Commissioner of Police, NSW Police Force and State of NSW v Denny;... [2019] NSWCATAP 280 | Case summary

NCAT Appeal Panel|2019-05-24

cation. Any application for costs must be accompanied by written submissions on the question of whether a hearing on the question of costs may be dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013 on the basis that the question of costs can be adequately determined in the absence of the parties by considering the written submissions on costs. (16) Any response to any application for costs must be filed and served within 14 days of the date of the filing of the application for costs, together with written submissions in support of that response. Any response must be accompanied by written submissions on the question of whether a hearing on the question of costs may be dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013 on the basis that the question of costs can be adequately determined in the absence of the parties by considering the written submissions on costs. (17) Any reply to the response to any application for costs must be filed within 7 days of the date of the filing of the application for costs. Catchwords: APPEAL - correct and preferable decision - was impounding of items unlawful - Impounding fees and charges Legislation Cited: Impounding Act 1993 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Administrative Decisions Review Act 1997 (NSW) Category: Principal judgment Parties: Proceedings AP 19/07959 Janice Louise Denny (Appellant) Commissioner of Police, NSW Police Force and State of NSW (Respondent)

Proceedings AP 19/11298 Jamie Power (Appellant) Commissioner of Police, NSW Police Force and State of NSW (Respondent)

Proceedings AP 19/11300 Gary Targett (Appellant) Commissioner of Police, NSW Police Force and State of NSW (Respondent)

Proceedings AP 19/11019 Commissioner of Police, NSW Police Force and State of NSW (Appellant) Jamie Power (Respondent)

Proceedings AP 19/11034 Commissioner of Police, NSW Police Force and State of NSW (Appellant) Garry Targett (Respondent)

Proceedings AP 19/11026 Commissioner of Police, NSW Police Force and State of NSW (Appellant) Sue-Anne Helen Clarke (Respondent)

Proceedings AP 19/09869 Commissioner of Police, NSW Police Force and State of NSW (Appellant) Janice Louise Denny (Respondent) Representation: Proceedings AP 19/07959; AP 19/11301; AP 19/11298; AP 19/11300 Counsel: A Rider (Respondents) Solicitors: Appellants (self-represented) Crown Solicitor (Respondents)

Proceedings AP 19/11019; AP 19/11034; AP 19/11026; 19/09869 Counsel: A Rider (Appellants) Solicitors: Crown Solicitor (Appellants) Respondents (self-represented) File Number(s): AP 19/07959; AP 19/11301; AP 19/11298; AP 19/11300; AP 19/11019; AP 19/11034; AP 19/11026; AP19/09869 Publication restriction: No restriction Decision under appeal Court or tribunal: Civil and Administrative Tribunal of NSW Jurisdiction: Administrative and Equal Opportunity Division Citation: [2019] NSWCATAD 18 Date of Decision: 14 January 2019 Before: S Montgomery, Senior Member File Number(s): 2018/00161488; 2018/00161629; 2018/00161523; 2018/00161619

REASONS FOR DECISION

This matter concerns appeals against a decision made by the Tribunal at first instance concerning the impounding of animals and articles and the imposition of fees and charges under the Impounding Act 1993 (NSW). References to the Impounding Act 1993 in this decision are references to the Impounding Act 1993 as it was between 7 July 2017 and 28 June 2018.
Both the applicants at first instance and the respondents at first instance have appealed to the Appeal Panel. It will be convenient in this decision to refer to the applicants at first instance as 'the applicants', and to the respondents at first instance as 'the Crown parties'.
A large amount of material was filed by the applicants at first instance. The Tribunal at first instance appears to have treated all of the material filed by the parties as constituting evidence before it, albeit evidence of varying relevance and weight. We note that the Tribunal is not bound by the rules of evidence in proceedings of this kind and may inform itself on any matter as it thinks fit, subject to the rules of natural justice (see s 38(2) of the Civil and Administrative Tribunal Act 2013 (NSW))

Facts and background

On 11 and 12 December 2017, animals were removed from the Candelo Common ("the Common"). Animals were also removed on 12 December 2017 from both Crown land and privately owned land at Auckland Street, Candelo ("the Auckland Street property"). Mobile yard panels and a loading ramp were removed from a gazetted road adjacent to the Common.
Cattle, sheep and horses were impounded.
Various notices were issued under the Impounding Act stating that specified livestock had been impounded under the Impounding Act and advising of the opportunity to claim the livestock upon provision of proof of ownership within 7 days of the date of the notice.
The impounded sheep and cattle were sold by public auction on 22 May 2018. This occurred despite the lodgement by each of the applicants of a Notice of Intention to apply to the Tribunal in April of 2018, which arguably should have prevented the sale of the animals. The error occurred as a result of a communication mix-up.

