| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : MOWDAY -v- SHIRE OF MERREDIN [2013] WADC 59 CORAM : DEANE DCJ HEARD : 16 APRIL 2012 DELIVERED : 30 APRIL 2013 FILE NO/S : APP 27 of 2011 BETWEEN : COLIN FRANCIS MOWDAY Appellant
AND
SHIRE OF MERREDIN
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA Coram : MAGISTRATE M WILSON File No : ACTION 152 of 2009 Catchwords: Issue regarding payment of fees to local government authority for waste management services - Respondent claims for unpaid fees - Appellant defends action and issues a counterclaim - Respondent files a summary judgment application - Whether Magistrates Court has jurisdiction to hear appellant's
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counterclaim - Whether it statute barred - Whether respondent followed correct procedure in calculating charges levied - Had respondent acted lawfully - Legislation governing respondent's power to levy the disputed charges - Whether appellant denied natural justice in hearing in Magistrates Court Legislation: Health Act 1911
Limitation Act 1935 (WA)
Limitation Act 2005 (WA)
Local Government Act 1995
Magistrates Court (Civil Proceedings) Act 2004
Waste Avoidance and Resource Recovery Act 2007 Result: Appeal dismissed
Representation: Counsel:
Appellant : In person
Respondent : Mr T W Kennedy
Solicitors:
Appellant : Not applicable
Respondent : CS Legal
Case(s) referred to in judgment(s):
Defendi v Gatto [2011] WADC 72
Shire of Ashburton v Bindibindi Community Aboriginal Corporation [1999] WASC 108
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Introduction 1 Before turning to the grounds of appeal in this matter and the argument before this court a general outline of the history of the case, provided by counsel for the respondent at the hearing of this appeal, may be of some assistance. 2 The respondent filed a summary judgment application in the Magistrates Court at Merredin on 29 December 2010. The application was supported by an affidavit dated 22 December 2010 which had been filed at the court six days earlier on 23 December 2010. According to counsel for the respondent shortly prior to 23 December a directions hearing was held regarding the future conduct of the matter. In essence the appellant took issue with fees that the respondent required him to pay relevant to the provision of waste management services. When those fees remained unpaid the respondent took legal action to recover the sums on the basis that it was entitled to do so pursuant to the Local Government Act 1995 (LG Act). As a result a general procedure claim was issued in the Magistrates Court at Merredin. The appellant filed a notice of intention to defend the claim, as a result of which the respondent was then required to file a general procedure statement of claim. The appellant also filed an outline of his defence and a counterclaim. In response the respondent filed a defence to the counterclaim and it seemed to be the understanding at that point that the matter would proceed to trial. 3 This however did not occur because the respondent, rather than proceeding to trial, decided to file a summary judgment application and on 22 December when the directions hearing came on the summary judgment application was already in train. Apparently the reason for the respondent's decision was it took the view that by filing the application pursuant to the Magistrates Court (Civil Proceedings) Act 2004 the respondent was pursuing a more direct path in obtaining judgment against the appellant. It was the respondent's view that the matter did not concern factual or evidentiary issues but rather was a question of statutory interpretation and legal argument. Therefore a summary judgment application was a more appropriate method of resolving the matter but not a procedure which would prevent the appellant from presenting his argument in court. 4 According to counsel for the respondent the summary judgment application was served by ordinary pre-paid post along with the affidavit in support on 4 January 2011. That application was listed for hearing in (Page 4)
the Merredin Magistrates Court on 8 February 2011 so, in the ordinary course of events service of the relevant documentation upon the appellant by post should have occurred 10 clear days prior to the listed hearing. It would seem that the appellant did in fact receive this documentation because he filed a response to the application objecting to the orders being sought by the respondent. That response was received by the respondent prior to the listed hearing date and it essentially outlined the appellant's objections to the summary judgment application. They were objections which the appellant referred to and elaborated upon in this appeal. 5 At that time the appellant also applied for leave to amend his claim in response to the respondent's assertion that the counterclaim was statute barred on the basis of s 27A of the Limitation Act 1935 (WA) (now repealed) and s 28 of the Limitation Act 2005 (WA) (the current legislation). That provides that a claim cannot be brought to recover tax paid any later than 12 months after the tax has been paid, which was what the appellant purported to do in his counterclaim because it related to moneys which had been paid more than 12 months earlier. 6 Following this, according to counsel for the respondent, the appellant adopted a different position whereby he sought judicial review of the matter and declaratory relief as to the issues in question. At that time the proceedings were still within the jurisdiction of the Magistrates Court and that was the case when the application for summary judgment came on for hearing before that court on 8 February 2011. 7 Although the appellant continues to maintain that he did not learn of the summary judgment application hearing until 7 February 2010, it should be noted that the transcript of the proceedings before the Merredin Magistrates Court of 8 February contains no reference by the appellant to his assertion that he received late notice of the hearing or that as a consequence he had little or no time to prepare for it. It should also be noted that prior to the hearing on 8 February there had been a number of orders relating to the parties filing and serving various documentation. 8 It is common ground that the summary judgment application was heard before the Merredin Magistrates Court on 8 February 2011 where the appellant was self-represented and the respondent was represented by counsel. At that hearing the appellant made an application to amend the relief that he was seeking. Whilst the respondent did not oppose the application, counsel made the point that any such amendment would in the end not alter the nature of what the appellant was seeking. (Page 5)
9 As previously noted the proceedings involved an application by the respondent for summary judgment against the appellant in relation to payment of outstanding local government rates and service charges (the rates) totalling $1,169.33. The appellant clarified his position before the learned magistrate, which was a position he maintained on the hearing of this appeal, namely that it was not his case that the respondent was not entitled to levy fees and charges, however the appellant claimed that they were unlawful charges because he argued that the respondent had not carried out, as it was required to do the correct procedure in calculating or fixing the charges that were levied. 10 On a reading of the transcript of the proceedings in the Magistrates Court the respondent understood that the appellant appeared to be seeking judicial review as to the lawfulness of the rates and charges imposed by the respondent. Counsel for the respondent argued that if this understanding was correct there was a process whereby issues arising with respect to the LG Act should be dealt with in that such questions should be referred to the State Administrative Tribunal (SAT). It was argued on behalf of the respondent that there was no power in the Magistrates Court to determine such matters as it was not within their jurisdiction. 11 In that regard counsel pointed to s 6.81 of the LG Act which states: The making of an objection under this Subdivision does not affect the liability to pay any rate or service charge imposed under this Act pending determination of the objection. 12 Further, counsel for the respondent pointed to s 6.82 of that legislation which states: (1) Where there is a question of general interest as to whether a rate or service charge was imposed in accordance with this Act, the local government or any person may refer the question to the State Administrative Tribunal to have it resolved. (2) Subsection (1) does not enable a person to have a question relating to that person’s own individual case resolved under this section if it could be, or could have been, resolved under section 6.76. (3) The State Administrative Tribunal dealing with a matter referred to it under this section may make an order quashing a rate or service charge which in its opinion has been improperly made or imposed. (Page 6)
