Coomber v Moree Plains Shire Council

Tribunal's jurisdiction

1. Section 38(1) of the Impounding Act provides that the owner of an impounded item (including cattle) may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (NSW) (ADR Act) of the decision to impound the item, but only on the ground that the impounding was unlawful. Section 63 of the ADR Act empowers the Tribunal to decide what the correct and preferable decision is, having regard to the material then before it. In determining the application the Tribunal may affirm, vary or set aside the decision and make a decision in substitution for the administratively reviewable decision it set aside.

These Proceedings

1. Mr and Mrs Coomber conceded that the Application was lodged outside the time allowed by law and claimed they suffered ill health and were involved in other litigation "which has entailed extreme physical and mental stress" on both of them.
2. On 9 April 2019 the Tribunal made orders (and/or directions) (the April Orders) in These Proceedings including the following : 1 Ronald George Coomber and Wendy Gai Coomber are to give to the Tribunal and all other parties, a statement as to the basis on which they claim the Tribunal has jurisdiction under s 38 of the Impounding Act 1993, and the orders they seek from the Tribunal, on or before 03 May 2019. 2 Moree Plains Shire Council and Julie Anne Butler are to give to the Tribunal and the applicants submissions and a summary of legal arguments as to whether the Tribunal has jurisdiction, and any supporting evidence, on or before 17 May 2019. 3 Ronald George Coomber and Wendy Gai Coomber are to give to the Tribunal and the other parties any material in reply, on or before 24 May 2019. 4 The proceeding is listed for determination of the question of jurisdiction and further directions on 04 June 2019 …
3. Mr and Mrs Coomber did not comply with the April Orders.
4. On 16 May 2019 Ms Butler filed and served a document named "Second Respondent's Statement of Issues" (the May Statement). In the May Statement Ms Butler claimed, amongst other matters: 32. The Tribunal ought to dispense with the need for an oral hearing and dismiss [These Proceedings] on the papers.
5. Ms Butler provided detailed reasons in support of her claim.
6. Pursuant to order no 4 of the April Orders further orders/directions were made by the Tribunal on 4 June 2019 (the June Orders) including: 1 The Tribunal notes: (1) the applicants requested an adjournment of today's directions hearing, by email on Friday 31 May 2019. That request was refused on 3 June 2019. Wendy Coomber informed the Tribunal by email on 3 June 2019 that due to ill health Ronald Coomber would be unable to participate in the directions hearing either in Sydney or by telephone. (2) Wendy Coomber was able to participate in the directions hearing by telephone and agreed to the directions made below. (3) the Council officer with carriage of this matter … could not be contacted as he is on leave. The directions made include an opportunity for the Council to make submissions. 2 The Tribunal notes: (1) the directions made on 9 April 2019 required Ronald Coomber and Wendy Coomber to provide to the Tribunal and the other parties a statement as to the basis on which they claim the Tribunal has jurisdiction under s 38 of the Impounding Act 1993 and the orders they seek from the Tribunal, by 3 May 2019. (2) No submissions have been received from the applicants. Wendy Coomber advises that they require further time, both because of ill health and in order to obtain legal advice from a barrister she consulted on 30 May 2019. (3) The Tribunal has received from the second respondent Julie Butler a statement of issues annexing documents. At paragraph 32 of that document the second respondent requests the Tribunal to dismiss the proceedings on the papers, providing 10 reasons for doing so. 3 On or before 25 June 2019 Ronald George Coomber and Wendy Gai Coomber are to give to the Tribunal and all other parties any evidence and submissions in response to the request by the second respondent that the proceedings be dismissed, including submissions clarifying the basis on which they contend that the Tribunal has jurisdiction. [June Order No 3] 4 On or before 25 June 2019 Moree Plains Shire Council is to give to the Tribunal and all other parties any evidence and submissions in response to the documents provided by the second respondent.
7. By Application for Miscellaneous Matters form dated 14 June 2019 (the June Application) Mr and Mrs Coomber applied for two orders against the Council and Ms Butler. The orders sought were: URGENT INTERLOCUTORY INJUNCTION. 1. Order to the First Respondent, Moree Plains Shire Council, which instructed Stock and Station Agents, Davidson Cameron & Co, Balo Street, Moree, NSW. 2400, to sell the Applicants' nine (9) head of Salers Stud Breeding Cattle at the Fat (Slaughter) Auction Sale at Moree Saleyards on Wednesday, 12th June 2019, to have those cattle returned and correctly impounded at Moree Saleyards. 2. Order for Stock and Station Agents, Davidson Cameron & Co. Balo Street, Moree, NSW, 2400, to be joined in Matter No. 2019/00074146 as Third Respondent. as they acted as Agents for First Respondent.
8. The instructions on the June Application form included: Specify the orders you are seeking from the Tribunal and the section of the Civil and Administrative Tribunal Act 2013 or other legislation under which those orders can be made.
9. The grounds in support of the June Application were: Applicants' nine (9) head of Stud Salers Breeding Cattle which were impounded at Moree Saleyards by the First and Second Respondents, were sold by the First Respondent contrary to the provisions of Clause 4, Section 38, Part 6 of the NSW Impounding Act 1993 No. 31. Currently the Administrative and Equal Opportunity Division of the NSW Civil and Administrative Tribunal has open Case 2019/00074146 and herewith, as Addendum "B" is a copy of the current Orders which are applicable to all Parties. Herewith as Addendum "C" is an extract of Page 20 of the NSW Impounding Act 1993 Section 31 showing the terms of Clause 4, Section 38, Part 6. Herewith, as Addendum "D" are notes of the actions and knowledge of which the Applicants became aware on Wednesday, 12th June 2019 and actions then taken, accompanied by copies of communications, notes and a photograph.
10. By email dated 23 June 2019 to the Tribunal, the Council and the solicitors for Ms Butler, Mr Coomber: 1. for himself and Mrs Coomber referred to the June Orders and requested that June Order No 3 be postponed until "a result of the Urgent Interlocutory Order is achieved" and stated that they had requested the assistance of a Solicitor and Barrister from the Law Society and the Bar Association; and. 2. referred to the June Orders and advised he now had a differing view regarding the jurisdiction issue being determined on the papers.
11. By email dated 24 June 2014 Mrs Coomber for herself and Mr Coomber informed the Tribunal, the Council and the solicitors for Ms Butler "we have handed this matter to a Barrister and Solicitor in Sydney and we will advise NCAT when they will be free for a Telephone Hearing". The Tribunal has received no communication from or on behalf of any relevant barrister or solicitor.
12. The Tribunal heard the June Application on 1 July 2019. Each of Mr and Mrs Coomber, and representatives of the Council and Ms Butler attended by phone. For much of the hearing Mr Coomber represented himself and Mrs Coomber. During the hearing: 1. Mr Coomber conceded that no order was sought against Ms Butler. Accordingly by consent Ms Butler's legal representative was excused further attendance; 2. Mr Coomber conceded that the Tribunal had no jurisdiction under s 38(4) of the Impounding Act 1993 to make the first order sought in the June Application; 3. Mr Coomber withdrew the application for the second order sought in the June Application. 4. Mr Coomber stated that he and Mrs Coomber had been seeking legal representation for two years.
13. On 8 July 2019 the Tribunal published orders following the 1 July 2019 hearing of the June Application. Those orders included a variation of June Order No 3. The varied order stated: 3 On or before Monday 15 July 2019 Ronald George Coomber and Wendy Gai Coomber are to give to the Tribunal and all other parties any evidence and submissions in response to the request by the second respondent that the proceedings be dismissed, including submissions clarifying the basis on which they contend that the Tribunal has jurisdiction in respect of each order sought by the applicants; that the applicants identify each section or clause in legislation which they assert provides jurisdiction in respect of each order sought and that the applicants identify each respondent they seek each order against. The applicants may not rely on any submissions or evidence filed or served after 12 July 2019 [sic] pursuant to this order without leave of the Tribunal.
14. Varied Order No 3 effectively extended Mr and Mrs Coomber's time for compliance with June Order No 3 from 25 June 2019 to 15 July 2019.

