Wright v Kronen
[2000] TASSC 48
•19 May 2000
[2000] TASSC 48
CITATION: Wright v Kronen [2000] TASSC 48
PARTIES: WRIGHT, Toni
v
KRONEN, Ingeburg Martha Helene
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 28/2000
DELIVERED ON: 19 May 2000
DELIVERED AT: Hobart
HEARING DATES: 1 May 2000
JUDGMENT OF: Slicer J
CATCHWORDS:
REPRESENTATION:
Counsel:
Applicant: T D Cox
Respondent: In person
Solicitors:
Applicant: Wallace Wilkinson & Webster
Respondent: In person
Judgment Number: [2000] TASSC 48
Number of Paragraphs: 13
Serial No 48/2000
File No LCA 28/2000
TONI WRIGHT
v
INGEBURG MARTHA HELENE KRONEN
REASONS FOR JUDGMENT SLICER J
19 May 2000
The applicant, an officer of the Kingborough City Council, was the prosecutor of the respondent for an offence contrary to the Local Government (Highways) Act 1982, ("the Act") s55(2). The respondent, a resident ratepayer in the Municipality of Kingborough, was and remains the owner of a unit which formed part of a housing complex called Redwood Village. The complex (governed by a body corporate) consisted of a series of units, some of which were conjoined. It had been built in 1991 and the units were described in a stratum plan with numbers allocated in accordance with a scheme adopted by the developer. The unit, subsequently purchased by the respondent, had been allocated the number 25, although the title described the unit as number 26. The Council apparently used the original numbering scheme for the purpose of assessment and collection of rates. In doing so, its recording system wrongly identified the respondent's property as belonging to another and assessed her rates on the basis of the other unit. When the respondent complained about the assessment, the council discovered the error and refunded the moneys wrongly collected. Until that time, the unit owned by the respondent had been recorded and numbered as 25. Following the discovery of the error in relation to the assessment for rates, the respondent wrote to the Council stating:
"… As a courtesy to me, please identify the property I own in the town of Kingston being Flat 26/1 Village Drive, Kingston, since from now on I shall pay Council Rates only for the property I own in the town of Kingston according to my Torrens Title and the accompanying Stratum Plan No 54571 (formerly No 2006) for Stratum Lot No 1 Village Drive, Kingston".
…
Would you please see to it, that on the 'notice' for Council Rate payment the Kingborough Council issues to me, my property in the town of Kingston is correctly identified, namely:
Flat 26/1 Village Drive, Kingston, owned by Mrs I M H Kronen …".
The letter concluded:
"Postal Address at present:
25/1 Village Drive, Kingston 7050, until changed to the correct address: 26/1 Village Drive, Kingston 7050."
On 20 August 1998, the council advised:
"Reference is made to discussions held on 19th August 1998 at the Council Offices with yourself, myself and Council's Senior Rates Clerk, Miss Toni Wright, regarding the above matter.
In relation to the number (25/1) allocated to your property I advise this will remain even though your title shows you purchased flat 26. A title reference has no bearing on what house number is allocated to a property.
The number 25 was allocated to the property when the dwelling was completed in 1986 and became effective from that date.
Section 55 of the Local Government (Highways) Act, 1982 provides Council with the authority to number properties and require a property to be marked with a number in such a manner as the Council seems appropriate. An owner or occupier who fails to comply with a requirement is guilty of an offence and is liable for a fine.
You are therefore required to reinstate the number '25' on your flat and retain this as your correct property number and postal address."
The respondent declined to comply with the demand and on 9 February the applicant commenced proceedings by way of complaint alleging a breach of the Act, s55. On the day of hearing, the complaint was amended so as to allege that the offence had occurred on 14 January 2000, the date of a visit by an officer of the council to the respondent's unit.