The Impounding Act 1993

The Impounding Act provides as follows: 5 Who can impound and what can be impounded (1) Impounding officers can impound certain animals and articles, as provided by this Act. The power to impound conferred by this Act on an impounding officer of Roads and Maritime Services is limited to the impounding of motor vehicles, unless the regulations otherwise provide. (2) Occupiers of private land can impound certain animals, as provided by this Act. (3) A police officer has and may exercise the powers of any impounding officer (as if he or she had been appointed as an impounding officer by each impounding authority). This does not make a police officer subject to the direction or control of an impounding authority. Note. Impounding officers are persons appointed as impounding officers by impounding authorities. See the definitions of impounding officer and impounding authority in the dictionary. See the definition of animal in the dictionary for the types of animals to which this Act applies. 9 Animals unattended in public places can be impounded (1) An impounding officer may impound an animal that is in a public place in the area of operations of the officer if the officer believes on reasonable grounds that the animal is unattended. (2) An animal is not to be regarded as being unattended for the purposes of this section: (a) while the animal is in a public place in response to an invitation contained in a notice published by the relevant public authority and in accordance with any conditions specified in that notice, or (b) while the animal is in a public place with the consent of the relevant public authority, or (c) while the animal is in a public place and its presence there is authorised by or under an Act, or (d) in the case of an animal that is stock (within the meaning of Part 8 of the Local Land Services Act 2013) that is unattended on a road or travelling stock reserve, in any circumstances prescribed by section 115 of that Act, (e) in any circumstances prescribed by the regulations for the purposes of this section. 10 Trespassing animals can be impounded An impounding officer may impound an animal that the officer believes on reasonable grounds to be trespassing in a place in the area of operations of the officer (other than a public place). 12 Occupier of private land may impound trespassing animal An occupier of private land may impound any animal that is trespassing on the land. 15 Abandoned and unattended articles can be impounded An impounding officer may impound an article found in the officer's area of operations if the officer believes on reasonable grounds that the article has been abandoned or left unattended. Section 16 affects this if the article is a motor vehicle. Note. The Local Government Act 1993 gives a council power to order the removal of an object matter that is causing or likely to cause an obstruction. 20 Impounding authority to notify owner (1) An impounding authority must make all reasonable inquiries in an effort to find out the name and address of the owner of an impounded item and, in the case of an impounded motor vehicle, must also make a search of the PPS Register for information concerning PPS security interests in the vehicle. (2) The inquiries and search must be made as soon as practicable after the item is delivered to the authority's pound or (in the case of an article that is impounded without being delivered to a pound) as soon as practicable after the article is impounded. (3) If the impounding authority knows or finds out the name and address of the owner, the authority must cause notice of the impounding to be given to the owner of an impounded item as soon as practicable after becoming aware of the name or address. (4) If the impounding authority's search of the PPS Register reveals a PPS security interest in the motor vehicle, the authority must also cause notice of the impounding to be given to the person who claims the interest. (5) A notice under this section must be in writing addressed to the person to be given the notice. It must clearly indicate that the item has been impounded and will be sold or otherwise disposed of if not claimed within a stated period (not less than 7 days in the case of an animal and not less than 28 days in the case of an article). (6) Inquiries as to the owner of a motor vehicle need not be made under this section if those inquiries have already been made under another provision of this Act. (7) This section does not apply to a motor vehicle that has been destroyed or otherwise disposed of under section 18 (Impounded motor vehicles worth less than $500 may be destroyed). (8) In this section: PPS Register means the Personal Property Securities Register under the Personal Property Securities Act 2009 of the Commonwealth. PPS security interest, in relation to a motor vehicle, means a security interest in the vehicle to which the Personal Property Securities Act 2009 of the Commonwealth applies (including a transitional security interest within the meaning of that Act). Note. See section 49 for the ways in which notice can be given. 26 Impounding fees and charges (1) An impounding authority may fix the fees and charges that are to be paid in respect of the impounding, holding and disposing of an item by the authority and its impounding officers. The Commissioner of Police may by order in writing fix the fees and charges that are to be paid in respect of the impounding of an item by a police officer. (2) The fees and charges that may be fixed are as follows: • a fee for walking or transporting an impounded animal to the pound or to the address of its owner and to a market or saleyard for sale, • a charge for providing an impounded animal with food, water and veterinary care, • a charge for loss or damage attributable to an impounded animal while it was unattended or trespassing, • a fee for conveying an impounded article to a pound, • a fee for storing an impounded article at the pound, • a fee to cover the cost of serving a notice notifying the owner of an impounded item that the item may be or has been impounded. (3) Fees and charges may be fixed so as to differ according to the kinds of animals or articles impounded. (4) A fee or charge must not exceed the corresponding maximum fee or charge (if any) prescribed by the regulations, and any amount that is fixed so as to exceed the maximum is reduced to the maximum. (5) Fees and charges fixed under this section are the fees and charges payable in respect of the impounding, holding and disposing of an item under this Act. (6) An impounding authority must remit to the Commissioner of Police any fee or charge paid to or deducted or recovered by the authority that was payable in respect of the impounding of an item by a police officer. (7) An impounding authority may waive payment of a fee or charge, or part of a fee or charge, in respect of the impounding of an animal in a public place that had strayed because a gate or fence had ceased to be animal proof due to fire, flood or other natural disaster. 27 General right to recover impounding fees and charges and damages (1) An impounding authority may recover the following amounts as a debt from the person responsible for an impounded item: • the fees and charges payable in respect of the impounding, holding and disposing of the item, • in the case of an animal impounded because it was trespassing - the cost of rectifying any loss or damage attributable to the trespassing of the animal. (2) The Commissioner of Police may recover as a debt from the owner of an impounded item the fees and charges payable in respect of the impounding of an item by a police officer. … 38 Owner of impounded item can apply to Civil and Administrative Tribunal for administrative review (1) The owner of an impounded item may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision to impound the item, but only on the ground that the impounding of the item was unlawful. (2) The owner of an impounded item may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any fee or charge required to be paid for the release of the item (whether to an impounding authority or an occupier of private land), but only on the ground that the fee or charge has been improperly charged or incorrectly calculated or is excessive. (3) An application cannot be made under this section until the owner of the impounded item has given the impounding authority or occupier concerned notice in writing of intention 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 must not sell or otherwise dispose of the impounded item until the time limit for an application has expired or until it has been notified that any application made has been refused or withdrawn. (5) This section does not affect section 22 (Injured, diseased or distressed animals can be destroyed). (6) An impounding authority may release an impounded item pending the determination of an application. The release of an impounded item does not affect any right of recovery that the impounding authority may have under this Act. 39 Time limit for applications (1) (Repealed) (2) The time limit for making an application for an administrative review of an impounding decision is 28 days from the date on which impounding was notified. (3) However, if the owner of an impounded item is not notified of the impounding of the item, there is no time limit for making an application for an administrative review of the impounding decision. (4) The time limit for making an application for an administrative review of any fee or charge required to be paid for the release of an impounded item is 28 days from the date on which application was made for the release of the impounded item. (5) Nothing in this section affects the operation of section 24. The Dictionary to the Impounding Act provides the following relevant definitions: animal means any of the following: • cattle, horses, donkeys, mules, asses, camels, sheep, goats, pigs and deer, … public place means a place (other than a place declared by the regulations not to be a public 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, and, in particular, includes: (c) any place dedicated or reserved for a public purpose, and (d) a place which, although privately owned, is a place to which the public are permitted to have access for the purposes of business or leisure or to use as a thoroughfare.
The application for review to the Tribunal at first instance was an application under the Administrative Decisions Review Act 1997 (NSW), which provides: 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
The scope of an appeal to the Tribunal under s 63 of the Administrative Decisions Review Act 1997 is constrained by s 38(1) of the Impounding Act, in that the sole ground for the administrative review by the Tribunal of the decision to impound the items (including the animals) is that the decision was unlawful.
In other words, the Tribunal's jurisdiction is to undertake a review of the merits of the decision to impound the items, limited to the question of whether that decision was not the correct and preferable decision because the impounding of the items was unlawful.
The scope of an appeal to the Tribunal under s 38(2) is limited to the ground that the fee or charge has been improperly charged or incorrectly calculated or is excessive.

