[2026] SASCA 38

On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (THE HONOURABLE JUSTICE B DOYLE) CIV-25-006676 Applicants: GARY CAIN AND MICHELLE CAIN In Person Respondent: MOUNT BARKER DISTRICT COUNCIL Counsel: MR J NAPIER - Solicitor: NORMAN WATERHOUSE Hearing Date/s: 13/04/2026 File No/s: CIV-26-003757 B SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment 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 in which it was generated. CAIN & ANOR v MOUNT BARKER DISTRICT COUNCIL (No 2) [2026] SASCA 38 Judgment of the Court of Appeal (ex tempore) (The Honourable President Livesey and the Honourable Justice Stanley) 13 April 2026 ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - SOUTH AUSTRALIA - SUPREME COURT - RIGHTS OF APPEAL APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM SUPREME COURT - BY LEAVE OF COURT This is another application for leave to appeal to this Court in this matter, this time against the dismissal of the substantive appeal by a judge of the General Division. This appeal concerns a decision and a number of rulings made by the Environment Resources and Development Court (the ERD Court) in “enforcement proceedings” taken by the respondent pursuant to s 214 of the Planning, Development and Infrastructure Act 2016 (SA). Those proceedings allege that the applicants, without development approval, built a verandah or “lean-to”, spa pool and transportable building on their property. The ERD Court held that the applicants had permitted unlawful development and ordered them to make good their breaches by removing the unlawful development. The appeal judge found that there was no merit in any of the grounds raised by the applicants and dismissed the appeal. The applicants’ notice of appeal replicates the grounds in an earlier notice of appeal filed on 28 October 2025. They do not dispute any ruling made by the appeal judge in his substantive reasons -- 1 of 6 -- but, instead, suggest constitutional and statutory issues that were not considered by the ERD Court or the appeal judge. These matters were previously raised by the applicants when seeking leave to amend their appeal grounds, which was refused by a different judge of the General Division. This Court refused leave to appeal that decision. Held, refusing leave to appeal, with costs: 1. In circumstances where the substance of the suggested constitutional and statutory issues were considered by a different judge of the General Division, whose refusal to grant leave to amend was upheld by this Court, there is no utility in the present appeal. 2. As leave to appeal should be refused, there is no utility in granting an extension of time. 3. The applicants must pay the respondent’s costs, fixed in the sum of $500 and payable within 30 days. Constitution Act 1934 (SA); Environment, Resources and Development Court Act 1993 (SA) ss 30, 30(2); Planning, Development and Infrastructure Act 2016 (SA) s 214; Supreme Court Act 1935 (SA) s 50(4)(b); Uniform Civil Rules 2020 (SA) rr 213.1(1)(b), 214.1(1), referred to. AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; Cain v Mount Barker District Council [2026] SASC 7; Cain & Anor v Mount Barker District Council [2025] SASCA 128; Maurici v State of South Australia [2008] SASC 145; Mount Barker District Council v Cain & Anor [2025] SAERDC 9; Mount Barker District Council v Cain & Anor (No 2) [2025] SAERDC 12; UBS AG v Tyne (2018) 265 CLR 77, considered. -- 2 of 6 -- CAIN & ANOR v MOUNT BARKER DISTRICT COUNCIL (No 2) [2026] SASCA 38 Court of Appeal – Civil: Livesey P and Stanely JA THE COURT (ex tempore): Introduction 1 This is another application for leave to appeal to the Court of Appeal in this matter, this time against the dismissal of the substantive appeal by a judge of the General Division (the appeal judge).1 The applicants are not legally represented. 2 This Court dismissed an earlier application for leave to appeal against the dismissal of an application to amend an appeal notice, intended to raise issues about the Constitution Act 1934 (SA), which this Court ruled were foreclosed by a series of Supreme Court decisions.2 The present proposed appeal 3 This appeal was commenced by a notice of appeal filed on 30 May 2025 concerning a decision and a number of rulings made by the Environment Resources and Development Court (the ERD Court) in “enforcement proceedings” taken by the respondent pursuant to s 214 of the Planning, Development and Infrastructure Act 2016 (SA).3 Those proceedings concerned the allegation, denied by the applicants, that without development approval they undertook building work on their property comprising a verandah or “lean-to”, a spa pool and a transportable building used for human habitation. 