Armidale Dumaresq Council v Vorhauer

BACKGROUND 8The presence of the subject items on the Property was drawn to the attention of the Council in early December 2011. On 5 December 2011 a council officer inspected the Property from the road and observed the items. 9Florence Vorhauer gave evidence that (a) the "crate" (which I understand to mean the shipping container) was purchased to store her and her daughter's possessions, including a kit home that she wishes to purchase; and (b) the site offices were purchased for rest and accommodation during the days when their other overnight accommodation was not available. 10On 6 December 2011 the Council wrote to the respondent seeking an explanation for the placement of the items on the Property and requesting a reply within 14 days. 11Having received no reply, on 21 December 2011 the Council wrote to the respondent giving notice of its intention to give her an order under s 121B of the EPA Act to remove the items from the Property. A draft order was enclosed. The letter stated that before the Council gave the order, the respondent may make representations before 5 pm on 13 January 2012 as to why the proposed order should not be given or as to the terms of, or any period for compliance with, the proposed order. 12On 13 January 2012 the respondent wrote to the applicant threatening to file an application in the Armidale District Court Criminal Division naming each councillor, certain council officers and Ms Ferris as defendants, and enclosing a draft summons. On 27 January 2012 the Council's solicitors wrote to the respondent informing her that they were advising the Council, which would respond to her in due course. 13On 27 February 2012 the Council resolved to commence these proceedings. On 29 February 2012 the Council's solicitors wrote to the respondent informing her of the resolution. 14Since 2 May 2012 Florence and Lisa Vorhauer, following their eviction from a flat elsewhere in Armidale, have resided in the site offices on the Property. Florence Vorhauer is 71 years of age and for many years has cared for her disabled and ill daughter Lisa. At the hearing, Florence Vorhauer expressed concern about obtaining residential accommodation if they are obliged to remove the site offices from the Property. She indicated that she wished to build a kit home on the Property for them to live in. She has not yet lodged a development application in that regard. She indicated that her ability to pay for a kit home is dependent upon establishing a claim to a sum of money through probate proceedings in the Supreme Court, which she has not yet commenced. 15In those circumstances, the Council indicated at the hearing that it was agreeable to the respondent having three months to comply with an order for removal of the subject items from the Property with liberty to apply for an extension of time if difficulties developed. As I understood her, Florence Vorhauer responded that she needed six months for reasons connected with the said Supreme Court proceedings and purchase of a kit home. The Council responded that it was agreeable to six months. I therefore invited the parties to have discussions to see if a settlement agreement could be reached. Following unsuccessful settlement discussions, on the second day of the hearing and just before it concluded, the cross-claimants handed up a document proposing a six month adjournment of the proceedings and an injunction to restrain the Council from proceeding during that period. I saw, and still see, no reasonable basis for that application and did not accept it. I again invited the parties to consider settlement, which might lead to a compromise, and indicated that I would deliver judgment today if the matter was not settled in the meantime. The matter has not settled. This history reveals an inaccuracy in a letter from the cross-claimants to the Court received today which commenced: "Enclosed are documents that we sent to the Councillors in response to L&E Court Judge Biscoe's Directions that there needed to be compromises reached in this matter". This is inaccurate: I gave no such directions.

CONSTITUTIONAL CHALLENGES 16In my opinion, the constitutional challenges should be rejected for the following reasons, which substantially accord with the submissions of the Attorney General for NSW. 17The cross-claimants' discernible constitutional arguments, or similar constitutional arguments, have been made and rejected in earlier criminal proceedings against the respondent: Vorhauer 2002; see also Vorhauer v R [2007] NSWCCA 125 (Vorhauer 2007).

