Scopacasa v City of Charles Sturt - [2018] SADC 31

District Court of South Australia
(Civil: Appeal Against a Master's Decision)
SCOPACASA v CITY OF CHARLES STURT
[2018] SADC 31
Judgment of His Honour Judge Slattery (ex tempore)
20 March 2018
CONSTITUTIONAL LAW - OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION - STATE CONSTITUTIONS, POWERS AND LAWS
LOCAL GOVERNMENT - POWERS, FUNCTIONS AND DUTIES OF COUNCILS GENERALLY - POWERS GENERALLY
REAL PROPERTY - RATING OF LAND - RATES UNDER LOCAL GOVERNMENT LEGISLATION - COLLECTION OF RATES
Application for a minor civil review. The Magistrate dismissed an application to set aside a default judgement in relation to a claim for unpaid rates and fines pursuant to section 181 of the Local Government Act 1999 brought by the respondent. The Magistrate found that the applicant did not have an arguable defence.
The issue on review was whether the applicant had an arguable defence. The applicant claimed that the respondent had no lawful claim, that the respondent has no standing, that the Magistrate’s Court has no jurisdiction to hear and determine any claim, that the Parliament of South Australia has no jurisdiction to establish courts or enact legislation, and that the establishment of the government of South Australia by the Parliament of Great Britain is a fiction and illegal.
Held:
1. The Registrar was entitled to sign judgement against the applicant.
2. The respondent has a statutory right to levy rates and to collect them under the Local Government Act 1999 (SA).
3. The respondent has standing.
4. The Magistrate’s Court has jurisdiction to hear and determine any matter within its jurisdiction. The claim before the Magistrate’s Court against the appellant brought by the respondent was within its jurisdiction.
5. The Parliament of the State of South Australia has lawful jurisdiction to enact laws, including for the establishment of courts.
7. The applicant had no arguable defence to the claim brought by the respondent in the Magistrates Court.
The application for review is dismissed. Costs are awareded to the respondent in the amount of $1200.
Australia Acts (Request) Act 1985 (SA) sch 1, s 2; Australia Constitution Act 1900 (Cth) s 109; Australian Constitutions Act 1850 (UK) 13 & 14 (Vic) c 59 s 14; Constitution Act 1934 (SA) ss 5, 64A; District Court Act 1991 (SA) ss 8, 42, 42G, 42H; District Court Civil Rules 2006 (SA) 263, 264, and 279A; Local Government Act 1999 (SA) ss 35, 36 146, 147, 150, 178, 180, 181, 292; Magistrates Court Act 1991 (SA) ss 38(6)-(7); Magistrates Court (Civil) Rules 2013 (SA) rr 2(1), 60, 87; Service and Execution of Process Act 1992 (Cth); South Australia Act 1834 (UK) 4 & 5 Will IV, c 95, referred to.
Grace Bible Church v Reedman (1984) 36 SASR 376; Honner v Yorke Peninsula Council (No 2) [2015] SADC 153; Mandeville V Better Lending Pty Ltd & Anor [2016] SADC 146, applied.

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - JUDICIAL REVIEW

SCOPACASA v CITY OF CHARLES STURT
[2018] SADC 31

The City of Charles Sturt, the respondent to this application, commenced a minor civil action in the Magistrates Court of South Australia (Civil Division) on 20 July 2017. It named as the defendant Italo Scopacasa, who is the applicant for this review. The address for Mr Scopacasa on its proceedings was his home address at Croydon Park, SA 5088. On all of the information before me there is no challenge to the fact that Mr Scopacasa is or is one of the registered proprietors of that property. Mr Scopacasa has been personally sued.
The particulars of claim on the minor civil action read as follows.
Particulars: the plaintiff's claim is against the defendant/s for the sum of $1,688.35 being for RATES & FINES dated up to and including 19 Jul 2017, assessment number 1076751, pursuant to Section 181 of the Local Government Act 1999. The plaintiff further claims interest and the costs of the actions. Particulars whereof have been rendered.