13 The appellant maintained that the respondent had acted unlawfully because they had exercised their legislative function through an executive action. 14 According to the counterclaim which the appellant filed in the Merredin Magistrates Court, he was claiming $1,352.50 from the respondent being an amount to recover moneys paid by the appellant to the respondent for annual charges relating to Refuse Removal, Refuse Site Maintenance and a Waste Management Levy, including a GST where none was due, between 1 July 1997 and 30 June 2008 in circumstances where all of the aforementioned charges were unlawful exactions imposed under the colour of legislative authority. In addition the appellant indicated he would be claiming an amount to be determined for interest and fees paid by the appellant as a result of payments made by instalment to the respondent where in the circumstances none was due. He further indicated he would be claiming interest in an amount to be determined calculated on a daily basis commencing 1 July 1997 on all moneys had and received by the respondent and to which the respondent was not lawfully entitled. 15 At the hearing before the learned magistrate counsel for the respondent submitted that the appellant's counterclaim was barred by both the Limitation Act 1935 and 2005, given that recovery action was required to be taken within 12 months of payment of any such moneys and no such amounts paid by the appellant were paid within 12 months prior to the commencement of the proceedings taken by the respondent in the Magistrates Court. As a result of that counsel submitted that the counterclaim was not only in the incorrect jurisdiction, but it was also statute barred. In response the appellant advised the court that the Limitation Act was irrelevant as he was not seeking to recover anything paid by him and that was the whole point of his foreshadowed amendment. 16 In any event the learned magistrate granted the appellant leave to amend his counterclaim, the relief sought in par 2 of the respondent's application was adjourned pending the outcome of the respondent's summary judgment application which was adjourned after the hearing for a reserved decision to be delivered on 9 March 2011. 17 It is against that decision that the appellant appeals. The learned magistrate delivered written reasons to which reference will be made in summarised form. He noted that the rates claimed were the balance of rates levied against a property owned by the appellant which was located (Page 7)
within the shire of Merredin for the year 2008 in the sum of $97.34 and for the year 2009 in the sum of $971.99. He observed that the amount varied from the amount originally claimed. 18 The appellant admitted that he was liable to pay that portion of the rates levied against him in respect of rates imposed on his property and the Emergency Services Levy (ESL). However, the appellant took issue in relation to the rates claimed with respect to a number of services provided being for: 19 The learned magistrate understood the appellant's argument to be that the respondent had no power to levy rates under the provisions of the Waste Avoidance and Resource Recovery Act 2007 (WARR Act), the Health Act 1911, the LG Actand the Shire of Merredin Health Local Law1999 (the laws). Further, the appellant argued that if such a power was found to exist then the respondent had calculated the amount of the rates contrary to law. 20 The appellant's counterclaim in the sum of $1,352.50 was based on his argument that between 1997 and 2008 at various times the respondent had imposed fees and charges for a refuse site fee, waste management strategy levy, a GST and a charge for the removal of refuse from the appellant's premises, when the respondent either did not have the power to do so or did not comply with the provisions of the laws. Further, the learned magistrate understood the appellant's argument to be that the respondent had levied rates based on the basis of generating revenue and not on the basis of a fee for service. 21 Counsel for the respondent argued that it had a power to levy rates on the appellant pursuant to its powers under the laws pointing out that the appellant did not challenge the correctness of the rate roll, nor did he deny that he was the registered owner of the property in question, which was located within the shire of Merredin. 22 The learned magistrate noted the argument mounted on behalf of the respondent that any issue the appellant had with the exercise of the respondent's powers or the method or manner in which the rates had been calculated or any service fee levied was not within the jurisdiction of the (Page 8)
Magistrates Court. Any such argument should have been referred to SAT pursuant to the provisions of s 6.82 of the LG Act. Counsel for the respondent argued that the appellant's counterclaim lacked merit as a portion of it was statute barred and the balance of the counterclaim should have been referred to SAT for resolution pursuant to the previously mentioned section of the LG Act. 23 The learned magistrate found that the respondent was entitled to recover the outstanding rates claimed against the appellant because: 1. Section 6.56 of the LG Act provided: 2. Further, s 6.57 of the LG Act provides: In proceedings by or on behalf of a local government for the recovery of an amount due in respect of a rate or service charge, failure by the local government to comply in respect of the rate or service charge with the provisions of this Act, is not a defence, if it appears that it had the power to impose, and did in fact assent to the imposition of, the rate or service charge. 24 In relation to that argument the learned magistrate was satisfied that the Laws all appeared to provide power to the respondent to impose Rates upon the appellant and that the respondent had assented to the imposition of Rates. It followed according to s 6.57 of the LG Act that the appellant had no defence to the claim by the respondent. 25 Further, the learned magistrate concluded that the Magistrates Court did not have jurisdiction to determine the matters raised by the appellant in his defence and counterclaim by reference to s 6.82 of the LG Act. He concluded that SAT had the jurisdiction to determine whether a rate or service charge was imposed in accordance with the LG Act and that tribunal had the power to quash a rate or service charge which in its opinion was improperly made or imposed. 26 The learned magistrate noted that neither the appellant nor the respondent had availed themselves of the power of general review by SAT and that further it appeared from argument before the Magistrates Court (Page 9)
that the respondent saw no point in referring the matter to SAT because the respondent considered it had the power to levy rates and in doing so had complied with the Laws. The appellant had not referred the matter to SAT because he was of the view that he was not required to do so as the respondent had not done so. The learned magistrate concluded that he did not have the power to refer the matter to SAT on behalf of either of the parties. 27 Pursuant to s 18(1) and s 18(2) of the Magistrates Court (Civil Proceedings) Act 2004 and the matters referred to in s 6.57 of the LG Act the learned magistrate considered that the appellant had no reasonable prospects of succeeding in either his defence of the respondent's claim or in his counterclaim and so he dismissed the defence and counterclaim. Section 6.57 of the legislation states: In proceedings by or on behalf of a local government for the recovery of an amount due in respect of a rate or service charge, failure by the local government to comply in respect of the rate or service charge with the provisions of this Act, is not a defence, if it appears that it had the power to impose, and did in fact assent to the imposition of, the rate or service charge. 28 The learned magistrate made the following orders: 1. summary judgment be entered for the respondent against the appellant in the sum of $1,069.33; 2. there be interest at 11% per annum on the sum of $97.34 from 22 September 2008 until payment, and, 3. there be interest at 11% per annum on the sum of $971.99 from 7 September 2009 until payment; 4. the appellant pay the costs of the respondent pursuant to the provisions of the Magistrates Court (Civil Proceedings) Act 2004 to be assessed, if not agreed. 29 In relation to order number 2, after the learned magistrate delivered his decision and written reasons the court contacted the parties indicating that typographical and mathematical error was contained in the judgment. That error related to the sum of rates outstanding for 2008 and should have read $197.34 as per the affidavit of John Cameron Mitchell sworn on 23 December 2010 in support of the respondent's application for summary judgment. Wherever that typographical error had been compounded at various places in the judgment it should be amended pursuant to s 23(2) of (Page 10)
