2017-02-02 Kaney v Rushton [2017] ACTSC 11€¦  · Web viewThus, in WFM Motors Pty Ltd v Maydwell (Unreported, Supreme Court of New South Wales, Bryson J, 23 April 1993), “informal”

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: Kaney v Rushton

Citation: [2017] ACTSC 11

Hearing Date: 25 November 2016

Decision Date:

Reasons Date:

25 November 2016

2 February 2017

Before: Refshauge J

Decision: 1. For the purposes of s 68(2) of the Court Procedures Act 2004 (ACT) that these proceedings be declared to have been validly commenced.

2. Under r 6 of the Court Procedures Rules 2006 (ACT), so much of the Rules be dispensed with as would prevent the making of these orders.

3. The order made on 14 November 2016 for personal service of the Originating Application dated 15 November 2016 be set aside.

4. It be noted that it is in the interests of justice to proceed in the absence of the defendant.

5. That Mark Desmond Kaney as Executor of the Estate of the late Kelli Maree Rushton be declared to be entitled to the possession of the land being Block 13 Section 377 Division of Macarthur, contained in Volume 883 Folio 71, known as 8 Bayley Place, Macarthur, ACT.

6. It be directed that an enforcement officer enter the premises at 8 Bayley Place, Macarthur, ACT, more precisely described in order 5 and deliver possession of the land and appurtenances to Mark Desmond Kaney.

7. Ben Anthony Rushton be ordered to pay the costs of Mark Desmond Kaney of execution of the Estate of the late Kellie Maree Rushton of and incidental to these proceedings including the cost of all interlocutory hearings and other attendances.

Catchwords: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – ACT Civil and Administrative Tribunal – ACAT – orders made by the ACAT – registration of a judgment of the ACAT – enforcement of orders made by the ACAT – powers of the ACAT – “any personal action at law” – enforcement powers of the Magistrates Court – s 22 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) – s 71 of the ACT Civil and Administrative Tribunal Act 2008 (ACT)

PRACTICE AND PROCEDURE – SERVICE OF DOCUMENTS – Informal service – transfer of proceedings – fees associated with the filing of an Originating Application – certainty of actual notice due to no appearance – contempt of an order – s 247 of the Legislation Act 2001 (ACT)

TORTS – TRESPASS – Trespass to land and rights of real property – recovery of land – proof of title

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – Administration of Estate by executor – family provision – property interests – custody of children – prior Domestic Family Violence Protection Order

Legislation Cited: ACT Civil and Administrative Tribunal Act 2008 (ACT), ss 15, 16(f), 17, 18, 22, 24, 71ACT Civil and Administrative Tribunal Amendment Act 2016 (No 2) (ACT), s 4, Sch 1, Pt 1.5Court Procedures Act 2004 (ACT), s 68(2)District Court of Western Australia Act 1969 (WA), s 55Foreign Judgments Act 1991 (Cth), s 6Leases (Commercial and Retail) Act 2001 (ACT), Div 12.5Legislation Act 2001 (ACT), ss 44, 247, Pt 19.5, DictionaryLocal Court Act 1904 (WA), s 33Magistrates Court Act 1930 (ACT), ss 257, 258, 264, 270, 307Magistrates Court (Civil Proceedings) Act 2004 (WA), s 11Residential Tenancies Act 1997 (ACT)Service and Execution of Process Act 1992 (Cth), s 105Uniform Civil Procedure Rules 1999 (Qld)

Court Procedures Rules 2006 (ACT), rr 6, 61, 1450, 1600, 1613(2)(a), 2440, 2441, 6420, 6421, 6461, 6461(1)(b), Pt 2.18, Pt 6.2, Pt 6.8, Div 6.3.3Uniform Civil Procedure Rules 2005 (NSW), r 10.14(3)

Court Procedures (Fees) Determination 2016 (No 2) (ACT), Item 1210 of Schedule

Explanatory Statement, ACT Civil and Administrative Tribunal Bill 2008 (ACT)

Cases Cited: Allen v Roughly (1955) 94 CLR 98Amos Removals & Storage Pty Ltd v Small [1981] 2 NSWLR 525Angus Fire Armour (Australia) Pty Ltd v Collector of Customs (NSW) (1988) 19 FCR 477 Chianti Pty Ltd v Leume Pty Ltd [2007] WASCA 270; 35 WAR 488 City Finance Co Ltd v Matthew Harvey & Co Ltd (1915) 21 CLR 55Commercial Developments Pty Ltd (t/a Don Rogers Motors Pty Ltd) v Mercantile Mutual Insurance (Workers’ Compensation) Ltd (1991) 5 WAR 208

