Dubow v Mid-Western Regional Council - [2021] NSWSC 699 - NSWSC 2021 case summary — Zoe

NSWNSWSC

Dubow v Mid-Western Regional Council

[2021] NSWSC 699

Supreme Court of NSW|2021-06-10|Before: Adamson J

View original source

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2021-06-10

Before

Adamson J

Catchwords

[1990] HCA 26 Mohamed v Farah [2004] NSWSC 482 Woolworths Ltd v Waverley Council [1999] NSWSC 308

Source

Original judgment source is linked above.

Catchwords

[1990] HCA 26 Mohamed v Farah [2004] NSWSC 482 Woolworths Ltd v Waverley Council [1999] NSWSC 308

Judgment (27 paragraphs)

[1]

Solicitors: Not applicable (Plaintiff) Lindsay Taylor Lawyers (Defendant) File Number(s): 2019/381044

[2]

Introduction

By further amended summons filed on 17 March 2021, Yolande Dubow (the plaintiff) seeks relief pursuant to s 69 of the Supreme Court Act 1970 (NSW) relating to the impounding and eventual sale by Mid-Western Regional Council (the defendant) of the plaintiff's alpacas. She alleged that the impounding and sale of her alpacas did not comply with the relevant statutory provisions and was therefore unlawful. If the plaintiff is able to establish the illegality of the defendant's conduct, she also claims restitution of impounding fees which she has been obliged to pay to the defendant.
The defendant, for whom Mr Fitzpatrick appeared, opposed the relief sought and contended that the defendant had complied with the applicable statutory provisions. The defendant also contended that the plaintiff required an extension of time under Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 59.10, which requires proceedings for judicial review to be commenced within 3 months of the challenged decision. The original summons was filed on 3 December 2019 and sought to challenge the defendant's impounding of seven alpacas on 2 May 2019 and its sale of the alpacas on 28 August 2019. By motion filed on 27 May 2020, the plaintiff sought leave to amend her summons to challenge the defendant's impounding of three more of her alpacas on 18 February 2020 and their eventual sale on 25 March 2020.

[3]

The Impounding Act 1993 (NSW)

Section 9(1) of the Impounding Act 1993 (NSW) relevantly provides that an impounding officer may impound an animal that is in a public place, which is within the officer's area of operation, if the officer believes on reasonable grounds that the animal is unattended. Part 3 of the Impounding Act makes provision for how impounded items are to be dealt with. Section 20(3) of the Impounding Act relevantly provides that if the impounding authority knows the name and address of the owner of the impounded item, the authority must cause notice of the impounding to be given to the owner. Under s 23 of the Impounding Act, the owner of an impounded item may apply to the impounding authority for release of the impounded item at any time before the item is sold or disposed of. The impounding authority is obliged to release the item to the owner if all fees and charges payable in respect of the impounding, holding and disposing of the item are paid to the impounding authority: s 23(2)(b) of the Impounding Act.
Section 24(1) of the Impounding Act requires the impounding authority to cause an impounded item to be offered for sale if the item is not released before the "deadline for release". Section 24(5)(a) defines the "deadline for release" as being, relevantly, "7 days from the day on which notice was given to the owner of the animal [under s 20]." Section 26 provides for the setting of fees and charges that are to be paid in respect of the impounding, holding and disposing of an item by the authority and its impounding officers.
Section 42(1) of the Impounding Act relevantly provides that an impounding officer is not authorised to impound except when in possession of a written authorisation issued by the impounding authority. Section 42(2) of the Impounding Act provides that the impounding officer must provide the "written authorisation to a person who questions or asks for evidence of the officer's authority, when the officer is or is proposing to exercise the powers of an impounding officer."
Section 49 of the Impounding Act provides that a "notice may be given to a person for the purposes of this Act" by delivering it personally to the person or by posting it to the person's place of residence.
The Dictionary to the Impounding Act defines "impounding authority" as meaning "a council". It was common ground that the defendant is a council. The Dictionary also defines "impounding officer" as a person appointed by an impounding authority to exercise the powers of an impounding officer.