On the second page of the document there is a note to the defendant. It says that:
If you have a defence or counterclaim, you must, within 21 days from service of this claim, go to the nearest court and file a defence and/or counterclaim. If you do nothing, the plaintiff may get judgment against you. If you consent to judgment, please sign and return the form to the Trial Court (address above).
The court records disclose that there was an attempt at personal service upon Mr Scopacasa.
Ricky Alan Wilson has sworn an affidavit dated 16 August 2017 to the effect that he attempted to serve a true copy of the minor civil action claim issued in the proceedings and a form 17 under the Service and Execution of Process Act 1992 (Commonwealth) upon the within named debtor Italo Scopacasa at his home address at Croydon Park on 21 July 2017 at 12.08 p.m. Mr Wilson deposes that he was unable to effect service of the summons and documents because no one was at home. He deposes that he was unable to establish a new address or the whereabouts of the debtor.
There is a second affidavit of proof of service on the court file. It is dated 16 August 2017. In that affidavit Lyndall Jane Gibbons, a licenced process server, deposes on oath that on 24 July 2017 she did duly serve the named defendant Italo Scopacasa with a minor civil action claim issued in the proceedings in a form 17 under the Service and Execution of Process Act 1992 (Commonwealth) by sending it by prepaid post addressed to Mr Scopacasa at his home address at Croydon Park.
There was no response to the document sent by ordinary surface mail on 24 July 2017. There has been no challenge to the capacity of the respondent to serve such a document by post under the Rules of Court.
On 25 August 2017 the Council applied for judgment (in the absence of any response from Mr Scopacasa to the summons) for the full amount plus costs and expenses of the issue fee, the service fee and any solicitor’s fee involved. The total amount claimed was $2016.35. The Council then asked for an investigation summons to be issued against Mr Scopacasa and that application was served upon Mr Scopacasa at his home address on 27 September 2017. This is the same address at which the first personal service was attempted and the address to which the correspondence that is the service by mail was attempted.
By an interlocutory application dated 9 November 2017 Mr Scopacasa as applicant made application for the judgment to be set aside. In an affidavit in support sworn 24 October 2017 Mr Scopacasa deposed that he had received the investigation summons listed for hearing on 26 October 2017, that he did not receive any summons from anyone, he has not been afforded an opportunity to determine the nature of the claim against him, he is not indebted to the plaintiff in any sum whatsoever and seeks an order that the judgment be set aside.
He later filed some written submissions. They identify his challenges to the Local Government Act, the Constitution of South Australia and the South Australian Colonisation Act 1834. The submissions assert that the City of Charles Sturt had no vested or original power to levy landowners with any fees, levies or rates and that that the Council needs to establish that it has a legitimate and lawful right to have standing to levy fees to the him in any way whatsoever. He alleges that the burden of proof falls upon the Council.
Mr Scopacasa also filed a draft defence in the same terms. This was annexed to an affidavit of 11 December 2017. The particulars of the defence pleads first that as he has not received any claim from the plaintiff, then the defendant is unable to plead to any matter raised in the plaintiff's action.
Secondly, Mr Scopacasa submits that the Magistrates Court of South Australia, as a judicial institution, would normally have jurisdiction to hear matters of this type, however the Court itself is structured from legislation which itself is illegitimate, unlawful and lacking in authority and/or sovereignty.
Thirdly, Mr Scopacasa pleads, in his draft defence, that the plaintiff Council has no lawful or legal standing despite the existence of the Local Government Act 1999, the legitimacy of which is denied, to bring any action against the defendant whatsoever.
In reference to these written submissions filed in the Court, Mr Scopacasa openly admitted to me today that he does not understand any of these outlines of written argument he has filed, he does not understand the nature of the defences which he seeks to raise and he does not understand the basis upon which he would seek to contest this action.
The matter was heard before Magistrate Kennewell on 14 December 2017. Her Honour made the following orders on that day:
1. I dismiss the application to set aside the judgment on the basis that the defendant does not have an arguable defence.