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Commonwealth v Davis Samuel Pty Ltd (No 11) [2017] ACTSC 2Deputy Commissioner of Taxation v Cooney [2004] QDC 478 Duratech Industries Pty Ltd v Cube Furniture Pty Ltd [2014] ACTSC 405Flamangs Case, unreported but cited in Mitchell v Dors (1801) 6 Ves Jun 147; 31 ER 984Forsyth v Deputy Commissioner of Taxation (2007) 231 CLR 531 Foster v Jododex Australia Pty Ltd (1972) 127 CLR 421General and Finance Facilities Ltd v Cooks Cars (Romford) Ltd [1963] 2 All ER 314Graham H Roberts Pty Ltd v Maurbeth Investments Pty Ltd [1974] 1 NSWLR 93Harrison v Duke of Rutland [1893] 1 QB 142Hill v CA Parsons & Co Ltd [1972] 1 Ch 305 Hondros v Chesson [1981] WAR 146 In re Commercial Union Assurance Co (Ltd) (1899) 18 NZLR 585In the Matter of an Application by Director of Public Prosecutions against Jones (Unreported, Supreme Court of the Australian Capital Territory, Kelly J, 4 October 1985) Llandudno Urban District Council v Woods [1899] 2 Ch 705Magdalen College, University of Oxford v Ward (1839) 1 Coop. T. Cott. 265; 47 ER 849 Matthews v Bayview Holiday Village Pty Ltd (1990) 2 WAR 167Murcia & Associates (A Firm) v Grey [2001] WASCA 240; 25 WAR 209 Murphy v Green [2002] QDC 010 Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; 198 CLR 435Phillips v Phillips (1878) 4 QBD 127Plenty v Dillon (1991) 171 CLR 635Porter v Freudenberg [1915] 1 KB 857 Potter v Minahan (1908) 7 CLR 277 Rose v Laskington Ltd [1990] 1 QB 562R v Johnson [1962] QWN 37Scott v Cawsey (1907) 5 CLR 132Shaddock v Magistrates’ Court of Victoria (Unreported, Supreme Court of Victoria, Harper J, 22 July 1997)Sheldon v Brown Bayley’s Steelworks Ltd and Dawnays Ltd [1953] 2 QB 393Stoke-on-Trent City Council v W & J Wass Ltd [1988] 1 WLR 1406The Lunching Pad Pty Ltd v Minister for Culture and the Arts [2001] WASC 299Vale v TMH Haulage Pty Ltd (1993) 31 NSWLR 702 Vista Capital Developments Pty Ltd v Talmarc Pty Ltd [2008] NSWSC 935WFM Motors Pty Ltd v Maydwell (Unreported, Supreme Court of New South Wales, Bryson J, 23 April 1993)Witham v Holloway (1995) 183 CLR 525

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Texts Cited: Corrie Goodhand and Peter O’Brien, Intentional Tort Litigation in Australia (The Federation Press, 2015)

J D Heydon, M J Leeming and P G Turner, Meagher, Gummow and Lehane’s Equity Doctrines and Remedies (LexisNexis Butterworths, 5th ed, 2015)

Parties: Mark Desmond Kaney as Executor of the Estate of the Late Kelli Maree Rushton (Applicant)

Ben Rushton (Respondent)

Representation: CounselMr R P Clynes (Applicant)

No Appearance (Respondent)

SolicitorsSinclair Whitbourne, Lawyer (Applicant)

No Appearance (Respondent)

File Number: SC 439 of 2016

REFSHAUGE J:

1. On 11 April 2015, Kelli Maree Rushton died after a long battle with cancer. This Court granted Probate of her Will on 6 November 2015. The plaintiff, Mark Desmond Kaney, was appointed Executor of Ms Rushton’s Estate. He was the brother of Ms Rushton.

2. The defendant, Ben Anthony Rushton, had married Ms Rushton on 12 February 2005 but the couple had separated in early 2014. The couple had three children together, who at the time of these proceedings, were aged 13, 12 and 10 years old.

3. It appears that the separation was not amicable as Ms Rushton was granted a Protection Order by the Redcliffe Magistrates Court in Queensland arising from a serious domestic violence incident on 28 February 2014. Ms Rushton alleged a long history of violence, intimidation, and threats of violence against her during the marriage.

4. Ms Rushton moved to Canberra leaving Mr Rushton in the former matrimonial home in Queensland. She purchased a home in Canberra in January 2015. The property is Block 13 Section 377 Division of Macarthur, comprised in Volume 883 Folio 71, known as 8 Bayly Place, Macarthur. I shall refer to this property as the Property. She was the sole registered proprietor of the Property, subject to a mortgage to the National Australia Bank Ltd.

5. Shortly after Ms Rushton died, Mr Rushton moved into the residence on the Property without any permission from either Ms Rushton before she died or from Mr Kaney as nominated Executor of her Estate.

6. In Ms Rushton’s Will, she left an interest in the former matrimonial home in Queensland to Mr Rushton, subject to certain conditions, but no interest in the Property. The

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residue of her Estate was to pass to her three children absolutely. Mr Kaney was appointed the testamentary guardian of her three children.

7. On 24 September 2015, the Family Court of Australia ordered that Mr Kaney have sole parental responsibility of the three children and that they should live with him, both on a long term and on a day-to-day basis. The orders were ultimately enforced by the Australian Federal Police. The children have since lived with Mr Kaney in his home in Florey.

8. Mr Rushton lodged a caveat against the grant of Probate of the late Ms Rushton’s Will to Mr Kaney but, on 23 October 2015, this Court set the caveat aside.

9. Mr Kaney has attempted to resolve the question of Mr Rushton’s unauthorised occupation of the Property with him but to no avail. Accordingly, on 2 October 2015, he formally demanded by letter that Mr Rushton vacate the Property. He has failed to do so.

10. Having had no success, Mr Kaney commenced the proceedings which have ultimately come to this Court. These proceedings have become complex and protracted. This appears to result from very regrettable gaps in the legislative framework under which the proceedings have properly been taken. The policy behind the relevant legislation appears not to have been based on an understanding or appreciation of the options and limits of enforcement of judicial and quasi-judicial orders in this Territory and, perhaps, more widely.

The initial proceedings

Jurisdiction

11. Mr Kaney commenced proceedings in the ACT Civil and Administrative Tribunal (the ACAT), because he considered Mr Rushton a trespasser.

12. The jurisdiction of the ACAT that Mr Kaney sought to enliven arises in this way. Under s 17 of the ACT Civil and Administrative Tribunal 2008 (ACT) (the ACAT Act), the ACAT has jurisdiction to hear and determine a civil dispute application.

