Rumble v Liverpool Plains Shire Council
[2020] FCA 1043
•22 July 2020
FEDERAL COURT OF AUSTRALIA
Rumble v Liverpool Plains Shire Council [2020] FCA 1043
Appeal from: Liverpool Plains Shire Council v Rumble and Anor [2019] FCCA 2317 File number: NSD 1676 of 2019 Judge: ABRAHAM J Date of judgment: 22 July 2020 Catchwords: BANKRUPTCY – where sequestration orders made in the Federal Circuit Court over the appellants’ estate – where grounds of appeal do not point to error in the judgment below Legislation: Bankruptcy Act 1966 (Cth) ss 43, 40(1)(g), 52(1)
Federal Court of Australia Act 1976 (Cth), s 24(1)(d)
Local Government Act 1993 (NSW) ss 219, 204, 220(1), 220(2), 686
Interpretation Act 1987 (NSW) ss 22, 23
Date of hearing: 1 June 2020 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 29 Counsel for the Appellants: The Appellants appeared in person Counsel for the Respondent: Mr J.T Johnson Solicitor for the Respondent: O’Neill Partners Commercial Lawyers ORDERS
NSD 1676 of 2019 BETWEEN: ROBERT GEORGE RUMBLE
First Appellant
LEE RUMBLE
Second Appellant
AND: LIVERPOOL PLAINS SHIRE COUNCIL
Respondent
JUDGE:
ABRAHAM J
DATE OF ORDER:
22 JULY 2020
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellants are to pay the costs of the respondent to be agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
ABRAHAM J:
On 23 August 2019 sequestration orders under the Bankruptcy Act 1966 (Cth) (Bankruptcy Act) were made by the Federal Circuit Court against the estates of Mr and Ms Rumble, the appellants in these proceedings: Liverpool Plains Shire Council v Rumble and Anor [2019] FCCA 2317.
The appellants appeal that decision alleging five grounds of appeal. The appellants appeared unrepresented in this Court, as they did below, making written and oral submissions. Ms Rumble made submissions on behalf of both appellants, although Mr Rumble added an additional submission on one argument.
For the reasons below the appeal is dismissed.
Factual background
This matter has a long history which is detailed by the primary judge at [7]-[12], the accuracy of which has not been challenged. The primary judge stated (references omitted):
From 1992 Mr and Ms Rumble operated a business known as “Quirindi Auto Spares” at a property situated at 326 Loder Street Quirindi. In 2005 the property was sold to the Council. Following the sale Mr and Ms Rumble moved some of their second-hand motor vehicles from their business to their home at 69 South Street Quirindi (South Street Property). They continued to store vehicles on that property after Mr and Ms Rumble acquired a property at 73 Henry Street Quirindi from which they conducted a business under the name of “B L Cars”.
This state of affairs appears to have continued until 30 July 2009. On that day two officers of the Council attended the South Street Property and served on Mr Rumble what purported to be a notice issued under s.121(1b) of the Environmental Planning and Assessment Act 1979 (NSW) (EPP Act). The notice purported to order that Mr Rumble, as the owner of the South Street Property, cease using that property as a second-hand car yard, and also to remove all unregistered vehicles from the property. The notice alleged that the purpose for which Mr Rumble was using the South Street Property required development consent which Mr Rumble had not obtained. On 13 August 2009 two Council officers attended the South Street Property with two police officers and, in the face of protest by Mr Rumble, the officers entered the property. The officers, over a period of two days, then used tow trucks and trailers to remove vehicles, trailers, and car wrecks from the South Street Property.
Mr and Ms Rumble commenced proceedings in the District Court of New South Wales against the Council for damages for trespass. Their claim was tried before Mahony SC DCJ in May 2012. The Council conceded that the notice purportedly issued under the EPP Act was invalid, and the actions by which the two Council officers entered the South Street Property and removed the vehicles and trailers constituted a trespass. Mahony SC DCJ found that the trespass was extensive, it took place over a period of two days, and it involved numerous Council employees and sub-contractors coming onto the South Street Property to physically remove Mr and Ms Rumble’s property. His Honour awarded damages in favour of Mr and Ms Rumble which, after setting off a judgment on an uncontested cross-claim brought by the Council against Mr Rumble and Ms Rumble for unpaid rates, amounted to $11,567.58 and $24,866.85 respectively. His Honour also ordered that the Council pay the costs of Mr and Ms Rumble. His Honour later modified the costs order in a manner that is unnecessary to set out here. At the hearing before me Ms Rumble said that the Council paid the costs ordered against it to Mr and Mss Rumble’s lawyer who used the money paid to him to cover the fees Mr and Ms Rumble agreed to pay to him.