The Tribunal at first instance in relation to the impounding

Ms Denny's first applications to the Tribunal in relation to the impounding (2018/9399 and 2018/16157) were dismissed under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013. That decision is not the subject of this appeal.
On 20 April 2018, Ms Denny signed a notice of intention to apply to the Tribunal in respect of the impounding of cattle and sheep from the Candelo Common on 11 December 2017 and from the Auckland Street Candelo property on 12 December 2017. The notice related to 21 cattle, 14 sheep and 41 horses.
The other applicants provided notices of intention to apply to the Tribunal on 21 April 2018.
On 23 May 2018, Ms Denny filed an application for administrative review in the Tribunal with the following grounds of review: 1. Impounding of the item was unlawful 2. The fee or charge has been improperly charged or incorrectly calculated or is excessive.
The grounds for review in the other applicants' applications to the Tribunal at first instance were in the same or similar terms.
The hearing before the Tribunal at first instance took place over 7 days, spread over 5 months in 2018. The applicants were given every opportunity during that time to obtain evidence in support of their case.
A great deal of the material provided by the applicants to the Tribunal relates to issues over which the Tribunal does not have jurisdiction under the Impounding Act.
The Tribunal at first instance found that it was probable that Ms Denny was the owner of at least some of the cattle and sheep. The Tribunal found that Ms Clarke either owned the horses named 'Gizelle' and 'Caspar Jnr' or was in the process of buying them.
The Tribunal found that Mr Power was the owner of at least some of the 30 horses, and that Mr Targett was the owner of the stockyards, troughs and related items.
The Tribunal addressed the question of whether Ms Denny had any rights over the Candelo Common. There was no suggestion that any of the other applicants had rights over the Common. The other applicants relied upon any rights that Ms Denny could establish, as their animals were kept on the Common, or the other land the subject of these proceedings, by arrangement with Ms Denny.
The Tribunal noted Ms Denny's assertion that she had been granted a right to occupy the common some years ago in return for maintaining the Common fences and undertaking weed and vermin control, and she said that she had paid rates in relation to the Common. Ms Denny did not produce any documentary evidence for her assertions. She said, at the Tribunal hearing, that Mr Danny Hamer, at the Crown Lands Office in Bega, had agreed to her occupation of the Common. She said that she had once had a document regarding the land, but no longer had it.
Gregory Campbell, Senior Team Leader, Compliance and Regulation, North West, with the Office of Environment and Heritage, provided an affidavit and gave evidence at first instance in the respondent's case. Mr Campbell formerly worked for Crown Lands. Mr Campbell's evidence was that the agency records indicated that the Common was untenured Crown land. There was no record of any rights over the Common ever having been conferred upon Ms Denny. Mr Campbell said that informal arrangements are not entered into in relation to Crown Lands. Mr Campbell said that he had been employed in Crown Lands in 2007, and at that time, there was no Crown Lands office in Bega. He did not know of any Mr Danny Hamer.
The Tribunal found that the respondent's evidence showed that Ms Denny did not have any rights over the Common in December 2017.
The Tribunal found that, in a conversation on 25 September 2017, Ms Denny was informed by Mr Campbell that the animals and items needed to be removed from the Common within a 'reasonable time'.
The Tribunal found that Detective Senior Constable Oxenbridge told Mr Targett and Mr Power that the animals and items had to be removed.
A letter was sent to Ms Denny on 20 October 2017 asserting that Ms Denny did not have any rights over the Common, and requiring her to move the animals and items. Ms Denny said that she did not receive that letter, and that it was sent to the wrong address. The Tribunal accepted Ms Denny's statement, but said that, even if this were the case, Ms Denny had been given notice on 25 September 2017.
The Tribunal determined that the period between 25 September 2017 and 11 December 2017 was a 'reasonable time' for the removal of the animals and items.
The Tribunal found that, on 11 and 12 December 2017, there were reasonable grounds for an impounding officer to believe that the animals on the Common were unattended. Ms Denny had failed to remove the animals, despite having been requested to do so in September. Ms Denny did not own the horses. The Tribunal found that 'no-one appeared to own, attend to or be in charge of the animals or the items" (see [48] of the decision at first instance).
The Tribunal determined: 49 The Respondents were entitled to remove the animals and items from the Common pursuant to section 9 and 15 of the Act.
As to the private property in Auckland Street, the Tribunal found that Ms Denny did not have any right to graze stock on that land. The Tribunal found that Detective Senior Constable Oxenbridge had reasonable grounds to believe that the animals on the Auckland Street property were trespassing, on the basis of his conversation with Mr Umbers, who the Tribunal said was the co-owner of the land with his wife. We note that the Certificate of Title for that land shows Mrs Umbers as the sole registered proprietor. Ms Denny asserted that Mrs Umbers had given her verbal approval to use the land. The applicants did not produce any evidence to corroborate that assertion. It was contrary to the direct evidence of Mr Umbers.
The Tribunal determined that the respondents were entitled to impound the animals on the Auckland Street property under s 10 of the Impounding Act.
Ms Denny argued at first instance that there was no right to impound animals or articles from the gazetted road adjacent to the Common. The Tribunal disagreed, saying that the gazetted road is a public place, and there were reasonable grounds to believe that the animals and articles were unattended.
The Tribunal determined that the respondents were entitled to impound the animals and articles from the gazetted road adjacent to the Common.

The Appeals to the Appeal Panel

The Civil and Administrative Tribunal Act 2013 provides: 80 Making of internal appeals (1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. Note. Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27 (1). (2) Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. (3) The Appeal Panel may: (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances. 81 Determination of internal appeals (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following: (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance.

The Appeal to the Appeal Panel by the Applicants in relation to the Impounding

The grounds of appeal in the Notices of Appeal filed by the applicants were similar, and to the same effect, as the grounds in Ms Denny's Notice of Appeal, which are: It is not a fair or equitable decision, Is a clear injustice and an error of Law in part. Significant new evidence has arisen that was not available at the time of the hearing.
Ms Clarke's notice of appeal referred to 'evidence and statement pertaining to Matthew Whitby'. We have read the statement referred to. It relates to a conversation which allegedly took place long after the impounding. It is not relevant to any issue within the jurisdiction of the Tribunal, either at first instance or on appeal.
The Notices of Appeal referred to an attached document. We will deal with the issues raised in relation to the fees and charges below. In relation to the lawfulness of the impounding, that document asserted the following:

that no animals or items were abandoned by Ms Denny or the owners of the animals at any time. The animals were not unattended.
that the Tribunal at first instance was wrong in finding that the impounding was a joint operation involving the RSPCA, Bega Valley Shire Council and Local Land Services. It was in fact a police operation.
Ms Denny has a right to an 'agricultural occupancy' of the Common, which could only be revoked by the Minister. In support of this, she has the evidence of Mr Targett that he attended to the eradication of vermin on the land. She also has quotes for spraying and evidence of a rate payment on behalf of the Trustees of the Common.
Mrs Umbers has never revoked her verbal permission in relation to the land on Auckland Street. Mr Umbers' evidence should not be relied upon because he has a towing business in Bega which relies upon the police.
the time between 25 September 2017 and 11 December 2017 was not a reasonable time within which to move the animals and items.
Ms Denny did not receive the letter dated 20 October 2017.
the wrong section was cited in the notices served under the Impounding Act subsequent to the impounding.