[4]

Local Land Services Act 2013 (NSW)

Part 8 of the Local Land Services Act 2013 (NSW) is entitled, "Impounding of unattended and trespassing stock and abandoned articles". It contains the following note at its commencement: "The Impounding Act 1993 empowers persons appointed by Local Land Services (which is an impounding authority for the purposes of that Act) to impound and deal with animals (including pigs and deer) and articles in public places and places owned or under the control of Local Land Services if, in the case of animals, they are unattended or trespassing or, in the case of articles, they have been abandoned or left unattended. It also enables occupiers of private land to impound and deal with animals trespassing on their land, provides for the release of impounded animals and articles that are claimed by their owners and, if they are disposed of by sale, provides for the disposal of the proceeds of sale. This Part includes some provisions that complement or supplement the provisions of the Impounding Act 1993."
Section 114(2) of the Local Land Services Act provides that if an expression is defined in the Impounding Act and is also used in Part 8 of the Local Land Services Act, the expression used in Part 8 has, unless the contrary intention appears, the same meaning as in the Impounding Act.
Section 116 of the Local Land Services Act provides: "116 Offence of causing or permitting stock to be on a public road, travelling stock reserve or public land without authority (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."
In the Dictionary to the Local Land Services Act, "stock" is defined as follows: "stock means cattle, horses, sheep, goats, camels, alpacas, llamas, pigs, deer, ostriches, emus or, in relation to any specified provision or provisions of this Act, any other kind of animal declared by the regulations to be stock for the purposes of that provision or those provisions." [Emphasis added.]

[9]

The impounding on 2 May 2019 and the subsequent sale on 28 August 2019

On 2 May 2019, between about 10am and 11am, Mr Norris, who was by that time the defendant's Senior Law Enforcement Officer, and Mr Best, the defendant's Saleyard and Impounding Officer, impounded seven of the plaintiff's alpacas that had been located unattended at the corner of Spring Flat South Lane and Spring Flat Road, Spring Flat. These roads appear on Deposited Plan 1061611 and, by reason of that fact, are, under s 9 of the Roads Act, dedicated public roads. Mr Norris and Mr Best had gone to the location having received a telephone call from Tony Wilmot, Law Enforcement Officer of the defendant, who had received a complaint from a member of the public that seven alpacas were unattended at that location. Mr Norris recognised the alpacas as he had impounded them several times before and had returned them to the plaintiff at her nearby property. Mr Norris and Mr Best used a stock whip to get the alpacas to a stock yard and then arranged for them to be collected by a transporter.
At the time of the impounding on 2 May 2019, both Mr Norris and Mr Best had the relevant written authorities referred to above on their persons in case they were required to produce them to establish their authority to effect the impounding.
The plaintiff allowed her alpacas to graze on or near the roads near her property because drought conditions had diminished the available feed on her property. It was common ground that the plaintiff did not have a stock permit or any other written authority issued under statute to allow her alpacas on to a public road.
By email sent at 1.03pm on 2 May 2019, the defendant wrote to the plaintiff and advised her that officers of the defendant intended to go to her home later that afternoon to hand her the original impounding notice, a copy of which was attached to the email.
The impounding notice attached to the email of 2 May 2019 said as follows: "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 permit. Stock: 7 x Alpacas Location: Cnr of Sonnys & Spring Flat Lanes, SPRING FLAT Date of Impounding: 02 May 2019 The council have made reasonable enquiries and belief [sic] the stock belong to you. Under Section 24 of the Impounding Act 1993 the abovementioned stock must be claimed within 7 days from the date of this notice, 09 May 2019. If the stock are not claimed within 7 days, under Section 24 of the Impounding Act 1993, Council may offer for sale 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 the 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 ground that you are the owner and are authorised to claim the stock. Under Section 27 of the Impounding Act 1993, Council may also recover the fees and charges associated for the impounding of the above stock."
At 2.37pm that day, the plaintiff responded to the defendant's email as follows: "Please advise your Ranger that I do not wish his presence upon my premises. I do not require personal service. I accept service by email."
At about 2.38pm that day, Mr Norris and Mr Wilmot went to the plaintiff's property to give her the impounding notice. No one answered when Mr Norris knocked on the door. He left the notice against the door, above the door handle.
The defendant arranged for an advertisement to be published in The Mudgee Guardian on 23 August 2019. It advertised a stock sale of alpacas at public auction on 28 August 2019 at the Mudgee saleyards. The evidence established that the plaintiff's alpacas were sold at a public auction on that day by the Council's agent, McDonald Lawson Pty Ltd. The sale generated net proceeds of $722.08, which was paid by the auctioneers to the defendant and used by it to offset the debt incurred by the plaintiff for fees associated with the impounding, holding and sale of her alpacas by the defendant.
From the time the alpacas were impounded on 2 May 2019 until they were sold on 28 August 2019, Mr Best took care of the seven alpacas at the pound at the Mudgee saleyards. At all times, they were provided with adequate shade, food, water, veterinary care and were kept securely. He checked them daily and fed them Lucerne hay, made sure they had water and ensured that their conditions were clean.
The plaintiff commenced various proceedings against the defendant in the Consumer and Commercial Division of the New South Wales Civil and Administrative Tribunal (NCAT) for relief in relation to the impounding of her alpacas. As part of the relief claimed, she sought an interim stay of the sale of the alpacas. The stay application was heard by Principal Member Britton on 13 August 2019. The defendant opposed the stay and informed NCAT that the defendant proposed to sell the alpacas to recover some of the money it had spent to keep them and that the defendant would only agree to return the alpacas to the plaintiff if she paid the money she owed the defendant for impounding and holding the alpacas. NCAT refused to grant an order restraining the sale of the alpacas.
Ultimately, on 28 April 2020, the Appeal Panel of NCAT dismissed the plaintiff's appeal against the finding of a Senior Member that NCAT did not have jurisdiction to hear and determine her application.
The plaintiff also commenced proceedings against the defendant in the Local Court at Mudgee, challenging the defendant's impounding of her alpacas.

