[2025] SASCA 128

On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (THE HONOURABLE JUSTICE GRAY) 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: 14/11/2025 File No/s: CIV-25-012766 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 [2025] SASCA 128 Judgment of the Court of Appeal (ex tempore) (The Honourable President Livesey and the Honourable Justice Stanley) 14 November 2025 APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM SUPREME COURT - BY LEAVE OF COURT - GENERALLY This is an application for leave to appeal against the dismissal of an application to amend an appeal notice by a judge of the General Division (the primary judge). The underlying appeal concerns what might be described as “enforcement proceedings” undertaken by the respondent pursuant to s 214 of the Planning, Development and Infrastructure Act 2016 (SA). The allegation, denied by the applicants, is that without development approval they have undertaken building work comprising a verandah or “lean-to”, a spa pool, as well as a transportable building which has been used for human habitation. The application to amend raised a suggested constitutional point regarding the powers of the South Australian Parliament, particularly the power to legislate for local government authorities such as the respondent. Associated with the application to amend, the applicants issued notices pursuant to s 78B of the Judiciary Act 1903 (Cth) which were intended to foreshadow a challenge to propositions which included that s 5 of the Constitution Act 1934 (SA) provided sufficient power for the making of legislation such as the Local Government Act 1999 (SA). In addition to the application to amend and the issuing of s 78B notices, the applicants sought various other orders including leave to issue subpoenas, as well as a stay of the proceeding and an adjournment of the appeal, pending consideration of the constitutional point which they raised. The primary judge refused leave to amend, concluding that the proposed amendment was not reasonably arguable. Consistently with that view, the primary judge refused the other matters sought by the applicants. -- 1 of 8 -- Held (the Court), refusing leave to appeal: 1. The proposition which underpins the applicants’ amendment has consistently been determined against them in a series of Supreme Court decisions. There is no reason to doubt those decisions. 2. The applicants have failed to demonstrate that the decision made by the primary judge is attended with doubt sufficient to warrant its reconsideration on appeal. 3. The applicants have not demonstrated that allowing the decision to stand would work any substantial injustice. Australian Constitutions Act 1850 (UK) s 14; Australian Constitution ss 52, 90, 109, 114; Constitution Act 1934 (SA) ss 5, 64A, 88; Judiciary Act 1903 (Cth) s 78B; Local Government Act 1999 (SA) s 6; Planning, Development and Infrastructure Act 2016 (SA) s 214, referred to. Hodge v The Queen (1883) 9 App Cas 117; Glew v Shire of Greenough [2006] WASCA 260; Grace Bible Church v Reedman (1984) 36 SASR 376; Maurici & Anor v The State of South Australia [2008] SASC 145; McDougall v City of Playford [2017] SASC 169; Mount Barker District Court v Cain & Anor (No 2) [2025] SAERDC 12; Powell v The Apollo Candle Company (1885) 10 App Cas 282; Richani v Martins Plaza Shopping Centre Pty Ltd (No 2) [2022] SASCA 98; Rossiter v Adelaide City Council [2020] SASC 61; The Queen v Burah (1878) 3 App Cas 889, considered. -- 2 of 8 -- CAIN & ANOR v MOUNT BARKER DISTRICT COUNCIL [2025] SASCA 128 Court of Appeal – Civil: Livesey P and Stanley JA THE COURT (ex tempore): Introduction 1 This is an application for leave to appeal against the dismissal of an application to amend an appeal notice by a judge of the General Division (the primary judge).1 2 The underlying appeal was commenced by notice of appeal filed on 30 May 2025. That appeal is being heard by a different judge of the General Division (the appeal judge). His Honour has adjourned the hearing of that appeal pending this Court’s determination of the application for leave to appeal. 3 The underlying appeal concerns what might be described as “enforcement proceedings” undertaken by the respondent pursuant to s 214 of the Planning, Development and Infrastructure Act 2016 (SA).2 The allegation, denied by the applicants, is that without development approval they have undertaken building work comprising a verandah or “lean-to”, a spa pool, as well as a transportable building which has been used for human habitation. 