Boensch v City of Parramatta Council

The background

1. The applicant is involved in operating a motor vehicle repair business within the local government area of the respondent. The respondent alleges that it has received complaints about the numbers of motor vehicles parked in adjacent streets.
2. In June 2023, officers of the respondent placed stickers on certain motor vehicles parked in the vicinity of the repair business. Each sticker, which was expressed to be a notice of intent to remove the vehicle for the purposes of the Unattended Property Act, was addressed to the owner of the vehicle. It advised that the respondent considered on reasonable grounds that the vehicle may have been abandoned and that the respondent might cause the vehicle to be impounded or disposed of if the vehicle was not removed within a specified period.
3. In July 2023 and October 2023, officers of the respondent sent letters to Loreco Pty Ltd and an individual on the basis that they were responsible persons for the motor vehicles. Each letter indicated it was a notice of the respondent's intention to take possession of the specified unattended vehicles pursuant to s 25 of the Unattended Property Act.
4. The applicant was also sent a letter dated 31 October 2023 responding to concerns he had expressed about the intention to take possession of the motor vehicles. The letter stated that the respondent intended to take possession after having given the applicant ample time to remove the vehicles. The letter alleged that the applicant had personally claimed to be the owner or person in charge of the vehicles. The letter advised the applicant to remove the vehicles by 5pm on 27 November 2023 if he wished to maintain possession of them.
5. The applicant's review application was lodged on 15 December 2023. The application seeks an administrative review of what is described as an erroneous "executive order" made by the respondent to take possession of the motor vehicles. The respondent has agreed not to remove the motor vehicles pending the determination of the application by the Tribunal.