The evidence relied on by the applicant at the hearing of the complaint comprised:
(a) correspondence between the council and the respondent;
(b)the certificate of title of the respondent's unit which described the land as "Lot 26 on Strata Plan 54579";
(c)testimony of a council officer, Ms Toni Wright. She stated that a request by the council for the owners of the downstairs unit to change their allocated number to meet the wishes of the respondent had been declined, and that accordingly the respondent had been informed that "her property number was to remain as number 25". Ms Wright said that she had inspected the premises on 14 January 2000 and had observed the unit which displayed the number "26". She had also gone to the unit on her way to the hearing of the complaint and noticed that the same number continued to be displayed. She explained the method of number allocation in the following terms:
"WITNESS: There are no strict guidelines on how a property should be numbered. It's just pure coincidence, and for pure simplicity that those units in Redwood Village were given a house number, virtually - most of them - the majority of them - only 90% not all of them, only about 90% of those units in -0 there are about three or four streets in that area, which is commonly known as Redwood Village. That - there are about 365 units, and they're all given a number. 90% of them are the same number as what's on their title, but the other 10% aren't. So strictly speaking if we - what I described before is, when we drive into the section of the street where Mrs Kronen resides, those units on the left hand side are - you know, 18, 19, 20, 21. In a normal street in Kingston, on one side of the road you have 2, 4, 6, 8, 10 and on the other you have 1, 3, 5, 7, 9.
…
WITNESS: Well from my knowledge of what happened prior to 1986, which is before I worked for the council. As I said before, a company of Argyle Developments I think, developed that land up there, and built units and allocated numbers to those units, and they were for simplicity and adopted by the council.
…
WITNESS: What happens now when a property is subdivided, into that one property, and it was divided into ten blocks. They are all allocated with a lot number associated with their sealed plan number, and then it's up to my department to take that sealed plan and allocate a number to that lot number. Which we do by taking on a policy of you know, odd numbers on the left, and even numbers on the right. Numbers are 2, 4, 6, their (sic) in sequence if possible."
She told the learned magistrate that there was no decision taken by council in relation to the allocation of numbers but that it was "just a duty carried out by a particular department within the council". The following exchange between the learned magistrate and the witness:
"HIS WORSHIP: … Well who's to say that Mrs Kronen's unit is 25 rather than 26?
WITNESS: Because the council has the power to allocate those numbers, and we have done that and -
HIS WORSHIP: Well when, and who? By what process?
WITNESS: Well that's what I would not be clear on because the files at the council don't have any record of that. As far as I am aware, there weren't any records kept of those numbering issues.
HIS WORSHIP: Okay. Yes Mrs Kronen?"
shows that the original recording of numbers had not been placed in documentary form.
The respondent told the court that she had caused the number to be changed in July or August 1998 and conceded that she had been advised on some 11 occasions that her allocated number would remain as 25. She maintained her position that the numbering system as shown on the stratum plan had been adopted by the council and that the misdescription was in relation to other records of the council.
The Act, s55 provides:
"(1) The corporation may allot to a piece of land one or more distinguishing numbers, and may cause a building on that piece of land to be marked with such a number in such manner as the corporation thinks fit.
(2) An owner or occupier who fails to comply with a requirement of the corporation made of him for the purposes of this section is guilty of an offence and is liable on summary conviction to a fine not exceeding 2 penalty units."
For a prosecution to succeed, a council is required to prove:
(1) that a distinguishing number was allocated to a piece of land;
(2) in some circumstances that it had a particular number to be marked on a building;
(3)that it had required the owner or occupier to do something or remedy some omission in relation to the marking of numbers;
(4) that there is a nexus between the power of allocation and the requirement.
It is not necessary, for the purpose of the determination of this appeal to consider any restrictions on the nature or extent of the requirement and the purpose of the legislation as described by the High Court in R v Toohey;Ex parte Northern Land Council (1981) 151 CLR 170. There is no question that the actions of the council were beyond power.