4 The ERD Court dismissed various applications filed by the applicants and concluded that the applicants had permitted unlawful development. Following further reasons,4 the ERD Court made orders requiring that the applicants make good their breaches by removing the unlawful development within two months and paying the costs of the respondent. 5 The appeal to the appeal judge was taken pursuant to s 30 of the Environment, Resources and Development Court Act 1993 (SA) and, to the extent of any appeal on a question of fact, leave was required.5 6 On 7 April, the applicants emailed the Registry seeking an adjournment of the initial callover listed for 17 April 2026. The applicants were advised that, as they had commenced the appeal, it must proceed expeditiously and that the callover was relisted for 13 April, when a criminal matter involving Mr Cain was 1 Cain v Mount Barker District Council [2026] SASC 7 (B Doyle J) (the appeal reasons). 2 Cain & Anor v Mount Barker District Council [2025] SASCA 128, [14]-[19] (Livesey P and Stanley JA). 3 Mount Barker District Council v Cain & Anor [2025] SAERDC 9. 4 Mount Barker District Council v Cain & Anor (No 2) [2025] SAERDC 12. 5 Environment, Resources and Development Court Act 1993 (SA), s 30(2). -- 3 of 6 -- [2026] SASCA 38 The Court 2 also listed for callover. The applicants were advised that they should be prepared to address the question of leave to appeal today. 7 At the callover this morning, Mrs Cain raised a new issue which concerned whether this matter should have been heard under s 218 of the Planning Development and Infrastructure Act 2016 (SA). Effectively, she raised whether the matter should have been heard in the criminal jurisdiction of this Court. She also indicated that her and Mr Cain take the view that they were poorly advised previously, and that they now want to make good their breaches and can do so relatively quickly. That is to be commended, but so far as the present application for leave is concerned, it is necessary to deal with that rather than the new issue that was raised for the first time this morning. 8 The appeal to this Court requires a grant of leave to appeal.6 In addition, the appeal has been commenced out of time and an extension of time is required.7 For the following reasons, leave to appeal should be refused and there is no utility in granting an extension of time. The decision under appeal 9 The appeal judge explained the attempts made to convene a hearing of the appeal from the ERD Court in the face of what the respondent suggested was a failure by the applicants to comply with the rules of court, as well as various orders made by the court, together with an oral application by the respondent to dismiss the appeal, which was answered by a cross-application from the applicants seeking the dismissal of the respondent’s oral application.8 10 Ultimately, the appeal judge determined to give the applicants one final extension of time for the filing of written submissions, and he directed that the appeal be determined on the papers.9 11 As for the matters argued, the issues concerned the conduct of the proceedings in the ERD Court,10 the findings made by the Commissioner in the ERD Court,11 and the explanation given by the appeal judge for why the various grounds of appeal lacked merit and were, in some respects, wholly without substance.12 6 Supreme Court Act 1935 (SA), s 50(4)(b); Uniform Civil Rules 2020 (SA), r 213.1(1)(b). 7 Uniform Civil Rules 2020 (SA), r 214.1(1). 8 Appeal reasons, [6]-[10], citing AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, [95]-[103] (Gummow, Hayne, Crennan, Kiefel, Bell JJ). 9 In circumstances where neither party sought an oral hearing. See appeal reasons, [11]. 10 Appeal reasons, [12]-[28]. 11 Appeal reasons, [29]-[30], which included the refusal of the application made by the applicants for summary dismissal and why a period of two months was fixed within which the unauthorised developments were to be removed. 12 Appeal reasons, [31]-[42]. -- 4 of 6 -- [2026] SASCA 38 The Court 3 12 In circumstances where the appeal judge found that there was no merit in any of the grounds raised by the applicants, including those grounds on which leave to appeal was probably required, the appeal was dismissed.13 The proposed grounds of appeal 13 By notice of appeal dated 24 March 2026, the applicants raise the following proposed appeal grounds:14 1. HH the learned Judge erred in refusing leave to amend the Appeal Grounds (as filed in draft mode). The proposed amendments particularised constitutional and statutory defects already raised in substance in the existing pleadings, causing no prejudice to the Respondent, and were necessary to ensure compliance with authorities, including Maurici v State of South Australia [2008] SASC 145, which requires that constitutional issues be expressly pleaded. 