The exercise of federal jurisdiction by this Court 18Contrary to the cross-claimants' assertions (p 3 [5] and p 4 [6(b)] of the cross-claim), this Court may exercise federal jurisdiction and may, in turn, determine questions arising under the Commonwealth of Australia Constitution Act (Constitution), by reason of ss 76(i) and 77(iii) of the Constitution and s 39(2) of the Judiciary Act: see, for example, Anderson v Director-General, Department of Environment and Conservation [2006] NSWLEC 12, 144 LGERA 43 at [60]. Sections 76(i) and 77(iii) of the Constitution provide: s 76Additional original jurisdiction The Parliament may make laws conferring original jurisdiction on the High Court in any matter: (i) arising under this Constitution, or involving its interpretation;... ... s 77Power to define jurisdiction With respect to any of the matters mentioned in the last two sections the Parliament may make laws: ... (iii) investing any court of a State with federal jurisdiction. 19Section 39(2) of the Judiciary Act relevantly provides: The several Courts of the States shall within the limits of their several jurisdictions, whether such limits are as to locality, subject-matter, or otherwise, be invested with federal jurisdiction, in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it... 20This Court also has an ancillary jurisdiction under s 16(1A) of the Land and Environment Court Act 1979 (LEC Act), which provides: The Court also has jurisdiction to hear and dispose of any matter not falling within its jurisdiction under any other provision of this Act or under any other Act, being a matter that is ancillary to a matter that falls within its jurisdiction under any other provision of this Act or under any other Act. 21Sections 5, 6, 7 and 8 of the LEC Act indicate that this Court is a "court of a State" for the purposes of s 39(2) of the Judiciary Act and s 77(iii) of the Constitution. Section 20 gives the Court Class 4 jurisdiction to deal with enforcement proceedings such as those brought by the Council. 22The conferral of federal jurisdiction on this Court was explained in Arnold v Minister Administering the Water Management Act 2000 [2008] NSWCA 338, 73 NSWLR 196 (Arnold), which involved a challenge to (a) a water sharing plan and (b) the constitutional validity of Commonwealth legislation which is part of the relevant legislative scheme. An appeal to the High Court was dismissed: Arnold v Minister Administering the Water Management Act 2000 [2010] HCA 3, 240 CLR 242; and the proceedings remain on foot: NA & J Investments Pty Ltd v Minister Administering Water Management Act 2000; Arnold v Minister Administering Water Management Act 2000 (No 4) [2012] NSWLEC 120. The Court of Appeal in Arnold accepted that this Court has been invested with federal jurisdiction under s 39(2) of the Judiciary Act: at [32] - [33], [38] and [45] - [47]. Spigelman CJ said at [67] (Allsop P and Handley AJA agreeing): As I have indicated above, the Land and Environment Court is exercising federal jurisdiction, under s 39(2) of the Judiciary Act (Cth). Nevertheless, the scope of the jurisdiction so conferred requires the identification of, relevantly, the limits of the subject matter with which the Court has jurisdiction to deal. If the claim of invalidity of Commonwealth conduct, whether legislative or executive, is appropriately characterised as "ancillary" to the challenge which the applicants make to the validity of the 2006 Plan then, pursuant to s 16(1A) of the Land and Environment Court Act, that Court has jurisdiction to determine the federal issues. 23The Chief Justice went on to say that a legal issue will be within the Court's ancillary jurisdiction if the determination of that "issue constitutes an essential step in the course of determining an issue that is within the jurisdiction of" the Court: at [75]. His Honour held that the primary judge erred in finding that the constitutional argument against the Commonwealth was not a step in the course of determining the proceedings and not within the Court's ancillary jurisdiction under s 16(1A) of the LEC Act: [82] - [86]. 24The cross-claimants here rely on their constitutional arguments to challenge the authority of the Council to bring these proceedings and seek the relief in the summons. The constitutional issues have been raised in the context of proceedings alleging non-compliance with the EPA Act and seeking civil enforcement. That is the subject matter of the proceedings. Unquestionably, it falls within the Court's Class 4 jurisdiction: s 20 of the LEC Act. The constitutional arguments need to be determined to resolve the constitutional challenge to the Council's authority to bring these proceedings and seek the relief in the summons. In my opinion, the Court has jurisdiction to determine those constitutional matters, having been invested with federal jurisdiction under s 39(2) of the Judiciary Act and having regard to ss 16(1A) and 20 of the LEC Act.