13. Section 22 of the ACAT Act gives the ACAT, in relation to civil dispute applications, “the same jurisdiction and powers as the Magistrates Court has under the Magistrates Court Act 1930, Pt 4.2 (Civil jurisdiction).” That jurisdiction is described in s 257 of that Act as jurisdiction to hear and decide “any personal action at law”, though, of course, with a monetary limit – $10 000 in the ACAT: s 18 of the ACAT Act; $250 000 in the Magistrates Court: s 257 of the Magistrates Court Act. I note however, that since 15 December 2016, after these proceedings were heard, the monetary limit in the ACAT has increased to $25 000. See s 4 and sch 1, pt 1.5 of the ACT Civil and Administrative Tribunal Amendment Act 2016 (No 2) (ACT).

14. A personal action at law is defined as an action that is not a real action or a mixed action. See Vale v TMH Haulage Pty Ltd (1993) 31 NSWLR 702 at 707. Thus, it includes any claim against a person arising out of a contract or out of a tort, including, relevantly, trespass. Proceedings for the possession of land and proceedings in equity are, therefore, excluded.

15. That interpretation was not entirely accepted in Commercial Developments Pty Ltd (t/a Don Rogers Motors Pty Ltd) v Mercantile Mutual Insurance (Workers’ Compensation) Ltd (1991) 5 WAR 208 at 219-20, though the High Court seems to have

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approved the decision of Vale v TMH Haulage Pty Ltd in Forsyth v Deputy Commissioner of Taxation (2007) 231 CLR 531 at 543; [21] and 563; [98], but without any detailed consideration of the issues. See also Chianti Pty Ltd v Leume Pty Ltd [2007] WASCA 270; 35 WAR 488 at 504-6; [50]-[56]. I do not have to resolve the issue, but incline to the view that, if required, I should follow Vale v TMH Haulage Pty Ltd.

16. On either view, however, a claim in contract and in tort are both personal actions at law and thus within the civil jurisdiction of the Magistrates Court and, therefore, by virtue of s 22 of the ACAT Act, within the jurisdiction of the ACAT.

17. Many torts are what are known as intentional torts. A helpful list is provided in Corrie Goodhand and Peter O’Brien, Intentional Tort Litigation in Australia (The Federation Press, 2015) 4. Such torts developed from the principal writ of trespass which, in the 13th century, was a remedy for obvious forcible wrongs. Trespass to land is one such tort.

18. This reasoning may be somewhat moot, for s 16(f) of the ACAT Act expressly includes, as a civil dispute application, a trespass application. In turn, s 15 of that Act defines a trespass application as an application for relief for trespass to land.

19. So far as I am aware, the appropriate orders granting relief that are available in a trespass application in the ACAT, indeed, for the Magistrates Court, have not been the subject of any detailed consideration. This is not the place for a detailed consideration, though some consideration is appropriate, which I will undertake below.

20. I do note, however, that a well-known canon of the law is that whenever a person has a right, the law should give a remedy: Hill v CA Parsons & Co Ltd [1972] 1 Ch 305 at 316. In these reasons, the issue of what remedy is available is relevant because it has become complicated in the light of the vexed question of enforcement.

21. Having been developed in the common law, the only remedy for trespass was initially damages. Damages were available even if the trespass caused no actual damage, for proof of damage was and is not required for the action to succeed: Stoke-on-Trent City Council v W & J Wass Ltd [1988] 1 WLR 1406 at 1411. Damages may be awarded in vindication of the plaintiff’s right to exclude persons from his, her or its property: Plenty v Dillon (1991) 171 CLR 635 at 645.

22. Subsequently, equitable relief became available. See Flamangs Case, unreported but cited in Mitchell v Dors (1801) 6 Ves Jun 147; 31 ER 984. Thus, an injunction could thereafter be granted as an alternative to damages, but generally only where an award of damages was not an appropriate remedy: Graham H Roberts Pty Ltd v Maurbeth Investments Pty Ltd [1974] 1 NSWLR 93. Indeed, there is now said to be nothing novel in granting an injunction as a remedy for a trespass as explained in J D Heydon, M J Leeming and P G Turner, Meagher, Gummow and Lehane’s Equity Doctrines and Remedies (LexisNexis Butterworths, 5th ed, 2015) 717; [21-110]. Similarly, a declaration may be made where there has been a trespass: Harrison v Duke of Rutland [1893] 1 QB 142; Llandudno Urban District Council v Woods [1899] 2 Ch 705.

23. There is, so far as I could see, no indication in any relevant legislation of what relief is meant to be encompassed within that which the ACAT could order when hearing a trespass application. Presumably, therefore, the relevant relief would be that available to the Magistrates Court, so far, however, as the ACAT would have power to grant it.

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Procedure

24. It is then necessary to trace the procedural steps taken in this case. The proceedings in the ACAT were conducted in the usual way, so far as I can determine. Both parties were present at the hearing on 21 December 2015.

25. On that day, 21 December 2015, the ACAT ordered:

1. The Tribunal finds that the respondent has no lawful right to be upon the premises at 8 Bayly Place Macarthur, ACT.

2. The applicant has required that the respondent vacate the premises.

3. The respondent has refused to vacate the premises.

4. The respondent’s presence on the premises is a trespass.

5. The respondent is to immediately vacate the premises.

6. The respondent is to surrender to the applicant within 7 days, all personal property belonging to the deceased and the children of the deceased.

