Supreme Court of the ACT|1995-02-14|Before: Adam P, Higgins J

Re the Small Claims Act 1974 and Re An Application of Leave To Appeal Janice Mary Ferguson v ACT Electricity and Water [1995] ACTSC 5 (14 February 1995)

AND IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPEAL

Appeals - Civil And Political Rights - Evidence - Practice And Procedure

Appeals - application for leave to appeal from Small Claims Court - jurisdiction.

Civil And Political Rights - international civil rights conventions - individual's right to refuse medical and dental treatment - fluoridation of water - application of s51(xxiiiA) - meaning of civil conscription.

Evidence - application of rules of evidence in Small Claims Court - fairness demands their application - whether a positive defence was raised - implications for acceptance of a disputed claim - implications of respondent's failure to admit claim at first instance.

Practice And Procedure - error of law - fairness of proceedings - counter claim or set off.

Electricity and Water Act 1988 (ACT), ss48, 50(1), 74, 77, 79

The Australian Constitution, ss51 (iii),(xxiii), 55, 72, 73, 80, 88, 90, 92,

Limitation Act 1985 (ACT)

Australian Capital Territory (Self-Government) Act 1988, ss22, 23

Health Insurance Act (1973) (Cth)

Pharmaceutical Benefits Act 1947 (Cth)

Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc [1981] HCA 39; (1981) 148 CLR 170

Niemann v Electronic Industries Ltd [1978] VicRp 44; (1978) VR 431

Cape v Redarb Pty Ltd (1991) 104 ALR 425

Jarrett v Seymour (1993) 119 ALR 46

Capital Duplicators v ACT [1992] HCA 51; (1992) 177 CLR 248

Cole v Whitfield [1988] HCA 18; (1988) 165 CLR 360

British Medical Association v The Commonwealth [1949] HCA 44; (1949) 79 CLR 201

General Practitioners Society v The Commonwealth [1980] HCA 30; (1980) 145 CLR 532

Alexandra Private Geriatric Hospital Pty Ltd v The Commonwealth (1987) 162

Theophanous v Herald and Weekly Times Ltd [1994] HCA 46; (1994) 124 ALR 1

Marion's Case [1992] HCA 15; (1992) 175 CLR 218

Malette v Shulman (1990) 67 DLR (4th) 321

Leave to appeal be granted in respect of the decision upon the claim herein but otherwise refused.

HIGGINS J This is an application for leave to appeal against a decision of Mr Hardiman, Special Magistrate, delivered in the Small Claims Court in Canberra on 18 May 1994.

2. Section 33 of the Small Claims Act 1974 (ACT) (SC Act) governs appeals to this Court. It provides:

(1) Subject to this Act, a party to the proceedings may, with the

leave of the Supreme Court, appeal to the Supreme Court against a

judgment (other than an interlocutory judgment) given under this

Act.

(2) The Supreme Court shall not grant leave for the purpose of

subsection (1) unless it is satisfied -

(a) that the decision of the Court on a question of law was wrong;

or

(b) that the conduct of the proceedings in the Court was unfair to

the applicant.

Otherwise, the judgment of the Small Claims Court is final and conclusive: see s19, SC Act.

3. It should also be noted that, even if not barred by s33(2), an application for leave to appeal might still be refused if,

. The result has caused no substantive injustice to either party,

even supposing it to be wrong: see Adam P Brown Male Fashions Pty

Ltd v Phillip Morris Inc [1981] HCA 39; (1981) 148 CLR 170, 177 per Gibbs CJ,

Aickin, Wilson and Brennan JJ; or

. The decision is not attended with sufficient doubt to warrant

reconsideration: see Niemann v Electronic Industries Ltd (1978)

VR 431; Cape v Redarb Pty Ltd (1991) 104 ALR 425.

4. Those principles were recently affirmed in Jarrett v Seymour (1993) 119 ALR 46. Whilst the decisions referred to above primarily concern a grant of leave to appeal in relation to interlocutory matters, they also have application to qualified appeal rights such as the present.

5. The respondent sued the applicant for $2,525.03 representing $1,700.55 for arrears of water and sewerage rates, interest of $746.48 and court fees of $28.00.

