These proceedings are about four separate decisions of the Mid-Western Regional Council to impound Ms Dubow's alpacas in 2018 and 2019. The animals were purportedly impounded under s 116(3) of the Local Land Services Act 2013 (NSW).
The Council had previously impounded Ms Dubow's alpacas relying on provisions in the Impounding Act 1993 (NSW). The parties agree that the Council did not have power to do so because alpacas do not come within the definition of "animal" in that legislation. Under s 116(3) of the Local Land Services Act, an impounding officer may impound "stock" which includes alpacas: Local Land Services Act, Dictionary.
Ms Dubow has appealed to the Appeal Panel from the Tribunal's decision that it does not have power to review the four impounding decisions purportedly made under the Local Land Services Act. She did not appeal from the Tribunal's decision that the Tribunal does not have power to review a decision to impound the animals under the abatement of nuisance provision in s 125 of the Local Government Act 1993 (NSW). Neither party applied for costs on appeal.
[2]
Tribunal's reasoning
The Tribunal found that it did not have jurisdiction to review the Council's decisions. This was because s 38 of the Impounding Act did not confer jurisdiction on the Tribunal to review the impounding of an animal under the Local Land Services Act, and the Local Land Services Act did not confer jurisdiction on the Tribunal to review a decision to impound stock under that Act.
The Tribunal has administrative review jurisdiction over a decision of an administrator in the circumstances provided for in the Administrative Decisions Review Act 1997 (NSW): Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 30(1). Section 9(1) of the Administrative Decisions Review Act sets out the general rule as to when the Tribunal has administrative review jurisdiction:
When administrative review jurisdiction is conferred
(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.
"Enabling legislation" is defined in s 4(1) of the Administrative Decisions Review Act as follows:
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.
The first question for the Tribunal was whether there was any "enabling legislation" which provides for or otherwise enables Ms Dubow to apply to the Tribunal for an administrative review of the four decisions. If so, the second question was whether the Council's decisions were made "in the exercise of functions conferred or imposed by or under the legislation or in the exercise of any other functions of the administrator identified by the legislation."
As to the first question, s 38(1) of the Impounding Act gives the Tribunal the following administrative review jurisdiction:
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.
This is enabling legislation which allows a person with standing to apply to the Tribunal for an administrative review. But the entitlement to apply for an administrative review only relates to decisions made in the exercise of functions conferred or imposed by the Impounding Act or in the exercise of other functions of the administrator identified by the Impounding Act: Administrative Decisions Review Act, s 9(1). The Tribunal noted at [32] that s 116(3) of the Local Land Services Act provides that an impounding officer may impound stock "in the same way that the impounding officer may impound an animal under section 9 of the Impounding Act 1993". Ms Dubow submitted to the Tribunal that s 38 of the Impounding Act extends to all impounded items whether the decision was made under the Impounding Act or the Local Land Services Act.
The Tribunal did not agree with Ms Dubow's argument. The Tribunal found at [36] that the decisions were made under the Local Land Services Act. At [39] the Tribunal explained that s 38 of the Impounding Act, which gives "the owner of an impounded item" the right to apply to the Tribunal for an administrative review of the decision to impound, does not extend to decision to impound stock made under the Local Land Services Act. As there are no provisions in the Local Land Services Act which provide that the Tribunal has administrative review jurisdiction with respect to impounding decisions made or purported to be made under s 116(3) of that Act, the Tribunal found that it did not have jurisdiction to review those decisions.
[3]
Appeal rights and evidence
The Tribunal's decision that it does not have power to review the decisions purportedly made under the Local Land Services Act is an "ancillary" decision (see the discussion in DHU v Commissioner of Police, NSW Police Service [2018] NSWCATAP 282 at [24]-[35]). It concerns whether the Tribunal has jurisdiction to deal with a matter: NCAT Act, s 4. Ms Dubow may appeal from such a decision "as of right on any question of law": NCAT Act, s 80(2)(b). The question of law on which the Tribunal's decision turned was the construction of s 116(3) of the Local Land Services Act and of s 38 of the Impounding Act.
Ms Dubow did not indicate whether she was seeking permission to appeal on grounds other than questions of law (see Notice of Appeal at 6A.) As none of the grounds of appeal asked for permission to do so, we have not addressed that possibility. In particular, we have not addressed any ground of appeal that goes to the merits of the Council's decisions.
Ms Dubow filed an affidavit dated 3 September 2019 in support of her application for a stay of the decisions. The stay was refused. She also sought to rely on the affidavit on appeal. The affidavit outlines what happened to the alpacas after they were impounded on 2 May 2019. In particular, Ms Dubow sets out evidence about the auction that took place and asserts in her submissions in reply that Council sold the alpacas without due notice, the day after the submissions on appeal were given. As nothing in the affidavit is relevant to any issue in dispute on appeal, we have not admitted it into evidence.
Ms Dubow foreshadowed that she would rely on the sound recording of the stay proceedings on 13 August 2019 if a re-hearing is to occur. We have not ordered a re-hearing so there is no need to consider whether we should admit the sound recording into evidence.
[4]
Main grounds of appeal
On the basis of the grounds of appeal listed in the notice of appeal, Ms Dubow's written submissions and her oral submissions at the hearing, we understand that she has two main grounds of appeal. The first is that the Tribunal has jurisdiction to review the Council's decisions under s 38 of the Impounding Act, but not for the reasons she gave to the Tribunal at first instance. The second is that the decisions were made without authority and are unlawful. Ms Dubow submits that it is repugnant to allow a government agency to make decisions without authority.
