Dubow v Mid-Western Regional Council

NCAT Administrative and Equal Opportunity|2019-07-23

The NSW Civil and Administrative Tribunal ruled that it had no power to review decisions by a local council to impound alpacas found wandering on public roads. The council had impounded the animals under the Local Land Services Act 2013 (and in one instance, abated a nuisance under the Local Government Act 1993). The applicant argued that the Impounding Act 1993 gave the Tribunal review powers because the LLS Act said stock could be impounded 'in the same way' as under the Impounding Act. The Tribunal disagreed, finding that this phrase only referred to the physical process of impounding, not to the right to seek a review of the decision. Because neither the LLS Act nor the Local Government Act specifically allowed the Tribunal to review these types of decisions, the applications were dismissed. The Tribunal also ruled that each party should pay their own legal costs, as the legal issues were complex and the applicant was not unreasonable in seeking a ruling.

Introduction

Yolande Dubow has made five applications to the Administrative and Equal Opportunity Division of the Tribunal.

Background

The applications seek review of the following decisions made by Council: 1. Application number 2018-00390573 filed 19 December 2019 - a decision made by Council officers on 12 December 2018 to impound seven alpacas found on Spring Flat Road, Spring Flat under s 116 of the LLS Act. Under s 55(4) of the ADR Act the Tribunal, on 5 March 2019, dispensed with the requirement for internal review of this decision. With respect to this decision the Tribunal noted that Ms Dubow was not, among things, … relying on the definition of "animal" In the Impounding Act 1993. 1. Application number 2018-00078888 filed 12 March 2018 - a decision made by Council officers on 18 October 2018 to impound seven alpacas found on Spring Flat Road, Spring Flat under s 116 of the LLS Act. 2. Application number 2019-00140787 filed on 6 May 2019 - a decision made by Council officers on 2 May 2019 to impound seven alpacas found at the corner of Sonnys Lane and Spring Flat Lane, Spring Flat under s 116 of the LLS Act. 3. Application number 2019-00140788 filed 26 April 2019 - a decision made by Council officers on 11 April 2019 to impound seven alpacas found at the corners of Sonnys Lane and Broadhead Road, Spring Flat under s 116 of the LLS Act. 4. Application number 2018-00078883 filed 12 March 2019 - a decision made by Council officers on 2 January 2019 to abate a nuisance under s 125 of the LG Act. The nuisance was created by 7 alpacas in Spring Flat Road, Spring Flat. Council gave notice of its intention to issue an abatement order with respect to these proceedings, but did not do so in the light of NCAT proceedings. There is no evidence before me as to how this abatement took place although Ms Dubow asserts that the alpacas were at the impound facility and brings her application under s 38 of the Impounding Act.
The facts as alleged by the applicant with respect to each application will be assumed to be correct for the purposes of determining the jurisdictional issues as it is not my function at this time, to embark on a fact finding exercise.
With respect to each impounding under the LLS Act, Council sent Ms Dubow a notice that said: NOTICE OF IMPOUNDING LOCAL LAND SERVICES Act 2013 Part 8, Section 116 (3) Dear Ms Dubow, In accordance with section 116 of the Local Land Services Act 2013, the stock, as mentioned below, have been impounded by Council as the stock were located unattended on a public road without a permit. Stock: 7 x alpacas Location: … Date of Impounding: …. The council have made reasonable inquiries and belief (sic) the stock belong to you. Under s 24 of the impounding Act 1993 the abovementioned stock must be claimed within 7 days from the date of this notice, … If the stock are not claimed within 7 days, under Section 24 of the Impounding Act 1993, Council my offer for sale (sic)if not released before the deadline, by means of public auction or tender. Please note Council may also destroy the stock if not sold within 7 days after being offered for sale, or if impounded stock are injured, distressed or diseased.. If you wish to make an application for the release of the stock within the 7 day timeframe, Council must be satisfied on reasonable grounds that you are the owner and are authorised to claim the stock. Under s 27 of the Impounding Act 1993, Council may also recover the fees and charges associated for (sic) the impounding of the above stock. As at [date] the following fees have accumulated in relation to this matter; Impounding fee $... Transport of Impounded Stock fee $... Impounding Officer Labour fee $... Impounding Officer Travel fee $... Sustenance fee $... All fees and charges may be payable in respect of the cost of impounding, transporting, and disposing of stock are paid to the impounding authority be Mid-Western Regional Council prior to release. Should you wish to discuss the matter further please do not hesitate to contact …
In the internal review decision for the impounding under the LLS Act which took place on 11 April and 2 May 2019, Council confirmed that the impounding officer had impounded the stock under s 116(3) of the LLS Act: … in the same way the impounding officer may impound an animal under section 9 of the Impounding Act 1993." Council also confirmed that it was charging fees under s 26 of the Impounding Act.
Having reviewed the material and submissions relied on by the parties with respect to each of the five applications for administrative review made by Ms Dubow, I am satisfied, in accordance with s 50 of the CAT Act that the jurisdictional issues for determination in these cases can be adequately determined in the absence of the parties on the papers. In doing so I emphasise that, for the purposes of determining jurisdiction as a preliminary issue, I do so, where there is doubt, on the basis of the facts alleged by the applicant, but without finding that the allegations are correct.