6. That claim came before Special Magistrate Hardiman on 18 May 1994. The applicant sought an adjournment. Her submission on that question was as follows:

One was I was not feeling very well today. That was the first

reason. The second reason is that I am able to, in the recent

future, to contact a number of organisations who are able to help me

in this matter.

7. The respondent's representative, Ms Pope, objected to an adjournment on the ground that the defence filed by the applicant was not relevant to the claim. In essence, that was a contention that the defence, even if made out, would not, as a matter of law, defeat the respondent's claim.

8. The learned Special Magistrate offered to stand the matter down until the afternoon to enable the applicant to obtain a medical certificate as to her fitness to conduct the matter on her own behalf. The applicant responded to this offer as follows:

Well, that would not help me in any way, I do not believe.

9. It could not be argued, in my opinion, that to proceed with the matter in those circumstances was unfair. The matter proceeded. The respondent's representative produced various documents with a view to justifying its claim. The arrears claimed had allegedly accumulated between 1 July 1989 and December 1993.

10. Section 77 of the Electricity and Water Act 1988 (ACT) (E and W Act) provides:

Charges under this Act are a debt due and payable to the Authority

(that is, the respondent per s3(1)) and may be recovered by action

in a court of competent jurisdiction.

11. Section 48 refers to the determination of the quantum of charges "by notice in writing published in the Gazette" (s48(1)). Liability to pay such charges is imposed by s50(1).

12. Proof of the liability of a person to pay charges for electricity or water supplied is facilitated by s79 of the E and W Act. That states:

In proceedings under this Act, a certificate purporting to be signed

by the Chief Executive Officer stating that a quantity of

electricity or water was supplied by the Authority to a specified

person or premises during a specified period or that sewerage

services were provided to a specified person or premises during a

specified period is evidence of the matters stated in the

certificate.

13. Although, as I have noted, the respondent's representative referred to various documents, she did not tender any document answering that description or any other admissible evidence supporting the claim. Indeed his Worship asked her:

Have you got any evidence there of accounts being forwarded to the

defendant (that is, this applicant) at all?

No, just that the notices were sent which are actually showed (sic)

on the account.

14. It appears that a computer printout purporting to show the state of the applicant's account with the respondent was then shown to his Worship.

15. His Worship was also advised by Ms Pope, though it was, apparently, hearsay:

Every quarter Ms Ferguson would have received an original notice,

and she would have received a final notice as well. We have

actually contacted Ms Ferguson on several occasions in regard to

this outstanding account. At one stage she says she was going to

pay in full by 30 June 1992, but we received no payments, so that is

when we took it through the courts.

16. Ms Pope then took his Worship through the document which was referred to as "the account" and explained the various items shown on it.

17. It should be noted that whilst this process particularised the respondent's claim, it did not purport to prove it.

18. A perusal of the Small Claims Court file reveals a document which appears to be the computer printout referred to. It bears the applicant's name and address amongst other details. I assume that to be the document which Ms Pope had referred to. It was signed by no-one. It was verified by no-one.

In proceedings, the Court is not bound by the rules of evidence and

may inform itself in any manner it thinks fit.

20. However, in my view, fairness to the applicant demanded that the particulars shown on the statement of account be verified in some fashion and be related to charges shown to have been validly determined in respect of the relevant periods of time to which those charges related. That could have been done by production of copies of the relevant notices in writing setting out the charges to be imposed from time to time together with a certificate pursuant to s79 of the EandW Act verifying the quantity of water supplied and verifying the supply of sewerage services to the applicant. Alternatively, copies of the original notices sent to the applicant could have been produced. Some responsible officer could, at least, have certified that the notices had been checked against the primary records of the respondent and found to be correct.

21. Having had the document explained to him, his Worship did not advise the applicant that she could call for source documents so as to verify the statement of account produced to him. Nor did he advise her that no evidence of the quantity of charges or any certificate pursuant to s79 had been produced. Indeed, it does not appear from the transcript of proceedings that the applicant was even shown the statement produced by Ms Pope, although she no doubt was able to hear the conversation between Ms Pope and his Worship concerning it.

