Spencer v Cooma Monaro Shire Council & Anor [2007] ACTSC 42 (29 June 2007)

Last Updated: 28 July 2008

PETER JAMES SPENCER V COOMA MONARO SHIRE COUNCIL & ANOR

[2007] ACTSC 42 (29 June 2007)

PRACTICE AND PROCEDURE - summary judgment - no cause of action

Judiciary Act 1903 (Cth), s 32, s 80

Crimes Act 1914 (Cth), s 4B

Trade Practices Act 1974 (Cth)

Court Procedures Rules 2006 (ACT), r 425, r 1147

No. SC 129 of 2007

Judge: Master Harper

Supreme Court of the ACT

Date: 29 June 2007

IN THE SUPREME COURT OF THE )

) No. SC 129 of 2007

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: PETER JAMES SPENCER

Plaintiff

AND: COOMA MONARO SHIRE COUNCIL

First Defendant

SHANE ANGOVE

Second Defendant

ORDER

Judge: Master Harper

Date: 29 June 2007

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment be entered for the defendants.

2. The plaintiff pay the first defendant's costs of the application dated 10 April 2007, assessed as between solicitor and client.

3. The plaintiff pay the second defendant's costs of the application dated 3 April 2007, assessed as between solicitor and client.

4. The plaintiff pay the defendants' costs of the action.

1. On 23 February 2007, judgment was entered in the Local Court of New South Wales in favour of the present first defendant, Cooma Monaro Shire Council, against the present plaintiff, Peter James Spencer, for $18,808.24 plus costs. The Council had been represented in those proceedings by the second defendant, Mr Angove, a solicitor employed by Walker Gibbs & King of Cooma. The action was for recovery of shire rates.

2. On 9 March 2007, the plaintiff commenced the present action by originating claim. The nature of the claim is not immediately apparent from the originating claim or from the statement of claim. In the former, it is described as a claim under ss 32 and 80 of the Judiciary Act 1903 (Cth). In the statement of claim, it is stated to be a claim for a liquidated demand. The amounts claimed are $165,000.000 against the Shire Council, and $33,000.00 against Mr Angove. These amounts have been calculated by the plaintiff by adopting a formula set out in s 4B of the Crimes Act 1914 (Cth). The section provides for the imposition of a pecuniary penalty, calculated in accordance with the formula, instead of or in addition to a term of imprisonment, where a natural person or a body corporate is convicted of an offence against a law of the Commonwealth. The maximum penalty for corporations is five times the maximum penalty for natural persons. The maximum pecuniary penalty for a natural person is five times the number of months of the maximum term of imprisonment applicable to the offence.

3. The plaintiff appears to base his claim on the assumption that s 4B of the Crimes Act gives rise to a civil cause of action for recovery of a penalty calculated in accordance with the formula, notwithstanding that neither defendant has been convicted of an offence against a law of the Commonwealth. Plainly the section does not have that effect.

4. The plaintiff makes reference in the statement of claim to the Constitution, the Judiciary Act and the Trade Practices Act 1974 (Cth) but does not identify any provision in the Constitution or either of those Acts which gives rise to a right to bring a civil claim against either defendant.

5. The plaintiff also asserts that the statement of claim represents an appeal against the decision in the Local Court of New South Wales. The Local Court is a creature of statute, as are appeals from it. It is sufficient to say that there is no statutory right of appeal from the Local Court of New South Wales to this Court.

6. The plaintiff asserts that in determining the claim by the Shire Council against him in the Local Court, that court was exercising Federal jurisdiction. In case this could be seen as relevant to the present application, it seems to me that the assertion is incorrect. It would not in any event be relevant to whether the plaintiff has a right to challenge the decision of the Local Court in this Court, whether by appeal or in some other fashion.

7. Both defendants have entered conditional notices of intention to respond, and applied for summary judgment and other relief on the basis that the statement of claim does not disclose a cause of action known to the law.

8. The plaintiff was represented by Mr Walsh of counsel who said, I am sure, as much as could have been said by way of response to the applications. He handed up two volumes of background material, little of which I found relevant or helpful.

9. I am satisfied that the statement of claim does not disclose a cause of action against either defendant, and I am equally satisfied that this is not by reason of any defect which could be cured by permitting the plaintiff an opportunity to amend the statement of claim. The plaintiff in my opinion has no cause of action in this Court against the Shire Council, the successful party in the proceedings against him in the Local Court, or against Mr Angove, the solicitor who represented the Shire Council in those proceedings.

10. The Court has power under r 425 of the Court Procedures Rules 2006 to strike out a statement of claim or to dismiss an action or enter judgment, where the statement of claim discloses no reasonable cause of action. There is also power to give judgment for the defendant under r 1147.

11. The appropriate order is that judgment be entered for the defendants.

12. Both defendants put the plaintiff on notice before making their applications that they proposed to do so, and explained the basis of their intended applications. In doing so they gave the plaintiff the opportunity to discontinue the action. Far from doing so, he effectively told them that he knew more about the law than they did, and that he was confident that he would succeed in the action. Both defendants put the plaintiff on notice that if he did not discontinue, they would be seeking orders for costs against him on a more generous basis than the usual party and party basis.

13. I am not minded to make orders on an indemnity basis, but I am of the view that those offers by the defendants were unreasonably rejected by the plaintiff and that his rejection should be reflected in the cost orders made. The orders I propose to make are that the plaintiff pay the costs of the applications as between solicitor and client. The plaintiff is to pay the defendants' costs of the action on the usual basis, that is as between party and party.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 29 June 2007

Counsel for the plaintiff: Mr Walsh

Counsel for the first defendant: Mr J Pappas

Solicitors for the first defendant: Bradley Allen

Counsel for the second defendant: Mr C P Wall

Solicitors for the second defendant: Walker Gibbs & King by their agents Crowley Clifford Simpson

Date of hearing: 11 May 2007

Date of judgment: 29 June 2007