Armidale Dumaresq Council v Vorhauer

Issues for Determination 12The hearing presented the Court with two broad issues for determination: (a)first, did the Court have the power to make the orders sought by the council; and (b)second, if it did, should the Court exercise its discretion to do so?

Does the Court Have the Power to Make the Orders Sought by the Council?

Liberty to Apply 13This issue arose because when pressed to identify the source of the power giving rise to any exercise by the Court of its discretion to make the orders, the council submitted that it was pursuant to the liberty to apply order made by Biscoe J. 14But there are at least two reasons why this order cannot be the source of the Court's power to make the orders in the council's notice of motion. First, the liberty to apply order is circumscribed in scope and extends only to the parties applying for an extension of time within which to comply with the removal order. 15Second, and more fundamentally, the liberty to apply order cannot empower the Court to effectively authorise the council to trespass on Mrs Vorhauer's land and remove items from it belonging to her daughter and herself. Impermissible at common law, this action must be carried out pursuant to statutory authority. 16The scope of liberty to apply was discussed recently by the Court in Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 8) [2013] NSWLEC 168. In that case the concept of liberty to apply was described as follows (at [29]-[32]): 29 The traditional conception of an order reserving liberty to apply is that when final orders are drawn up, their working out or carrying out may involve matters on which it may be necessary to obtain a direction or decision of the court in order to give effect to or implement the orders; the liberty is not to be used to alter or change the substance of an order (Cristel v Cristel [1951] 2 All ER 574; [1951] 2 KB 725 at 728). 30 In Phillips v Walsh (1990) 20 NSWLR 206, an application was made for some substantive orders for the enforcement of, and consequent upon, a compromised agreement relating to the administration of a deceased estate. The Court was of the view that the relief sought was inappropriate and that fresh proceedings were necessary. After referring to Bailey v Marinoff, McLelland J stated (at 209-210, citations omitted): One such principle of the general law is that when proceedings have been disposed of by a final order which has been entered, the proceedings are at an end and cannot be revived. There are a number of exceptions and qualifications to this principle but none that has any relevance to the present application, unless it be that subsequent to a final order application may be made for the purpose of dealing with a matter involved in, or arising in the course of, working out that order; for example, by making more specific provision for its implementation or by modifying its operation to take account of some subsequent change of circumstance or by enforcing it. This exception or qualification does not, however, extend to an application made for the purpose of giving substantive relief not sought in the statement of claim or which is substantially different to that given by the final order... 31 Thus in Abigroup Ltd v Abignano (1992) 39 FCR 74; (1992) 112 ALR 497 the Full Federal Court of Australia described the scope and proper application of liberty to apply as follows (at 509 per Lockhart, Morling and Gummow JJ): The reservation of liberty to all parties to apply to a court is a provision directed essentially to questions of machinery which may arise from the implementation of a court's orders. They include cases where a court may need to supervise the enforcement of orders after they have been made. 32 These formulations have subsequently been endorsed and applied in this and other courts (Maritime Union of Australia v Geraldton Port Authority (No 3) [2000] FCA 1342; (2000) 106 IR 119 at [6]-[10]; Bonnici v Ku-Ring-Gai Municipal Council [2001] NSWSC 1124; (2001) 121 LGERA 1 at [164]-[167]; Meehan v Glazier Holdings Pty Ltd [2002] NSWCA 22; (2002) 54 NSWLR 146 at 153; Muriti v Prendergast [2005] NSWSC 281 at [158]; Hurstville City Council v Renaldo Plus 3 Pty Ltd [2006] NSWCA 248 at [97]-[102]; Australian Hardboards Ltd v Hudson Investment Group Ltd [2007] NSWCA 104; (2007) 70 NSWLR 201 at [50]-[56]; Brown Brothers at [15]-[20]; Tomanovic v Global Mortgage Equity Corporation Pty Ltd (No 2) [2011] NSWCA 256; (2011) 288 ALR 385 at [46] and Asuzu v Council of the New South Wales Bar Association [2012] NSWCA 406 at [30]). 17As was observed in Foxman (at [33]), the scope of any reservation of liberty to apply must also be considered within the context of the overriding purpose rule enshrined in s 56 of the Civil Procedure Act 2005. As Campbell JA stated in Australian Hardboards Ltd v Hudson Investment Group Ltd [2007] NSWCA 104; (2007) 70 NSWLR 201 (at [69]): 69 A reservation of liberty to apply, by a 21st century judge of the New South Wales Supreme Court, needs to be understood in the context of the particular practices and procedures that this Court has now. Section 56 of the Civil Procedure Act 2005 must be taken into account. ... 18In Australian Hardboards his Honour described the power contained in liberty to apply in an orthodox manner, viz, as enabling further orders to be made for the purpose of "working out the order" granting the principal relief already pronounced (at [50] and [52]). However, he went on to opine that not only was there no difficulty in exercising the liberty to apply for the purpose of making supplementary orders to deal with facts that had arisen since the original order was made (at [58]), but that "there is no need for applications under liberty to apply to be confined to pure matters of machinery" (at [64]). 19However, this dictum does not, in my opinion, enable the Court to order the removal of the shipping container and the site offices. The orders sought by the council have not arisen by reason of changed circumstances or new facts not known at the time of the making of Biscoe J's orders. The removal order was directed at Mrs Vorhauer to undertake certain action by a specific date. This has not occurred. The orders sought by the council are not, however, to facilitate Mrs Vorhauer's compliance with the removal order. In these circumstances, the proposed orders cannot be properly characterised as being made for purpose of "working out the [removal] order", rather they are, in truth, seeking new and substantive orders, namely, that the council be permitted to enter onto the property to remove the offending items, which in turn will cause Mrs Vorhauer to cease her present occupation of the property. Such a drastic measure cannot readily be effected by exercising a liberty to apply. Were the Court to make the orders sought by the council on this basis, it would, in my opinion, be acting beyond power.