In order for the challenge to the lawfulness of the decision to impound the animals and articles to succeed, we must be satisfied that one or more of the circumstances set out in s 9(1) of the Impounding Act as the circumstances in which the power to impound may be exercised, was not present when the impounding occurred.
The applicants have asserted that the Tribunal at first instance was wrong in finding that the impounding was a joint exercise by 'the RSPCA, the Bega Valley Shire Council, Crown Lands, NSW Police and Local Land Services' (see [4] of the decision of the Tribunal at first instance). This was developed by Ms Denny in her submissions. There was ample evidence to support the finding by the Tribunal at first instance.
Ms Denny argued that Detective Senior Constable Oxenbridge made the decision to impound the animals and items, and she challenged his right to make that decision under the Impounding Act. Detective Senior Constable Oxenbridge signed the notices issued under the Impounding Act subsequent to the impounding.
It is clear from s 5(3) of the Impounding Act that a police officer 'has and may exercise the powers of any impounding officer'. The challenge to Detective Senior Constable Oxenbridge's ability to exercise the powers of an impounding officer must fail.
Assuming that Ms Denny is correct, and she did not receive the letter of October 2017, that does not form the basis of any unlawfulness in the decision to impound.
We agree with the Tribunal at first instance that the period between 25 September 2017 and 11 December 2017 was a reasonable period to allow for the voluntary removal of the animals from the Common. In any event, however, even had it not been a reasonable period, no suggestion of unlawfulness can be made out on this account.
The service of notices subsequent to the impounding is provided for in the Impounding Act. It is true that the wrong section of the Impounding Act is cited in some of the notices. That cannot affect the lawfulness of the decision to impound, which pre-dates the notices in the scheme set up under the statute.
The remaining issues arising from the grounds of appeal are Ms Denny's rights over the Common and Mrs Umbers' land and whether the animals and items were 'unattended' within the meaning of s 9 of the Impounding Act.
The consideration of the applicants' appeals necessitates the consideration of questions of fact and questions of mixed law and fact. We give leave to the applicants to appeal to this Appeal Panel on questions of fact.

Ms Denny's rights over the Common

We have set out the definition of 'public place' in the Dictionary to the Impounding Act, above at [8].
The Crown parties, provided an affidavit of Mr Paul Rankins, affirmed on 7 June 2019, which sets out the history of the Common, and the travelling stock route and the pound in Auckland Street.
The Common was dedicated to public purposes by a gazettal on 6 December 1867 and has not subsequently been declared not to be a public place. It therefore remains a public place.
The Pound was dedicated as a public pound by gazettal on 1 May 1886, and has not subsequently been declared not to be a public place. It therefore remains a public place.
The travelling stock route was reserved for travelling stock and camping by gazettal on 30 June 1939, and has not subsequently been declared not to be a public place. It therefore remains a public place.
A common, a public pound and a travelling stock route are used for public purposes within the meaning of the definition of 'public place' in the Impounding Act.
By virtue of their designation as a common, a public pound and a travelling stock route, these places are all places dedicated or reserved for a public purpose, and open to the public within the meaning of the definition of 'public place' in the Impounding Act, and we accept that it was not necessary for the Crown parties to prove that those places were, in fact, frequented by the public. In case we are wrong about that, we will consider the evidence provided.
The Crown parties have provided evidence, which we accept, that the Common is in fact frequented by the public, including the Candelo and Districts Landcare Group Inc. The Crown parties provided an affidavit of Mr Christopher Pearson, Ranger Services Co-ordinator of Bega Valley Shire Council, who said that he is familiar with and has regularly visited the Common, the travelling stock route and the public pound. Mr Pearson said that in the months leading up to December 2017 the Common was open to and frequented by the public including persons collecting firewood, riding horses and bikes and Landcare groups and persons leaving stock without permission. The Common is readily accessible by a number of closed but unlocked gates fronting a public road. Mr Pearson said that the travelling stock route was used by members of a local horse riding group and by commercial stock transporters resting stock. Both it and the former pound were readily accessible by unlocked gates.
The Crown parties also provided evidence, being an affidavit of Mr David Heffernan, that the Common, the travelling stock route and the public pound are all open to the public. Mr Heffernan said that the places are all accessible via unlocked gates. In the past, when animals were kept at the public pound, a lock was placed on the gate whilst the animals were present to secure them, but Mr Heffernan said that it has been many years since the public pound was used as a pound.
Ms Denny asserted that she had been given a right to graze stock on the Common and on Mrs Usher's property.
The Respondents provided the New South Wales Land Registry title searches for all of the land involved in the impounding. No rights to Ms Denny or any of the other applicants are recorded in the Land Registry.
The Respondents provided evidence by way of correspondence from Local Land Services and affidavit and oral evidence from Mr Campbell that no government record could be located of the conferral of any right at all to Ms Denny in relation to any of the Crown land involved in the impounding.
Ms Denny, on the hearing of the appeal, asserted that she had been given rights by Mr Danny Hamer at the Crown Lands Office at Bega in about 2002. She said that she had been given some papers at the time, but no longer had those papers. At one point in the hearing at first instance, she produced a map which she said had been part of the documentation provided to her by Mr Hamer.
Mr Campbell, in his evidence at first instance, cast doubt upon whether there had been a Crown Lands Office at Bega at the relevant time. He was a Crown Lands officer in 2007, and did not believe that rights of the kind asserted by Ms Denny had been conferred after 1989. His evidence was that informal rights were not entered into with respect to Crown Lands.
Ms Clarke provided a statutory declaration dated 14 February 2019, in which she said that she had located Mr Hamer and had a telephone conversation with him on 19 January 2019. In her statutory declaration, Ms Clarke sets out a summary of that conversation. Neither Ms Clarke nor Mr Hamer were called to give evidence before us. The applicants seek to rely upon what Mr Hamer is said to have said in the course of the telephone conversation with Ms Clarke. The material is clearly hearsay and we cannot rely on it. We understand that the Tribunal is not bound by the rules of evidence, but hearsay of this kind is too unreliable to take into account. In any event, the account by Ms Clarke of her telephone conversation does not go so far as to prove that Ms Denny, in 2002, was given rights which were intended to endure until 2017. Nor was Mr Hamer's authority to confer rights over the Common explored. Even if the material were admissible, it would have very limited use.
The Tribunal at first instance said the following at [30]-[39] 30 At issue is whether Ms Denny had tenure over the Candelo Common. Ms Denny asserted that the Crown Lands Department granted her a "permissive occupancy" of the Candelo Common in about 2005. Ms Denny claims that she was granted the occupancy in return for maintenance of the Common fences and weed and vermin control, and that she has continued to pay rates in regard to that occupation. She claims that her right of occupancy continued and that pursuant to the grant she was entitled to run animals on the Common at the time of the impounding on 11 and 12 December 2017. 31 Ms Denny asserted that she kept the animals and items on the Common on behalf of the other Applicants. 32 There is no suggestion that Ms Clarke, Mr Targett or Mr Power had tenure over the Common at the time of the impounding or at any other time. If they had the right to have animals and items on the Common, it would only have been through any tenure that Ms Denny had over the Common. 33 Ms Denny was unable to produce any evidence in support of her assertion regarding the grant to her of a "permissive occupancy". In contrast, the Respondents produced evidence which indicates that even if there were such a grant, any such occupancy is no longer current. 34 The Respondents rely on the evidence of Mr Gregory Campbell, Senior Team Leader, Compliance and Regulation, North West with the Office of Environment and Heritage. From 2007 until October 2017 Mr Campbell was employed in the position of Compliance Project Officer with the Department of Industry - Lands and was responsible for the investigation of alleged breaches on Crown land. 35 Mr Campbell's evidence was that the Candelo Common is untenured Crown land and had been so since 2006. 36 The Respondents' evidence shows that the Crown ceased granting new "permissive occupancies" over Crown land in New South Wales around 1989. In 2005, the Candelo Common was managed by the Candelo Common Trust, which had an estate in fee simple in the Common. 37 Ms Denny points to LLS correspondence concerning the Annual Return of Land and Stock as at 30 June 2017. That correspondence supports the Respondents' position as it is addressed to "TRUSTEES OF CANDELO COMMON" - not to Ms Denny. 38 There is no suggestion that the Candelo Common Trust granted Ms Denny a right to use the Common. 39 Further, there is no suggestion that any permit had been granted to Ms Denny giving her a right to use or graze stock on the gazetted road adjacent to the Common.
The Tribunal at first instance found that Ms Denny did not have 'tenure' over the Common at the time of the impounding.
The Tribunal noted that if, at some point in the past, Ms Denny had been granted a 'permissive occupancy' over the Common, that would have been revocable at will by the Minister. The Tribunal noted that the letter dated 20 October 2017 by Crown Lands advised Ms Denny that she did not have 'tenure' over the land and ordered her to remove the animals and items within 14 days. The Tribunal noted that Ms Denny said that she did not receive that letter because it was sent to the wrong address.
Where the Tribunal at first instance refers to 'tenure', we take it that it was using that term loosely to include the licence which Ms Denny asserts she had the benefit of. The precise nature and scope of the licence which Ms Denny says that she was given has not been defined.
In effect, having regard to its jurisdiction under s 38 of the Impounding Act, the Tribunal at first instance determined that it had not been established by the applicants that the impounding from the Common was unlawful on account of the animals being in a public place with the consent of the relevant public authority under s 9(2)(b).
We do not consider that the determination of the Tribunal involving Ms Denny's asserted rights over the Common can be said to be affected by any error of law.
We do not consider that the determination of the Tribunal in relation to Ms Denny's asserted rights over the Common were against the weight of the evidence. The 'new evidence' placed before us either is not admissible and is not, in any event, probative in the case of the statutory declaration of Ms Clarke, or does not advance the applicant's argument on this point. In our view, taking into account all of the evidence before the Tribunal at first instance and before us, it would not be possible to be reasonably satisfied that Ms Denny had any right over the Common in 2017 beyond the rights of any citizen.
The Tribunal at first instance did not err in relation to its findings of fact concerning the question of whether the animals were on the Common pursuant to a licence over the Common which was held by Ms Denny.