2. HH the learned Judge erred in refusing leave to authorise the issue of Subpoenas directed to the Clerk of the Parliament of South Australia and to State Records of South Australia. The said Subpoenas were confined to five narrow categories of documents directly relevant to be required to plead constitutional and statutory issues. HH failed to recognise that, consistently with Maurici v State of South Australia [2008] SASC 145, that the production of such documents was necessary to enable the Appellants to adduce admissible evidence in support of the pleaded material facts. HH, by refusing the authorisation of the Subpoenas, denied the Appellants the only procedural mechanism available to obtain the relevant material/s which are required to prove their case, thereby placing the Appellants in a procedural ‘catch‑22’ and effectively foreclosing the constitutional challenge. 3. HH erred in refusing to order a stay pending compliance with Section 78B of the Judiciary Act 1903 (Cth). The Appellants had duly served Section 78B Notices on the various Attorneys-General of the Commonwealth, each State, and each Territory. By statute, the Court was precluded from proceeding to hear or determine the matter until such Notices were served and the notice period had run. HH erred in concluding that no constitutional issue ‘really and substantially’ arose, in circumstances where the pleadings did raise a genuine constitutional challenge to the validity of Section 64A of the Constitution Act 1934 (SA). In so finding, HH also denied the Attorneys-General their statutory right under Sections 78A–78B of the Judiciary Act to consider intervention. 14 No attempt has been made to attack any ruling made by the appeal judge in his substantive reasons. 15 The startling feature of these grounds is that they replicate the grounds earlier filed on 28 October 2025. Whilst those grounds were not explicitly considered by this Court late last year, the substance of the suggested constitutional and statutory issues raised by them were addressed because they were reflected in the proposed amended appeal grounds. For example, Maurici v State of South Australia was one of the cases reviewed by this Court late last year.15 13 Appeal reasons, [43]. 14 Notice of appeal dated 24 March 2026 (FDN 1). 15 Cain & Anor v Mount Barker District Council [2025] SASCA 128, [16] (Livesey P and Stanley JA), citing Maurici v State of South Australia [2008] SASC 145, [27] (Judge Burley). -- 5 of 6 -- [2026] SASCA 38 The Court 4 16 To be clear, the appeal judge did not consider the draft amended appeal grounds which attempted to raise the suggested constitutional and statutory issues, nor did he address the suggested need for a stay or the notices purportedly issued under s 78B of the Judiciary Act 1903 (Cth). There was no need for his Honour to do so. The application to amend to raise those matters was considered by a different judge, Gray J, and leave to amend was refused by her Honour because the applicants could not articulate how the suggested invalidity of s 64A – which entrenched the existence of local government – provided any basis to challenge the decisions made in the ERD Court when no challenge had been made to the plenary power of the State parliament under s 5 of the Constitution Act 1934 (SA). 17 This Court refused leave to appeal that decision. The substantive appeal from the ERD Court was then determined by the appeal judge. 18 The present proposed appeal grounds ignore that history, criticising the failure of the appeal judge to consider the draft amendments and the other issues pleaded before the formal amendment application was made. 19 In circumstances where the substance of the suggested constitutional and statutory issues were considered by a different judge of the General Division, whose refusal to grant leave to amend was upheld by this Court, there is no utility in the present appeal. 20 The applicants defended the ERD Court proceedings, choosing how their defences were framed. They were given a fair and sufficient opportunity to identify the issues they wished to agitate in the ERD Court and on appeal to the Supreme Court.16 Having been given that opportunity, and this Court having already ruled on the new matters the applicants attempted to raise after the ERD Court proceedings, there is no utility in giving them a further opportunity to raise the same matters. 21 On any view, leave to appeal should be refused.17 As leave to appeal should be refused, there is no utility in granting an extension of time. Conclusion 22 An extension of time in which to pursue leave to appeal is refused. We order that the applicants pay the respondent’s costs associated with the application and today’s hearing, which we fix in the sum of $500, payable within 30 days. 16 Cf UBS AG v Tyne (2018) 265 CLR 77, [38] (Kiefel CJ, Bell and Keane JJ). 17 Cain & Anor v Mount Barker Council [2025] SASCA 128, [13] (Livesey P and Stanley JA). -- 6 of 6 --