Janice Mary Ferguson v Australian Capital Territory [1995] ACTSC 48 (22 May 1995)

SUPREME COURT OF THE ACT

JANICE MARY FERGUSON v. AUSTRALIAN CAPITAL TERRITORY
No. SCA86 of 1994
Number of pages - 6
Appeal - Evidence

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Appeal - application for leave to appeal against decision of Small Claim's Court.

Evidence - Magistrate not presented with evidence from which proof of claim could be inferred - implications of appellant's failure to raise a positive defence to the claim - effect of s12 of the Small Claims Act 1974 (ACT) - implications of failing to adduce oral evidence in support of Magistrate's conclusion - relevance of the fact that the appellant lacked legal representation - error of law - application for leave to appeal granted - admissibility of further evidence on appeal.

Rates and Land Tax Act 1926 (ACT), ss4, 14, 15, 22, 35, 48, Reg 1992 no. 7

Interpretation Act 1967 (ACT), s14
Stroud's Judicial Dictionary 5th ed 1315
Small Claims Act 1974 (ACT), s12

Ferguson v ACT Electricity and Water, unreported, Supreme Court, Australian

Capital Territory, Higgins J, 14 February 1995

HEARING

CANBERRA, 31 March 1995
22:5:1995

Applicant Appeared in person

Counsel for the Respondent: Mr K Holmes

Instructing solicitors: ACT Government Solicitor

ORDER

THE COURT ORDERS THAT:
Leave to appeal be granted.

DECISION

HIGGINS J This is an application for leave to appeal against a decision of Magistrate Dainer given on 31 August 1994 in the Small Claims Court.

2. The respondent had on 18 March 1994 issued a special claim for $1,467.43. It was particularised as follows:

Pursuant to the Rates and Land Tax Act 1926 in respect of
BLOCK 14 SECTION 715 CALWELL in the Australian Capital
Territory, particulars whereof are as follows:-
General Rates From 01 Jul 1992
to 30 Jun 1994 $951.39
Interest pursuant to section 22
of the Rates and Land Tax Act 1926
at the rate of 20% per annum compounding
on the 16th of each month from 16 May 1992
to 15 September 1993 $369.64
at the rate of 17% per annum compounding
on the 16th of each month from 16 Sep 1993
to 15 Mar 1994 $146.40
Less Payments/Credits $0.00
Total Amount Outstanding $1,467.43

3. On 19 April 1994 application was made by the applicant to transfer the matter to the Small Claims Court. That was done although no note was made on the relevant file as to when it was done.

4. His Worship expressed concern about the applicant's stated defence. She had, on 31 May 1994, filed a document described as a "defence". It was in the following terms:

1. Building Section of the plaintiff issued a certificate of
occupancy to the house of the defendant despite there being
more than $9,000 defects; as well the plaintiff has failed to
adequately implement the Home Owners Warranty Scheme.
2. The police of the defendant failed to take correct responsive
action on my laying charges of attempted murder against
radiologist Dr Graeme Utley of Belconnen and the defendant has
suffered denial of human rights.
3. Through its subsidiary ACT Electricity and Water it has
provided, by putting fluoride into the drinking water supply,
medical or dental treatment unlawfully without consent, and
that this constitutes assault, and may be sued in this regard.
4. Through its legal bodies has perpetrated gender and class
bias, for instance in
(1) the ACT Credit Tribunal, incorrectly applying an erroneous
definition of transaction and by awarding $4,000 costs against
the defendant, a sole parent in J M Ferguson v CPS Credit Union
Cooperative Ltd
(2) in the Small Claims Court in J M Ferguson v Canberra Organic
Growers Inc et al
and has failed to implement and carry out law reforms as
prescribed by Parliament of Australia.
(5) The ACT Health Commission has destroyed important medical
records of the defendant without notification or permission.
The defendant has serious claims against the Commonwealth
Government acting in synchrony in the Australian Capital
Territory with the ACT Government, its agents or assigns, and
the defendant wishes all the matters to be dealt with as a
cohesive, inextricably related serious complaint.