2. Plaintiff to have further award of costs in the sum of $120, total costs $180.
Mr Scopacasa then prepared and filed in the District Court a document called a notice of appeal. He had attempted to file it in the Supreme Court, however, the court refused to accept the document and the matter was referred to the District Court of South Australia for a minor civil review. There has been no change to the grounds of appeal that are set out in the document that was first lodged at the Supreme Court of South Australia.
Today I am conducting a minor civil review. I do so pursuant to the power vested in me under s 38 of the Magistrates Court Act 1991 (SA) (the MCA). I am given the power under s 38(6) MCA, to review a matter where a party is dissatisfied with a result in a minor civil matter in the Magistrates Court.
I am able to inform myself as I think fit and I am not bound by the rules of evidence. I may, if I think fit, rehear evidence taken before the Magistrates Court and in determining the matter, I may affirm the judgment of the Magistrates Court or I may rescind the judgment of the Magistrate and substitute a judgment of the Court that I consider appropriate.
If a review arises from a default judgment or a summary judgment, I may rescind that judgment and substitute a judgment that I consider appropriate or remit the matter for further hearing. This is a default judgment and so those further powers under s 38(7)(d)(iii) MCA apply.
In hearing and determining this review, I must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms. Also in hearing and disposing of this matter I am mindful of the content of the District Court Civil Rules 2006 (6DCR) 279A which is the relevant applicable District Court rule. I have taken all of those matters into account.
Before turning to the grounds of appeal. I bear in mind that because this matter arises out of a default judgment, the burden upon the person seeking to set aside the judgment and have the merits of the claim heard and determined in the court is much lower. The burden upon such an applicant is, in part, merely to show that he has an arguable defence and in my opinion that is a very low threshold test to satisfy. That is the approach that I will use in my consideration of that part of this application.
Under Magistrates Court Rule (MCCR) 60 where a party has been served with an action and does not file a defence within 21 days or any other period fixed by the court, the other party, on proof to the registrar of such service, may sign judgment against the party in default by filing a form 18. The Judgment that has been obtained by the plaintiff Council in the action was obtained under rule 60. Under that rule it is necessary for the registrar to be satisfied of proof of service.
I have identified the two affidavits filed in support of the question of service by the plaintiff. The first was the affidavit of attempted service and the second was the affidavit in relation to service by mail.
Based on the content of those documents, there being no application to cross examine either deponent on the affidavit, and having regard to the fact that the investigation summons was served personally upon Mr Scopacasa at the same address to which the letter of service was sent, it was appropriate for the registrar to register a judgment against the party in default. I would reject any contention to the opposite effect.
I also consider that the entry of the judgment in those circumstances was the exercise of judicial power.[1]
[1]Mandeville v Better Lending Pty Ltd & Anor [2016] SADC 146.
An application to set aside a judgment may be brought pursuant to MCCR 87. Under that rule, the Magistrates Court may set aside or vary a judgment (not being a final judgment). The term final judgment is defined in MCCR 2(1) to mean:
Any judgment made with the consent of the parties, given at the conclusion of a contested hearing, or made in terms of the acceptance of either an offer to consent to judgment or payment of money into court or a summary judgment. A default judgment is not a final judgment.
It is not possible on an interlocutory basis therefore to set aside a final judgment.
The Magistrates Court therefore had power to set aside this default judgment but it could not do so unless the party seeking to set it aside has established at least two things. First, that he had an arguable defence on the merits. Second, that he had a reasonable excuse for not having complied with the rules or an order of the court or any time limit fixed by the rules or orders of the court in respect of the action or proceeding (s 87(2)(a) and (b) MCA).
I am unable to identify whether the learned magistrate considered s 87(2)(b) MCA in reaching her decision. My reading of the court file indicates that the learned Magistrate focused upon s 87(2)(a) and whether Mr Scopacasa had an arguable case on the merits. This is the type of case which I referred to earlier as having a very low threshold of proof.
