MICHELLE CAIN v MOUNT BARKER DISTRICT COUNCIL [2026] SASC 7

On Appeal from ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA (COMMISSIONER DYER) ERD-24-000086 First Appellant: GARY CAIN Second Appellant: MICHELLE CAIN Respondent: MOUNT BARKER DISTRICT COUNCIL Counsel: MR J NAPIER - Solicitor: NORMAN WATERHOUSE Hearing Date/s: On the papers File No/s: CIV-25-006676 B SUPREME COURT OF SOUTH AUSTRALIA (Appeal to a Single Judge) 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 v MOUNT BARKER DISTRICT COUNCIL [2026] SASC 7 Judgment of the Honourable Justice B Doyle 28 January 2026 ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - SOUTH AUSTRALIA - SUPREME COURT - RIGHTS OF APPEAL ENVIRONMENT AND PLANNING - PLANNING - DEVELOPMENT ASSESSMENT AND CONTROL - WHEN CONSENT, APPROVAL OR PERMIT REQUIRED - DEVELOPMENT - STRUCTURE The appellants are the owners of land at Brukunga (‘the land’). By their notice of appeal filed on 30 May 2025, they challenge various orders made by the Environment, Resources and Development Court (‘ERD Court’) on 16 May 2025. The ERD Court dismissed various interlocutory applications made by the appellants and found that they had engaged in unlawful development on the land in the form of a transportable building, a verandah/lean-to and a spa pool. Later, on 10 June 2025, the ERD Court gave reasons for requiring the appellants to make good their breaches. The notice of appeal advances 14 grounds of appeal. The appellants delayed in filing any written submissions in support of those grounds for several months. An application was made for the summary dismissal of the appeal. Ultimately, the Court granted a final opportunity to file written submissions and it was directed, by consent, that the appeal be determined on the papers. Held, dismissing the appeal: 1. the ERD Court did not err by deciding to list and consider the appellants’ interlocutory application(s) concurrently with the substantive proceedings; 2. the ERD Court did not err by proceeding in the appellants’ absence. They had been given a proper opportunity to appear and participate; -- 1 of 11 -- 3. the proceedings did not miscarry by reason that pleadings were not ordered, the ERD Court’s findings were not unsupported by relevant evidence, and the ERD Court did not overlook relevant evidence; and 4. each of the grounds of appeal is without substance. Environment, Resources and Development Court Act 1993 (SA) ss 21(1), 30, 214(6); Planning, Development and Infrastructure Act 2016 (SA) ss 101, 210, 214; Uniform Civil Rules 2020 (SA) rr 146.1, 215.5, 217.11, referred to. AON Risk Services Australian Ltd v Australian National University (2009) 239 CLR 175; Mount Barker District Council v Cain [2025] SAERDC 9; Mount Barker District Council v Cain (No 2) [2025] SAERDC 12, discussed. -- 2 of 11 -- CAIN v MOUNT BARKER DISTRICT COUNCIL [2026] SASC 7 Single judge appeal—civil 1 B DOYLE J: The appellants, Mr and Mrs Cain, are the owners of land at 59 Watts Road Brukunga (‘the land’). By their notice of appeal dated 30 May 2025, they challenge various orders made by the Environment, Resources and Development Court (‘ERD Court’) on 16 May 2025. 2 On that occasion, a Commissioner of the ERD Court dismissed four interlocutory applications filed by the appellants and concluded, for reasons delivered on that date,1 that: • there had been unlawful development on the land in the form of a transportable building, a verandah/lean-to and a spa pool; • the transportable building, verandah/lean-to and spa pool required development approval and, contrary to s 101 of the Planning, Development and Infrastructure Act 2016 (SA) (‘PDI Act’), no approval had been sought or granted with respect to those structures; and • each of Mr and Mrs Cain, as an owner and occupier of the land, had caused, suffered or permitted the unlawful development to occur. 3 On 10 June 2025, the Commissioner gave further reasons2 for making orders that required the appellants: • to make good the breaches of the PDI Act on the land by removing the transportable building and the verandah/lean-to and the spa pool from the land within two months of the date of the order; • to refrain from returning the transportable building or verandah/lean-to or the spa pool to the land without first obtaining development approval under the PDI Act; and • to pay the costs of Mount Barker District Council (‘Council’) of and incidental to the proceedings as agreed or taxed. 4 The appeal is pursuant to s 30 of the Environment, Resources and Development Court Act 1993 (SA) (‘ERD Court Act’). To the extent that the appeal is on a question of fact, leave is required.3 1 Mount Barker District Council v Cain [2025] SAERDC 9 (‘First Reasons’). 2 Mount Barker District Council v Cain (No 2) [2025] SAERDC 12 (‘Second Reasons’). 