4 The applicants are not legally represented. The application to amend raised a suggested constitutional point regarding the powers of the South Australian Parliament, particularly the power to legislate for local government authorities such as the respondent. 5 Associated with the application to amend, the applicants issued notices pursuant to s 78B of the Judiciary Act 1903 (Cth) which were intended to foreshadow a challenge to propositions which included that s 5 of the Constitution Act 1934 (SA) (the Constitution Act) provided sufficient power for the making of legislation such as the Local Government Act 1999 (SA) (the Local Government Act). 6 In addition to the application to amend and the issuing of s 78B notices, the applicants sought various other orders including leave to issue subpoenas, as well as a stay of the proceeding and an adjournment of the appeal, pending consideration of the constitutional point which they raised. Consistently with her view that leave to amend should be refused, the primary judge refused these matters as well. 1 Ruling of R Gray J delivered on 25 September 2025 concerning the applicants’ interlocutory application dated 16 September 2025. 2 Mount Barker District Court v Cain & Anor (No 2) [2025] SAERDC 12 (Commissioner Dyer). -- 3 of 8 -- [2025] SASCA 128 The Court 2 7 For the following reasons, leave to appeal should be refused. The proposed amendments 8 For the purposes of today’s ruling, it is not necessary to address the existing grounds of appeal in the underlying appeal. It is sufficient to set out the proposed amendments: 15. … THAT the insertion of Section 64A of the South Australian Constitution Act, 1934 (SA) is invalid ab initio; and 16. … THAT without the insertion of Section 64A into the South Australian Constitution Act 1934 (SA) – if same is or was valid, that in itself, the South Australian Parliament did not have inherent prerogative powers to make laws to establish the Local Government Act 1999 (SA). 9 The s 78B notices issued by the applicants provided: Constitutional Issues 1. Whether Section 64A of the Constitution Act 1934 (SA), purportedly inserted by the Constitution Act Amendment Act 1980 (SA) (Act 45 of 1980), was validly enacted, having regard to: (a) the requirement in 1980 for reservation of such a Bill for Her Majesty’s assent; (b) the binding manner and form requirements in Section 88 of the Constitution Act 1934 (SA); (c) the operation of the Colonial Laws Validity Act 1865 (Imp). 2. Whether, in the absence of a valid Section 64A, the statutory recognition and incorporation of local government bodies in South Australia, including the Respondent Mount Barker District Council, is without lawful constitutional foundation. 10 Sections 5, 64A and 88 of the Constitution Act provide: 5—Powers of the Parliament The Legislative Council and House of Assembly shall have and exercise all the powers and functions formerly exercised by the Legislative Council constituted pursuant to section 7 of the Act of the Imperial Parliament, 13 and 14 Victoria, Chapter 59, entitled “An Act for the better Government of Her Majesty’s Australian Colonies”. … 64A—Constitutional guarantee of continuance of local government in this State (1) There shall continue to be a system of local government in this State under which elected local governing bodies are constituted with such powers as the Parliament considers necessary for the better government of those areas of the State that are from time to time subject to that system of local government. -- 4 of 8 -- [2025] SASCA 128 The Court 3 (2) The manner in which local governing bodies are constituted, and the nature and extent of their powers, functions, duties and responsibilities shall be determined by or under Acts of the Parliament from time to time in force. (3) No Bill by virtue of which this State would cease to have a system of local government that conforms with subsection (1) of this section shall be presented to the Governor for assent unless the Bill has been passed by an absolute majority of the members of each House of Parliament. … 88—Special provisions as to referendum (1) Except as provided in this section, no provision of section 32 of this Act or of this Part shall be repealed, suspended or amended. (2) A Bill providing for or effecting the repeal, suspension, or amendment of any provision of section 32 of this Act or of this Part shall not be presented to the Governor for assent unless— (a) the Bill does not provide for, or effect, the repeal, suspension or amendment of a provision of this section and the Bill does not: (i) offend against the principle that the State is to be divided into electoral districts each returning the same number (whether that number be one or more than one) of members to