In 2013 the Council commenced a proceeding against Mr and Ms Rumble in the Land and Environment Court of New South Wales (LE Court) for orders requiring them to remove all vehicles from the South Street Property, and restraining them from using that property as “commercial premises”, “transport depots”, “vehicle body repair workshops”, “vehicle repair stations”, or as “waste or resource management facilities”, as each of these expressions were defined in the Liverpool Plains Local Environmental Plan 2011. As noted in the reasons for judgment of Biscoe J, Mr and Ms Rumble did not appear at the hearing of that matter, but they submitted material before the hearing in which they asserted two things. The first is the philosophy that they have a right to do what they want on their land provided only that it does not infringe the rights of others; and the second was that Mr and Ms Rumble are not subject to the laws of New South Wales, or the authority of the Council, or of the courts, because they have constituted their land as “The Independent Sovereign State of Australia”. Biscoe J did not accept these assertions and, on 25 July 2013, made the orders the Council sought. His Honour also ordered that Mr and Ms Rumble pay the Council’s costs of the proceeding.
On 20 November 2013 the Council filed a notice of motion with the LE Court seeking orders that Mr and Ms Rumble be punished for contempt. The contempt Council alleged was that Mr and Ms Rumble failed to comply with the order Biscoe J made on 25 July 2013 that they remove all vehicles from the South Street Property. Mr and Ms Rumble did not appear on the return of the notice of motion for contempt on 19 February 2014. Pain J decided to hear the matter ex parte on the question of whether the Council can establish a prima facie case of contempt but, if the Council does establish a prima facie case, to determine on a later occasion the seriousness of the contempt, and the consequential punishment that should be imposed. Her Honour found that the contempt of court had been proved, but decided not to make a finding of whether the contempt was wilful or contumacious, noting that her Honour would give Mr and Ms Rumble an opportunity to come before the LE Court to explain their actions, including their attempts to purge their contempt.
The balance of the notice of motion for contempt came before Pain J on 26 May 2014. Mr and Ms Rumble appeared at that hearing. Her Honour heard evidence and submissions, after which her Honour made orders convicting each of Mr and Ms Rumble of the charge of contempt as particularised in the statement of charge that accompanied the notice of motion for contempt, and imposed fines on each of Mr and Ms Rumble. Pain J also ordered that Mr and Ms Rumble pay the Council’s costs on an indemnity basis as agreed or as assessed.
The creditor’s petition by Liverpool Plains Shire Council (respondent) sought a sequestration order under s 52 of the Bankruptcy Act in relation to each of the estates of Mr and Ms Rumble. The acts of bankruptcy relied on is the failure by each of Mr and Ms Rumble to comply with the requirements of a bankruptcy notice issued against them jointly on 21 September 2018. The bankruptcy notice demands payment of $62,457.49, which is the sum of a judgment for $53,874.19 the respondent arranged to be entered in the Local Court of New South Wales on 10 August 2016 and interest of $8,583.30 that has accrued thereon. The judgment was entered in response to the respondent filing with the Local Court certificates of determination of costs that were issued in relation to orders for costs made in its favour in proceedings between the respondent and Mr and Ms Rumble.
The respondent also claimed Mr and Ms Rumble owed the amount of $121,386.57 as a result of a judgment entered in the District Court of New South Wales. That, in turn, is the sum of the amounts of costs assessed under certificates of determination of costs that were issued in relation to orders for costs made against Mr and Ms Rumble in favour of the respondent in a number of proceedings.
Mr and Ms Rumble disputed the service of the bankruptcy notice on Ms Rumble. They also relied on a number of grounds contending sequestration orders ought not to be made in relation to their estates.
The issue before the primary judge was whether the respondent has established the preconditions for the making of sequestration orders and, if so, whether any of the grounds on which Mr and Ms Rumble relied afforded a sufficient cause for not making a sequestration order.
