Plaintiff v Defendant

2 Paragraph 3 of the orders compelled the defendant to remove obstructions installed on a public road by 22 December 2017, failing which the Court authorised the plaintiff to remove the obstruction and recover from the defendant the costs of doing so. Since the making of the orders, the absent defendants have not challenged the orders in any way in Court. Although I stated my reasons in Court for granting judgment, on pronouncing my orders in Court on 20 November 2017, I stated my intention to prepare short written reasons, and I now do so.

3 The case concerns a landlocked rural property in Dalyston that belongs to Joseph Arnoldus Schellekens and Antoinette Schellekens. Theirs is land that neighbours the defendant's land as is depicted in a plan that is Annexure A to the statement of claim. The Schellekens have vehicular access to and from the Bass Highway along a section of Northcote Street and Gibson Street. That can be better seen from Annexure A and Annexure B to my order of 20 November 2017. The defendant also has vehicular access to Bass Highway along Gibson Street. The case alleged that the defendant arranged for the placement of an obstruction in the form of post and wire fencing on the Schellekens road access along a 90 metre section of Northcote and along Gibson Street. A very close examination of the Plan of Survey Annexure B to my orders of 20 December 2017 shows the obstructions.

4 The proceedings were commenced by the Council on 22 April 2015. Between August 2016 and June 2017, the Court was informed the parties were involved in a mediation which came to an end without a resolution of the dispute. The Council filed an amended statement of claim on 3 August 2017 to which the defendant did not file a defence. That means the facts as alleged in the statement of claim are taken as established and accordingly need not be verified by affidavit. In such cases, assuming the material facts are alleged to have sustained the cause of action, the remaining question will be whether the facts and matters alleged in the statement of claim sustain the relief or remedy as sought. The Court has a discretion even if the facts entitle or justify a judgment to refuse to give judgment. But, caution has to be exercised in granting declaratory relief, especially when it is to be granted without a determination of the merits and without a contradictor.

5 I concluded that despite the prolonged and unsuccessful mediation, the absence of the defendant to this application did not appear on the objective evidence to be attributable to any ignorance or mistake. On the materials before me, the plaintiff has not acted precipitously and has given the defendant indulgences with the time limit for filing file a defence. I concluded that the allegations sustained the cause of action. The question which I regard of importance is whether the Court ought not grant declaratory relief on deemed admissions, but require evidence to establish the grant of such relief. As it is, the materials and the applicable legislation does establish the claim. However, in my view, according to the authorities I will consider later, declaratory orders can be made on deemed admissions; and the absence of a contradictor ought not, at least in a case such as the present involving private rights as well as public rights, prevent a declaration being made as a matter of jurisdiction or discretion.

6 The allegations and evident facts are as follows.

7 As originally endorsed on the writ, the statement alleges that the Schellekens have used Northcote Street and Gibson Street for vehicular access to and from the Bass Highway in Dalyston. Northcote Street intersects with Gibson Street.

8 On 30 October 2014, all of Gibson Street and a section of Northcote Street was determined by the Bass Coast Shire Council to be reasonably required for general public use by the council in accordance with s 17(3) of the Road Management Act, and to be placed on the plaintiff's public road register. The declaration classified the combined roadway as a 'rural lane'. As a result of the declaration, the rural lane became a public road for the purposes of the Road Management Act, and also became a 'road' within the meaning of the Local Government Act. These events resulted in giving the defendant the power to remove any obstructions placed on the rural lane under powers in the Local Government Act, including powers to carry out any work to remove obstructions on the rural lane. The plaintiff alleged that the defendant directed an obstruction between June and December 2013 by erecting a fence, gate and cattle trough on the road which is now a rural lane which obstructed the Schellekens from having access along the rural lane from their land to and from the Bass Highway.

9 On 5 April 2016, almost a year after the defendant filed a Notice of Appearance to the Writ, I am told that the plaintiff's solicitors made a demand that the obstructions be removed from the road without seven days. Thereafter, I am told that a mediation process was instigated which involved five episodes in August, September and November 2016 and March 2017, culminating in an end to the process in June 2017.

10 What is pertinent for present purposes is that on 3 August 2017 the plaintiff filed an amended statement of claim which did not alter the substance of the case or the relief or remedy claimed. That is, it was based upon the failure of the defendant to remove the obstructions on the rural lane which was alleged to be a public road for the purposes of the Road Management Act and a road within the meaning of the Road Management Act and over which the plaintiff had the power to require the defendant to remove any obstruction, under the Local Government Act. There is affidavit evidence before the Court that by letter dated 4 August 2017, the amended statement of claim was sent to the defendant under cover of a letter which also said:

We note that in accordance with the Supreme Court Rules, you are required to file a Defence to the Amended Statement of Claim within 30 days of service of the Amended Statement of Claim.

11 The letter was sent by registered post, and the advice receipt is in evidence, as is the tracking notification. It shows that delivery occurred on 11 August 2017. A defence was not filed or served.

