Southdale Stud Pty Ltd v RJR Trading Pty Ltd
[2020] SASC 106
•16 June 2020
Supreme Court of South Australia
(Appeal from a Master: Civil)
SOUTHDALE STUD PTY LTD v RJR TRADING PTY LTD
[2020] SASC 106
Judgment of The Honourable Justice Bleby (ex tempore)
16 June 2020
PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - VEXATIOUS LITIGANTS, PROCEEDINGS AND RELATED MATTERS - VEXATIOUS PROCEEDINGS
REAL PROPERTY - TORRENS TITLE - MORTGAGES, CHARGES AND ENCUMBRANCES - POWERS AND REMEDIES OF MORTGAGEE - POSSESSION
This is an appeal from an Order by Judge Dart, Master of the Supreme Court of South Australia, to a single Judge of the Supreme Court of South Australia. The Order concerned the granting of the possession of the appellant’s land to the respondent pursuant to s 195 of the Real Property Act 1886 (SA).
The Notice of Appeal was filed outside the time limit. The question of whether to grant an extension of time to appeal was considered together with the merits of the appeal.
The appellant seeks an order on appeal that 'The Matter be heard correctly at Law as no statutory Referendum held for the Australia Act Request Act 1985 or Section 128 of the Constitution'.
The Notice of Appeal purports to raise a constitutional matter. No Notice of a Constitutional Matter was filed.
Held, granting an extension of time to appeal and dismissing the appeal:
1. No genuine constitutional issue is raised on the Notice of Appeal. Section 78B(1) of the Judiciary Act 1903 (Cth) does not prevent this Court from determining the appeal in those circumstances.
2. The appellant’s arguments are manifestly misconceived. The appellant has not raised any argument of merit that is capable of challenging the validity of the Australia Act 1986 (Cth). Further, the existence of the Supreme Court of South Australia is not dependent on the validity of the Australia Act.
3. The appellant to pay the respondent's costs on an indemnity basis.
Real Property Act 1886 (SA) s 195; Judiciary Act 1903 (Cth) s 78B; Australia Act 1986 (Cth), referred to.
Attorney-General (WA) v Marquet (2003) 217 CLR 545; Shaw v McGinty [2006] WASCA 231; State Bank of New South Wales v Commonwealth Savings Bank of Australia (1986) 4 NSWLR 549; Ten Group v Cornes (No. 2) (2012) 114 SASR 106, discussed.
Farah Constructions v Say-Dee Pty Ltd (2007) 230 CLR 89; Sue v Hill (1999) 199 CLR 462; Re Culleton [2016] FCA 1193; Re Culleton (2017) ALJR 302, considered.
SOUTHDALE STUD PTY LTD v RJR TRADING PTY LTD
[2020] SASC 106Civil: Appeal from a Master
BLEBY J (ex tempore): This is an appeal from an Order by Judge Dart, Master of the Supreme Court for possession of land, pursuant to s 195 of the Real Property Act 1886 (SA) (the Order). The Order is in the following terms:
1.The Defendant gives the Plaintiff possession of the land subject to Memorandum of Mortgage, Registered No. 12885375 dated 28 February 2018, being the premises situated at Allotment 78 Filed Plan 148916 in the area named Lonsdale, hundred of Noarlunga and known as 86 Liston Road, Lonsdale in the State of South Australia and being the whole of the land comprised and described in Certificate of Title Register Book Volume 5763 Folio 975.
The Order was made on 2 April 2020. The Notice of Appeal was filed on 1 May 2020. Rule 281(1) of the Supreme Court Civil Rules 2006 (SA) provides that an appeal must be commenced within 21 calendar days after the date of the order. The appeal is therefore out of time.
On 17 April 2020, the appellant, as defendant, filed an Interlocutory Application seeking an order that the order of Judge Dart be set aside. This was misconceived. The appropriate course for challenging the Order was by way of appeal to a single Judge of this Court.[1]
[1] Supreme Court Civil Rules 2006 (SA), r 17(1)(a).
In support of the application for an extension of time, the Notice of Appeal includes the following paragraphs:
5.Extension of time
1) The Order was delivered on the 2nd of April.
2) The time for Appeal from a Master is 21 days.
3) An Interlocutory Application was Filed on the 17th of April 6 days inside that time frame to correct a clearly evident erred judgement of law that was used to sustain the order.
4) The Appeal time frame ended 23rd of April.
5) Master Graham Dart delayed/concealed (11 days) that evidence of standing fact without response until the 24th April 2020 received by email with the letter of the 28th April 2020 in addition to another letter that was dated 28th April 2020 and as such both were delivered on the 28th April 2020.
6) I make this application for Appeal within 3 days of that Notification.