The primary judge was satisfied that the respondent had proved the matters required in s 43 and 52(1) of the Bankruptcy Act, and that none of the matters relied on by the appellants constituted a sufficient cause for refusing to make the sequestration orders.
Grounds of appeal
In an amended notice of appeal, the appellants raise five grounds as follows (with any errors in the original):
1. The appeal is bought by the failure to review evidence that grossly affected the outcome of the judgement and orders that were handed down, under Section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) Section 44 (1) provides that: A party to a proceeding before the tribunal may appeal to the Federal Court of Australia, on a question of law from any proceeding., as Gummow J observed “the existence of a question of law is now not merely a qualifying condition to Ground the appeal but also the subject matter of the appeal itself”.
2. Corporations (NSW) act 1990 No 83
To the extent that a provision of the Corporations Regulations of New South Wales is taken because of a particular application of subsection (2) to have effect, or to have had effect, before the day of notification of the regulations referred to in that subsection, the provision does not operate so as to:
(a) affect a private person’s rights as at that day so as to disadvantage that person, or
(b) impose a liability on a private person in respect of anything done or omitted to be done before that day.
3. Legal Profession Uniform Law (NSW) Section 194 Restriction on Commencing proceedings to cover legal costs .'section 2(bii) al least 30 days after the later of the date on which the person receives an itemised bill following a request made in accordance with section 187.Section 787 request for itemised bills number 3 states that a request once made the law practice must comply with the request within 21 days after the request is made in accordance with subsection (2).
4. That the Respondent to the Court that they have the following documents to prove That they are not an “UNAWFUL “entity to the Australian people,
(a) That they have legal recognition from the people in the Australian Constitution Act 1901 done by referendum of the Australian people,
(b) That the Local Government Act 1993 has a proclamation stamp upon it.
(c) That they have legal jurisdiction to collect land rates and to make the people pay for water, I will explain these points in my final submission .
5. That the Omission made by Mr Johnson on the 5TH March be heard in evidence in the Appeal as from my understanding once stated in evidence the Case goes forward not back .,
The written submission filed by the appellants is not divided into those five grounds, and appears to be focussed on ground 2 and perhaps ground 4. During the oral submissions the appellants informed me which submission related to each ground, and each of the grounds was addressed. The respondent contended that some of the grounds were not raised below. It is difficult to ascertain precisely what was contended in the court below, although it appears to be correct that some of the contentions that were raised in this court were not raised below, at least as grounds. In those circumstances leave would be required to rely on these grounds. If leave is required, it is refused as there is no merit in the grounds.
In addition, during the appellants’ submissions a number of statements were made which were not directed to the grounds, but rather to the manner in which they perceive to have been treated over the history of the proceeding generally (which proceedings are summarised above). Those matters are not relevant to this appeal.
Nonetheless there is one matter in particular that I propose to address as it appeared to underpin much of the appellants’ complaint. As apparent from the summary of the proceeding above, the appellants succeeded in the District Court of New South Wales proceedings in relation to trespass and the removal of vehicles from their premises. The appellants repeatedly submitted they had never been compensated for that. The respondent submitted that was a reference to the compensation arising from the orders in the District Court. The respondent submitted that the evidence established that the compensation as ordered was delivered to the solicitor acting for the appellants at the time, and that there was evidence before the primary judge through communications between the solicitors then acting for the respondent, and the appellants’ solicitor that the solicitor acting for the appellants, Mr Webster, accepted those monies and the issue of the outstanding costs was resolved. It follows that the issue of whether the appellants’ solicitor passed that onto the appellants, or treated it as a credit against outstanding costs, is not a matter that the respondent is involved in. Rather it is a matter between the appellants and their former solicitor.
Ground 1
The reference to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) is irrelevant to these proceedings as this appeal is brought under s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth).
However, as became apparent during the hearing the import of this ground is an allegation that there was a failure by the primary judge to review evidence that affected the outcome of the proceeding. No aspect of the evidence or reasons is referred to in the written submission in support of that assertion. In oral submissions the appellants alleged that the fact they had not been compensated, as referred to above, was not taken into account by the primary judge. As explained above, that is not relevant to these proceedings. The appellants also complained that they tried to settle the bankruptcy notice but that the respondent would not agree. Again, that is not relevant as the respondent is not bound to accept any proposed settlement.