Powers of authorised officers to deal with unattended motor vehicles

1. Pt 3, Div 3 of the Unattended Property Act sets out the powers of authorised officers to deal with unattended items, including unattended motor vehicles. The Division provides as follows: Division 3 Items 25 Authorised officers may take possession of items (1) An authorised officer may take possession of an item if the officer reasonably believes - (a) the item is unattended, and (b) the item - (i) is obstructing access to or within a public place, or (ii) poses a risk to persons, animals or the environment, or (iii) is interfering with public amenity, or (iv) has been in the same or substantially the same place for - (A) the period prescribed by the regulations, or (B) if no period is prescribed by the regulations - 7 days or more, or (v) is unattended in another circumstance prescribed by the regulations including, for example - (A) the item is in a public place in contravention of a code of practice prescribed by the regulations that applies to items of that class, or (B) the item does not comply with a standard prescribed by the regulations. (2) If the unattended item referred to in subsection (1) is a motor vehicle, the authorised officer may, without or before taking possession of the vehicle, enter the vehicle for the purpose of identifying the responsible person for the vehicle. (3) The regulations may provide for additional matters in relation to authorised officers taking possession of items, including - (a) the matters to be considered by authorised officers in forming a reasonable belief items are unattended, including, for example, having regard to guidelines prescribed by the regulations, and (b) other conditions that must be satisfied before authorised officers may take possession of items generally or a class of items, and (c) matters about giving notices in relation to taking possession of items. 26 Powers of authorised officers in relation to items taken into possession (1) If an authorised officer takes possession of an item under this Division, the authorised officer must - (a) move the item to a place in the same general area in which it was left unattended so the item is no longer - (i) obstructing access to or within a public place, or (ii) posing a risk to persons, animals or the environment, or (iii) interfering with public amenity, or (b) move the item to a place of storage, or (c) deal with the item as prescribed by the regulations. (2) The regulations may provide for additional matters relating to the functions of authorised officers in relation to items the officers have taken into possession, including - (a) action that may be taken in relation to items in the possession of authorised officers, including preventing owners of, or responsible persons for, the items removing or otherwise interfering with the items, and (b) requirements for action to be taken after items are in the possession of authorised officers, and (c) creating offences for removing or otherwise interfering with items that have been taken into possession by authorised officers, including removal or other interference by owners of, or responsible persons for, items. 27 Powers of authorised officers in relation to items not taken into possession (1) This section applies if an authorised officer reasonably believes an item is unattended but it is not necessary to take possession of the item. (2) The authorised officer may - (a) move the item to another place in the same general area so that the item does not - (i) obstruct access to or within a public place, or (ii) pose a risk to persons, animals or the environment, or (iii) interfere with public amenity, or (b) return the item to the owner of the item. (3) The regulations may provide for additional matters relating to dealing with items that are not taken into the possession of authorised officers, including requirements about notices to be given to owners of, and other responsible persons for, the item.
2. The following definitions are relevant for Pt 3, Div 3 in its application to the respondent and motor vehicles: 1. An authorised officer is defined to mean a person appointed by an authority to exercise the functions of an authorised officer: Unattended Property Act , Dictionary (definition of "authorised officer"). 2. An authority is defined to be a public authority or local authority prescribed by the regulations as an authority for a particular place or class of places: Unattended Property Act, Dictionary (definition of "authority"). The respondent is prescribed as the authority for its local government area: Public Spaces (Unattended Property) Regulation 2022 (NSW) (Unattended Property Regulation), s 23 and Sch 2, s 4. 3. The term "items" is defined to include class 3 items: Unattended Property Act, s 9. A class 3 item is, in turn, defined to be a motor vehicle: s 8. A motor vehicle is defined to include a trailer: Dictionary (definition of "motor vehicle"). 4. The term "unattended", in relation to property, is defined to mean the property is not under the direct control or supervision of the responsible person: Unattended Property Act, s 16. 5. A responsible person is defined to include, among other persons, the owner of the property or another person who is in control or possession, or entitled to possession, of the property: Unattended Property Act, s 15 (1). For motor vehicles, the term includes their registered operators or last registered operators if they are unregistered: Unattended Property Act, s 15(2); Unattended Property Regulation, s 7.
3. It will be seen that Pt 3, Div 3, when applied to a motor vehicle, confers powers by reference to whether an authorised officer takes possession of the vehicle. The powers conferred on an authorised officer by s 27 to deal with the motor vehicle without taking possession of it are different from the powers under s 26 if possession is taken under s 25. In particular, s 27 does not include the power to move the vehicle to a place of storage, but it does include the power to return the vehicle to its owner. However, s 26 does not include a power to return the vehicle, but it does include the power to move the vehicle to a place of storage.
4. Although s 26 does not provide a power to return the vehicle where it that has been taken possession of by an authorised officer, Pt 4 of the Unattended Property Act makes special provision for when it can be returned. Section 30 enables a person to apply for the vehicle's return to the authority that appointed the officer. The section requires the authority to return the vehicle on the payment of a fee if the applicant is the owner of the property (or authorised to claim the property on the owner's behalf) or is otherwise entitled to lawful possession. Section 32 provides that an authority must arrange for property taken possession of by an authorised officer appointed by the authority to be disposed of if the property is not returned before the deadline for return.
5. Significantly, both ss 26 and 27 confer a power to move the motor vehicle to another place in the same general area where the vehicle was left unattended if it is causing a particular kind of obstruction, risk or interference. This power is therefore available regardless of whether possession is taken.
6. The Unattended Property Regulation prescribes requirements (including for the giving of notices) in connection with the exercise of powers under s 25 and 27 of the Unattended Property Act. The requirements for s 25 are prescribed on the basis of the regulation-making powers conferred by s 25(3)(b) and (c).
7. Section 9 of the Unattended Property Regulation makes provision for requirements before possession can be taken of an item under s 25 of the Unattended Property Act. In summary, it provides for the following: 1. An authorised officer must give a written notice to the responsible person for an item (or attach the notice to the item if the officer is unable to readily identify a responsible person for the item) before taking possession of the item if: 1. the item is a class 1 item or a class 2 item (a motor vehicle is, as mentioned above, a class 3 item) and possession is being taken under s 25(1)(b)(i) or (ii) of the Act, or 2. possession is being taken under s 25(1)(b)(iii) or (iv) of the Act. 1. The notice must: 1. indicate that the authorised officer believes the item is unattended, and 2. must specify a time and date at which, if the authorised officer believes the item is unattended, the authorised officer may take possession of the item. 1. The time and date specified in the notice must be after the end of the relevant period for the item. The relevant period for an unattended motor vehicle is: 1. for an unregistered vehicle - 3 days, or 2. for a registered vehicle unable to be legally driven because of its physical condition - 3 days, or 3. for another registered vehicle - 15 days. 1. The authorised officer must believe the item is unattended at the specified time and date in order to take possession.
8. The letter sent by the respondent to the applicant (along with the other letters sent) indicate the respondent's intention to take possession of the motor vehicles concerned on or after the specified time and date because the respondent's officers believed they were unattended. It appears that the letters complied in substance with the requirements of s 9 of the Unattended Property Regulation. The applicant's review application and submissions on jurisdiction also proceed on the basis that they were sufficient notices of the intention to take possession but were wrong in stating the vehicles were unattended.