Ms Denny's right over Mrs Umbers' land

Ms Denny asserted that Mrs Umbers gave her verbal approval to use Mrs Umbers' land for grazing. Ms Denny also asserted that the owner of the land before Mrs Umbers gave her approval to use the land for grazing.
No independent evidence was adduced to support the conferral upon Ms Denny of an ongoing licence over Mrs Umbers' land.
It was the evidence of Mr Umbers, who is married to Mrs Umbers, and claims one-half interest in the land, that no rights have been conferred upon Ms Denny over the land. Mr Umbers requested the police to impound the animals on Mrs Umbers land.
The Tribunal at first instance said at [50]-[56]: 50 Part of the Auckland Street property (Lots 1 and 2 in DPI 13751) is owned by Glenn and Kirsty Umbers. There is no suggestion that Ms Denny or any of the other Applicants had any tenure over that part of the Auckland Street property. 51 The Respondents rely on the evidence of Mr Glenn Umbers. Mr Umbers stated that he did not give Ms Denny or any other person permission to graze stock upon the Auckland Street property. He wanted the stock removed. He conceded that he never told Ms Denny to remove horses from the property but stated that they were never meant to be there. Mr Umbers had also spoken about the issue with Helen Schaefer, the District Veterinarian. 52 Detective Senior Constable Oxenbridge gave evidence that he had spoken to Mr Umbers in relation to the removal of animals from the Auckland Street property. Mr Umbers had indicated that he had previously spoken to police about the issue and nothing had happened and that he wanted the stock removed. Prior to the impounding Mr Umbers confirmed that he wanted the stock removed. 53 The Respondents material shows that in December 2017 the remainder of the Auckland Street property comprised: (1) Part of Lot 3 in DP 113751 in Auckland Street, Candelo which was Crown Land and a "public place" managed by LLS as a Travelling Stock Reserve; and (2) Lot 4 in DPI 13751 and the remaining portion of Lot 3 in DPI 13751 in Auckland Street, Candelo which was Crown Land and a "public place" managed by the Council. 54 It is clear from the evidence that Mr Umbers did not give Ms Denny or any other person permission to graze stock upon Lots 1 and 2 of the Auckland Street property and that he had confirmed with Detective Senior Constable Oxenbridge that he wanted the stock removed. Ms Denny did not have any right of use of Lots 3 or 4 of the Auckland Street property. 55 As noted, section 10 of the Act provides that an impounding officer may impound an animal that the officer believes on reasonable grounds to be trespassing. At the hearing I found as a fact that Detective Senior Constable Oxenbridge had reasonable grounds to believe that the animals on the Auckland Street property were trespassing. 56 It follows that the Respondents were entitled to remove the animals and items from the Auckland Street property pursuant to section 10 of the Act.
The determination of the Tribunal at first instance with respect to Mrs Umbers' property was not against the weight of the evidence, and was open to it on the evidence before it.
The Tribunal at first instance did not err in its findings of fact as to whether the animals were trespassing upon Mrs Umbers' land within the meaning of s 12 of the Impounding Act.
As to the public pound and the travelling stock route, they are public places and Ms Denny does not claim to have any licence or tenure over them.

Were there reasonable grounds upon which to believe that the animals and articles were unattended?