A reading of the reasons of the primary judge reflects that a careful consideration of the evidence and issues raised by the appellants was undertaken. Each of the appellants’ objections to the sequestration order was specifically addressed, as was the counter and cross-claims. The appellants did not point to any aspect of the reasons which they submitted was incorrect, including as to what was argued by them. That the appellants are unhappy with the result is not a basis, by itself to assert, that there was a failure to review the evidence.
Ground 2
This ground refers to the Corporations (NSW) Act 1990.
It was submitted by the appellants that the respondent is a corporation and that under the Corporations Act it must not affect a private person’s rights so as to disadvantage that person, and that this has occurred to the appellants, as they have been disadvantaged. In relation to this and other grounds the appellants also submitted that as local governments are not in the Constitution, they are not lawful, and as the Local Government Act 1993 (NSW) (Local Government Act) has no commencement date on it and has no proclamation stamp it is unlawful. Those submissions are addressed in this ground although the appellants submit that this aspect of the submission goes to all five grounds of appeal.
Although the version of the Corporations Act referred to by the appellants is not current, it has no effect on the argument made. As the respondent contended, the Corporations Act 2001 (Cth) has no application to these proceedings.
As the respondent submitted, it is constituted by the Local Government Act: s 219, in respect of the area proclaimed under s 204. The respondent is a “body politic of the State with perpetual succession and the legal capacity and powers of an individual, both in and outside the State” of New South Wales: s 220(1). It is not a body corporate (including a corporation): s 220(2). The respondent can take proceedings in relation to property of or under the control and management of the council, upon stating that it is property of the respondent: s 686.
The appellants’ repeated reference to an ABN of the respondent does not alter that it is not a corporation. The respondent submitted that the inclusion was to comply with the requirements under the A New Tax System (Australian Business Number) Act 1999 (Cth). Consequently the Corporations Act does not apply to these proceedings.
In so far as it is suggested by the appellants that the Local Government Act “does not exist at law”, the submission is incorrect. The Local Government Act was assented to on 8 June 1993. The Act as printed by the Government Printer, is admissible in any legal proceedings as evidence of the date of assent to the Act and commenced as provided for in the Local Government Act and the Interpretation Act 1987 (NSW) ss 22, 23. The date of commencement of the Local Government Act was 1 July 1993 following publication of the relevant proclamation in the Government Gazette No 73 of 1 July 1993, page 3341. There is no basis to suggest that the Local Government Act is anything other than valid. That the Constitution does not refer to local governments does not render local governments, including the respondent, unlawful.
Ground 3
The appellants did not advance any submission specifically on this ground, although it was one advanced before the primary judge.
The primary judge concluded:
Section 194 of the Legal Profession Uniform Law (NSW) does not apply to the circumstances of this case. The Judgment does not represent a remedy that has been granted in aid of an action lawyers have taken against Mr and Ms Rumble. The Judgment represents the costs to which the Council is entitled under the costs orders made in the LE Court.
That is plainly correct.
Ground 4
This appears to be a suggestion that the respondent has no power to collect rates and is related to ground 2. As the respondent submitted, the power to impose rates is conferred upon the respondent under the Local Government Act.
As the respondent correctly submitted that power is not relevant to the appeal as the underlying judgment relied upon is a matter arising from costs orders assessed following those orders being made and filed giving rise to a final judgment or order relied upon for the purpose of the issue of the bankruptcy notice the non-compliance with which gave rise to an act of bankruptcy: s 40(1)(g) Bankruptcy Act and the presentation of the creditor’s petition.
Ground 5
The meaning of this ground is unclear as the Court does not have the transcript of the proceedings. It appears to refer to a statement made in a proceedings that occurred before the final hearing of the matter by the primary judge. The respondent submitted that without the transcript it could not comment on what was said. As best as can be ascertained, at its highest, it appears that the appellants allege that the respondent made a statement at that hearing that they had trespassed, and then in the final hearing the respondent “does a backflip”. The complaint appears to be that nothing was done about that. This is not a ground of appeal such as could affect the outcome of these proceedings.
Conclusion
The appellants have not established any of the grounds of appeal and as such the appeal is dismissed, with costs.
I certify that the preceding twenty nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Abraham. Associate:
Dated: 22 July 2020
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