Mr and Mrs Coomber have applied to the Tribunal to have the decision made in these proceedings on 14 August 2019 to dismiss the proceedings (Coomber v Moree Plains Shire Council [2019] NSWCATAD 162) set aside under reg 9 of the Civil and Administrative Tribunal Regulation 2013 (the Regulation).
Reg 9 gives the Tribunal power to set aside or vary a decision that determines proceedings either with the consent of all parties (reg 9(1)(a)), or if the decision was made in the absence of party and the Tribunal is satisfied that the party's absence has resulted in that party's case not being adequately put to the Tribunal (reg 9(1)(b)).
For the reasons that follow the Tribunal has decided that the application should be refused.
[2]
Background
The proceedings were an application lodged by Mr and Mrs Coomber on 8 March 2019 under the Impounding Act 1993, in which they sought orders in the following terms:
"Unlawfully impounded nine (9) head of Salers Cattle to be released and returned to Applicants."
The background to the proceedings is summarised in the reasons of Senior Member Isenberg of 14 August 2019 as follows:
Background
4. These proceedings involve an agricultural tenancy agreement (the Lease), made in 2015 for a six month period from 10 October 2015. The Lease provided that the Second Respondent (Ms Butler) leased approximately 3,000 acres (the Property) being part of a farm Ms Butler owned at Bingara, to Mr and Mrs Coomber to enable them to farm the Property in a good husbandry manner.
5. Disputes arose between Ms Butler and Mr and Mrs Coomber in relation to the Lease resulting in multiple, including concurrent, proceedings both before the Tribunal as well as in the Supreme Court and the Federal Court.
6. There is no dispute that nine head of cattle (the Impounded Cattle), of which Mr and Mrs Coomber claimed ownership, were impounded by Ms Butler on the Property, which she then owned, on 25 January 2019.
7. On 30 January 2019 the Council issued a notice to Mr and Mrs Coomber informing them, amongst other matters that:
(1) The Impounded Cattle were in the possession of the Council at Moree Saleyards as a result of a private impoundment on 25 January 2019 and were now impounded by the Council.
(2) The Impounded Cattle must be claimed within 7 days from the date of the notice as Council had made reasonable enquiries and Mr and Mrs Coomber had advised the Impounded Cattle belonged to them.
8. The Notice provided other information to Mr and Mrs Coomber concerning the Impounded Cattle and procedures under the Impounding Act 1993 (NSW) (Impounding Act).
9. Mr and Mrs Coomber complained about the actions of Ms Butler and the Council and alleged the impounding was illegal. Mr and Mrs Coomber did not take up the Council's offer to pay claimed fees and charges and reclaim the Impounded Cattle. On the instructions of the Council, the Impounded Cattle were sold at auction on 12 June 2019.
At paragraphs [11]-[36] of the decision of 14 August 2019 Senior Member Isenberg summarised the interlocutory steps in the proceedings. A short summary of those steps, as relevant to the issues to be determined in the set aside application, is as follows.
At the first listing of the application on 9 April 2019 directions were made for Mr and Mrs Coomber to provide a statement by 3 May 2019 as to the basis on which they claimed the Tribunal had jurisdiction under s 38 of the Impounding Act, and the orders they sought from the Tribunal; for the respondents to respond by 17 May 2019; and for Mr and Mrs Coomber to reply by 24 May 2019. Mr and Mrs Coomber did not comply with those directions.
On 16 May 2019 the second respondent, Ms Butler, provided a statement of issues including a request that the proceedings be dismissed, on the papers.
Further directions were made on 4 June 2019. On that occasion Mrs Coomber participated by telephone, advising that further time was required because of ill health and in order to obtain legal advice. The representative of the second respondent also participated on that occasion by telephone. Mr and Mrs Coomber were directed to provide by 25 June 2019 their evidence and submissions in response to the application by the second respondent that the proceedings be dismissed, including submissions clarifying the basis on which they contend that the Tribunal has jurisdiction. The directions included directions for a reply by the respondents.