26. The nature of these orders is unclear. Arguably, order 1 is a declaration of right of the kind that equity permits to be made. Since at least Foster v Jododex Australia Pty Ltd (1972) 127 CLR 421, a court (and in this case, the ACAT, exercising the jurisdiction in civil dispute applications given it under s 22 of the ACAT Act) has jurisdiction to make a declaration even if no other substantive relief is sought.

27. This is a useful remedy where, for other reasons, the limitations of the law prevent justice from being done.

28. Despite some question about the jurisdiction of an inferior court to grant a declaration as principal relief expressed by Malcolm CJ in Commercial Developments Pty Ltd (t/a Don Rogers Motors Pty Ltd) v Mercantile Mutual Insurance (Workers’ Compensation) Ltd at 220, I am of the view, that s 258 of the Magistrates Court Act would permit such an order to be made, for the reasons set out below.

29. Order 5 may be said to be an order in the nature of an injunction, though mandatory in form which has issues in itself. It cannot be an order for the recovery of land, for that requires the plaintiff to show a better title to the land than the defendant: Allen v Roughly (1955) 94 CLR 98. Under s 264 of the Magistrates Court Act such a claim is beyond the jurisdiction of the Magistrates Court and thus of the ACAT.

30. Order 6 appears to be intended to be an order in the nature of detinue, that is an order for the specific recovery of goods, but the proper order is for the return of the goods or payment of their value: General and Finance Facilities Ltd v Cooks Cars (Romford) Ltd [1963] 2 All ER 314 at 319. That may now have been modified by statute. See r 2441 of the Court Procedures Rules 2006 (ACT). I do not have to decide that in these proceedings.

31. Were order 6 to be instead construed as an injunction, again a mandatory injunction, it again appears that it was probably within power. That seems to follow from what was held in Shaddock v Magistrates’ Court of Victoria (Unreported, Supreme Court of Victoria, Harper J, 22 July 1997), namely that the Magistrates Court did have injunctive power.

Subsequent proceedings

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32. Mr Rushton did not appeal against the orders, nor did he comply with them, and he remained in occupation on the Property. Accordingly, Mr Kaney sought to enforce them. These reasons concern the recovery of the Property, which is what Mr Kaney ultimately wanted to achieve.

33. On 17 February 2016, Mr Kaney registered the orders in the Magistrates Court in an endeavour to enforce them. See s 71 of the ACAT Act. This enables enforcement action to be taken under Pt 2.18 of the Court Procedures Rules.

34. Unfortunately, however, the Magistrates Court has, as noted above (at [29]), no jurisdiction to make an order for the recovery of possession of land. See r 2440 of the Court Procedures Rules 2006 (ACT). Any such enforcement must to be undertaken in the Supreme Court.

35. Thus, under s 270 of the Magistrates Court Act, Mr Kaney sought transfer to this Court of the proceedings so as to enforce what he appears to have thought was an order made by the ACAT for delivery of possession of the Property, a remedy only available in this Court.

36. The matter came before the Registrar on 7 November 2016, who dispensed with the requirement to serve Mr Rushton personally with the application for transfer. The Registrar was satisfied that the delivery of a sealed copy of the Application in Proceedings and supporting affidavit by placing it in the letter box on the Property and sending a scanned copy of each document by email to “two email addresses that [Mr Rushton] had used in the past to communicate with [Mr Kaney’s lawyer]” was sufficient.

37. It is not clear whether the Registrar was relying on the dispensing powers under r 6 of the Court Procedures Rules or relying on the provisions of r 6461 which permit informal service to be accepted as service for the purpose of Pt 6.8.

38. Because there was some doubt as to whether the order of the ACAT was directly enforceable by this Court, the Supreme Court Registrar also directed Mr Kaney to issue an Originating Application seeking an order for delivery of possession of the Property. No doubt the order of the ACAT would have been strong evidence in support of such an application.

39. As it is relevant, the precise orders made by the Registrar were:

1. That the proceedings in the Magistrates Court no. CS16/00111 be removed into the Supreme Court.

2. The name of the plaintiff is amended to read ‘Mark Desmond Kaney’.

3. The plaintiff is permitted to issue an originating application in these proceedings (noting that the filing fee has already been paid), seeking an order that the plaintiff be entitled to possession of the land, the subject of these proceedings, and returnable before Justice Refshauge at 9:30am on 25/11/16.

4. I dispense with the need for any further affidavits to be filed.

5. The affidavits filed to date in these proceedings are to be the affidavits in support of the originating application.

6. The originating application, all supporting affidavits must be personally served on the defendant.

7. I dispense with any Rules inconsistent with these orders.

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40. The proceedings have now come before me. There are a whole range of matters to be considered in this overly complex matter.

Service and hearing

41. Mr Rushton was not present at the hearing before me. He was called and did not appear. He had not been served personally with the Originating Application, though service of the application for transfer has been either considered unnecessary or the Originating Application was taken to have been served on him.

The law

42. Ordinarily, service of the originating process is fundamental to the exercise by a court of its jurisdiction, as notice is essential to the principle of natural justice on which the administration of justice is founded: City Finance Co Ltd v Matthew Harvey & Co Ltd (1915) 21 CLR 55 at 60; Commonwealth v Davis Samuel Pty Ltd (No 11) [2017] ACTSC 2 at [115]-[116].

43. Proceedings can be taken where a party has not had notice of the proceedings, but that is an extraordinary jurisdiction and ordinarily exercised in strictly limited circumstances, such as in the case of urgency where irreparable damage is likely to be suffered were the court not to provide a remedy to which the moving party is entitled: Magdalen College, University of Oxford v Ward (1839) 1 Coop. T. Cott. 265 at 274; 47 ER 849 at 852.