5. It is apparent that the defences so set out did not relate legally to the claim. Further, for reasons which I adverted to in Ferguson v ACT Electricity and Water, unreported, Supreme Court, Australian Capital Territory, 14 February 1995, the claims have either no prospect of success or are not capable of being litigated in these proceedings.

6. His Worship came, in my respectful opinion correctly, to the same conclusion. The question remaining for his Worship was then whether the claim was made out. It was reasonable for him to assume that the claim was opposed and that the respondent was being put to proof of its claim.

7. Ms Neeve, recovery officer for ACT Revenue Office, gave evidence in support of the claim. She was shown a document purporting to be an assessment of general rates for block 14 section 715 Calwell. It was addressed to the applicant and dated 14 July 1993. She indicated that there was no record of payment.

8. A second document was then produced which allegedly described "the charges for the current year and also previous years". She asserted that "the last payment we have received was $100 on 20 January 1994". The "total balance" was said to be $1,981.47.

9. The claim as particularised was, however, for payment of general rates from 1 July 1992 to 30 June 1994. The first document, for the year 1993/94, claimed $482.65 less a 4% discount ($19.31) plus "Arrears" of $1,369.78. It claimed $1,833.12.

10. The second document was some sort of computer print-out dated 31 August 1994. It purported to show "Balance overdue $1,981.47".

11. However, it is impossible to deduce from these documents what the "General rates" were for the financial year 1992/93. Nor did the particulars provided correlate to the claim as specified in the special claim.

12. Rates are levied pursuant to the Rates and Land Tax Act 1926 (ACT) (R and LT Act). Section 14 authorises "the Commissioner" to prepare and give to "the owner" of a parcel of land notice of assessment of rates. Liability to pay those rates is cast upon "the owner" by s15.

13. Recovery of rates is dealt with under s22 R and LT Act. It provides for recovery of interest on an amount of rates taken to have become due. The calculation of interest is to be in accordance with s22(4). That subsection provides:

The interest payable shall be calculated -
(a) on the aggregate of -
(i) the unpaid amount of rates due under subsection (2);
(ii) the amount of unpaid interest already accrued; and
(iii) the amount of unpaid costs and expenses payable under
subsection (4AA); and
(b) in respect of each month during any part of which an amount
referred to in paragraph (a), or any part of such amount,
remains unpaid.

14. This claim does not include any sum calculated in accordance with or payable under s22(4AA).

15. Interest is payable in accordance with s22(3). That subsection provides:

Where, pursuant to subsection (2), an amount of rates is to be
taken to have become due, the person liable to pay those rates
is liable to pay to the Territory, in addition to that amount,
interest calculated in accordance with subsection (4) at such
rate as is determined by the Minister by instrument.

16. No "instrument" or any verified copy thereof was tendered to his Worship.

17. The only reference to the determination of the rate of interest was the assertion of Mr Clarke, who appeared for the respondent, that:

I am instructed that calculation is done pursuant to statute
regulations ...

18. Regulations 1992 No. 7 have been made under the R and LT Act. They prescribe certain matters for the purposes of s22B(1)(f) of the R and LT Act. In any event, the regulation making power in s48 would not over-ride the express provisions of s22(3). The calculation was not done, nor could it have been done, pursuant to any regulation. It could only have been done in accordance with an instrument created pursuant to s22(3).

19. The relevant "Minister" would, of course, be readily identifiable pursuant to s14(1) of the Interpretation Act 1967 (ACT). That Act does not define "instrument". The word will usually be taken to refer to "a document of a formal legal kind": see Stroud's Judicial Dictionary 5th ed 1315. "Instrument" does not usually refer to a statute or regulation made pursuant to statute.

