Robertson v Corporation of the City of Port Augusta

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
ROBERTSON & ANOR v CORPORATION OF THE CITY OF PORT AUGUSTA
[2023] SASC 41
Reasons for Decision of the Honourable Justice Stein (ex tempore)
EQUITY - EQUITABLE REMEDIES - INJUNCTIONS - INTERLOCUTORY INJUNCTIONS - GENERALLY
The applicants had not paid certain Council rates in relation to their properties and as a consequence the Council commenced action to sell their properties. The applicants applied for an interlocutory injunction to prevent the sale of their properties pending the outcome of judicial review proceedings concerning disputes with the Council.
Held, dismissing the application for injunction:
1.The applicants have not established that there is a serious issue to be tried in relation to the sale of the properties.

Uniform Civil Rules 2020 (SA) r 111; Local Government Act 1999 (SA) ss 144(1), 144(2), 144(3), 144(4), 184(1), 270(9); Fines Enforcement and Debt Recovery Act 2017 (SA), referred to.
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; Australian Broadcasting Authority v Lenah Game Meats (2001) 208 CLR 199; The Corporation of the City of Marion v Nash [2022] SASC 29; Koutlakis v City of West Torrens [2009] SASC 140; Anderson v The Council of the City of Lismore (2011) 185 LGERA 234; Market New Zealand Ltd v Icon Plastics Pty Ltd [2007] FCA 851, considered.

ROBERTSON & ANOR v CORPORATION OF THE CITY OF PORT AUGUSTA
[2023] SASC 41
Civil: Application

STEIN J: Trevor Robertson and Kendall Jones reside in Port Augusta. They have a number of complaints against the Corporation of the City of Port Augusta which I will refer to as the Council. They are involved in Magistrates Court proceedings[1] listed for trial on 27 March 2023. I will refer to that action as the Magistrates Court action. They have not paid certain rates and in consequence the Council commenced a process to sell their two properties. One property is in Miller Street, Port Augusta and the other one in Mary Mackillop Road, Port Paterson. Public auctions are to take place on Friday 24 March 2023.
[1] ELCCI-18-9327.
The applicants have commenced judicial review proceedings against the Council for review of a number of decisions. The decisions said to be relevant to the argument today were a decision said to have been made on 9 August 2022 in relation to the commencement of the process for recovery of rates and a decision on about 20 February 2023 described as an authorisation by the Council’s Chief Executive Officer (“CEO”) to sell the applicants’ properties at auction on 24 March 2023 to recover a debt currently contested in the Magistrates Court action. The applicants complain about a number of issues which I will not address today but include an asserted failure by the CEO to notify the Council about conflicts of interest arising from the CEO being the subject of complaints; a refusal to open and name a road abutting the applicants’ property on dates ranging from 2013 onwards and so on.
The judicial review application was accompanied by an interlocutory application, an affidavit of Mr Robertson and a statement of facts, issues and contentions.
The interlocutory application was endorsed under rule 111 of the Uniform Civil Rules 2020 (SA) and seeks orders including in paragraph 2, relevantly for today’s argument, an order prohibiting the Council from any sales activities on any of the applicants’ proprieties until a court of competent jurisdiction has adjudicated the debt in accordance with s 144 of the Local Government Act 1999 (SA) (“LGA”). While other orders were sought, the only order which had to be addressed as a matter of urgency was the order sought to prohibit the sale of the properties. By reason of the endorsement of the application under rule 111 of the Uniform Civil Rules, I understood the application to be an application for an interlocutory injunction to prevent the sales proceeding until the substantive complaints had been addressed in a judicial review.
The applicants’ statement of facts, issues and contentions refers to a number of provisions of the LGA. Among other things, it refers to complaints made by the applicants to the Council from 2015 to 2023. It states that the Council’s CEO commenced debt collection legal actions and threatened defamation action against the applicants. The statement of facts, issues and contentions states that the applicants have never had a lawful application for a s 270 LGA review conducted and states that the Council’s right to recover rates is suspended during an application for review if the Council does not apply s 270. The applicants further refer to various rates repayment plans which they say they adhered to until it was apparent no internal review was to be considered by the Council.
