to do with pleading

material facts; they have to do with failing to
apprise us of what the precise legal argument is.

We are well aware of what all the arguments are

raised on paper in general terms, but to take just

one and the most obvious example of imprecision and

our failure to achieve greater precision by

request, Your Honour points to the fact that both

implicitly and explicitly, Mr Fedler relies on

Pedler(2) 21 17/6/92

section 109 of the Constitution for certain limbs
of relief.

Assuming, as we do - I think, with respect, like Your Honour - that the most obvious

inconsistency posed by Mr Fedler is between the

Trade Practices Act and the Water Board's statutory

provisions at the relevant times, it is nowhere

clear to us what are the facts which show that

there is any different application of those two

statutes, or three statutes, in the case posed by

Mr Fedler for which he has standing. We do not

know what provisions of the Trade Practices Act he
would be relying upon, and no doubt he could simply

tell us now through Your Honour if that is the only

detail left remaining.

The real difficulty is when one goes to the statement of claim. There is no fact pleaded which

shows this inconsistency of application at all so

as to show, for example, that he and his mother's

estate have any standing to complain about any such

inconsistency. It must, after all, be an
inconsistency which has some impact on their

position, be it through invalidity of the whole

statute or a relevant part of the statute or

however.

Your Honour, I do not want to go over the pleading in the same detail as - - -

HER HONOUR:  There is one aspect that does concern me,

Mr Walker, and that is the claim for rebate. Prima

facie, that seems to be a separate issue which is

not within the jurisdiction of this Court.

MR WALKER:  Yes. Your Honour anticipates me. I was about

to divide the paragraphs up, because some clearly

fall on their face within section 30A and within

the original jurisdiction of the Court.

HER HONOUR:  Yes, but the question is: is it one

inseverable matter or is it not? It does seem to

be -

MR WALKER:	I do not know whether this Court has ever considered whether it has a pendent or accrued
jurisdiction, Your Honour, but in quite that
context I am sure it has not, but it does raise a question of the inherent powers of a court being a
court not to divide - - -
HER HONOUR:	Parton v Milk Board comes close to it in this

Court.

MR WALKER:  I am sorry, Your Honour, I cannot remember what

the non - - -

Pedler(2) 22 17/6/92

HER HONOUR:  That was a decision in which it was held that

it was all one matter. If the constitutional issue

were raised fraudulently, as it were, to append

something, that was one situation, but if it were

all one matter - - -

MR WALKER:  Clearly enough, the claims for relief by way of

return of money, money being paid on the

plaintiffs' case under colour of an

unconstitutional demand, than that is all one

matter, and we freely concede that that is within
the original jurisdiction of this Court. There

are, however, matters such as the rebate for

Mr Pedler's late mother which do not appear to turn

on anything constitutional at all.

HER HONOUR: There also appears to be a limitation problem.

MR WALKER:  Yes. That is something for my learned friend

Mr King to take rather than us, if it is to be

taken at all, indeed.

HER HONOUR:	Yes.
MR WALKER:	Your Honour, we would say that those matters

ought not to trouble this Court and more selfishly,

ought not to trouble the Attorney-General. We are

presently sued for those matters, because

indiscriminately the defendants have relief claimed

against tbem, including for such matters. In our

submission, that at least should now be struck out,

or at least the pleadings should be struck out with

leave to replead so as to prevent the Attorney from

having levied against him claims which plainly are

not constitutional; that is, he is not the proper
defendant to answer the constitutional argument,

and which are simply financial matters between him and the Water Board which could truly be litigated

in a local court.

Your Honour, in our submission, once one

leaves aside paragraphs 1 and 2 which might be

standing claims in the statement of claim, it is

very clear, with respect, that paragraphs 3, 4, S,

6 and 7 as a bracket have nothing to do with either

the constitutional matters which are within this Court's jurisdiction and for which the Attorney,

one way or the other, is properly before the Court,

and equally have nothing to do with the small money

claim with which the Attorney should have nothing

to do and which, in our submission, is not within

the jurisdiction of this Court.	So that either way
they fail, 3 to 7.

Paragraph 8 would appear to stand on its own

and is the one, Your Honour, I have already

addressed, namely a small money claim not within

Pedler(2) 23 17/6/92

the jurisdiction of this Court and one to which the

Attorney is not a proper defendant. we are not

sure, with respect, how to group the remaining

paragraphs, 9 to 12. It would appear 9 stands on

its own, although it does not actually make a claim

as such, except by the words in the fourth line,

"double billed". We assume that that is intended

to convey a claim for reimbursement. That also is

simply a money claim. It does not raise any

constitutional matter. The Attorney is not a

proper defendant to it as a money claim and this

Court has no jurisdiction as a simple money claim

between the Water Board and one of its customers.

HER HONOUR:	It is not so obviously severable.
MR WALKER:	From the constitutional matter, Your Honour?
HER HONOUR:	Yes.

MR WALKER: With respect, Your Honour, I concede this, that

reimbursement of the land tax rate, as it is

called, is an appropriate remedy both for the
constitutional matter and for what I might call the

accounting matter. However, if one complains about

being double billed, one could not more plainly

concede the right of being billed once. That is

inconsistent of course with the constitutional

argument which says there is no right to be billed
at all, no right to bill at all.

So a double billing claim stands apart from, by definition, a constitutional claim which says

there can be and should have been no billing

whatsoever. So in answer to Your Honour's concern,

in my submission, the very language of 9 sets it
apart from, by means of being an alternative to, a

constitutional claim and therefore does fall

outside this Court's jurisdiction.

Paragraph 10 seems to advance a separate

argument. With respect, Your Honour's concern may

also apply to it. It does not of course do so in

terms at all, but reading it subject, as one must,

to the prayers for relief in paragraph 13, that

would appear to raise - and query - the 109 point,

although it is an example, with respect, of the

defects in this pleading for argument at a full
hearing by the Full Court of this Court, the

defects of this pleading as it presently stands.

For example, nothing is said as to what provision

of the Trade Practices Act, if any, is attracted by

the factual proposition that (1) the service has

never been wanted, and (2) the service has never

been provided.

Pedler(2) 24 17/6/92

Paragraph 11 would appear entirely to be between the Water Board and Mr Fedler. It may well

be that they are, as Your Honour has pointed out,

subject to an issue estoppel, whether that be

pleaded or not, or has now emerged in judgment

whether that be pleaded or not. Failure to keep a

record as such does not appear to provide any cause

of action, certainly none for which the

Attorney-General is liable and, Your Honour, with

respect, in no way to be connected with any of the

constitutional matters within this Court's

jurisdiction. So failure to keep record and

disconnection - one assumes the innuendo is

wrongful disconnection because of failure to keep

record - is not a matter which falls within this

Court's jurisdiction and it should be struck out.

Paragraph 12 does not attract similar

objections. It would appear to be a pleading of a

fact which is a causal step to a claim for damages.

As such, Your Honour, we read it as being ancillary

to any other causes of action which might entitle
the plaintiff or plaintiffs to monetary relief, and

it may be therefore that if there is an action for

damages for unconstitutional levies, that that

should stay in. We of course make no such

concessions, but paragraph 12 seems to stand in a

separate category.

In the upshot, Your Honour, apart from

paragraphs 1 and 2 which are, as I say,

introductory and paragraph 12 which hangs on

anything that might survive, the entirety of the

actual pleading in terms of setting out the facts

·Nothing would then be left and, in my submission, it follows that the whole should go because only paragraphs 1, 2 and 12 would go.

so that we, for example, could plead back to them,

should be struck out as against the

Your Honour, the curious thing about this case

which does make it difficult and unusual to deal
with in this interlocutory matter is that the real

knowledge of the Court and the parties of

Mr Pedler's claim comes in the explanation of the

prayers for relief. We have of course also the

explanation in the affidavit which Mr Fedler has

filed in answer to this application.

Your Honour, could I quickly go down the list

in paragraph 13 all subject to this argument, that

paragraph 13 is not a matter which should be

treated by the Court as a pleading. They are

prayers for relief in form; in substance they are

also argumentative, and perhaps none the worse for

that, but with respect, Your Honour, they are the

Pedler(2) 25 17/6/92

cart, not the horse,. and the horse has failed, in our submission. The pleading simply is not there, for the reasons I have already put.

We understand prayer A. It may or may not be

a matter within the jurisdiction of this Court,

depending upon whether a truly constitutional

matter survives a pleading objection.	We say none
does. Paragraph B plainly raises the

constitutional questions under first the New South

Wales Constitution, section 5, and second, under

the - I should not have said "plainly". It may be

that 13B, together with 13F - it is difficult to

say - combine to raise a constitutional matter

under section 109 by comparing the Trade Practices

Act with - it is very difficult to know,

Your Honour. It does not set up a comparison

except perhaps with the - I withdraw what I have

argued, Your Honour.

