Stewart v City of Belmont [2013] WASC 366

The council had received complaints relating to a large amount of rubbish and disused materials that had accumulated around the appellants property, including full sheets and fragments of asbestos fencing. They issued notices but the appellant did not take any action to remove the waste, and was subsequently prosecuted for one charge of contravention of the Local Government Act 1995 (WA), and another charge of contravention of the Health (Asbestos) Regulations 1992 (WA). At the hearing, the appellant argued that the Local Government Act had not been proclaimed, and that this meant that the fines imposed pursuant to the Act were therefore invalid, and that:

“The City of Belmont is trying to extract money which is not legal for them to do so [sic] as there was no contract between myself and the City of Belmont which is a corporation with no more legal capacity from a natural person and cannot legally enforce any law of local government. It has no mandate from the people for the laws and no royal assent for the laws.”

The appellant was convicted and subsequently applied for review orders in relation to his conviction and from the decision of the Magistrates Court to refuse his application to set aside those convictions in Stewart v City of Belmont [2013] WASC 366 on the grounds that he was denied natural justice by the magistrate’s refusal to hear his submissions regarding the constitutionality of local government, and that the orders were made without jurisdiction.

“The grounds upon which Mr Stewart sought a review order with respect to the decision of Magistrate Heaney were wholly without merit. The basis for the order sought was an argument that the lack of provision for local government in the Commonwealth Constitution, and the failure of the 1988 referendum to recognise local governments in the Commonwealth Constitution, has the effect that the City had no authority to charge or impose fines upon Mr Stewart. Arguments of this kind have been rejected by this Court on numerous occasions – see, for example, Glew v Shire of Greenough [2006] WASCA 260 [22] – [25]; Van Lieshout v City of Fremantle (No 2) [2013] WASC 176Pennicuik v City of Gosnells [2011] WASC 63Hargreaves v Tiggemann [2012] WASCA 92Glew v City of Greater Geraldton [2012] WASCA 94. In Glew v Shire of Greenough, Wheeler JA (Pullin and Buss JJA agreeing) held that:

“So far as the 1988 referendum is concerned, the proposition appears to be that, because that referendum was defeated, there arises some prohibition upon the State which would preclude it from passing legislation setting up local government authorities. That proposition misunderstands the referendum process. The 1988 referendum contained a proposal to amend the Commonwealth Constitution by inserting a proposed s 119A, which proposed section would have required each State to provide for the establishment and continuance of a system of local government. Because it was defeated, there is no Commonwealth constitutional requirement that a State provide a system of local government. However, the absence of a requirement to establish a system of local government does not imply any absence of power to do so. Each State has always had, pursuant to the power to legislate for the peace, order and good government of that State, a power to set up a system of local government as the State sees fit .”

Click to access stewart-v-city-of-belmont-2013-wasc-366.pdf

This decision was appealed in Stewart v City of Belmont [2016] WASCA 5 on the grounds the appellant was neither the owner nor occupier of the property.  This was said to be because at the time of the alleged offences he was an undischarged bankrupt and his property had vested in his bankruptcy trustee.  Alternatively, by that time he had defaulted on a mortgage and the mortgagee bank had exercised its rights to take possession of the property. Secondly, that the prosecution notice and court hearing notice had not been properly served upon him because the Cloverdale property was not, and had never been, his place of residence. The court found that the first ground was without merit but an extension of time to appeal should be granted on the second ground, and consequently that the convictions and costs orders be set aside and that there be a retrial.

Click to access stewart-v-city-of-belmont-2016-wasca-5.pdf