Boensch v City of Parramatta Council

1. In addition to animals, the Unattended Property Act refers to various classes of property. A motor vehicle is a "class 3 item": s 8.
2. Section 25 of the Unattended Property Act gives an "authorised officer" the power to take possession of items, including class 3 items. Class 3 items are defined to be motor vehicles: s 8. An authorised officer is defined in Schedule 3 to mean a person appointed by an authority to exercise the functions of an authorised officer. The Council is prescribed as the authority for its local government area: Public Spaces (Unattended Property) Regulation 2022 (NSW) (Unattended Property Regulation), cl 23 and Sch 2, cl 4. Certain conditions must be met before an authorised officer can take possession of an item. These include that the item is unattended and:

(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 -

1. the period prescribed by the regulations, or
2. if no period is prescribed by the regulations - 7 days or more.

1. 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: s 16.
2. Section 26 provides that, if an authorised officer takes possession of an item, 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.

1. Section 12 of the Unattended Property Act deals with when an authorised officer has "possession" of property. It provides:

(1) For this Act, an authorised officer or an occupier of private land:

(a) has possession of property as soon as the officer or occupier takes possession of the property under this Act, and

(b) continues to have possession of the property until the property is returned or disposed of under this Act.

(2) Property does not have to be taken to a place of care or place of storage for it to be taken possession of for the purposes of this Act.

1. An authorised officer who reasonably believes that an item is abandoned does not necessarily have to take the item into possession. Section 27 provides that, if an authorised officer reasonably believes an item is unattended but it is not necessary to take possession of the item, 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.

1. Before an authorised officer can take possession of an item notice must be given to the person responsible for the item or, if the authorised officer is unable to readily identify a responsible person for the item, by attaching it to the item: cl 9(5) Unattended Property Regulation. Clause 9 sets out what is required to give proper notice. There is no dispute that the letters sent by the Council, including the notice of 31 October 2023, complied with the requirements of cl 9 in relation to class 3 items.
2. Also of relevance to the appeal is s 28 of the Unattended Property Act. That section applies if (a) an authorised officer becomes aware of unattended property, and (b) the officer is able to identify the responsible person for the property. In those circumstances the authorised officer may give the responsible person a written notice directing the person to:

(a) remove the unattended property, or

(b) prevent the property becoming unattended again.

1. Under s 34(1) of the Unattended Property Act a "responsible person for property that has been taken possession of under this Act" may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (NSW) 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.

1. Other review rights given to a responsible person for property under s 34 are not relevant for present purposes.
2. An application for review cannot be made, however, until the responsible person for the property has given the authority or occupier (defined in Schedule 3 of the Act to be a public authority or occupier of land) written notice the responsible person intends to apply to the Tribunal: s 34(3). Under s 35(1) the time limit for making an application for an administrative review of a decision to take possession of property is 28 days from the date on which the responsible person for the property was notified possession had been taken. If no notice has been given that possession of the property has been taken, there is no time limit for the making of an application: s 35(2). Section 35 does not contain any provision concerning the time limit for making an application to the Tribunal for review of a decision to issue a direction as provided for in s 34(1)(b). Although it can be assumed that the default period of 28 days as prescribed by cl 24 of the Civil and Administrative Tribunal Rules 2014 (NSW) applies.

1. In its decision the Tribunal referred to letters sent to Lereco Pty Ltd, Mr Pearson and Mr Boensch in July and October 2023. While the Tribunal held it had no jurisdiction to review the decision sought to be reviewed, it did not specify what that decision was. What decision is sought to be reviewed is relevant to the ground of appeal raised by Mr Boensch in this appeal and which is addressed below.
2. At [19] of the decision, the Tribunal stated:

"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."

1. In its submissions on the appeal the Council refers to letters issued by the Council dated:

(a) 11 July 2023 addressed to Franz Boensch

(b) 11 July 2023 addressed to Lereco Pty Ltd

(c) 31 October 2023 addressed to Franz Boensch

(d) 31 October 2023 addressed to Robert Pearson.

1. The Council refers to these collectively as "the Notices" and states they represent the decision which Mr Boensch seeks to be reviewed. This it says is consistent with [19] of the Tribunal's decision. We note that [19] is concerned with whether the letters or notices sent complied with the requirements set out in cl 9 of the Unattended Property Regulation. We do not consider that that paragraph reflects any statement of what the decision under review is.
2. For the reasons below, we consider that the decision sought to be reviewed by Mr Boensch is the decision of 31 October 2023 which was a Notice of Proposed Possession of motor vehicles issued to Robert Pearson (in relation to which vehicles Mr Boensch claimed to be the person responsible). On 24 November 2023 Mr Boensch wrote to the Council stating that, in accordance with s 34(3) of the Unattended Property Act he was giving notice of his intention to appeal to the Tribunal. He referred to the Council's Notice of Intent to take possession on or after 27 November 2023 of vehicles referred to in "communication SR600249". The 31 October 2023 Notice of Proposed Possession of several specified vehicles was issued to Robert Pearson and contained the reference SR600249. The Notice stated that it was made pursuant to s 25 of the Unattended Property Act, referred to the provisions of s 25 and stated:

"Consequently, Council now hereby notifies you that should the vehicle/s remain unattended in the above location after 5pm Monday 27 November 2023, council will take possession of the items without further notice."