[10]

The further impounding on 18 February 2020 and the subsequent sale on 25 March 2020

On 18 February 2020, between 4pm and 4.40pm, Mr Norris, Mr Best, Mr Wilmot and Bill Murphy, Law Enforcement Officer of the defendant, impounded three of the plaintiff's alpacas that were found unattended at Spring Flat South Lane, Spring Flat. This road appears on Deposited Plan 1061611 and, by reason of that fact, is, under s 9 of the Roads Act, a dedicated public road. They went to that location, having received a complaint from a member of the public that alpacas were roaming about on Spring Flat South Lane near Sonnys Lane. They moved the alpacas to stockyards using one of the vehicles they were driving. Two of the defendant's officers were on foot. They arranged for a transporter to collect the alpacas. Mr Norris looked after the alpacas at the pound, as he had done with those which had been impounded on 2 May 2019.
On 19 February 2020, Mr Norris issued an impounding notice in purported compliance with s 116(3) of the Local Land Services Act. However, the notice incorrectly stated that the alpacas had been impounded on 2 May 2019 (presumably because the earlier notice had been used as a precedent). The plaintiff, by email sent on 21 February 2020, pointed out the error. She also sent a further email alleging that the notice was "bad for irregularity, vagueness" and said that Mr Norris's authority to impound had not been produced as required by s 42 of the Impounding Act. The defendant emailed to the plaintiff a copy of Mr Norris's authority (referred to above).
On 24 February 2020, Mr Norris issued an amended notice of impounding under s 116(3) of the Local Land Services Act which said that the impounding had occurred on 18 February 2020. The notice also said: "[i]f the stock are not claimed within 7 days, under Section 24 of the Impounding Act 1993, Council may offer for sale if not released before the deadline, by means of public auction or tender."
Mr Norris took the notice to the plaintiff's residence and affixed it to her front door.
Later in February 2020, the plaintiff commenced proceedings in the Local Court at Mudgee, alleging that the impounding of her alpacas was wrongful and seeking a stay of the defendant's impounding of her alpacas and further relief. The parties were unsuccessful in their attempts to resolve their disputes by agreement.
Ultimately, the Council decided to sell the three alpacas by public auction under s 24 of the Impounding Act. The sale of the alpacas was advertised in The Mudgee Guardian on 20 March 2020. On 25 March 2020, the Council's agent, McDonald Lawson Pty Ltd, sold the three alpacas. The net proceeds were $345.66. On 28 April 2020, Mr Norris wrote to the plaintiff and informed her that as a result of her non-payment of the fees and charges for the impounding and holding of her three alpacas (which, as at the date of sale, amounted to $2,128.60), the alpacas had been sold on 25 March 2020.