22. The applicant had filed a defence and counterclaim. It covered seven pages. It recounted a number of negative experiences which the applicant claimed to have suffered. I summarise these simply to indicate the range of matters referred to.

Paragraph 1: referred to alleged mismanagement of the applicant's retirement from the Department of Trade suggesting a claim in the nature of wrongful termination of employment.

Paragraph 2: referred to radiological treatment which the applicant complained of as "attempted murder".

Paragraph 3: referred to dental treatment which had involved the use of fluoride to which the applicant alleged that she had suffered an adverse reaction.

Paragraph 4: referred to a series of events by reason of which the applicant believed that these negative events were being deliberately aimed against her.

Paragraph 5: included a reference to a complaint the applicant had concerning her house. There were, she claimed, about $20,000.00 worth of defects yet it had been certified as fit for occupancy and use. She unfavourably compared the inability of the relevant authorities to protect her interests in this respect with the respondent's apparent ability to quantify its claim and charge interest on arrears. Inferentially, this amounted to a challenge to the accuracy of the respondent's claim although not clearly so framed.

Paragraph 6: contained a dissertation critical of economic rationalism and of the underlying sociological basis of the medical establishment in Australia. The applicant asserted a complete lack of faith in the established medical system and its various practitioners. Presumably, this was intended to challenge the judgment made by the relevant authorities to add fluoride to the water supply.

Paragraph 1 asserted that the respondent was guilty of "mass poisoning a populace with a lethal poison, fluoride". As a result, the applicant claimed to have been obliged to avoid consuming fluoride by installing a water filtration system and/or rainwater tanks.

Paragraph 2, although expressed in terms of an allegation of "inefficiency" against the respondent, in fact asserted a duty on the respondent to provide rainwater tanks for householders including, presumably, the applicant.

Paragraphs 3 and 4 alleged that the respondent was guilty of overcharging both as to rates and as to interest thereon.

Paragraph 5 challenged the notion that the populace had consented to the fluoridation of the water supply already referred to.

24. His Worship took the view, undoubtedly correctly, that the Small Claims Court lacked jurisdiction to deal with those of the applicant's complaints which did not relate in some way to the provision by the respondent of water and sewerage services during the period for which payment was claimed. It was entitled only to deal with the matter of the respondent's claims for arrears of water and sewerage rates and interest thereon, although proper matters of counter-claim or set-off could be considered.

25. The applicant was, of course, appearing in person and, no doubt, had in mind that airing the full range of her grievances might flush out some remedy for some or all of them. This was an expectation which was not capable of fulfilment.

Now, what I want you to tell me is (1), whether or not that is true,

whether the water has been used. If it has not been used, have

these bills been queried with ACTEW at the time?

27. It is fair, I think, to observe that the applicant's replies were not responsive to those questions. She expressed the desire for all her claims to be decided together in this Court, his Worship having indicated that, insofar as she had claims which could be resolved by legal action, many of them were only within the jurisdiction of this Court.

Well, once again, there is nothing in my legislation that allows me

to turn around and transfer this to the Supreme Court. I just

cannot do it. Very well. In the light of the evidence, I am

satisfied that the water alleged to have been consumed was consumed

and that the interest is in accordance with the legislation, and I

give judgment for the claimant in the sum of $1,750.55, interest

$746.48, court costs $28.00, total $2,525.03.

29. His Worship's report dated 24 August 1994 adds to that explanation of his decision in the following terms:

This was a claim by ACTEW for water and sewerage charges billed

against the (applicant's) residential property at Calwell.

The (respondent) gave evidence that these rates are calculated on

the financial year from 1 July to 30 June. At the end of this

1989/90 year the sum of $183.00 was outstanding and nothing has been

paid by the (applicant) since that time though the services have

continued to be provided.

The claim was for money owing at December 1993 as follows:

Services provided $1750.55

Interest $ 746.48

Court fees $ 28.00

TOTAL $2525.03

Evidence was also given of the attempts by ACTEW to recover the

claim.

The (applicant's) evidence was that this claim should be considered

along with other claims. She went on to say 'This matter is just

something that you know, perhaps I would not be concerned with it if

I had obtained equal rights or justice in relation to the other

matters'.