44. The circumstances relevant to a consideration of this matter are these.

45. There are no provisions in the ACAT Act relating to service of documents or addresses for service nominated by parties as there are for proceedings in the Magistrates Court and in this Court. Although Rules have been made under s 24 of the ACAT Act, they make no provision for service or an address for service. The provisions of Pt 19.5 of the Legislation Act 2001 (ACT) would, therefore, appear to apply, in which s 247 permits a document to be served on an individual by leaving it, addressed to the individual, at his or her house.

46. Nevertheless, as noted above (at [24]), Mr Rushton was present when the orders of the ACAT were made. As the filing of an unconditional notice of intention to respond waives any irregularity of service (Sheldon v Brown Bayley’s Steelworks Ltd and Dawnays Ltd [1953] 2 QB 393 at 400; Commonwealth v Davis Samuel Pty Ltd (No 11) at [124]), so his presence at that hearing waived any irregularity of service. Indeed, it may even waive absence of service, subject to any necessary adjournment and the provision of the relevant originating process to him. There was, of course, no notice required to be given to Mr Rushton, nor any given, when the orders of the ACAT were filed in the Magistrates Court under s 71 of the ACAT Act.

47. When it was decided to apply to this Court for transfer of the proceedings, being the registered judgment, the application was made by Application in Proceedings under Pt 6.2 of the Court Procedures Rules. This is the standard procedure, but does not appear to be mandated or permitted by the Court Procedures Rules, though a note to r 1450 does suggest that it is the correct procedure. I will address that issue below.

48. Ordinarily, such a transfer is sought in circumstances where the substantive proceedings have been begun in the Magistrates Court by Originating Application or Originating Claim which, as required by the Court Procedures Rules, will have been

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served personally on the defendant. That would permit service of documents thereafter in the Magistrates Court proceedings either at an address for service (r 6420) or by filing the document (r 6421).

49. When the judgment of the ACAT is “taken to have been filed” in the Magistrates Court under s 71 of the ACAT Act, the consequences are not clear. In other contexts, it is specified that the registration of a judgment in another court results in the registered judgment having the same force and effect as if the judgment had been given in the court in which it was registered. See, for example, s 105 of the Service and Execution of Process Act 1992 (Cth); s 6 of the Foreign Judgments Act 1991 (Cth). Curiously, such a provision does not appear in the ACAT Act. It is not clear why it does not.

50. The reference to “filing” the judgment of the ACAT is also curious. Filing of a document does not make it in any sense effective. For example, pleadings are filed but liable to be struck out; affidavits are filed but often not read or parts of them not read.

51. Ordinarily, “filing” means simply placing a document on the court file: In re Commercial Union Assurance Co (Ltd) (1899) 18 NZLR 585 at 588. There is a distinction between lodging a document at the court registry and filing the document: Angus Fire Armour (Australia) Pty Ltd v Collector of Customs (NSW) (1988) 19 FCR 477 at 487-9. Lodgement is the act of the party or other litigant; filing is the act of the staff of the Registry. It is clear from that decision that the steps between lodgement and filing are formal – whether the document is in the prescribed form, if any, whether any applicable fee has been paid and so on. It may also involve a check to see that the document is not one that should be rejected for any of the reasons set out in Div 6.3.3 of the Court Procedures Rules or otherwise. These matters, however, do not seem to me to imply that filing has any effect on the efficacy of the document or affects its effect.

52. In any event, this distinction may have been blurred or extinguished by the definition in Pt 1 of the Dictionary of the Legislation Act which applies the definitions in that Part to all Acts and statutory instruments: s 44. The definition is that “file includes lodge”.

53. The Explanatory Statement to the Bill which became the ACAT Act is, as is regrettably so often the case, of no assistance at all, merely paraphrasing the effect of s 71 of that Act.

54. I shall deal with the consequences of that later in these reasons, but it seems to me that the effect of the fact that the judgment of the ACAT having been taken to have been filed in the Magistrates Court would be that it was then registered in that Court and, in the context, that it has at least the effect that the proceedings are before that Court, that is, the proceedings in the ACAT in which Mr Rushton appeared now being before that Court. It would appear also intended by s 71 of the ACAT Act that the orders of the ACAT could be enforced.

The facts

55. There was no Notice of Intention to Respond filed by Mr Rushton in the Magistrates Court following registration of the judgment under s 71 of the ACAT Act, nor, in the circumstances, would that be expected, as there was no occasion for it. There was, therefore, no address for service for him in that Court. That is unsurprising for he had not been, nor required to be, served with any notice of the proceedings “moving” into the Magistrates Court.

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56. Then application was made under s 270 of the Magistrates Court Act for the transfer of the proceedings to this Court, for the reasons mentioned above (at [35]). Mr Kaney made application by Application in Proceedings as noted above (at [36]). He attempted to serve Mr Rushton with that application by leaving it in a sealed envelope at the Property where Mr Rushton resided, containing a sealed copy of the Application in Proceedings and the supporting affidavit of his solicitor, Mr S Whitbourne.

57. He also caused an email to be sent to Mr Rushton attaching scanned copies of the sealed copy of the Application in Proceedings and the supporting affidavit to two email addresses that Mr Rushton had previously used to communicate with him. One of those addresses rejected the email, but the other did not.

58. On 10 November 2016, he received a response to the unrejected email with what can only be described as a curious response as follows:

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59. From this email, it must be accepted that Mr Rushton received the relevant documents at least by 10 November 2016.

