Horton v Palerang Council

EX TEMPORE Judgment 1Palerang Council (the Council) seeks an order that an Application Class 3 filed by Derek Horton on 29 August 2013 be struck out and the proceedings dismissed pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005 (UCPR). The Council contends that no reasonable cause of action is disclosed in the proceedings. 2Mr Horton opposes the motion. He is a self-represented litigant although not entirely unfamiliar with the Court's processes, given that this is the third occasion on which he has brought proceedings against the Council in this Court. 3The provision of the rule that I am asked to apply, namely r 13.4(1) relevantly provides as follows: "13.4 Frivolous and vexatious proceedings (1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings: ... (b) no reasonable cause of action is disclosed, ... the court may order that the proceedings be dismissed generally or in relation to that claim. ..." 4The terms in which the proceedings were brought by Mr Horton need to be noticed. As I have said, the initiating process was an Application Class 3. The details of the application as stated in the Court form were described as "Tax invoice rate notice 2013 - 2014". The statutory provisions under which the appeal was brought were described in the application as being "s 574 of the Local Government Act 1993 and Regulation 127F of the Local Government (General) Regulation 2005." 5Importantly, the orders sought in the application were expressed as follows: "(i) That Palerang Council be found guilty of fraud, in other words obtaining money from me by false pretences". (ii) That the Court approve my claim for exemplary damages of $150,000". Attached to the Application as filed were a number of rate notices or rate instalment notices issued by the Council to Mr Horton and his former wife, for the years 2006 up to and including the rate notice given on 29 July 2013 for the current rating year, that is the 2013 - 2014 financial year. 6Given the terms of the Application and given that the material that I have just described was the sum total of the material identified in or referred to in that Application, the Council filed its present notice of motion. The motion came before Sheahan J, as List Judge, on 4 October 2003. The hearing of the motion on that day was vacated. Further, his Honour made directions including a requirement on the part of Mr Horton that he file and serve upon the solicitors for the Council, evidence or documents upon which he intended to rely at the hearing of the Council's notice of motion. The matter was then fixed for hearing before me today. 7The response of Mr Horton to the direction made on 4 October was to request particulars of one item shown in a copy ledger or statement of account that was annexed to the affidavit of Jonathan Idas, the solicitor for the Council, and filed in support of the Council's notice of motion. That request was responded to by the Council's solicitors shortly after the request was received. The information provided contained details of a payment made on 10 October 2012, indicating the way in which the total payment then made had been apportioned by the Council to Mr Horton's rates account. The information so provided seemed to me to comply with the terms of the request that Mr Horton had made. 8As I have said the statutory foundation for the present application was identified by Mr Horton as being s 574 of the Local Government Act 1993. That section relevantly provides as follows: "574 Appeal on question of whether land is rateable or subject to a charge (1) A person who has an estate in land, or who is the holder of a licence or permit for land under the Crown Lands Act 1989, in respect of which a rates and charges notice is served may appeal to the Land and Environment Court: (a) in the case of a rate - against the levying of the rate on the ground that the land or part of it is not rateable or is not rateable to a particular ordinary rate or a particular special rate, or ... (2) An appeal may not be made under this section on the ground that land has been wrongly categorised under Part 3. (3) An appeal must be made within 30 days after service of the rates and charges notice." 9No evidence, even of a preliminary nature, has been identified in the material provided by Mr Horton that addresses the provisions of s 574(1)(a). Mr Horton, as I understood him, fairly acknowledged that his land was rateable land. He was unclear as to whether or not the particular ordinary rate applicable to it, described in the rate notices as being residential, was appropriate, but no basis upon which one could understand that the rate was inapplicable was identified. He did challenge the accuracy of the postal address stated on the rate notice but did not assert that the notice had not been received. His quarrel with the address, so it seemed to me, had no bearing whatsoever upon whether or not his land, however it may be addressed in the rate notice, was rateable. He did not assert any other basis for claiming that the provisions of s 574(1)(a) enlivened his right of appeal. 10It is important to notice that apart from reliance upon s 574, a claim of fraud was made. Such claims are not to be entertained lightly by court's generally without any adequate particularisation. Cases of high authority make clear that if fraud is alleged in litigation it must be pleaded specifically and with particularity (Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 per Mason CJ and Gaudron J at 285. Moreover, the jurisprudence attending the allegation of fraud makes clear that such an allegation must properly be particularised even in proceedings which do not call for the filing of pleadings (see for example Minister Administering the Crown Lands (Consolidation) Act and Western Lands Act v Tweed Byron Aboriginal Land Council (1990) 71 LGRA 201). No basis was stated by Mr Horton to found his claim of fraud. 11Further, as I have also indicated, part of the application made by Mr Horton was that the Court "approve" his claim for exemplary damages in the sum of $150,000. When asked to identify the statutory basis enabling the Court to entertain that claim, he was not able to identify any provision of the Land and Environment Court Act 1979 or other legislation that would provide the Court with power to award damages against a council because it had imposed rates in a sum that was claimed to be incorrect. That claim simply cannot be sustained. Furthermore, no indication was given in the material provided by Mr Horton, such as it was, to indicate how a claim in the sum of $150,000 would be determined. 12The courts have made clear that the exercise of the discretionary power available under UCPR, r 13.4 is to be sparingly exercised. However, if the absence of any relevant material warrants the conclusion that no cause of action relevant to the case at hand is demonstrated, there is no reason why the power should not be exercised. The fact that the rule identifies the power to dismiss proceedings where no reasonable cause of action is demonstrated indicates that there is an element of permissibility in the wording of the rule against which the court may assess its power to make the appropriate order. Such an order also needs to be understood in the context of the overriding purpose expressed in subsections (1) and (2) of s 56 and of the Civil Procedure Act 2005 which encourages practical judgment about proceedings and the prospects of success. 