3 ERD Court Act, s 30(2). -- 3 of 11 -- [2026] SASC 7 B Doyle J 2 5 The notice of appeal lists some 14 grounds of appeal. For convenience, they are reproduced at the end of these reasons. Some of the grounds likely require leave (such as appeal ground 2), albeit that they have been framed so as to seek to avoid any such requirement.4 It is not necessary to focus upon the extent to which leave is required, because as will be explained, each of the grounds must fail even if leave is granted. 6 On 28 November 2025, the respondent made an oral application to dismiss the appeal on the ground that the appellants had failed to comply with the Uniform Civil Rules 2020 (SA) (‘UCRs’) and the Court’s orders and had not diligently prosecuted the appeal.5 I directed that the appellants file any submissions in opposition to the application by 2 December 2025. By email of 2 December 2025, they sought an extension of time. I granted an extension to close of business on 4 December 2025. 7 On 4 December 2025 the appellants filed an interlocutory application,6 effectively by way of cross-application, seeking the dismissal or rejection of the respondent’s oral application, and seeking orders for directions as to the future conduct of the appeal as well as a further extension of time for the filing of submissions on the 14 appeal grounds. The application was supported by an affidavit sworn by Mrs Cain7 and brief written submissions.8 8 Absent from the submissions was any development, even in a preliminary way, of the merits of any of the grounds of appeal. Absent from the affidavit evidence was any explanation for why: • the appellants did not comply with the requirement to file written submissions 14 days prior to the appeal hearing on 30 September 2025; • the appellants did not comply with the order that they were to file written submissions in respect of any of the 14 grounds that they wished to pursue by 21 October 2025; • the appellants have not prepared written submissions in support of the 14 grounds of appeal in the subsequent seven weeks. 9 The observations of the plurality in AON Risk Services Australian Ltd v Australian National University (‘AON Risk Services’),9 whilst made in the context of an amendment to a pleading necessitating an adjournment of a trial, also have application to the proposition that a party should be permitted to delay the hearing 4 For example, the appellants’ written submissions (‘AWS’) assert that there was no evidence capable of supporting any relevant findings. 5 Uniform Civil Rules 2020 (SA), rr 217.11 and 146.1(1)(c) (as picked up by r 215.5). 6 FDN 21. 7 FDN 20. 8 FDN 22. 9 (2009) 239 CLR 175. -- 4 of 11 -- [2026] SASC 7 B Doyle J 3 of an appeal so long as the points to be raised are fairly arguable. They include that: • what may be just, when an indulgence is sought (in that case, an amendment necessitating an adjournment), requires account to be taken of other litigants, not just the parties to the proceedings in question;10 • it cannot be said that a just resolution requires that a party be permitted to raise any arguable case at any point, on payment of costs. Costs are not a panacea;11 and • generally speaking, an explanation for delay on the part of the party seeking the indulgence will be called for.12 10 A failure to provide an evidentiary explanation for past failures to comply with procedural requirements means that, when weighing the interests of justice, there is absent from the scales any circumstances that might favour the grant of an indulgence notwithstanding the consequential impact upon the other party and the Court’s resources. It also means that limited weight may be accorded to an undertaking to comply with future procedural orders, because absent a justification or explanation for past defaults, the Court can have limited confidence that they will not be repeated. 11 However, in circumstances where one final extension of time for the filing of written submissions was not opposed by the respondent, I afforded the appellants that opportunity. By consent, I directed that the appeal be determined on the basis of written submissions, and granted liberty to apply in the event that those submissions prompted an application for an oral hearing. Neither party exercised that liberty. The conduct of the matter in the ERD Court 12 It is necessary briefly to summarise some aspects of the procedural history of the matter.13 13 In August 2024, the Council filed an originating application in the ERD Court for permission pursuant to s 214 of the PDI Act to serve a summons on the appellants. That permission was granted and the appellants were served with the originating application on 16 September 2024. 14 On 18 October 2024, the appellants filed an ‘Interim Defence’. A compulsory conference was heard but was unsuccessful in resolving the matter. At a directions hearing on 19 November 2024, the Commissioner made directions 10 (2009) 239 CLR 175 at [95] (Gummow, Hayne, Crennan, Kiefel and Bell JJ). 