The Board sent a letter to a director of Wallerberdina, Mr Chapman, advising that if the overdue form was not submitted by 17 August 2018, the Board would consider further action, including imposition of a fine.

At a Board meeting on 30 August 2018, the Board resolved to write to Wallerberdina (and other non-complying lessees) advising that should the stock return not be completed or a sufficient reason for the non-compliance not provided within a specified time, the Board had resolved to issue a fine.

On 22 October 2018, outside of the specified time, Wallerberdina sent an unsigned but otherwise completed stock return to the Board.

The Board resolved to impose a $1,000 fine on Wallerberdina.

Mr Chapman, by phone conversation and by letter dated 1 March 2019, requested a 'waiver' of the fine.

The Board, at a meeting in May 2019, resolved not to waive the fine imposed on Wallerberdina.

On 13 May 2019, the Board wrote to Wallerberdina enclosing a fine notice, requiring a payment of $1000 within 30 days.

The fine was not paid and the company instituted proceedings in this Tribunal on 12 July 2019.

The basis of Wallerberdina's challenges to the decision, or decisions, were, in summary, that:

• The lateness of the stock return was not excessive;
• The figures on the stock return were correct despite its lateness and absence of signature, and that was the important content of the return;
• The breach was minor and caused no harm;
• The fine is excessive for such a breach.

Other issues developed during the course of submissions, including:

• Whether the Board's failure to impose a fine for previous non-compliance meant it was now estopped from doing so;
• Whether the Board should have waived the fine, and whether the Board had power to waive the fine when it considered doing so;
• Whether the misspelling of 'Wallerberdina' in Board minutes of meeting rendered the decision to impose the fine ineffectual;
• Whether the Board's regard to past non-compliance was relevant to the Board's decision-making and if so, whether that was permissible given that the Board did not inform Mr Chapman of that consideration.

- The Board made the correct and preferable decision when it chose to impose the fine at its meeting on 1-2 November 2019;

- The amount of the fine ($1,000) was appropriate in light of the breach and the maximum penalty;

- There are no special reasons that the fine should not have been imposed or should not have been acted upon or that the decision to impose and issue Wallerberdina with a fine should not now be affirmed.

Statutory appeal from administrative authority - Whether decision to impose fine correct or preferable - Whether decision not to waive fine was wrong - Whether fine amount was excessive in light of the breach - Whether correct factors considered by the Board when deciding whether to impose a fine

Statutory appeal from administrative authority - Whether decision to impose fine correct or preferable - Relevant factors - Obligations to perform administrative act by a certain date - Harm not a pre-requisite to imposition of penalty - Harm an aggravating factor relevant to quantum of penalty - Special reasons for not acting upon non-compliance must be extraordinary, unusual or atypical - Inadvertence not a special reason to waive compliance - Unsigned statutory declaration not a trivial mistake - Board not prevented from issuing fine where not previously issued fine for similar non-compliance - Misspelling of leaseholder name not significant where otherwise clear which leaseholder Board referring to - Board made the correct or preferable decision in imposing the fine

Statutory appeal from administrative authority - Whether decision not to waive fine was correct or preferable - Statutory construction of Pastoral Land Management and Conservation Act 1989 - Board not able to waive fine under section 36 where decision to impose fine already made - Board acted beyond power when it considered whether to waive a fine which had already been imposed

South Australian Civil and Administrative Tribunal Act 2013 ss 34, 37

Pastoral Land Management and Conservation Act 1989 ss 36, 37, 42, 50

Fairclough v Stewart-Rattray & Gawler Health Service [2012] SADC 3

Baskerville v Martin [1967] SASR 156

Lawrence v Baskerville [1968] SASR 86 (FC)

Barwick v Crichton (1983) 36 SASR 142

Acre Development Pty Ltd v NCSC (1987) 46 SASR 261

Attorney-General v Tichy (1982) 30 SASR 84 at 92

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2011] FCA 810

Ponzio v B & P Caelli Constructions Pty Ltd and Ors [2007] FCAFC 65; (2007) 158 FCR 543

Mr L Kleinig, Crown Solicitor's Office, for the Respondent

Made under the South Australian Civil and Administrative Tribunal Act 2013 s 37(1)(a)

1. This is a case about whether a pastoralist should pay a fine of $1000 for not complying on time with a requirement to submit a stock inventory to the Pastoral Board. The dispute raises questions of policy and process that have required careful consideration.
2. The applicant in this matter is a company, Wallerberdina Pty Ltd ("Wallerberdina"), represented by one of its two directors, Mr Chapman, throughout.
3. Wallerberdina brought an application for review to the Tribunal under s 34 of the South Australian Civil and Administrative Tribunal Act 2013 ("the SACAT Act"). The decision or decisions under review was made by the Pastoral Board of South Australia ("the Board"). The decision, or decisions, culminated in Wallerberdina being issued with a fine of $1,000 by the Pastoral Board. The company seeks a review of that decision and/or decisions prior to that decision.

A brief overview of the framework in which the dispute arose

1. Wallerberdina holds a pastoral lease under the Pastoral Land Management and Conservation Act 1989 ("the PLMC Act").
2. The company is obliged under the PLMC Act to furnish a return each year by 31 July. The return is made in the form of a statutory declaration setting out stock levels on the pastoral land as at 30 June of that year: s 42(1).
3. A failure to provide a return by the required date constitutes a breach of the conditions of the lease. It was not in dispute that Wallerberdina did not meet that requirement.
4. The Pastoral Board is empowered by s 37(1) of the PLMC Act to cancel a lease, or impose a fine of up to $10,000 on a lessee, upon its satisfaction that a breach of a condition of a pastoral lease has occurred.
5. On 1-2 November 2018, the Board decided to impose a fine on Wallerberdina for failing to comply with its obligations under s 42. It communicated that decision to Wallerberdina on 5 December 2018. It further refused, by a decision made on 13 May 2019, a request by Wallerberdina to waive the fine. These decisions form the basis of Wallerberdina's application to the Tribunal.