The Tribunal's administrative review jurisdiction

Section 30 of the CAT Act provides that: (1) The Administrative Decisions Review Act 1997 provides for the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator. Note. See section 9 of the Administrative Decisions Review Act 1997. (2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its administrative review jurisdiction: (a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings, (b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act, the Administrative Decisions Review Act 1997 or enabling legislation in connection with the conduct or resolution of such proceedings. (3) An administratively reviewable decision is a decision of an administrator over which the Tribunal has administrative review jurisdiction. Note. See section 7 of the Administrative Decisions Review Act 1997. (4) An administrator, in relation to an administratively reviewable decision, is the person or body that makes (or is taken to have made) the decision under enabling legislation. Note. See section 8 of the Administrative Decisions Review Act 1997. (5) An administrative review decision of the Tribunal is a decision of the Tribunal determining a matter over which it has administrative review jurisdiction. (6) An administrative review application is an application made to the Tribunal for an administrative review decision. Note. Chapter 3 (Process for administrative reviews under this Act) of the Administrative Decisions Review Act 1997 also makes provision for the role of administrators when making administratively reviewable decisions and the role of the Tribunal when conducting an administrative review of such decisions
Section 9 of the ADR Act then provides the circumstances in which the Tribunal has administrative review jurisdiction. It relevantly provides: (1) The Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision (or class of decisions) made by the administrator: (a) in the exercise of functions conferred or imposed by or under the legislation, or (b) in the exercise of any other functions of the administrator identified by the legislation. (2) If enabling legislation makes provision for applications to be made to the Tribunal in respect of an administratively reviewable decision subject to certain conditions, the Tribunal has jurisdiction under the enabling legislation only if those conditions are satisfied. (3) A provision of enabling legislation that provides for a decision of an administrator to be administratively reviewable by the Tribunal under this Act extends to the following: (a) a decision made by a person to whom the function of making the decision has been delegated, (b) if the provision specifies the administrator by reference to the holding of a particular office or appointment - a decision by any person for the time being acting in, or performing any of the duties of, the office or appointment, (c) a decision made by any other person authorised to exercise the function of making the decision. (4) If an administrator makes an administratively reviewable decision by reason of holding or performing the duties of an office or appointment and then ceases to hold or perform the duties of the office or appointment, this Act has effect as if the decision had been made by: (a) the person for the time being holding or performing the duties of that office or appointment, or (b) if there is no person for the time being holding or performing the duties of that office or appointment or the office no longer exists - such person as the President (or another person authorised by the President) specifies. (5) Nothing in this section permits administrative review jurisdiction to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by another Act.
"Enabling legislation" is defined in s 4: enabling legislation means legislation (other than this Act or any statutory rules made under this Act) that: (a) provides for applications to be made to the Tribunal with respect to a specified matter or class of matters, or (b) otherwise enables the Tribunal to exercise functions with respect to a specified matter or class of matters.
In the present circumstances four of the five episodes in which the alpacas were impounded were undertaken using the provisions of the LLS Act, with the fifth being an abatement of nuisance under s 125 of the LG Act.
In the case of the LLS Act s 116, which is found in Division 2 Part 8 of the Act, provides: (1) If stock (whether attended or unattended) are on a public road, travelling stock reserve or other public land except in accordance with the authority conferred by (and in accordance with any conditions of) a stock permit or by or under any law the owner of the stock, and the person in charge of the stock (if not the owner), are each guilty of an offence. Maximum penalty: 50 penalty units. (2) It is a defence to a prosecution for an offence against this section if the defendant proves that the defendant had taken all reasonable steps to prevent the contravention. (3) An impounding officer may impound any stock the impounding officer suspects to be on a public road, travelling stock reserve or other public land in contravention of this section in the same way that the impounding officer may impound an animal under section 9 of the Impounding Act 1993.
This was the power purportedly used by Council officers when they impounded the alpacas on 18 October 2018, 12 December 2018, 11 April 2019 and 2 May 2019. The central issue in those four cases is whether the Tribunal has administrative review jurisdiction to review a decision to impound alpacas under s 116(3) of the Impounding Act.
The remaining event took place on 2 January 2019 when council officers took and held the alpacas in order to abate a nuisance under s 125 of the LG Act. That section provides: A council may abate a public nuisance or order a person responsible for a public nuisance to abate it. Note. Abatement means the summary removal or remedying of a nuisance (the physical removal or suppression of a nuisance) by an injured party without having recourse to legal proceedings. Nuisance consists of interference with the enjoyment of public or private rights in a variety of ways. A nuisance is "public" if it materially affects the reasonable comfort and convenience of a sufficient class of people to constitute the public or a section of the public. For example, any wrongful or negligent act or omission in a public road that interferes with the full, safe and convenient use by the public of their right of passage is a public nuisance.
There is no provision in the LG Act prescribing what is to happen when Council abates a public nuisance by taking or removing animals or stock, and no provisions relating to the impounding of animals. Councils' general powers with respect to impounding are vested in it by the Impounding Act: see s 25 of the LG Act.