The statement of facts, issues and contentions states that on about 29 July 2022 the Council sent a letter via Janelle Scott to the applicants commencing rate recovery action being the sale of the applicants’ properties despite the Magistrates Court action, the Council not having obtained a judgment for the debt and absent a resolution of the Council. The applicants assert that on around 9 August 2022, the CEO caused the elected members to resolve to approve the sale of the applicants’ property while not reporting it was the applicants’ property, that the debt was the subject of the Magistrates Court action and no judgment had been recorded. The applicants assert they were not notified that the sale would be discussed; seven members were present, two of the seven councillors present had a conflict and the Council has a minimum quorum of six for a meeting to be lawful.
The statement of facts, issues and contentions asserts that on about 20 February 2023 the Council’s CEO notified the applicants by letter from Janelle Scott that the properties were being sold to recover the rates debt by auction on 24 March 2023. The applicants say the letter made no reference to the Magistrates Court action.
The statement of facts, issues and contentions asserts the applicants withheld their rates from the Council until such time a s 270 internal review is considered by an appropriate person without bias and that the applicants recommenced paying rates in 2016 and 2018 in expectation of internal reviews.
Affidavit filed in support of Council’s position
The Council relied on an affidavit of Mr Bubner, a solicitor from Wallmans Lawyers retained to act for the Council.
The affidavit deposes to a number of matters which I summarise as follows. While the Magistrates Court action was initially commenced by the Council seeking recovery of rates, the claim was discontinued on 14 April 2020 expressly on the basis it would not prejudice the Council’s entitlement to pursue rates recovery in the future. The order made by Magistrate Hodder on 14 April 2020 notes that the parties agree the discontinuance does not act as a judgment or bar to the Council seeking recovery at a future date.
Thereafter, Magistrate Hodder gave summary judgment in favour of the Council in relation to a number of matters addressed in a counterclaim by Mr Robertson and Ms Jones but gave them leave to re-plead in respect of two issues concerning asserted business losses as a result of the Council changing the name and lot numbering of the road on which the applicants’ property is located and asserted losses associated with issues concerning the need for an accessible toilet at the property. I have been provided with Magistrate Hodder’s reasons. The trial of the counterclaim is listed for hearing next Monday, 27 March 2023. The trial had been listed to proceed last year but was adjourned on two occasions.
The affidavit of Mr Bubner deposes to the Council retaining Scott Lawyers to act on its behalf to recover outstanding rates. The affidavit attaches documents which evidence that Scott Lawyers wrote separately to Mr Robertson and Ms Jones in relation to outstanding rates firstly on 29 July 2022 to advise that if the rates amounts were not paid in full immediately then instructions would be sought from the Council to sell the properties. On 30 September 2022, Scott Lawyers wrote separately to each applicant in respect of each of the properties serving a notice of demand seeking payment of the outstanding rates within a month and stating that if not paid, the Council may proceed to appoint a real estate agent to advertise the sale of the properties. Thereafter on 7 January 2023 Ms Jones wrote to Scott Lawyers to say the rates were lawfully withheld. On 12 January 2023, Scott Lawyers wrote separately to Mr Robertson and Ms Jones enclosing the notice of demand and noting that the Council may proceed to appoint a real estate agent to advertise the sale of the properties if payment is not received in a month. The notice of demand enclosed in each letter stated that if the recipient failed to make payment action would be taken to sell the properties. Copies of notices published in The Advertiser were enclosed. On 20 February 2023, further correspondence was sent by Scott Lawyers to each of Mr Robertson and Ms Jones in relation to each of the two properties. The letters stated that the notice period had elapsed, and the Council had advised they had engaged a real estate agent to undertake the sale process with auctions scheduled for 24 March 2023. The letters stated that the Council’s intention was to sell the property without vacant possession and informed them that the new purchaser would be entitled to evict them from the properties. The letter encouraged them to seek legal advice.
Mr Bubner’s affidavit deposes to costs which the Council will incur if the auction does not proceed which will exceed $10,000. Further costs were referenced including additional staff time and impacts on team resources which could not be quantified.
Hearing
On 20 March 2023, I made orders giving the Council until close of business on 21 March 2023 to file any affidavit material and listed the application for argument today, 22 March 2023.
I have not exhaustively addressed all arguments but I summarise the key points made during the hearing.