The status and authority of the Council 25The cross-claimants' constitutional challenge to the status and authority of the Council, which is constituted under the Local Government Act 1993 (LGA), is without merit. They refer to s 128 of the Constitution and to the referendums in 1974 and 1988 ([1] and [3] of the respondent's motion and p 3 [2], p 4 [5] and p 5 [7] - [8] of the cross-claim). 26Section 128 prescribes the mode of altering the Constitution. In 1974, a referendum was held to alter the Constitution by conferring on the Commonwealth new powers to borrow money for, and to make financial grants directly to, local government bodies. The proposal was rejected. In 1988, a further referendum was held concerning, inter alia, the insertion of a new s 119A into the Constitution: see Constitution Alteration (Local Government) Bill 1988 (Cth). The proposed s 119A was in the following terms: "Each State shall provide for the establishment and continuance of a system of local government, with local government bodies elected in accordance with the laws of the State and empowered to administer, and to make by-laws for, their respective areas in accordance with the laws of the State". The new section would have given recognition under the Constitution to local governments established by the States and for the continued establishment of local governments under State laws. Again, the proposal was rejected. 27These proposed alterations of the Constitution and their rejection in the two referendums have no bearing on the power of the State to establish local councils. Section 5 of the Constitution Act 1902 (NSW) (State Constitution) confers on the State Parliament plenary power to make laws for the "peace, welfare, and good government of New South Wales". This is a plenary power and the words quoted are not to be read as words of limitation: Mobil Oil Australia Pty Ltd v The State of Victoria [2002] HCA 27, 211 CLR 1 at [46]. The enactment of the LGA falls within the plenary power in s 5 of the State Constitution and, thereby, is an Act within the legislative competence of the State Parliament. The establishment and constitution of local councils are dealt with in various provisions within Ch 9 of the LGA. The Court of Appeal has accepted that s 5 of the State Constitution confers on the State Parliament power to enact those provisions: Hoxton Park Residents Action Group Inc v Liverpool City Council (No 2) [2011] NSWCA 363 at [43] - [57]. In Vorhauer 2002 at [14], Spigelman CJ (Sully and Kirby JJ agreeing) rejected an identical argument made by the respondent: The Appellant contends that local councils are unconstitutional by reason of the failure of the constitutional referendum which would have included a reference in the Australian Constitution to local government. There is no logic in this. Local governments are created by State legislation under the respective State Constitutions. The absence of any reference to local government in the Australian Constitution is just irrelevant. This passage was cited with approval in Vorhauer 2007 at [41].

The legislative power of the NSW Parliament 28The cross-claimants assert that the State Parliament is without constitutional authority because, inter alia, it does "not have a Queen's representative" as required by s 1 of the Constitution (p 4 [1(b)] of the cross-claim). 29The assertion is without basis. Section 1 of the Constitution is irrelevant. It provides that the legislative power of the Commonwealth shall be vested in a Federal Parliament which shall consist of the Queen, a Senate and the House of Representatives. Sections 106, 107 and 108 of the Constitution specifically save State constitutions, the powers of State Parliaments and State laws. In The Queen v Phillips [1970] HCA 50, 125 CLR 93 at 116 Windeyer J said: ...[s 108 and] ss. 107 and 109 together state the result of the distribution of legislative powers, exclusive and concurrent, between the Commonwealth and the States. Section 107 preserves the legislative competence of State Parliaments in respect of any topic that is not exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State. This is simply an expression of an element that is implicit in any federal system in which defined powers are granted to the central authority and the undefined residue remains with the constituent provinces. Section 107 confirms that as the underlying principle of Australian federalism. 30A similar assertion made by the respondent in Vorhauer 2002 was rejected at [16]: The Applicant also contends that all State laws, including the laws under which she has been prosecuted, are invalidated by s109 of the Constitution without the possibility of rectification (referring again to Metwally). The basis of this is that the States have no representative of the Queen to validate any legislation. She refers to s70, s58, s59 and s60 of the Australian Constitution. The provisions to which she refers relate to the Government of the Commonwealth of Australia and the mechanisms for Royal Assent to Bills of the Commonwealth Parliament. That has nothing to do with a State Constitution. Those constitutions, and laws made under them, are preserved by s106, s107 and s108 of the Commonwealth Constitution. 31The cross-claimants also submit that all amendments to the Crimes Act 1900 are invalid under s 108 of the Constitution. I reject the submission. Section 108 specifically authorises State parliaments to amend laws by providing, at the end, that "until provision is made in that behalf by the Parliament of the Commonwealth, the Parliament of the State shall have such powers of alteration and of repeal in respect of any such law as the Parliament of a Colony had until the Colony became a State".