Ms Dubow's position regarding Jurisdiction

As I understand it from her submissions Ms Dubow relies on s 38 of the Impounding Act which she asserts "provides its own jurisdiction" to NCAT with respect to any impounding.
Part 6 of the Impounding Act, which includes s 38, relevantly 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) … (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.
As I understand it Ms Dubow sees s 38 as extending to all impounded items, whether their impounding was a result of decisions taken under the Impounding Act, the LG Act or the LLS Act. The fact that Council is demanding impounding fees for her alpacas impounded under the LLS Act, "in the same way that the impounding officer may impound an animal under section 9 of the Impounding Act 1993" (s 116 LLS Act) is said to reinforce the argument that they are "impounded items" under the Impounding Act.

The Council's position on jurisdiction

Council's position as outlined in its original and supplementary submissions is that none of the decisions in issue are administratively reviewable decisions.
With respect to decisions made under the s 116(3) of the LLS Act, Council says that the LLS Act does not contain any provision authorising the Tribunal to administratively review such a decision.
The submissions correctly note that the LLS Act does provide in other sections for jurisdiction to be conferred on the Tribunal in respect of other matters, although not expressly under the ADR Act. Other matters referred to the Tribunal under the LLS Act are functions of the Administrative and Equal Opportunity Division under cl 3 of Sch 3 of the CAT Act (function relating to lands legislation), not under the ADR Act.
Council submits that s 116 (3) of the LLS Act refers to s 9 of the Impounding Act: … only for the limited purpose of adopting the impounding process set out in that Act (i.e. stock are impounded "in the same way" as an animal is to be impounded under s 9 of that Act). The LLS Act does not adopt or include any provision that provides the Tribunal [with] jurisdiction with respect to Acts carried out under the Impounding Act. Council submits that if it were the intention of the legislature that the administrative review provisions found in Part 6 of the Impounding Act extended to stock impounded under the LLS Act, then either the Impounding Act or the LLS Act would contain an express provision to that effect. As a result Council says that there is therefore no enabling legislation giving the Tribunal administrative review jurisdiction to review a decision under s 116(3) of the LLS Act.
With respect to the decision to abate a nuisance under s 125 of the LG Act Council takes the same position, namely, that there is no provision in the LG Act giving the Tribunal administrative review jurisdiction over a decision to abate a nuisance. In a notice of intention to issue an order under s 125 of the LG Act sent to Ms Dubow (attached to Council's supplementary decisions) Council wrote, among other things: Your alpacas were most recently grazing outside the boundaries of the Property and impounded by Council by the Council on 2 January in part Abatement of the Nuisance..