If it was necessary for me to decide I would not accept that any credible basis had been put forward by Mr Scopacasa that he was not served with the relevant summons and court documents. In turn, I would not accept that he has identified any reasonable excuse for not having complied with the requirements of the rules to file answering material. My impression is that he has contumeliously disregarded the documents served upon him. However I do not need to reach any final conclusion about that matter.
What is necessary however is that both of the grounds under s 87(2) must be satisfied in order for an interlocutory judgment of this nature (by default) to be set aside.
The grounds of which there are five on the notice of application are an extension of the grounds that were referred to by Mr Scopacasa in his application to set aside the default judgment. As I earlier indicated they fell into three principal categories. The first is that he was not indebted to the Council. The second was that the Council had no power to levy rates, and that the State of South Australia had no jurisdiction to create the Council or to empower the Council to levy rates and collect them. Finally he said that he was not served.
For reasons which I set out below, I am satisfied that Mr Scopacasa has no arguable case on the merits of this matter. Before doing so, I think it is necessary again to refer to the limitations of the jurisdiction that I exercise which is apparent from the wording in s 8 of the District Court Act.[2] That section prescribes the civil jurisdiction of the District Court. This court has the same civil jurisdiction both at law and in equity as the Supreme Court at first instance. There are exceptions, the relevant one being in s 8(1)(b) that:
The court has no supervisory jurisdiction except as expressly conferred by statute with respect to inferior courts or tribunals, or with respect to administrative acts, and has no jurisdiction to grant relief in the nature of a prerogative writ.
[2] Mandeville v Better Lending Pty Ltd & Anor [2016] SADC 146.
I refer in particular to the reference in s 8(1)(b) that this court has the jurisdiction conferred by statute.
The jurisdiction that I am exercising here is conferred by s 38 of the Magistrates Court Act. I have earlier set out the provisions of that Act. For the avoidance of any doubt that is the jurisdiction which I am exercising in providing these reasons and announcing my judgment.
I turn then to the grounds of the application for review. The first ground raised by Mr Scopacasa is that the Council has no lawful claim against him. As I have said there is no challenge to the fact that Mr Scopacasa is the registered proprietor of the rateable property. Of course the fact that he is the registered proprietor of the property is determined conclusively by the operation of the Real Property Act. That is a glaring inconsistency with all of the arguments that are brought to this Court today. If it were otherwise Mr Scopacasa would be making a challenge to his ownership of his own property. That would be both an unusual and strange result but it is the ultimate consequence of the arguments he wishes to put before the court today. I reject this ground of review for those reasons and for the reasons below.
Section 5 of the Constitution Act 1934 relevantly provides:
The Legislative Council and House of Assembly shall have and exercise all the powers and functions formerly exercised by the Legislative Council constituted pursuant to section 7 of the Act of the Imperial Parliament, 13 and 14 Victoria, Chapter 59, entitled "An Act for the better Government of Her Majesty's Australian Colonies".
That Imperial Act in s 5 is called the Australian Constitutions Act 1850. Section 14 provides:
That the governors of the colonies of South Australia, with the advice and consent of the legislative councils to be established in the said colonies under this Act, shall have authority to make laws for the peace, welfare and good government of those colonies.
Section 64A of the Constitution Act 1934 guarantees the continuance of local government in the State of South Australia. It reads as follows:
64A—Constitutional guarantee of continuance of local government in this State
(1) There shall continue to be a system of local government in this State under which elected local governing bodies are constituted with such powers as the Parliament considers necessary for the better government of those areas of the State that are from time to time subject to that system of local government.
(2) The manner in which local governing bodies are constituted, and the nature and extent of their powers, functions, duties and responsibilities shall be determined by or under Acts of the Parliament from time to time in force.
(3) No Bill by virtue of which this State would cease to have a system of local government that conforms with subsection (1) of this section shall be presented to the Governor for assent unless the Bill has been passed by an absolute majority of the members of each House of Parliament.