The Constitution is self-executing and Metwally 32In various parts of the cross-claim (for example, p 3 [1], p 4 [6(a)], p 7 [16(i)] and p 18 [2]), reference is made to University of Wollongong v Metwally [1984] HCA 74, 158 CLR 447 and to the Constitution being "self-executing, and does not require judicial order". 33Presumably, these references are derived from statements in Metwally by Brennan J at 474.2 and Deane J at 478.7 and 479.3 that the terms of s 109 of the Constitution are "self-executing", and the statement by Murphy J at 468.4 that the operation of s 109 is "automatic and does not require a judicial order". The cross-claimants' apparent assertion that these statements govern the entire Constitution is difficult to comprehend and, in any event, does not advance their case. 34Before Metwally, the High Court in Viskauskas v Niland [1983] HCA 15, 153 CLR 280 held that the relevant provisions of Part 2 of the Anti-Discrimination Act 1977 (NSW) (ADA) were inconsistent with the Racial Discrimination Act 1975 (Cth) (RDA) and to that extent were rendered invalid under s 109 of the Constitution. After that decision, the Commonwealth Parliament enacted the Racial Discrimination Amendment Act 1983 (Cth) (Amending Act) which applied retrospectively and provided that the RDA was deemed not to exclude or limit the operation of State and Territory laws (including the ADA) that furthered the objects of the relevant international convention. In Metwally, the High Court held that the Amending Act was ineffective since the inconsistency brought about by s 109 of the Constitution between the ADA and RDA could not be overridden by the Commonwealth Parliament. Clearly, Metwally is not relevant to the substantive issues in these proceedings. I reject the cross-claimants' submission that s 109 is relevant to this case. No question of inconsistency between a State law and a Commonwealth law arises here. In Vorhauer 2002 at [11] Spigelman CJ said: The Applicant also referred to covering cl 5 of the Constitution as binding all courts and relied on the "self-executing nature of the Constitution", for which proposition she relied on the High Court judgment in University of Wollongong v Metwally (1984) 158 CLR 447. This judgment, again "in conjunction with" s73 of the Constitution had, she said, direct effects on the validity of orders made in the proceedings, particularly by the respective District Court judges. Nothing in s73 of the Constitution has the effect of entrenching what the Appellant referred to in her Notice of Motion as "common law rights". None of the respects in which she relied on this chain of "reasoning" can be upheld.

Trespass, Plenty v Dillon and Coco v The Queen 35The cross-claimants' (apparent) contention that entry by council officers onto the Property would constitute trespass, together with their reliance on Plenty v Dillon [1991] HCA 5, 171 CLR 635 and Coco v The Queen [1994] HCA 15, 179 CLR 427 (as well as covering cl 5 and s 76(i) of the Constitution), are misconceived (see, for example, [4], [5] and [10] of the respondent's motion and p 3 [3], p 5 [11(a)], p 6 [14], p 7 [16(n)] and p 8 [16(p)], [20] and [21(b)-(c)] of the cross-claim). 36As a starting point, there is no evidence here of council officers having entered the Property without lawful authority, or at all. 37Covering cl 5 of the Constitution, which refers to the Constitution and Commonwealth laws being binding on "the courts, judges and people", has no bearing on the substantive issues raised in these proceedings: see, further, Vorhauer 2002 at [11]. Similarly, the cross-claimants' reference to s 76(i) of the Constitution, which confers on the Commonwealth Parliament power to "make laws conferring original jurisdiction on the High Court in any matter: (i) arising under this Constitution, or involving its interpretation", does not advance their case. 38The decisions in Plenty v Dillon and Coco v The Queen are not relevant. The latter was concerned with authorisation to use a listening device under the Invasion of Privacy Act 1971 (Qld). The High Court held that the relevant provision in that Act did not confer power on a judge to authorise entry onto premises for the purpose of installing a listening device in circumstances where the entry onto the premises would have constituted trespass. In Plenty v Dillon the High Court held that (a) at common law, a police officer charged with the duty of serving a summons is not authorised, without the consent of the person in possession or entitled to possession of land and without any implied leave or licence, to go on the land in order to serve the summons, and (b) s 27 of the Justices Act 1921-1975 (SA) did not authorise entry onto private premises in order to effect service of the summons. These issues do not arise here. See, further, Vorhauer 2002 at [10] where Spigelman CJ said: In the alternative, the applicant relied on some "combination" of s73 of the Constitution and the High Court judgment in Plenty v Dillon (1991) 171 CLR 635. This appears to be the basis of a submission that the criminal proceedings against her were invalid because the police officers were trespassers. Plenty v Dillon was an action in trespass to land against police officers who entered private property without proper authority. It has no relevance to the validity of the criminal proceedings against the Applicant or of any of the judicial orders made in the proceedings. It may have some implication for the admissibility of evidence in those proceedings, but that is not before this Court. Section 73 has nothing to say with respect to any of the conduct complained of by the Applicant.

Acquisition of property under s 51(xxxi) of the Constitution 39An assertion is made concerning s 51(xxxi) of the Constitution, which confers power on the Commonwealth Parliament to make laws with respect to "the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws" ([11] of the respondent's motion). Section 51(xxxi) is concerned with the legislative powers of the Commonwealth Parliament. Its application is of no relevance here, where the central question is whether the Court should make an order for the removal of the shipping container and two site offices from the Property. No issue arises here concerning compulsory acquisition of property by the Commonwealth.