[12]

The grounds of judicial review

In her further amended summons, the plaintiff has raised the following matters in support of her claim for relief: 1. alpacas are not "stock" or "animals" within the meaning of the Impounding Act (ground 1); 2. the defendant is not an "impounding authority" within the meaning of the Local Land Services Act (ground 2); 3. the officers who purported to impound her alpacas on 2 May 2019 and 18 February 2020 were not "impounding officers" within the meaning of the Local Land Services Act (ground 2); 4. the impounding notices issued by the defendant were not accurate (ground 2); 5. the officers who impounded the alpacas were not carrying relevant authorities as required by s 42 of the Impounding Act (ground 3); 6. the defendant knew, from the location of the alpacas (which were within 50m of the plaintiff's property) that they belonged to the plaintiff (ground 4); 7. the plaintiff had a reasonable excuse for allowing her alpacas to graze on a public road (ground 4); 8. when impounded, the alpacas were not on "public roads" (ground 4); 9. the defendant is estopped from impounding or selling the plaintiff's alpacas by reason of the terms of settlement of the Local Court proceedings 2018/319098 (grounds 5 and 6); 10. the impounding of the plaintiff's alpacas was void as no criminal penalty under s 116 of the Local Land Services Act was imposed and had it been imposed, the plaintiff could have availed herself of the defence of necessity (grounds 7 and 9); 11. the fees associated with the impounding, holding and sale of the alpacas were in excess of the penalty which could have been imposed for an offence under s 116 of the Local Land Services Act (ground 8); 12. the impounding on 18 February 2020 was unlawful as there were proceedings in the Local Court and NCAT regarding the alpacas which had the effect of preventing the exercise by the defendant of its powers to impound alpacas (ground 10); 13. the defendant was not entitled to sell the alpacas on 28 August 2019 as it had successfully opposed the granting of a stay by NCAT by assuring NCAT that it would not sell the alpacas pending determination of the proceedings (ground 11); 14. the defendant was not entitled to impound the alpacas in February 2020 or sell them in March 2020 as the plaintiff had already filed the summons to commence proceedings in this Court (ground 12); and 15. the defendant has avoided the final hearing by bringing procedural challenges (ground 12, which is understood not to be pressed).
These matters will be addressed in turn.

[13]

Grounds 1 and 2: the meaning of impounding authority, impounding officer and animal, and the validity of the notices

In support of grounds 1 and 2, and generally, the plaintiff relied on what Hidden J said in Woolworths Ltd v Waverley Council [1999] NSWSC 308; (1999) 103 LGERA 227, at [44], in respect of the Impounding Act: "The 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."
This passage highlights the undoubted importance of due regard being paid to the relevant statutory wording, which confers power on the defendant and its officers and constrains the way in which the power is to be exercised. It is plain from the terms of Part 8 of the Local Land Services Act that it is intended to complement and supplement the Impounding Act. Section 114(2) of the Local Land Services Act has the effect that the two pieces of legislation are, to a limited extent, cognate in that they provide a framework for the impounding, holding and sale of animals.
It follows from s 114(2) of the Local Land Services Act that "impounding authority" in that Act includes those entities which are impounding authorities under the Impounding Act. As the defendant is an impounding authority under the Impounding Act (by reason of the definition in the Dictionary), it is also an impounding authority under Part 8 of the Local Land Services Act. So, too, are impounding officers under the Impounding Act authorised to exercise power under s 116(3) of the Local Land Services Act. Thus, Mr Norris and Mr Best were authorised to exercise power under s 116(3) of the Local Land Services Act because they were impounding officers under the Impounding Act.
The impounding notice in respect of the impounding on 2 May 2019 is set out in full above. The notice in respect of the impounding on 18 February 2020 was to similar effect. I am not persuaded that either notice is misleading, apt to confuse or insufficiently clear. In my view, the notices were sufficient to inform the plaintiff of what had occurred and the statutory powers which had been exercised by the defendant with respect to her alpacas.
Section 116(3) of the Local Land Services Act confers power on an impounding officer to impound any "stock". As explained above, the word "stock" is defined in the Dictionary to the Local Land Services Act as including alpacas. Accordingly, alpacas are "stock" for the purposes of impounding.
For these reasons, neither ground 1 nor ground 2 has been made out.