The Tribunal at first instance said, of the impounding, at [4]: … It seems that this joint exercise arose because of ongoing complaints about Ms Denny's animals trespassing and straying in the Candelo and Tantawangalo areas and complaints about neglect of some of those animals. Previous efforts to have the animals removed had been unsuccessful. …
The Tribunal at first instance said, at [28]: The Act defines "unattended", in relation to an animal, to include "abandoned or straying", but does not otherwise define these terms. I agree with the Respondents that the expressions should be given their ordinary meaning. The Macquarie Dictionary defines: "unattended" to include "unaccompanied; with no-one in charge; not taken care of; not heeded or paid attention to"...; "abandoned" to include "forsaken" and "unrestrained"...; "stray" to include "ramble"; "roam"; "found wandering at large or without owner"; and "to go beyond the proper limits"...
The Tribunal at first instance said, at [48]-[49]: 48 At the hearing I found as a fact that there were reasonable grounds for an impounding officer to believe that the animals that were removed from the Common on 11 and 12 December 2017 were unattended. This is because none of the Applicants had the right to use the Common, Ms Denny was advised to remove the animals and items from the Common and she failed to do so. Ms Denny did not own any of the horses. No-one appeared to own, attend to or be in charge of the animals or the items. 49 The Respondents were entitled to remove the animals and items from the Common pursuant to section 9 and 15 of the Act.
We have dealt with the issue of rights over the land from which the animals and items were impounded. The applicants strongly object to the finding that no-one appeared to attend to or be in charge of the animals or the items.
We take it that the applicants are arguing that the Tribunal at first instance misinterpreted the terms 'unattended' and 'abandoned' in the Impounding Act. We will consider the interpretation of those terms in the context of the objects of the Impounding Act, which are set out in s 3: 3 The objects of this Act are: (a) to empower authorised persons to impound and deal with animals and articles in public places and places owned or under the control of certain public authorities if, in the case of animals, they are unattended or trespassing or, in the case of articles, they have been abandoned or left unattended, and (b) to empower occupiers of private land to impound and deal with animals trespassing on their land, and (c) to provide for the release of impounded animals and articles that are claimed by their owners, and (d) to provide for the disposal of impounded animals and articles that are not claimed by their owners and, if they are disposed of by sale, to provide for the disposal of the proceeds of sale.
In the context of animals and items in public places, it seems to us that the Impounding Act contemplates that they may reasonably be considered to be 'unattended' if there is no person with them for a period of time which is longer than, say, a brief absence to perform a routine task. 'Unattended' includes abandoned or straying, but the word is wider than that. The use of the phrase 'left unattended' in relation to articles in s 3(a) suggests that, when articles, at least, are in a public place they are expected to be in the presence of a person for most, if not all, of the time.
The Tribunal at first instance was provided with a report from a veterinarian, Dr Helen Shaefer, in which Dr Shaefer said that, upon inspecting the animals before they were impounded, she formed the view that they were unattended on account of their generally poor condition. We accept Dr Shaefer's evidence. It is consistent with other evidence provided by the Crown parties.
There was evidence that some of the animals had strayed from time to time.
Even accepting that the applicants may have left the animals with food and water, and may have been returning to them from time to time to check on them, it is clear from the material before the Tribunal at first instance that the animals were not generally in the presence of a person. There were clearly problems with animals straying and trespassing, which would have been avoided had the animals been monitored on a near constant basis. It is apparent that the animals were left to graze for extended periods of time.
It seems to us that this interpretation of 'unattended' is consistent with the Tribunal's approach at first instance. We do not consider that the Tribunal at first instance was in error in relation to its interpretation of 'unattended'.
It was open, on the evidence before the Tribunal at first instance, for the Tribunal to find that the animals on the Common and on the Auckland Street property were unattended within the meaning of the Impounding Act.
It was also open to the Tribunal to find that the articles impounded were unattended before being impounded.
The Tribunal's findings of fact at first instance in relation to whether the animals or the articles were unattended were not against the weight of the evidence.

The Crown Parties' appeals

The Crown parties lodged a separate Notice of Appeal against Ms Denny, Mr Power, Mr Targett and Ms Clarke. The Notice of Appeal against Ms Denny set out the following grounds of appeal, pleading that the Tribunal at first instance had erred in law in the following ways: 1. At [16] it misconstrued s 39(2) Impounding Act 1993 in finding that Janice Denny (201800161488) lodged a valid application on or about 20 May 2018, when the statutory time limit expired on 10 January 2018, being 28 days from when Ms Denny was notified of the impounding decisions on or before 13 December 2017. 2 At [26] in finding, without sufficient evidence (see [24]), the Cross Respondent had standing to make the applications (all file numbers). 3 At [63], in finding it could review the decisions that all impounding fees etc must be paid in full before the release of any impounded item, when s38 Impounding Act 1993 confers no such jurisdiction on the Tribunal. 4 At [86], [99] and [107] in finding the Cross Applicants had not filed any evidence to support that certain costs needed to be incurred, when the Cross Appellants filed evidence of the costs needed to be incurred in fulfilling the duty under s 21 Impounding Act 1993 to care for the impounded animals. 5 At [89] in finding the costs of moving and storing the impounded stockyards were unreasonable, when the Cross Appellants filed evidence the stockyards were needed to load the impounded animals and could not be returned to Gary Targett (201800161629). 6 In making Order 2 (all file numbers) in respect of the Cross Respondents' "horses", after finding at [24] there was insufficient evidence to establish ownership of each of the animals categorically.
The Notice of Appeal against Mr Power pleaded grounds of appeal in the same terms as grounds 2, 3, 4 and 6 in the Notice of Appeal against Ms Denny.
The Notice of Appeal against Mr Targett pleaded grounds of appeal in the same terms as grounds 2, 3, 4, 5 and 6 in the Notice of Appeal against Ms Denny.
The Notice of Appeal against Ms Clarke pleaded grounds of appeal in the same terms as grounds 2, 3, 4 and 6 in the Notice of Appeal against Ms Denny.
In considering the appeals, we will use the numbering of the grounds in the Notice of Appeal against Ms Denny.
The Crown parties also sought leave to appeal on the facts, in the following terms, in the event that the Appeal Panel was to determine that the grounds of appeal were not strictly confined to questions of law: 1. At [26] in making findings without sufficient evidence. 2. At [86], [99] and [107] in making findings of no evidence where evidence had been filed. 3. At [89] in making a finding contrary to the evidence.
The Crown parties' appeal was out of time. We are satisfied that it is appropriate that an extension of time be given to the Crown parties. The delay was short, and explained. The applicants, having filed their own appeals, will not be unduly inconvenienced by the grant of an extension, and the Crown parties' appeal raises serious issues to be determined.
Consideration of some of the Crown parties' grounds of appeal involves the consideration of questions of fact and questions of mixed fact and law. It is convenient to give leave to the Crown parties to appeal on questions of fact.

Crown Parties Ground of Appeal No 1

The Tribunal at first instance said, at [16]: On 22 May 2018, the impounded sheep and cattle were sold at public auction, purportedly in accordance with section 24(1) of the Act. However, Ms Denny had lodged a valid application prior to the expiry of a 28 day period from the time of her Notice of intention to apply to the Tribunal. She had also advised the Respondents' solicitor of the applications prior to the sale. Accordingly she has questioned whether the sale was in accordance with section 24(1) of the Act. Ms Denny alleges that the cattle and sheep were sold in breach of the Act because notice of intention was served, relevant documents lodged within the required time frame and the Respondents were notified of the lodgement.
The Impounding Act 1993, in s 39, says: 39 Time limit for applications (1) (Repealed) (2) The time limit for making an application for an administrative review of an impounding decision is 28 days from the date on which impounding was notified. (3) However, if the owner of an impounded item is not notified of the impounding of the item, there is no time limit for making an application for an administrative review of the impounding decision. (4) The time limit for making an application for an administrative review of any fee or charge required to be paid for the release of an impounded item is 28 days from the date on which application was made for the release of the impounded item. (5) Nothing in this section affects the operation of section 24.
The material before the Tribunal indicates that Ms Denny was given notice of the impounding of the sheep and cattle on 13 December 2017.
Ms Denny made an application, dated 15 December 2017, for the release of the '31 horses, 11 cattle and 14 sheep, portable yards, feeding containers, water troughs and all other materials' impounded from the Common and the '10 horses and 10 cattle' impounded from the Auckland Street property.
It was argued on behalf of the Crown parties that the statutory time limit for Ms Denny to make an application for review expired on 10 January 2018.
The Crown parties also argued that the statutory time limit for Ms Denny to make an application for the review of the fees and charges required to be paid expired on 12 January 2018.
The Crown parties have correctly calculated the date upon which the statutory time limit for both the application for review of the decision to impound the animals and articles and the application for the review of the fees and charges.
The Tribunal at first instance erred in calculating the time period from the date upon which the notice of intention to apply to the Tribunal was signed.
The application for the review of the decision to impound the animals and the items and the application for the review of the fees and charges were both out of time.
The Civil and Administrative Tribunal Act 2013 provides, in s 41: 41 Extensions of time (1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired.
The Crown parties argued that the consequence of lodging the application for the review of the decision to impound and the application for the review of the fees and charges was that Ms Denny's applications were "not valid".
Had the issue been ventilated at first instance, the opportunity to apply for an extension of time under s 41 of the Civil and Administrative Tribunal Act 2013 could have been extended to Ms Denny.
Given the stage of the proceedings at which this issue was raised, and having regard to the fact that the applicants have been unrepresented throughout what has become a difficult and protracted matter, it is appropriate to extend the time for the lodgement of the initiating applications by each of the applicants to the day upon which each of them lodged their application for administrative review. We are satisfied that we have the power to make this order under s 81(2) of the Civil and Administrative Tribunal Act 2013.