7) The evidence previously filed of such Government records demonstrate that Fraud has been committed on 16,2 Million Australian Electors in 1986 and continuing today upon 23 Million Australian Electors and all Australian people. To use to [sic] Rule 53 is beyond absurd if one was to have regard for the lawful pre-existing Elector Approved Government Documents.
No affidavit has been filed in support of the application for an extension of time.
The Court has a discretion to extend time. Relevant to whether to grant an extension are the length of the delay, the reason for the delay, whether there is an arguable case and the extent of any prejudice suffered by the respondent. In any event, the respondent does not oppose the grant of an extension of time.
In the present case, the question of whether to grant an extension can be considered together with the merits of the appeal. I turn, then, to the facts and the issue now raised.
The background facts are set out in the judgment of Judge Dart:[2]
On 28 February 2018 the parties entered into a written contract of loan. The plaintiff agreed to loan to the defendant the sum of $150,000 for a term of 12 months. At the same time the parties entered into a written mortgage over the defendant’s land at Lonsdale to secure performance of the defendant’s loan obligations. The mortgage was registered on the subject land.
The terms of the loan required repayment of the principal, and any other amounts due, on 28 February 2019. The defendant did not repay the principal sum to the plaintiff at that time and has not done so since.
On or about 22 October 2019 a Notice of Default pursuant to s 132 of the Real Property Act 1886 was served at the registered office of the defendant. It required repayment of the loan within 30 days. The defendant did not comply with the notice.
The plaintiff seeks an order to permit it to take possession of the real property. These proceedings were instituted pursuant to the provisions of Part 17 of the Real Property Act 1886. Ordinarily, the proceedings are dealt with on a summary basis.
[2] Reasons of Judge Dart at [2]-[5].
The proceedings before Judge Dart took the following course. The matter first came on before the Court on 5 February 2020. The appellant was not legally represented. Its director, Mr Peter Scott Haughton, appeared. While no application was made for Mr Haughton to represent the company, the respondent did not take issue in respect of him appearing. Mr Haughton advised the Court that the debt would be repaid within a month and the matter was adjourned.
When the matter next came on before the Court on 18 March 2020, the loan had not been repaid. Mr Haughton said that a constitutional matter existed and that the Court should not deal with the matter, pending it addressing the issues identified in a Notice issued pursuant to s 78B of the Judiciary Act 1903 (Cth) (the s 78B Notice).
The s 78B Notice raised various issues that had no apparent relationship with the order for possession that had been sought by the respondent. Judge Dart held that nothing in the s 78B Notice was directed to the contractual arrangements between the appellant and the respondent and that the Notice did not assist the appellant in the proceeding.
At the hearing of the application before Judge Dart, the director of the appellant raised a different argument, challenging the validity of the Australia Act 1986 (Cth) (Australia Act). This argument appears to have been to the effect that the Australia Act was passed without a referendum and was therefore invalid. The argument then appears to have been that the consequence of this was that this Court is not validly constituted.
Judge Dart addressed this argument in the following terms:[3]
[3] Reasons of Judge Dart at [12]-[14].
The Australia Act has been dealt with by the High Court on a number of occasions. One of the cases is Attorney-General (WA) v Marquet the majority said:
For present purposes, two changes in constitutional arrangements are critically important: first, the fact of federation and creation of the States, and secondly, the enactment by the federal Parliament of the Australia Act. Section 106 of the Constitution provides that “[t]he Constitution of each State … shall, subject to this Constitution, continue as at the establishment of the Commonwealth … until altered in accordance with the Constitution of the State.” Then, at 1986, pursuant to a reference of power under s 51(xxxviii) of the Constitution, the federal Parliament enacted the Australia Act in order, as its long title said, “to bring constitutional arrangements affecting the Commonwealth and the States into conformity with the status of the Commonwealth of Australia as a sovereign, independent and federal nation”. The Australia Act, too, is to be traced to its Australian source – the Constitution of the Commonwealth. The Australia Act takes its force and effect from the reference of power to the federal Parliament, made under s 51(xxxviii), and the operation that the Act is to be given as a law of the Commonwealth in relation to State law by s 109 of the Constitution. Although the phrase “subject to this Constitution” appears both in s 51 and s 106, it was decided in Port MacDonnell Professional Fishermen’s Assn Inc v South Australia that “the dilemma … must be resolved in favour of the grant of power in par (xxxviii)”.