I emphasise that under sub-s (1) there shall continue to be a system of local government in South Australia under which elected local government bodies are constituted with such powers as the Parliament considers necessary for the better government of those areas of the State that are from time to time subject to that system of local government. The power under which the constitutional guarantee of the continuance of local government is part of the exercise of legislative power for the peace, welfare and good government of South Australia.
These questions have been considered on a number of occasions in decisions of the Supreme Court and the correct approach is summarised by the learned author, the late Bradley Selway QC, in his text The Constitution of South Australia (Federation Press, 1997) at p 63, ch 5.1. The learned author says:
The Governor and the Two Houses of Parliament together have power to legislate for the “peace, welfare and good government” of the State of South Australia.
Subject to the limitations discussed below, this power is a plenary power the same as that exercised by the United Kingdom Parliament. It entitles the parliament to legislate on all matters whatever including the alteration of the State Constitution (citations omitted).

These considerations were discussed by Zelling J and Millhouse J in their Honours’ decision in Grace Bible Church v Reedman (1984) 36 SASR 376 at 383-384 as follows:
Mr. Shelley's last point was that a law which impinges upon the inalienable right of freedom of religion and religious instruction is outside the power of the State to legislate for the peace, order and good government of South Australia. The plenitude of power enjoyed by the Parliament of a colony, or now of a State, was discussed many years ago in a trinity of cases which are always referred to on this topic: The Queen v. Burah; Hodge v. The Queen and Powell v. The Apollo Candle Company. Those cases show conclusively that the powers of the Parliament of a State are the same as those of the Imperial Parliament, except for constraints of extraterritoriality, and in Australia for such constraints as may arise by reference to s. 109 of the Commonwealth Constitution or any other constitutional prohibition applying to the Parliaments of the States. I cannot see that this State either inherited, or has ever created, an inalienable right of religious freedom of education. Nor if it had, that such a right could not be invaded by an Act of the Parliament of this State (footnotes omitted).
I refer in particular their Honours’ reference to the right as created under a State statute may be “invaded by an Act of Parliament or the State” such as for example the rating principles that are applicable to local government which may have been accepted and form part of the inherited law of the State of South Australia. These may be “invaded” by an Act of Parliament of the State, such that they may be varied from time to time. The status of that plenary power as referred to by the learned author and as explained by Zelling J in his Honour's judgment in Reedman is reinforced in the Australia Acts (Request) Act 1985, Schedule 1. Under s 2 of Schedule 1 of that Act there is a declaration that the legislative powers of the Parliaments of each State shall include full power to make laws for the peace, welfare and good government of the State and it is further declared and enacted that the legislative powers of the Parliament of each State include all legislative powers that the Parliament of the United Kingdom may have exercised before the commencement of the Act. These are the same plenary powers that the learned author referred to in the text The Constitution of South Australia.
It follows, having regard to the content of part 2A of the Constitution Act and in particular s 64A, there is a statutory recognition of the existence of local government in South Australia and therefore the inclusion under those powers to make laws (for the peace, welfare and good government of the state) in respect of local government.
That being so, it becomes necessary to refer then to the provisions of the Local Government Act (LGA) under which rates may be levied. It is first necessary to identify some preliminary provisions within the LGA that bear upon this discussion. Under s 35 of the LGA, a council is a body corporate with perpetual succession and a common seal. Under s 36 LGA a council has the legal capacity of a natural person and may enter into any kind of contract or arrangement, may sue and be sued, and has the power and capacities conferred by or under this or another Act. It also has the power to do anything necessary, expedient or incidental to performing or discharging its functions or duties or to achieving its objectives.
Chapter 10 of the LGA prescribes the rates and charges that may be imposed upon landowners. Section 146 LGA prescribes the rates and charges that a council may impose on land within its area. Section 147 LGA prescribes that all land within the area of a council is rateable except for land within a specific exemption. Those specific exemptions are set out in the following subparagraphs of s 147 LGA and I am satisfied that none of the exemptions apply.