Adjournment Application

1. On Friday 12 July 2019 at 5.34 pm Mr Coomber, for himself and Mrs Coomber sent an email to the Tribunal, the Council and Ms Butler's solicitors which included a submission that the hearing of These Proceedings should be adjourned until AP 19/13485 was determined which Mr Coomber understood "will be in the very near future" as those two Tribunal matters "should not be considered concurrently by NCAT" and if they were then "there will be dual litigation in place".
2. By email dated Monday, 15 July 2019 at 10:30 PM Mr and Mrs Coomber sent the Tribunal a document headed "Submission of Facts and Issues" including submissions in support of adjourning These Proceedings. The submissions included: 1. consideration of the 12 July 2019 email; 2. that the Applicants do not have any "qualified legal knowledge" and they sought "fair treatment" in accordance with the Tribunal's "Member Code of Conduct"; 3. the Applicants were subject to conduct by the Second Respondent under a situation where they, at least impliedly, suffered "special disadvantages … deriving from age, illness, poverty, inexperience or lack of education"; and 4. medical certificates.
3. On 17 July 2019 the Respondents were provided an opportunity to make submissions on Mr and Mrs Coomber's adjournment application. Both Respondents opposed the adjournment. For reasons set out below there is no need to consider the Respondents' submissions in any detail.