Rule 40.8 of the Uniform Civil Procedure Rules 20Alternatively, the council argued in further written submissions filed with leave of the Court after the conclusion of the hearing, that the source of the Court's power to make the orders authorising it to remove the items from the property was contained in r 40.8 of the Uniform Civil Procedure Rules 2005 ("UCPR"). 21The council submitted that because Mrs Vorhauer had failed to comply with a final order made by the Court in these proceedings, namely, order 1 made by Biscoe J (quoted above at [3]), that the Court had the power to make a further order or direction requiring the council to do an act which Mrs Vorhauer was required to do, but has not done so. That is to say, a substantive performance order. 22In this regard, r 40.8 of the UCPR provides as follows: 40.8 Substituted performance If a judgment requires a person to do an act and the person does not do the act, the court: (a) may direct that the act be done by a person appointed by the court, and (b) may order the person to pay the costs incurred pursuant to the direction. 23Rule 40.8 of the UCPR has been utilised by this Court to make substituted performance orders. In Wollongong City Council v Falamaki (No 3) [2009] NSWLEC 80 (at [47]) Pain J applied the rule to make an order permitting a council to undertake demolition of a structure if the respondent, Dr Falamaki, did not comply with an order to do so within a certain period of time, in order to avoid the need for further litigation. 24Similarly, in Eurobodalla Shire Council v Gerondal (No 3) [2012] NSWLEC 46, Biscoe J made a substituted performance order to the effect that, if Mrs Gerondal did not comply with an order to remove certain items from her property within three months, the council would be entitled to enter the property and carry out the works at her cost. Informing the exercise of his Honour's discretion was the history of defiance and default by Mrs Gerondal, and her claimed inability to comply with a prevention notice issued by the council (the non-compliance with which resulted in the proceedings before the Court) due to ill health (at [31]). 25In the Federal Court of Australia, a similar rule has been applied in Speedo Holdings B V v Evans (No 2) [2011] FCA 1227 (at [34]-[37]) and Sumitomo Mitsui Banking Corporation v Sumitomo Mitsui Financial Group Pty Ltd (No 2) [2009] FCA 496 (at [8]-[9]).