Jurisdiction of the Tribunal generally

1. Jurisdiction is the authority of a court or tribunal to decide a case: Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365; [2004] HCA 20 at [6] (Gleeson CJ and McHugh J). It is a judicially enforceable duty of a court or tribunal to comply with the limits of its own jurisdiction: Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216; [2022] HCA 16 at [21] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ). A decision made by a tribunal that does not have jurisdiction to make it is a nullity: Attorney-General for New South Wales v Mayas Pty Ltd (1988) 14 NSWLR 342 at 357 (McHugh JA with whom Hope JA agreed)
2. The jurisdiction of the Tribunal is based on legislation. Section 28(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) provides that the Tribunal has such jurisdiction as may be conferred or imposed on it by or under the NCAT Act or any other legislation.
3. Administrative review jurisdiction is one of the kinds of jurisdiction conferred on the Tribunal: NCAT Act, s 28(2). The Administrative Decisions Review Act 1997 (NSW) (ADR Act) provides for the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator: NCAT Act, s 30 (1).
4. Section 9(1) of the ADR Act provides that the Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under the ADR Act of the decision (or class of decisions) made by the administrator in exercise of functions conferred or imposed by or under, or identified by, legislation.
5. Section 8(1) of the ADR Act defines an administrator, in relation to an administratively reviewable decision, to mean the person or body that makes (or is taken to have made) the decision under enabling legislation.
6. Section 4(1) of the ADR Act defines enabling legislation to mean legislation (other than the ADR Act or any statutory rules made under the ADR Act) that: 1. provides for applications to be made to the Tribunal with respect to a specified matter or class of matters; or 2. otherwise enables the Tribunal to exercise functions with respect to a specified matter or class of matters.

Jurisdiction of the Tribunal under Unattended Property Act

1. Section 34 of the Unattended Property Act confers administrative review jurisdiction on the Tribunal for the purposes of both the NCAT Act and ADR Act. It provides as follows: 34 Responsible persons for property may apply to Civil and Administrative Tribunal for administrative review (1) The responsible person for property that has been taken possession of under this Act, or a person issued with a direction under this Act, may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision to - (a) take possession of the property, but only on the ground that taking possession of the property was unlawful, or (b) issue the direction, but only on the ground that issuing the direction was unlawful. (2) The responsible person for property that has been taken possession of under this Act may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of an amount required to be paid for the return of the property, whether to an authority or an occupier of private land, but only on the ground the amount - (a) has been improperly charged or incorrectly calculated, or (b) is excessive. (3) An application may not be made under this section until the responsible person for the property has given the authority or occupier written notice the responsible person intends to apply to the Civil and Administrative Tribunal. (4) If notice of intention to apply to the Civil and Administrative Tribunal is given, the authority or occupier must not sell or otherwise dispose of the property until - (a) the time limit for an application has expired and an application has not been made, or (b) if an application is made - (i) the application has been finally determined, or (ii) the application has been refused or withdrawn. (5) Subsection (4) does not affect the operation of section 22. (6) An authority or occupier may return property in the authority's or occupier's possession pending the determination of an application. (7) The return of property under subsection (6) does not affect a right of recovery the authority or occupier may have under this Act.
2. The respondent submits that the Tribunal does not have administrative review jurisdiction under s 34(1) over property unless possession has been taken of the property under the Unattended Property Act. The respondent submits that this precondition for jurisdiction has not been satisfied in relation to the motor vehicles concerned because giving a notice of an intention to take possession of them does not, without more, constitute taking possession of the vehicles.
3. The principal focus of the applicant written submissions in reply is to reiterate his contention that the respondent lacks lawful power to take possession of the motor vehicles under the Unattended Property Act because they are lawfully parked and not unattended. This is, however, a submission about the merits of the respondent's proposal to take possession. The Tribunal can consider the merits only if it has jurisdiction to deal with the applicant's review application. In relation to the issue of jurisdiction, the applicant submits that s 34(1) permits an administrative review application to be made in respect of a decision. This extends, in his submission, to "a 'decision' to take action (possession or otherwise)". He submits that the wording in s 34(1) does not state that the property had to be taken possession of "already".