the House of Assembly; or (ii) offend against the principle expressed in section 77 of this Act by which the number of electors to be comprised in each electoral district upon an electoral redistribution is to be ascertained; or (iii) affect the frequency with which electoral redistributions are to be made; or (iv) offend against the principle that an electoral redistribution is to be made by a Commission that is independent of political influence or control; or (b) the Bill has been approved by the electors in accordance with this section. (3) Where it is necessary for a Bill to be approved by the electors in accordance with this section, the Bill shall, on a day appointed by proclamation (being a day that falls not earlier than two months after the day on which the Bill is passed by Parliament) be submitted to a referendum of the electors for the House of Assembly. (4) If the majority of the persons voting at the referendum approve of the Bill it shall be presented to the Governor for assent. (5) Any person entitled to vote at a general election of members of the House of Assembly shall have the right to bring an action in the Supreme Court for a declaration, injunction or other legal remedy to enforce any of the provisions of this section. -- 5 of 8 -- [2025] SASCA 128 The Court 4 11 The Imperial Act referred to in s 5 is the Australian Constitutions Act 1850 (UK), s 14 of which provides: XIV. And be it enacted, That the Governors of the said colonies of… South Australia …, with the advice and consent of the Legislative Councils to be established in the said colonies under this Act, shall have Authority to make Laws for the Peace, Welfare and good Government of the said colonies … It was this power which was conferred upon the Legislative Council and House of Assembly by s 5 of the Constitution Act. The breadth of that power has been the subject of a number of decisions, some of which will shortly be mentioned.3 12 One of the issues which troubled the primary judge was the absence of any evidentiary basis to demonstrate how the validity of s 64A was brought into question given the plenary power contained in s 5 of the Constitution Act. Today, counsel for the respondent emphasised the distinction between the subjects addressed by ss 64A and 88, and that s 88 only refers to s 32 and not s 64A. He submitted that s 88 was not relevant to this case. Determining leave to appeal 13 When determining whether to grant leave to appeal, this Court acts in the interests of justice and by reference to three, inter-related questions:4 (1) whether the decision is attended with sufficient doubt to warrant its reconsideration on appeal; (2) whether the decision raises an issue of principle or general importance; and (3) whether allowing the decision to stand would work a substantial injustice to the applicants. The grant or refusal of leave to appeal does not, of itself, represent a denial of procedural fairness as the applicants claimed in argument today. Where, as here, leave is determined following submissions from the parties it represents this Court’s determination as to whether the proposed appeal should be entertained. The idea that the refusal to grant leave necessarily represents a denial of procedural fairness ignores and would render nugatory the very existence of the leave requirement. 14 We agree with the primary judge that the proposition which underpins the applicants’ amendment has consistently been determined against them in a series of Supreme Court decisions. There is no reason to doubt those decisions. 3 See generally, Bradley Selway, The Constitution of South Australia, (Federation Press, 1997) chapter 5, p 63 at footnote 2. 4 Richani v Martins Plaza Shopping Centre Pty Ltd (No 2) [2022] SASCA 98, [4]-[6] (Livesey P and S Doyle JA). -- 6 of 8 -- [2025] SASCA 128 The Court 5 15 In Grace Bible Church v Reedman, Zelling J explained:5 The plenitude of power enjoyed by the Parliament of a colony, or now of a State, was discussed many years ago in a trinity of cases which are always referred to on this topic: The Queen v. Burah;6 Hodge v. The Queen7 and Powell v. The Apollo Candle Company.8 Those cases show conclusively that the powers of the Parliament of a State are the same as those of the Imperial Parliament, except for constraints of extraterritoriality, and in Australia for such constraints as may arise by reference to s 109 of the Commonwealth Constitution or any other constitutional prohibition applying to the Parliaments of the States. 