1. Also on 31 October 2023 the Council wrote to Mr Boensch in response to earlier correspondence from him. The correspondence noted that Mr Boensch had advised Council that he was the owner or person in charge of the vehicles. The letter stated:

"Please note that we intend to take possession of these items without further notice. Should you wish to maintain possession of these items please remove them by 5pm 27 November 2023 from the public domain ..."

1. In his application to the Tribunal, in which he also sought an "urgent interim injunction", Mr Boensch referred to the "Executive Orders" of 31 October 2023 quoting reference number 600249.
2. All these matters indicate that the decision sought to be reviewed was the notice of 31 October 2023 notifying that Council would take possession of the vehicles after 5pm on 27 November 2023. That this is the decision sought to be reviewed is implicit in various paragraphs of the Tribunal's decision, for example, [1] and [2], although it is not specifically stated to be such.
3. We note that at the hearing of the appeal the Council, contrary to its earlier submissions, expressed the view that the decision under review is the notice of 31 October 2023.

1. After setting out the background to the application and the relevant legislative provisions, the Tribunal turned its attention to the submissions which were made by the Council 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 Council submitted that the precondition for jurisdiction had 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.
2. The Tribunal held 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". The Tribunal then noted that the term "possession" is not directly defined by the Unattended Property Act and that it is a term that has multiple meanings. The Tribunal referred to Halsbury's Laws of Australia 315-Personal property at [315-145] where four possible meanings of possession are noted: actual possession, legal possession, right to possession and constructive possession.
3. The Tribunal referred to principles of statutory construction and noted that, ultimately, the intended meaning of the term "possession" depends on the context in which it is used. The Tribunal also referred to s 33 of the Interpretation Act 1987 (NSW) which 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.
4. The Tribunal held that 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 for the following reasons:

(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) The differences between the powers under s 25 (read with s 26) and s 27 are important. Section 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.

(4) 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.

(5) 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.

(6) 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").

1. The Tribunal noted that it might be argued that s 34 should be interpreted broadly 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. The Tribunal noted that one of the objects in s 3(a) of the Unattended Property 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. The Tribunal stated that 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.
2. The Tribunal's view was that s 34 of the Unattended Property Act does not 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. As a result, the Tribunal held that it does not have jurisdiction to deal with Mr Boensch's review application because neither the Council nor its officers had taken possession of the motor vehicles specified in the notice of intention.

1. As was stated in Commissioner of Police, NSW Police Force v FYH [2024] NSWCATAP 176 at [22] a decision to dismiss an application, based on the contention that the Tribunal lacks jurisdiction (or authority) to decide the matter, is an ancillary decision. Section 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) provides that an internal appeal from a decision of the kind in this appeal can be made as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.
2. There are several important cases relevant to the construction of s 80 of the NCAT Act. In Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [24]- [40], the Appeal Panel set out the principles concerning questions of law within s 80 of the NCAT Act.
3. The Appeal Panel there said, inter alia, that (citations omitted):

(1) Absent leave to appeal, the question of law is the subject matter of the appeal.

(2) The question of law should be articulated with precision.

(3) A question of law means a pure question of law.

(4) A "pure question of law" does not depend on facts not found.

(5) A mixed question of fact and law is not a question of law.

(6) An appeal is "on" any question of law: s 80(2) of the NCAT Act. The question of law must not be hypothetical or arid.

(7) An appeal is against orders and not reasons. Therefore, the question of law must be capable of affecting the orders the subject of the appeal.

1. Recently in Donohoe v Albulario [2025] NSWSC 9 Basten AJ stated that in construing the phrase "question of law" statements of principles are less likely to be of assistance than close attention to the nature of the issue identified by the appellant and the statutory context in which the appeal arises: at [30]. Relevantly, he stated that the specific question of law which arose in the proceedings must be identified. Furthermore, the question of law must be one which gives rise to an error in the sense that there is a causal or dispositive connection between the legal issues sought to be raised and the outcome of the case: at [31]-[32].
2. Mr Boensch states that the Tribunal failed to consider one of the grounds of his application concerning the Tribunal's jurisdiction in s 34(1) of the Unattended Property Act. He notes that the Tribunal's jurisdiction of the Tribunal under s 34(1) arises in two circumstances. First where the property in question has been taken possession of under the Unattended Property Act and, secondly, where a person has been issued with a direction. Mr Boensch submits that the Tribunal failed to consider the second situation and thus fell into error. We are satisfied that an error as to jurisdiction raises a question of law.
3. Mr Boensch also argues that the Council had no power to take any action against the vehicles in question as the vehicles were not unattended within the meaning of the Unattended Property Act. This, however, is a matter which goes to the lawfulness of the Council's actions and, as the Tribunal noted in its decision, goes to the merits of the application and not to whether the Tribunal has jurisdiction to determine the application.