The Australia Act had two provisions of particular relevance to manner and form provisions. First, s 3(1) provided that the Colonial Laws Validity Act should not apply to any law made after the commencement of the Australia Act by the Parliament of a State and, second, the provisions of s 6 earlier set out were enacted. It is of particular importance to recognise that the Australia Act stands as a form of law to which the Parliament of Western Australia is relevantly subordinate. To the extent to which s 6 applies, the powers of the Parliament of Western Australia to legislate are confined. What has been seen as the conundrum of whether a body given general power to legislate can give up part of that power need not be resolved. By federal law, effect must be given to some manner and form provisions found in State legislation.
Neither the applicants nor the amici advanced any challenge to the validity of the Australia Act. No intervener made any such submission. The applicants, the amici and the interveners were all content to argue the applications on the basis that s 6 of the Australia Act, either alone or in conjunction with s 6 of the Australia Act 1986 (UK), was capable of valid application. The dispute between them was restricted to whether the provisions of s 6 were engaged in the particular circumstances of the case. At no time in the oral argument of the applications was the contrary suggested.
Callinan J also said:
The Australia Acts may have been in part at least passed pursuant to s 51(xxxviii) of the Constitution, but there is more that can be said of them than that. All of the relevant Acts (federal and State) as well as the Australia Act 1986 (UK) represent a final and indubitable recognition, a settlement between the United Kingdom, Australia and its States, and an ultimate legitimization of the respective constitutions, the sovereignty and the plenitude of the powers of the respective Australian polities. They also represent a remarkable and rare consensus of polities which requires that their terms be given full effect. Nothing that was said in Port MacDonnell Professional Fishermen’s Assn Inc v South Australia, in which the interaction of laws passed pursuant to s 6 of the Australia Act 1986 (Cth) and ss 51(xxxviii) and 106 of the Constitution was discussed, detracts from that.
(Footnotes omitted)
The High Court has accepted the Australia Act as valid, and the defendant’s argument can go no further. It is difficult, in any event, to make a link between the argument about the validity of the Australia Act and the issues before the Court in this matter.
Judge Dart concluded that the appellant had produced no material which would establish an arguable defence and that in consequence the respondent was entitled to the order.
The order sought on the appeal is:
The Matter be heard correctly at Law as no statutory Referendum held for the Australia Act Request Act 1985 or Section 128 of the Constitution.
The grounds of appeal pursue this proposition and in particular challenge Judge Dart’s reliance on Attorney-General (WA) v Marquet.[4]
[4] (2003) 217 CLR 545 at [67]-[70]; [294].
The Notice of Appeal therefore purports to raise a constitutional matter that was not the subject of the Notice of a Constitutional Matter filed previously with the Court.[5] It purports to raise the same issue as was raised at the oral hearing before Judge Dart.
[5] FDN 6.
On 4 June 2020, the Court emailed the parties requesting that the appellant issue a Notice of a Constitutional Matter by close of business 2 June 2020. No such notice has been filed. Section 78B(1) of the Judiciary Act 1903 (Cth) provides:
(1)Where a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys‑General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys‑General, of the question of intervention in the proceedings or removal of the cause to the High Court.
The failure by the appellant to issue a s 78B Notice in reasonable time prior to the hearing of this matter does not prevent its determination today. In Shaw v McGinty,[6] the Full Court of the Supreme Court of Western Australia said:[7]
In summary, [s 78B] provides that it is the “duty of the Court” not to proceed in a cause in which a constitutional issue is raised, unless such a notice has been given. However, a constitutional issue does not arise for the purpose of that section merely because a party asserts that it does. If the alleged “constitutional issue” is unarguable or vexatious, then there is in truth no constitutional issue at all; if the entire proceeding is vexatious, it may be that there is no “matter” within the meaning of s 78B in any event …
(Footnotes omitted)
[6] [2006] WASCA 231.
[7] Shaw v McGinty [2006] WASCA 231 at [42] (Wheeler JA, Steytler P and Buss JA agreeing).
A similar observation was made by the Federal Court in Re Culleton[8] and by the High Court in Re Culleton.[9]
[8] [2016] FCA 1193 at [5] (McKerracher J).
[9] (2017) 91 ALJR 302 at [29] (Gageler J).
In State Bank of New South Wales v Commonwealth Savings Bank of Australia,[10] Kirby P, in holding that a Notice of a Constitutional Matter was insufficient to put the Attorneys-General on notice of a matter to be argued, observed of the question raised:[11]
It is not one raised vexatiously, without merit or in the face of clear authority binding on this Court.
[10] (1986) 4 NSWLR 549.
[11] (1986) 4 NSWLR 549 at 560.