Applicants’ submissions
During argument, Mr Robertson made submissions supporting why he asserted that s 144 of the LGA prevails and the Council cannot use the process in s 184 of the LGA without first obtaining a Court order. He relied on the words of s 144(1) which states that if a provision of “this or another Act” provides that fees, charges, expenses or other amounts may be recovered by a council from a person, the fees, charges, expenses or other amounts are recoverable as a debt by action in a court of competent jurisdiction. He submitted that the reference to “a provision of this Act” includes s 184. He submitted that by reason of s 144(3), s 144 (2) does not apply to rates and accordingly s 144(1) did so apply. He drew a distinction between recovery from a person under s 144 and recovery for land in s 184. He referred to s 184 as providing a process where the Council cannot locate the person to whom a notice should be sent.
Mr Robertson complained that there was no decision of the Council prior to the 29 July 2022 letter and that the decision of the Council to proceed with recovery on 9 August 2022 was made by persons including those with a conflict. Mr Robertson said that the councillors present at the meeting did not know which properties/rate payers were the subject of decisions to proceed for rates recovery and had they been aware, two councillors would have been able to give consideration to conflicts of interest which were said to arise by reason of complaints made by the applicants about one and statements by another alleging abusive conduct by the applicants.
During submissions Mr Robertson acknowledged that the applicants were not saying that they did not owe the rates but rather they have defences including by reason of the Magistrates Court counterclaim.
Mr Robertson also referred to s 270 of the LGA and submitted that complaints made by them had not appropriately been addressed pursuant to s 270. He contended that s 270(9) expressly provides that the right of a Council to recover rates is not suspended by an application for the provision of some form or relief or concession with respect to the payment of those rates and it followed that because s 270 had not been followed there was such a suspension.
In support of his argument Mr Robertson also referred to the Fines Enforcement and Debt Recovery Act 2017 (SA).
Respondent’s submissions
Counsel for the Council contended that the fact of the Magistrates Court action and trial was irrelevant to the determination of the application on the basis the subject matter is separate from the subject matter of paragraph 1 of FDN 2 by reason of the matters set out in the affidavit of Mr Bubner.
Counsel contended it was a matter of coincidence that the trial is listed for next week given the prior adjournments.
Counsel relied on the fact that there is no dispute the rates have not been paid.
In addressing the application of the principles relevant to whether an interlocutory injunction ought to be granted counsel referred to the test in Australian Broadcasting Corporation v O’Neill[2] and also to the necessity for the applicant to identify the rights which are to be determined in a trial.[3]
[2] (2006) 227 CLR 57.
[3] Australian Broadcasting Authority v Lenah Game Meats (2001) 208 CLR 199 at [15].
Counsel submitted that the conditions precedent to the exercise of power under s 184 of the LGA are set out in s 184 and once those matters are established the power of sale is enlivened.[4] He referred to Koutlakis v City of West Torrens[5] in which Layton J stated that s 184 allows a council to sell land upon which rates have been levied if those rates have been in arrears for three years or more. There are several preconditions to that sale. Once complied with, a sale process by auction is provided for. Section 184(9) allows a person to prevent the sale by paying the outstanding amounts and costs incurred. Counsel submitted there was no authority to support the proposition that a judicial determination is a precondition of the exercise of the power of sale under s 184.
[4] The Corporation of the City of Marion v Nash [2022] SASC 29 at [5].
[5] [2009] SASC 140 at [37].
While not accepting any of the allegations concerning conflict, counsel submitted that the fact the councillors voting on the recovery process were unaware of the identity of the applicants in any event removed any foundation for an argument based on conflict. Further, counsel relied upon The Corporation of the City of Marion v Nash[6] in which Judge Dart referred to a decision of Anderson v The Council of the City of Lismore[7] in which Brereton J, in considering an equivalent provision of New South Wales legislation, did not accept that the act of exercising a power of sale or the decision to exercise that power would of itself ordinarily be attended by a requirement to comply with the rules of procedural fairness.
[6] [2022] SASC 29 at [15]-[16].
[7] (2011) 185 LGERA 234.
Counsel for the Council submitted that there was no prima facie case on the applicants’ material. The applicants are in arrears for more than three years, the applicants have been given the notice required by s 184, the outstanding amounts have not been paid, and the sale form and process to sale is in accordance with the provisions of s 184.
Counsel submitted that the Council will suffer disruption and additional costs and while the sale of the properties is a significant matter, and likely to be irreversible, in relation to the balance of convenience counsel urged me to take into consideration the provision of s 184(9) of the LGA which enables the sale to be prevented by payment of the outstanding rates.