Submissions of Mrs Vorhauer 26By way of reply generally, and to the specific question of whether the Court had the power to make the orders sought by the council, Mrs Vorhauer raised the following arguments in her initial, further and supplementary written submissions (in response to the council's further and supplementary written submissions) and during oral argument: (a)first, that the matter raised several constitutional issues that the Court did not have jurisdiction to determine; (b)second, that the council had no status or authority because it was not recognised under the Constitution. In particular, Mrs Vorhauer relied upon the asserted fact that the attempted constitutional recognition of local councils had failed in the 1988 referendum; (c)third, that the State Parliament was without constitutional authority because it did not have a representative of the Queen; (d)fourth, reference was made to University of Wollongong v Metwally [1984] HCA 74; (1984) 158 CLR 447 and to the Constitution being "self-executing". That is to say, it does not require a judicial order to be given effect to; (e)sixth, that the orders sought by the council amounted either to an acquisition of property under s 51(xxxi) of the Constitution and/or an act of theft by the council; (f)seventh, that entry onto the property by the council would constitute a trespass and would be contrary to cl 5 and s 76(i) of the Constitution. In support of this submission, Mrs Vorhauer relied upon the decisions in Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635 and Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427; (g)eighth, that the orders sought by the council were contrary to, amongst other provisions, ss 71, 76, 108 and 114 of the Constitution; (h)ninth, that because the council was a business, as evidenced by the ABN it provided on the proposed short minutes of order, the summons commencing the proceedings and the notice of appearance, the Local Government Act 1993 could not apply to it, because a business was not democratically elected and, therefore, could not constitute a council. Furthermore, a business had no rights on private property, and therefore, the council could not enter onto the property to remove the items; (i)tenth, that the summons and the notice of appearance only stated the council's ABN on the last page of the initiating process and not on the first page. This meant that the applicant that was stated on the first page was not the same entity as that stated on the last page insofar as one was a council and one was a business. Therefore, both the summons and the notice of appearance were "false instruments" which was a breach of the criminal law; (j)eleventh, that the council was not a 'person' and therefore any proceedings instituted by it, including the notice of motion, were invalid and "false instruments" because only a person could commence an action against her; (k)twelfth, that the short minutes of order and the notice of motion were signed by a solicitor on behalf of the council and not a person from the council, and were thus invalid; (l)thirteenth, that there was no environmental harm being caused by the occupation of the shipping container and the sheds and that the proceedings were malicious; (m)fourteenth, that I was biased; and (n)fifteenth, that the shipping container and the sheds were the property of her daughter, Ms Lisa Vorhauer, who was not a party to the proceedings. 27At the hearing Mrs Vorhauer handed to the Court a bundle of material, purportedly constituting evidence in support of her submissions. In addition, she tendered two letters in support of her claims. First, a letter dated 29 January 2014 addressed to "Chief Justice, The Hon. T F Bathurst, Supreme Court of NSW", and second, a letter dated 30 January 2014 to "Chief Judge The Hon. Justice Brian Preston" at the Land and Environment Court of New South Wales. The letters were in almost identical terms with identical attachments. Essentially the letters and attached material complained about the unjust and treasonable nature of the present proceedings and the unlawful conduct of the council. 28Mrs Vorhauer also relied upon an Income Statement from Centrelink (the relevance of which is discussed further below), dated 18 November 2013; a writ for levy of property issued by the Local Court of New South Wales on 8 November 2013; and an appeal to the Queen dated 3 January 2014, and to the Governor-General of the Commonwealth dated 1 January 2014, both of which contained similar content and allegations to that contained in the letters addressed to the Chief Justice of the Supreme Court and the Chief Judge of this Court referred to above. 29Attached to her further written submissions filed with the Court was additional material comprising of: partial transcript of criminal proceedings before Blackmore DCJ in the District Court in June 2003 involving Mrs Vorhauer; a letter from the Director of the Community Relations Unit of the New South Wales Department of Attorney General and Justice dated 20 December 2013, concerning a letter written by Mrs Vorhauer to the Attorney General, the Hon Greg Smith SC MP, about a writ of levy of property; an article published on 26 February 2014 in The Armidale Express, reporting on the appointment of the Acting General Manager of the council, Mr Glenn Inglis; a letter to Mr Shane Burns, General Manager of the council, and various councillors dated 20 January 2014, stating that the council's notice of motion was unconstitutional; and a subsequent letter to the council dated 20 February 2014, of similar content. 30Strictly speaking the provision of this material fell outside the leave granted by the Court to the parties to file supplementary submissions on the question of the Court's power to make the orders sought by the council and constituted an attempt by Mrs Vorhauer to reopen her case to adduce further evidence. While not admitting the material into evidence, I nevertheless had regard to it as forming part of her supplementary submissions. 31In my view, however, none of the material relied upon by Mrs Vorhauer was of assistance.