11 (2009) 239 CLR 175 at [98]-[99] (Gummow, Hayne, Crennan, Kiefel and Bell JJ). 12 (2009) 239 CLR 175 at [103] (Gummow, Hayne, Crennan, Kiefel and Bell JJ). 13 A more detailed chronology is contained in the Council’s chronology filed in the appeal: FDN 9. -- 5 of 11 -- [2026] SASC 7 B Doyle J 4 for an affidavit of merits to be filed by 7 February 2025 and the matter was listed for hearing on 21 February 2025. This accommodated the appellants’ travel plans. 15 Commencing on 4 February 2025, the appellants made a number of interlocutory applications. By the first interlocutory application, Mrs Cain sought summary dismissal of the proceeding. The appellants also purportedly sought compensation of some $195,000. The affidavit in support made clear that the foundation for the application was that the Cains had not breached the PDI Act. It also advanced contentions to the effect that the Council had not complied with pleadings rules under the UCRs. The application further contained a request to appear by telephone. 16 The Registrar subsequently advised the parties that the hearing previously scheduled for 21 February 2025 would now be listed on 5 March 2025 at 10 am. 17 On 4 March 2025, the Cains emailed the Registrar requesting leave to attend the hearing by telephone but were advised that the parties were required to attend in person. They were advised that the interlocutory application and the substantive matter would be heard together. The previously proposed site visit would be deferred. The Cains emailed the Registrar saying they were unable to attend in person due to long standing arrangements for them not to be at Court in person. They also demanded that their interlocutory application be heard by a judge. The Registrar communicated to them that the position remained unchanged. 18 On 5 March 2025, Mr Cain appeared in person. Mrs Cain did not. 19 At the outset, the Commissioner indicated that she considered there was significant overlap between the Council’s s 214 proceedings and the Cains’ interlocutory application and that it was a better and more efficient use of the Court’s resources to hear the matters concurrently. 20 According to the First Reasons (at [6], [44]), by 10:26 am, it was apparent that Mr Cain was not intending to participate in a constructive manner. Having read the transcript of that occasion, I think that is a fair summary. Essentially, Mr Cain disputed the Council’s right to appear by a lawyer and was insistent that his interlocutory application be heard before any trial of the substantive issues. He was also insistent that a judge hear his application. He interrupted the submissions of the Council’s representative. On one occasion he swore. In the end, over the Council’s opposition, the Commissioner elected to adjourn the matter for further hearing on 20 March 2025 and strongly encouraged Mr Cain to seek legal advice. 21 On 11 March 2025, Mrs Cain emailed the second interlocutory application to the Registry. That application sought for the Court to outline its intended ‘protocol’ for dealing with the first application and that it be dealt with ahead of the substantive matter resuming on 20 March 2025. A directions hearing at which the appellants be permitted to appear by AVL was requested in the supporting -- 6 of 11 -- [2026] SASC 7 B Doyle J 5 affidavit. The Registrar responded advising that the matter remained listed on 20 March 2025 and that the request to appear by AVL was not granted. 22 Following further correspondence which need not be detailed, on 18 March 2025, the Cains emailed two further applications to the Registrar. These applications sought permission for Mr and Mrs Cain respectively to attend by telephone. The affidavits in support cited the drought in South Australia and the consequences for stock and property management. On 19 March 2025, the Registrar confirmed the documents had been accepted but conveyed that in person attendance (in person or by a legal representative) was required. 23 On 20 March 2025, the appellants emailed the Registrar to advise that they had lodged an appeal with the Supreme Court to stay the proceedings and that they would not be attending the resuming proceedings in the ERD Court. 24 On 20 March 2025, having ascertained that the proposed Supreme Court appeal had not been accepted for filing and that, in any case, no stay had been granted, the Commissioner determined to proceed in the absence of both appellants. 25 The Commissioner observed (First Reasons [10], citations omitted): I therefore heard this matter (in the absence of Ms Cain and partly in the absence of Mr Cain). Mr and Ms Cain had plenty of opportunity to attend these proceedings and make their case. They elected not to do so. Any detriment that the Cains may have suffered as a result of me hearing this matter in their absence they have brought upon themselves. 