[15]

Ground 4: the defendant's knowledge of the owner of the alpacas and why they were on the road, which was not a public road

It was not disputed that the defendant knew to whom the alpacas which it impounded in 2019 and 2020 belonged. It was, indeed, well aware of the provenance of the alpacas, having regard to the number of prior occasions on which the plaintiff had allowed her alpacas to graze on the verges of the public road. Further, the plaintiff's evidence that she allowed her alpacas to graze there because the drought had made good feed sparse on her own property was not challenged. However, these matters are not to the point. The defendant's powers to impound animals found on public roads derive from a concern for public safety and the risk to drivers on public roads in county areas posed by the presence of stray animals on such roads. The defendant's power to impound animals is not constrained by its knowledge of the identity of their owner. There is no basis for the suggestion that the defendant's power to impound animals is qualified by the proposition that hungry animals have a reasonable excuse for grazing by roads or that the owners of such animals have a reasonable excuse for allowing them to do so. The purpose of the impounding power is to protect the safety of those who use public roads, not to ensure that animals obtain adequate sustenance from grazing next to them. In these circumstances, the distance of the alpacas from the plaintiff's property of 50m has no bearing on the legality of the defendant's actions.
The plaintiff also argued that the roads where the alpacas were found were not public roads. However, for the reasons given above, the roads on which the alpacas were located at the time they were impounded were dedicated public roads by reason of what appears on Deposited Plan 1061611: s 9 of the Roads Act. Thus, whether the plaintiff regarded them as public roads is immaterial. It is also of significance that the uncontroverted evidence was that there were speed signs on the roads which indicated a speed limit of 100kph, which is consistent with the roads being public roads. Further, the complaints which led to the defendant's officers going to the locations where the alpacas were grazing appear to have been made by people who had driven along the roads.
It is also important to note that s 116(3) of the Local Land Services Act does not require the roads on which the animals are located to be public roads for the impounding to be authorised. All that is required is that the impounding officer "suspects" the stock to be on a public road. This is a relatively low threshold and falls far short of what is required to establish a fact on the balance of probabilities: George v Rockett (1990) 170 CLR 104 at 115-116 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ); [1990] HCA 26. The distinction is, however, immaterial in the present case as the defendant has proved not only that its impounding officer suspected that the roads were public roads, but also that they were in fact public roads at the time of the impounding.
Therefore, ground 4 has not been made out.

[22]

Alleged invalidity in service of the impounding notices

I note that in submissions, the plaintiff also raised whether she had been properly served with either of the impounding notices. She submitted that she had not been served in accordance with s 49 of the Impounding Act because she had neither been served personally, nor had a notice been posted to her place of residence. I reject this submission.
A similar argument was rejected by Barrett J in Mohamed v Farah [2004] NSWSC 482 where the plaintiff argued that the defendant's acceptance of the offer of compromise had not been effectively served because it had been sent by facsimile to his solicitor's office rather than by any of the other means for service for which the rules (Supreme Court Rules 1970 (NSW)) provided. His Honour said, of present relevance: "42 It is not disputed that the content of the defendant's solicitors' letter of acceptance was printed out on the fax machine at the plaintiff's solicitors' office on 22 April 2004 and thereby came to the notice of the plaintiff's solicitors, as the defendant's solicitors intended that it should. In those circumstances, the defendant embraces the proposition that, to use words of McInerney J in Pino v Prosser [1967] VR 835 at 838, it would be 'remarkable to the point of absurdity' that someone who admits to having received a document 'should be held not to have been served'. 43 That absurdity makes it impossible, in my view, to accept that, because a mode of communication other than those envisaged by the facultative and non-exclusive provisions of Part 9 rule 4(1) and Part 22 rule 3(5) was employed, the content of a document that clearly came into the possession of the plaintiff's solicitors and to their notice should be treated, for the purposes of determining the parties' rights and liabilities, as if it was simply non-existent."
The wording of s 49 of the Impounding Act makes it clear that the provision is, to borrow Barrett J's words, "facultative and non-exclusive": that is, it provides for the ways in which service can be effective, without intending to provide that the ways specified in the provision constitute the only means of effecting service. Further, as there is no dispute that the plaintiff received the notices, it would be absurd to find that she had not been served with them.

Dubow v Mid-Western Regional Council

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (27 paragraphs)

Parties

Legislation Cited (9)

Cases Cited (5)

Cited By (6)