I explained to the (applicant) the court could only consider the

claim before it. The (applicant) then wanted the matter transferred

to the Supreme Court.

As a consequence of the (applicant's) failure to put before the

court any defence to the claim judgement was given in favour of the

Claimant.

30. I have already made reference to the question of the sufficiency of the evidence placed before the Court by the respondent.

31. I do not think it was entirely apt to characterise the applicant's case as requiring all her claims to be transferred to the Supreme Court. His Worship, having correctly noted that such action was beyond his powers, nevertheless had to decide the case before him according to law.

32. The final paragraph of his Worship's report seems to imply that, in his view, the applicant was obliged to make out a defence. Failure to raise a positive defence does not imply acceptance of a disputed claim. The respondent had the onus of proving its claim. The applicant was entitled simply to put the respondent to proof of it. The applicant had, at least, done that in her defence and counter claim although the challenge to the accuracy of the claim was partly within the "Defence" and partly within the "cross-claim". The "evidence" put forward by the respondent was, at least arguably, insufficient to establish its claim in the absence of an admission of it by the applicant, notwithstanding that strict proof according to the rules of evidence was not essential.

33. The applicant was asked whether she admitted the claim. Her answer could not be construed as an admission. It follows that it is arguable that the respondent had not proved its claim.

34. Further, there was a positive defence relied upon. It was whether the respondent had provided, without her consent, water to the applicant which was defective by reason of being treated, allegedly unlawfully, with fluoride.

35. The application for leave to appeal raises a number of grounds in support of it. The essence of those grounds is that:

1. fluoridation of the water supply is an assault upon the applicant

in particular and the community in general, being a dental treatment

imposed on the applicant without her consent;

2. fluoridation amounts to a contravention of s51(xxiiiA) of the

Australian Constitution in that it causes a dental treatment, namely

fluoridation, to be administered to persons irrespective of their

consent thus amounting to a "form of civil conscription".

36. The applicant also requests that the matters raised by her in her 62 page submission entitled "The nexus between women, law, medicine, the bureaucracy, corruption, the media and the transmogrification of society - the degradation of economic rationalism", be heard and determined by this Court.

37. As to the latter request, it is, of course, open to the applicant, subject to the Limitation Act 1985 (ACT), to bring proceedings in respect of some of her complaints. Fairness to those possibly subject to those claims demands that they have the opportunity to answer them. That cannot be done in the context of this application for leave to appeal.

38. Accordingly, the applicant's desire to pursue her various complaints, though understandable, simply cannot be fairly or even lawfully done in the context of this application. I make no comment on the merits or otherwise of those complaints although I have, as requested by the applicant, perused the document provided by her. Insofar as it is relevant to the present proceedings, including the exercise of discretion whether or not to grant leave to appeal, I have taken it into account.

39. The E and W Act refers to the addition of fluoride to the water supply of the Territory in the following terms (as from 9 October 1989):

PART VIIIA - CHEMICAL TREATMENT OF WATER SUPPLY

Interpretation

74A. In this Part -

"fluoride" means -

(a) sodium fluoride; or

(b) any other salt or compound of fluorine.

Prohibition on adding certain chemicals

74B. A person shall not add a chemical to the water supply system

of the Territory.

Penalty:

(a) in the case of a body corporate - $50,000;

(b) in the case of a natural person - $10,000.

Restriction on powers of Authority

74C. Section 6 does not extend to empower the Authority to do any

act that would contravene section 74B.

Exempt treatments

74D. (1) Section 74B does not apply in relation to the addition by

the Authority to the water supply system of the Territory of -

(a) a chemical for the purpose of clarifying, purifying or otherwise

treating the water in that system at a concentration that would not

be injurious to public health; or

(b) fluoride at a concentration not exceeding 1.0 milligram per

litre.

(2) For the purposes of paragraph (1)(b), a concentration that -

(a) would result in an average concentration of 1.0 milligram per

litre during a period of 24 hours; and

(b) does not exceed 1.2 milligrams per litre;

shall be taken to be a concentration of 1.0 milligram per litre.

40. There is no evidence to suggest that the treatment of the water supply of the Territory has been undertaken otherwise than in accordance with those provisions.