12 On 20 September 2017, the plaintiff's solicitors received an email from Eve Hollole (believed to be the defendant's daughter) which stated:

Dear Suzanne,

We refer to the amended statement of claim S CI 2015 01856 ... which we understand has been filed with the court.

Your client has failed to comply with rule 3.06 of the Supreme Court (General Civil Procedure) Rules 2015, which requires the council to provide our/my mother (an unrepresented litigant) with one month's written notice of its intention to proceed with this matter:

Rule 3.06 Proceedings after a year: where a year or more has elapsed since any party has taken any step in a proceeding, any party desiring the proceeding to continue shall give to every other party not less than one months' notice in writing of that party's desire.

I would be grateful if you would let me know if your client intends to comply with Rule 3.06.

13 The purpose of rule 3.06 is to remove any possible assumption that the plaintiff may well have abandoned its case after the effluxion of a year without doing anything to advance the case, or, to prevent taking another party by surprise after a sustained break. The notice under rule 3.06 reawakens the case and also gives the defendant the possible opportunity of moving for a dismissal of the proceeding on a ground of want of prosecution or to propound some other remedy on the grounds that the inactivity of the case was somehow detrimental or prejudicial to the defendant's interests in the fair conduct of the proceedings. In that regard, it is relevant that the mediation had gone for almost a year and it came to an end in June 2017 without a resolution of the dispute. So, I think it not credible to contend that the Council had somehow evinced an intention not to proceed. The effluxion of time was attributable to finding a resolution to the dispute.

14 In response to that email, the plaintiff's solicitors, on 14 September 2017, wrote to the defendant and said:

We refer to an email we have received from Eve Hollole, a copy of which is attached.

If you wish to authorise Ms Eve Hollole to represent you in relation to this court proceeding, please provide us with a written authorisation.

In any case, we have considered the email from Ms Eve Hollole and note that we disagree that council has failed to comply with Rule 3.06 of the Supreme Court (General Civil Procedure) Rules 2015.

Counsel officers attended several mediations with you and your family which were mediated by Anna McRae-Anderson. We understand that the mediation process did not come to an end until 21 June 2017. Therefore, we disagree with the assertion that Council has not taken any step in the court proceeding for more than a year.

However, for the avoidance of doubt and to allow you sufficient notice in which to file a defence to the Amended Statement of Claim, we now formally confirm that Council intends to proceed with the court proceeding and requires you to file a Defence to the amended statement of claim without 30 days of your receipt of this letter.

15 Uninteresting debate could take place whether a mediation is a 'step in a proceeding'. 'Step' could naturally or historically connote a litigation step, that is an intra Court procedural step to trial. Or in a broader sense it could mean a step in the dispute to show it was still going which would include mediation, given the modern importance of mediation and widespread endorsement by Courts as a 'step' to be encouraged or sometimes ordered as part of the litigation process. I think the defendant's point was a technical evasion, and was unmeritorious in the circumstances. But the point became sterilised. The letter was notice. That letter was sent by registered post and evidence before me shows that it was delivered on 17 September 2017. On 19 September 2017, an email from Helen Hollole acknowledged receipt of that letter on 17 September. Her response said:

One of the joint land owners of our farm is currently overseas but will be returning at the end of the week and we will endeavour to respond within your time frame but, as you can see, the intentional notice to do so has been considerably reduced!

16 I see no evidence of highhanded or uncooperative conduct by the plaintiff concerning the time limit for the filing of a defence. There is evidence before the Court that concurrently with this correspondence concerning the filing of a defence, the plaintiff had put a settlement offer to the defendant for her consideration for which the Council had also extended the time for acceptance until 6 October 2017. The extension of time was acknowledged by the defendant.

17 The next letter is very significant. It was sent by the Council's solicitors on 20 October 2017 by registered post. The relevant parts of the letter stated:

We have not been served with a defence to the amended statement of claim from you to date and you are currently in default of the Supreme Court (General Civil Procedure) Rules 2015 ...

Council is entitled to apply for judgment in accordance with Rule 21.02 and Rule 21.04 of the Supreme Court Rules.

Council will allow you a further seven days to file and serve a defence.

Please note that if unless you file and serve a defence within seven days from today's date, we expected to be instructed by Council to apply for judgment in accordance with Supreme Court Rules 21.02 and 21.04, without further notice to you.

19 The statutory basis of the claim is as follows. Under s 17 of the Road Management Act, '(1) A road is a public road if it is - ... (e) a road to which sub-section (3) applies; or ...' Section 17(3) provides, where relevant: 'The relevant coordinating road authority must register on its register of public roads a road in respect of which the road authority has made a decision that the road is reasonably required for general public use.' Such a decision was made by the Council's delegate , and is within the declaration attached as Annexure A to my order.