The Impounding Act

The dictionary to the Impounding Act contains a number of definitions that are pertinent to the interpretation of these provisions. They are: animal means any of the following: • cattle, horses, donkeys, mules, asses, camels, sheep, goats, pigs and deer, • any dog that is in a national park, historic site, nature reserve, state game reserve, karst conservation area or Aboriginal area (as defined in the National Parks and Wildlife Act 1974), • an animal (including a bird, reptile and fish) of any species prescribed by the regulations as a species of animal that can be impounded under this Act. article means anything capable of ownership except a living creature. impounded has the meaning given by section 8. item means an animal or article.
Section 8 provides: (1) Something is impounded as soon as an impounding officer or an occupier of private land takes possession of it under a power conferred by this Act. It continues to be impounded until it is released or disposed of in accordance with this Act. (2) An item does not have to be taken to a pound for it to be "impounded" for the purposes of this Act.
Division 2 of Part 2 (s 9 to 11) of the Impounding Act is concerned the power of Impounding officers to impound abandoned, unattended and trespassing animals. Section 9 provides a power to impound unattended animals in a public place. It provides: (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 11 requires impounded animals to be delivered to a pound. It contains a number of specific provisions with respect to what impounding officers of impounding authorities that are Local Land Services may do. It says: (1) An impounding officer must have an impounded animal delivered to a pound as soon as practicable after the animal is impounded. (2) An impounding officer of a council may detain an animal liable to be impounded without impounding it. The detained animal may be placed on any land on agistment or on any land owned by or under the control of the council. It must not be detained for longer than 7 days before being impounded. (2A) An impounding officer of Local Land Services may detain an animal liable to be impounded without impounding it. The detained animal may be placed on any land on agistment or on any land owned by or under the control of Local Land Services. It must not be detained for longer than 7 days before it is impounded. (3) The pound to which an impounded animal is to be delivered is the nearest convenient pound (if impounded by a police officer) or (if impounded by an impounding officer of an impounding authority) the nearest pound operated or used by that authority. (3A) For the purposes of subsection (3), an impounding officer of an impounding authority that is Local Land Services delivers an impounded animal to the nearest pound operated or used by Local Land Services if Local Land Services has established a private pound at some place on the land where the animal was impounded and the animal is detained in that pound. (4) The impounding officer (other than an impounding officer of Local Land Services) may instead destroy the animal immediately (without having it delivered to a pound) if of the opinion that: (a) the animal is seriously injured, diseased or starved or is otherwise in a distressed state, or (b) the animal is worth less than the cost of delivering it to the pound. (4A) An impounding officer of Local Land Services may, with the permission of Local Land Services, instead destroy the animal without having it delivered to the pound if: (a) in the opinion of a veterinarian employed in the Public Service (for example a veterinarian who is a member of staff of Local Land Services), the animal is seriously injured, diseased or starved or is otherwise in a distressed state, or (b) the animal is worth less than the cost of delivering it to the pound. (5) The impounding authority may recover as a debt from the owner of an animal the cost of destroying the animal and disposing of its carcass.
Sub-section (2A) gives an impounding officer under the LLS Act a discretion to detain an animal liable to be impounded for up to 7 days before impounding it. Once an impounding officer under the LLS Act impounds stock under that Act, he or she does so in the same way that an impounding officer may impound an animal under s 9 of the Impounding Act: he or she does not impound the stock under the impounding Act.
What "in the same way" means in these circumstances is central to the outcome of the cases in which Council impounded Ms Dubow's stock under the LLS Act.
The Impounding Act consists of 7 Parts. Part 2 - Impounding of animals and articles - has six divisions. They are: 1. Division 1 - General provisions concerning impounding - s 5 to 8. 2. Division 2 - Impounding officers can impound abandoned, unattended and trespassing animals - s 9 to 11. 3. Division 3 - Impounding of animals by occupiers of private land - s 12 to 14. 4. Division 4 - Impounding of articles - s 15 to 19. 5. Division 5 - Additional powers in relation to shared devices - s 19A to 19I.
Part 3 - How impounded items are to be dealt with - s 20 to 27 - includes the provisions on which Council is relying to levy fees and charges relating to the impounding on Ms Dubow. The provisions which allow the owners of impounded items to seeks administrative review of the decision to impound items are found in Part 6 - Applications to Civil and Administrative Tribunal - s 38 to 40.