Crown Parties Ground of Appeal No 2

Crown parties ground of appeal no 2 relates to the findings of the Tribunal at first instance that the applicants had established that each of them was 'probably' the owner of at least one of the animals or articles which were impounded, so that each of them had standing to bring an application to the Tribunal (see paras [20] and [21] above).
The Impounding Act, in s 38 (set out above at [8]), gives 'the owner of an impounded item' the right to apply for a review of the impounding decision on the ground that the impounding of the item was unlawful.
The Tribunal at first instance took into account the material which was provided to it by the applicants, and the applicants' oral submissions, without actually formally taking oral evidence.
In making the findings that it did in relation to the ownership of the animals and the articles, the Tribunal at first instance relied upon unsworn submissions put forward by the applicants.
The Crown parties rely upon an affidavit of Detective Senior Constable Oxenbridge, in which, on this point, Detective Senior Constable Oxenbridge relates the content of conversations he had in June 2017 with Mr Targett and Mr Power. That evidence is, of course, hearsay evidence in relation to the truth of the statements made by Mr Targett and Mr Power.
The state of the evidence and information before the Tribunal at first instance is unsatisfactory on this point. It is clear that significant difficulties were experienced in obtaining the evidence and submissions at first instance.
Having said that, it would be difficult in many circumstances to prove ownership of cattle, sheep and horses. That was apparent in the explanation given at the appeal hearing for the disposition of the ownership of the horses after orders were made against Ms Denny prohibiting her from having care, custody and control of horses.
On the basis of the material before it, the Tribunal at first instance had sufficient evidence to find that Ms Clarke was the owner of the horses 'Gizelle' and 'Casper Jr'.
The Tribunal also had sufficient documentary evidence to be satisfied that Ms Denny was the owner of the cattle and sheep impounded from the Common.
Ms Denny said that she had transferred the horses which were not Ms Clarke's to Mr Targett.
As we understand the submissions of Ms Denny before us, the horses in contention have now been returned to Mr Targett.
On the basis of the statements made to the Tribunal at first instance, and the correspondence before the Tribunal, it was open to the Tribunal to make the findings that it made in relation to the ownership of the animals and articles.
The applicants had standing to bring their appeals.

Crown Parties Ground of Appeal No 3

The Crown parties contested the determination of the Tribunal at first instance at [63] that the Tribunal had the power to review the decision that no impounded item would be released until all impounding fees and charges had been paid in full.
The Crown parties are correct on this point. The Tribunal does not have the power, under the Impounding Act, to review that decision.

Crown Parties Grounds of Appeal Nos 4 and 5

The Tribunal made a series of statements about the fees and charges imposed in relation to the impounding.
At [86], the Tribunal said: As noted, the Respondents have filed invoices in relation to the costs that are said to have been incurred as a result of the impounding. No evidence has been filed to provide any insight into why those costs needed to be incurred.
At [99], the Tribunal said: I have no basis on which I could conclude that the care was not provided as indicated by the invoices that have been filed. However, the Respondents have not provided any evidence to show the extent of the care that was needed or provided. This is information that was not available to the Applicants and they were not permitted access to the animals to satisfy themselves of these issues. The Applicants cannot be criticised for any deficiency in their cases in regard to challenging this aspect of the expenses when the relevant information that was available to the Respondents has not been provided to either the Applicants or the Tribunal.
At [107], the Tribunal said: I have no basis on which I could conclude that the veterinary care was not provided as indicated by the invoices that have been filed. However, the Respondents have not provided any evidence to show the cause of the issues that lead to the need for veterinary care or the extent of the care that was needed or provided. This is information that was not available to the Applicants and they were not permitted access to the animals to satisfy themselves of these issues. The Applicants contend that the issues could have arisen as a result of the manner in which the animals had been captured or the manner in which they were kept. I have no evidence to support or to contradict this assertion. The Applicants cannot be criticised for any deficiency in their cases in regard to challenging this aspect of the expenses when the relevant information is either available to the Respondents or could be obtained by the Respondents and it has not been provided.
The Impounding Act 1993 provides, in s 27(1) and (9): 27 General right to recover impounding fees and charges and damages (1) An impounding authority may recover the following amounts as a debt from the person responsible for an impounded item: • the fees and charges payable in respect of the impounding, holding and disposing of the item, • in the case of an animal impounded because it was trespassing - the cost of rectifying any loss or damage attributable to the trespassing of the animal. (2) The Commissioner of Police may recover as a debt from the owner of an impounded item the fees and charges payable in respect of the impounding of an item by a police officer. (3) The person responsible for an impounded item for the purposes of this section is the owner of the item unless the owner, within 21 days after being required to do so by the impounding authority by notice in writing: (a) supplies, in the approved form, the impounding authority with the name and address of the person (being a person who is at least 18 years of age) who was in charge of the item immediately before it was abandoned, became unattended or was permitted to trespass, or (b) satisfies the impounding authority that he or she did not know and could not with reasonable diligence have ascertained that name and address. (4) If the owner supplies the name and address of the person who was in charge of the item immediately before it was abandoned, the person named is the person responsible for the impounded item for the purposes of this section. (5) Amounts recoverable under this section can be recovered only if they have not already been paid, or deducted from proceeds of sale. (6) An impounding authority must pay any amount recovered by it under this section for loss or damage attributable to the trespassing of an animal on private land to the person who suffered the loss or damage. (7) For the purposes of subsection (6), an impounding authority is entitled to treat the owner of the land concerned as the person who suffered the loss or damage unless satisfied that the loss or damage was suffered by some other person. (8) Without limiting the form that may be approved under subsection (3) (a), the form may be an electronic form accessible on a publicly available website. (9) A person who provides the impounding authority with a statutory declaration containing the particulars required by the approved form is taken to have done so in the approved form.
The Crown parties pointed out that a bundle of invoices and veterinary reports were, in fact, filed in the Tribunal. Detective Senior Constable Oxenbridge also sets out the basis of some of the fees and charges in his statement of 13 September 2018.
The Crown parties argued that the Tribunal at first instance had impermissibly imposed upon the Crown parties an onus of proof as to the justification for the fees and charges incurred by the impounding authority. We agree.
Under the Impounding Act, the fees and charges payable under s 27(1), in our opinion, are those reasonably incurred by the impounding authority.
The applicants argued, in summary, that they had the ability, at the time of the impounding, to agist and care for all of the animals in such a way that significantly less cost would have been incurred than the fees and charges levied.
Even if we accept that those assertions were true (and no evidence was produced to support them), there is no obligation upon the impounding authority to confer with the owners and investigate the arrangement which will incur the least cost. In our opinion, the costs simply have to be costs reasonably incurred by the impounding authority.
In relation to the portable stockyards, the Tribunal at first instance said at [89]: The exception to this position is Mr Targett's claim in relation to the portable stockyards. Mr Targett's evidence was that he was present on the day of the impounding of the stockyards and offered to remove them so as to mitigate the costs associated with removing and storing the yards. He was also able to produce a bill of sale for the stockyards. Nevertheless, his request was refused. In my view, this refusal was not reasonable in the circumstances.
The explanation given on behalf of the Crown parties for refusing to allow Mr Targett to take his stockyards at a point after the decision had been made to impound them but prior to the impounding authority taking them into custody was that the stockyards were needed to move the animals.
The Impounding Act 1993, in s 23 says: 23 Owner can obtain release of impounded item (1) Application may be made to an impounding authority for the release of an impounded item held by it or impounded by one of its impounding officers. The application may be made at any time before the item is sold or disposed of. (2) The impounding authority must release the item to the applicant if: (a) the authority is satisfied on reasonable grounds that the applicant is the owner of the item, is authorised to claim the item on the owner's behalf or is otherwise entitled to lawful possession of the item, and (b) all fees and charges payable in respect of the impounding, holding and disposing of the item are paid to the impounding authority, and (c) the authority is satisfied that all penalties imposed in connection with the event that gave rise to the impounding have been paid, and (d) the applicant signs a receipt for the release of the item.
At the time of his request to take the stockyards, to the knowledge of the impounding authority, Mr Targett was in a position to satisfy the prerequisites of s 23 of the Impounding Act. We agree that the incurring of the cost of moving and storing the stockyards, incurred in the face of Mr Targett's offer to remove them, was not reasonable. The Impounding Act does not contemplate that an item will be impounded and stored because the impounding authority needs to use it.
Mr Targett should not be charged for the moving or the storage of the stockyards.