the Magistrates Court Act. In that regard the court forwarded to the parties notice of the proposed amended judgment. 30 The notice of appeal alleges a range of errors on the part of the learned magistrate which are particularised in some detail. These are reproduced below: (Page 11)
charges' on the one hand and the disputed fees, charges, a levy and a GST on the other hand. Particulars a) 'rates' and 'service charges' are by law defined terms and are both prescribed by law to be 'a charge on land' whereas the imposts in dispute are not defined by law and are not imposts prescribed by law to be 'a charge on land'. b) Both His Honour and the Respondent erroneously relied upon the term 'rate' to describe and deal with the imposts at issue when the imposts at issue were not a 'rate' as defined. c) The Appellant submits that the errors described in a) and b), above, were critical errors that distracted the proceedings to inappropriate or irrelevant issues, enabled the misunderstanding and misapplication of the issues of fact and law, forced the Appellant to defend matters not directly related to his defence and erroneously facilitated the Respondent's flawed application for summary judgement. 3. The learned Magistrate erred in law by failing to identify the appropriate issues for decision and in doing so failed to ask the appropriate questions.
Particulars
a) The Appellant's defence was that the Respondent had, at all material times, determined and imposed the disputed fees, charges, a levy and a GST in a manner and/or in a form that was inconsistent with and exceeded the Respondent's legitimate powers such that the Respondent had acted ultra vires the power provided by the relevant enabling legislation and to that extent the imposts in question were unlawful imposts and not valid. b) The Respondent conceded in its affidavit of 23 December 2010 at paragraph 15, in reference to the disputed imposts, inter alia, that 'The Defendant has raised concerns as to the legality of …'. c) His Honour in his judgement, in reference to the disputed imposts, noted that, inter alia, 'the Defendant draws issue with the Rate claimed by the Claimant for …'. d) The issue of the legality of the imposts in question in the context of the Defence's argument at sub-paragraph a), above, was not identified as the issue to be decided and the (Page 12)
court did not direct any question to verifying the legitimacy, in all its meaning, of the imposts that were in dispute. 4. Both the learned Magistrate and the Respondent erred in law by denying the court's jurisdiction to deal with the issues in question.
Particulars
5. Both the learned Magistrate and the Respondent erred in law by stating that the Appellant had a right of review to the SAT when as a matter of law the stated right does not exist.
Particulars
a) 'The right of review under s 6.82 has no application to fees and charges imposed under Pt 6 Div 5 Subdivision 2 (which is not by definition "service charges" as those expressions are used in s 6.82).' Minchin and Ors and Town of Claremont [2008] WASAT 78 at 33 per Judge J Chaney (Deputy President) (as His Worship was at that time) b) The determination at sub-paragraph a), above, is consistent with the appellant's arguments; arguments erroneously rejected by both His Honour and the Respondent. 6. Having regard the above grounds of appeal the Respondent's application was fatally flawed by errors of fact and law and the Appellant submits that His Honour erred in his decision not to dismiss the Respondent's application and list the matter for trial. 7. In light of all of the above, the learned Magistrates decision to uphold the Respondents flawed application for summary judgement, to issue orders and, in particular, to dismiss the Appellant's defence and counterclaim without trial and scant valid evidence are a denial of the Appellant's right to be afforded natural justice and a fair trial. (Page 13)
The appellant seeks orders that the decisions and orders made by the learned magistrate be quashed and that the original matter be relisted for trial in a court of competent jurisdiction without further delay. 31 At the hearing of the appeal counsel for the respondent noted that although the notice of appeal contained seven grounds of appeal they might conveniently be narrowed down into three distinct areas being: A Did the learned magistrate err in finding that the respondent had the legislative power to issue the Waste Management Charge, Waste Collection and Disposal Fee and the Domestic Recycling Fee (Disputed Fees). B. If the court found that the learned magistrate was correct in relation to A above did he err in finding that the appellant had no defence pursuant to s 6.57 of the Local Government Act 1995 (LG Act). C. Did the learned magistrate err in finding that the disputed fees constituted 'rates and service charges' for the purpose of s 6.82 of the LG Act and therefore that he had no jurisdiction to hear the appellant's defence and counterclaim. 32 The appellant took issue with this proposed categorisation of his grounds of appeal as in his view they did not properly or fully encapsulate the matters he wished to argue on appeal. He reiterated that he admitted the property rate and the ESL but denied all of the waste related fees, charges and the GST. His counterclaim related only to the waste/rubbish related fees, charges, a levy and GST imposed by the respondent between 1997 – 1998 and 2007 – 2008. The appellant advised this court that he had attempted to explain to the learned magistrate that under the LG Act the legislative and administrative function of a local government are mutually exclusive and that the learned magistrate failed to give appropriate weight to this argument, as a result of which in the appellant's words 'the hearing went off the rails'. 33 The submissions filed by the appellant and his introductory remarks at the hearing of the appeal covered the history of the matter up to the date of hearing in the Magistrates Court at Merredin and it is unnecessary to repeat those matters in any great detail. They are in part consistent with the history provided by counsel for the respondent, however there are some differences. The appellant advised this court that the affidavit in support of the respondent's application for summary judgment, was dated 23 December 2010, which was the day after a hearing before the learned magistrate where the respondent agreed to file submissions by 8 January 2011. According to the appellant he did not receive the application for summary judgment until the afternoon of the hearing of the application, (Page 14)