The learned magistrate dismissed the complaint. He did so on the basis that there had been insufficient evidence that the council had exercised any of the powers afforded by the Act, s55(1) and concluded that there was no evidence that it had ever exercised the power to cause the unit to be marked with a distinguishing number. He accepted the presumption of regularity but determined that the earlier mistake made in relation to the assessment of rates raised a question as to whether the council had ever made an allocation of the appropriate number in the first place. In his reasons for decision he stated:
"… But the problem with that is this: that in common, both to the defence, and the prosecution cases here, is the fact, that unquestionably, there was a mistake. Now, it may very well be, as Mr Cox has submitted, that the mistake related solely to the question of the charging of rates. But it would be a striking coincidence if it was only relevant to the issue of rates, because the confusion concerned lots, or unit numbers 25 and 26. The council was charging the owner of Flat 26, as she would have it, the defendant, on the basis that she was occupying Flat 25, and vice versa. It doesn't matter how that mistake arose, but it clearly indicates that there was a mistake, and if we look a little further, we are arguing here about whether 26 should be 25, and whether 25 should be 26. So the error that arose, in the context of rates is apparently related, or at least it's not proved beyond reasonable doubt not to be, to the claimed error on the defendant - that's the error that the defendant claims - in relation to the allocation of street numbers. So it would be quite wrong of me to try, in order to avoid the difficulty, simply to allocate or to refer to the presumption of regularity in order to extricate the council from the present difficulty. The fact remains there is not a shred of evidence, not even one, that the corporation ever allotted 25 to the defendant's flat; far less that they ever caused that land to be marked with that number. And it seems to be as simple as this. If there is no such evidence, and there is no presumption to aid the corporation in the proof of their case then there is no lawful requirement made pursuant to the provisions of Section 55(2). That requirement must be capable of relating back to the original allocation of the number. Now, I say again, lest it be thought that this decision is likely to cause any great problem for this and any other council in the future, I must say - I think not. In 99.99 percent of cases, the Court would simply look at the history, and say, 'you've always had 25, and so have your predecessor owners in title, one is prepared to presume that the council acted regularly in allocating those numbers to that land in the first place. But here there is compelling evidence for the proposition that the council didn't make a decision, it simply followed the sub-dividers allocation. The sub-divider, on all the evidence, is at least possible, it is at least possible that the sub-divider allocated 25 to 26, and 26 to 25, mistakenly, and accordingly that presumption doesn't assist the counsel (sic) in the unusual circumstances of this case.' The complaint is dismissed."
The applicant contends error on the following grounds:
"1The Learned Magistrate erred in law in finding that the Kingborough Council did not have an unfettered discretion to allot the number 25/1 to the Respondent's building, pursuant to Section 55(1) Local Government (Highways) Act 1982.
2The Learned Magistrate erred in law in finding that there was no evidence that the Kingborough Council had not allotted the number 25/1 to the Respondent's building pursuant to Section 55(1) Local Government (Highways) Act 1982 and the discretion contained therein.
3The Learned Magistrate misdirected himself in relying on evidence irrelevant to the Kingborough Council's discretion to allot the number 25/1 pursuant to Section 55(1) Local Government (Highways) Act 1982, namely the Stratum Title Plan.
4The Learned Magistrate misdirected himself in relying on the evidence of the Respondent, namely the stratum title plan, as evidence relevant to the allotment of numbers by the Kingborough Council pursuant to Section 55(1) Local Government (Highways) Act 1982."
Grounds 1, 3 and 4 must fail. The learned magistrate did not find "that the Kingborough Council did not have an unfettered discretion". His determination was based on paucity of evidence, not absence or misuse of power. He did not rely on evidence that the numbering description stated in the Stratum Plan as governing the question of allocation. He accepted that there had been a mistake on the part of the council in its assessment of rates and relied on that evidence as weakening any inference that the council had allocated the number 25. In relation to ground 4, he was entitled to accept the applicant's evidence that the council had adopted the numbering system allocated by the developer and that if such was erroneous, the council had maintained that error.
With some regret, I have concluded that the applicant is entitled to succeed on Ground 2. The regret is because it could be said that the decision of the learned magistrate was wise in that it upheld the right of a citizen to point out error on the part of a large statutory corporation. However, wisdom does not always determine the application of statutes. There was evidence that at the time the respondent purchased the unit, it was marked with the distinguishing number 25. There was evidence that another owner or occupier had accepted and used the number of 26. There was evidence that not all numbers stated in the Stratum Plan were adopted as the appropriate number for the purpose of dwelling identification. There was evidence that it was the respondent who had altered the number in July or August 1998. But even if such evidence had not been adduced, there remains the requirement given in the letter of 20 August. That letter evidenced that the council had adopted, rightly or wrongly, the number 25 as being allocated to the respondent's property. The adoption had been made at least as of the date of the letter. The letter evidenced the allocation and the respondent failed to comply with the requirement. The council was not required to prove that it had previously caused the building to be marked, since the Act, s55(1) provides a number of alternatives. There was evidence sufficient to show that the complaint had been proved. The Motion to Review will be upheld. The order of the learned magistrate dismissing the complaint is quashed. The parties will be afforded an opportunity to make submissions in relation to the future disposition of this matter.
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