Appeal Matter 2019/13485

1. Appeal Matter 2019/13485 was an appeal to the Tribunal by Mr and Mrs Coomber to set aside a decision of the Tribunal sitting as the Appeal Panel on 31 January 2019 in matter AP 2019/00165. Mr and Mrs Coomber as the appellants in AP 2019/00165 had withdrawn their appeal which had then been dismissed. Mr and Mrs Coomber later changed their minds and unsuccessfully sought in Appeal Matter 2019/13485 to reinstate their dismissed proceedings.
2. On 31 July 2019 the Appeal Panel of the Tribunal made a decision in Coomber v Butler [2019] NSWCATAP 194, file number AP 2019/13485, which dismissed .the application to set aside the dismissal of AP 2019/00165
3. On 1 August 2018 the Tribunal received an email from Mr and Mrs Coomber The email was copied to the Council and Ms Butler's solicitors. Attached to the email was a document headed "Further submission of facts and issues" dated both 1 August 2019 and 15 July 2019 [sic] and signed by both Mr and Mrs Coomber. Most of the document repeated previous submissions by Mr and Mrs Coomber. However, at paragraph 4 (b) Mr and Mrs Coomber relevantly state that they agree that These Proceedings "now be handled as soon as possible by the Senior Member concerned, in whichever way he wishes".
4. In the circumstances I find that Mr and Mrs Coomber's application that These Proceedings be adjourned for the various reasons they previously gave is now withdrawn. Accordingly there is no reason to further consider the Respondents' objection to the adjournment application.

Application by Ms Butler to dismiss These Proceedings, and the issue of jurisdiction

1. On 8 July 2019 the Tribunal issued orders including the following: 3 Having considered the request from the applicants that Order No 3 of the orders made on 4 June 2019 (Order No 3) be postponed until a result of the "Urgent Interlocutory Order" is achieved and the result of the applicants' Interim Application the Tribunal directs that Order No 3 is varied so as to read: 3 On or before Monday 15 July 2019 Ronald George Coomber and Wendy Gai Coomber are to give to the Tribunal and all other parties any evidence and submissions in response to the request by the second respondent that the proceedings be dismissed, including submissions clarifying the basis on which they contend that the Tribunal has jurisdiction in respect of each order sought by the applicants; that the applicants identify each section or clause in legislation which they assert provides jurisdiction in respect of each order sought and that the applicants identify each respondent they seek each order against. The applicants may not rely on any submissions or evidence filed or served after 12 July 2019 [sic] pursuant to this order without leave of the Tribunal. 4 I make the following additional order which for convenience I will number "6". 6 On or before Monday 22 July 2019 each of Moree Plains Shire Council (the first respondent) and the second respondent may give to the Tribunal and all other parties any evidence and submissions in reply to any material provided to them and the Tribunal pursuant to Order No 3.
2. On 15 July 2019 Mr and Mrs Coomber emailed a document headed "Submission of Facts and Issues" to the Tribunal (the July Submission). Part of that document has been dealt with above in relation to Mr and Mrs Coomber's application to adjourn These Proceedings.
3. To the extent that the July Submission may be relevant to varied Order No 3 published 8 July 2019 I note that: 1. The only order sought by Mr and Mrs Coomber in These Proceedings is "Unlawfully impounded nine (9) head of Salers Cattle to be released and returned to Applicants." 2. Order No 3 required Mr and Mrs Coomber to "identify each section or clause in legislation which they assert provides jurisdiction in respect of each order sought". Mr and Mrs Coomber failed to identify any relevant section or clause in legislation on which they relied.
4. Mr and Mrs Coomber commenced These Proceedings against the Council and Ms Butler. Contrary to Order No 3 Mr and Mrs Coomber have not identified with any clarity the party to these proceedings against whom they seek any relevant order.
5. In addition, there is evidence before the Tribunal of the sale(s) of the Impounded Cattle to third parties. Mr Coomber confirmed his knowledge of such sale(s) in paragraph 3 of his email sent to the Tribunal at 8.32 am on 19 June 2019. There is no evidence before the Tribunal that any Impounded Cattle are in the possession or under the control of either the Council or Ms Butler. Nor is there any evidence that either or both of the Council and/or Ms Butler have any power to take any action to "release" or "return" to Mr and Mrs Coomber at any identified location any or all of such cattle nor have Mr and Mrs Coomber identified any relevant legislative or case law authority that the Tribunal has jurisdiction to make any effective order in relation thereto.