Therefore, ss 146 and 147 LGA read together empower a council to impose rates in respect of land within its area. There is no valid challenge to the existence of the council or the existence of the land or the area of the council. The challenges of Mr Scopacasa are more fundamental than that.
The general principles of rating are set out in s 150 LGA and, in particular, the principles that guide rating include that rating is a system of taxation for local government purposes, that rating should take into account such strategies as to avoid or narrow or unreasonably restrict criteria so that rates do not become too onerous and that the council must take into account the financial effects of the decisions it takes on future generations.
I turn then to liability for rates. Under s 178(1) LGA the owner of the land is the principal ratepayer in respect of the land. There are exemptions which are set out in s 178(2) which are not relevant to this discussion. Under s 180 LGA, the council must serve a rates notice. There is no challenge before me to the service of the rates notice.
Under s 181 LGA, the general principles about payment of rates are prescribed. Rates will fall due in four equal or approximately equal instalments, payable in the months of September, December, March and June of the financial year for which the rates are declared. It is for the council to determine the date on which the instalment falls due. If a council declares a general rate for a particular financial year after 31 August, the council may adjust the months in which the instalment is paid. Rates may be paid in advance and a council may send rates notices to a principal ratepayer, showing the assessment record in respect of the land, setting out the amount of the instalment and the date falling due. If an instalment of rates is not paid, then it will be regarded as being in arrears and a fine of 2 per cent may be payable.
I consider that under the operation of the LGA, there is a statutory right to levy rates and to collect them including by enforcement proceedings. I find that there is no merit in ground 1 of the application for review for these reasons.
Ground 2 of the application for review challenges the status of the respondent as having no standing before any court to bring any claim. I have earlier referred in these reasons to the operation of s 64A of Constitution Act and that the LGA falls within the aegis of a law recognised under the Australia Acts (Request) Act 1985 Schedule 1, s 2 for the peace, welfare and good government of the State of South Australia. I would reject any contention to the opposite.
However, it should be stated as well that under s 292 LGA it is not necessary in any legal proceedings for the council to prove its existence or constitution. It is not necessary also that the council prove the appointment of the officer of a council or the appointment of an authorised person. It is not necessary for the council to prove its own existence or its own constitution.
I have also earlier referred to s 36 LGA. That provision sets out the general powers and capacity of the council as having the same legal capacity as a natural person and having the powers and capacities conferred by the Act and to do anything necessary, expedient or incidental, to the performing or discharging those functions. In my view, the Council plainly has standing and I reject ground 2 of the application for review.
Ground 3 appears to suggest that the Magistrates Court has no jurisdiction to hear and determine any claim whatsoever. This is a most unusual ground. It might usually be necessary for me to refer that ground to the Attorney-General but I think it is not necessary in light of the circumstances of this matter. The powers of the Magistrates Court are set out in the Magistrates Court Act 1991 itself. This is a law made by the Parliament of the State of South Australia for the peace, welfare and good government of the State. It is, therefore, plainly authorised and this ground needs no further consideration.
The jurisdiction of the Magistrates Court is set out in Part 2 Division 3 of the MCA and it is not necessary for me here to reiterate the powers of the Magistrates Court. Under that part, a minor civil action is defined as being a claim for less than or equal to $12 000. I refer to the part generally. The claim made by the Council is quite obviously within that jurisdiction and the challenge made by Mr Scopacasa is plainly not a challenge to the validity of the rate.
I am satisfied that there can be no challenge to the existence of the Magistrates Court, there can be no challenge to its jurisdiction to hear and determine any matter within its jurisdiction and I am satisfied that the claim before the Magistrates Court against Mr Scopacasa made by the Council was within its jurisdiction. I therefore reject ground 3 of the application for review.