Consideration

60. In those circumstances, it seems to me that this would be sufficient to show informal service, which is a form of retrospective substituted service. Rule 6461 of the Court Procedures Rules makes such provision. It is in the following terms:

(1) This rule applies if –

(a) a document is not served on a person as required or allowed by this part but the document or a copy of it comes to the notice of the person; and

(b) the court is satisfied that the document came to the person’s notice on or before a particular day.

Note This rule does not apply to a criminal proceeding (see r 4006 (Criminal proceedings -application of pt 6.8)).

(2) The court may, by order, decide that the document was served on the person on the day stated in the order.

Note Pt 6.2 (Applications in proceedings) applies to an application for an order under this rule.

(3) For any provision of these rules requiring personal service of a document on a person, the document is taken to have been personally served on the person on that day.

61. What seems on the authorities to be important is what is required by r 6461(1)(b) of the Court Procedures Rules, namely that the document comes to the actual notice of the person to be served. This rule has, so far as I can determine, received no judicial consideration. A similar rule in the Uniform Civil Procedure Rules 1999 (Qld) has, however, been considered a number of times by the District Court of that State.

62. It is clear from Murphy v Green [2002] QDC 010 at 4, that an essential aspect of the rule is that the relevant document has actually come into the possession of the person to be served. That it has, however, may be inferred from the circumstances appears from what was said in Deputy Commissioner of Taxation v Cooney [2004] QDC 478 at 4.

63. Another similar rule, r 10.14(3), in the Uniform Civil Procedure Rules 2005 (NSW) has also received consideration. Thus, in WFM Motors Pty Ltd v Maydwell (Unreported, Supreme Court of New South Wales, Bryson J, 23 April 1993), “informal” service was confirmed when the originating process had not been served on the defendant but an ex parte Mareva injunction had been made and, on the return of the application for it, counsel for the defendant appeared and announced a conditional appearance for the defendant. The defendant also made an application for a declaration that the Court had no jurisdiction. These acts of the defendant were sufficient to show that the defendant could be said, as in the earlier decisions, to have had actual notice of the proceedings.

64. In Vista Capital Developments Pty Ltd v Talmarc Pty Ltd [2008] NSWSC 935, the eighth defendant was not served with the Amended Summons by which he was joined as a party but a lawyer subsequently corresponded with the plaintiff’s lawyers, purporting to act for him and then appeared in Court, announcing an appearance for him and other defendants. The Court held that this was sufficient to find that the Amended Summons was taken to have been served on him.

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65. Thus, these authorities seem to require a satisfaction by the Court that there has been actual notice of the proceedings. This is, perhaps, a little odd when considering that an order for substituted service, which is as effective to constitute the proceedings, though there has not been personal service, will, if properly effected according to the terms of the order for it, be deemed to be personal service if, when personal service is a “practical impossibility”, the method of service is “one which will in all reasonable probability, if not certainty, be effective to having knowledge of the writ ... to the defendant”: Porter v Freudenberg [1915] 1 KB 857 at 889. In Amos Removals & Storage Pty Ltd v Small [1981] 2 NSWLR 525 at 528, Hunt J described the requirement as being that the method of substituted service “would with reasonable probability be effective to bring notice of the process to the defendants”. This is a somewhat lesser requirement than that for informal service under r 6461 of the Court Procedures Rules.

66. In this case, that test seems to me to have been met in respect of the Application in Proceedings for transfer of the proceedings to this Court that was dealt with by the Registrar, especially in the light of the email response received on 10 November 2016. That is to say, Mr Rushton was taken to have been served with the Application before it was heard on 14 November 2016.

67. It is curious that an application to transfer proceedings into the Supreme Court is made by an Application in Proceedings. That document is generally an interlocutory process and not an originating process, even though the proceedings are starting afresh in the Supreme Court. It seems that the procedure grew out of a concern that, were an Originating Application to have been used, the parties would be required to pay two filing fees – one in the Magistrates Court and one in the Supreme Court.

68. I am not convinced that this is so. Item 1210 of the Schedule to the Court Procedures (Fees) Determination 2016 (No 2) (ACT) makes it clear that a reduced fee ($434 for an individual and $868 for a corporation, compared with $1605 for an individual and $3211 for a corporation for lodging an originating process) is payable for “lodging an application for the removal or transfer to the Supreme Court proceedings commenced in the Magistrates Court”. This is, in fact, somewhat less than the difference between the ordinary filing fees in the two Courts respectively.

69. Thus, use of an Originating Application for such a transfer application would not disadvantage the applicant so far as fees were concerned, though it would be required to be served personally under r 61 of the Court Procedures Rules. That could be considered for reform, though in a case like this, it may be desirable to have personal service where there have been no real proceedings of substance in the Magistrates Court from which the transfer is sought.

70. Indeed, an Originating Application has been used on occasion: Duratech Industries Pty Ltd v Cube Furniture Pty Ltd [2014] ACTSC 405 at [2].

71. This may be an issue that should be considered by those responsible for the Court Procedures Rules.

72. Mr Rushton has had the following access to the documents before me. Documents have been sent to two email addresses from one of which he has responded and to an address to which he has access.

73. These were unsealed copies of Originating Application dated 16 November 2016 and a draft of the Orders made on 14 November 2016 by Registrar Glover.

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74. Sealed copies were then sent on 23 November 2016 by email to the address from which a response had earlier been received as noted above (at [58]).