The directions made on 4 June 2019 included the statement that Mrs Coomber and the second respondent consented to the question of jurisdiction being determined on the papers; and that if Mr Coomber or the Council had a different view they were to include in their submissions any submission as to whether it is appropriate to dispense with a hearing on that issue. The Council submitted that the Tribunal ought to dispense with a hearing and determine the question of jurisdiction on the papers. Mr Coomber stated in an email on 23 June 2019 that he had a different view "regarding the jurisdiction being determined on the papers, particularly as the Council and their Agents illegally sold our cattle and consequent developments".
There was a further interlocutory application made by Mr and Mrs Coomber, heard by Senior Member Isenberg on 1 July 2019. The orders made on 1 July 2019 (notified to the parties on 8 July 2019) relating to that interlocutory application included an order extending the time for Mr and Mrs Coomber to provide their response to the application by the second respondent that the proceedings be dismissed, to 15 July 2019, and for the respondents to reply by 22 July 2019.
Mr and Mrs Coomber provided a document headed Submission of Facts and Issues on 15 July 2019. The second respondent provided a reply on 22 July 2019, and further submissions on 2 August 2019.
In his decision of 14 August 2019 Senior Member Isenberg considered first the question of whether a hearing should be dispensed with. Section 50(2) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) enables the Tribunal to dispense with a hearing if satisfied that the issues for determination can be adequately determined in the absence of the parties by considering their written submissions or other documents or material, having given the parties an opportunity to make submissions about the proposed order and having taken any such submissions into account under s 50(3) of the NCAT Act.
Senior Member Isenberg made an order under s 50(2), explaining his reasons in the following terms:
42. 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.
43. 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.
44. 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.
45. Accordingly I determine that Ms Butler's dismissal application may be determined on the papers without the need for a hearing.
Senior Member Isenberg then considered the dismissal application, noting that the Tribunal's power to dismiss proceedings is conferred by s 55 of the NCAT Act, relevantly s55(1)(b) and (d):
(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.
Senior Member Isenberg then stated:
47. 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.
48. 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."
49. 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."
50. 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.
51. 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.
52. 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.
53. 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".
54. 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;
55. 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.
56. Mr and Mrs Coomber provided no relevant evidence in response to the application by Ms Butler that These Proceedings be dismissed.
57. 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.
58. 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 and 2 made on 14 August 2019 were:
1. The proceedings be dealt with on the papers without a hearing.
2. The Tribunal dismisses the proceedings.
Order 3 provided directions for determination of any application for costs of the proceedings.
[3]
The Set Aside Application
On 21 August 2019 Mr and Mrs Coomber lodged an "Application to set aside or vary Tribunal decision", using the Tribunal form for applications under reg 9 of the Regulation. That form requests the applicant to state "Why were you absent when the Tribunal made the decision", to which the applicants stated:
Whilst the Applicants did not earlier object to the Tribunal Member's decision to make his determination of 14th August 2019 on papers, they now find that the reasons for Dismissal of Proceedings under Paragraph (1)(b) and (d) of Section 55, Division 4, Part 4 of the Civil and Administrative Tribunal Act 2013 were unfair and unjust and not in accordance with Paragraph (4),(a) and (b) of Clause 9, Part 3 of the Civil and Administrative Tribunal Regulation 2014.
In response to the request to "Describe in summary the case (evidence and arguments) you would have put to the Tribunal if you had not been absent", the applicants provided an Annexure, in which they state that the proceedings were not "misconceived or lacking in substance" and the Tribunal was wrong in considering "that there has been a want of prosecution"; that cl 4(a) and (b) of reg 9 was not considered; that the Member Code of Conduct had not been followed; and that the Tribunal had failed "to recognise the age, illness, medical situation, lack of legal education and poor financial situation" of the applicants; and that their various written and verbal submissions had been ignored.
Mr and Mrs Coomber seek to have orders 1, 2 and 3 made on 14 August 2019 set aside. They also seek a stay, stating that "A stay is necessary, in particular to any actions either of the respondents may take regarding Order No 3 and also in respect of the impounded and illegally sold cattle".
On receipt of the set aside application the Registrar wrote to Mr and Mrs Coomber on 23 August 2019 advising that on a preliminary view a set aside application under reg 9 of the Regulation was not appropriate and they may consider lodging an appeal. The Registrar advised that the Tribunal could treat the application as an appeal of the decision, in which case they would need to pay the applicable fee less what had been paid already. The correspondence noted that time limits apply for filing applications.