1. In his appeal submissions Mr Boensch does not contend that the Tribunal made an error in respect of its determination on jurisdiction under the first limb of s 34(1) with regard to the taking of possession of the motor vehicles. That is, he appears to accept that the Tribunal's jurisdiction is only enlivened once the Council has actually taken possession of the motor vehicles specified in the notice of intention. Mr Boensch's submissions focus on the second limb of s 34(1) concerning the giving of a direction which does not require possession of the property before the Tribunal has jurisdiction to review the decision.
2. We note that in this matter there was no oral hearing before the Tribunal and the question of jurisdiction was considered on the basis of the written materials filed by the parties. Both parties in their written submissions to the Tribunal referred to that part of s 34(1) dealing with the giving of a direction.
3. In his submissions Mr Boensch stated that a question to be decided by the Tribunal was whether the Council had issued a direction or order to remove the vehicles (which he contended were not unattended property). Mr Boensch referred to the stickers placed on a number of vehicles in June 2023 and to the letters sent in July and October 2023 to himself, Robert Pearson and Lereco Pty Ltd which were headed "Notice of Proposed Possession of Motor Vehicle - pursuant to section 25 of Public Spaces (Unattended Property) Act 2021". Mr Boensch submitted that the stickers and letters contained a direction either actual or implied which brought them within the second limb of s 34(1).
4. In its submission the Council submitted that the reference in s 34 is plainly a reference to a direction under s 28 of the Unattended Property Act. In its submission, neither the stickers placed on the items by the Council nor the letters sent could be interpreted as a direction under s 28 of the Act.
5. It is clear that the issue of whether jurisdiction arose under the second limb of s 34(1) was not referred to in the Tribunal's decision. Mr Boensch contends this amounts to an error of law while the Council submits that the Tribunal did not have to address the issue of whether a direction had been given as the issue simply did not arise on the facts before the Tribunal.
6. At issue is whether, due to its failure to consider the submissions of Mr Boensch on the second limb of s 34(1) there was on the part of the Tribunal a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088. The answer to that question must surely be yes. The Council contends that, on the facts, the issue did not arise, but, having been squarely put, the Tribunal was required to address the question of whether the Tribunal had jurisdiction to deal with Mr Boensch's application under s 34(1) of the Unattended Property Act on the basis of both taking possession and issuing a direction.
7. We accept that the Tribunal made an error on a question of law. We also accept that the constructive failure to exercise jurisdiction was material to the outcome. If the Tribunal had decided that the Council had issued a direction to Mr Boensch then it would have been seized of jurisdiction and determined the matter on its merits.
8. In determining how to dispose of the appeal we have paid due regard to the guiding principle in s 36 of the NCAT Act, by deciding that we will determine the outstanding jurisdictional issues necessary in order to finally determine the issue of jurisdiction as we are permitted to do by s 81(2) of the NCAT Act. We think this is preferable to remitting the proceedings for further hearing and consistent with the instruction in s 36(4) that:

(4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings.

Does the Tribunal have jurisdiction to deal with the application?

1. It was not argued before us that the Tribunal made an error in its determination that it lacked jurisdiction under the first limb of s 34(1) of the Unattended Property Act with respect to property taken into possession. For the sake of completeness we note that we agree with the Tribunal's reasoning in this regard.
2. In its decision the Tribunal did not distinguish between the two limbs of s 34(1) and indeed, as noted above, did not refer at all to the second limb. We do not however, read the Tribunal's reasons for decision as meaning that a precondition for applying to the Tribunal under both limbs is that the property must have been taken possession of under the Act. It is clear from wording of s 34(1) that no such requirement applies to a direction.
3. The matters that Mr Boensch seeks to categorise as a "direction" are contained in the stickers placed on the vehicles in June 2023 and in the letters or notices issued in July and October 2023.
4. Mr Boensch states that the stickers and the letters/notices refer to a request that, if the vehicles were not removed within a certain time, then the vehicles would be taken possession of under the Unattended Property Act. He notes that it is stated in the letters/notices that there will be no further notices or warnings if the request is not complied with in the given timeframe. In his submission the request to move the vehicles within a certain time frame amounts to a direction under the Act which is able to be reviewed by the Tribunal. He submits that the direction given to him was that the vehicles had to be moved within a certain time.
5. Mr Boensch provided an example of one of the stickers. After stating that the Council considered on reasonable grounds that the vehicle may have been abandoned, the sticker contained the following:

"If the vehicle is not removed within ___7____, Council may cause this vehicle to be impounded and/or may otherwise be disposed of."