making the point that he had very little notice of the hearing. He expanded upon this by telling the court that in fact he learned of the hearing the day prior to it because he had attended the Merredin court to obtain an update as to the proceedings and he was advised that the hearing was listed for the following day in relation to an application for summary judgment. 34 Despite having little time to prepare for the hearing the appellant attended the court for the hearing to ventilate his concerns regarding the legitimacy of the disputed charges. In the appellant's view however, the learned magistrate did not really consider that issue in any depth and concluded that a local government could issue a rate notice and regardless of its contents they could charge the recipient, which the appellant regarded as outrageous conduct which completely ignored the notion of accountability on the part of a local government, and this was not the intention of Parliament. 35 The appellant argued that the learned magistrate was in error as he failed to make a distinction between 'rates' and 'service charges' and the disputed fees, charges, a levy and a GST which are two very distinct and different things, which serve different purposes pursuant to different schemes. The appellant understood the respondent's argument in large part to be that the disputed fees and charges were either a 'rate' or a 'service charge' as defined and applied under the LG Act and which were payable and recoverable as 'rates or service charges' under that legislation. However, on the appellant's analysis, the LG Act contemplates two distinct charging regimes, one of which relates to charges on the land being rates and service charges and the other which relates to charges directed towards an individual, being fees and charges for services rendered to that individual. The appellant submitted that the imposts which were in dispute were fees and charges for services rendered pursuant to the WARR Act or the Health Act and were therefore not 'rates' or 'service charges' as defined and contemplated by the LG Act. As a result the provisions of the LG Act relied on by the respondent to recover those disputed imposts from the appellant did not apply to the imposts. For this reason at the hearing before the learned magistrate the appellant had submitted that there was no evidence of local laws and therefore the respondent had acted ultra vires and exceeded its authority by imposing fees and charges in the manner they did. 36 The appellant admitted he did not expand on this argument before the learned magistrate as he was self-represented and did not appreciate that it was necessary he do so. If that were the case the appellant (Page 15)
submitted the learned magistrate should have advised him to do so. It should be noted that later in the course of his argument before this court the appellant said that he had consulted four lawyers and had been receiving advice from one particular lawyer, who was not identified, for two and a half years leading up to the hearing in the Merredin Magistrates Court. 37 The appellant reiterated that the learned magistrate was in error because he failed to recognise as a matter of law that there were two distinctly different charging regimes and he failed to identify and apply the law appropriate to the various disputed imposts. According to the appellant the learned magistrate incorrectly formed the view at the hearing that the appellant was 'not happy with the fees' when in reality the appellant's issue related to the powers and responsibilities of local government and in particular the fact that local government can only do as they are empowered by law, for example as to the charging of fees. The appellant pointed out that a regulation not only regulates an activity carried out by a local government but also the fees charged for it. In this case according to the appellant local government had never regulated the fee in question and had merely made arbitrary decisions on annual basis as to the fees which would be charged. 38 The appellant referred to s 67(1) of the WARR Act which states: (1) A local government may, in lieu of, or in addition to a rate under section 66, provide for the proper disposal of waste, whether within its district or not, by making an annual charge per waste receptacle, payable in one sum or by equal monthly or other instalments in advance, in respect of premises provided with a waste service by the local government. 39 The appellant understood that section to permit a local government to make and fix a charge and further, a local government can then determine which of two options provided by Parliament as to upon whom the charge will be imposed. He argued that there is nothing in that section which states that local government can impose such a charge on the appellant as a house owner. There is no coercive power granted to a local government pursuant to that section. Rather the coercive power is to be found in the local law made where the charge is fixed. 40 It is to be noted however that s 67(2) of that legislation states: (2) The charge is to be imposed on the owner (as defined in section 64(1)) or occupier, as the local government may decide, of (Page 16)
any premises provided with a waste service by the local government. 41 Section 64(1) defines 'owner' in relation to premises comprised of or on land, as having the meaning given in the LG Act, s 1.4. Numerous categories of persons are defined as 'owner' in that section but relevantly, s 1.4(a)(i) refers to a person who is in possession as: (i) the holder of an estate of freehold in possession in the land, including an estate or interest under a contract or an arrangement with the Crown or a person, by virtue of which contract or arrangement the land is held or occupied with a right to acquire by purchase or otherwise the fee simple. 42 In presenting his argument on appeal the appellant relied heavily on the judgment of Wheeler J, as she then was in Shire of Ashburton v Bindibindi Community Aboriginal Corporation [1999] WASC 108. He contended that the reasons contain a comprehensive analysis of the jurisdiction and charging powers of a local government under the Health Act and the LG Act, with a focus on fees and charges for rubbish/waste removal services. He submitted that her Honour's conclusions represent the test which should be applied in his case and that they are supportive of the appellant's claims in his defence and his counterclaim. 43 The case in question concerned land in a remote Aboriginal community. There was an issue as to whether that land was 'rateable land' which could attract the imposition of rates and service charges. The Shire of Ashburton, being a local government authority, was suing the defendant, an incorporated Aboriginal association, to recover rates levied on the land in question. The defendant resisted the claim denying it was liable to pay rates in respect of the land because it was not the 'owner' of the land for the purposes of s 1.4 of the LG Act or that the land was not rateable since it was used exclusively for charitable purposes within the meaning of s 6.26(2)(g) of the LG Act or the land was not rateable as it was the property of the Crown and was used or held for a public purpose within the meaning of s 6.2(2)(a)(i) of the LG Act. Her Honour carefully and in some detail examined the argument in relation to each one of those categories. 44 In the end her Honour found that the land in question was not 'rateable land' for the purposes of attracting the imposition of rates and services charges. In relation to the issue of rubbish removal charges her Honour noted at [41] that the question of local government power to impose fees or charges in relation to services such as refuse collection was (Page 17)
not an easy question. Both the Health Act and the LG Act her Honour noted contained numerous provisions purporting to confer power on a local authority to impose a fee or charge for service. Whilst different means of imposing the fee or charge prescribed varied according to different sections in the legislation in combination with different conditions imposed in respect of different means of imposition, her Honour noted that there appeared to be substantial areas of overlap between the various powers. In her Honour's opinion it was not possible to discern a coherent legislative framework and quite impossible to discern the extent to which the various powers were intended to be concurrently exercised. 45 At [42] her Honour said: The provision which most directly deals with removal of rubbish is s 112A of the Health Act. It provides that where a local government undertakes for the removal of house and trade refuse and other rubbish, every occupier of premises within the relevant part of the local government area shall pay to the local government the prescribed charge. 