Ground 4 of the grounds of review suggests that the body known as the Parliament of the State of South Australia has no lawful jurisdiction whatever to establish courts, including the Magistrates Court, or to pass any legislation including the LGA within the geographical region commonly known as the State of South Australia. The written case delivered to me today by Mr Scopacasa appears to be a challenge to the status of the South Australia Act 1834 (4 & 5 Will IV c 95). This is because that Act proceeded on the basis of the legal term “terra nullius”. It described the area of the State of South Australia as having been prescribed according to latitude and longitude and north of the Southern Ocean and as being waste and unoccupied lands. This, Mr Scopacasa suggests, perpetrated a fraud and was therefore a fraudulent proposition. This submission appears to overlook that this challenge ultimately is to the lawmaking function of the State Parliament of South Australia. I have already referred to Part 2A of the Constitution Act and the content of s 64A. There is no submission for example that s 64A of the Constitution Act or any law made thereunder in relation to local government contravenes any exclusive jurisdiction in the Federal Parliament preserved under s 109 of the Australian Constitution.
I am satisfied that laws made for the establishment of courts are plainly within the power of the South Australian Parliament under the Constitution Act and so I reject any suggestion that there is any absence of power in the Parliament or that there is any absence of validity of, for example, the MCA or the MCCR. I further reject any suggestion for the same reasons that an act of Parliament such as the LGA is without power. Within Australian Federal arrangements the Australian Constitution specifically recognises the actual existence of the States and the continued capacity of States under their constitutions to make laws for the peace, welfare and good government of those States. It follows that the parliament of the State of South Australia had lawful jurisdiction to make the laws that it did. I find that the contention in ground 4 of the grounds of appeal is wrong and without any merit. I would dismiss it.
Ground 5 of the grounds asserts that the establishment of what is commonly known as the government of South Australia by both the parliament of Great Britain and the subsequently the various bodies holding themselves out as legitimate government over the lands known as South Australia is a fiction and illegal. For the same reasons that I have identified in ground 4, I consider that this ground is misconceived. At Federation in 1901 the States were permitted under the Australian system of Federalism to continue to make laws to govern those States. The laws in relation to the government of each State were recognised specifically under Schedule 1 s 2 of the Australia Acts (Request) Act 1985. Those legislative powers of the Parliament of each state included all legislative powers that the Parliament of the United Kingdom might have exercised before the commencement of those Acts for the peace, welfare and good government of those States. That position pertained to the State of South Australia. Therefore the relevant powers in relation to local government are contained within the Constitution Act as I have earlier set out. In particular, s 64A of the Constitution Act specifically recognises the status of the system of local government in the State of South Australia. The ground of appeal fails.
I therefore reject each of the grounds of review.
In this matter the Council, having succeeded in responding to the application for review, seeks an order for costs. This matter was raised by Council within its written submissions. At para 49.2 of the written submissions reference is made to rule 6DCR 279A(10)(g) which confers a discretion on this Court to make an order for the costs of a review. I agree that the costs regime applicable to proceedings in this court is determined according to the division of the court in which the proceedings are heard (Honner v Yorke Peninsula Council (No 2) [2015] SADC 153). I also agree that the Magistrates Court Act 1991 and the District Court Act 1991 are silent about the division of the court in which minor civil reviews are to be conducted. Section 42 of the District Court Act provides for costs in the Civil Division. Although I am sitting in the Civil Division of the Court, I am sitting as a judge in a minor civil review pursuant to s 38 of the Magistrates Court Act, and I refer to my earlier discussion about that topic. I also refer to s 42G and 42H of the District Court Act. Both of those provisions make some allowance for costs on particular bases in respect of appeals in the Administrative and Disciplinary Division. I am aware of the differences of opinion about the operation and applicability of s 42G and s 42H to minor civil reviews. In my view I do not need to resolve the differences of view. That is because a specific reference and provision has been made within the rules that apply to review proceedings, namely rule 6DCR 279A. That rule allows me to exercise a power in relation to costs; I may make any order that I see fit in relation to costs.