16 In Maurici & Anor v The State of South Australia, Judge Burley summarily dismissed proceedings as having “no reasonable basis” where declarations were sought to the effect that s 64A of the Constitution Act was invalid, and that certain provisions of the Local Government Act were beyond the power of the South Australian Parliament and invalid:9 … The power conferred on the South Australian Parliament by s 5 of the Constitution Act 1934 is a plenary power subject to limitations which do not apply to this case. It was clearly within the legislative competence of the Parliament of South Australia to enact s 64A of the Constitution and in turn to enact Chapter 10 of the [Local Government Act]. 17 Subsequently, in McDougall v City of Playford, Nicholson J held that the State Parliament had power to legislate for the existence and powers of local government authorities:10 … Section 5 [of the Constitution Act] adopts as the powers of the Parliament those formerly exercised by the Legislative Council constituted pursuant to section 7 of the Act of the Imperial Parliament, 13 and 14 Victoria, Chapter 59 entitled “An Act for the better government of Her Majesty’s Australian Colonies”. It has never been doubted that the power thus vested in the Parliament of the State of South Australia is one “to make laws for the peace, welfare and good government of [the State]”. This is a plenary power subject to limitations on its exercise derived from the Australian Constitution.11 … There is nothing in the Australian Constitution of which I am aware which serves to make invalid or otherwise restrict, in a manner material to this appeal, the State Parliament’s power to legislate for the existence and powers of local government authorities such as the City of Playford. 5 Grace Bible Church v Reedman (1984) 36 SASR 376, 383-384 (Zelling J), 390 (Millhouse J). 6 (1878) 3 App Cas 889. 7 (1883) 9 App Cas 117. 8 (1885) 10 App Cas 282. 9 Maurici & Anor v The State of South Australia [2008] SASC 145, [27] (Judge Burley). 10 McDougall v City of Playford [2017] SASC 169, [2], [4] (Nicholson J). 11 See generally Chapter V of the Australian Constitution (sections 106-120) and as to particular express limitations see, for example, sections 52, 90, 114 and, of course, the overarching section 109 which provides: “When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid”. -- 7 of 8 -- [2025] SASCA 128 The Court 6 18 More recently, in Rossiter v Adelaide City Council, it was observed that the complaint that there was no constitutional recognition of local government at a federal level was an argument that had previously been tried and rejected:12 … It is without merit. Because the 1988 constitutional referendum failed, local government remains a matter within the residual power of the States. The failure of the constitutional amendment says nothing about the legal existence and validity of local government entities such as the Adelaide City Council, and their capacity to regulate parking and prosecute parking offences.13 19 After referring to these authorities, the primary judge concluded that the proposed amendment was not reasonably arguable. 20 The primary judge found that it was not sufficient for the applicants to hold a genuine and bona fide belief about whether they had properly raised a constitutional point concerning the South Australian and Australian Constitutions. 21 Rather, and by way of example, the primary judge held that it was necessary for the party raising a suggested constitutional point to establish to the satisfaction of the court that the point said to arise actually arises under the Australian Constitution. The primary judge referred to s 40 of the Judiciary Act 1903 (Cth) and held that the point must “really and substantially” arise under the Constitution. 22 Whether or not the suggested constitutional point could be the subject of s 78B notices, because it raises an issue about the South Australian Constitution Act and not the Australian Constitution, any contention about the operation and reach of the South Australian Constitution Act is answered by the authorities earlier set out. 23 The applicants have failed to demonstrate that the decision made by the primary judge is attended with doubt sufficient to warrant its reconsideration on appeal. They have not demonstrated that allowing the decision to stand would work any substantial injustice. Conclusion 24 The application for leave to appeal should be refused. The applicants must pay the respondent’s costs, fixed in the amount of $500, which was the amount claimed by the respondent. 12 Rossiter v Adelaide City Council [2020] SASC 61, [42] (Livesey J), citing Glew v Shire of Greenough [2006] WASCA 260, [22]-[24] (Wheeler JA). 13 See, for example, Local Government Act 1999 (SA), s 6. -- 8 of 8 --