Constitutional Issues 32With the exception of the theft allegation, the claims summarised in paragraphs 26 through to (g) above, were dealt with comprehensively by Biscoe J in Vorhauer (at [17]-[43]). Although these issues were raised again in answer to the notice of motion, his Honour's analysis of them is directly applicable to the present proceedings and the claims must be rejected for the reasons given by his Honour in Vorhauer, which I respectfully adopt.

Theft Issue 33As to the submission that to grant the orders would be to sanction theft by the council of Mrs Vorhauer's property, the orders do not permit the Council to keep in perpetuity the items it seeks to remove. Rather, the orders only authorise the removal and storage of the items. No theft will occur.

Court Form Issues 34Turning to the issues raised above at paragraph 26 through to (k) (in the order they appear above): (a)first, the fact that the council has an ABN for taxation purposes does not preclude it from commencing legal proceedings. Businesses commonly institute legal action. The council is a body politic of the State and has the legal capacity and powers of an individual (s 220 of the Local Government Act). A "person" includes a "body politic" (s 21 of the Interpretation Act 1987). There is nothing "false" about either the summons or the short minutes of order in this regard. There can be no doubt, having regard to the language, scope and purpose of the Local Environment Act that it applies to, and governs, the operations of councils. In any event, the council has had conferred upon it by reason of that enactment, powers to enter onto the land of third parties (see for example, Ch 8, Pt 2, "Entry onto land and other powers" and s 678); (b)second, there is nothing misleading, let alone criminal, about the fact that the ABN did not appear next the name of the council as the "applicant" on the front page of either the summons or the notice of appearance, but did appear on the last page under "details about the applicant" and "details about the filing party", in each of those respective documents. In each, information was sought about the entity filing the form, and such information properly included the ABN. The ABN does not form part of the name of the "applicant" and the council was correctly described on the front of each form absent any reference to it. In each instance, the entities were the same; (c)third, as stated above, the council is a body politic and an individual, and therefore, a legal person. Neither the proceedings nor the notion of motion are invalid on this basis; and (d)fourth, there was nothing improper about the council's solicitor on the record signing the notice of motion on its behalf. Rule 7.1 of the Uniform Civil Procedure Rules 2005 permits a person to "commence and carry on proceedings in any court...by a solicitor acting on his or her behalf" (emphasis added). Consistent with the filed notice of appearance, it was therefore permissible for Mr David Clifton of Clifton Legal to sign and file the notice of motion in the Court. This constituted the "carrying on" of the proceedings. It was therefore not necessary for an individual from the council, such as the mayor or the general manager, to sign the motion on the council's behalf. The same reasoning applies to the draft short minutes of order, which were, it should be noted, put before the Court to assist it in the finalisation of its orders were the council successful.

Environmental Harm Issue 35Mrs Vorhauer is correct insofar as the council cannot demonstrate any direct environmental harm to the environment by her continued occupation of the shipping container and site shed by herself and her daughter. But her continued deliberate breach of the EPAA has caused indirect environmental harm by undermining the planning regime in New South Wales. In any event, the council is not required to demonstrate any environmental harm for the Court to make the orders that the council seeks. 36All that is needed, is for the council to establish that development consent is required for the property to be used in the manner in which it is currently being used (Biscoe J held that such consent was necessary); that no consent is held for this use (Biscoe J found there was none, and this remains the case); and that there has been no compliance with the removal order (which there has not been).

