Jacona v Tweed Lismore Rural Land Protection Baord

LEGISLATION CITED : Local Court Act 1982 Rural Lands Protection Act 1998

Kojima Australia Pty Ltd v Australian Chinese Newspapers Pty Ltd [2000] NSWSC 1153 CASES CITED : Wakin v Mathiew Pty Ltd t/as Dove Migration Services [2002] NSWSC 405 Wende v Finney [2005] NSWSC 927

PARTIES : John C Jacona (Plaintiff) Tweed Lismore Rural Land Protection Board (Defendant)

SOLICITORS : J C Jacona (Plaintiff in person) Darryl Quigley Partners (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

13782/2007 - JOHN C JACONA v TWEED LISMORE RURAL LAND PROTECTION BOARD

JUDGMENT (Strike out appplication - Appeal Local Court Magistrate - recovery of levies under the Rural Lands Protection Act ) 1 HER HONOUR: By summons filed 26 July 2007, the plaintiff John Jacona ("Mr Jacona") seeks to set aside the orders made by Linden LCM in the Small Claims Division of the Byron Bay Local Court on 29 June 2007. The Magistrate ruled that Mr Jacona was liable to pay the levies that had been issued against his property by the defendant under the Rural Lands Protection Act 1998. Judgment was entered in favour of the defendant for $541.68 and Mr Jacona was ordered to pay $70 for the defendant's legal costs. 2 By notice of motion filed 13 November 2007 the defendant seeks that the plaintiff's summons be struck out and judgment be entered in favour of the defendant. Amongst numerous reasons advanced by the defendant it is submitted that the plaintiff's summons should be struck out because it discloses no relevant grounds for appeal. As an alternative, the defendant seeks an order for the plaintiff to provide security for costs in the amount of $15,000.00 if the plaintiff's summons is not struck out. As the parties were ready to proceed with the hearing of the appeal, the notice of motion seeking summary judgment and security for costs is otiose. 3 Mr Jacona appeals on the ground that "the Magistrate unreasonably and incorrectly determined in favour of the Tweed Lismore Board disregarding and not dealing and properly with all the evidence and has and was inconsistent." There are some supplementary reasons which are: "(1) the Court decision is thus unsafe & unclear. (2) the Board case was in error on any reasonable test of the Act. (3) the Court did not properly engage & question what had been put to it & got it wrong, in Law. (4) the Board and Court failed to give any consideration to the word "may" in Law, pleading a must argument. (5) the Court & Board erred to engage the Law in Regulation 10 failing to mention & question." 4 At the outset, it may be helpful to make some brief comments concerning the remedy pursued by the plaintiff. Section 73(2) of the Local Courts Act 1982 allows an appeal to this court from a decision of Magistrate sitting in the Small Claims Division on the ground that the Magistrate lacked jurisdiction or denied natural justice in making their judgment. Mr Jacona submitted that he was denied natural justice. 5 As to jurisdiction, s 201 of the Rural Lands Protection Act reads "Any rate, charge fee or other money due to a board or any other person under this Act may be recovered by the Board or person as a debt in a court of competent jurisdiction." The Magistrate had jurisdiction to hear the matter. 6 Section 75 of the Local Courts Act provides that the Court may determine an appeal by either (a) varying the terms of the judgment or order or (b) setting the judgment or order aside or (c) setting the judgment or order aside and remitting the matter for determination in accordance with the Court's directions or (d) dismissing the appeal.

Natural justice in the Local Court 7 In Kojima Australia Pty Ltd v Australian Chinese Newspapers Pty Ltd [2000] NSWSC 1153 and Wakim v Mathiew Pty Ltd t/as Dove Migration Services [2002] NSWSC 405, O'Keefe J (at [23]-[24] and at [20]-[21] respectively) made essentially identical observations on natural justice. In Kojima his Honour stated: "The requirements of natural justice (or procedural fairness as it is now commonly referred to) apply to the Small Claims Division of the Local Court. This is clear from the nature of the function to be performed by that tribunal and the statutory recognition that is afforded to natural justice by s 69(2A) of the Act. The content of the requirements of natural justice is not fixed. The content is fluctuating. The overarching requirement is that of fairness (National Companies and Securities Commission v News Corp Ltd (1984) 156 CLR 296 at 312 per Gibbs CJ with whom Brennan J agreed). For a court that normally involves a duty to: (i) act judicially; (ii) deal with the matter for decision without bias; (iii) give each party the opportunity of adequately presenting its case; (iv) observe the procedural and other rules provided for in the relevant statute; (v) come to its decision with that sense of responsibility that is the necessary accompaniment of the duty to do justice."