41. If those provisions are valid then the applicant's consent to the presence of fluoride in the water supply is not required. It is not an "unlawful" application of a dental treatment so as to be an assault, even assuming that the addition of fluoride to the water supply can be so characterised.

42. It is necessary to consider whether it is arguable that those provisions are invalid.

43. The provisions which, at the times relevant to this matter, authorised the addition of fluoride to the Territory water supply result from an enactment of the Legislative Assembly of the Australian Capital Territory.

44. The legislative power of the Legislative Assembly is conferred by s22 and s23 of the Australian Capital Territory (Self-Government) Act 1988. Section 22 confers plenary power, s23 exempts certain matters from that power. None of those reservations is relevant for present purposes. It follows that no credible argument can be proposed that s74D exceeds the authority of the ACT Legislative Assembly as conferred by the Self-Government Act.

45. The applicant has also raised a question as to whether s74D is a provision which would be beyond power if directly enacted by the Commonwealth Parliament and, hence, beyond the power of the Commonwealth Parliament to enable the Legislative Assembly to pass such a law. She referred particularly to s51(xxiiiA) of the Constitution.

(2) THE QUESTION OF S51 (XXIIIA) OF THE CONSTITUTION - CIVIL CONSCRIPTION

46. The power to regulate the water supply for the Australian Capital Territory derives from s122 of the Constitution. The power of the Commonwealth to confer legislative power in respect of the Territory upon the ACT Legislative Assembly was recently confirmed in Capital Duplicators v ACT [1992] HCA 51; (1992) 177 CLR 248. Mason CJ, Dawson and McHugh JJ considered that such power extended to the imposition of duties which could be characterised as duties of excise within the meaning of s90 of the Constitution, an authority denies that section to State legislatures. Brennan, Deane and Toohey JJ disagreed. They pointed out, at 272:

But the scope of s122 may be qualified by other provisions in the

Constitution. Although the territories power has been said to be "a

disparate non-federal matter", it is necessary to adopt "an

interpretation which will treat the Constitution as one coherent

instrument for the government of the federation, and not as two

constitutions, one for the federation and the other for its

territories". It would therefore be erroneous to construe s122 as

though it stood isolated from other provisions of the Constitution

which might qualify its scope.

47. In their Honours' view, s52(i) would, for example, prevent this Territory, being the territory for the seat of government, from becoming a new State (273).

48. Further, given the interpretation of s92 of the Constitution adopted in Cole v Whitfield [1988] HCA 18; (1988) 165 CLR 360, it would, in their Honours' view, also be inconsistent with ss88, 90, 92 and 99 of the Constitution to permit a Territory legislature to impose its own duties of excise.

49. A further inconsistency was perceived in the terms of the restriction on the power granted to the Commonwealth Parliament by s51(iii) of the Constitution, that is, to make laws for:

Bounties on the production or export of goods, but so that such

bounties shall be uniform throughout the Commonwealth.

Thus s122, in their Honours' view did not authorise the Commonwealth Parliament to empower an ACT legislature to impose duties of excise or to grant bounties on the production or export of goods.

50. Gaudron J noted that some limitations on the power of the Commonwealth have been held inapplicable to the exercise of the legislative or administrative powers of a self-governing Territory (for example, s72, appointment of judges; s80, trial by jury for all indictable offences; s51(xxxi), acquisition of property only on just terms; s55, laws dealing with taxation restricted only thereto).

51. The relevant distinction, in her Honour's view, after considering the Constitution as a whole, is, at 288:

...s122, as it relates to them (that is, the Internal Territories)

must yield to a constitutional provision which mandates a situation

for the whole of the Commonwealth. Thus, for example, s122 must

yield to s118 which requires that "(f)ull faith and credit ... be

given, throughout the Commonwealth to the laws, the public Acts and

records, and the judicial proceedings of every State.

52. Section 116, in her Honour's view, at least arguably, also represents such a general qualification.

53. Her Honour agreed with Brennan, Deane and Toohey JJ that s90 was a provision of general application which similarly qualified both s51(iii) and s122.