B does not do anything plainly. It seems to

assert that by reason of New South Wales'

Constitution and by reason of some effect of the

Commonwealth Trade Practices Act, there is a

prevention of charging for unsolicited or

unsupplied goods. In our submission, nothing

appears from section 5 of the New South Wales

Constitution Act shorn of any allegations of fact -

and there are none in this pleading - which would

render that a matter fit to go to trial.

So far as the Trade Practices Act is

concerned, Your Honour, we do not make any
concession with respect to the Water Board.

Bradken Consolidated would suggest that the Trade

Practices Act will not apply, leaving the Fair

Trading Act to apply. The Fair Trading Act matter

js a matter which can be litigated between

Mr Pedler and the Water Board in the supreme court and is not within the jurisdiction of this Court.

I would remind Your Honour, however, that it

applies only from 1 September 1987 and would	therefore be within the monetary jurisdiction, one
would expect, of the local court so far as the
money in question is concerned.

One then goes to c. That raises most plainly

the matter which would bring this case to this

Court. I need say no more about that. I shall

return briefly to that matter of the excise.	So C
would be appropriate.	I would observe,

Your Honour, that there is ironically,

notwithstanding our efforts to have them pleaded,

very little, if anything, pleaded in the statement
of claim which shows that these people have
standing to raise that matter now with respect to

an excise which they say is now being levied

Pedler(2) 26 17/6/92

against them or which they are now entitled, in light of judgments and what the evidence shows,

that there has been some recovery by garnishee, to

have back.

Paragraph 13D would appear to raise only the

New South Wales Constitution Act matter.

Your Honour, that raises a controversy as to

whether that is within the jurisdiction of this

Court or not. It is our argument that

notwithstanding what was said by the Full Court of
the Federal Court in Boath v Wyvill, there is
nothing in the point. Sections 106 and 107 of the

Constitution mean that every argument under a State

Constitution or in some way raising a State

Constitution by reference to legislative competence
is also a matter under the Commonwealth

Constitution.

In our submission, the New South Wales

Constitution Act has its own force, regardless of sections 106 and 107, and it was for the purposes

of the Federation that 106 and 107 appear in the

federal Constitution. Arguments about the New

South Wales Constitution cannot, in my submission,

proceed either on the basis of or by reference to

106, 107 in such a way as to attract section 30A

jurisdiction.

HER HONOUR: 

The difficulty really is that one cannot,

without the pleading in the proper form, know
whether or not it is one whole inseverable matter

or not.

MR WALKER: 

Your Honour, we wholeheartedly and with great

respect share that sentiment.

HER HONOUR:  But that is the difficulty with this particular

argument, though, that you are putting.

MR WALKER:  Yes, we accept that. Your Honour, we do,

however, say, conscious of the claim which

Mr Fedler rightly has to some indulgence as a

litigant in person, particularly against these

defendants, that there comes a time when those

difficulties should no longer count against the

defendants and that, if things appear tangled or,

more to the point, obscure, there comes a time when

Mr Pedler in his pursuit of this litigation ought

to bear the onus of bringing clarity rather than

this Court being subjected to what will be, on any

view of it if this is the pleading upon which

argument proceeds at a final hearing, a very

difficult case to preserve clear strands of

argument and a clear sense of direction to a

conclusion.

Pedler(2) 27 17/6/92

In my submission, rather than the defendants

suffering from that obscurity, it is Mr Pedler who

should either have one last opportunity to dispel

the obscurity or rather, as we would prefer and

respectfully argue for, he should now suffer the

usual fate of litigants who cannot make clear their

cause of action.

Your Honour, G(i) goes over the excise matter again, although it also appears to invoke the

Commonwealth Trade Practices Act in a matter which

could not logically be germane to the excise point.

G(ii) would appear to be remedial and consequential

only, as is G(iii), although it also seems to refer to both excise and Trade Practices Act matters. It

certainly does not add to anything that has gone

before.

Your Honour, His not, in our submission,

within the jurisdiction of this Court and however

obscure other parts of this document may be, there

is nothing anywhere in the document to suggest that that is linked up with any constitutional matter at

all. It would appear to be a purely domestic

matter which ironically shows Mr Pedler embracing

and seeking to enforce the provisions of a statute

which elsewhere, and no doubt in the alternative,

he is submitting are entirely invalid for various
reasons.

Your Honour will recall that he has submitted, for example, that by reason of section 90 or 109,

the whole of the statute goes, so that, for
example, the Water Board does not exist. Those

provisions which constitute the Water Board have

gone as well. His an illustration in fact of

Mr·Pedler seeking to invoke those very same

provisions.

I, Your Honour, ought to be struck out. We

had raised earlier with Mr Pedler the use of the

word "fraud". Leaving aside its use in political

discourse, there is no pleading of fact which shows

a fraud by anybody. If there be a fraud, then it

ought to be alleged in proper terms. Your Honour,

that is also a good example of a cause of action,

if it be a cause of action, and a claim for relief

which is not within the jurisdiction of this Court.

Nothing constitutional is revealed by an allegation

that there is some kind of public dishonesty

involved in what has happened to Mr and Mrs Pedler.

J raises the matter I just mentioned to

Your Honour and would be appropriately within the

jurisdiction of this Court if it depended on the

constitutional matter. K would also be

consequential in so far as it follows as a remedy

Pedler(2) 28 17/6/92

upon a constitutional defect. However, Your Honour

sees that it also raises a matter which appears for

the first time and has no pleading to support it

whatever.

The Attorney-General is, perhaps to his private pleasure, but publicly he would reject the

notion that he owns various courts, statutory

bodies and instrumentalities, and he has imputed to

him there several negligence. In my submission,

Your Honour, if there is to be a plea of negligence

in an area which is difficult enough as a matter of

law, namely the liability of public bodies in

negligence, there must be, with respect, proper pleading of fact, and there simply is no proper
pleading of fact so as to make those claims in K

under the heading of Negligence available in this submission, of seeing how any such claim could in

any event be within the jurisdiction of this Court

if it is simply a claim by a New South Welshman

against New South Wales for various Crown

instrumentalities' negligence.

Your Honour, for those reasons, in my

submission, tested against the prospect which must

be regarded as real in this case in order to decide these interlocutory matters, namely a final hearing
before a Full Court, either on a demurrer or as an

action referred by a single Justice, this pleading

is simply an impossible vehicle or foundation for

argument. Mr Fedler, as he is entitled to do, does

not have professional legal assistance, but there

comes a point, in my submission, that a degree of

approaching equality between litigants in person and represented litigants ought to be imposed by this Court so as to permit its own procedures to

operate.

In my submission, this document and the

difficulties it poses for argument, the

difficulties of untangling that which is within the

jurisdiction of this Court and that which this

Court has no power to hear and decide, all

highlight the fact that there has been a failure.

In my submission, the merciful thing would be to dismiss in limine now, because Mr Fedler has already had two goes. In the alternative, there

ought to be at the most only one last go.

So far as the alternative matter Your Honour

has raised of remitter is concerned, if that were

in question, we would strongly support my learned

friend Mr King in nominating the supreme court of

the State as the appropriate forum, notwithstanding the fact that the financial limits of some of these

Fedler(2) 29 17/6/92

claims fall well within the local court's

jurisdiction. But in so far as there is -

HER HONOUR:  I have no power to remit to a local court, I

think.

MR WALKER:  Your Honour, the real difficulty is not the

money in this case. This is not a case which

concerns money. The difficulty is, in our

respectful submission, having facts stated which

then become a suitable vehicle for deciding whether

any issues of law arise and if so, how they should

be decided. May it please Your Honour.

HER HONOUR:	Thank you, Mr Walker. Yes, Mr Fedler?
MR FEDLER:	Your Honour, there has been a lot raised about

what is and what is not part of the Constitution as

far as the pleading is concerned. I bring

Your Honour's attention to the Judiciary Act,

section 32, which offers complete relief.	So that
it does not need to come - - -

HER HONOUR: In a matter.

MR FEDLER: In a matter, Your Honour.

HER HONOUR:  Yes, but that is the question, is it not? Have

you got one matter here or two or three or four?