Overview of the Small Claims Division of the Local Court 8 The legislative policy in relation to small claims is that there should be a quick, cheap and informal resolution of these claims. To achieve this, proceedings are conducted with a minimum of formality. According to O'Keefe J in Wakim v Mathiew Pty Ltd t/as Dove Migration Services (at [16]), the quick, cheap and informal resolution of claims: "…has many advantages. It tends to shorten proceedings. It assists in reducing costs. It does this in a number of ways, one of which is to make it easier for litigants in person to understand the procedures, perhaps to appear for themselves and not be disadvantaged by excessive legality, formality or procedural rules. Another is to give finality to decisions made in respect of small claims. This has been done by so framing the legislation as to ensure to the greatest extent possible that claims before the Small Claims Division of the Local Court should begin and end in that court. The limitation on the right of appeal permitted by the statute betokens this. Such a policy is readily understandable in the light of the fact that the ceiling for claims in the Small Claims Division is $10,000. Taking up the time of superior courts with such small matters is thus properly avoided in the vast majority of cases." 9 In determining whether the plaintiff was denied procedural fairness it is necessary to consider the nature of the jurisdiction exercised in the Small Claims Division. This is because the content of procedural fairness varies depending upon the nature of the tribunal and the jurisdiction it exercises. Section 70 of the Act provides: "Procedure generally in Small Claims Division

(1) The jurisdiction conferred by or under this Act on a Court sitting in its Small Claims Division is to be exercised by a Magistrate or an Assessor.

(2) Proceedings in a Court's Small Claims Division are to be conducted with as little formality and technicality as the proper consideration of the matter permits.

(3) The rules of evidence do not apply to proceedings being heard or other proceedings in a Court's Small Claims Division.

(4) Witnesses may not be cross-examined except in circumstances in which, and to the extent to which, the cross-examination of witnesses is authorised by a practice note.

(5) An Assessor or Magistrate exercising the jurisdiction of a Court sitting in its Small Claims Division may inform himself or herself on any matter relating to proceedings being heard or other proceedings in the Small Claims Division in such manner as he or she thinks fit.

(6) Proceedings in a Court's Small Claims Division (other than any judgment given or order made in respect of the proceedings) are not required to be recorded." 10 Practice Note 2 of 2005 at [10.1] to [10.4] reads: "10.1 There is no right to call witnesses to give evidence, to give evidence on oath/affirmation or to cross-examine a party or witnesses on oath/affirmation or otherwise in the Small Claims Division 10.2 Where a direction had not been given at the Pre-trial review by the Magistrate, Assessor or Registrar for the attendance of any witness at the trial of the proceedings, the proceedings will be heard and determined by each party tendering the written statements of witnesses together with any other relevant documentation or material in support of the party's case. There will be no right to examine or cross-examine any witness. Parties will, however, be entitled to make comments, present arguments and make final submissions on the evidence. 10.3 Where a direction has been given at the Pre-trial review by the Magistrate, Assessor or Registrar, that a witness attend for cross-examination, the proceedings will be heard and determined on the oral evidence and the written statements and other documents and materials which have been tendered. Submissions on the evidence will also be allowed. 10.4 The procedure at the trial of the proceedings in the Small Claims Division will be determined by the Magistrate or Assessor as he or she thinks fit." 11 In Wende v Finney [2005] NSWSC 927 Howie J (at [27] - [28]) made some pertinent observations about the proceedings in the Small Claims Division, which I respectfully reproduce here. They are: "Of course informality and the abandonment of the normal rules of evidence and procedure should not be allowed to give rise to unfairness even where the justice being administered is in relation to relatively trivial claims. Rather in such matters the court might need to be particularly astute to ensure that the lack of formality and the speedy resolution of claims does not become an end in itself at the expense of the appearance of fairness to the parties within the court's jurisdiction. After all the formal rules of procedure that normally attend a hearing are generally aimed at producing fairness to the parties, sometimes at the expense of efficiency in the exercise of the court's jurisdiction. So where those rules are displaced by the need to provide cheap, efficient and expedient justice to the parties, the advantages can sometimes be obtained at too high a price so far as a particular litigant is concerned.