Land tax 40The cross-claim asserts that s 114 of the Constitution prohibits any government from levying land tax (at p 12 [13(b)]). Annexed to the cross-claim is a 2006 newsletter from the NSW Valuer-General which states that an owner of NSW investment property may be liable to land tax. The assertion concerning s 114 of the Constitution is made in support of a claim that the Council authorised the obtaining of money by false and misleading statements contrary to s 178BB of the Crimes Act 1900. Section 114 of the Constitution prohibits a State from imposing tax on property of any kind "belonging to the Commonwealth" without the consent of the Commonwealth Parliament. No question of State land tax on property belonging to the Commonwealth arises in these proceedings. Therefore, s 114 is irrelevant in that context.

Other constitutional assertions 41The cross-claim's further reference to s 114 of the Constitution and the maintenance of a military force (see, for example, p 6 [15(a)] of the cross-claim) is difficult to comprehend. In any event, s 114 (which also prohibits a State from maintaining a military force) is of no relevance to these proceedings. 42The references in the cross-claim to s 80 of the Constitution (see, for example, p 6 [16(c)] of the cross-claim) are also of no relevance. That section provides for trial by a jury in the case of a "trial on indictment of any offence against any law of the Commonwealth". 43Finally, the references in the cross-claim to s 71 of the Constitution (see, for example, p 6 [12] - [13] of the cross-claim) do not assist the cross-claimants. That section provides for the vesting of the judicial power of the Commonwealth in "the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction".

NON-CONSTITUTIONAL ALLEGATIONS IN CROSS-CLAIM 44The cross-claim contains numerous allegations of criminal conduct by the Council in contravention of the Crimes Act 1900 (NSW) and the Crimes Act 1914 (Cth). The alleged criminal conduct includes fluoridation of the city water supply (characterised, inter alia, as attempted murder), issuing rates notices to the respondent, and letters to the respondent seeking payment of rates and charges. However, at the hearing the cross-claimants, as well as the Council, submitted, and I accept, that all these allegations are outside the Court's jurisdiction. Contrary to what I understand is the cross-claimants' submission, it does not follow that this Court should transfer the cross-claim, insofar as it alleges criminal conduct, to the District Court of NSW. This Court has no power to do so. Moreover, in my opinion, on the evidence, the allegations are without legal foundation.

ORDERS SOUGHT IN THE CROSS-CLAIM 45In my opinion, the orders sought in the cross-claim are without merit. They include orders to the following effect: (a)That "the orders of the Council are to be stayed as being invalid, and TREASON". There are no orders of the Council. (b)That the cross-claim and all documents relating to the summons be transferred without any further hearing in this Court to the District Court of NSW. This Court has no power to transfer the proceedings to the District Court. Further, if and insofar as the premise of this proposed order is that this Court has no federal jurisdiction to determine the constitutional challenges then, as discussed earlier, the premise is incorrect. (c)That the cross-claimants be granted the "CONSTITUTIONAL RIGHT" to ignore legislation/orders from the Council because the Council is not recognised by the Constitution. I have earlier rejected this argument. (d)An order for compensation for trespass by the Council on the residence of Florence Vorhauer. As discussed earlier, there is no evidence of any such trespass. In any event, this Court has no jurisdiction to award compensation for trespass. (e)The cross-claimants be granted leave "to activate for prosecution the criminal jurisdiction matters, of the Crimes Act 1900,...to the District Court" and to apply for a jury to hear the criminal matters. This Court has no jurisdiction to grant such leave. In any event, I cannot see any arguable basis for commencing a criminal prosecution.

COSTS 46The respondent and cross-claimants have been unsuccessful and should pay the costs of the Council and Ms Ferris. The Attorney General does not seek costs. The respondent submits that costs should not be ordered against her and her daughter because of their financial circumstances. However, whether a party has means to meet a costs order is not a relevant consideration as to whether a costs order should be made: Palerang Council v Banfield (No 2) [2012] NSWLEC 158 at [140] - [141] and the cases there cited.

ORDERS OF THE COURT 47In view of the matters discussed above at [14] - [15], I propose to give the respondent six months to remove the subject items from the Property, with liberty to apply for an extension of time. 48The orders of the Court are as follows: (1)Order that the respondent remove the shipping container and two transportable construction site offices from her property at Lot 16 DP 242531 known as 36 Uralla Road, Armidale by 13 January 2013. (2)Liberty to apply for an extension of the time referred to in Order 1 on 7 days notice. (3)The Cross-Claim/Cross Summons is dismissed. (4)The respondent is to pay the applicant's costs of the summons. (5)The cross-claimants are to pay the cross-respondents' costs of the Cross-Claim/Cross Summons. (6)No order as to the Attorney General's costs. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 July 2012