Impounding under the LLS Act

There is no provision in the LLS Act that provides that the Tribunal has administrative review jurisdiction with respect to decisions made under the s 116 of the LLS Act to impound stock.
Ms Dubow, however, relies on the administrative review jurisdiction conferred on the Tribunal by s 38 of the Impounding Act, which she says applies to decisions relating to the impounding of stock under s 116(3) of the LLS Act. In doing so she relies, as I understand it, on the fact that s 116(3) provides that stock may be impounded under the LLS Act "in the same way that the impounding officer may impound an animal under section 9 of the Impounding Act 1993".
In my view those words do no more than make provisions for the manner in which an impounding officer of a Local Land Service may impound with stock. Impounding stock "in the same way" as an animal is impounded under the Impounding Act, necessarily involves the application, with necessary adaptations, of those provisions of the Impounding Act that relate how an animal is impounded. This view is reaffirmed by the provisions of s 11(2A) and (3A) of the Impounding Act, which were inserted with the passing of the LLS Act and provide for variations from the usual impounding procedure when the impounding is carried out under the LLS Act. Whether it extends to embrace the provisions Part 3 of the Impounding Act is not necessary for me to decide.
The requirement that impounding under the LLS Act be undertaken in "the same way that the impounding officer may impound an animal under section 9 of the Impounding Act 1993," cannot, in my opinion, be read as providing, or necessarily implying, that the provisions of s 38 of the LLS Act, regarding administrative review, should apply to the impounding of stock under the LLS Act. The provisions of s 38 are not concerned with the way or manner in which stock is impounded, but provide a clear and confined form of administrative review of the lawfulness of a decision to impound an item under the Impounding Act (see also s 5). Section 38 does not on its face extend to decisions to impound stock made under the LLS Act.
As already stated the LLS Act contains no provision that identifies a decision to impound under s 116(3) as conduct over which NCAT has administrative review jurisdiction: s 7(1) of the ADR Act.
In those circumstances the Tribunal does not have an administrative review jurisdiction. As a consequence the four applications made by Ms Dubow for review of impounding decisions under the LLS Act are dismissed for want of jurisdiction.

Section 125 of the LG Act

The LGA contains no provision that identifies abating a nuisance under s 125 as conduct over which NCAT has administrative review jurisdiction: see s 7(1) of the ADR Act.
Council says it abated a nuisance on 2 January 2019 by taking the alpacas. It then issued a notice of intention to issue an order requiring Ms Dubow to abate the nuisance, but did not go on to issue the order when she commenced proceedings. It is apparent, from that notice, that in abating the nuisance Council impounded the alpacas. Under what power is unclear.
The LG Act contains no provision that authorises Council to impound stock or animals.
As Council says that the alpacas were impounded following or as part of the abatement, there are two obvious possibilities: 1. they were impounded as stock under the LLS Act in which case Ms Dubow cannot seek administrative review of the impounding; or 2. they were impounded as animals under the Impounding Act in which case s 38 of that Act gives Ms Dubow a right to seek administrative review.
Given that Ms Dubow does not identify under which Act she says the alpacas were impounded on 2 March 2019 it is not possible for me to be satisfied, on the facts as alleged by her, that the Tribunal has jurisdiction to determine the application. In saying that I am conscious that Ms Dubow in her general application states this is an application under the: Impounding Act 1993 s.38; and Administrative Decisions Review Act 1997
That statement, however, reflects her argument in the other four cases (which I have found to be incorrect) that s 38 of the Impounding Act gives the Tribunal administrative review powers with respect to impounding decisions under s 116 (3) of the LLS Act.
The Tribunal certainly has no power to administratively review a decision to abate a nuisance under s125 of the LG Act.
As a consequence this application (2018-00078883) is also dismissed for want of jurisdiction.

Costs

Both parties seek orders for costs, Ms Dubow on an indemnity basis. Given that she is self-represented it is hard to see what they would be beyond her disbursements: see the NCAT, Administrative and Equal Opportunity Division, Cost Guideline and Preston v Commissioner for Fair Trading [2011] NSWCA 40 per Campbell JA at 183-185.
Section 60 of the CAT Act relevantly provides: (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant. (4) If costs are to be awarded by the Tribunal, the Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (5) In this section: costs includes: (a) the costs of, or incidental to, proceedings in the Tribunal, and (b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.
In its submissions Council argued that special circumstances exist because Ms Dubow persisted with her applications after Principal Member Pearson raised the issue of jurisdiction at a directions hearing on 5 March 2019. By continuing with the proceedings, Council says Ms Dubow has prolonged the proceedings unreasonably and without merit. Council also says that the proceedings are misconceived or lacking in substance.
In my opinion the issues raised by Ms Dubow concerning the interaction of the provisions of the Impounding Act and the LLS Act discussed above, are matters of some complexity and difficulty. They were not without substance or misconceived. Indeed, there would be an elegant symmetry if the position advocated by Ms Dubow were correct, and the Impounding Act applied to stock impounded under the LLS Act.
I do not consider it unreasonable for Ms Dubow to have proceeded to the point of obtaining a formal ruling on jurisdiction in the circumstances of the case.
As there are no special circumstances warranting an award of costs each part should bear their own costs.

Orders

The Tribunal makes the following order: 1. Under s 50(4) of the Civil and Administrative Tribunal Act 2013 the Tribunal determines that a hearing is not required. 2. The Tribunal dismisses each of the following applications for want of jurisdiction: 2018-00390573, 2019-00078883, 2019-00078888, 2019-00140787 and 2019-00140788. 3. Each party to bear their own costs.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 23 July 2019

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Dismissed

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