When is property taken possession of under the Unattended Property Act?

1. I agree with the respondent's submission that it is a precondition for making an administrative review application under s 34(1) of the Unattended Property Act that "property has been taken possession of under [the] Act". This expression limits which responsible persons may apply to the Tribunal. It is true, as the applicant submits, that s 34(1) does not expressly state that the possession had to be taken "already". Nevertheless, the use of the present perfect tense "has been taken" suggests possession was both taken and continues to be with the person who took it.
2. Nevertheless, these submissions invite closer attention to the meaning of the expression "property has been taken possession of under [the] Act" and, in particular, to what is meant by possession. This is because the term "possession" is not directly defined by the Unattended Property Act.
3. The term "possession" has multiple meanings. As McHugh J noted in Western Australia v Ward (2002) 213 CLR 1; [2002] HCA 28 at [478]: "Few terms in law are as difficult to define as 'possession'. What it means in one branch of the law may be different from what it means in another branch of the law. The policy behind particular branches of the law has always played a part in determining what constitutes 'possession' for the purposes of those branches."
4. The following four possible meanings of possession are noted in Halsbury's Laws of Australia, 315-Personal property at [315-145]: 1. Actual possession. This kind of possession (sometimes called de facto possession) requires a person to have effective occupation or control over the property in a practical sense: at [315-150]. Actual possession may be acquired by the physical taking or receiving delivery of the property provided there is an intention to possess it: at [315-160]. 2. Legal possession. This kind of possession involves a person being in possession in the "eyes" of the law and is ordinarily based on actual possession but may exist without it such as when a person's employee or agent has physical custody of the property on behalf of the person: at [315-165]. A person with legal possession is presumed to be the owner of the property unless someone else can show a better title: at [315-170]. 3. Right to possession. This kind of possession involves a person having a legally enforceable right to have actual possession: at [315-175]. 4. Constructive possession. This kind of possession involves a person having legal possession without actual possession or having a right to possession without having actual or legal possession: at [315-180].
5. Ultimately, the intended meaning of the term "possession" depends on the context in which it is used: Williams v Douglas (1949) 78 CLR 521 at 526; [1949] HCA 40 (Latham CJ, Dixon and McTiernan JJ). When used in a statute, the relevant context is broad. As Brennan CJ, Dawson, Toohey and Gummow JJ held in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2: "[T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy." This modern approach to statutory interpretation is also reflected in the Interpretation Act 1987 (NSW) (Interpretation Act). Section 33 of the Interpretation Act requires a statute to be interpreted in a way that promotes the purpose or object underlying the statute whether or not that purpose or object is expressly stated in the statute. Section 34 of the Interpretation Act permits the use of material extrinsic to a statute to confirm the meaning of a provision or to determine the meaning of a provision that is ambiguous or whose ordinary meaning is manifestly absurd or unreasonable.
6. For the following reasons, the context in which the term "possession" is used in s 34(1) of the Unattended Property Act indicates that the term is limited to a form of actual possession: 1. The term "possession" is used in s 34(1) as part of the expression "property that has been taken possession of under [the Unattended Property] Act". This mirrors the language used in s 25(1), where authorised officers "may take possession of an item". The use of the words "taken" and "take" suggests the need for positive action by an authorised officer to obtain possession: cf Commissioner of State Revenue v Oakbee Pty Ltd [2013] VSC 672 at [48]-[49] (Ginnane J). 2. Section 12 (1) provides that an authorised officer or an occupier of private land: (1) has possession of property as soon as the officer or occupier takes possession of the property under the Unattended Property Act; and (2) continues to have possession of the property until the property is returned or disposed of under the Act. Similarly, s 34(6) provides that an authority or occupier may return property in the authority's or occupier's possession pending the determination of an administrative review application under s 34. Also, s 36 requires an authority to return property if the Tribunal sets aside the decision to take possession of the property. These provisions presuppose the authorised officer, authority or occupier will have actual control over the property to allow it to be returned or disposed of. 3. As the respondent points out in its