'Prescribed' is defined in the Health Act to mean 'prescribed by this Act or by any regulation or local law thereunder'. In addition s 344C provides for a method of fixing fees or charges by resolution in accordance with the procedure set out in that section. Although certain other difficulties in the application of s 112A to the facts of this case were raised in argument, it is sufficient to dispose of any reliance upon that provision to observe that there is conceded by the plaintiff to be no evidence of any relevant regulation or local law, or of any resolution in accordance with s 344C. The rubbish collection charges cannot therefore be sustained pursuant to s 112A. 46 Notwithstanding that the appellant relies heavily on her Honour's observations and findings in [42] counsel for the respondent in argument pointed out the removal of rubbish was different from a levy for waste or sanitary services and further that it was quite different from a receptacle charge. In that regard counsel for the respondent directed the court to [55] of her Honour's reasons where she said: Although the intention is not expressed in the Act, it appears to me that the legislative scheme contemplates that a service charge will be something akin to a rate, in the sense of a charge imposed by reference to occupation or ownership of land, in respect of a regular or continuing service of some significance provided by the local authority to either all residents or to a considerable proportion of residents, while the fees and charges contemplated by s 6.16 are likely to be of an ad hoc and occasional nature, directed to individuals and payable either before or at the time of provision of the supply of the particular service in question. Although it is not necessary to decide this issue, it is, I think, questionable whether the (Page 18)
scheme of the Act is such that s 6.16 can reasonably be read, in its context, as intended to permit a local authority to impose and recover pursuant to s 6.16 a fee for the regular collection of household refuse, which is historically one of the core functions of local government. 47 Her Honour then went on to observe that it was not necessary to decide that particular issue in the case before her, but she was still of the view that it was questionable whether the scheme of the Act was such that s 6.16 reasonably read in its context as intending to allow local authority to impose and recover a fee pursuant to s 6.16 for the regular collection of household refuse, this being one of the core functions of local government. 48 On that basis counsel for the respondent submitted that the case focussed on a situation where a local government was required or requested or decided to remove rubbish or refuse on an ad hoc basis not on a regular basis and it was also a situation where there was no receptacle provided for the collection of rubbish or refuse. For that reason I accept that s 112A of the old Health Act ought to apply in those circumstances. 49 The ad hoc or occasional request or decision to remove rubbish or refuse from a location may attract a fee depending on the particular circumstances of the case but it is not a situation that exists in this case. Here the disputed fees are of an annual and regular and continuing nature. 50 That being the case, one goes to s 64(2)(j) of the WARR Act which allows for local laws to be made for fixing of fees and charges in relation to waste services provided by a local government and the issue of approvals under par (i), and prescribing the persons liable and the method of recovery of payments not duly paid. Section 64(2)(i) states that local laws may be made for providing for the issue of approvals to collect local government waste and remove it from premises. 51 In his argument the appellant maintained that two separate and distinct schemes exist one being directed to charges on the land being rates and service charges and the other being directed to charges on an individual for services provided such as rubbish collection and waste disposal. The appellant maintained that the disputed charges or imposts were fees and charges for services rendered under the WARR Act and the Health Act as it then was. They were not rate or service charges as defined in the LG Act and so therefore the appellant submitted that they were not the type of imposts that are susceptible to any of the provisions in the LG Act which the respondent relied on in making its claim against (Page 19)
the appellant and which the learned magistrate accepted at the hearing of the summary judgment application. Given that there are two separate and distinct schemes the appellant argued that payment of the disputed imposts cannot be enforced under the provisions of the LG Act. This however according to the appellant is what the respondent has attempted to do and something which the learned magistrate incorrectly accepted that it had the power to do. Essentially the appellant submits that the respondent has taken fees and charges pursuant to the WARR Act and the Health Act and wrongly characterised them as fees and charges under the LG Act. 52 The learned magistrate was further in error it was submitted, in focussing on matters that were not relevant to fees and charges for waste collection that were disputed by the appellant. 53 According to the appellant by virtue of s 112A of the Health Act and cl 4.2.13 of the Shire of Merredin Health Local Law the appellant is required to pay the respondent for the provision of compulsory rubbish/waste removal services, a prescribed charge fixed by Local Law or a charge according to the scale under a contract and published in accordance with s 113 of the Health Act. These it is said are mandatory pre-conditions to the imposition of a fee or charge for the provision of compulsory rubbish/waste removal services rendered by either the respondent or its contractor. The appellant accepts that the law provides he must pay for waste collection services, but he argues the respondent does not make the law, rather it must do what the law prescribes. 54 Whilst the appellant accepts that pursuant to s 112 of the Health Act one must pay for service of rubbish or waste collection from their property, he points out that the section also says how that payment is to be calculated and that there is a scheme in place relevant to how that is to be done because it is a 'prescribed charge. The definition of 'prescribed' in s 3 of the Health Act means prescribed by this Act or by any regulation or local law thereunder'. So according to the appellant there is a scheme in the Health Act which sets out how the charge is to be calculated. If the shire calculates the charge then it occurs pursuant to s 112A(1) but if a contractor does it the method is set out in s 113 of the Health Act and then the local government is required to publish in some local newspaper circulating in the district, the scale of charges fixed by the contract. In that event if a person neglects or refuses to pay the contractor any charge made pursuant to the contract with the local government for services rendered on behalf of the person, then the charge may be (Page 20)
recovered by the contractor or by the local government on the contractor's behalf, from such person by action in any court of competent jurisdiction. 55 The appellant argues that the respondent in this case has had a contract with the same contractor since 1997 until the current time and the scale of charges has never been published as required by s 113 of the Health Act. In those circumstances the appellant questions why the charges were levied against him in the first place. 56 The appellant told the court that s 112A of the Health Act was introduced as an amendment in 1954 because s 106 of the Act did not provide local governments with sufficient power to deal with rubbish collection. The population was growing in the metropolitan area, as a result of which more rubbish was being produced and accumulated and there was a need for greater regulation. As a result, those being provided with the service were compelled to pay for it. Section 106 of the Health Act deals with sewerage or power to make pan charges which is now a matter under the control of the Water Corporation. 57 In ground 3 of his appeal the appellant alleges the learned magistrate erred in law by failing to identify the appropriate issues for decision and in doing so failed to ask the appropriate questions. In this regard the appellant relies on the submissions in support of ground 2 of his appeal and raises further arguments. It is his understanding that the respondent intends that pursuant to both the Health Act and the WARR Act it is authorised to annually fix, determine liability and impose amounts for enforceable fees and charges by a process of formulating its annual budget and the adoption of that annual budget by the local government authority which the respondent maintains is sufficient to give legislative effect to the process it has undertaken. However, according to the appellant as a matter of law that is a misapprehension on the part of the respondent of its limited authority. Further, he argues that it is contrary to the underlying principle of the 'rule of law' which prohibits the executive government from placing a burden on a citizen without the express authority of Parliament through the laws made by Parliament. In support of this the appellant relies on the United Kingdom Bill of Rights 1689 page 2, cl 4 but as was pointed out to him at the hearing of this appeal there is no Australian Bill of Rights and specific clauses in the Bill of Rights in another country do not necessarily apply in Australia. The appellant argues that the respondent by means of an executive act of adopting it annual budget is not thereby authorised to make laws generally applicable throughout the 'district'. In addition, he contends that the annual budget is a management or policy document and not a legislative instrument which (Page 21)