MR FEDLER:	I am claiming there is only one matter.
HER HONOUR:	I know that is what you are claiming, but prima

facie at least, in relation to the claim for a

rebate, that is not right. If that claim can be

advanced, it can be only advanced as executor of

your mother's estate. So it would be a claim made

i.n a different capacity from any claim you would be

bringing in your own right as current owner of the
property, and it is a matter that would have to be

dealt with in accordance with the terms of your

mother's will, not in accordance - it may be the	same in effect, but prima facie it is a separate
matter.

MR FEDLER:  I see, Your Honour. I had believed that it was

all the one matter seeing it was instituted before

my mother died - these proceedings.

HER HONOUR: That does not make it all the one matter. It

may well have been two matters even then.

MR FEDLER: Yes, Your Honour.

HER HONOUR:  Not being a matter in which you yourself could

bring the action.

Fedler(2)	30	17/6/92
MR PEDLER:	Yes, Your Honour.	I had in affidavit previously

stated that I had the power of attorney for my

mother when she was alive.

HER HONOUR: That does not matter. Power of attorney does

not give you the right to	do anything on your own
behalf, only on behalf of	the person whose power of
attorney you hold.

MR FEDLER: Yes, Your Honour. I am claiming under the

section 90 concept that water is a processed

product, produced by the Water Board containing, as

Your Honour obviously knows, fluoride and chlorine

and perhaps other unknown substances. It is

produced by the Water Board and it is basically

provided by the Water Board as a marketable

product. That is why I am claiming that section 90
of the Constitution does apply to it.

Reference has been made to the Phillip Morris case, Your Honour. In the Phillip Morris case the Chief Justice, Justice Mason, who gave a joint

judgment with Justice Deane, stated there that an

excise duty is a tax and it defines that a tax is a

compulsory exaction of money for a public purpose

enforced by law and to define a tax, it has to be

for a public purpose. I am stating that the Water Board is a public instrumentality. It is not only

an instrumentality for supplying water service and

drainage, it is also a taxing body because - I am

stating that the rates, as such, are a tax based on

land and as already has been mentioned - - -

HER HONOUR:  Yes, but what product is it a tax on? You say

it is a tax on land - -

MR PEDLER.:	Yes, but the product is the water.
HER HONOUR:	But if it is a tax on land, how is it a tax on

water, and if it is a tax on water, why is it not -

simply the cost of services rendered? if you take water as processed goods, why is it not

MR PEDLER: Well, I am stating that it is attached to water

as a service.

HER HONOUR: Well, it has to be a tax on goods to be an

excise. One thing that is clear about section 90

is that you can tax services without infringing

section 90.

MR PEDLER: That is correct, Your Honour. That is why I am

not touching upon the sewerage and drainage part in

this section 90 claim. I am only claiming it on

water which is a product. It is, as stated,

chemically altered from its natural state - - -

Pedler(2) 31 17/6/92

HER HONOUR:  Yes, but where is that tax on it? Why is it a

tax on water?

MR PEDLER:  The tax is an indirect tax.

HER HONOUR:  Yes, but on water. It has got to be a tax on

water, on your argument.

MR PEDLER:  On the water; because the water rates as defined

in the Water, Sewerage, and Drainage Board Act and

now Water Board Act and Water Supply Authority Act,

states that the tax is based on those three

components. In fact, there are five components in

the Water Board's new legislation on which the tax

can be individually applied. So the tax is not a

tax over the whole water, sewerage and drainage,

they are individual taxes on each different

product. That is why I have avoided the sewerage

and drainage and relied basically on it being a

single tax on water and there I am claiming that it

does raise section 90 of the Australian

Constitution - - -

HER HONOUR:  Well, where do you say that in your pleading?

Would you take me exactly to your pleading and show

me where you say that - to your statement of claim

endorsed on the amended writ of summons.

MR PEDLER:	I relied basically under 13B, which covers the three sections of the Constitution on which I rely,
being section 51, section 109 -
HER HONOUR:	It does not mention section 90.
MR PEDLER:	- - - and then on Cit goes on to section 90 on

the last - - -

HER HONOUR:	Yes, but B does not mention - - -
MR PEDLER:	I am sorry, Your Honour, I thought it had.

HER HONOUR:	Mr Pedler, you have known all along - it has been now some years since I last encountered this
case - you have been saying that there is an excise duty involved here for a goodly number of years.
There is no mention of it in B, there is one in C.

MR PEDLER: In C, yes, Your Honour.

HER HONOUR: Yes. Well now, what does that say. It does

not say that they are land tax, and it does not
provide any basis on which you allege that they are

excise duties, and it is a tax on water.

MR PEDLER:  On G (iii) I say - asking for an order there,

again relying there that the water authorities

representing the Crown breached section 90 of the

Pedler(2) 32 17/6/92

Commonwealth of Australia Constitution, and also the Trade Practices Act.

HER HONOUR:  But that is your claim for relief. That is not

the particular - when you plead, you have got to

plead the matters which entitle you to relief.

MR FEDLER:  I believe that a lot of this is carried further

by the affidavits.

HER HONOUR:  Well that is not a pleading, Mr Fedler. You

know perfectly well that is not a pleading.	Did I
read somewhere that you have completed a law
degree?

MR FEDLER:  I completed the barristers admission board

course.

HER HONOUR: All right. Well, then we will treat you as

having the same degree of knowledge that any

qualified lawyer - you know it is not a pleading.

If you do not know it is not a pleading, you should know it is not a pleading.

MR FEDLER:  Yes, Your Honour. I cannot offhand see any

pleadings relating to the section I am claiming

them to be an excise duty, Your Honour.

HER HONOUR: All right. Well, then, what is the rest of

your argument, that you think can come before this

Court?

MR FEDLER:  The rest of my argument is that the pleadings

also cover section 109 of the Constitution.

HER HONOUR:  But you do not say what it is that brings about

the alleged inconsistency. What is it in the Trade

Practices Act that brings about the alleged inconsistency?

MR FEDLER:  The Trade Practices Act does not allow for a

person to be charged for goods and services not

provided.

HER HONOUR:	What provision?	You do not say that, do you?
MR FEDLER:	No, Your Honour, I do not.	I do not state the

specific section.

HER HONOUR: Well, you must. If you want to raise that sort

of matter by pleading, you must raise it. You must

identify the provisions that are said to come into

collision.

MR FEDLER:  And the other one, of course, is the section Sl(xx).

Fedler(2) 33 17/6/92

HER HONOUR: All right. Well let us go back to the

section 109 argument.	Where do I find that in your
pleading?

MR PEDLER:  I am afraid that the only place I can see

offhand is in the relief sought, under 13,

Your Honour.

HER HONOUR:  Which subparagraph?

MR PEDLER: It is the last line under B.

HER HONOUR:	Yes.
MR PEDLER:	Which links together with section Sl(xx).

HER HONOUR: Placitum (xx) is your third argument, is it?

MR PEDLER:	Yes.
HER HONOUR:	Now, what is that argument? That has never

emerged before.

MR PEDLER:  That is the section which shows that the Water

Board is bound as in trade, or actually in commerce, by the Trade Practices Act.

HER HONOUR: Well, you have got a decision against you

though, have you not? You have got a decision

called Bradken v Commissioner for Railways, which

says that State instrumentalities are not bound by

the Trade Practices Act.

MR PEDLER: Well, there is a counter to that one,

Your Honour, which is basically called the Dam's

case, down in Tasmania, where there is an

electrical authority.

HER HONOUR:  Yes, but that did not concern the Trade

Practices Act.

MR PEDLER:	No, Your Honour, but - - -
HER HONOUR:	You are alleging an inconsistency between the

Trade Practices Act, which this Court has held does

not bind State instrumentalities, and the Water

Board Act, whatever that be.

MR PEDLER: Yes, Your Honour.

HER HONOUR: Well now, the Tasmanian Dam's case did not

involve the Trade Practices Act.

MR PEDLER:	No, that was section 51.
HER HONOUR:	It involved another piece of Commonwealth

legislation altogether, which said it bound the

Pedler(2) 17/6/92

Hydro-Electricity Commission of Tasmania - it was directed at the Hydro-Electricity Commission of

Tasmania.

MR FEDLER: Yes, Your Honour, but what was decided in that

was that that body was bound by section Sl(xx) of

the Constitution.

HER HONOUR: Well, placitum (xx) does not bind anyone in the ordinary sense. It gives power to the Commonwealth

to pass laws on a subject-matter, which laws can

then bind people.

MR FEDLER: That is correct, Your Honour.

HER HONOUR:  But the only law you claim the the Commonwealth

Parliament has passed that is relevant to your

claim is the Trade Practices Act.

MR FEDLER: That is correct, Your Honour.