54. The question for me, therefore, is whether it is seriously arguable that the qualification upon the power conferred by s51(xxiiiA), that is, "but not so as to authorize any form of civil conscription" is of general application. If so, then a question arises as to whether it is also seriously arguable that it would have application to the factual situation adverted to by the applicant.

55. It seems to me that it is seriously arguable that the qualification upon s51(xxiiiA) relating to "civil conscription" is a provision of general application to laws relating to the provision of "medical and dental services" whether those laws are laws passed directly by the Commonwealth Parliament or by a subordinate Territory legislative.

56. It becomes necessary, therefore, to consider whether it is seriously arguable that s79D of the E and W Act would contravene that qualification.

57. The High Court considered the expression "civil conscription" in British Medical Association v The Commonwealth [1949] HCA 44; (1949) 79 CLR 201 (BMA case). The Pharmaceutical Benefits Act 1947 (Cth) forbade the writing of a prescription for medicines to be obtained free of charge otherwise than on a prescribed form.

58. Latham CJ described "conscription" as "a convenient term for the purpose of describing compulsory enlistment for military or similar services" (248).

59. "Civil" conscription, whilst obviously to be distinguished from military conscription was, his Honour held, a term of wider application than mere industrial conscription, that is, enforced labour (249):

It could properly be applied to any compulsion of law requiring that

men (or women) should engage in a particular occupation, perform

particular work, or perform work in a particular way. There are,

however, many laws which control the rendering of services of one

kind and another which could not be described as civil conscription.

For example, a law which provides that no person shall make up

prescriptions or sell certain articles unless he (or she) is a

qualified chemist is a law which controls the sale of those articles

and the occupation of a pharmaceutical chemist, and a State

Parliament can make such a law. But that law would not compel

anybody to work as a pharmaceutical chemist.

60. The words "any form" qualifying "civil conscription" were intended to proscribe not only complete or full time conscription but also any compulsion to render any particular civilian service to the community.

61. To require any prescription to be written in a particular form for the purpose of the patient qualifying for pharmaceutical benefits was, his Honour held, a form of "civil conscription" of doctors. Rich, Williams and Webb JJ agreed. Dixon and McTiernan JJ dissented.

62. The qualification to s51(xxiiiA) was again considered in General Practitioners Society v The Commonwealth [1980] HCA 30; (1980) 145 CLR 532. The Health Insurance Act (1973) (Cth) imposed certain duties upon medical practitioners with which they had to comply if they were to be regarded as "approved" under the Act.

63. Gibbs J delivered a judgment with which, in essence, all other members of the court agreed. In that judgment, his Honour expressed the view at 557, that the opinions expressed in the BMA case should be qualified to some extent as to the meaning of the term "civil conscription":

That expression, used in its natural meaning, and applied, as the

context of par (xxiiiA) requires, to medical and dental services,

refers to any sort of compulsion to engage in practice as a doctor

or a dentist or to perform particular medical or dental services.

However, in its natural meaning, it does not refer to compulsion to

do, in a particular way, some act in the course of carrying on

practice or performing a service, when there is no compulsion to

carry on the practice or perform the service.

64. In Alexandra Private Geriatric Hospital Pty Ltd v The Commonwealth [1987] HCA 6; (1987) 162 CLR 271, s51(xxiiiA) was again considered. This was in respect of legislative provisions controlling fees charged by nursing homes to patients in order that such homes be "approved" for the purposes of receipt of Commonwealth grants. It was objected that this effectively amounted to "civil conscription" in respect of nursing homes.

65. The Court (Mason ACJ, Wilson, Brennan, Deane and Dawson JJ) affirmed the view that the qualification concerning civil conscription referred only to the provision of medical or dental services not to the other matters set out in s51(xxiiiA). It was further held that the provision of benefits may include goods and services as well as grants of financial assistance. The conclusion was that, although the scheme did involve the supply to patients of medical services, it did not require any person to supply those services.