No doubt one of the reasons why the proceedings in the Small Claims Division are conducted with the informality required is that the parties before the court are, in advance of the hearing, aware of the material upon which the determination is to be made. There are procedures laid down and referred to in the Practice Note that require the parties to identify to each other the material they intend to rely upon. The material upon which each side relies, including statements of witnesses and the actual documents at the heart of the dispute, are in a form where they can be reviewed by the court assisted by such submissions that the parties wish to make upon those documents without the need to formally tender and prove the relevant material. …the intention of the scheme of the relevant legislation is that the dispute can generally be resolved on the documents." 12 In Wende v Finney a party tendered documents that were produced on subpoena during the hearing. Those documents alleged dishonesty and misconduct. Wende requested the opportunity to call witnesses to rebut that evidence. This request was refused. As it turned out, much of what the Magistrate read into his judgment from these documents was highly prejudicial to Wende. It was held that the failure to give Wende an opportunity to rebut that evidence constituted a denial of procedural fairness.

The pleadings in the Local Court 13 On 6 November 2006, the Board issued, at the Local Court Sutherland, a statement of claim claiming that Mr Jacona owed it the sum of $541.58 being moneys owing to the Board by Mr Jacona for services rendered on or about 1 September 2006, full particulars of which had previously been provided to Mr Jacona and which amount Mr Jacona had refused, failed or neglected to pay to the Board. 14 Not surprisingly, Mr Jacona successfully sought and was granted an order changing the venue from Sutherland to Byron Bay as that was the court nearest where firstly, the cause of action arose; and secondly, nearest to where he was resident. 15 By defence, Mr Jacona admitted that he owed the sum of not more than $260 but thought the correct amount was $35.61. 16 The proceedings in the Local Court focussed upon the power of the Board to levy rates under the Rural Lands Protection Act.

Rural Lands Protection Act 17 Part 6 of the Rural Lands Protection Act deals with the powers of Rural Land Protection Boards. Section 42 provides: "42 Functions generally (1) A board has the functions conferred or imposed on it by or under this or any other Act.

(2) Without limiting subsection (1), a board has the following functions: (a) any function with respect to animal health or the protection of rural lands referred to in this Act or the regulations that is not specifically conferred or imposed on another person or body,

(b) the administration within its district of drought or other disaster relief schemes,

(c) the provision of any service on behalf of or to a public authority by arrangement with the public authority,

(d) the doing of anything necessary, or supplemental or incidental to, the exercise of its functions." 18 Part 7 of the Rural Lands Protection Act give local Rural Land Protection Boards power to collect rates from rural landowners in specified circumstances. Section 61(1) relevantly reads: "61 What are the types of rate?

(1) The following types of rate can be made by a board: (a) a general rate,

(2) An animal health rate may be levied in respect of rateable land comprising a holding for which an annual return has not been lodged in accordance with section 76." 19 Section 62(2) provides: "62 When are rates to be made and levied?

(1) A board must make and levy a general rate for each year on all rateable land in its district.

(2) A board must make and levy an animal health rate for each year.

(3) A board may make and levy one or more special purpose rates for any year on any land in its district when the board considers it necessary to do so.

(4) A rate is to be made in accordance with the regulations.

(5) The regulations may: (a) specify a minimum amount of any rate that may be levied in respect of land in a district,

(b) specify a minimum or maximum amount of any rate that may be levied in respect of any land in a district having a notional carrying capacity specified by the regulations,

(c) specify the purposes for which any special purpose rate or animal health rate may be levied,

(d) exempt rateable land on which less than a specified number of stock are kept from liability for any animal health rate." 20 Section 62(1) and (2) says that the Board must make and levy a general rate and animal health rate. Those subsections are couched in mandatory language. That means that there is no discretion given to the Board to determine whether or not the levies are imposed. It seems to be that Mr Jacona's main complaint is in relation to the animal health rate. He says that he does not have any animals on his land. He had some cats at one stage but "the snakes got to them." 21 Section 76 of the Act requires rural land owners to lodge annual returns outlining the details prescribed in r 12 of the Rural Lands Protection (General) Regulation 2001. If a landowner fails to lodge an annual return the regulations provide for a default way to determine their rates. 22 There is a Regulation that relates to s 62(5)(b) of the Act. Regulation 10 of the Rural Lands Protection (General) Regulation which reads: "10 Exemption from liability for animal health rate

(1) For the purposes of section 62 (5) (d) of the Act, rateable land is exempt from any animal health rate for a year if the annual return lodged by the due date in respect of the land for the preceding year indicates that the total number of stock kept on the land was less than the number of stock represented by 50 stock units.