HER HONOUR: 

This Court has already held that it does not

bind State instrumentalities, although it did hold,
did it not, that it bound the St George County

Council?

MR WALKER: 

I think it was only for the purposes of an

excise argument, Your Honour.

HER HONOUR: St George, was it?

MR WALKER:	I am not sure.
HER HONOUR:	I do not think so. So, Sl(xx) is just a plank

in your section 109 argument, is it?

MR FEDLER: Yes, Your Honour.

HER HONOUR: Yes. All right.

MR FEDLER:	What I was claiming is that the section 109 shows that there is a conflict between State and
federal legislation and - - -

GAUDRON J: Yes, but which legislation - again the Trade

Practices Act and The Water Board Act.

MR FEDLER:  The Water Board's three basic Acts.

HER HONOUR:  Yes. Well, what provision or provisions of the

Water Board Acts are rendered invalid - you say the whole lot.

MR FEDLER: Well, basically, what I am saying is part of the

Act fails, down to the doctrine of inseverability,

the whole Act - - -

Pedler(2) 35 17/6/92

HER HONOUR:	Which part fails?
MR PEDLER:	The part which allows the Water Board to raise

taxes or rates, which are taxes, and charge people

for goods and services not provided or asked for.

HER HONOUR:	Now, there is no doctrine of inseverability, as such, you know. There is a provision, in fact, in
the Interpretation Act - the State - and the Acts that when a particular provision fails, the rest of the Act stands.

MR PEDLER: That is correct, Your Honour.

HER HONOUR:  Yes. So there is no doctrine of

inseverability.

MR PEDLER: With due respect, Your Honour, that only applied

to the Commonwealth legislation.

HER HONOUR: There is provision in State legislation exactly

the same.

MR PEDLER:  The provision in the State legislation only came

out in 1987. That is why I am stating in these

documents - - -

HER HONOUR:  I do not think that is right. There may have

been amendments in 1987, but I think there was a

general saving provision well before then.

MR PEDLER:  I am afraid not, Your Honour. That is why some

legislation specifically covered itself to show

that if part of the legislation fails, the rest

would stay in order, such as Land Tax Act, and Land

Tax ·Management Act - - -

HER HONOUR:	Yes, but what about your Acts Interpretation Act, the Interpretation Act?
MR PEDLER: Well, as I state, the Commonwealth Acts

Interpretation Act - - -

HER HONOUR:  Yes, but what about the New South Wales

Interpretation Act?

MR PEDLER: Well, I am afraid, Your Honour, that it is a

limitation Act - - -

HER HONOUR: Interpretation Act.

MR PEDLER: Yes, Your Honour, but I believe - - -

HER HONOUR:  You tell me you have passed all these exams.

Now, there is a New South Wales Interpretation Act,

is there not?

Pedler(2) 36 17/6/92

MR FEDLER:  Yes, Your Honour, but as I am saying, it is a

limitation Act, which, in effect, took that part of

the Acts Interpretation Act into the State sphere,

and that only happened in 1987 with the new Act

coming into force.

HER HONOUR:  No, well, it did not. It simply did not.

MR FEDLER:  And, as I state here, it covers also the Fair

Trading Act, which is the State counterpart of the

Trade Practices Act, and that Act, in turn, also

binds the Crown.

HER HONOUR:  Yes, well now, how does that get into this

Court.

MR FEDLER: Well, I am claiming that the water rates, as

such, are an excise duty under the interpretation

partly of several cases, including Matthews v - - -

HER HONOUR:  Yes, but how does the Fair Trading Act get into

this Court?

MR FEDLER: Well, the Fair Trading Act, I claim, would come

in under section 53 of the Judiciary Act as being

part and parcel of the whole argument being put

before this Court.

HER HONOUR:	Yes, all right, I understand that.
MR FEDLER:	As I was pointing out, Your Honour, in the

Phillip Morris case, which has been referred to,

the judgments of the Chief Justice and

Justice Deane in that stated that a fee for service

can also be an excise duty. It states, on page 525

of ~he Australian Law Journal, volume 63 - - -

HER HONOUR:  So long as it amounts to a tax on goods.

MR FEDLER: Yes, Your Honour, and that is why I am saying

that water, as processed, is a goods which is a

marketable product.

HER HONOUR:	Yes, but that does not make it a tax on goods.
HER HONOUR:	It is an indirect tax, Your Honour, relating to

goods, in the same way - - -

HER HONOUR:  It has to be an indirect tax on goods to be an

excise - - -

MR FEDLER:  Yes, Your Honour. It is in the same field as

the Matthews case - - -

HER HONOUR:  But they were producing chicory there. You are

not producing water at Hunters Hill, are you?

Fedler(2) 37 17/6/92

MR FEDLER:	No, the Water Board is, Your Honour.
HER HONOUR:	It is not producing water at Hunters Hill.
MR FEDLER:	It is not producing it at Hunters Hill, but it

is marketing it.

HER HONOUR:  Maybe distributing it.

MR FEDLER: It is distributing it.

HER HONOUR:  So it is taxing itself, is it?

MR FEDLER: It is a tax in itself.

HER HONOUR:	The Water Board is taxing itself?
MR PEDLER:	It is the tax collector, so by being a tax collector, naturally it does not tax itself; it
passes a tax down the line to the consumer and I am
stating that as a consumer, it is an excise duty
which is being passed on to me. Basically I rely on the decisions made by the two honourable Judges
in the Phillip Morris case, plus the Chicory Board
case, which is also referred to -
HER HONOUR:	That was a tax calculated per acre, which was

held to be a tax on chicory.

MR FEDLER: Yes, Your Honour, but then again, it was a tax

on the lan.d, not on the chicory itself.

HER HONOUR:  Yes. That is right. Now, I had understood you

to say that what was involved here was a tax on

land.

MR PEDLER: ·yes, Your Honour.

HER HONOUR:	But you also say it is a tax on goods.
MR PEDLER: Well, it is an indirect tax on goods taken from

the value of the land in this particular case.	It
can be taken from land, size of pipes, there are many things in the Water Board Act - - -

HER HONOUR: Well, let us approach it on the basis that it

is a tax on water. You are the taxpayer, but you

are not a producer, manufacturer or distributor of

water.

MR PEDLER:  No, Your Honour.

HER HONOUR:  No. Well then, it does not seem to me to be

even faintly arguable that what you categorize as

the land tax is an excise duty by reason of its
being a tax on the production of goods, being

water.

Pedler(2) 38 17/6/92

MR PEDLER: Well, what I am arguing is that it is a tax that

is invoked at the point of sale, which is to me,

the consumer.

HER HONOUR:  I see. So you are not arguing that it is

because it is the land tax component; you are

arguing - - -

MR PEDLER: It is an indirect tax as a land tax,

Your Honour.

HER HONOUR:	Well, it does not make sense. What you are saying is absolutely unintelligible.
MR PEDLER:	What I am saying is basically what was referred to in the High Court in that particular case,
referring to John Fairfax and Son Ltd v Smith
Newspapers Ltd, The Commonwealth Oil Refinery case
and Parton, were all cases in which a tax levied at
the point of sale or distribution was held to be an
excise. That is what I am stating; that I am at the point of distribution and therefore it would
still fall into the excise category.
HER HONOUR:	Now, what Their Honours were there saying was,

the fact that it falls at the point of distribution

does not take it outside the field of excise if it

is none the less a tax on goods.

MR PEDLER: Yes, Your Honour. That is what it is which I am

alleging; it is a tax on water, which is a goods,

which is the marketable good produced by the Water

Board. The tax is not imposed on us -

HER HONOUR:	When it becomes a tax on goods, it is a tax on goods by virtue of it being levied on a producer,
manufacturer, transporter or other distributor of
goods.  Now, you are not any one of those.
MR PEDLER:	No, I am claiming that it extends further,

Your Honour, to the person that is also the user of

the goods.

HER HONOUR: Well now, there is authority against you in

Dickenson's Arcade, is it?

MR KING: Yes, it is, Your Honour.

MR PEDLER:  I would like to also point out that

Their Honours also made a statement,

On the other hand, a compulsory and

enforceable exaction of money by a public
authority for public purposes will not

necessarily be precluded from being properly

seen as a tax merely because it is described

as a 'fee for services'.

Pedler(2) 39 17/6/92

HER HONOUR:  Yes.

MR PEDLER: That also falls into the same category, Your

Honour.

HER HONOUR: Well, again it does not say it makes it an

excise. What it says, it does not prevent it from

being classed as an excise, if it is a tax on goods

in the sense of being a tax on a step in

production, manufacture or distribution of goods.