26 The First Reasons explain why the Commissioner considered it appropriate to hear the appellants’ first and second interlocutory application concurrently with the substantive application of the Council (First Reasons [53]-[56]). 27 In relation to the request to appear by telephone, the Commissioner explained that Brukunga being only a 45 minute or so drive from Adelaide, it was not considered that leaving the land for that amount of time would involve an unreasonable impost. The convention and the practice of the Court to require in- person attendance therefore prevailed (First Reasons [58]-[60]). 28 The Commissioner was satisfied that the appellants had been given a proper opportunity to be heard consistently with s 214 of the PDI Act (First Reasons [145]-[159]). The substantive decision 29 The Commissioner found that: • notwithstanding that the power to order a respondent to pay exemplary damages in s 214(6)(g) of the ERD Court Act could only be exercised by a judge, there was no impediment to a Commissioner hearing the matters that were properly before her (First Reasons [62]-[66]); -- 7 of 11 -- [2026] SASC 7 B Doyle J 6 • there was no proper basis to doubt the Council’s standing (First Reasons [67]- [73]); • there was no substance to the complaint that the Council had not complied with particular UCRs (First Reasons [74]-[87]); • the transportable building, verandah/lean-to and spa pool were on the land (First Reasons [95]-[103]); • each comprised development for which approval was required to be granted (First Reasons [104]-[126]); • no approvals had been sought or obtained (First Reasons [127]-[129]); • the appellants bore responsibility for the breaches of the PDI Act (First Reasons [133]-[140]); and • the action had been brought within time (First Reasons [141]-[144]). 30 In view of these conclusions, the Commissioner explained why it was not appropriate to grant the appellants’ application for summary dismissal (First Reasons [160]-[167]). The Commissioner went on to express the findings summarised earlier and, in the Second Reasons, to fix a period of two months within which the unauthorised developments were to be removed. Grounds of appeal 31 In their written submissions, the appellants contend that the error of law complained of in ground 1 was a failure to determine, as a threshold interlocutory question, the appellants’ application for summary dismissal. They contend that this was contrary to the principles in AON Risk Services which emphasise that Courts must exercise procedural powers to avoid unnecessary expense and unfairness. Accepting that procedural powers should be exercised with those objectives in mind, there is no reason to conclude that the Commissioner erred by deciding, in the circumstances of this case, to list the appellants’ interlocutory application concurrently with the substantive proceeding. There was a nearly complete overlap between the issues raised by the parties’ processes. The substantive proceeding was not likely to be lengthy. The appellants’ summary dismissal application was not one sufficiently likely to succeed to warrant its separate consideration. The course adopted by the Commissioner was the most efficient course, and it was not unfair in any way that has been demonstrated by the appellants. 32 Grounds 4, 9, 10 and 12 appear largely to advance the same complaint as that made under ground 1. They are without substance. Insofar as ground 9 is based upon a contention that the originating application and supporting material was required to be dismissed because it suffered from a fatal absence of material facts and evidence, I consider and reject that contention below. -- 8 of 11 -- [2026] SASC 7 B Doyle J 7 33 In their written submissions in support of ground 2, the appellants submit that the Commissioner made findings of unlawful development based solely on the Council’s submissions, and without any admissible evidence. The Cains assert that the Council ‘filed no affidavits, no photographs, no documents, and no material facts capable of supporting any finding’. 34 These submissions must be rejected. That is because: • the originating application concisely but clearly identified the material facts alleged;14 • the application was accompanied by an affidavit affirmed by Andrew Mark Houlihan, a Team Leader in Planning at the Council, and authorised officer under s 210 of the PDI Act, which deposed to various relevant documents and images and supporting observations made by other planners; and • the Court also heard sworn oral evidence from Mr De Tullio in relation to his observations of the transportable building, the verandah/lean-to and the spa pool located on the appellants’ land. 35 This evidence was summarised by the Commissioner (First Reasons [96]- [102]) and formed a rational basis for the conclusion expressed at First Reasons [103] in relation to the structures that had been constructed on the land. The appellants have not developed their contention that any evidence relied upon was inadmissible. In any case, the ERD Court was not bound to apply the rules of evidence.15 Ground 2 therefore fails. 