Counsel for the Council also relied on delay as a discretionary reason to refuse relief in circumstances in which the applicants have known for many months about the sale and commenced these proceedings recently.
Decision
Following receipt of submissions I concluded that the applicants had not made out the basis for order 1 of the interlocutory application. I refused the orders sought in that paragraph of the application and gave brief oral reasons and provided these reasons shortly thereafter.
Test to apply
As the interlocutory application has been endorsed under rule 111 of the Uniform Civil Rules, I addressed it on the basis it was an application for an injunction.
The test I must apply is:
·Whether there is a serious issue to be tried, that is, that there is a sufficient likelihood of success of the applicants to relief at trial; and
·Whether the balance of convenience favours the granting of the injunction which requires considering whether the inconvenience or injury to the applicant would be likely to suffer if an injunction is refused outweighs the injury the respondents would suffer if an injunction was granted.[8]
It is necessary to determine whether the applicant is likely to suffer an injury for which damages are not an adequate remedy, which may be an aspect of the balance of convenience inquiry.[9]
[8] Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [19], [65].
[9] Market New Zealand Ltd v Icon Plastics Pty Ltd [2007] FCA 851 at [3] per Gordon J.
Analysis
In this case I consider the critical question in applying the Australian Broadcasting Corporation v O’Neill test is whether the applicants can make out there is a serious issue to be tried in relation to the sale of the properties in the sense that there is a sufficient likelihood of success of the applicants to relief at trial. On the basis put forward I do not consider that test can be made out for the following reasons.
Magistrates Court action
Although the Magistrates Court action was commenced by the Council for recovery of rates, the claim was discontinued preserving the Council’s ability to seek recovery of the debt. The Magistrates Court action is proceeding only on the amended counterclaim brought by the applicants to those proceedings. I accept that the claim in relation to unpaid rates is no longer the subject of the Magistrates Court action and has not been since 14 April 2020. It follows that the rates debt the basis for the sale of the properties is not the subject of the Magistrates Court action and that action does not preclude the Council proceeding with the sales of the properties. There is thus no reasonable likelihood of success on the argument that the Magistrates Court action precluded sale.
Section 144 of the LGA
The applicants complain that the debt used as the basis for the sale of the properties has not been adjudged by a court of competent jurisdiction. The applicants assert that s 144 has the effect that it applies to all debts including rates and requires the Council to obtain a court order before the Council can commence the process to sell the properties.
Section 144 of the LGA provides:
144—Recovery of amounts due to council
(1) If a provision of this or another Act provides that fees, charges, expenses or other amounts may be recovered by a council from a person, or are payable to the council by a person, the fees, charges, expenses or other amounts are recoverable as a debt by action in a court of competent jurisdiction.
(2)If a fee, charge, expense or other amount payable to a council relates to something done in respect of rateable or other property, or is payable by a person as the owner or occupier of rateable or other property within the area of the council, the council may, after giving at least 14 days notice requiring payment of the fee, charge, expense or other amount, recover the fee, charge, expense or other amount as if it were a rate declared on the property at the time of the notice requiring payment.
(3) Subsection (2) does not apply to— (a) rates, charges, interest or fines recoverable under Chapter 10; or (b) fees, charges, expenses or other amounts of a prescribed kind.
(4) Unless otherwise provided by another provision of this Act, or by another Act, or by the regulations, a fee, charge, expense or other amount recoverable under subsection (2) as a rate is not a charge on land.
However, section 184 of the LGA specifically provides for the sale of land for non-payment of rates.
184—Sale of land for non-payment of rates
(1) If an amount payable by way of rates in respect of land has been in arrears for three years or more, the council may sell the land.

Subsection 2 sets out the process the Council must follow before selling land. In essence, it provides that the Council must send a notice to the principal ratepayer at the address appearing in the assessment record stating the period for which the rates have been in arrears; stating the amount of the total liability for rates presently outstanding in relation to the land; and stating that if that amount is not paid in full within one month of service of the notice, the council intends to sell the land for non-payment of rates.
The subsections set out the requirements for the giving of notifications and for advertising if the council cannot ascertain the name and address of a person to whom a notice is to be sent.
If the outstanding amount is not paid in full within the time allowed the council may proceed to have the land sold by public auction.