66. It is, therefore, apparent that the legislation sought to be impugned in this case, even if it can be characterised as a law involving the supply to the applicant of unwelcome dental services, cannot be subject to s51(xxiiiA) or to the limitation expressed therein. The concept of "civil conscription" could only have application to a legal obligation on a person to render a dental service to another even if only by way of providing fluoride treatment. No person is, however, obliged to provide such services by the E and W Act. The respondent is merely authorised to add fluoride to the ACT water supply. Even if it was required by the legislation to fluoridate the water supply, it does not seem to me that provision could be characterised as "civil conscription". I do not think that a statutory authority, such as the respondent, can meaningfully be referred to as "conscripted" by having duties laid upon it by the legislature.

67. Accordingly, it is not seriously arguable that s74D of the E&W Act offends the qualification expressed in s51(xxiiiA).

68. However, there is another aspect to the matter.

COMPULSORY DENTAL TREATMENT - CONTRARY TO LEGAL RIGHTS?

69. Whilst the applicant's reliance on s51(xxiiiA) is, as I have concluded, misconceived, the applicant's real objection is that, by adding fluoride to the water supply, the Authority is subjecting her to unwanted dental treatment. Further, she claims that such treatment is harmful to her. As a result, to avoid such treatment, she is obliged to re-treat her water supply with a machine that removes fluoride or by collecting rain water. That, at least, results in considerable expense to her.

70. There is a practical compulsion, albeit not a legal compulsion, for water consumers in the Territory to submit to fluoride treatment. It is to be assumed that such treatment is perceived by those in authority as efficacious to reduce the level of tooth decay in the community. It is also true that there are those who contend that the chemical has, or may have, harmful side effects. The applicant claims that she, in particular, is sensitive to the chemical and suffers severe effects from its consumption by her.

71. I note that Murphy J in General Practitioners (supra) (565) endorsed a wider proposition in relation to civil conscription. His Honour expressed the view, albeit obiter, that:

The Constitution makes no reference to different classes of society

and its terms are inconsistent with slavery, serfdom or similar

vestiges of a feudal society. It contains an implication of a free

society which limits Parliament's authority to impose civil

conscription. Some forms of civil conscription (for example, in

emergencies) may be consistent with the notion of a free society.

72. More recently, the High Court has held that the notion of a democratically elected Parliament implies a freedom of political expression which imposes limits upon the powers of legislatures, State or Commonwealth, to pass laws unreasonably limiting or preventing the exercise of that freedom. In Theophanous v Herald and Weekly Times Ltd [1994] HCA 46; (1994) 124 ALR 1, the Court, by majority, held that State and Territorial defamation laws, whether statutory or derived from common law, were to be regarded as modified by that constitutional implication favouring freedom of political expression.

73. Certainly, the International Covenant on Civil and Political Rights 1966 would prohibit the compulsory treatment of persons against their will and without proper cause. For example, it may be permissible to subject persons to compulsory x-ray if that is a reasonable and proportionate measure to prevent an epidemic of tuberculosis. Compulsory sterilisation of disabled persons raises a similar issue. The High Court in Marion's Case [1992] HCA 15; (1992) 175 CLR 218 considered such an issue in connection with the question whether the Family Court of Australia had power to make such an order.

74. If a person was to administer to the applicant treatment to which she was opposed, whether her reasons were good or bad for refusing it, it would be a violation of her rights over her own body to impose it upon her. This is so even if such treatment may be life-saving. The case of Malette v Shulman (1990) 67 DLR (4th) 321 is illustrative of that point. In that case, an unconscious patient carried an instruction card refusing permission for blood transfusions to be administered to her. She was a Jehovah's Witness. The defendant believed, apparently correctly, that obeying that instruction would bring about her death and be a violation of his professional duty as a medical practitioner. She was, nevertheless, held entitled to damages for violation of her right to refuse medical treatment. Even so, Robins JA noted at 333:

The state undoubtedly has a strong interest in protecting and

preserving the lives and health of its citizens. There clearly are

circumstances where this interest may override the individual's

right to self-determination. For example, the state may in certain

cases require that citizens submit to medical procedures in order to

eliminate a health threat to the community or it may prohibit

citizens from engaging in activities which are inherently dangerous

to their lives.

75. Accordingly, even if fluoridation amounts to treatment which the applicant would be entitled to refuse, it may be that the public interest in treating the water supply with fluoride outweighs the interests of the appellant in refusing the supply of such water.