MR PEDLER: Well, as I stated, there is quite a large amount

mentioned by the two learned judges relating to

John Fairfax and Sons Ltd and The Commonwealth Oil

Refinery cases with Parton, which stated that tax

can be levied at the point of sale. That is why I

am stating that I am the point of sale, as the

person receiving it. Obviously the Water Board

would not be paying tax to itself and it would pass

it down to the first person down the line who would

be capable of paying the tax, and that is the

consumer, of which I am one of those persons. That

is why I am stating that I am still the payer of an

excise duty because I am the first person competent

to pay that tax. If, on the other hand, the Water

Board had paid itself tax and then passed it down

to me, it would be in the same position that I am

in now. The consumer would still be the person

paying the tax.

As I also mentioned, in the Matthews case,

there again it was an indirect tax, not on the

material itself; it was based on the land area

which was two pound per acre, which is not a tax on

the material and was in the same category as what

the water is, which is not a tax on the water, but

again a tax on the land.

HER HONOUR: Well, what goods do you manufacture, produce or

distribute on your land at Hunters Hill so that the

rate can be said to be a tax on goods?

MR PEDLER: Well, I am stating that it is an indirect tax on

the sale of water supplied by the Water Board,

produced by the Water Board and it is a tax paid by

the consumer. The tax is not limited strictly to

the producer, the distributor and other persons

down the line, but carries right down, in actual

fact, to the consumer itself, which was quite

clearly set out by the decisions of Their Honours

in this particular case, as I have just mentioned.

That is why I am stating that in my opinion it is

in the same form as the Chicory case in that it is

based on land, not on the product itself.

Pedler(2) 40 17/6/92

HER HONOUR: Well, it is not in the same form as the Chicory

case, Mr Pedler, and you know that because in the

Chicory case the landowner was growing chicory.

MR PEDLER:	Yes, Your Honour.
HER HONOUR:	And you are not growing chicory.
MR PEDLER:	No, Your Honour.
HER HONOUR:	You are not growing anything.
MR PEDLER:	No, Your Honour, but I am stating that as it

passes down to the consumer, I am the consumer, and

it is still an excise duty regardless of whether it

starts at the top or starts at the bottom of the

chain. And I am stating that even though, in this

instance, it starts at the bottom of the chain at

the consumer's level, it still becomes an excise

duty. I rely on the statement -

HER HONOUR:  What provision of the Act or of which Act

levies a duty that is an excise, according to your

argument?

MR PEDLER: Well, the Metropolitan Water, Sewerage, and

Drainage Act, section 96 states the basis of

rating:

The board may determine whether for any year

the rates to be levied, or any of them -

(a) shall be levied upon the assessed annual

value of ratable land;

(b) shall be levied partly upon the assessed

annual value and partly upon the land value of

ratable land; or

(c) shall be levied -

(i)	in the case of residential land, being
ratable land, upon the land value -

which is this particular case.

(ii) in the case of non-residential land,

being ratable land, upon the assessed annual

value.

HER HONOUR:  We are talking about residential land, are we

not, now?

MR PEDLER: Yes, Your Honour. Well, actually, I am talking

about both residential and non-residential land.

Pedler(2) 41 17/6/92

HER HONOUR:  Now, your claim is only in relation to

residential land, is it?

MR FEDLER:	Yes, Your Honour, but, as I say, it can cover the field because I have also stated that I am
owner of vacant land up at Springwood which is also
caught by - - -

HER HONOUR: That is not residential land? That is not in

this action. Now, come on, Mr Fedler, you have not

made any claim with respect of your Springwood land

in this action. Now, you are being mischievous and

close to vexatious.

MR FEDLER:  What I hoped to do, Your Honour, was more or less just cover the field as to the tax in general.

HER HONOUR: Right. Well, I am not asking you - I am trying

my hardest to ascribe some level of intelligibility

to your pleading. Do you say it is the case

pleaded or the case you wish to plead in this

action that so far as it concerns your land at

Hunters Hill being residential land, section 96 of

the Metropolitan Water, Sewerage, and Drainage Act

imposes a duty of excise?

MR FEDLER: Yes, Your Honour.

HER HONOUR:  All right. Now, do you wish to go further than

that? It imposes or authorizes?

MR FEDLER: Well, that is only one of the Acts, Your Honour.

The other Acts -

HER HONOUR: Well, I wish to know what it is that you say

imposes a duty of excise because if I give you

leave to plead it, I am going to give you leave in

precise terms being in relation to those sections

of the Act that you tell me you say levy a duty of

excise. You have admitted that your pleading has

got nothing about a duty of excise save in so far

as it seeks certain relief.

MR FEDLER:	The relief sought, yes, Your Honour.
HER HONOUR:	Now, if you are going to have leave to plead

it, it is going to be circumscribed by reference to

the sections that you, as a person who has

completed the Barristers' Admission Board course

and must therefore be treated as having the

knowledge of any ordinary average lawyer, tell me,

here and now, impose a levy of excise or impose a

duty of excise?

MR FEDLER: Yes, Your Honour. Well, that is the water

supply under the Metropolitan Water, Sewerage, and

Drainage Act, the basis of rating under section 96.

Fedler(2) 42 17/6/92

In fact, Your Honour, I would take it that it goes

from 89 to 96, the whole sections cover the same

field under the Metropolitan Water, Sewerage, and

Drainage Act. Under the new Water Board Act 1987 it goes from section 31 to 33.

HER HONOUR:	1987?
MR FEDLER:	'87, yes, Your Honour.

HER HONOUR: Section 31 to what?

MR FEDLER:	To 33.
HER HONOUR:	Now, the next thing you are going to address,

if you want this action to be maintained, is why

you should raise any matter prior to the 1987 Act.

MR FEDLER: Before 1987 the Water Board had taken -

HER HONOUR:	Yes, but where does your judgment take you to?
MR FEDLER:	I beg your pardon, Your Honour?
HER HONOUR:	The judgment that has been given against you?

MR FEDLER: In the petty sessions?

HER HONOUR In the petty sessions, yes. What year does that

go up to?

MR FEDLER:	I think it goes up to '87.
HER HONOUR:	Well, you tell me. You know.
MR FEDLER:	I am not too sure, Your Honour.  I would have to

just check.

HER HONOUR:  You do not come to this Court wasting time like this without knowing. I mean, really.

MR FEDLER: 

If Your Honour pleases, I would like to continue

with the Water Supply Authorities Act sections
before I - - -

HER HONOUR: Section 31 to 33, you tell me.

MR FEDLER:  No, that is the Water Board Act. We have also

got the Water Supply Authorities Act.

HER HONOUR:  Yes. What year is that?

MR FEDLER: That is also 1987.

HER HONOUR:  Yes, what sections?

Fedler(2) 43 17/6/92

MR PEDLER: Well, it comes in two parts in actual fact. The

main part does not come under a section but comes

under Schedule 6.

HER HONOUR:	Some particular provision of that?
MR PEDLER:	From section 33 is the section which refers it

to Schedule 6. So, you have, as I say, in two

parts: section 33 and also the Schedule 6.

HER HONOUR:  Now, come back to your Acts prior to 1987. have got judgment against you, have you not, in the
years up to 23 May 1989? You

MR PEDLER: Yes, Your Honour. There was a previous judgment

against me in which a garnishee was also issued.

HER HONOUR:  Yes. Now, you cannot challenge judgments in

collateral proceedings, you know that.

MR PEDLER: Yes, Your Honour.

HER HONOUR:  You can only do it on appeal.

MR PEDLER: This matter, as Your Honour is aware, goes up to

1989.

HER HONOUR:  Yes. Well, why should you be allowed to

challenge anything prior to 1989 in these

proceedings?

MR PEDLER: Well, '89 is where it cuts off. It starts much

earlier back in 1984.

HER HONOUR:	Yes, but why should you be allowed to challenge anything prior to 1989 in respect of which judgment
has been entered against you in collateral
proceedings? Judgment has been entered against you.
MR PEDLER: Well, judgment has been entered but from that

judgment there still relies a stated case which is

going to the supreme court.

HER HONOUR: All right. Well, they are proceedings dealing

with that. These are different proceedings. You

can raise your issue prior to 1989 in those

proceedings. You cannot attack judgments even if

they are given in the courts of petty session in

collateral proceedings.

MR PEDLER:  No, Your Honour, I believe that if it raises a

constitutional - as a defence which the lower

courts could not touch upon.