possesses any legislative effect. The position of the respondent is that they do not require a local law to levy the disputed fees and charges. 58 In submissions to this court the appellant maintained the focus should be not so much on the issue of whether the respondent as an executive government has power to impose and recover particular imposts, but rather upon a narrower issue of whether the law authorised the purposes and amounts of the imposts and if so, were those purposes and amounts consistent with the purposes and the amounts authorised by law? The appellant contends that the learned magistrate was in error because he directed his attention to the first and broader issue rather than dealing with the narrow issue first and then, if necessary, turning to the broader question. The appellant further argues that in his words 'the scrutiny applied to the appellant's defence and counterclaim by the learned magistrate was disproportionate to the lack of scrutiny of the respondent's claims'. However when one reads the transcript of the proceedings before the learned magistrate in the Merredin Magistrates Court on 8 February 2011 in my view it does not support the appellant's contention. The learned magistrate quite early in the proceedings called upon the appellant for his comments and directed him initially to the appellant's response to the issue of the proposed amendment but it seems from the transcript that the appellant was focussed upon his argument that the respondent had exceeded its authority in imposing the disputed fees and charges. There was a discussion with the appellant regarding the issue of whether the matter should have been referred to SAT and the appellant was heard on that point. At page 7 of the transcript of the proceedings, having heard from counsel for the respondent, the learned magistrate asked the appellant if he had in effect anything further say and the appellant took that opportunity to expand upon his argument that the respondent had not acted lawfully. In addition at page 9 of the transcript the appellant had the opportunity to make submissions in response to counsel for the respondent's argument that the appellant's counterclaim was in the incorrect jurisdiction and was also statute barred. It was not a case in my view where the proceedings focussed largely on the respondent's argument to the detriment of the appellant's argument. 59 In the light of this finding I do not accept as the appellant asserts in ground 7 of his Notice of Appeal that he was denied natural justice and not afforded a fair trial in the proceedings before the Merredin Magistrates Court. In support of this contention the appellant referred to a number of authorities eg, Defendi v Gatto [2011] WADC 72 [19]. The circumstances in that matter however are quite different from those which exist in the appellant's case. (Page 22)
60 In that case, the appellant was successful in his argument that he had been denied natural justice. He was self-represented and English was not his first language (he required an interpreter) and was unlikely to have comprehended certain things said in the proceedings. Further the hearing involving a summary judgment application against him by the respondent was listed for hearing in the Magistrates Court on a date on which the appellant had advised the court he would be absent from the jurisdiction. The application was nonetheless heard in his absence so he was denied the opportunity to be heard and participate in the proceedings. 61 Further taking into account the history of this matter once proceedings commenced in the Merredin Magistrates Court and the conduct of those proceedings as revealed in the transcript of the hearing, I cannot see there was a failure on either the part of the respondent or the court to follow the necessary and correct procedures, or that the proceedings before the learned magistrate were ' so unreasonably affected by intransigence' that the appellant was denied natural justice and the right to a fair trial. 62 The appellant submits that s 67 of the WARR Act represents a delegation of Parliament's legislative powers to the respondent enabling it to make an effective local law in accordance with Pt 6 Div 3 of the WARR Act and Pt 3 Div 2 of the LG Act that establishes a waste service as a compulsory service, fixes the fee, determines liability for the fee and that provides for a method of recovery for any unpaid amounts. It is said that the respondent has simply not provided any evidence of any local laws to support its claims. Section 67(1) of that legislation says: A local government may, in lieu of, or in addition to a rate under section 66, provide for the proper disposal of waste, whether within its district or not, by making an annual charge per waste receptacle, payable in one sum or by equal monthly or other instalments in advance, in respect of premises provided with a waste service by the local government. 63 Section 67(2) states: The charge is to be imposed on the owner (as defined in section 64(1)) or occupier, as the local government may decide, of any premises provided with a waste service by the local government. 64 The appellant argues that the authority contained in s 67 relates to the making of rather than the imposition of a charge and that it is an authority to determine upon whom the charge will be imposed in one of the two ways contemplated by Parliament which is a reference back to s 66 of the legislation. Admittedly s 67(1) uses the word 'making' in relation to a (Page 23)
charge, but in my view is expanded upon in s 67(2) because there the legislation speaks of a charge being 'imposed' on the owner, which suggests that the respondent does have power to actually impose or levy a charge directly upon an owner for the service in question. 65 The appellant submits that the respondent has exceeded its authority pursuant to s 6.16 of the LG Act by purporting to exercise coercive powers when as a matter of law, pursuant to that section such powers do not exist. However, when one looks at s 6.16(1) it says. A local government may impose and recover a fee or charge for any goods or service it provides or proposes to provide, other than a service for which a service charge is imposed. (In relation to the imposition an absolute majority is required.) 66 A plain reading of that section suggests quite clearly that a local government does have coercive powers which enable it not only to impose particular fees or charges for goods or services rendered or proposed to be rendered, but also it has the authority to recover a fee or charge which remains unpaid. 67 He submits that one cannot apply legislation pursuant to the LG Act to charges levied pursuant to the WARR Act unless the latter Act permits it. There are only two sections in the WARR Act which are relevant to this issue being s 66 which says: 68 The other section is s 67 of the WARR Act which permits local government to impose a receptacle charge. (Page 24)