13As the Council submitted, the dismissal power available under the rule is not confined to proceedings that are demonstrably certain to fail. However, the absence of any material relevant to matters able to be argued in the present proceedings would suggest that there is no basis upon which one could properly conclude that those proceedings, as presently framed, would have any prospect of succeeding. 14The consideration of this matter also needs to be seen in the context of earlier proceedings to which I have already adverted. The claims that are made by Mr Horton would appear to be claims that are repetitive of those that he has made in proceedings first determined by me in Horton v Palerang Council (No 2) [2012] NSWLEC 229. In those proceedings Mr Horton had also sought to rely upon s 574 of the Local Government Act as the basis to seek general damages, aggravated damages and exemplary damages for the actions of the Council in levying rates upon Mr Horton's land. As is recorded in the judgment given in that matter, it seemed to be that, in truth, Mr Horton was claiming an action for account of moneys due for rates levied on the one hand and moneys paid on the other. As the judgment also reveals, the use of proceedings under s 574 of the Local Government Act was an inappropriate vehicle to be utilised for the resolution of the accounting dispute between Mr Horton and the Council. 15Undaunted by the decision in that matter, which involved the summary dismissal of those proceedings, Mr Horton again commenced proceedings against the Council earlier this year. In those proceedings the orders that he sought were again said to be founded upon s 574 of the Local Government Act. The orders sought were a "review of all rate notices since 2004" together with exemplary damages of $150,000. Those proceedings were dismissed by Biscoe J, again applying the provisions of Pt 13, r 13.4 of the UCPR (Horton v Palerang Council [2013] NSWLEC 102). His Honour determined in those proceedings that there was no reasonable cause of action disclosed, given that Mr Horton apparently sought to agitate what, in effect, were some accounting difficulties between himself and the Council for rates levied and payments made. 16It will therefore be seen that this is the third attempt that Mr Horton has made to agitate his rate account with the Council, that is to say, the question of whether the Council has properly accounted for rates levied and payments made on account of rates. The evidence that was tendered by Mr Horton and which I allowed provisionally, subject to relevance, comprised again those rate notices and rate instalment notices to which I have earlier referred, namely those that were given to Mr Horton and his former wife as joint proprietors of the land in question between 2006 and 2013. This, so it seems to me, makes apparent that despite the purported reliance upon s 574 of the Local Government Act, the proceedings were yet a further attempt to have brought to account rates levied and payments made to the Council over the years in question. 17In short, for the reasons that I have identified, I find that there is no demonstrable basis to sustain the proceedings that have been instituted by Mr Horton. Clearly, none of the limited bases of challenge under s 574 were demonstrated, that is, there was no demonstration by any admissible evidence, even on a prima facie basis, that the land was not rated to a particular rate which had been imposed upon it. To the extent to which the section was seen to be a vehicle either to recover damages or to assert fraud (perhaps with damages being the consequence of the allegation of fraud), no attempt has been made to identify the basis upon which that fraud might be alleged. 18The directions given by Sheahan J on 4 October 2013, enabled Mr Horton to provide evidence that would demonstrate a case, amongst others, founded on fraud. No evidence was forthcoming that could possibly support such an allegation. 19In those circumstances it is appropriate to exercise the discretion under r 13.4 of the UCPR and dismiss the present proceedings. 20In response to the question of what order for costs, if any, would follow, should I reach the decision that I have just indicated, the Council stated that it wished to have an order for costs made in its favour. It must be acknowledged that such an order would not be the usual order given that these are proceedings to which Pt 3, r 3.7(1) of the Land and Environment Court Rules 2007 applies. That is, they are proceedings to which the ordinary rule that costs follow the event do not apply. Nonetheless, the Court is empowered to make such an order if it is "fair and reasonable in the circumstances" so to do. Mr Horton's response to the application for costs was that he could not afford to pay. 21The circumstances here are important to be noticed. The evidence reveals that prior to the Council filing its present notice of motion seeking dismissal of the proceedings, it advised Mr Horton of its intention so to do and invited him to discontinue without the necessity for any such action. So much is apparent from the copy letter annexed to the affidavit of Jonathan Idas sworn 27 September 2013. Letters so indicating were addressed to Mr Horton at both the address of the property in question and to a post office box at Braidwood which Mr Horton had identified in his Class 3 application as his address for service. 22Those letters indicated in clear terms that in the opinion of the solicitors Mr Horton's application did not disclose a reasonable cause of action and signalled the intention to file a notice seeking summary dismissal. Mr Horton was invited to consent to the dismissal of the application. He, as he was entitled to do, did not accept the invitation. Nonetheless, that circumstance bears upon the question of costs, given the finding that I have made that no reasonable cause of action has been demonstrated. 23Secondly, in considering the relevant circumstances for the purpose of applying r 3.7, I take account of the fact that this is the third occasion upon which an attempt has been made by Mr Horton to adjust his financial relationship with the Council, so far as it arises from the imposition of rates. No matter how Mr Horton changed the description of orders sought in his third set of proceedings, whether it be fraud, damages, account, review or otherwise, all proceedings were commenced to the same end, namely to have the Court reconcile those rates that have been imposed and to take account of payments that have been made. 24As explained to Mr Horton in Horton v Palerang Council (No 2), the Court did not have jurisdiction to embark upon an enquiry of the kind that he seeks. Nonetheless he has persisted. His persistence seems to me to count in favour of an order being made. When I take into account that circumstance together with the opportunity that the Council afforded to him in the current proceedings to discontinue at an early stage, an invitation that he chose not to accept, then it seems to me that in all the circumstances it is fair and reasonable that an order for costs be made. 25As a consequence I make the following orders: