Carter v Local Land Services [2025] NSWCATAD 207;

1. Section 34 of the Act provides the Applicant with rights of review of decisions of the Respondent. It reads 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(ii) the application has been refused or withdrawn.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".

1. The Applicant's right of review under s 34, first of all, requires that he be a "responsible person" within the meaning of the provision. Who is a "responsible person" for property is defined in s 15 of the Act to include "the person who owns or is otherwise responsible for the property". "Property" in turn is defined in s 13 to include an "animal" and will as such, include cattle. There was no dispute that the Applicant as the owner of the "property" in question, namely his cattle, was a "responsible person" within the meaning of the Act.
2. There was also no dispute that the Respondent had taken possession of the Applicant's cattle. Provided it had done so under the Act, the Tribunal has jurisdiction under s 34 to accept the application for review before it in these proceedings, subject to satisfaction of the requirements of s 34(3) and s 35.
3. Under s 34(3), an application may not be made under s 34 until the Applicant has given the Respondent as the relevant "authority" (see [34] below) written notice the responsible person intends to apply to the Tribunal. The Respondent did not dispute that the Applicant had provided the required notice by email on 17 February 2025.
4. 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 (s 35(1) of the Act). Notification occurred on 3 February 2025 and the review application was made on 27 February 2025, within the required 28 day period.
5. The requirements of ss 34 and 35 having been satisfied as set out above, that the Tribunal had jurisdiction to hear the Applicant's application for review was not in dispute.
6. The Tribunal's jurisdiction under s 34 is limited to review of a relevant decision to take possession of the property, only on the ground that taking possession of the property was unlawful. Whether the Respondent's taking possession of the Applicant's herd of cattle was unlawful is the question for determination by the Tribunal.
7. Administrative review must occur under the Administrative Decisions Review Act 1997 ("NSW") ("ADR Act"). The Tribunal under s 63 of the ADR Act is to determine the matter, based on the material before it, including any relevant factual material and any applicable written or unwritten law. It must decide what is the correct and preferable decision. It may decide to affirm, vary, or set aside the decision and make a substitute decision, or set aside the decision and remit the matter to the agency in accordance with any directions or recommendations of the Tribunal.

1. The question for determination is whether on the facts of the matter, the Respondent exercised their powers lawfully when taking possession of the Applicant's cattle.
2. The relevant powers of the Respondent to take possession of property are set out in s 18. It provides as follows:

"18 Authorised officers may take possession of unattended animals"

(1) An authorised officer may take possession of an animal if the officer reasonably believes -

(a) the animal is unattended, and

(b) the animal is -

(i) in a public place, or

(ii) on private land without the permission of the occupier of the land.

(2) For subsection (1), an animal is not unattended -

(a) if the animal is in a public place -

(i) in response to an invitation contained in a notice published by the public authority that owns or controls the public place, and

(ii) in accordance with any conditions stated in the notice, or

(b) if the animal is in a public place with the consent of the public authority that owns or controls the public place, or

(c) if the animal is in a public place as required or permitted by an Act or another law, or

(d) for an animal that is stock - if the animal is unattended on a road or travelling stock reserve in circumstances set out in the Local Land Services Act 2013, section 115, or

(e) in other circumstances prescribed by the regulations for this section.

(3) The regulations may provide for additional matters in relation to authorised officers taking possession of animals including -

(a) the matters to be considered by authorised officers in forming a reasonable belief animals 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 animals generally or a class of animals".

1. Section 18 relevantly allows an "authorised officer" to take possession of an animal subject to the Act. The decision under review to take possession of the Applicant's cattle was made by Ms Kimberly McQualter. That taking of possession occurred on 31 January 2025. The initial question is whether she was an "authorised officer" within the meaning of s 18 when possession was taken.
2. An "authorised officer" is defined in Schedule 3 of the Act to mean a person appointed by an "authority" to exercise the functions of an authorised officer. An "authority" in turn is defined in Schedule 3 of the Act to mean a "public authority" or local authority prescribed by the regulations as an authority for a particular place or class of places.
3. The relevant regulations are found in the Public Spaces (Unattended Property) Regulation 2022 (NSW) ("Public Spaces Regulations"). Clause 23(a) and cl 5 of Schedule 2 of these regulations specify the Respondent as a relevant authority for a "region". For the term "authority", words and expressions used in Schedule 2 are given "the same meaning as in the Act in relation to which they are used" (Regulation 23(b)). The specification of the Respondent occurs under the heading in Schedule 2: "Local Land Services Act 2013" ("LLS Act"). The LLS Act defines a "region" to mean "a region constituted by this Act". Schedule 1 of the LLS Act goes on to identify the area in which the land is located as a "region", being the "Murray" region.
4. It follows that the Respondent answers the description of an "authority" within the meaning of the Act for the region in which the land is located.
5. Ms McQualter was, on the evidence, the person who made the decision under review. Under an Instrument of Appointment (Authorised Officers and District Registrar's) 2024 dated 19 July 2024, the Respondent appointed as "authorised officers" various classes of persons, including staff members belonging to "Grade 5". Ms McQualter was a "Grade 5" staff member. The appointment was expressed to be for the purposes of carrying out functions of an authorised officer under the Act. There was no evidence to indicate that the appointment was not current as at the time of the decision under review.
6. I am satisfied that Ms McQualter was an "authorised officer" who took possession of the Applicant's cattle within the meaning of s 18.
7. Section 18 additionally requires that the animals be in a "public place" or on private land without the permission of the occupier of the land. What is a "public place" is defined in s 14 of the Act in the following terms:

14 Meaning of "public place"

(1) In this Act, a public place means a place that is open to or frequented by the public -

(a) whether or not payment for admission to the place is required, and

(b) whether or not the place is usually open to or frequented by the public.

(2) Without limiting subsection (1), a public place includes -

(a) a place dedicated or reserved for a public purpose, and

(b) a place that, although privately owned, is a place -

(i) to which members of the public are permitted to have access for the purposes of business or leisure, or

(ii) that members of the public are permitted to use as a thoroughfare.

(3) A public place does not include a place declared by the regulations not to be a public place.

1. The Respondent's evidence was that the land was open to the public and accordingly met the definition of a "public place". The Respondent's uncontradicted evidence was that the land was open to use by the general public during daylight hours. I do not think that barring public use outside daylight hours prevents the land from answering the description of land open to the public. Land can be a public place "whether or not the place is usually open to or frequented by the public". I find that the land was open to the public within the meaning of s 14 and was therefore a "public place".
2. Section 18(3) says that regulations may provide for additional matters in relation to authorised officers taking possession of animals. Clause 8 of the Public Spaces Regulations provides as follows:

8 Property belonging to homeless persons - the Act, ss 18 and 25

For the Act, sections 18(3)(b) and 25(3)(b), if an authorised officer believes a homeless person is a responsible person for an animal or item, the authorised officer must, before taking possession of the animal or item, consider -

(a) the underlying principles in the Protocol for Homeless People in Public Places published by the Department of Communities and Justice, as in force from time to time, and

(b) a policy, however described, adopted by the authority to give effect to the Protocol.

1. What is a "homeless person" is not defined in the Act or the Public Spaces Regulations. The Applicant indicated that he had no fixed address. He described an itinerant lifestyle where his wife and he would look for opportunities to mind other people's houses while they were away or otherwise live in their vehicle.
2. If the Applicant is believed to be a "homeless person" who is a responsible person for an animal, taking possession requires consideration of the applicable protocol contemplated by cl 8 of the Public Spaces Regulations and relevant policies. That protocol concerns circumstances where agencies physically approach or otherwise interact and engage with homeless persons. The protocol among other things sets out when a homeless person should be approached. The circumstances in which this should happen include cases where the "person requests assistance" or "appears to be distressed or in need of assistance".
3. I do not think that the protocol could have application in the present case even if the Applicant were a "homeless person" in the requisite sense. The protocol, in my opinion, is not intended to and does not deal with the exercise of powers by the Respondent under s 18 of the Act in taking possession of animals, where the Applicant is absent from the place from which the animals are taken. In these circumstances, I do not need to decide whether or not the Applicant was in fact a "homeless person" within the meaning of cl 8 of the Public Spaces Regulation.
4. The exercise of power under s 18 requires that the officer in question "reasonably believes" that the relevant animal is "unattended". Section 16 of the Act sets out when animals are "unattended". It says:

"16 Meaning of "unattended"

In this Act, unattended, in relation to property, means the property is not under the direct control or supervision of the responsible person".

1. It follows that cattle, being within the meaning of "property", will be unattended if they were not, at the relevant times, under the direct control or supervision of the Applicant.
2. The Respondent's evidence is that its officers attended the land on 4 separate occasions, being on 9 December 2024, 7 January 2025, 29 January 2025 and 30 January 2025. The Respondent says that the cattle in question were not observed to be in direct control or supervision of the Applicant or any other persons on those four occasions. The Respondent also says that they made repeated attempts to contact the Applicant by phone, text message and email and the Applicant could not be reached and did not communicate with the Respondent between 29 November 2024 and 30 January 2025.
3. The Respondent said that a dead cow was observed and photographed by its officers on 9 December 2024 and that it had not being removed and remained in the same location on 29 and 30 January 2025. The photographs were in evidence.
4. The Respondent also said that on 30 January 2025, a cow was observed with afterbirth hanging from her, which indicated a birth had taken place and the cow had not been tended to since the birth.
5. The Applicant disagreed with the submission that he had not attended his cattle at the relevant times. He said that he had frequently visited the land.
6. He gave evidence of telephone calls he had made when he was on the land. He also said that there was evidence of certain interactions he had with the NSW Police Force on or near the land.
7. The Applicant had procured the issue of subpoenas to both the provider of the relevant telephone services as well as to the NSW Police Force with a view to obtaining evidence from them to show his presence on the land at the relevant times.
8. The NSW Police Force informed the Tribunal that they had produced the documents requested to the Applicant on 10 May 2025.
9. Subsequently, the provider of the relevant mobile telephone services to the Applicant informed the Tribunal that it kept no recordings of telephone conversations made by its customers and therefore had no material to produce.
10. The Applicant said that the recorded video on a body worn camera provided by the NSW Police Force showed that he had attended the land where his cattle were held.
11. The determination of the matter turns on what is meant by "unattended" within the meaning of the legislation. In the Act, "unattended", in relation to "property", is defined to mean that the property, in the present instance meaning the Applicant's cattle, was not "under the direct control or supervision of the responsible person".
12. Section 15 requiring as it does "direct control" or "supervision" will, in my opinion, require more than just evidence of physical presence at the required times on the land where the cattle were kept. It will require something more that shows "direct control" or "supervision" of the cattle.
13. "Control" in its ordinary meaning means "to exercise restraint or direction over; dominate; command". "Supervision" in its ordinary meaning involves "oversight; superintendence" (The Macquarie Dictionary, online).
14. I accept the evidence of the Respondent as to what its officers observed when they attended the land and am satisfied that this evidence establishes that there was no direct "control" or "supervision" in the manner required by the Act from 9 December 2024 to 30 January 2025. The Respondent's evidence was that on four occasions, their officers attended the land and did not see any person on the land attending to the cattle. They also discovered a dead animal that remained on the site for at least 50 days and found a cow who had given birth and had not been tended. On 7 January 2025, they observed the presence of "pinkeye" in the cattle. This is a bacterial infection affecting the eyes of cattle.
15. If either direct "control" or "supervision" of the cattle had occurred in the required sense at the relevant times between early December 2024 and late January 2025, it could have been ordinarily expected that the evidence would have shown that the health of the cattle was reasonable and the cattle had been properly tended, in the absence of reasons explaining why they could not be tended despite the Applicant's control and supervision. There were no such reasons ascertainable from the evidence. These matters in my opinion, together with the absence of persons on the land at the times the Respondent's officers visited, evidence an absence of the required direct control or supervision.
16. These are all matters that, in my opinion, allowed the Respondent's officers to "reasonably believe" that the cattle were unattended at the relevant times, even if I were to accept the Applicant's evidence that he was physically present at certain times. Mere physical presence cannot be "attendance" in the statutory sense for the reasons set out above.
17. The Act sets out certain circumstances where animals are not "unattended". Section 115 of the LLS Act says:

"115 Unattended stock

Stock are not unattended for the Public Spaces (Unattended Property) Act 2021, sections 18(2)(d) and 37(4)(d) if the stock are unattended on a road or travelling stock reserve -

(a) in accordance with the authority conferred by (and any conditions of) a stock permit, or

(b) in any other circumstances prescribed by the regulations for the purposes of this paragraph.

1. The Local Land Services Regulations 2013 (NSW) provide as follows:

"81 Unattended stock

For the purposes of section 115 (b) of the Act, stock are not unattended for the purposes of the Public Spaces (Unattended Property) Act 2021, sections 18(2)(d) and 37(4)(d) in the following circumstances -

(a) if stock are unattended because of an emergency preventing the person in charge of the stock from attending the stock,

(b) if the stock are unattended while the person in charge of the stock is moving a stock warning sign or taking other action necessary for the wellbeing of the stock or required by law".

1. The Applicant's cattle will not have been "unattended", if unattended on a road or travelling stock reserve "in accordance with the authority conferred by (and any conditions of) a stock permit". The Respondent's submission is that the Applicant's cattle were not on the land in question on 30 January 2025 in accordance with any relevant authority. This was because the Applicant's last permit had expired on 6 December 2024. The Respondent also said that there was no evidence or submissions suggesting that the stock was unattended due to an emergency or while someone was moving a stock warning sign, or taking other action necessary for the well being of the stock or required by law.
2. I accept the Respondent's submissions relating to s 115 of the LLS Act. There is no evidence of any matter described in s 115 or Regulation 81 to allow for a finding that the Applicant's cattle were not "unattended".
3. The Applicant submitted that he had not committed any offence in relation to the matter before the Tribunal. However, whether or not an offence had been committed, does not determine the question of whether the Applicant's cattle had been "unattended" at the relevant times. This is a matter that turns on the application of the provisions of the Act and the regulations made under the Act considered above, whether or not an offence has been committed.

1. In summary, I do not find that the Respondent acted unlawfully in taking possession of the Applicant's cattle under s 18 of the Act. The Respondent had sufficient grounds to reasonably believe that the Applicant's cattle were "unattended" (at [59] above), and that they were in a "public place" (at [38] above). I have also found that Ms McQualter was an "authorised person" with the power to take possession of the Applicant's cattle (at [36] above). As a result, the Respondent's decision under review is affirmed.
2. Having affirmed the Respondent's decision under review, the question does not arise as to whether the Applicant's cattle should have been returned to him at the expense of the Respondent under s 36(2) of the Act. That question only arises if the Respondent's decision had been set aside.

(1) The administrative decision under review is affirmed.

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.