69 An essential issue in this appeal is clearly the appellant's assertion that the respondent did not have the legislative power or authority to levy the waste related fees and charges being the waste management charge, the waste collection and disposal fee and the domestic recycling fee as well as the GST. Counsel for the respondent argues that this question should be answered in the affirmative. Central to the respondent's argument in this regard is an examination of the sections of legislation contained within Pt 6 Div 3 of the WARR Act. 70 Section 64 of the Act states: (1) In this section — 'owner', in relation to premises comprised of or on land, has the meaning given in the Local Government Act 1995 section 1.4. (2) Local laws may be made for all or any of the following purposes — (a) the provision and administration of waste services and related matters; (b) the establishment, provision, use and control of receptacles for the deposit and collection of waste, whether temporary or otherwise; (c) if a local government itself undertakes or contracts for removal of waste from premises, imposing on the owner or occupier of the premises requirements in connection with the removal so as to facilitate the removal, and prescribing the manner in which the requirement is to be complied with; (d) if a local government or the holder of a waste collection permit does not itself undertake or contract for removal of waste from premises, imposing on the owner or occupier of the premises a requirement to remove waste from the premises, and prescribing the manner in which the requirement is to be complied with; (e) if a local government itself undertakes or contracts for the removal of waste, requiring the waste to be placed in waste receptacles provided by the local government; (f) prescribing intervals at which the contents of the receptacles will be removed by a local government; (g) requiring the temporary placing of waste receptacles in streets or lanes by owners or occupiers of property for (Page 25)
collection of waste, and requiring the replacement of the receptacles on the property; (h) providing for the maintenance by owners and occupiers of waste receptacles provided by a local government; (i) providing for the issue of approvals to collect local government waste and remove it from premises; (j) fixing fees and charges in relation to waste services provided by a local government and the issue of approvals under paragraph (i), and prescribing the persons liable and the method of recovery of amounts not duly paid. (3) A local law may provide that contravention of a provision of the local law is an offence, and may provide for the offence to be punishable on conviction by a penalty not exceeding a fine of $5 000. (4) If the offence is of a continuing nature, the local law may make the person liable to a further penalty not exceeding a fine of $500 in respect of each day or part of a day during which the offence has continued. (5) The local law may provide for the imposition of a minimum penalty for the offence. (6) The level of the penalty may be related to — (7) A local law may specify the method and the means by which any fines imposed are to be paid and collected, or recovered. 71 Section 64(2) appears to be discretionary in that it does not state local laws must be made for a range of matters relevant to waste management. I accept counsel for the respondent's submission that it does not refer to the respondent issuing notices relevant to the disputed fees. Section 64 does however make it plain that the respondent is empowered to make local laws with respect to those categories of health related issues involving waste management contained in s 64(2). 72 Counsel for the respondent argues that separate powers are conferred upon the respondent in relation to there being charges with respect to waste services. Section 66(1) as has previously been noted, speaks of the (Page 26)
imposition and collection of an annual rate in order to provide proper performance of all or any of the waste services provided so it would appear to be a general power to levy. Section 67 is more specific in the sense that it speaks particularly of a rate in lieu or additional to that contemplated in s 66 relevant to each waste receptacle provided for the proper disposal of waste. In s 3 of the WARR Act 'waste' is defined and includes matter: Further 'waste service' is defined to mean: (a) the collection, transport, storage, treatment, processing, sorting, recycling or disposal of waste; or (b) the provision of receptacles for the temporary deposit of waste; or (c) the provision and management of waste facilities, machinery for the disposal of waste and processes for dealing with waste. 73 On my understanding s 64(2) does not reflect a situation whereby Parliament has directed a local authority to make local laws for the specified purposes so it is not mandatory, rather it is discretionary. Again, on my understanding when one looks at the language in both s 66(1) and s 67(1) it is not directive but discretionary in the sense that it says a local government 'may' do certain things. Neither of those two sections say or use language which suggests that a local government may do certain things consequent upon having made local laws. The sections are entirely silent in relation to the question of local laws. It appears to me that both s 66 and s 67 by use of the language employed, clearly indicate that Parliament has delegated the powers in question to local government avoiding the need for local laws to be made by the local government in the first place particularly taking account that it is not mandatory for a local government to do so. 74 That being the case the respondent had the legislative authority to impose the disputed fees and charges for waste management pursuant to s 66 of the WARR Act and for the waste collection and disposal fee and domestic recycling fee pursuant to s 67(1) of that same legislation. It follows as a matter of logic therefore that any GST attaching to those levies was also authorised. Where there is a delegated power to a local authority to do certain things as contemplated in s 66(1) and s 67(1) of the (Page 27)
WARR Act there would be no need for a local authority to make local laws to the same effect, even if they were minded to exercise their discretion to do so. Both of those sections of the legislation reflect a power delegated to a local government but each section also contemplates how a local government, may exercise that power in terms of calculating particular rates and charges. 75 It is then necessary to consider the relationship that exists between those sections of the WARR Act and the LG Act. This is because s 66(3) and s 67(3) of the WARR Act make reference to the provisions of the LG Act relating to the recovery of general rates with respect to the disputed fees and charges. Part 6 Div 1 of the LG Act deals with the concept of a 'general rate' as well as a 'service charge'. A 'general rate' means a rate imposed in accordance with s 6.32(1)(a) which says: (1) When adopting the annual budget, a local government — (a) in order to make up the budget deficiency, is to impose a general rate on rateable land within its district, which rate may be imposed either — (i) uniformly; or (ii) differentially; … 76 A 'service charge' means a service charge imposed under s 6.38 and relevantly s 38(1) says: (1) A local government may impose on — 77 The remainder of that section then goes on to deal with how the local government is required to use the money obtained from service charges in a financial year and restrictions on the use of money raised from service charges, as well as specifying what a local government may do if it receives more money from service charges than is required. It is therefore apparent that the disputed fees levied under the WARR Act fall within this definition or these definitions for the purposes of the LG Act and as a (Page 28)