Determination of issues without hearing

1. On 4 June 2019 the Tribunal made, amongst other orders/directions, the following order/direction: 5. Wendy Coomber and the second respondent consent to the question of jurisdiction being determined on the papers. If Ronald Coomber or the Council have a different view they are to include in their submissions any submission as to whether it is appropriate to dispense with a hearing on that issue. Subject to consideration of any such submissions the Tribunal proposes to dispense with a hearing and determine the question of jurisdiction on the papers.
2. The Council submitted that the Tribunal ought to dispense with an oral hearing and the jurisdictional issue in these proceedings should be determined on the papers.
3. By email dated 23 June 2019 Mr Coomber stated: I have a differing view regarding the jurisdiction being determined on the papers, particularly as the Council and their Agents illegally sold our cattle and consequent developments."
4. The alleged "illegality" of any sale is an allegation and not a determination by a court or tribunal. I find the reference to "consequent developments" lacks clarity and meaning.
5. Section 50 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) provides amongst other matters that hearings are not required if the Tribunal makes an order under s 50 dispensing with a hearing. Section 50 also provides (2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. (3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first: (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. (4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.
6. The parties have had several opportunities to make submissions concerning the proposed order and those submissions have been taken into account. I have also taken into account the medical certificates and submissions by Mr and Mrs Coomber concerning their health and have formed the opinion that a determination on the papers of Ms Butler's application for these proceedings to be dismissed may be less stressful to Mr and Mrs Coomber than if an oral hearing was held with the possibility that either or both Mr and Mrs Coomber may be subject to cross-examination.

Orders issued 8 July 2019 3 Having considered the request from the applicants that Order No 3 of the orders made on 4 June 2019 (Order No 3) be postponed until a result of the "Urgent Interlocutory Order" is achieved and the result of the applicants' Interim Application the Tribunal directs that Order No 3 is varied so as to read: 3 On or before Monday 15 July 2019 Ronald George Coomber and Wendy Gai Coomber are to give to the Tribunal and all other parties any evidence and submissions in response to the request by the second respondent that the proceedings be dismissed, including submissions clarifying the basis on which they contend that the Tribunal has jurisdiction in respect of each order sought by the applicants; that the applicants identify each section or clause in legislation which they assert provides jurisdiction in respect of each order sought and that the applicants identify each respondent they seek each order against. The applicants may not rely on any submissions or evidence filed or served after 12 July 2019 pursuant to this order without leave of the Tribunal. 4 I make the following additional order which for convenience I will number "6". 6 On or before Monday 22 July 2019 each of Moree Plains Shire Council (the first respondent) and the second respondent may give to the Tribunal and all other parties any evidence and submissions in reply to any material provided to them and the Tribunal pursuant to Order No 3. 5 I have considered: (1) Mr Coomber's "differing view regarding the jurisdiction being determined on the papers" and the reasons he has provided to the Tribunal for that view; and (2) the guiding principle set out in s 36 of the Civil and Administrative Tribunal Act 2013 (CAT Act) which requires the Tribunal "to facilitate the just, quick and cheap resolution of the real issues in the proceedings" and ss 49 and 50 of the CAT Act (which relate to hearings being open to the public and when hearings are required). 6 After considering material already filed with the Tribunal in relation to the second respondent's dismissal application and any other relevant material filed pursuant to Orders No 3 and 6 above I may make an order dispensing with a hearing if I am satisfied that the issues for determination in respect of the dismissal application can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. The parties will be informed of any such order and determination.