The auction must be advertised on at least two separate occasions in a newspaper circulating throughout the State.
Section 184(9) provides that if, before the date of such an auction, the outstanding amount and the costs incurred by the council in proceeding under this section are paid to the council, the council must call off the auction.
Section 144 of the LGA appears in a section addressing miscellaneous matters. Counsel for the Council submitted it is an enabling provision creating a basis for recovery of the kinds of fees, charges and expenses which may be levied by a council and without which there may be an absence of a cause of action for recovery.
Section 184 is not made subject to s 144. Section 184 sets out a process which must strictly be followed to enable a sale of property to occur. It does not contain any express reference to a requirement to obtain a court order prior to the process being commenced or as part of the process. The reasoning in Koutlakis supports the Council’s position as does a plain reading of the provision.
I do not consider the applicants are able to show a sufficient likelihood of success to relief at trial given s 184 contains no requirement for the Council to proceed to obtain a judgment or Court order before undertaking the process set out in s 184 of the Act.
Section 270
Section 270 applies to review of internal decisions of a council and in essence provides for a council to develop and maintain policies, practices and procedures for dealing with complaints (among other things). The applicants assert they have withheld payment of rates because of the disputes with the Council and further that rates are suspended pending a s 270 review. I can see no basis in the LGA for either argument. I do not accept that s 270(9) can be interpreted in the way put by the applicants. It supports the position that rates must be paid and that obligation is not suspended pending any application for relief. Accordingly, I do not consider the s 270 argument to have a sufficient likelihood of success at trial.
Fines Enforcement and Debt Recovery Act
The applicants relied on the Fines Enforcement and Debt Recovery Act. That Act enables a public authority to notify the Chief Recovery Officer of a debt owed and allow the Chief Recovery Officer to make a civil debt determination which in turn triggers various requirements. That civil debt determination can be challenged by the alleged debtor. The Council has not sought a civil debt determination by the Chief Recovery Office and in my view that Act is not relevant to the issues for determination today.
Balance of convenience
By reason of my conclusion on the sufficient likelihood of success, it is not strictly necessary for me to consider the balance of convenience. Were it necessary to decide where the balance of convenience lies, I would have determined it in favour of the applicants. I accept the Council would incur wasted expenditure if the auctions were to be cancelled and I accept that the applicants can prevent the sale by payment of the rates which they do not dispute are owing. Nevertheless, the sale of the applicants’ properties would result in the loss of their properties, would not be reversible and a good case could be made that damages would not be an adequate remedy. The prejudice to the Council by reason of the wasted expenditure could have been accommodated by an order for damages if that became appropriate. However, I note the usual undertaking as to damages which would address those potential losses was not proffered and would have needed to be given.
I make a number of additional observations. The decision to commence the process for rate recovery for the sale of land was notified to the applicants on about 30 September 2022 by letter and the decision to proceed to sell the land by auction was notified on 20 February 2023. The judicial review proceedings and interlocutory application were filed recently. In relation to the injunction application, the delay was not explained. Had it been necessary to consider the question of delay, I consider the delay would have been sufficient to justify the refusal of the relief sought given the length of time the applicants have been aware of the process and the fact the applicant do not dispute that the rates remain unpaid.
While there was no sufficient admissible evidence before me in relation to the assertions made concerning the meeting on 9 August 2022, I accept the Council’s position that the assertions could not in any event provide a foundation for the relief sought. The applicants have asserted there was a failure to accord procedural fairness because they were not heard at the meeting at which the sale decision was made. I respectfully adopt the position referred to in Nash relying on Anderson v The Council of the City of Lismore. It follows that the Council was not obliged to accord that opportunity. Section 184 sets out the specific requirements which are preconditions to sale. There is evidence that those requirements have been complied with and the applicants have indicated that they received the notices and the affidavit of Mr Bubner exhibits correspondence demonstrating that the applicants were sent multiple sets of correspondence and notices of demand.
The applicants accordingly have not established a serious question to be tried in accordance with the test in Australian Broadcasting Corporation v O’Neill to justify the grant of an injunction to prevent the sale of the properties.
I encouraged the applicants to avoid the sale process by the payment of rates and encouraged a discussion about a payment plan, if the Council were willing to entertain one.

[2023] SASC 41

22 March 2023