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.