Denny v Bega Valley Shire Council - [2023] NSWCATAD 78 - NSWCATAD 2023 case summary — Zoe

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Denny v Bega Valley Shire Council

[2023] NSWCATAD 78

NCAT Administrative and Equal Opportunity|2023-02-23

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Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2023-02-23

Catchwords

Commissioner of Police, NSW Police Force and State of NSW v Power
Commissioner of Police, NSW Police Force and State of NSW v Targett
Commissioner of Police, NSW Police Force and State of NSW v Clarke
Denny v Commissioner of Police, NSW Police Force and State of NSW

Source

Original judgment source is linked above.

Catchwords

Commissioner of Police, NSW Police Force and State of NSW v PowerCommissioner of Police, NSW Police Force and State of NSW v TargettCommissioner of Police, NSW Police Force and State of NSW v ClarkeDenny v Commissioner of Police, NSW Police Force and State of NSWTargett v Commissioner of Police, NSW Police Force and State of NSWPower v Commissioner of Police, NSW Police Force and State of NSW

Judgment (10 paragraphs)

[1]

REASONS FOR DECISION

On 21 September 2022, after receiving phone calls from the public, Bega Valley Shire Council (the Respondent) impounded two bulls which were wandering on public and private land in Tantawangalo, NSW. After scanning the ear tags of the bulls, it was determined that they were owned by Janice Northey, also known as Janice Louise Denny (the Applicant).
The Respondent sent written notices of the impoundment to the Applicant's address on 21 September 2022, pursuant to s 20 of the Impounding Act 1993 (the Act). The Applicant received the notifications in the post on 27 September 2022 and then contacted the Respondent to discuss release of the two bulls from the impoundment facility. The Applicant did not pay the fees charged for the impoundment pursuant to s 23 of the Act and so the bulls were not released to her.
On 30 September 2022 the Applicant gave notice to the Respondent that she intended to apply to this Tribunal for breaches of the Act in relation to the two bulls impounded. On 19 October 2022, the Applicant filed substantive and interim/stay applications with the Tribunal for review of the Respondent's decisions of 21 September 2022. The interim application sought: 1. That the two bulls be returned to her without cost to mitigate costs arising until determination of matter; 2. That the two bulls are not to be sold or disposed of until final determination of the matter; and 3. That [the Respondent] contribute to the costs of repair of [the Applicant's] boundary fence.

[2]