1. I assume from my consideration of paragraph 4(b) of Mr and Mrs Coomber's submissions dated 1 August 2019 that Mr and Mrs Coomber both agree to Ms Butler's dismissal application being dealt with on the papers without a hearing.
2. If my assumption is not correct then having regard to the orders issued 8 July 2019 I am satisfied that the issues for determination in respect of the dismissal application can be adequately determined in the absence of the parties by considering written submissions and other documents or material lodged with or provided to the Tribunal.
3. Accordingly I determine that Ms Butler's dismissal application may be determined on the papers without the need for a hearing.

The Tribunal's powers of dismissal

1. Section 55 of the CAT Act provides for dismissal of proceedings by the Tribunal. Section 55 relevantly states: (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances: (a) … (b) if the Tribunal considers that the proceedings are … misconceived or lacking in substance, (c) … (d) if the Tribunal considers that there has been a want of prosecution of the proceedings.
2. June Order No 3 required Mr and Mrs Coomber to give the Tribunal and the other parties any evidence and submissions in response to Ms Butler's application that These Proceedings be dismissed.
3. The order sought by Mr and Mrs Coomber against the Council and Ms Butler as respondents was "Unlawfully impounded nine (9) head of Salers Cattle to be released and returned to Applicants."
4. Section 38(1) of the Impounding Act 1993 provides "The owner of an impounded item may apply to the Civil and Administrative Tribunal for an administrative review … of the decision to impound the item, but only on the ground that the impounding of the item was unlawful."
5. The Council conceded for itself that the Impounded Cattle were the property of Mr and Mrs Coomber. However, no similar concession was made by Ms Butler who required Mr and Mrs Coomber to prove their case. Mr and Mrs Coomber alleged, but provided no evidence that, they were the owners of the cattle at any relevant time.
6. Section 12 of the Impounding Act provides "an occupier of private land may impound any animal that is trespassing on the land." Mr and Mrs Coomber provided no evidence that any of the cattle were not trespassing on the Property at the time of any impounding. There is no dispute that Ms Butler owned and occupied the Property at all relevant times.
7. Contrary to June Order No 3 Mr and Mrs Coomber did not by 25 June 2019 or any other date provide evidence in response to Ms Butler's application that These Proceedings be dismissed,.
8. Contrary to varied Order No 3 published 8 July 2019 Mr and Mrs Coomber did not by 15 July 2019 or any other date "identify each section or clause in legislation which they assert provides jurisdiction in respect of each order sought" nor did Mr and Mrs Coomber "identify each respondent they [sought] each order against".
9. Mr and Mrs Coomber did not provide any evidence that: 1. any relevant cattle were at any relevant date in the possession or under the control of either the Council or Ms Butler; 2. either or both of the Council and/or Ms Butler had any legal power to take any action to "release" or "return" to Mr and Mrs Coomber at any identified location any or all of the Impounded Cattle after the cattle were sold to third parties;
10. Mr and Mrs Coomber did not identify any relevant authority that the Tribunal had jurisdiction to make any effective order in relation to the order(s) they sought in These Proceedings.
11. Mr and Mrs Coomber provided no relevant evidence in response to the application by Ms Butler that These Proceedings be dismissed
12. I find that my above findings at [50] to [56] evidence that These Proceedings were misconceived, lacking in substance and evidence a want of prosecution by Mr and Mrs Coomber. These findings enliven the Tribunal's power to dismiss These Proceedings pursuant to ss 55(1)(b) and (d) of the CAT Act..
13. Having regard to my above findings in relation to ss 55(1) (b) and (d) of the CAT Act the correct and preferable order of the Tribunal is that These Proceedings be dismissed.

Orders

1. I make the following orders: 1. The proceedings be dealt with on the papers without a hearing. 2. The Tribunal dismisses the proceedings. 3. If any party wishes to make an application for costs of these proceedings: 1. The party may file with the Tribunal and serve on each relevant party any submissions on costs and on whether the application should be dealt with on the papers without an oral hearing within 7 days after publication of these reasons. 2. Any party which opposes any application for costs may file with the Tribunal and serve on any party making a costs application any submission on costs and on whether the application should be dealt with on the papers without an oral hearing no later than 14 days after publication of these reasons. 3. The party making the application for costs may file with the Tribunal and serve on any party opposing the application any submissions in reply no later than 21 days after publication of these reasons. 4. Each submission served pursuant to paragraphs (a) or (b) above shall be no more than 5 pages and each submission served pursuant to paragraph (c) above shall be no more than 3 pages. 5. All submissions in relation to costs shall have regard to s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) and shall be in a font no smaller than Arial 11.

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: 14 August 2019