The appellant challenges the reliance by Judge Dart on the decision of the High Court in Attorney-General (WA) v Marquet, in large part on the basis that it was acknowledged in that case that the parties did not themselves challenge the validity of the Australia Act. It should be noted, however, that in acknowledging that lack of challenge, the plurality observed:[12]
That this should be so is not surprising when it is recalled that in Port MacDonnell Professional Fishermen's Association Inc v South Australia all seven Justices constituting the Court concluded that "the continuance of the Constitution of a State pursuant to s 106 is subject to any Commonwealth law enacted pursuant to the grant of legislative power in par (xxxviii)" of s 51. Section 6 of the Australia Act, therefore, is not to be seen as some attempt to alter s 106 or s 107 otherwise than in accordance with the procedures required by s 128. Section 6 was enacted in the valid exercise of power given to the federal Parliament by s 51(xxxviii).
(Footnote omitted)
[12] (2003) 217 CLR 545 at [70] (Gleeson CJ, Gummow, Hayne and Heydon JJ).
As the respondent observes, similarly, in Sue v Hill,[13] while again the question of the validity of the Australia Act was not in issue, that question was considered carefully by four members of the High Court, who variously considered the Act, or parts of it insofar as their attention warranted, to be valid.[14]
[13] (1991) 199 CLR 462.
[14] Sue v Hill (1999) 199 CLR 462 at [66], [71], [73] (Gleeson CJ, Gummow and Hayne JJ), [164] (Gaudron J); see also at [172]-[173] (Gaudron J).
The Notice of Appeal goes on to assert:
The Australia Act 1986 did omit the statutory “Approved by the Electors” referendum requirement throughout the Commonwealth of Australia to form a Parliamentary Supremacy Dictatorship, without consent or knowledge of the Australian electors.
This argument is manifestly misconceived. Section 128 of the Constitution concerns the alteration of the Constitution itself. The appellant has not raised any argument of merit that is capable of challenging the validity of the Australia Act at all. Further, the existence of this Court is not dependent on the validity of the Australia Act.
In any event, as the respondent submits, it is not for this Court to depart from what is manifestly ‘seriously considered dicta’ of the High Court as to the validity of the Australia Act, even if, against all probability, I had concluded that the Notice of Appeal contained a proposition of merit.[15]
[15] Farah Constructions v Say-Dee Pty Ltd (2007) 230 CLR 89 at [134] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ).
No genuine constitutional issue is raised on the Notice of Appeal. Section 78B(1) of the Judiciary Act 1903 (Cth) does not prevent this Court from determining the appeal in those circumstances.
Moreover, the purported constitutional issue is the only issue raised on the Notice of Appeal. It follows that the appeal is without merit.
In circumstances where the appellant did take some action to challenge Judge Dart’s Order prior to the expiry of the time limit for appealing, misconceived as that action was, and bearing in mind the respondent’s attitude to the application for an extension of time, I am prepared to grant the appellant an extension, notwithstanding that the appeal is hopeless.
Costs
The respondent submitted that the appellant should be ordered to pay the costs of the respondent on an indemnity basis. The basis for this submission is that the issues raised on the appeal bear no connection to the issues properly arising in the respondent’s action. It submits that the grounds of appeal are hopeless and vexatious.
In Ten Group v Cornes (No. 2), the Full Court of this Court summarised the discretion of the Court to award costs:[16]
This Court has inherent and statutory jurisdiction under s 40(1) of the Supreme Court Act 1935 (SA), reflected in rr 263 and 264 of the Supreme Court Civil Rules 2006 (SA), to make such order for costs on appeal, in the exercise of its discretion, as it considers appropriate. As a general rule, costs are awarded as between party and party, but the court has a general discretion to award costs on the basis of an indemnity. Circumstances in which costs have been ordered on an indemnity basis (usually at first instance) include using the proceedings for an improper purpose, vexatious or unreasonable conduct of the proceedings or where a party, properly advised, should have known that it had no chance of success.
(Footnotes omitted)
[16] (2012) 114 SASR 106 at [3] (Kourakis CJ, Gray and Blue JJ).
That discretion is now reflected in the Uniform Civil Rules 2020, rules 194.3(1)(a) and 194.6(2)(a).
The Notice of Appeal is incoherent. The grounds have no logical connection with the matters the subject of the respondent’s application for possession. The constitutional issue that the appellant purports to raise, being the only issue raised on the appeal, is manifestly hopeless. This is an appropriate case for the award of costs, on an indemnity basis, in the exercise of my discretion.
Bias
Towards the end of the hearing the director of the appellant raised an issue suggesting that I should disqualify myself on the grounds of bias. This was on the basis that if he is correct in his argument, my salary and superannuation would be in jeopardy. I reject this argument. This Court necessarily has jurisdiction to determine its own jurisdiction, which necessarily encompasses the question of its valid exercise.
Conclusion
I extend time to appeal to 1 May 2020. I dismiss the appeal. I order that the appellant pay the respondent’s costs on an indemnity basis.
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