75. Also at 7:30 pm on 23 November 2016 a sealed copy was delivered to the address of the Property where documents had been left for him in the past and received because, as a result, he appeared at the ACAT hearing. At the time of delivery on this occasion, the house appeared occupied with mown lawns and a tended garden. There was no unsolicited mail in the letter box as may be expected in an unoccupied house, suggesting that the mail box was reasonably regularly cleared. An earlier letter also delivered in this way was no longer in the letter box.

76. Although no response has been received and no appearance, I am reasonably satisfied that these proceedings have come to the notice of Mr Rushton.

77. Accordingly, although I was initially concerned at the hearing that I needed greater certainty of actual notice before making an order under r 6461 of the Court Procedures Rules, I am now satisfied that I can take it that the Originating Application has been served on Mr Rushton.

78. I am also satisfied that Mr Rushton’s position will be protected, for he has a remedy if he did not have notice of the proceedings and, as a result of that, he was absent. In the first place, r 1613(2)(a) of the Court Procedures Rules would permit the Court to set aside any order made in Mr Rushton’s absence and so he would not be left without a remedy were he not to have had actual notice of the proceedings. In the second place, absence of service may entitle him to have the judgment set aside ex debito justitiae.

Enforcement Powers of the Magistrates Court

79. It is reasonably clear from s 71 of the ACAT Act that it is intended that the enforcement of orders of the ACAT be effected through the established procedures under the Magistrates Court Act. It would be preferable were this to be put beyond doubt as noted above (at [49]).

80. Section 258 of the Magistrates Court Act sets out the powers that the Magistrate Court has to grant relief or remedy in relation to proceedings within its jurisdiction. That section is as follows:

258 Power of court to grant relief

(1) In any proceeding that the Magistrates Court has jurisdiction to hear and decide –

(a) the court may grant any relief, redress or remedy that the Supreme Court may grant in a similar action in that court, and for that purpose the Magistrates Court may make any order that the Supreme Court may make; and

(b) the court must give effect to any ground of defence, counterclaim or set-off, whether equitable or legal, in the same way and to the same extent that the Supreme Court would do.

(2) For the exercise by the Magistrates Court of its powers under subsection (1) in any proceeding –

(a) a magistrate constituting the court has, as well as any other powers under this Act, all the powers of a judge in a similar action in the Supreme Court; and

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(b) the registrar, bailiff or other appropriate officer of the Magistrates Court must exercise any function that a corresponding officer of the Supreme Court would exercise in a similar action in that court in accordance with the practice and procedure of that court.

(3) In exercising a function mentioned in subsection (2), the registrar, a bailiff or other officer of the court must comply with this Act, the rules and any order of the Magistrates Court.

81. This section is in similar terms to provisions in other jurisdictions, such as s 55 of the District Court of Western Australia Act 1969 (WA), which replaced s 33 of the Local Court Act 1904 (WA) and s 11 of the Magistrates Court (Civil Proceedings) Act 2004 (WA). These have been the subject of consideration a number of times.

82. It is clearly accepted that such a provision does give the Magistrates Court the power to grant equitable remedies: Hondros v Chesson [1981] WAR 146 at 147. The power, however, has been held to be limited to ancillary relief or an auxiliary power and not to be the principal relief to be sought: Murcia & Associates (A Firm) v Grey [2001] WASCA 240; 25 WAR 209 at 214; [19]-[20], citing Commercial Developments Pty Ltd (t/a Don Rogers Motors Pty Ltd) v Mercantile Mutual Insurance (Workers’ Compensation) Ltd at 217, 221. See also Matthews v Bayview Holiday Village Pty Ltd (1990) 2 WAR 167.

83. So far as the Local Court in Western Australia (now the Magistrates Court) see, to the same effect, The Lunching Pad Pty Ltd v Minister for Culture and the Arts [2001] WASC 299 at [14]-[15].

84. The view that such equitable remedies are limited and so as to be ancillary to primary relief within jurisdiction is supported by the view of the High Court in Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; 198 CLR 435.

85. Accordingly, it seems to me more likely than not that, unless a trespass application in the ACAT seeks to claim as the principal relief damages for trespass, then the ACAT may well have no power to make a declaration or an injunction.

86. Further, there must be some doubt about the enforcement of any injunction made. Clearly, the ACAT has no such power. Section 71 of the ACAT Act makes it plain that enforcement is a matter for the Magistrates Court.

87. Action for contempt against a person who breaches a court order, such as an injunction, is the usual remedy: Witham v Holloway (1995) 183 CLR 525 at 530, 539. Under s 307 of the Magistrates Court Act, the Magistrates Court may deal with a person for contempt in the same way as may the Supreme Court. The Magistrates Court may have had this power without such a provision: Rose v Laskington Ltd [1990] 1 QB 562 at 570. As the section also provides, this does not exclude the power of the Supreme Court to deal with contempt of the Magistrates Court, a common law power but it has always had: In the Matter of an Application by Director of Public Prosecutions against Jones (Unreported, Supreme Court of the Australian Capital Territory, Kelly J, 4 October 1985) at 8.

88. It is, however, unclear that the Magistrates Court has the power to deal with a person who is in contempt not of its own order, but of an order of the ACAT. Section 307 of the Magistrates Court Act does by no means make that clear, especially in the absence of a provision that makes an order of the ACAT into an order of the Magistrates Court, to which latter order, s 307 is directed.

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89. While this may seem a limited interpretation, such a power could be used to interfere with the liberty of a person subject to an ACAT order and a statute should not be construed to take away a right or liberty without express words or necessary intendment: Potter v Minahan (1908) 7 CLR 277 at 304. This is especially so where the provision is a penal provision, likely to effect the liberty of the subject: Scott v Cawsey (1907) 5 CLR 132 at 154-5; R v Johnson [1962] QWN 37.