On 26 August 2019 Mr Coomber advised the Tribunal that he and his wife wished the application to be taken as a set aside application. Directions were made for the applicants to provide any further submissions in support of the set aside application and in support of the request for a stay; for the respondent to provide any submissions in reply; and for the applicants to provide any further submissions in reply. The directions included the following direction:
4. The parties are to ensure that their submissions are directed to the requirements of reg 9(1)(b) of the Regulation. Noting that s 50(1)(d) of the NCAT Act provides that a hearing is not required for the determination of a set aside application, the application will be determined on the basis of the written submissions made by the parties in accordance with these directions, after 1 October 2019.
The Tribunal has received submissions from the applicants on 10 September 2019 and reply submissions on 1 October 2019; and submissions from Ms Butler on 25 September 2019 and from Moree Plains Shire Council on 1 October 2019.
[4]
Applicable legislation
Clause 9 of the Regulation provides:
9. Additional power to set aside or vary decision determining proceedings
(1) In addition to any power that is expressly conferred on the Tribunal by the Act or enabling legislation to set aside or vary its decisions, the Tribunal may order that a decision it has made that determines proceedings be set aside or varied in either of the following circumstances:
(a) if all of the parties to the proceedings have consented to the making of the order to set aside or vary the decision,
(b) if the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal.
(2) The Tribunal may make an order under this clause of its own motion or on the application of a party.
(3) Unless the Tribunal grants an extension under section 41 of the Act, an application for an order under this clause must be made within 7 days after the decision concerned was made.
(4) Except where the parties have consented to the making of the order, the Tribunal may not make an order under this clause 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.
(5) A party may not make an application for an order under this clause to set aside or vary a decision of the Tribunal if:
(a) an internal appeal or appeal to a court against the decision has been lodged or determined, or
(b) an application for a judicial review of the decision has been made or determined.
(6) A party may not, without the leave of the Tribunal, make an application for an order under this clause to set aside or vary a decision of the Tribunal if the party has previously made an application under this clause to have the decision set aside or varied.
(7) If the Tribunal sets aside a decision under this clause, it may also set aside any orders that it made consequent on the decision that has been set aside.
Note. An example of such a consequent order may be an order for costs in the proceedings.
(8) Proceedings for the purposes of this clause are prescribed for the purposes of section 50 (1) (d) of the Act.
Note. A hearing is not required for proceedings that are prescribed for the purposes of section 50 (1) (d) of the Act.
(9) This clause does not limit any power of the Tribunal to set aside, revoke or vary its interlocutory decisions or any other decisions that do not operate to determine proceedings.
[5]
Discussion and findings
The Tribunal's power to set aside a decision under reg 9 of the Regulation requires that the Tribunal be satisfied that:
1. The decision was made in the absence of a party; and
2. That absence resulted in the party's case not being adequately put to the Tribunal.
Even if the legislative requirements for granting the application are satisfied, the Tribunal has a discretion whether or not to set aside the Tribunal's decision. It is not mandatory to do so: Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 at [74]-[80]. In exercising that discretion, the central question is whether there is a real likelihood that it would be unjust to let the decision stand, and that would only be likely to result if the party has an arguable defence or arguable case that a different decision could have been reached. Relevant considerations are why the party was absent, and whether the party had a reasonable opportunity to be heard or have their submissions considered, and whether the absent party has an arguable defence or case that a different decision could have been reached.
In these proceedings, there was no oral hearing of the application by the second respondent to dismiss the application made by Mr and Mrs Coomber, as the Senior Member had made an order under s 50(2) of the NCAT Act to dispense with a hearing. Mr and Mrs Coomber state that while they did not earlier object to the decision to dispense with a hearing and determine the matter on the papers, they now do on the basis that the reasons for dismissing the application "were unfair and unjust and not in accordance with paragraph (4)(a) and (b) of Clause 9…" of the Regulation.
The decision to dispense with a hearing is a decision for the Tribunal, having taken into account any submissions of the parties as required by s 50(3) of the NCAT Act. That decision requires the Tribunal to be satisfied that the issues for determination "can be adequately determined in the absence of the parties". Mr and Mrs Coomber had had an opportunity to object to the proceedings being dealt with on the papers, and had not objected, confirming on 1 August 2019 that they wished the matter to be handled as soon as possible by the Senior Member "in whatever way he wishes". The Senior Member considered the parties' submissions and stated his reasons for being satisfied that the issues could be adequately determined on the basis of the documents before the Tribunal.
The Tribunal having formally dispensed with a hearing, so that no party to the proceedings had a right to appear in person, it may be that it could not be concluded that the decision of 14 August 2019 was made "in the absence of…" Mr and Mrs Coomber, as required by reg 9(1)(b). If the exercise of the discretion under s 50(2) to dispense with a hearing has miscarried, a party would have a right of appeal from that decision, and it may be that as a consequence that would be the appropriate avenue for redress, and the first part of reg 9(1)(b) would not be met. However, in the absence of detailed submissions addressing these questions, it is not appropriate to express a concluded view. For the purposes of determining this application, the Tribunal adopts the course taken in Choi v University of Technology Sydney [2019] NSWCATAD 212 by Principal Member Britton and assumes without deciding that the decision of 14 August 2019 was made in the "absence" of Mr and Mrs Coomber.
The issue is whether any such absence resulted in the Coombers' case not being adequately put to the Tribunal. In their set aside application Mr and Mrs Coomber state, in response to the request to summarise the case they would have put to the Tribunal if they had not been absent that the Tribunal Member failed to recognise the age, illness, medical situation, lack of legal education and poor financial position of the applicants, or consider their various written and verbal submissions. In the submissions in support of the set aside application provided on 10 September 2019, Mr and Mrs Coomber state that their health, well being and legal knowledge prevented them from making earlier written submissions. They repeat the request for a stay so as to have the 8 head of cattle still alive which were sold by the Council kept safely. The reply submissions dated 1 October 2019 request that the second respondent's submissions be disregarded.
In response to the set aside application the second respondent submits that the applicants did not address the jurisdictional issue or follow the Tribunal orders, the applicants' case was lacking in substance, and they had failed to prosecute their case in a timely manner. The Tribunal did consider the health of the applicants. The first respondent submits that the applicants' repeated assertions as to illegal impounding and sale of the cattle are not relevant.
There is nothing before the Tribunal to support a finding that Mr and Mrs Coomber were unable to put their case in opposition to the second respondent's application for dismissal in writing in the several opportunities provided by the procedural directions for them to do so. There is no indication as to what else they might have been able to put to the Tribunal had there been an oral hearing on the question of jurisdiction. The set aside application is based on what Mr and Mrs Coomber identify to be "unfair and unjust" reasons for the decision to dismiss the proceedings, that is, a challenge to the merits of that decision. That is not relevant to the question of whether their "absence" resulted in their case as to the dismissal application not being adequately put to the Tribunal.
The Tribunal is not satisfied that the requirements of reg 9(1)(b) are met. Further, there is no basis in the submissions provided by the applicants that would suggest that even if reg 9(1)(b) was met the residual discretion to set aside a decision should be exercised in their favour. The applicants had several opportunities to make their submissions, as recounted by Senior Member Isenberg at paragraphs [11]-[24] and [47]-[54] of his reasons, and, as he concluded at [35], and [54]-[56], had not identified with clarity the party against whom they sought any relevant order, or any relevant authority that the Tribunal has jurisdiction to make any effective order in relation to the orders sought, and had provided no relevant evidence in response to the application for dismissal. The Member took into account the medical evidence and submissions concerning their health, and the statements that legal assistance had been sought. The Tribunal is not satisfied that it could be said that the applicants had an arguable defence or arguable case that a different decision could have been reached: as noted by Senior Member Isenberg at [36], the evidence is that the cattle have been sold, and are no longer in the possession or control of either respondent; and the applicants had not identified any relevant legislation or case law that the Tribunal has jurisdiction to make any effective order in relation to them.
For that latter reason, the request for a stay in the set aside application is misconceived: the cattle being no longer in the possession or control of either respondent, there is no effective order that could be made in the terms sought.
[6]
Orders
The Tribunal orders:
1. The application made by Mr and Mrs Coomber under reg 9 of the Civil and Administrative Tribunal Regulation 2013 for an order to set aside the decision made on 14 August 2019 is refused.
[7]
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: 05 November 2019