Weise v Alexandrina Council
[2024] SADC 36
•3 April 2024
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
WEISE v ALEXANDRINA COUNCIL
[2024] SADC 36
Judgment of his Honour Auxiliary Judge Chivell
3 April 2024
MAGISTRATES - JURISDICTION - GENERAL MATTERS - OTHER PARTICULAR CASES
Applicant sought review of decision of a Magistrate to enter summary judgment in favour of Council on the basis that the Magistrates Court had no jurisdiction to try the validity of a rate.
Held - decision of a Magistrate affirmed, but on the basis that proceedings to try the validity of a rate are prohibited by s. 276(1) and (7) of the Local Government Act, 1999 (SA).
Local Government Act 1999 (SA) s. 161, 166, 178, 276, referred to.
Honner v Yorke Peninsula Council [2015] SADC 156; Adelaide Brighton Cement v Hallett Concrete [2020] SASC 161; Jacobs v OneSteel Manufacturing Pty Ltd and Workcover Corporation of South Australia [2006] 93 SASR 568, applied.
WEISE v ALEXANDRINA COUNCIL
[2024] SADC 36Civil
Mr Weise and his two sons own a property at Port Elliot. The land is situated in the Alexandrina Council area. The Council levied rates on the property in the 2022-23 year. By 1 March 2023, no rates had been paid. The total amount out-standing was $3,540.90.
The Council issued proceedings in the Minor Civil Jurisdiction of the Magistrates Court to recover that amount pursuant to s. 178(3) of the Local Government Act, 1999 (SA). That section provides that rates may be recovered as a debt from the principal ratepayer of the land in question. There is no doubt that Mr Weise and his sons were the principal ratepayers.
The respondents defended the claim by counterclaim on the basis that the Council had wrongfully failed to grant a 75% rebate of the rates, and wrongfully failed to grant a further 25% rebate which is discretionary in the same circumstances.
S. 161 of the Local Government Act provides for a mandatory rebate of rates of the type sought by the respondents. The section provides:
(1)The rates on land being predominantly used for service delivery or administration (or both) by a community service organisation will be rebated at 75 per cent (or, at the discretion of the council, at a higher rate).
(2)…
(3)For the purposes of this section a community service organisation is a body that –
(a) is incorporated on a not-for-profit basis for the benefit of the public; and
(b) provides community services without charge or for a charge that is below the cost to the body of providing the services; and
(c) does not restrict its services to persons who are members of the body.
(4)…
S. 166 provides a council with a discretion to grant a further rebate on rates in a wide variety of circumstances. There is no dispute that such circumstances would have existed if the requirements of s. 161 had been met.
On 8 December 2023 Magistrate Fisher granted an application by the Council for summary judgment in its favour on the basis that the Court had no jurisdiction to try the respondents’ counterclaim. The application was made pursuant to UCR 144(2). His Honour exercised caution before doing so, noting the judgment of Doyle J in Adelaide Brighton Cement v Hallett Concrete [2020] SASC 161 at [59].
The Magistrate found that there was no material distinction between the facts of this case and the facts in Honner v Yorke Peninsula Council [2015] SADC 156, a decision of my late colleague, Brebner DCJ, in a similar Minor Civil Review.
Honner’s case involved an action by the Council to recover a service charge for the collection and disposal of waste in the district. Mr Honner defended the case on the basis that the service charge had been invalidly imposed, the invalidity arising from an amendment to the Local Government Act in 2012 which provided that the service charge for rural properties was to be determined by reference to the distance between the property in question and the nearest waste collection point.
Brebner DCJ held that the Magistrates Court had no jurisdiction to try the issue of the validity or otherwise of the rate imposed, basing his decision in large part on the provision of s. 276(1) of the Local Government Act:
(1) The following proceedings may be taken before, and determined by, the District Court:
(a) – (d) …
(e) proceedings to try the validity of a rate or service charge;
(f) – (g) …
(3) - (6) …
(7.) Except to the extent that this or another Act provides an express right to bring particular proceedings, no proceedings may be brought before a court or tribunal constituted by law –
(a) – (b) …
(c) to challenge a valuation, assessment, rate or service charge, or to make or allow an alteration to a valuation, assessment, rate or service charge.
The clear impact of these provision is that no proceeding of the type referred to in s.s. (7) may be brought in any court other than the District Court.
The bringing of a cross-claim is a “proceeding” within the meaning of s. 276. The Uniform Civil Rules make this clear at UCR 2.1:
“proceeding means a proceeding other than an excluded proceeding, and includes -
(a) a cross claim as well as a claim
(b) – (d) …”
I conclude that the applicants for Minor Civil Review were prohibited from bringing their cross-claim to the Magistrates Court by s. 276 of the Local Government Act. The Magistrate was therefore correct when he concluded that there was no reasonable basis for defending the Council’s claim, and that judgment should be entered in favour of the Council.
This is sufficient to dispose of the application for review. I do not consider it necessary to consider the other issues raised in Honner’s case, in particular whether the Magistrates Court has jurisdiction to try the validity of a rate or service charge imposed by a Council, or whether the Court has a discretion to try the validity of a rate or service charge by way of a collateral attack, as discussed by Besanko J, with whom Duggan, Vanstone and Layton JJ agreed, in Jacobs v OneSteel Manufacturing Pty Ltd and Workcover Corporation of South Australia [2006] SASC 32; (2006) 93 SASR 568.
The application for review is dismissed.
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