The Bias Issue 37This issue raised the same arguments and gave rise to the same considerations as those dealt with by the Court in Armidale Dumaresq Council v Vorhauer (No 2) [2014] NSWLEC 7. It must be dismissed for the reasons given in that decision.

Summary 38But for the 'ownership issue' (discussed below), in my opinion, the Court has the power to make the substituted performance order. 39Having said this, whether the ownership issue is framed as a question of power or as a question of the proper exercise of the Court's discretion to make the orders sought by the council, ultimately does not matter. This is because, either way, resolution of the ownership issue in a manner adverse to the interests of the council will be sufficient to defeat the notice of motion.

The Ownership Issue 40The ownership issue arises in the following way. In the principal proceedings before Biscoe J the fact that Ms Lisa Vorhauer, Mrs Vorhauer's daughter, was said to own the items over which the council sought and obtained the removal order, did not trouble the Court. No doubt this was because the proceedings concerned the unlawful use of the land upon which the items were placed, land which was (and continues to be) owned by Mrs Vorhauer. 41However, in Ross v Lane Cove Council [2014] NSWCA 50 (handed down after Biscoe J's decision), the Court of Appeal held that it was incumbent upon the council to have joined the registered owner of the property at the time final orders were made, Ms Chami - ownership having transferred from Mr Ross to Ms Chami during the course of the proceedings - because she was a person who was directly affected by the orders sought in the proceedings and was therefore a necessary party to the proceedings (at [50]). 42In Ross the Court of Appeal opined as follows (at [51]-[53]): 51 It is settled law that a person who is directly affected by the orders sought in a proceeding is a necessary party, and that the obligation to join that person rests upon the plaintiff or applicant or person applying for those orders. 52 In the Superleague case (News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410) at 524-526, the Federal Court (Lockhart, von Doussa and Sackville JJ) applied the test stated by Lord Diplock delivering the advice of the Judicial Committee of the Privy Council in Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 criticising the dichotomy between "legal" and "commercial" interests. His Lordship said at 56: "A better way of expressing the test is: will [a non-party's] rights against or liabilities to any party to the action in respect of the subject matter of the action be directly affected by any order which may be made in the action?" 53 That test has very regularly been followed. Most recently, in John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; 241 CLR 1 at [131], a unanimous High Court said: "Walker Corporation submitted that where a court is invited to make, or proposes to make, orders directly affecting the rights or liabilities of a non-party, the non-party is a necessary party and ought to be joined. That submission is correct. 43Before me, Mrs Vorhauer relied upon the Centrelink Income Statement to prove that her daughter owned the shipping container. This document alone would not have been sufficient to demonstrate ownership of the shipping container, created as it was from unverified representations provided by the Centrelink recipient, namely, Ms Vorhauer. In this regard, I note that the assets are described in the Income Statement as "side sheds". Inferring this to be a reference to the site sheds, it is therefore not known if this includes the shipping container and the site sheds, or simply the site sheds. Moreover, where the statement states "source" and "Receipt date", no information was provided. 44However, to reiterate, in his judgment Biscoe J unequivocally held that, "the interest of Lisa Vorhauer in the proceedings is that she owns the subject shipping container and site offices" (at [5]). I do not know the evidential basis upon which his Honour made this finding, nor does it matter, as I am bound by his Honour's finding. 45The result is that the owner of the items the council seeks to remove, namely, Ms Vorhauer, is a person who, if the order is made, will be directly affected by the substituted performance order. She is therefore, in my opinion, a necessary party who ought to have been joined to the proceedings by the council. 46The need for joinder is all the more acute here because the order is directed to empowering the council, and not the respondent, Mrs Vorhauer (that is to say, Ms Vorhauer's mother), to remove the site sheds, shipping containers, and their contents, to a place controlled not by Mrs Vorhauer but by the council. 