Shoalhaven City Council v Ellis
[2012] NSWLEC 189
•10 August 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: Shoalhaven City Council v Ellis [2012] NSWLEC 189 Hearing dates: 10 August 2012 Decision date: 10 August 2012 Jurisdiction: Class 4 Before: Biscoe J Decision: In each matter: (1) The respondent is to permit the experts engaged by the applicant, upon at least two days' prior written notice, access to the respondent's land for the purposes of preparing evidence in the proceedings. (2) For the purpose of Order 1, service by facsimile to 02 4443 4954 shall be deemed to be sufficient service of the notice. (3) The applicant must notify the respondent of these orders by facsimile to be sent by 5:00 pm on Monday, 13 August 2012.
Catchwords: PRACTICE AND PROCEDURE - whether in Class 4 civil enforcement proceedings order should be made for inspection of the respondents' properties by applicant council's experts for the purposes of preparing evidence in the proceedings. Legislation Cited: Uniform Civil Procedure Rules 2005 r 23.8 Cases Cited: Shoalhaven City Council v Bonner [2010] NSWLEC 251 Category: Interlocutory applications Parties: 40257 of 2012
Shoalhaven City Council (Applicant)
Grant Ellis (Respondent)40258 of 2012
Shoalhaven City Council (Applicant)
Robert Wayne Mitchell (First Respondent)
Patricia Ann Mitchell (Second Respondent)40259 of 2012
Shoalhaven City Council (Applicant)
Neil Francis Ash (First Respondent)
Barbara Marie Ash (Second Respondent)40260 of 2012
40261 of 2012
Shoalhaven City Council (Applicant)
David Anthony Pickering (Respondent)
Shoalhaven City Council (Applicant)
Garrie Mills (Respondent)Representation: COUNSEL:
Mr M Winram, solicitor (Applicant)
N/A (Respondents)
SOLICITORS:
Maddocks Lawyers (Applicant)
N/A (Respondents)
File Number(s): 40257/12, 40258/12, 40259/12, 40260/12, 40261/12
EX TEMPORE Judgment
These are motions for orders for the inspection of properties under r 23.8(1)(a) of the Uniform Civil Procedure Rules 2005, which provides:
23.8 Inspection of property
(1) For the purpose of enabling the proper determination of any matter in question in any proceedings, the court may make orders for any of the following:
(a) the inspection of any property,...
The motions are brought in five proceedings by the applicant, Shoalhaven City Council. In the proceedings the Council seeks, in effect, the cessation of the use of residential buildings and structures alleged to have been constructed unlawfully, because they had no development consent, over the years in an old paper subdivision at Tomerong, south of Nowra. The proceedings have been fixed for hearing on 26-28 September 2012. I have given judgment in a similar case relating to the same subdivision: Shoalhaven City Council v Bonner [2010] NSWLEC 251.
The Council's notice of motion in each of the proceedings seeks orders that:
(a) the respondent is to permit the experts engaged by the applicant, upon at least two days' prior written notice, access to the respondent's land for the purposes of preparing evidence in the proceedings; and(b)if the respondent does not permit the experts engaged by the applicant access to the respondent's land, the respondent cannot request that the Court, in the exercise of its discretion, decline the relief sought by the applicant if the matters alleged by the applicant are otherwise established.
The procedural history of the five proceedings may be briefly mentioned. On 1 June 2012 the proceedings were listed for directions. On that occasion, one "Elder john" purporting to be from the "Free State of Australia" appeared as agent for the respondents. Pepper J directed that the five proceedings be heard consecutively, listed them for final hearing on 26, 27 and 28 September 2012 and gave procedural directions. Her Honour noted that the address for service of all the respondents in the proceedings was c/- Elder john, Free State of Australia, Interim Parliament House of the People, 65 Henry Street, Werris Creek 2341, Australia. On 20 July 2012 the proceedings were before Craig J for directions. One of the directions that his Honour made was that if, following service of the respondents' points of defence, the applicant seeks leave to have access to the property of any of the respondents, then the applicant have leave to serve on short notice a motion to that effect, returnable today. His Honour directed that for that purpose service by facsimile would be deemed to be sufficient service of the applicant's notice of motion.
Why is inspection sought? It is because of a letter dated 7 August 2012 from the "Free State of Australia" to this Court purporting to be under the seal of the "Free State of Australia". The Council reasonably infers that this letter is intended to be the points of defence that on 20 July 2012 Craig J ordered the respondents to file on or before 7 August 2012. The letter states that the "defendants rely on all materials filed with the court". Among those materials is a document headed "Affidavit by Sui Juris Citizen of FSA" affirmed by one of the respondents, Mr Mills, and purporting to be witnessed by Chief Elder/Chief Justice, the Hon Lester Woodforth FSA and to be under the seal of the "Free State of Australia". It is not clear but it appears from this document, and the Council expects, that the respondents will contend at trial that if the Court finds there was no development consent as alleged, then the Court should exercise its discretion to refuse relief on the bases that, first, the properties are safe from bushfires and, secondly, the effluent systems on them are satisfactory in accordance with the requirements of the "Free State of Australia". Consequently, the Council wishes to adduce evidence concerning those two matters and concerning whether or not the buildings and structures comply with the Building Code of Australia. Inspection of the properties is sought for that purpose.
The respondents have not appeared at the hearing of the motions today. However, the Court has received by facsimile an unsigned letter dated 9 August 2012 from the "Free State of Australia" bearing a seal of that name submitting that (emphasis in original):
(a) no consent is granted for access onto private lands "held within the Jurisdiction of the Independent Religious State, Free State of Australia (Religious State) regardless of any order or otherwise by the court";
(b) "Entry without consent is taken as trespass and a premeditated violation and attack on Human, Civil and Political Rights rendering all rights to act according to all privileges awarded under the Natural Law of Almighty GOD (GOD given Liberty and protected under s 116 of the Commonwealth Constitution...), the Common law of England (that which includes the Great Charters of Liberty - Magna Carta, Bill of Rights...), Imperial law" etc;
(c) the Court is without jurisdiction;
(d) "78B notices" have been transmitted concerning a constitutional issue;
(e) "FSA relies on documented evidence provided without reservation to filing further documentation as it sees fit";
(f)
"FSA retains Superior Jurisdiction under the Natural law of Almighty GOD" etc; and
"All rights reserved - Independent Religious State 'Free State of Australia' and the religious order 'Ministry of Jesus Christ Our Redeemer'".
The letter concludes with a quotation from Mathew 13:47-50.
In my view, a case has been made out to make the inspection orders sought by the Council. None of the submissions in the letter from the "Free State of Australia" at [6] above identifies any sensible reason why inspection orders should not be made. I am not persuaded at the moment that I should make the second order sought by the Council, set out at [3] above. If the respondents do not permit the experts engaged by the Council access to their lands in accordance with the inspection order, then the Council may wish to make a submission to the trial judge about that on discretion.
The orders of the Court in each matter are as follows:
(1) The respondent is to permit the experts engaged by the applicant, upon at least two days' prior written notice, access to the respondent's land for the purposes of preparing evidence in the proceedings.
(2) For the purpose of Order 1, service by facsimile to 02 4443 4954 shall be deemed to be sufficient service of the notice.
(3) The applicant must notify the respondent of these orders by facsimile to be sent by 5:00 pm on Monday, 13 August 2012.
Decision last updated: 14 August 2012
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