36 Similarly, ground 5, which complains of the admission of irrelevant evidence, is undeveloped, and must be rejected. 37 Ground 3 asserts that the Commissioner erred in the application of erroneous factual findings to the applicable legal principles. Nothing in the written submissions gives any substance to this formulaic assertion. 38 Ground 6 complains of the exclusion of ‘relevant matters’, by which the appellants mean their affidavits. The Commissioner referred to the affidavits and the salient features of them (First Reasons [36], [37], [46], [50], [85], [110] and [135]). There is no reason to think that that material was overlooked. The appellants’ submissions on appeal do not identify any cogent piece of evidence in any of their affidavits that logically detracts from the findings made by the Commissioner. I reject this ground of appeal. 39 The submissions made in support of grounds 7 and 8 complain that the Commissioner failed to address the ‘established pleading protocol’ and ignored 14 Further, as the Commissioner explained, the relevant background included communications in which the Council’s position had been made tolerably clear: see First Reasons [84]-[87]. 15 ERD Court Act, s 21(1)(b). -- 9 of 11 -- [2026] SASC 7 B Doyle J 8 key procedural matters including ‘whether the proceedings could lawfully be conducted without pleadings’. The short answer to the complaints is that the ERD Court was not obliged to conduct the proceedings by reference to pleadings of a kind that may be appropriate in respect of claims brought within the civil jurisdiction of the Magistrates, District or Supreme Courts. 40 Ground 13, which in the appellants’ written submissions is framed by reference to an asserted error in proceeding with a substantive hearing without material facts having been ‘pleaded’, without any evidence having been filed, and without the summary dismissal application having been previously determined, must be rejected on the same basis as the other grounds upon which it draws. 41 Ground 11 asserts that the Commissioner failed to give proper directions and guidance as to the proper conduct of the interlocutory proceedings. This ground was not developed beyond mere assertion in the written submissions. I am not satisfied that there is any substance in this complaint. 42 Ground 14 is a complaint that the Commissioner proceeded without ‘ensuring proper notice or availability’. As my summary of the procedural history shows, the appellants were given fair notice and a fair opportunity to participate and any failure fully to participate in the proceeding was a result of their own choices. This ground fails. Disposition 43 There is no merit in any of the grounds raised by the appellants and the appeal must be dismissed. -- 10 of 11 -- [2026] SASC 7 B Doyle J 9 Annexure – Grounds of appeal The appellants’ grounds of appeal were as follows: 1. that HH the learned Commissioner erred in law, and 2. that HH the learned Commissioner erred in her finding of facts, and 3. that HH the learned Commissioner erred in the application of erroneous factual findings, to the appropriate applicable legal principles, and 4. that HH the learned Commissioner erred in the application of the appropriate Practice and Procedure, and 5. that HH the learned Commissioner erred in allowing into ‘evidence’ irrelevant matters into the Application, and 6. that HH the learned Commissioner erred in denying to allow into evidence relevant matters into the Application, and 7. that HH the learned Commissioner erred in failing to take the correct protocols into account in the Reasons provided, and 8. that HH the learned Commissioner erred in addressing appropriately relevant factors in arriving at a determination. 9. that HH the learned Commissioner knew and ought to have known – from the materials provided, that she ought to have made an interim Interlocutory Order to terminate/dismiss the proceedings ab initio, and 10. that HH the learned Commissioner was irregularly allowed the proceedings to continue without first allowing the Appellant’s Interlocutory Application/s from being determined, and 11. that HH the learned Commissioner failed to give proper directions and guidance as to the proper conduct of the interlocutory proceedings. 12. that HH the learned Commissioner failed to appreciate the implications and consequential impact of not allowing the Interlocutory Applications from being heard before the matter was set down for a Trial, and 13. that HH the learned Commissioner irregularly conducted a Trial when she had already conducted pre-trial hearings, and 14. that HH the learned Commissioner irregularly conducted a Trial when the Appellants were both unavailable or not properly informed of a Trial to be conducted. -- 11 of 11 --