Although neither of these issues was raised before the Tribunal, we can deal with them without prejudicing the Council as it did not object to the issues being raised and has responded.
Ms Dubow submitted that s 38 of the Impounding Act gives the Tribunal jurisdiction "for any 'item' that has been 'impounded'. She notes the use of the past tense.
There are several reasons why s 38 of the Impounding Act does not give the Tribunal jurisdiction to review the Council's decisions. First, s 8 of the Impounding Act answers the question as to when something is impounded:
(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.
In this case an impounding officer has not taken possession of the alpacas "under a power conferred by this Act". The alpacas were impounded or purportedly impounded under s 116(3) of the Local Land Services Act. Second, the alpacas are not an "impounded item". An "item" means an animal or article: Impounding Act, Dictionary. Alpacas are neither. Third, Ms Dubow does not have standing to apply for administrative review of the decisions under s 38(1) of the Impounding Act because she is not the owner of an "impounded item". Finally, for the reasons given by the Tribunal at first instance, s 116(3) of the Local Land Services Act does not have the effect of conferring administrative review jurisdiction on the Tribunal to review impounding decisions made or purportedly made under that Act.
In the Notice of Appeal and written submissions, Ms Dubow makes several points which relate to her argument that the Council's decisions to impound the alpacas under Local Land Services Act are unlawful. Ms Dubow submitted that if the decisions were made without authority, they are void.
Below we address some of the reasons that Ms Dubow says the impounding decisions were unlawful. Firstly, the council officers were said not to have the necessary written authority to make the impounding decisions. Evidence in support of that ground was attached to the "Application for stay of original decision pending appeal" filed on 29 July 2019. It comprised various emails between Ms Dubow and Council after the Tribunal's decision had been handed down on 23 July 2019. Also attached to the stay application were three delegations of authority by Council to various individuals under the Local Government Act. We did not admit this evidence in the appeal proceedings because, for the reasons we give below, it does not relate to an issue in dispute on appeal.
Second, the decisions were said to be made without authority because Council rangers are not an "authorising authority" or an "authorised acting authority" under the Local Land Services Act. Thirdly, the lane on which the alpacas were found was said to be Sonny's Lane and, in Ms Dubow's submission, no such lane exists. Ms Dubow says it is not a "public road" and is private land (in support of her argument that there was no power to impound the alpacas under s 116(3) of the Local Land Services Act).
The Tribunal may review a decision that purports to be made under enabling legislation even if it was beyond the power of the administrator to make that decision: Administrative Decisions Review Act, s 6(3). It follows that, if the Council had purportedly impounded the alpacas under the Impounding Act, but without lawful authority to do so, the decision to impound them may have been reviewable by the Tribunal (putting to one side the question as to whether Ms Dubow is an "owner of an impounded item" who would have had standing to seek review).
The difficulty with Ms Dubow's submissions about lack of authority is that even if the decisions were beyond power, they were not purportedly made under "enabling legislation". They were purportedly made under the Local Land Services Act, not the Impounding Act. The notices Council sent to Ms Dubow all state that the alpacas were impounded under the Local Land Services Act. There is no evidence to support Ms Dubow's oral submissions, as we understand them, to the effect that the decisions to impound were "really" made under the Impounding Act then retrospectively described as decisions under the Local Land Services Act.
This means that the decisions are not reviewable under s 38(1) of the Impounding Act, read with s 6(3) of the Administrative Decisions Review Act.
That conclusion means that there is no need to admit Ms Dubow's fresh evidence relating to the authority of the Council officers.
[5]
Secondary grounds of appeal
Ms Dubow listed other grounds of appeal which we will address briefly. The second ground of appeal is that no penalty notices were issued under s 116 of the Local Land Services Act. In her written submissions, Ms Dubow expanded on this ground of appeal saying that, "with no penalty notices, there was no offence proved to allow the impounding of the alpacas." The power to impound in s 116(3) of the Local Land Services Act is not dependent on an offence being proved. Stock may be impounded if the impounding officer "suspects" the stock to be on a public road in contravention of s 116. In addition, as we have said, even if the decisions were beyond power, that does not affect the Tribunal's jurisdiction. As they were not made or purported to be made under enabling legislation, the Tribunal has no power to review them.
The fourth ground of appeal is that if the Tribunal's decision remains, there is no right of appeal to the Land and Environment Court or internal appeal to the Appeal Panel. That ground does not raise a question of law or any basis for granting leave to appeal on a ground other than a question of law: NCAT Act, s 112.
Finally, Ms Dubow quoted s 196 of the Local Land Services Act:
196 JURISDICTION OF COURT OR NCAT NOT TO BE OUSTED IN CERTAIN PROCEEDINGS
(1) The jurisdiction of a court or the Civil and Administrative Tribunal is not affected merely because, in proceedings before the court or board under or for the purposes of this Act or the regulations, a question arises concerning:
(a) title to land, or
(b) any matter in which rights in future may be bound, or
(c) any general right or duty.
(2) A decision of a court or the Civil and Administrative Tribunal relating to such a question is not evidence in any other court or in any other legal proceeding.
Ms Dubow submitted that, "One could argue that section 196(1)(b) must apply to the jurisdiction issue which would prevent judicial review of a trivial matter concerning pets wrongly impounded without authority, requiring the costs of a Supreme court hearing for the right to return of property." Ms Dubow did not elaborate on this ground on appeal. We are unable to identify any question of law or any basis for granting leave to appeal on a ground other than a question of law.
[6]
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
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Decision last updated: 02 October 2019