The application for costs in this matter is made upon a particular basis: by letter of 21 November 2017 the solicitors for the Council advised Mr Scopacasa of the absence of merit of his purported defence. Ms Sunners has given evidence before me today that a copy of that letter was sent by the Council to Mr Scopacasa but also a copy of that same letter was delivered to Mr Scopacasa soon after 26 October 2017. A review of the solicitor's letter of 21 November 2017 indicates that the position was expressed very early to Mr Scopacasa that his proposed defence has no merit. I am mindful that the learned Magistrate made an order for costs against Mr Scopacasa which largely reflects the sentiments expressed in that letter of 21 November 2017. That letter also sits in the background of the application that is made before me.
On 14 March 2018, Mr Scopacasa was sent by registered post from the solicitors for the Council, the written submissions which Council sought to read in support of its resistance to the application by Mr Scopacasa. In paras 49 and 50 of those submissions there is developed further submissions in relation to costs. In particular, at para 50 the Council suggested that:
The Appellant has continued to agitate this matter with arguments that are without substance or legal basis (and this is notwithstanding that the Appellant has been notified by the Council in writing of the correct legal position and has had opportunity to seek legal advice) and has unnecessarily occupied the Council’s and this Honourable Court’s time with an application for review that has no prosects of success and may even be considered to be frivolous if not vexatious.
At para 54 the Council seeks an award of costs. The Council informs me that its costs claim is in the amount of $1500.
I consider that I have an unfettered discretion in relation to costs by operation of rule 6DCR 279A(10)(g). That unfettered discretion may be informed by other considerations that may have been taken into account in the approach to costs in other circumstances. Thus, for example, if I formed the view that the arguments put by Mr Scopacasa were without substance or legal basis and ultimately were frivolous if not vexatious, then those authorities which may inform the discretion on costs in similar circumstances under the general discretion on costs, may have some application. It is not necessary for me here to set out all of those authorities; they are well-known and do not require rehearsal by me here.
An important feature here is that when the matter opened today and I invited Mr Scopacasa to make his submissions, he handed to me a document entitled “Written Case of the Appellant”. Mr Scopacasa could not read this document; he informs me that he suffers from glaucoma. I asked him questions about some of the aspects of the document and he was unable to answer any of my questions. He did not comprehend the propositions he was making, he had no educational or other background to understand them and he was willing to persist with them, having been told at least twice that they are entirely without merit. This removes the matter into the slightly unusual category where the review is sought by a person who does not understand the propositions he is putting, is not able to speak to them, is not able to read them and is certainly not able to articulate any case based upon them. I asked Mr Scopacasa who had drawn the document and he would not tell me; that is a matter for him. I asked him whether it had been drawn by a lawyer or a former lawyer, he said that it had. He has not identified the drafter of the document. The arguments contained within it are without any substance or any legal basis and are in nature frivolous, if not vexatious. It is on that specific and confined basis that I would exercise my discretion in this matter to award costs to the Council. Ms Sunners for the Council has asked that those costs reflect the need for the Council to instruct solicitors and to seek advice in relation to the matters before this Court. I consider that is a reasonable proposition. This is because of the quite specific and detailed nature of the attack upon the constitutionality of the Council, the constitutionality of the Government of South Australia and the Federal system in which the Government of South Australia operates. It is not reasonable to accept that a Council in those circumstances would have relied upon its own officers to deal with the matter; I think it was necessary to seek advice from solicitors. In those circumstances I would accede to the application for costs. It is my invariable practice that having regard to the discretion vested in me under 6DCR 263 and 264, I may make an award of costs in my discretion without the need for the expense to be incurred in the taxation of costs. I asked Ms Sunners what amount of costs she sought and she suggested the amount of $1500. Mr Scopacasa rejected that contention. I accept Mr Scopacasa's submissions in that regard. I allow costs at $1200.
The position therefore is that the judgment as pronounced by the learned Magistrate remains, as does the costs order. I dismiss the application for review, I make an order for costs pursuant to 6DCR 279A(10)(g) in favour of the respondent Council in the amount of $1200. These costs are to be paid by Mr Scopacasa forthwith.