HER HONOUR: Well now, Mr Pedler, you may believe that, but

I have told you I am treating you as a competent

Pedler(2) 44 17/6/92

lawyer who has passed the Barristers'	Admission
Board exams, and once a matter passes	into judgment
it can only be challenged.by appeal.	It cannot be
challenged in collateral proceedings.

MR PEDLER:  Yes, Your Honour. The difficulty which I am

faced with is there is an appeal by way of stated

case.

HER HONOUR: Well then, you can raise whatever you like,

whatever is open to you to raise in that appeal,

but it does not mean you can raise it here.

MR PEDLER: Yes, Your Honour, but it is also my

understanding that this Court is the only Court

which has the jurisdiction to answer constitutional

questions.

HER HONOUR: Well, that is a wrong understanding entirely.

MR PEDLER: It was also my understanding that there had to

be a decision of three Judges in constitutional

questions in relation to the rules of this Court,

Your Honour.

HER HONOUR:  There may be things in relation to the practice

of this Court but this Court is not the only court
with jurisdiction in respect of constitutional

matters.

MR PEDLER: Yes, Your Honour. Well, what I was proposing,

Your Honour, as it is raising the interpretation of

those three sections of the Constitution, that is

why this Court would be the appropriate court.

HER HONOUR:  But it is not a question of the appropriate

court, Mr Pedler. It has passed into judgment.

~his Court can only interfere with judgments of

other courts in appeals. It cannot do it in

original proceedings.

MR PEDLER: Yes, Your Honour, but it was my feeling that by

the - - -

HER HONOUR: Well, your feeling is wrong.

MR PEDLER:  - - - matter being taken with the

Attorney-General who was not a party in the

original cases, that this would be an originating

process in the Court.

HER HONOUR:  Yes. Well, as I said, I am to treat you as a

competent lawyer and there is a judgment, there is

a judgment, that is all there is to it. How it got

there - whether it got there because - I mean, one

could understand how it got there. It got there in

part because you elected to sue only the

Pedler(2) 45 17/6/92

Attorney-General in these proceedings, but that

having been done there is a judgment against you.

MR FEDLER: Yes, Your Honour. Originally these proceedings

did start on that same year as an application for

leave to appeal.

HER HONOUR: There is a judgment against you. It does not

matter when they started, there is a judgment

against you.

MR FEDLER:  Yes, Your Honour. That is why, because it is a

constitutional question, I have brought it in the
original jurisdiction of this Court basically

against the Attorney-General.

HER HONOUR:  Not basically; solely against the

Attorney-General at that stage.

MR FEDLER: Well, solely against the Attorney-General in the

first instance. So that the Attorney-General,

representing the Crown who wrote the legislation
itself, could be challenged, particularly the Trade

Practices Act.

HER HONOUR:  We have not got to that yet. Have you said all

that you wish to say about the excise point?

MR FEDLER:	I think I have covered that, Your Honour.
HER HONOUR:	Yes. Well now, what precisely is your 109

point. What section of the Trade Practices Act do

you say operates to render some provision of the

1987 legislation invalid, and which provision of

the 1987 legislation do you say is rendered

invalid?

MR FEDLER:	The Trade Practices Act is covered by several sections; section 64, which covers unsolicited
goods which do not have to be paid for; section 65
also covers the same thing.  The sections - also 58
and 64 are the main sections in the Trade Practices
Act, in the Fair Trading Act counterpart you have
53 - - -
HER HONOUR:	No, I am not worried about the Fair Trading

Act.

MR FEDLER: Sections 58 and 64 are the ones in the Trade

Practices Act, Your Honour.

HER HONOUR:  Not 65?

MR FEDLER: Section 65 also covers it, but 64 is the main

one. Okay. Now, what provision or provisions of

the 1987 Act are said to be invalid by reason of

Fedler(2) 46 17/6/92

inconsistency with sections 58, 64, 65 or any one

of them?

MR FEDLER: Well, the inconsistency is the - both the Acts,

the Water Board Act and the Water Supply

Authorities Act allows for the Water Board -

HER HONOUR:	Which sections or provisions?
MR FEDLER:	I would say that basically it is covered by

Division 1, which goes from 28 to 29, particularly

section 29. It continues right down to - 33 is the

last section, so it covers all the sections from 28

to 33, that is in the Water Board Act, Your Honour.

HER HONOUR:  Yes. Now, what about the Water Supply

Authorities Act?

MR FEDLER: That is Part 4, Division 1 - again it is very

similar to the other Act, from section 28 to 33.

\

HER HONOUR:	That is the Water Supply Authorities Act?
MR FEDLER:	That is the Water Supply Authorities Act, both of them 1987 Acts, Your Honour. So, these three Acts, in basis, conflict with the Trade Practices Act, and that is why I am saying that - - -
HER HONOUR:	What three Acts?
MR FEDLER:	The Metropolitan Water, Sewerage, and Drainage

Act -

HER HONOUR:  I am not entertaining that, am I. That ceased

to have effect in 1987, did it not?

MR FEDLER: ·rt did, Your Honour, but some of it carries over

by reason of these other Acts.

HER HONOUR:  What do you mean, "some of it carries over"?

MR FEDLER: Well, the by-laws and so forth from this Act

also apply today. There	are xxx savings provided
in the Water Board Act.	Basically the two
sections - - -

HER HONOUR:	What is there in the Metropolitan Water, Sewerage, and Drainage Act applying today that you
say is inconsistent with sections 58, 64 or 65 or
any one of them, of the Trade Practices Act?

MR FEDLER: Well, the rating provisions for water, sewerage

and drainage, particularly drainage and sewerage

are still inconsistent to the same effect in all

three of them.

HER HONOUR:  Do they apply today?

Pedler(2)	47	17/6/92
MR FEDLER:	They have not been changed.	They are identical

in each of these Acts.

HER HONOUR:  But I am not asking you if they are identical.

I am asking you, do they apply?

MR FEDLER:  Not as from that Act, but they do apply from

these other two Acts, to the same extent, of what

the sewerage and drainage rates are chargeable on.

Also it does cover more, in· actual fact, in the

Water Board Act than the Water Supply Authorities

Act on which rates can be charged. The Water,

Sewerage, Sewerage and Drainage Act only covered

three items where these cover up to five items on

which the rates can be charged, which are

inconsistent with the supplying of the product.

So, that is why I am stating that the Water Board is bound by the Trade Practices Act and is restricted from charging for goods and services

which it does not provide and which has not been

asked for under the Act.

HER HONOUR:  Now, ·are they the only matters that you say you want to argue?

MR FEDLER: Well, there is only basically the three

constitutional matters, Your Honour.

HER HONOUR: Well, there are basically two

constitutional -

MR FEDLER: Well there is two because one overlaps with the

section 109 - - -

HER HONOUR:  All right. Now, come to your pleading. What

ha~ all this history of from 1963 to 1974 got to do

with the matter; that is paragraphs 3, 4, 5, 6

and 7; what have they got to do with the

constitutional issues you wish to bring to this

court?

MR FEDLER: Well, paragraphs 1, 2, 3 are just basically a

foreword to give a picture of what events took

place.

HER HONOUR:  What relevance has 3 got to anything.

MR FEDLER:  No, Your Honour. As I say, the first three are

just - - -

HER HONOUR:	What relevance has paragraph 3 got to anything?
MR FEDLER:	The only relevance is in relation to

Ordinance 71, which states therein that

specifications cover the Water, Sewerage and

Drainage Board fittings and that - - -

Fedler(2) 48 17/6/92

HER HONOUR:  So far as I can see it has got no relevance to

your constitutional claims.

MR PEDLER: That has very little - that is nothing to do

with the constitutional claim, no.

HER HONOUR:	And 4?
MR PEDLER:	4 also has nothing to do with the constitutional

claim, Your Honour.

HER HONOUR:	5?
MR PEDLER:	5 claims that the council had usurped the powers

of the Water Board by saying that the Court ordered the demolition of plumbing fittings over which only the Water Board -

HER HONOUR:  What has that go to do with your constitutional

claim?

MR PEDLER: Well, constitutionally it has nothing to do with

it, Your Honour.

HER HONOUR:	6?
MR PEDLER:	6 has nothing to do with it too, Your Honour.
HER HONOUR:	7?

MR PEDLER: 7, the same thing, Your Honour.

HER HONOUR:  Now, paragraph 8 is concerned with your late

mother's rebate.

MR PEDLER: That is correct, Your Honour.

HER HONOUR:  Now, is there anything else you wish to say to

me about whether that is a separate matter or part

of the same matter?