Miscellaneous Application

At the conclusion of the hearing on 23 February 2023, after the Tribunal's decision was reserved, the Tribunal asked the parties to forward "word versions" of their written submissions to the Tribunal's email address. Instead of doing so, the Applicant filed a miscellaneous application on 3 March 2023 seeking additional orders to those sought in her application of 19 October 2022: Impounding Act 1993. Please find attached material. Breaches of the Impounding Act by BVSC Sec 21. (1)(a)(b)(e) - DIRECT EXPOSURE TO QUARANTINED LIVESTOCK - SEEK URGENT ORDERS THAT THE BVSC HAVE THE 2 BULLS SUBJECT TO THESE PROCEEDINGS, EXTENSIVELY VETED, BLOOD TESTED AS PER REQUIREMENT UNDER DPI INFECTIOUS DISEASES AND REPORT PROVIDED TO MYSELF AND THE TRIBUNAL FOR CONSIDERATION. I SEEK FURTHER ORDERS: 38 (1)(5) 45(3) TO BE DETERMINED - LOSS OF BULLS IF INFECTED HAVE TO BE SLAUGHTERED. LOSS OF INCOME. 2 separate impounding events.
As grounds for the miscellaneous application, the applicant wrote: Because of the breaches to the Impounding Act 1993 BVSC HAVE BEEN BOTH VEXATOUS AND NEGLEGENT IN THE HANDLING OF THIS MATTER. I SORT ORDERS ORIGINALLY TO HAVE BULLS RETURNED 38.5 Imp Act 1993 BUT BVSC REFUSED TO MITIGATE IN ANY WAY. THE DANGER TO MY LIVESTOCK WITHIN BVSC POUND WAS PUT TO THE TRIBUNAL VERY EARLY IN THE PROCEEDINGS. THE ANIMALS HAVE BEEN EXPOSED NOW FOR SEVERAL MONTHS BOTH TO FIREWEED AND DISEASE, I HAVE ALSO LOST THE YEAR BREEDING. 35 head of cows. Estimated loss of $52,000.
The Tribunal made the following orders on 7 March 2023 in relation to that miscellaneous application: 1) The applicant is to provide to the respondent and the Tribunal any written submissions or material she intends to rely on in relation to the miscellaneous application by 10 March 2023; 2) The respondent is to provide to the applicant and the Tribunal any written submissions or material they intend to rely on in relation to the miscellaneous application by 14 March 2023; 3) The parties are to address in their written submissions, whether a hearing in relation to the miscellaneous application can be dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2014. NOTE: the substantive proceedings are presently reserved, awaiting a decision. The applicant has made the application for miscellaneous matters seeking various additional orders. The applicant will need to address in her submissions the basis upon which the Tribunal should grant leave for the consideration of the new orders sought (see Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at [4]-[5] regarding protracted proceedings). The applicant will also need to demonstrate the basis upon which the orders sought can be made, even if leave is granted.
Written submissions, a USB containing photographs, and a number of printouts from the Department of Primary Industries website were provided by the Applicant in relation to the miscellaneous application on 10 March 2023. The respondent filed additional written submissions on the miscellaneous application on 14 March 2023.
The Applicant's submissions expanded on the orders sought in the miscellaneous application: 1) orders that a proper veterinary inspection is undertaken as per the requirements for testing within the guidelines of the Department of Primary Industries for such diseases and fireweed damage to the bulls and a certificate is supplied to the Tribunal and myself for clearance of the bulls health. 2) That if the bulls have to be slaughtered, that I am renumerated by BVSC for my losses of the livestock and the cost of replacement bulls 3) That I am compensated for the loss of my cows not being in calf for this year $52,000 4) That if the bulls are cleared of any disease or damage they be immediately returned to me without any costs upon me. 5) Because there are two separate impound notices each bull would bare half the loss of income being $26,000 each, I seek orders to compensate me for this loss of income.
Despite the Tribunal's note to the parties accompanying the orders of 7 March 2023, the Applicant made no submissions as to the basis upon which the Tribunal should grant leave to consider a miscellaneous application after its decision was reserved. She said: I understand at the last hearing the member asked for both parties to submit written final submissions, I have difficulty in making such submissions without an order being put in place to make determination on the health of the animals impounded. Until a proper veterinary clearance is supplied neither the member or myself know the magnitude of the situation we are dealing with or to be able to make such a determination in relation of what would constitute breaches of the Impounding Act 1993.
As submitted by the Respondent, the issues raised by the Applicant in the miscellaneous application, including the grounds for the application and her submissions, were all previously raised by her in these proceedings, in both the interim/stay application and at the substantive hearing. The Applicant has made no submissions as to why leave should be granted to hear the miscellaneous application, whether the Tribunal can actually make the orders now being sought, or whether a new or further hearing is required. The Respondent submitted that the Tribunal also does not have jurisdiction to make the orders sought by the Applicant.
In the circumstances, leave is refused and the miscellaneous application is dismissed. Leave is also refused to the Applicant in relation to the additional evidence filed or otherwise provided to the Tribunal and Respondent after the decision was reserved on 23 February 2023.

[3]

Respondent's evidence

The respondent filed statements from Max Shellard dated 21 September 2022, Trudi Badullovich dated 8 November 2022, Robert Cross dated 10 November 2022, and Jo Ballantyne dated 11 November 2022. On the basis that they were not required for cross examination by the Applicant and there were no objections to their statements, the Tribunal accepts each of their evidence.
Max Shellard is a civil engineer who lives at 755 Tantawangalo Lane. At about 10.30am on 21 September 2022 he saw the two bulls (the subject of these proceedings) walking up Tantawangalo Lane on his property. They could only have entered his property "through the river as the block of land they are on is not fenced appropriately for animal containment". He had also seen the same two bulls on the road at Tantawangalo Lane about 3 months prior.
Trudi Badullovich is the Respondent's Acting Ranger Coordinator. She received a call from a member of the public about the bulls walking together along Tantawangalo Lane at about 10.54am on 21 September 2022. She sent Ranger Robert Cross out to investigate. At about 12pm she heard the Range Administration Officer put a call on loudspeaker from a resident on Tantawangalo Lane who said there were two bulls on their property that had wandered in from the creek, that the fence wasn't complete along the boundary of the creek and that the bulls would be able to wander back out into the creek and back onto the road if they were left on his property. Ms Badullovich relayed that information to Robert Cross and sent him to obtain a statement and secure the bulls. Rangers Badullovich and Ballantyne arrived at Tantawangalo Lane between 1.30pm and 1.50pm and Ranger Badullovich saw the two bulls on a private parcel of land opposite 755 Tantawangalo Lane. With some assistance, the rangers moved the two bulls to a secure yard in the area. Ranger Badullovich scanned the bulls' ear tags and relayed the information to the ranger Administration Officer who confirmed their owner as Janice Northey, also known as Janice Denny. She placed laminated impound notices on the yard the bulls were secured in and on the front gate of the property, and left the bulls with food and water. She returned to the Rangers Office, prepared a notice of impoundment for each of the bulls and posted them at the Bega Post office at 4.50pm on 21 September 2022.
The next day on 22 September 2022 at about 12.30pm the two bulls were transported to the Council Pound facility, where they have been kept since. On 23 September 2022 at about 1.55pm a vet from Local lands Services inspected the bulls and said they appeared to be in good condition and health.
On 27 September 2022 at about 1.44pm the Applicant first contacted the Respondent in relation to the bulls being impounded, after she received the posted impoundment notices. Ranger Badullovich informed the Applicant that the bulls had incurred impoundment fees of $798 comprising $94 stock handling fee, $528 stock sustenance fee for 2 cattle per day for 8 days, and $176 for two administrative fees for the Service of Notices of Impounding. The Applicant complained that she should have been telephoned and she "would have gone and got them". She told Ranger Badullovich that she knew the bulls had been out and knew where they had gotten out from, where a black wattle had fallen over a fence. She knew they had been missing because they didn't come back for a feed "that night", but gave no explanation why she Hadn't contacted the council prior to 27 September 2022. Ranger Badullovich explained that she had notified her in writing as was required by the Act, that the impounding fees would continue increasing the longer they were kept, and that there were also transport fees to be paid once an invoice had been received by her.
The following day, the Applicant phoned Ranger Badullovich again at about 2.44pm and said she had managed to collect $600 for the release of the impounded bulls. The Applicant said that she could not afford the total amount owing and would "have to go to NCAT", on the basis that the bulls were impounded illegally: I told Ms Denny that I didn't believe she had a lawful right to appeal through NCAT, just because she could not afford the impounding fee's, Ms Denny then told me that she believed I impounded the bulls illegally, due to not informing her immediately. I told Ms Denny that under the Impounding Act, I must give notice by way of writing, which she had received. Ms Denny said that I took the bulls from private property, I told Ms Denny that under the impounding Act, and Authorised Officer may impound animals on private property if they are trespassing, and I also told Ms Denny that the bulls were able to walk between both private and public land, so they were impounded for the safety of the community.
A Vet for Local Land Services examined the bulls again on 4 November 2022 and informed Ranger Badullovich that they remained in good condition and good health.
Ranger Robert Cross spoke to Max Shellard at his property at 12.30pm on 21 September 2022 and located the two bulls on his property, on unfenced private land. He inspected the paddock and confirmed that there was no fencing along the creek side, which is where the bulls must have crossed to Mr Shellard's property. He confirmed Ranger Badullovich's evidence about the impounding of the bulls.
Ranger Joanne Ballantyne watched Ranger Cross walking along the property boundary line inspecting the fence where the bulls were located. She also confirmed Ranger Badullovich and Ranger Cross's evidence about the impounding of the bulls.
The Respondent also provided the Tribunal with an aerial photograph showing the property boundaries between DP 702229, DP 750231, DP 719202, DP 1075475 and DP 750195 along and near Tantawangalo Mountain Road, showing the creek bed and forestation.

[4]

Applicant's evidence

At hearing the Applicant expressed concern that she hadn't been telephoned by the Rangers immediately, which would have allowed her to get the cattle, instead of incurring impounding fees. She stated that on 20 September 2022 the cattle were enclosed by a fence and were fed, but they were gone on 21 September 2022. She said that "I didn't know because I was in hospital", but then later claimed that she was aware that there had been a high wind which had pushed over a tree or trees from the roadside, allowing the bulls to escape through the fence, and that the fence had failed the day before the bulls were impounded. She claimed that there had previously been issues with the fences due to fires, but she had those issues fixed. She had also fixed the fencing on the riverside and bottom section of the property, where trees had fallen over from outside her property boundary. She stated that it was the Respondent's responsibility to maintain the trees and vegetation on the roadside and complained they had failed to do this, allowing cattle to escape. She showed the Tribunal photos which she said depicted a tree which had fallen from the roadside to her property, crushing the fencing wires.
The Applicant's evidence about why she hadn't contacted the Respondent between 21 September 2022 and 27 September 2022 was unclear. She claimed that part of her property included a 'riparian enclosure', which had been in existence "since first settlement", on the basis that "you can't fence the river", allowing stock to access the water. Some of the fencing on her property had been there for over 100 years. This had allowed the bulls to cross over to the other side of the creek. She claimed to have a right to have a fence which abuts the council road, under the Dividing Fences Act, and the Impounding Act Division 2, s 9(1) and 9(2)(a). The fence was there and was in good order, despite a black wattle which had gone over the fence in the past. She relied on an excerpt from a Supreme Court decision which referred to "the eastern boundary of which is formed by the mid-line of Tantawangalo Creek", although this was without context and referred to Lot 1 in DP 576558 at Tantawangalo, which is not the property relevant to these proceedings.
The Applicant claimed the impounding was unlawful because she had generally kept her fences in good repair. She implied that this occasion was an anomaly which occurred because she was sick in hospital.
The Applicant also complained that the Respondent was breaching the Act by failing to keep the bulls in a safe and clean area, contrary to s 21(b) and 21(e) of the Act, on the basis that the paddock they were being kept in was infested with fireweed, and adjoined a quarantine paddock. She showed the Tribunal pictures said to be fireweed in the bulls' paddock and the proximity to a quarantine paddock, and relied on the internet printouts of the dangers of fireweed ingestion to cattle. She claimed that having the bulls impounded had cost her over $50,000 because they had been unable to impregnate her 35 cows, at $1500 per (potential) calf. She wanted this cost to be paid by the Respondent if the impounding was found to be unlawful. She also wanted an independent vet to check the bulls. She said: I went to the cattle and saw them yesterday. They had dull coats, they have lost condition. They are looking red, which is a sign of being wormy and liver compromise

[5]

The Tribunal's jurisdiction

The Act was repealed by the Public Spaces (Unattended Property) Act 2021 No 38, sec 62 with effect from 1 November 2022. Under Schedule 1, Part 2, Section 4, the Act continues to apply to the bulls which are subject to these proceedings: 4 PROPERTY IMPOUNDED BEFORE COMMENCEMENT (1) This section applies to an item that-- (a) had been impounded under the repealed Act, but (b) immediately before the commencement, had not been-- (i) returned to the item's owner, or (ii) destroyed or otherwise disposed of under the repealed Act. (2) The repealed Act continues to apply to the item until the item is returned to the item's owner or destroyed or otherwise disposed of under the repealed Act.
Part 6 of the Act sets out the basis for applications to the Tribunal in regard to impounded items. It provides: Part 6-Applications to Civil and Administrative Tribunal 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. 40 Result of application to Civil and Administrative Tribunal (1) If an application for an administrative review of an impounding decision is dismissed, the applicant is liable for any additional impounding fees incurred up to the time the impounding authority is notified of the decision on the application. (2) If an application for an administrative review of an impounding results in the impounding decision being set aside, the impounding authority must release the impounded item free of all impounding fees and convey it to the applicant at the expense of the authority.
Section 63 of the Administrative Decisions Review Act 1997 (ADR Act) 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.
As stated in Commissioner of Police, NSW Police Force and State of NSW v Denny; Commissioner of Police, NSW Police Force and State of NSW v Power; Commissioner of Police, NSW Police Force and State of NSW v Targett; Commissioner of Police, NSW Police Force and State of NSW v Clarke; Denny v Commissioner of Police, NSW Police Force and State of NSW; Targett v Commissioner of Police, NSW Police Force and State of NSW; Power v Commissioner of Police, NSW Police Force and State of NSW; Clarke v Commissioner of Police, NSW Police Force and State of NSW [2019] NSWCATAP 280 (Denny Appeal) at [10] - [11]: 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.

[6]

The Act

Section 9 of the Act allowed for the impounding of animals left unattended in public places: 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.
Section 10 of the Act allowed for impounding of trespassing animals: 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).
Section 20 of the Act provides for notice to be given to owners of impounded property: 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.

[7]

Consideration

As discussed by Beech-Jones J in Meadowlands BFT Pty Ltd v Shoalhaven City Council [2021] NSWSC 1139 at [62] and Adamson J in Dubow v Mid-Western Regional Council [2021] NSWSC 699 at [40}, the proper approach to the construction of the Act was stated by Hidden J in Woolworths Ltd v Waverley Council [1999] NSWSC 308; (1999) 103 LGERA 227, at [44]: "The [Impounding] Act should be construed in the light of the fact that it permits the serious invasion of the proprietary rights of citizens (and corporations). The powers granted by the Act must be exercised in accordance with the conditions expressly imposed by it, or fairly to be implied in it."
The Applicant's evidence about her awareness of the bulls' location on 21 September 2022 and the existence of appropriate fencing to contain them on her property is inconsistent. The Applicant alleged that she had a reasonable basis for not fencing the area near the creek because of it being a riparian enclosure, but then also stated that she went looking for the fence breaches (presumably after she was made aware that the two bulls were missing), found the breaches, and fixed them. She seems to have been unaware that the bulls escaped her property until after she received notification from the Respondent on 27 September 2022, despite claiming that she knew they had escaped earlier because they didn't come to be fed on 21 September 2022. Her evidence of being in hospital at some point during this period doesn't fully explain that lack of awareness in circumstances where she is also claiming to have repaired the fences regularly and to be feeding her cattle daily.
Section 20 of the Act does not require the owner of an impounded item to be notified by phone immediately, as contended by the Applicant. The Respondent's evidence supports the Tribunal finding that the impounding notices issued by Ranger Badullovich on 21 September 2022 by post complied with s 20(5) of the Act.
The Respondent contended that the two bulls had been lawfully impounded pursuant to sections 9(1) and 10 of the Act. The impounding notices issued to the Applicant on 21 September 2022 relied on sections 9, 20(5) and 23 of the Act, and referred to the two bulls being "unattended in public". The Respondent's evidence, however, makes clear that the two bulls were located on Max Shellard's property. Ranger Badullovich's evidence contains the only evidence linking the two bulls to public land: I told Ms Denny that under the impounding Act, and Authorised Officer may impound animals on private property if they are trespassing, and I also told Ms Denny that the bulls were able to walk between both private and public land, so they were impounded for the safety of the community.
I accept the evidence of Max Shellard that the two bulls were trespassing on his land, confirmed by Ranger Cross. I accept the evidence of Ranger Badullovich that she therefore had reasonable grounds for believing that the two bulls were trespassing on private land.
There was no dispute that Max Shellard's property was in the Respondent's area of operations, or that Ranger Badullovich was an authorised officer. Ranger Badullovich's statement establishes these two issues.
Accordingly, I find that the two bulls were lawfully impounded pursuant to s 10 of the Act. To the extent that it is necessary to make a finding in relation to s 9(1) of the Act because that provision is referred to in the Impounding Notices, I also find, given Ranger Badullovich's statement, that the location of the bulls on Max Shellard's property and the lack of fencing as described by Ranger Cross indicate that the two bulls would have been able to walk between public and private land. I find that the bulls were unattended at the time they were impounded. Accordingly, regardless of whether s 9(1) or s 10 of the Act is relied upon by the Respondent, I find that the decision to impound the two bulls was lawful.
In answer to the Applicant's contention that the Impounding Notices were invalid, as noted by the Appeal Panel in the Denny Appeal at [46], citing the wrong section of the Act cannot affect the lawfulness of the decision to impound.
The impoundment of the applicant's two bulls was lawful. The Applicant's application is therefore dismissed.
The respondent seeks orders that they can immediately, without further notice to the Applicant, sell or dispose of the two bulls and recover any shortfall from the sale or disposal of the bulls from the Applicant. Bearing in mind the principle discussed at 37 above, in circumstances where the Applicant may wish to appeal this decision or could obtain release of the two bulls under s 23 of the Act, such an order would not be appropriate.

Denny v Bega Valley Shire Council

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (10 paragraphs)

Parties

Cases Cited (6)