1. We take it the reference to "7" is to 7 days.
2. The July and October 2023 notices each stated that it was made pursuant to s 25 of the Unattended Property Act, referred to the provisions of s 25 and stated:

"Consequently, Council now hereby notifies you that should the vehicle/s remain unattended in the above location after 5pm Monday [relevant date], council will take possession of the items without further notice."

1. As noted above, on 31 October 2023, the same day the October notice was issued, the Council wrote to Mr Boensch in response to earlier correspondence from him. The letter stated:

"Please note that we intend to take possession of these items without further notice. Should you wish to maintain possession of these items please remove them by 5pm 27 November 2023 from the public domain ..."

1. Mr Boensch reads these quoted statements as a direction to him to remove the vehicles.
2. The direction making power given to authorised officers under the Unattended Property Act is contained in s 28 of that Act. That section relevantly provides:

28 Authorised officers may give directions to responsible persons

(1) This section applies if -

(a) an authorised officer becomes aware of unattended property, and

(b) the officer is able to identify the responsible person for the property.

(2) The authorised officer may give the responsible person a written notice directing the person to -

(a) remove the unattended property, or

(b) prevent the property becoming unattended again.

(3) To avoid doubt, subsection (2) applies whether or not the responsible person is committing an offence under this Act by leaving the property unattended.

(4) The responsible person for property must comply with a written notice given to the person under this section.

1. The Council points out that the only direction making power in the Unattended Property Act is that contained in s 28. The scope of the directions which may be made is set out in s 28(2) (as supplemented by cl 12(2) of the Unattended Property Regulation). The term "direction" is not defined in the Act but it is clear from the text of s 28 and cl 12 that an authorised officer may make a direction that a responsible person take some action, generally of a positive nature.
2. We agree with the submissions of the Council that the only directions the Tribunal can review are those made under s 28 of the Unattended Property Act. We are of the view that the stickers and notices referred to by Mr Boensch are not directions issued under s 28 of the Unattended Property Act and do not contain any directions at all.
3. The sticker is headed "NOTICE OF INTENT TO REMOVE VEHICLE" and refers to the Public Spaces (Unattended Property) Act 2021 (NSW). It does not contain any direction to do anything but advises that if the vehicle is not removed within a certain period, it may be impounded or disposed of. Each of the July and October 2023 Notices state that they are a "Notice of Proposed Possession of Motor Vehicle pursuant to section 25 of the Public Spaces (Unattended Property) Act 2021 (NSW)". The notices also do not direct that any action be taken but state that "should the vehicle/s remain unattended in the above location after [TIME] and [DATE], council will take possession of the vehicle without further notice". This is reiterated in the 31 October 2023 letter to Mr Boensch.
4. Importantly, none of the stickers, letters or notices contain any direction requiring the recipient and/or the responsible person to remove the vehicles (s 28(2)(a)) or to prevent the vehicles becoming unattended again (s 28(2)(b)). The letters/notices simply notify the recipient and/or responsible person of the Council's intention to take possession should the items remain unattended in the specified location by a specified date and time. It remains a matter for the responsible person to take (or not to take) whatever action/s necessary so that the items are not unattended to prevent the respondent from taking possession of the items.
5. As the Council points out, a notice of intention issued under s 25 of the Unattended Property Act has a different function and purpose to a direction issued under s 28. A notice of intention advises the recipient that the Council (or other authority) intends to take certain action. A direction, on the other hand, requires the recipient to take specified action and, notably, creates an offence for non-compliance.
6. We are therefore of the view that Mr Boensch has not been given any direction which would allow him to make an application to the Tribunal under s 34(1) for review of such a direction.
7. A further difficulty for Mr Boensch in relation to the stickers placed on vehicles in June 2023 and the notice of July 2023 is that any application for review of these decisions, should there be jurisdiction, is considerably out of time. Furthermore, Mr Boensch, as required by s 34(3) of the Unattended Property Act, has not given the Council notice of his intention to apply to the Tribunal for review of these decisions. As set out above, his notice of intention to apply only related to the 31 October 2023 decision.
8. In all the circumstances, while we have found that the Tribunal made an error on a question of law, the appeal must be dismissed as the Tribunal lacks jurisdiction to deal with the application under s 34 of the Unattended Property Act.

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.