MR PEDLER: Well, I would submit, Your Honour, that it is

part of the same matter, because it is in the same

dealings as has been going between myself and the

Water Board in appeal when my mother was alive, and

I would submit that because the whole thing is

interwoven it becomes part of the same matter.

HER HONOUR:	Yes. Now, 9, has that got anything to do with the constitutional claim?
MR PEDLER:	No, Your Honour.
HER HONOUR:	10?

MR PEDLER: 10, not directly, Your Honour, only by

implication to the Trade Practices Act.

Pedler(2) 49 17/6/92

HER HONOUR:	11?
MR PEDLER:	No, Your Honour.
HER HONOUR:	12? Yes, well that may have.
MR PEDLER:	No, Your Honour.
HER HONOUR:	That has nothing to do with the constitutional

matter?

MR PEDLER:	No, Your Honour.
HER HONOUR:	And 13 is not to do with the constitutional

matter either?

MR PEDLER: Well, 13, in its overall context does,

Your Honour.

HER HONOUR: All right.

MR PEDLER:  It would start with 13B and continue from there,

Your Honour.

HER HONOUR:  So 13A has not got anything to do with it

because - - -

MR PEDLER:	13A has nothing to do with it, Your Honour.
HER HONOUR:	So, 13B, yes.
MR PEDLER:	13B has; C also has.
HER HONOUR:	Yes, and D; has that got anything to do with

the constitutional matters?

MR PEDLER: Well, it deals with the New South Wales

Constitution, but in that matter the supreme court

has the capacity to look at all State

constitutional matters.

HER HONOUR:  Is that not a matter that is already in the

supreme court?

MR PEDLER:  It is in the supreme court, Your Honour.

HER HONOUR: It is already there?

MR PEDLER: Yes, in the stated case.

HER HONOUR:	Yes. Well, it does not arise in this Court though, does it?
MR PEDLER:	E, of course, does cover the claim that it is

brought in the jurisdiction of the High Court,

raising the constitutional questions under

provision Part IV of the Judiciary Act.

Pedler(2) 50 17/6/92

HER HONOUR:  What is this "class case"? It has got nothing

to do with me, has it?

MR FEDLER: Well, basically it would amount to a class case

in that, assuming that -

HER HONOUR:  We do not have class cases, do we? I have

never heard of the expression in this Court.

MR FEDLER: Well, a class case is a case that is basically

in which a type of people, or collection of people,

such as ratepayers in this case - water sewerage

and drainage rate people - would be a class of

person, and that would bring it in as a class case,

Your Honour.

HER HONOUR: Well, you do not need a declaration in terms of

E. You are either within jurisdiction or you are not, is that not right?

MR FEDLER:  Yes, Your Honour. The Rules of the Court stated

that it has to be claimed in this document that it

comes within the jurisdiction and that is where I

have done it, Your Honour.

HER HONOUR:  Yes. Well you do not seek a declaration, you

just do your pleadings properly. All right.	Now,
F - - -

MR FEDLER:  F relates to the sections 33 of the Water Supply

Authorities Act which we have just dealt with.

HER HONOUR: G? That is involved - - -

MR FEDLER:  G: this does involve the Constitution, basically

calling on it -

MR FEDLER:  Now, what about G(ii)? You cannot do that, you

know that, do you not?

MR FEDLER: Yes, Your Honour.

HER HONOUR: Well, G(iii) might have to be amended.

MR FEDLER: G(iii) does go into it again, Your Honour, the

Constitution.

HER HONOUR: Well, you might have to amend it.

MR FEDLER:  H - - -

HER HONOUR: That relates back to your -

MR FEDLER: Relates again to my mother.

HER HONOUR:  I has not got anything to do with the constitutional case, has it?

Pedler(2) 51 17/6/92

MR PEDLER:  No, Your Honour.

HER HONOUR: J?

MR PEDLER: That does not have anything to do with the

constitutional - it is basically raising the

doctrine of inseverability before the
Interpretation Act copied the Acts Interpretation

Act of the Commonwealth.

HER HONOUR: Well, that applied - yes. K?

MR PEDLER: Well that, in broad terms, just covers the

Constitution in the term that the State Parliament

acted ultra vires to its legislative powers.

HER HONOUR:  All right. You are not seeking to argue that

the Attorney-General is liable for negligence of

the courts?

MR PEDLER:  No, Your Honour.

HER HONOUR: All right. Well, is there anything else you

wish to say about that pleading?

MR PEDLER:  I think we have pretty well covered the pleading

itself, Your Honour, what it does contain and

unfortunately what, in the general pleading, it

does not contain. The only thing that I had

basically relied on would have been the orders

sought from paragraph 13 onwards, which covers the

gist of the claim.

HER HONOUR:	Yes, very well.
MR PEDLER:	So what I would like to do, Your Honour, is to apply to the Court for leave to again amend - or
have the pleadings again amended by another person.
I must admit I did not draw up these pleadings
myself, much as my learned friend over here thought
I had.
MR KING:	We did write a letter about it, Your Honour.
MR PEDLER:	In fact this is the gentleman that did it for

me. I believe he is one of your old school mates,

Your Honour.

HER HONOUR:  No, not mine; I went to a Catholic girls'

school.

MR PEDLER:  No, I meant at law school, by what he states to

me.

HER HONOUR:  Very well, I understand your submission. Do

you wish to say anything in reply, Mr King?

Pedler(2) 52 17/6/92

MR KING: Just briefly, Your Honour. Notwithstanding that

Mr Pedler has withdrawn allegation 13J which says

that my client has ceased.to exist as a legal

entity, what I would submit is this, Your Honour,

that in truth, in exercising, as I anticipate

Your Honour will or is considering, a discretion to

grant Mr Pedler leave to amend his claim, I would

respectfully submit Your Honour would take into

account that what he is attempting to do is in

effect futile.

He has clarified to the Court in his

submission, in opening to Your Honour, that in

truth his case is that the Water Board's service

charge for the supply of the infrastructure about

which he is complaining is a land tax. Indeed,

when one goes to the sections identified by

Mr Pedler in the Water Board Act, sections 31 to

33, there is indeed some basis for saying that the

Water Board levy, service charge, is in the nature of a land tax, although we would not concede that.

What we say is that it is a service charge

rated with reference to the value of land.

Whatever sections 31 and 33 of the Act achieve, they do not achieve the result that any levy or

charge amounts to a duty of excise.	They cannot be
a tax on goods.	The provision of the basic

infrastructure, which is the foundation of the

basic service charge, is rated, as it were, as the

price or the cost of the provision of that service.

It is rated by reference to the value of land.

So, Your Honour, my short submission is that

it would be futile to grant leave to Mr Pedler to

replead, based upon sections 31 to 33 of the Water

Board Act 1987, to claim it was an excise contrary

to section 90 of the Constitution. Hence, leave to

amend would be futile and ought not to be granted.

His second point related to section 109 in

that the Water Board Act sections 28 to 29 were	inconsistent with sections 58, 64 and 65 of the
Trade Practices Act, but a cursory examination of those two sections which relate to the finance
provisions under the Act indicates that there can be no such inconsistency, particularly here,
Your Honour, as I respectfully note; there is no allegation of charging for unsolicited goods. Indeed, that would be inconsistent with the whole
nature of Mr Pedlar's claim.
That then leaves paragraphs 8 and 9 of the statement of claim, the fact that his mother is
alleged to have been entitled - - -

HER HONOUR:  I think it is only paragraph 8.

Pedler(2) 53 17/6/92

MR KING:  Paragraph 8, I beg your pardon. Your Honour, I

adopt what my friend Mr Walker said about 8. In

truth there is no basis for bringing that claim in

this Court. As I understand it, and I have sought
instructions about it, it has not been claimed in

any of the current round of proceedings, either

before the local court or the supreme court, so far

as I am aware, before. It seems to be entirely

unconnected with any other matter. We would

respectfully submit the appropriate way of dealing

with that would be to strike it out on the basis

that it is not within the original jurisdiction of

the Court.

If Mr Fedler wants to bring other proceedings, then he should do so. Alternatively, we would ask

that it be remitted as indicated to Your Honour

earlier. Those are my submissions in reply.

HER HONOUR:	Thank you.
MR WALKER:	Your Honour, briefly on the Trade Practices

point and in answer to the matters raised by

Your Honour, Your Honour is correct, with respect.

Section 14A of the former New South Wales

Interpretation Act, the 1897 Act, has a familiar

form of anti-non-severability, if I can put it that

way.

HER HONOUR:  The "savings clause" I think will do.