20. Proof of certain matters is facilitated under s35 R and LT Act. That section provides:

(1) In any proceedings, a certificate signed by the Commissioner
and stating-
(a) that a parcel of land is rateable; or
(b) that -
(i) the amount of rates;
(ii) the amount of land tax (including penalty tax); or
(iii) the amount of interest in respect of rates or land tax
(including penalty tax);
specified in the certificate is payable and, on the date of the
certificate, that amount, or a specified portion of that amount,
not been paid;
is evidence of the matters stated in the certificate.
(2) In any proceedings, a copy of a notice endorsed as a true
copy in writing signed by the Commissioner, being a notice -
(a) under section 12 or 15A that the Commissioner has determined
or re-determined the unimproved value of a parcel of land as set
out in the notice;
(b) under section 14, 15A or 34 that the Commissioner has
assessed or re-assessed, as set out in the notice, the amount
of rates payable under that section;
(c) under section 22C, 22EA or 34 that the Commissioner has
assessed or re-assessed, as set out in the notice, the amount
of land tax payable under that section; or
(d) under section 29 that the Commissioner has made a decision
under that section;
is evidence of the issue of the notice and the matters stated
in the notice.
(3) For the purposes of subsection (1), a certificate that
purports to be signed by the Commissioner is to be taken to be
so signed unless the contrary is proved.
(4) For the purposes of subsection (2), a copy of a notice,
being a copy that purports to be endorsed as a true copy in
writing signed by the Commissioner, is to be taken to be a
true copy of the notice unless the contrary is proved.

21. It follows that the Commissioner (as defined in s4(1) of the R and LT Act) might have certified to the truth of the matters requiring proof for the purposes of this claim.

22. The only document capable of being regarded as providing the information capable of being established pursuant to s35, was the copy "Valuation and General Rates Assessment for the Year 1993/94". However, it is not "signed by the Commissioner". It does not purport to be so signed. It is not "endorsed as a true copy in writing" of any document so signed. Whether or not there is or ever was such a document is a matter which was left to speculation.

23. It follows that there was no evidence before his Worship from which proof of the claim could be inferred. The evidence of Ms Neeve, in fact, gave particulars of the claim at variance with the original claim served on Ms Ferguson.

24. There are two other matters for consideration.

25. Counsel for the respondent points out that, whilst the applicant made no direct admission that she owed the rates in question, she raised no relevant positive defence. That is true. It is, however, clear that the applicant is not a lawyer and is pre-occupied with an agenda which is not legally relevant to the claim made. In those circumstances, his Worship had a duty, which he properly accepted, to ensure that the respondent, nevertheless, properly proved its case. It did not do so.

26. The further question arises as to whether it is possible for his Worship, notwithstanding lack of formal proof, to have found the verdict he did by reason of the provisions of s12 of the Small Claims Act 1974 (ACT) (SC Act). That section provides:

In proceedings, the Court is not bound by the rules of evidence
and may inform itself in any manner it thinks fit.

27. Technically, the only way that could have been done would have been by oral evidence whether sworn or not as to the existence of the relevant determinations of value, the applicable rate and the determined interest rates proved in some cogent manner including a certificate properly executed pursuant to s35 R and LT Act certifying to those matters. There was no such evidence. Even had there been, a real question could arise as to whether reliance on such evidence without requiring production, at least to the applicant, of source documents or verified copies thereof was procedurally fair.

28. It follows that there was an error of law which lead to a verdict for the respondent rather than to the contrary conclusion. It follows that leave to appeal is granted.

29. The only way in which the respondent could succeed on this appeal is if a certificate under s35 R and LT Act is produced or cogent evidence of the matters to be proved is otherwise adduced, whether strictly conforming to the rules of evidence or otherwise.

30. I have a discretion to admit such evidence, if tendered, on the hearing of the appeal, pursuant to s40(2) SC Act. In a claim such as the present, given that the respondent was, at the original hearing, represented by counsel and the appellant not, the task of persuading the Court to exercise that discretion favourably to the respondent is a heavy one.

31. The grant of leave to appeal does not extend to the cross-claim.

32. I will hear the parties as to the final disposition of the appeal.