(2) For the purposes of subclause (1), in calculating the total number of stock kept on land, if any horses are kept on the land only so many horses as exceed 5 in number are to be taken into account."

The hearing in the Local Court before the Magistrate 23 At the outset of the hearing in the Local Court, the Magistrate explained to the parties that he had read everything on the file and that he would determine the matter on the papers and by submissions. The Board relied upon the affidavit of Brian McInnes sworn 11 May 2007. Mr Jacona relied upon his affidavit dated 15 June 2007. Mr Jacona at para [2] of his affidavit deposed that he had lodged returns from 1992 to 2000. At para [11] he deposed that his return for 2000 was delayed 13 days past the due date of 31 August due to reasons beyond his control. At para [13] he stated that in view of the Board's practice of stamping return forms "must be submitted by 31st August" but providing no means to do so, no postage, it is beyond reason why anyone would make a special trip just to lodge this form by any date. 24 Both parties made submissions to the Magistrate. Mr Jacona submitted that this matter is petty, unreasonable and unnecessary and that the Board did not have to proceed in the manner it did (t 21.53-55). Mr Jacona referred to reg 10 and submitted that s 61 gives the Board a discretion. He stated ""An animal health rate…in accordance with 76." So again the word "may" occurs, that doesn't sound like it's a compulsory thing that can't be varied or changed and then we've got almost a similar thing under s 62, item 5 where it says, "The regulations may" and then under item D which is the last item it says, "Exempt…health rate"." Mr Jacona reiterated that he thought the matter had been pettily dealt with and that it was unreasonable and unnecessary. According to Mr Jacona it could have been resolved in 2001 just by waiving a delayed return on that occasion. 25 Mr Jacona both at the Local Court and now on appeal submitted that his property would fall within this exception as he has less than 50 stock units upon his property. The Board submitted before the Magistrate that even if r 10 could aid the plaintiff (and in their view it is not proven that the plaintiff has less than 50 stock units upon his property) it can not apply to his case as the plaintiff did not lodge his annual return by the due date in 2000 and has failed to enter a return for any of the subsequent years. 26 The Magistrate delivered an extempore reasons in which he stated: "With the greatest of respect, this is a very classic example and to some extent and I'm not necessarily taking any particular sides, but the view of the defendant is that the matters are, (a) Petty, (b) Unnecessary, (c) Inconvenient and as a result of all of those feelings one sees that the returns were not lodged in time, certain deeming provisions then apply and the matter escalates to the point where they - where the Board themselves take proceedings for recovery of what are amounts over the years totalling the amount claimed. I accept there are inconveniences. There are analogies with this such as in this very shire, where to in my understanding, to obtain free parking stickers for example it requires residents to go all the way to Mullumbimby and people find that inconvenient, often difficult and then can't be bothered, but the end result is, of course, they don't have stickers. In this case, there are things that occurred such as interest accruing, deemed rates and the like and having said all of what I have said, I am satisfied that all of the rates and the various ancillary matters were properly levied." 27 While there is no appeal on a question of law when a matter is heard in the Small Claims Division of the Local Court, I might add Mr Jacona's submissions on the workings of ss 61, 62, 70, 72, 73 and 76 does not address the word "must" where is appears in s 62(1) and (2) of the Act. 28 In my view both parties were given the opportunity to present their evidence and make submissions. The Magistrate considered the relevant provisions of the Rural Lands Protection Act. His Honour addressed the submissions made by both parties and came to his decision with a sense of responsibility so as to do justice between the parties. There has been no denial of natural justice. This appeal fails. The decision of Linden LCM made on 29 June 2007 is affirmed. The plaintiff's summons filed 26 July 2007 is dismissed. 29 Costs usually follow the event. The plaintiff is to pay the defendant's costs as agreed or assessed. However, it is my view that the plaintiff's notice of motion seeking summary judgment was unnecessary. The plaintiff's costs are to exclude the costs of and incidental to the notice of motion filed 13 November 2007.

(2) The decision of Linden LCM made on 29 June 2007 is affirmed.

(3) The plaintiff's summons filed 26 July 2007 is dismissed.

(4) The plaintiff is to pay the defendant's costs as agreed or assessed (excluding the costs of and incidental to the plaintiff's notice of motion filed 13 November 2007). **********

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