MR WALKER:  Yes, the plenary and savings clause. They wrapped everything up in the old Act. They have

split it up in the new Act and it is now

section 31(2) of the 1987 Act. In both cases, of

course, Parliament said that that applied both fore

and aft of the passing of the Interpretation Act.

Your Honour, section 2A of the Trade Practices Act

is the provision I referred to in-chief, by reason of which of course in Bradken this Court held that

the State Crown and emanations of the State Crown

were not affected.

HER HONOUR: There is, of course, Bropho's case since then.

MR WALKER:  Yes. which we would rely, which I think is not affected Your Honour, the simple reasoning upon

by anything in Bropho, with respect, is that

whereas in the Trade Practices Act there is an

express provision for the application of the

enactment to the Crown limited to the Commonwealth

Crown, that the reasoning remains pristine, that

the State Crown was deliberately not affected.

HER HONOUR:  What was the position with St George County

Council?

Pedler(2) 54 17/6/92

MR WALKER:  The position was that the restrictive Trade

Practices Act - I am not sure whether it was 71 or

72 - was held to apply, to wit I think as a trading

corporation -

HER HONOUR:  Not being an instrumentality of the Crown?

MR WALKER:  Yes. from recollection, Your Honour, the difference is I have not got the report with me, but

that that did not have the form of provision found

in section 2A which singled out which part of the

Crown or which form of the Crown was affected or

not. So that the reasoning in Bradken, in my

submission, makes the whole 109 argument in its

entirety a futility to replead, because on the

Commonwealth side of the ledger, however the 109

argument is put, appears the Trade Practices Act

applying to the Water Board, and the Water Board is
declared to be an emanation of the Crown under, I

think, section 5.

HER HONOUR:  If the matter were repleaded, these are matters

that might be dealt with.

MR WALKER: Unfortunately, Your Honour, it would be dealt

with on an application such as this morning. In my

submission, on well-known grounds, that is classic

futility which should disincline Your Honour to

exercise any further discretion for repleading.

The whole issue in substance - the argument has now

been made clear and the argument is not going to

get any further elaboration in the sense of a novel

addition to it. It is going to be the Trade

Practices Act applying to the Water Board. If

that, as we submit, is beyond the possibility of

argument, then it is futile for it to be repleaded. Section 5 was the provision in the Water Board Act

·to which I was referring. It is deemed to be a

statutory body representing the Crown.

Your Honour, there are two questions left.

The first is the matter in 13K, of course, which

finds no reflection in the present pleading

whatever. In my submission, Your Honour should not

give any leave for anything to be pleaded in

support of an allegation that the Attorney-General

is liable for the negligence of either statutory

bodies, specified or unspecified,

instrumentalities, specified or unspecified, and in

particular, the State Parliament.

It would be, in my submission, a

constitutional step of unthinkable proportions for

Your Honour to hold in effect that it was arguable

that State Parliament and the Attorney-General, as

representing State Parliament, could be held liable

Pedler(2) 55 17/6/92

in damages to a citizen in negligence for acting

ultra vires.

HER HONOUR: That claim is not made.

MR WALKER: I am sorry, I understood

HER HONOUR:  Mr Fedler has said he is not claiming that at

all. He really just wants a declaration of

invalidity.

MR WALKER:  Thank you, Your Honour. K starts, "An Order

that the Defendant pay", and that is what troubled

my client. Lastly, Your Honour, on the question of

excise, adopting what Mr King has said about land

tax, I only add this matter: as we understand it,

this is a complaint that money has been levied,

notwithstanding water has not been received. The

legislation to which Mr King has taken you and the

provisions to which Mr Fedler has referred you in

the Water Acts show quite plainly that it is no

part of the statutory liability imposed by the New

South Wales Parliament that there be water

supplied. In my submission, there is no natural

law or otherwise which makes that unconstitutional

in any sense of that word.

For those reasons, in my submission, it would

be a futility to proceed on the basis that
something is an excise because it levies, as

Mr Fedler put it, "a tax on the sale of water, notwithstanding no water passes", and that is

indeed the gist of his complaint.	May it please
Your Honour.

HER HONOUR:  Thank you.

MR KING:· Would Your Honour just give me leave to mention

one matter which I omitted to mention, and that was

Mr Pedler's reference to leave to rely upon, in his

Act 1987, which I did not mention? Your Honour,	proposed amended case, the Water Supply Authorities	that Act does not relate to the Water Board in so
far as it supplies or has supplied services to
Mr Fedler. It relates to various other authorities
and to this authority supplying water outside the
Sydney metropolitan area.

HER HONOUR:  What do you say to that? That seems to be

right, does it not, Mr Fedler?

MR FEDLER: That does appear to be right, Your Honour.

HER HONOUR:  Very well. I can deal with this matter

briefly. By paragraph 8 of the statement of claim

endorsed on the amended writ of summons, the

plaintiff seeks to raise an issue as to entitlement

Pedler(2) 56 17/6/92

of his late mother to a rebate as an eligible

pensioner. That claim is necessarily made by the

plaintiff in his capacity-as executor of his late

mother's estate and is not one brought in his
personal capacity as a person in controversy with

the Water Board. It seems to me that that matter

is entirely severable from any matter that might

properly be brought before this Court, and I strike

out paragraph 8 and also paragraph 13H which is

entirely dependent on it.

Paragraphs 4, 5, 6, 7, 8, 9, 11 and 12 have been conceded by Mr Fedler to have nothing

whatsoever to do with the constitutional claim he
wishes to present in this Court. They will be

struck out. That will leave paragraphs 1, 2, 3 and 10. Subject to what I have got to say and relevant

to it, Mr Fedler may have leave to amend

paragraphs 1, 2, 3 and 10~

As to the relief claimed, Mr Fedler concedes

that 13A has nothing to do with the constitutional

case he wishes to present. It will be struck out.

The same is true of subparagraphs D, G, I, J and K

of the statement of claim. They will also be

struck out, leaving paragraphs B, C, F and G.

However, let me say they will not necessarily stand

in their entirety. It is clear that judgment has

been entered against Mr Fedler in respect of rates levied up until the period 23 May 1989. Any issue

he has with respect to those amounts must be

determined by the appellate procedures and cannot

be raised by way of collateral attack in original

proceedings in this Court.

_ Subject to that and on account of that

consideration, that leaves only claims with respect

to rates levied after 23 May 1989. In respect of

those, I would grant leave to Mr Fedler to plead a case strictly limited to the case that sections 31

to 33 of the Water Board Act 1987 are invalid by

reason that they impose an excise contrary to

section 90 of the Constitution and that sections 28
to 33 inclusive of the Water Board Act 1987 are

invalid for inconsistency with sections 58, 64 and

65, or any one of them, of the Trade Practices Act

of the Commonwealth.

As previously indicated, that may necessitate

further amendment of paragraphs 1 to 3, but it will
also necessitate the striking out of orders G(ii)

and (iii) of paragraph 13. So that all that is

left of the statement of claim, as I understand it,

is paragraphs 1, 2, 3, 10, 13B, which will

obviously need amendment, C, F and G(i). I strike

out paragraph E as unnecessary and not the way in

Pedler(2) 57 17/6/92

which the jurisdiction of this Court is to be

pleaded.

MR WALKER:  Your Honour, I think with respect Your Honour

may have mistaken the role of paragraph 3. My

notes show that that was also one which Mr Pedler

conceded was part of the unnecessary history from

1963 onwards.

HER HONOUR:  He did not seem to think that was unnecessary;

it was part of the history.

MR KING: Yes, I think he did.

MR WALKER:  He referred to 71 and I got lost at that point,

I am sorry.

HER HONOUR:	I think it can be amended. However, the repleading cannot be done automatically. There
must be filed and served an application to amend
annexing to it the amendments to be made and the
pleadings to be filed, and that must be filed and
served within 28 days of today's date. If not
filed and served within that time, the action will
stand dismissed.  The costs of this application
will be borne by Mr Pedler, because the application
has been substantially successful.  I will certify
that it was a case proper for the attendance of
counsel.

There is one other matter, Mr Pedler.

Assuming that you can get this matter in some sort

of order on the pleadings, it is not a case that

will stay in this Court. It will go back to be

caught up with whatever else it is that is finding

its way through the Supreme Court.

MR PEDLER:  So it would go back to the Supreme Court,

Your Honour?

HER HONOUR:  Yes. Do you understand what has happened?

MR PEDLER: Yes, Your Honour.

HER HONOUR:  Very well. The orders will be taken out in the

Registry.

AT 1.07 PM THE MATTER WAS ADJOURNED SINE DIE

Pedler(2) 58 17/6/92