Crown Parties Ground of Appeal No 6

The Crown parties submitted that the Tribunal at first instance should not have made orders in relation to each matter with respect to the imposition of fees or charges for the release of the impounded animals with respect to some of the costs incurred in the keeping of the horses. The Crown parties said that, given that the Tribunal had found that there was insufficient evidence to establish the ownership of the horses definitively, the making of the orders as to charges was inconsistent with that finding.
The orders made in relation to the horses were all in the following terms: (2) The decision to impose fees or charges for release of the impounded animals and articles is to be varied so as to not include: (a) charges imposed in relation to the care for the horses such as drenching, manes clipping and trimming of hooves; or (b) charges imposed in relation to the veterinary care for the horses. (3) The decision to impose fees and charges is otherwise affirmed.
Pursuant to s 38(2) of the Impounding Act, the appeal to the Tribunal by the owner in relation to fees and charges is limited to the fees or charges required to be paid for the release of an item (which, it will be remembered, includes an animal) and the grounds that the fee or charge has been improperly charged or incorrectly calculated or is excessive.
We agree that there was no sound basis for disallowing the charges set out in order (2).
In those circumstances, the only matter in which it is appropriate to address the issue of fees and charges is in relation to Mr Targett's stockyards.

Conclusion

We make the following orders: 1. The appeals by the applicants against the decision of the Tribunal at first instance that the decision of the impounding authority to impound the animals and articles was lawful and is affirmed are dismissed. 2. The Crown parties' appeals against the decision of the Tribunal at first instance that the decision of the impounding authority to impose charges in relation to the care of the horses such as drenching, manes clipping, trimming of hooves and veterinary care of the horses for the release of the impounded horses should be varied are allowed. 3. The Crown parties' appeal in relation to the decision by the Tribunal at first instance to vary the decision of the impounding authority to impose a charge on the release of the stockyards to Mr Targett is dismissed. 4. The time within which Janice Denny, Garry Targett, Jamie Power and Sue-Anne Clarke may make an application for the administrative review of the impounding decisions which resulted in the impounding of animals and articles at Candelo NSW on 11 and 12 December 2017 is extended to 23 May 2018. 5. The orders of the Tribunal at first instance are set aside, and the following orders are substituted: In matter 2018/00161488 (Denny v Commissioner of Police, NSW Police Force) 1. The decision to impound the animals and articles was lawful and is affirmed. 2. The decision to impose fees and charges for the release of the impounded animals is affirmed. In matter 2018/00161629 (Targett v Commissioner of Police, NSW Police Force) 1. The decision to impound the animals and articles was lawful and is affirmed. 2. The decision to impose fees and charges for the release of the impounded animals is affirmed. 3. The decision to impose a charge for the removal and storage of the stockyards is reversed. The stockyards are to be released to Mr Targett without charge. In matter 2018/00161523 (Power v Commissioner of Police, NSW Police Force) 1. The decision to impound the animals and articles was lawful and is affirmed. 2. The decision to impose fees and charges for the release of the impounded animals is affirmed. In matter 2018/00161619 (Clarke v Commissioner of Police, NSW Police Force) 1. The decision to impound the animals and articles was lawful and is affirmed. 2. The decision to impose fees and charges for the release of the impounded animals is affirmed. Costs 1. Any application for costs must be filed and served within 14 days of the publication of this decision, together with written submissions in support of that application. Any application for costs must be accompanied by written submissions on the question of whether a hearing on the question of costs may be dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013 on the basis that the question of costs can be adequately determined in the absence of the parties by considering the written submissions on costs. 2. Any response to any application for costs must be filed and served within 14 days of the date of the filing of the application for costs, together with written submissions in support of that response. Any response must be accompanied by written submissions on the question of whether a hearing on the question of costs may be dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013 on the basis that the question of costs can be adequately determined in the absence of the parties by considering the written submissions on costs. 3. Any reply to the response to any application for costs must be filed within 7 days of the date of the filing of the application for costs.

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: 22 November 2019

Impounding Act 1993(NSW)

At a glance

Court

Decision date

Source

Judgment (26 paragraphs)

Legislation Cited (3)

Cases Cited (1)

Cited By (2)