47That Mrs Vorhauer cares for her ill and disabled daughter, Ms Vorhauer (Vorhauer at [14]), and therefore, the council submitted, an inference can be drawn that Ms Vorhauer has had notice of these proceedings, is no answer to the council's failure to join Ms Vorhauer to the notice of motion. As the Court of Appeal stated in Ross (at [54] - [55]): 54 Sometimes it is said, as it was said in the present appeal, that merely giving notice to the person affected by the order is sufficient. It will be necessary to return to this in more detail below, but it should be recognised immediately that joinder, not notice, is the default position. In the Superleague case, their Honours said at 526: "In our opinion, the notice given to the players before trial does not, and could not, extend the jurisdiction of the Court to make orders which offend the test stated in Pegang Mining. Absent an application for joinder by a defendant, or by a third party who claims to be directly affected by the proposed orders, it is for the party prosecuting the proceedings to choose who are the necessary parties to enable the Court to make the orders sought. Generally speaking, to permit [the party prosecuting the proceedings] to transfer to others who might be affected by the outcome of the proceedings the responsibility of deciding whether or not they should apply to be joined could be productive of uncertainty and inconvenience. At times, it could lead to the need to halt expensive litigation part-way through, because a third party insufficiently understood the proceedings, or, through impecuniosity or some other reason, was not adequately advised." (emphasis added) 55 In John Alexander's Clubs the last two sentences of that passage were reproduced, and endorsed by the High Court in these terms at [140]: "News Ltd v Australian Rugby Football League Ltd was a case where players who had not been joined in the proceedings but only informed of them were not debarred from attacking the orders made. There is no doubt that Walker Corporation was aware of the first proceedings, and it informed the Court of Appeal of that fact. Walker Corporation said there was a reasonable explanation for its delay in seeking to be joined. Whether or not that is so, it had no duty to seek to be joined, and its delay does not in this case call for explanation." 48In this regard, Mrs Vorhauer correctly noted in her oral and written submission in reply, that she was not representing her daughter in the matter before me and that her daughter was capable of representing herself, as she had done before Biscoe J, and it could not therefore be presumed that Mrs Vorhauer spoke on behalf of her daughter. I agree. Even if this were sufficient, it cannot be inferred that Ms Vorhauer is on notice of the council's current application. 49Likewise, the fact that Ms Vorhauer had been a party to the proceedings before Biscoe J by reason of the cross summons and cross claim cannot save the council. That claim was dismissed by his Honour, and once extinguished, Ms Vorhauer's participation in the proceedings before Biscoe J was terminated. While Ms Vorhauer's cross summons and cross claim may be enough to ensure the validity of the orders made by Biscoe J insofar as she was a party to at least part of the matter before his Honour (a matter about which I do not need to reflect upon further), she has never been a party to the present application for a substituted performance order. She has therefore never been given the opportunity to comment on whether the orders sought by the council, which could potentially have the effect of rendering her homeless, should be made. Plainly she must be given the opportunity to be heard. 50As an alternative, the council requested, in the interests of justice, that the Court adjourn the proceedings in order to permit it to serve Ms Vorhauer with a copy of the notice of motion and to afford her procedural fairness. Leaving aside the fact that this submission appeared to travel beyond the grant of leave given by the Court on 11 April 2014 for the parties to file supplementary submissions on the effect of the ownership issue, it cannot be said to be in the interests of Mrs Vorhauer to continue to prolong finalisation of the motion any further, particularly in circumstances where the council had been granted two adjournments to file further written submissions concerning the ability of the Court to make the orders it seeks. 51It follows that the failure of the council to ensure that Ms Vorhauer is a party to the application presently before the Court must result in the dismissal of the notice of motion.

Costs 52These being proceedings in Class 4 of the Court's jurisdiction, costs follow the event. Therefore, to the extent that Mrs Vorhauer is entitled to such an order (I note in this regard that she was self-represented throughout the preparation for, and hearing of, the notice of motion), the council must pay her costs of the motion.

Orders 53The orders of the Court are therefore that the council's notice of motion is dismissed. The council is to pay Mrs Vorhauer's costs of the motion. And the exhibits are to be returned.

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: 02 February 2015