1. A more detailed chronology of events is required in order to assess Wallerberdina's argument that the fine should not stand. The relevant history is as follows.
2. Wallerberdina's stock return was due by 31 July 2018. The Board did not receive it. Wallerberdina had failed to submit stock returns in a timely fashion in the past. The Board sent a letter dated 2 August 2018 to Wallerberdina. It said, amongst other things:

The annual stock return form was sent to you on 15 June 2018, with a postage paid return envelope stating that the form was to be completed and submitted by 31 July 2018. Our records indicate that your stock return form has not been received.

...

The overdue form must be submitted by close of business Friday 17 August 2018, or the Board will consider further action pursuant to section 37(1) of the Act, including the imposition of a fine.

(emphasis in original)

1. The Board did not receive a response.
2. The Board convened a meeting on 30 August 2018. One of the agenda items was item 167/13, entitled "Stock return procedure". I shall return to the significance of this item later. The next item of business was 168/13 entitled "Stock return late submission". The minutes of the meeting record that as at 24 August 2018, there were 44 outstanding stock returns. Of those, 15 pastoralists had made contact with the Pastoral Unit (of the Department) to provide a reason regarding the lateness of their return, whereas the remainder had not. The meeting agreed that the "interim procedure" (being that adopted under the previous item of business) would form the "compliance pathway" for the outstanding returns. Relevantly, the Board resolved to write to the lessees who had not submitted a return and had not provided a reason for failing to comply, advising each lessee that the Board would issue a fine if the return was not received, or the lessee had not furnished sufficient reason as to why the Board should not take action, by 30 September 2018.[1]
3. An administrative delay had the effect that the letter to Wallerberdina (and the other pastoralists) informing it of this decision was not sent until 20 September 2018 and, following an out-of-session decision, the time within which Wallerberdina had to respond was extended. The letter included the following:

At the Pastoral Board meeting held on 30 August 2018, the Board resolved to issue you with a fine (pursuant to section 37(1)(a) of the Act) if you do not submit your stock return or provide sufficient reason as to why the Board should not fine you, by 7 OCTOBER 2018.

(emphasis in original)

1. Nothing was received from Wallerberdina by that date. However, Wallerberdina sent an unsigned but otherwise completed stock return to the Board on 22 October 2018. The Board received it on 25 October 2018. The word "Wallerberdina" was already present on the pro forma issued by the Board and was misspelt as "Wallerberdinna". The place where the legal representative was to sign to declare that the content of the return was true, was left blank though Mr Chapman's hand-written name was on the form beneath the place for the signature. The witness to the declaration, a Justice of the Peace, had executed the witness jurat at Erindale on 22 October 2018.
2. At this juncture it may be observed that it was not in dispute that the return contained no information that would indicate that the stocking density at the pastoral lease was cause for a concern that the property was not being managed lawfully in that regard.
3. By the time that the unsigned Wallerberdina return reached the Board on 25 October 2018, papers for a Board meeting scheduled to occur over 1-2 November 2018 had already been distributed to Board members. The relevant agenda item was summarised in the minutes as follows[2]:

• There are five lessees with outstanding 2017-18 stock returns as of 23 October 2018.
• Andrew Wilson tabled new information that stock returns have been received from three lessees: from (redacted), Wallerberdinna, and (redacted) (the returns were received after the agenda papers were provided to the Board).
• The stock return from (redacted) is non-compliant as it is signed by a manager not the lessee.
• The stock return from Wallerberdinna is non-compliant as it is unsigned by the lessee (though witnessed by a JP).
• The three stock returns were received after the 7 October 2018 date set by the Board in its correspondence dated 20 September 2018 to lessees with overdue stock returns.
• (redacted)
• The Board determined the initial fine value at $1,000 for all five lessees.

1. Note the leases with outstanding 2017-18 stock returns as of 23 October 2018.
2. Note the compliance procedure undertaken by the Board in dealing with late 2017-18 stock return submissions.
3. Approve to issue a fine notice, pursuant to section 37 of the Act, to the five lessees who have not submitted the 2017-18 stock return:
   • (redacted)
   • Wallerberdinna Pty Ltd (Wallerberdinna lease CL6200/238 PE2220)

1. Approve to issue a fine notice, pursuant to section 37 of the Act, to the five lessees who did not submitted (sic) the 2017-18 stock return within the required timeframe:
   • (redacted)
   • Wallerberdinna Pty Ltd (Wallerberdinna lease CL6200/238 PE2220)
2. Determine an appropriate value of the fines.

1. Issue fine notices as per Recommendation 5 at $1,000 per lessee, noting that an additional fine will be considered for those with outstanding stock returns as at 30 days from receipt of the notice, and that for (redacted) and Wallerberdinna leases compliant stock returns must be submitted.

1. Noted
2. Noted
3. Approved as amended
4. Approved
5. Approved

168/13 - Issue fine notifications as per approved recommendations.

1. On 5 December 2018, the Board wrote to Wallerberdina informing it of the Board's resolution to impose a fine of $1,000 upon it. The letter included the following paragraph:

You have the right to apply to the South Australian Civil and Administrative Tribunal for a review of this decision, pursuant to section 50 of the Act. An application to the tribunal must be made within three months of receiving this notice, and if an application is not received within that time period then a fine invoice for $1,000 will be issued to you.

1. Upon receiving this letter, