Denny v Commissioner of Police, NSW Police Force; Clarke v Commissioner of Police, NSW; Police Force Power v Commissioner of Police, NSW Police Force; Targett v Commissioner of Police, NSW Police Force; Commissioner of Police, NSW Police Force v Power; Commissioner of Police, NSW Police Force v Targett; Commissioner of Police, NSW Police Force v Clarke; Commissioner of Police, NSW Police Force v Denny
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
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Background
These appeals were determined by a substantive decision of the Appeal Panel published on 22 November 2019: see [2019] NSWCATAP 280. An issue remaining to be determined concerns the distribution of the sum of $22,000 held in the Crown Solicitor's Office trust account. This decision concerns the distribution of those funds.
This decision arises out of an application lodged by the Office of the Crown Solicitor on behalf of the State of New South Wales and New South Wales Police (called the "State parties") filed on 12 May 2020. The application sets out the relevant background which may be summarised as follows:
1. In the course of the appeal proceedings the Tribunal made an order on 13 March 2019 providing for funds to be held in the Crown Solicitor's Office trust account "pending further order of the Tribunal".
2. In the course of the appeal proceedings the State parties sold certain horses back to the Denny parties (being Janice Denny, Jamie Power, Gary Targett and Sue-Anne Clarke). That resulted in the sum of $22,000 being paid into the Crown Solicitor's Office trust account.
3. Final orders were made in the appeal proceedings on 22 November 2019 dismissing the Denny parties' appeals.
4. In March 2020 the Crown Solicitor sent emails to each of the Denny parties requesting their consent to the further order paying the $22,000 to the State parties from the Crown Solicitor's Office trust account. No written response providing consent has been received from any of the Denny parties.
5. The Crown Solicitor submits that now that the appeals of the Denny parties have been dismissed the State parties are entitled to the sum of $22,000 currently held in the Crown Solicitor's Office trust account.
By directions made on 18 June 2020 an Appeal Panel made directions for the State parties to lodge with the Tribunal and provide to the Denny parties any evidence and submissions in support of the application for the Crown Solicitor's Office to release the sum of $22,000 held by the Crown Solicitor and a further direction for the Denny parties to provide evidence and written submissions in response. The directions included a requirement that the submissions were to include submissions as to whether an order dispensing with a hearing of the application should be made under s 50(2) of the Civil & Administrative Tribunal Act 2013 (the NCAT Act) and the application be decided on the papers.
On 30 June 2020 submissions were lodged by the State parties and the submissions may be summarised as follows:
1. The submissions recite the history of the proceedings. In January 2019 the Tribunal at first instance affirmed the impounding of animals and articles belonging to the Denny parties as lawful, and made orders in relation to the imposition of various fees and charges.
2. The Denny parties subsequently appealed and those appeals were dismissed. The impounding of the animals and articles was affirmed as lawful. Some of the orders in relation to fees and charges were varied but the State parties' appeals in relation to those fees and charges were otherwise mostly allowed.
3. During the Denny parties' appeals an Appeal Panel made an order on 13 March 2019 that funds derived from selling the horses be held in the Crown Solicitor's Office trust account pending further order of the Tribunal. The State parties sold certain horses back to the Denny parties which resulted in the sum of $22,000 being paid into the Crown Solicitor's Office trust account.
4. The submissions referred to the fact that one or more of the Denny parties may have filed a Summons in the Supreme Court of New South Wales appealing against the decision of the Appeal Panel published on 22 November 2019.
5. Even if a Summons to appeal to the Supreme Court has been filed it would still be reasonable for the Tribunal to make a further order releasing the funds to the State parties. An appeal to the Supreme Court does not act as a stay of the decision under appeal .
6. Even if the Supreme Court were to ultimately decide in favour of the Denny parties, the State parties would be in a position to return the funds to the Denny parties if ordered to do so.
No submissions, other than an email dated 10 July 2020, has been received from any of the Denny parties in response to the submissions of the Crown Solicitor. The email of 10 July 2020 from Fiona Westaway on behalf of the Denny parties reasserts that, in the view of the Denny parties, the impounding of the animals was unlawful and that the money held in trust has been "fraudulently obtained by unlawful sale and disposal of the livestock".
[3]
Consideration
The background to the fact that the Crown Solicitor now holds $22,000 commences with the directions made by an Appeal Panel on 13 March 2019. The substance of those directions was that the Appeal Panel made an order that the State parties were not sell or dispose of the horses referred to in the directions until further order of the Tribunal and the State parties were required to maintain them and keep them safe. However, the directions went on to say that nothing prevents the State parties from selling the horses to the Denny parties and in the event of such a sale of the horses to the Denny parties the funds are to be deposited into the trust account of the Crown Solicitor to be held pending further order of the Tribunal. This decision constitutes that further order.
The effect of the decision of the Appeal Panel published on 22 November 2019 was to affirm the decision at first instance published on 14 January 2019. The Denny parties have not made any submission to the effect that even if the State parties were entitled to impose fees and charges upon the Denny parties the amounts so imposed do not exceed the sum of $22,000 or that, notwithstanding the outcome of the appeal, they are entitled to all or some of the funds held by the Crown Solicitor. The effect of the State parties' submission is that the whole of the sum of $22,000 is payable to the State parties.
Given the decision of the Appeal Panel published on 22 November 2019 and the orders made by that Panel, it would seem to follow that the sum claimed should be released to the State parties. If the Denny parties are successful in their appeal to the Supreme Court there is no reason to think that the State parties would not be able to return funds to the Denny parties if ordered to do so.
I am satisfied that the issues for determination can be adequately determined in the absence of the parties by considering the material lodged with the tribunal.
Accordingly, the order sought in the application is appropriate ,and I therefore make the following orders:
1. A further hearing is dispensed with and this decision is determined on the papers
2. The funds deposited in the Crown Solicitor's Office trust account in the sum of $22,000 are to be released to the State parties.
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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: 28 August 2020