20 Under s 3(1) of the Local Government Act 1989, 'small road' includes '(ca) a public road under the Road Management Act 2004 ...' So included, a road that is declared as a public road under the Road Management Act attracts powers of a Council as a road authority including traffic management powers as set out in Schedule 11 of the Local Government Act.[2] Clause 5 of Schedule 11 of the Local Government Act states:

A Council may -

(a) move any thing that encroaches on or obstructs the free use of a road or that reduces the breadth, or confines the limits, of a road ... ;

(b) require any person responsible for, or in control of, the thing to move it.

21 Under s 225 of the Local Government Act, the plaintiff has the power to carry out any work to remove any obstruction on the rural lane that the defendant has refused to remove and to recover the costs of carrying out the work from the defendant. As alleged, and as admitted by the absence of the defence, the defendant had obstructed the rural lane by constructing fencing on Gibson Street and across Northcote Street, installed a cattle grid and erected a gate at the entrance to Gibson Street and Bass Coast Highway. It is alleged, and taken to be admitted, that those obstructions block or restrict access from the Schellekens' land to the rural lane and Bass Highway.

22 There should be no doubt that declaratory relief as a discretionary power is available, and I think ought be exercised. There is a real and not theoretical question; the person seeking it has a real interest to raise it and it is directed to the determination of a legal controversy.[3] In this case the 'requirement' for a contradictor was not present, because the relief was sought on the basis of facts taken to be admitted. Something needs to be said about that situation.

23 The question whether a declaration ought be given consensually or on agreed facts or by reference to allegations taken to be admitted seems to have occupied the attention of the Federal Court in a number of cases. One view, said to be based on the approach of the English courts, is for a court to decline to make a declaration on a party's admissions. It is thought to be generally undesirable to grant relief by way of declaratory orders in the absence of any contest on the question. Even then, distinctions arose whether such an approach was a rule of practice only or a rule of law. Other distinction arose whether the rule or the practice depended on whether the subject of the declaration was one of private rights as between particular parties (such as contracting parties), or whether it was a question of public interest in which other parties may be affected. See Australian Competition and Consumer Commission v Allergy Pathway Pty Ltd,[4] and BMI Limited v Federal Clerks Union of Australia.[5] It may be attributable to the fact that the Federal Court frequently has to deal with declarations concerning a public right as sought to be enforced by regulatory agencies such as the ACCC. But there are more recent authorities to the contrary. In ACCC v Edirect Pty Ltd,[6] Reeves J, after conducting a review of the authorities, held that declaratory orders may be made on the admissions of the parties, whether deemed admissions, or agreed facts under s 191 of the Evidence Act, or otherwise, and the Court is not required to be satisfied by evidence before making such declaratory orders. Caution may need to be exercised if the declaratory orders have effect beyond the parties to the proceeding, and have regard to any other discretionary factors pertinent to the granting of declaratory relief. That view has its origins in a decision of Kiefel J in ACCC v Dataline.net.au.[7] I need not go into the details of that case but after a review of the relevant authorities, her Honour concluded that regard may be had to the deemed admitted facts as alleged in the statement of claim to determine whether the relief is made out. Her Honour held that views to the contrary were based on practice, not on a rule of law. About this practice, her Honour observed:

It is one of longstanding and might be seen as derived from views about litigation which pre-date more recent concerns expressed by the courts as to the costs of unnecessary litigation, the management of cases and efficiency overall. Views expressed in older cases may not take account of the increase in the use made of declaratory orders in developing areas of law which may involve matters of public interest. ...

It may no longer be correct to have a practice which operates as a prohibition in every case of default and preferable to consider the circumstances pertaining to the particular case and the purpose and effect of the declaration ... Cases such as this, involving the protection of consumers, are of public interest. Declarations are often utilised in such cases to identify for the public what conduct contributes a contravention and to make apparent that it is considered to warrant an order recognising its seriousness. It is however important that there be no misunderstanding as to the basis upon which they are made. This could be overcome by a statement, preceding the declarations, that orders are made 'upon admissions which [the respondent in question] is taken to have made, consequent upon noncompliance with orders of the court'.

24 I need not make my own contribution to a reconciliation of the competing views in the debate. It is sufficient for me to say that there is an authoritative basis to conclude that a declaratory order may be made, if discretion otherwise calls for it, in a case based upon facts taken to be admitted without the necessity for any additional evidence. As suggested in Dataline, my orders of 20 November 2017 did on their face (in 'Other Matters') recite that the orders were made on admissions by default. If the debate is agitated in cases where public rights are to be enforced by regulatory agencies, then this is not such a case. Here, there is both a private and a public element. There is a private element in that the Shellekens right to the use and enjoyment of their land was being directly and adversely affected by the actions of another landowner. In any case, apart from the deemed admissions there is sufficient evidence of the statutory basis for the declaration.

25 The foregoing was the basis for the Court making its declaratory and other orders on 20 November 2017.

[3] See Oil Basins v Commonwealth [1993] HCA 60; (1993) 178 CLR 643, 649 (Dawson J).

[4] (2009) FCA 960.

[5] (1983) 51 ALR 401.

[6] (2012) FCA 976.

[7] (2006) 236 ALR 655.