90. It is, however, undesirable that the occasion for the exercise of this power be so unclear.

91. Nevertheless, none of this provides jurisdiction for the Magistrates Court to enforce an order for the recovery of possession of premises as no action of this kind is within the jurisdiction of the Magistrates Court unless given by another statute. Thus, for example, the Magistrates Court has jurisdiction to order and enforce the eviction of a tenant under a lease for retail or commercial premises, and certain others, under Div 12.5 of the Leases (Commercial and Retail) Act 2001 (ACT). The ACAT has a similar power under the Residential Tenancies Act 1997 (ACT).

92. None of those powers, however, were relevant here or were available for the redress sought by Mr Kaney.

Proceedings in this Court

93. There is no doubt that, when an issue arises in Magistrates Court proceedings over which that Court has no jurisdiction, it is appropriate that the proceedings be transferred to this Court. An example would be where, in debt proceedings, a defendant counter-claims for an amount that exceeds the jurisdictional limit of the Magistrates Court: Duratech Industries Pty Ltd v Cube Furniture Pty Ltd.

94. In this case, however, the proceedings have concluded with final orders made and the only question is enforcement. It seems to me quite unsatisfactory that orders within jurisdiction cannot be enforced by the ordinary processes of the body that makes the final orders or, in this case, the body charged with enforcing them, namely the Magistrates Court.

95. It was submitted to me that the orders of the ACAT made on 21 December 2015 were orders for the recovery of land. I do not think that there is any magic formula for the terms in which such an order is expressed, but it does seem to me that the ACAT has no power to make such an order. It may have articulated the order, but it is a nullity for the ACAT has no such jurisdiction.

96. If, however, it was intended that it have such a power, then attention should have been paid to the question of its enforcement by the ordinary processes available for enforcement of orders of the ACAT, namely under s 71 of the ACAT Act, which would require attention to be given to the enforcement of such orders in the Magistrates Court, or, alternatively, registration of the orders of the ACAT in this Court.

97. The absence of this power may be an indication that no such jurisdiction was intended to be given to the ACAT on the hearing of a trespass action.

98. In any event, in this case, the question of the title to the Property was genuinely in issue for Mr Kaney had never had possession of the Property and so was not in a position to prove a greater right to possession from, for example, prior possession. He had to prove his title.

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99. Accordingly, my view was that, insofar as the fifth order made by the ACAT on 21 December 2015 was an order for the recovery of land, it was beyond power. There was, therefore, no valid order to be enforced.

100. One further matter may be raised. Once the registered judgment (the proceedings) in the Magistrates Court had been transferred by the Registrar into this Court, it became proceedings in this Court.

101. Rule 1600 of the Court Procedures Rules provide:

1600 Orders – required by nature of case

(1) On the application of a party to a proceeding, the court may, at any stage of the proceeding, make any order that the nature of the case requires.

Note 1 Pt 6.2 (Applications in proceedings) applies to an application for an order under this rule.

Note 2 Order is defined in the dictionary to include judgment (see also def made).

(2) The court may make the order even if there is no claim for relief extending to the order in the originating process, statement of claim, counterclaim or similar document.

102. Such wide and apparently unlimited powers have given rise to problems of interpretation in the past.

103. Giving this rule its literal interpretation, it would suggest that the Magistrates Court could have, on the filing of the orders of the ACAT under s 71 of the ACAT Act, made an order for recovery of possession of the Property in favour of Mr Kaney.

104. The authorities that have considered similar rules in other jurisdictions have not suggested that the power given by the rule extend to making an order that would not otherwise be within the jurisdiction of the Court to make.

105. However, I do not consider that this is the correct interpretation of this rule. In any event, the enforcement procedures would still not be available for the Court Procedures Rules limits them to the Supreme Court as noted above (at [34]).

106. As required by the Registrar, however, the Originating Application sought an order for recovery of possession of land. I, therefore, considered that application.

107. I read the affidavit in support of the Originating Application and heard some short oral evidence of Mr Kaney’s solicitor. From this evidence, I can make the following findings.

108. At present, Mr Rushton has no apparent right to possession or occupation of the Property. The evidence before me shows that he is not a registered proprietor, he has had no licence or other permission from the registered proprietor to possession or occupation of the land. He can point to no tenancy. He has no interest in the Estate of the late Ms Rushton that would give him an interest in the Property of any kind.

109. He is, as the ACAT described it, a trespasser. In my view, I can rely on that order of the ACAT as a finding inter partes following a hearing of the trespass application to support these findings.

110. Mr Kaney has, as required, stated with appropriate particularity the nature and details of his right to the Property. See Phillips v Phillips (1878) 4 QBD 127. He relied on a title search of the Property and produced a copy of the Probate granted to him as Executor of the Estate of the late Ms Rushton.

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111. In these circumstances, Mr Kaney is entitled to an order for the possession of the Property.

112. Mr Kaney had, in my view, shown that he was entitled to possession of the Property as the Executor of the Estate of Ms Rushton and that there was no countervailing interest of Mr Rushton. Thus, the conditions for an order for an order for recovery had been satisfied. See Allen v Roughley at 108.

113. Accordingly, I made the orders sought.

Further comments

114. It seems to me undesirable that these proceedings should have become so complex. Clearly, some thought needs to be given to what actual powers it is intended that the ACAT be given when considering a trespass application and, if the restricted view I have taken does not find favour with the legislature, then appropriate amendments need to be made.

115. I commend these comments to the appropriate authorities.

I certify that the preceding one hundred and fifteen [115] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.

Associate:

Date: 2 February 2017

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