76. However, even assuming in favour of the applicant that it is seriously arguable that the addition of fluoride serves no overriding community interest, the question is whether the addition to the water supply of a substance permitted by law to be added to the water supply is, in relation to the plaintiff, a violation of some legal right of hers. Such a right would, for that purpose, need to have the effect of overriding or qualifying s74D of the E and W Act which otherwise permits and renders lawful the imposition of which the applicant complains.

77. If the Commonwealth of Australia or the Australian Capital Territory had adopted as part of the law of Australia or of the Territory as the case may be, the International Covenant or a Bill of Rights as adopted by The United States of America, Canada or New Zealand rendering invalid any prior inconsistent law, it might be arguable that, in the absence of some overriding community interest, the addition to the water supply of a substance harmful to, or perceived as harmful to them by, some persons could confer on those persons a right to protection from that substance which would override that law.

78. No such provisions have been so adopted in relation to the Territory. Accordingly, whilst the applicant has every right to re-treat the water supplied by the respondent, the existence of that right does not require the respondent to pay for that re-treatment. Nor is it arguable that the respondent is under any duty to facilitate the collection by the applicant of alternative sources of supply.

79. If the law forbade the applicant from purifying her own water supply or required her to submit to the consumption of fluoride, it is arguable that the view taken by Murphy J referred to above would invalidate such a law. However, that is not the present situation.

80. I can find, therefore, no arguable case which would support a defence or cross-claim such as that advanced by the applicant.

81. I have concluded that there was a relevant defect in the proceedings before the learned Magistrate. The method chosen by the respondent and accepted by the Court to prove the respondent's claim was insufficient to establish the debt allegedly due. Even though the learned Magistrate was not bound by the rules of evidence, there was no evidence before him that verified the claim made. The rules of evidence generally serve the interests of justice in ensuring that proof tendered is cogent. To find the debt proved on the material before him was, therefore, an error of law. The applicant did not admit the debt. Her defence and counter-claim had put in issue whether the debt claimed was due and owing.

82. By reason of the lack of assistance given to the applicant to assert her rights in this respect, it can also be concluded that the proceedings were not conducted fairly to the applicant.

83. There is nothing before me to indicate positively that the claim presented by the respondent is not capable of proof. It would, no doubt, ensure that its claim was properly verified if the matter was reheard. To send the matter back for retrial would, however, add to the cost and delay already occasioned. It is arguable that it would be unfair now to permit the respondent, effectively, to re-run its case, and giving it the opportunity to provide proper proof of its claim.

84. Accordingly, although the positive matters of defence and counter-claim are not arguable, the applicant does have an arguable case that the judgment appealed from was entered in consequence of an error of law and in consequence of a failure to conduct the proceedings fairly to the applicant.

85. Leave to appeal is, therefore, granted in respect of the decision upon the claim but is refused otherwise.

Small Claims Act 1974(ACT)

Electricity and Water Act 1988(ACT)

Pharmaceutical Benefits Act 1947(Cth)

(BMA](/cgi-bin/LawCite?cit=%281949%29%2079%20CLR%20201 "View LawCiteRecord") case). The Pharmaceutical Benefits Act 1947(Cth)

Re the Small Claims Act 1974

Capital Territory (Self-Government) Act 1988

Small Claims Act 1974(ACT)

Electricity and Water Act 1988(ACT)

Pharmaceutical Benefits Act 1947(Cth)

(BMA](/cgi-bin/LawCite?cit=%281949%29%2079%20CLR%20201 "View LawCiteRecord") case). The Pharmaceutical Benefits Act 1947(Cth)

Re the Small Claims Act 1974

Capital Territory (Self-Government) Act 1988

Re the Small Claims Act 1974 and Re An Application of Leave To Appeal Janice Mary Ferguson v ACT Electricity and Water [1995] ACTSC 5

At a glance

Court

Decision date

Before

Source

Judgment (129 paragraphs)

Re the Small Claims Act 1974 and Re An Application of Leave To Appeal Janice Mary Ferguson v ACT Electricity and Water [1995] ACTSC 5 (14 February 1995)

Parties

Legislation Cited (12)

Cases Cited (11)