Land and Environment Court New South Wales Medium Neutral Citation: Horton v Palerang Council [2013] NSWLEC 102 Hearing dates: 10 July 2013 Decision date: 10 July 2013 Jurisdiction: Class 3 Before: Biscoe J Decision: Proceedings dismissed with costs. Catchwords: SUMMARY DISMISSAL - claim for review of all rates notices since 2004 and for exemplary damages against a council - whether proceedings should be dismissed on basis that no reasonable cause of action disclosed. Legislation Cited: Uniform Civil Procedure Rules 2005 r 13.4(1) Local Government Act 1993 ss 574(1)(a) and (b), 603 Cases Cited: Horton v Palerang Council [2012] NSWLEC 215 Horton v Palerang Council (No 2) [2012] NSWLEC 229 Category: Procedural and other rulings Parties: Derek Horton (Applicant) Palerang Council (Respondent) Representation: COUNSEL: D Horton in person (Applicant) D Currie (Respondent) SOLICITORS: N/A Forbes Dowlilng (Respondent) File Number(s): 30344/13 EX TEMPORE Judgment 1This is a notice of motion by the respondent Palerang Council seeking an order that the Application filed on 7 May 2013 by Mr Derek Horton be struck out and the proceedings dismissed pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005 (UCPR) on the basis that no reasonable cause of action is disclosed. Mr Horton is a self-represented litigant. 2Upon the motion being called on for hearing this morning Mr Horton applied for an adjournment in order to obtain legal representation or advice. He told me that (a) he had a solicitor who gave him some legal assistance in relation to his similar earlier proceedings that were struck out last year by Craig J; (b) he has had great difficulty over the years with solicitors; (c) he received the Council's notice of motion and supporting affidavit on 14 June 2013; (d) he had spoken since then with about six solicitors and had received an opinion from one of them that he did not stand a chance. The adjournment application is opposed. I decline to grant an adjournment. In my opinion, Mr Horton has had a reasonable opportunity to obtain legal advice or representation. It is now 10 July, he has had Council's notice of motion and supporting affidavit since 14 June and he has spoken to a number of solicitors and received advice. 3Rule 13.4 relevantly provides: 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. (2) The court may receive evidence on the hearing of an application for an order under subrule (1). Previous proceedings 4In May 2012, Mr Horton commenced the previous proceedings by filing a Class 3 Application in this Court against the Council purportedly pursuant to s 574 of the Local Government Act 1993 in respect of "Palerang Council Rate Notice 2011/2012 4th Instalment due date 31-05-2012". The orders sought included a claim against Council for aggravated damages and exemplary damages totalling $111,000. 5Council filed a notice of motion seeking that the Application be struck out on the basis that there was no reasonable cause of action disclosed and that the s 574 appeal was out of time. The notice of motion was listed for hearing in September 2012 before Craig J. Mr Horton sought an adjournment. This was granted, however His Honour ordered him to pay Council's costs: Horton v Palerang Council [2012] NSWLEC 215. In October 2012, Craig J struck out the Application for want of jurisdiction and ordered Mr Horton pay Council's costs: Horton v Palerang Council (No 2) [2012] NSWLEC 229. 6In February 2013, Council filed an application for assessment of party/party costs with the Supreme Court in respect of the costs orders. That application claimed costs in an amount of $13,924.73. The costs assessor wrote a letter dated 16 May 2013 stating that the assessment will be finalised and a certificate issued after 23 May 2013. 7Meanwhile, in or about April 2013, Mr Horton requested Council to provide a certificate under s 603 of the Local Government Act, which provides: 603 Certificate as to rates and charges (1) A person may apply to the council for a certificate as to the amount (if any) due or payable to the council, by way of rates, charges or otherwise, in respect of a parcel of land. ... 8On 10 April 2013 Council issued a s 603 certificate which indicates that all rates and charges from 1 July 2012 to 30 June 2013 have been paid. It also refers to "Costs awarded in Land & Environment Court $13,924.73". I doubt that this is an amount due or payable to the Council "in respect of a parcel of land" within s 603(1), but for present purposes it is unnecessary to express a concluded view. The current proceedings 9On 7 May 2013 Mr Horton commenced the current proceedings by filing a Class 3 Application against Council in respect of the said s 603 certificate in which he claimed orders for: (a)a review of all rate notices since 2004; and (b)exemplary damages totalling $150,000. 10The Application states that it is brought pursuant to s 574(1)(a) and (b) of the Local Government Act. Section 574 relevantly provides: 574 Appeal on question of whether land is rateable or subject to a charge (1) A person who has an estate in land...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 (b) in the case of a charge-against the levying of the charge on the ground that the land is not subject to any charge (excluding a charge limited under section 503 (2)) or is not subject to the particular charge. (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. (4) If the Land and Environment Court determines that only a part of land is rateable, it is required to determine the value of that part. ... 11Rate notices have been issued by Council for rates and charges in respect of a parcel of land Lot 211 DP 755918 known as 628 Northangera Road, Mongarlowe, New South Wales. This land is owned in equal shares by Mr Horton and Ruth Horton, whom Mr Horton tells me is his ex wife. He also says that the property at 628 Northangera Road is not located in the village of Mongarlowe but is located nearby at Budawang, which he describes as "rural". 12The concern of Mr Horton, as best I can understand it from what he has told me, is twofold. First, he considers that past rates and charges in respect of this property, which he says were paid by his ex wife, should not have been charged. However, he provides no evidence or particulars. Secondly, he has a concern about the quantum of the costs which the Council claimed in respect of the previous proceedings. He tells me that the costs assessor has now assessed an amount for those costs which is close to the amount which the Council claimed. 13In my opinion, no reasonable cause of action is disclosed and the proceedings should be dismissed for the following reasons. 14First, the 30 day time limit in s 574(3) bars his claim for "a review of all rate notices since 2004". The last rates notice issued by Council for 2012/2013 was posted on 27 July 2012. The time within which Mr Horton was able to appeal against that notice expired at the end of August 2012. 15Secondly, Mr Horton adduces no evidence or particulars that might bring the case within s 574(1) viz: (a)in the case of rates, the land or part of is not rateable or is not rateable to a particular ordinary rate or a particular special rate; (b)in the case of a charge, the land is not subject to any charge or is not subject to a particular charge. 16Finally, Mr Horton does not identify any conduct of Council which could possibly give rise to a cause of action for his damages claim against Council in this Court. 17The orders of the Court are as follows: (1)The proceedings are dismissed. (2)The applicant is to pay the respondent's costs. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 July 2013