result I accept the submission made on behalf of the respondent that s 6.57 of the LG Act therefore applies to each of the disputed fees. That section deals with non-compliance with procedure in the LG Act which if it occurs does not prevent recovery of a rate or service charge in that the section says: In proceedings by or on behalf of a local government for the recovery of an amount due in respect of a rate or service charge, failure by the local government to comply in respect of the rate or service charge with the provisions of this Act, is not a defence, if it appears that it had the power to impose, and did in fact assent to the imposition of, the rate or service charge. 78 I have found that the local government did have the power to impose the disputed fees and charges and that the respondent complied with the requisite procedure. 79 It should be noted that pursuant to s 6.57 that even if it did not, this would not be fatal to the recovery of disputed rates and/or services charges. This reflects the reasoning and findings of the learned magistrate relevant to an examination of s 6.56 and s 6.57 of the LG Act. Specifically in relation to the effect of s 6.57 of that legislation it follows that the appellant has no defence to the claim made by the respondent. 80 In relation to objections and review one goes to Pt 6 Div 6 subdivision 7 of the LG Act. That subdivision, but in particular s 6.82 in my view makes it clear that it is SAT which has the jurisdiction to deal with issues arising out of a general review of imposition of rate or service charge save for the situation referred to in s 6.82(2). Otherwise s 6.82(3) specifies how SAT may deal with a matter referred to it pursuant to the section by making an order quashing a rate or service charge which in its opinion has been improperly made or imposed under the LG Act. This was the finding made by the learned magistrate at the hearing in the Merredin Magistrates Court. The appellant's counterclaim, to which previous reference has been made, alleges that the respondent had no power to charge fees for the services concerned in respect of waste/rubbish related fees, charges, a levy and the GST imposed in those periods 1997/1998 and 2007/2008. The first issue which must be determined is whether the Magistrates Court has power to entertain a counterclaim. As it involves a question relevant to the imposition of rate or service charges which would not appear to fall within s 6.82(2), then it would be a matter to be determined within the jurisdiction of SAT as contemplated by s 6.82(3) of the LG Act. This reflects the finding of the learned magistrate. (Page 29)
81 In the event that the learned magistrate was wrong in reaching that conclusion, it seems to me that there was another difficulty facing the appellant, namely the fact that the claim in question was statute barred pursuant to s 27A of the Limitation Act 1935 (WA) and s 28 of the Limitation Act 2005 (WA). The moneys in issue were paid more than 12 months prior to the commencement of proceedings in the Merredin Magistrates Court. 82 The appellant appears to have addressed this difficulty by amending his pleadings to the effect that the sums in issue the subject of the counterclaim, could be set-off against the moneys which the appellant claimed were owed to him by the respondent. It seems he was essentially withdrawing a claim for repayment of any of the moneys he had previously paid the subject of the counterclaim, but maintaining that the respondent did not have power to do what they did and therefore the appellant required the court to determine that issue. Given that the counterclaim was time barred by legislation, requesting a determination of that issue for what essentially is a matter of principle, is not and would not have been a proper and appropriate use of the learned magistrate's time. 83 The Health Act applied relevant to the appellant's counterclaim for the periods between 1997/1998 and 2007/2008. Counsel for the respondent informed the court at this hearing that the last amendment to s 106 of that legislation was in 1996, which was before the first of the rate period notices was issued and the legislation also applied as at 5 October 2007, which was after the last rate period notice issued. Section 106 deals with the power of a local government to make pan charges. As a matter of common sense it seems to me that this clearly applies in relation to receptacles in the sense that a pan is a receptacle for the receipt of waste, such waste obviously taking a variety of forms. Insofar as the appellant disputes a waste management fee or charge in relation to a bin fee in his counterclaim, it seems to me that the local government pursuant to s 106(1) of the Health Act was authorised to make an annual charge in relation to the provision of such a service. Section 106(1) speaks of a charge per pan or other receptacle and as previously noted a rubbish bin is a receptacle for waste as is a pan, though of course the nature of the waste collected is different. 84 Section 41 of that legislation speaks of a sanitary rate authorising a local government from time to time to make and levy or cause to be collected an annual rate for the purposes of providing for the proper performance of all or any of the services mentioned in s 112, and the maintenance of any sewerage works constructed by local government (Page 30)
under Pt IV. It then sets out two methods whereby such a rate may be calculated and places a cap on each one. The final paragraph of s 41 states that the local government in certain circumstances is authorised to exempt particular land from assessment of the annual rate made and levied under s 41, but in lieu of such annual rate the local government may, in respect of such land make an annual charge under and in accordance with s 106 for the removal of refuse from such land. The two sections just mentioned are the equivalent of s 66 and s 67 of the WARR Act. For that reason the particular charges disputed by the appellant were validly imposed by the local authority which by virtue of s 6.57 of the LG Act was entitled to cover the amounts in question, even if in the event that there was a failure by it to comply in respect of the rate or service charge provision of the LG Act. 85 At this hearing the appellant raised an argument in relation to one issue which I had some difficulty in following and that concerned s 66 and s 67 of the WARR Act insofar as they speak of 'a rate'. He submitted that s 66 clearly identified two methods by which the annual rate in relation to waste collection was to be calculated and not exceeded. The appellant's understanding is that rate, whatever it was, could not be an across the board rate applied equally to all ratepayers. According to the appellant pursuant to s 66 the local government were not imposing a rate, rather they were imposing in his words 'an equal amount across the board to every property on the basis of it is a rateable property' rather than addressing the value of the property which in his argument the local authority were not authorised to do. When it was pointed out to him that s 67(8) refers to charges rather than rates the appellant argued that this only authorised a local government to make a charge, but did not authorise its imposition on the appellant or anyone else. He maintained that this could only be done under a local law made by a local authority. He maintained that the respondent, pursuant to s 66 of the WARR Act, had the authority to make a charge but not to impose it and they were confined to striking a rate on the gross rental value or unimproved value of the property in question. Unless that process is followed according to the appellant he is not required to pay any monies to the respondent. His point, it seems, is that a local authority is not authorised to make a charge, rather, they must make a rate on the basis of the calculation provided in the relevant legislation. According to the appellant that was not done in this case, rather the respondent had simply in effect said that all rateable properties would be charged the same sum. 86 In response to this counsel for the respondent submitted, correctly in my view, that s 66 of the WARR Act is clear in its intent and wording. (Page 31)
It provides for the imposition on rateable land within the district an annual rate relevant to the provision of all or any way the service is provided. It then sets out two methods of calculation upon which such a rate must be based. It seems to me correct to interpret this as meaning that the method of calculation simply provides a minimum and maximum value, and any rate charged must fall somewhere within that range. This may well mean that a person in the position of the appellant may be in a position where they cannot know or see how the rate with respect to their individual property has been calculated, but I accept that if the rate arrived at and imposed on rateable land within its district falls within the parameters referred to in s 66(2) then it does not render the imposition of the waste collection rate invalid. 87 For the reasons contained in this judgment I am not persuaded that the appellant has established any of his grounds of appeal and so the appeal is dismissed. I will hear counsel as to the orders which are sought on behalf of the respondent.
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