written submissions, it is important to note the differences between the powers under s 25 (read with s 26) and s 27. As mentioned above, s 25 enables an authorised officer to take possession of an unattended item and s 26 then provides for how the authorised officer may deal with the item. Section 27, on the other hand, enables an authorised officer to deal with an unattended item without taking possession of it. Both ss 26 and 27 allow an authorised officer to move an item to another place in the same general area where the item was left unattended if it is causing a particular kind of obstruction, risk or interference. This suggests that the taking of possession under the Unattended Property Act needs to be an action for a purpose involving something more than moving an item to another place in the same general area. The action of taking control of the item for the purpose of moving it to a place of storage is an example of something sufficient to constitute possession because it is mentioned in s 26 but not in s 27. Another example might be taking action to immobilise the item for the purpose of preventing the item being used. The actions in both these examples involve an authority or its officers taking actual control of an item in a way that imposes a substantial and continuing practical restriction on the capacity of a responsible person to directly control or supervise the item: cf s 15 (definition of "responsible persons").
7. It is an accepted principle of statutory interpretation that an ambiguous provision should be given a broad construction so as to effectuate a beneficial purpose it is intended to serve: R v Kearney; Ex parte Jurlama (1984) 158 CLR 426 at 433; [1984] HCA 14 (Gibbs CJ). A related principle is that a statutory provision conferring a power to be exercised judicially should be construed as liberally as its terms and context permit: PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301 at 313; [1995] HCA 36 (Brennan CJ, Gaudron and McHugh JJ). It might be argued that these principles should be applied to s 34 because it is a beneficial provision enabling the Tribunal to conduct a review that is cheaper and easier for aggrieved persons to use than judicial review proceedings.
8. However, both principles must yield to the language of s 34 read in context. That context, in addition to the context mentioned above, includes the objects of the Unattended Property Act. Section 3(a) provides that one of the objects of the Act is to encourage persons responsible for property to act quickly and responsibly to mitigate risks to access, safety and amenity that may arise from the property being left unattended.
9. As we have seen, giving a responsible person for unattended property a notice that specifies a time and date for taking possession is generally a precondition for taking possession. Giving such a notice may well encourage the responsible person to take action concerning the property before the specified time and date, which would avoid the need for an authorised officer to take possession of the property and then deal with it in accordance with the special provisions of the Unattended Property Act. To construe s 34 as extending to situations where only a notice has been given would discourage responsible persons from acting quickly and responsibly in relation to unattended property. Such a construction would impede rather than promote the object mentioned in s 3(a) of the Unattended Property Act.
10. For all these reasons, s 34 of the Unattended Property Act does not in my view permit an administrative review application to be made to the Tribunal concerning property unless an authority or its officers have taken sufficient action to obtain actual possession of the property. Action will be sufficient if the authority or its officers take actual control of the property in a way that imposes a substantial and continuing practical restriction on the capacity of a responsible person to directly control or supervise the property. The giving of a notice of intention to take possession of property does not have this effect. Consequently, it is insufficient action on its own to constitute the taking of possession for the purposes of making an administrative review application.

Conclusion

1. It follows that the Tribunal does not have jurisdiction to deal with the applicant's review application because neither the respondent nor its officers have taken possession of the motor vehicles specified in the notice of intention letters sent by the respondent.
2. In these circumstances, the appropriate order for the Tribunal to make is to dismiss the applicant's review application because the Tribunal does not have jurisdiction to deal with the application. It is unnecessary for me to decide whether the power of dismissal is conferred by s 55(1)(b) of the NCAT Act or is based on an implied power of the Tribunal to do what is necessary to ensure it acts within jurisdiction: cf FTN v Ombudsman NSW [2024] NSWCATAD 111 at [94]-[96].

Order

1. The Tribunal orders that the application is dismissed because the Tribunal does not have jurisdiction.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 May 2024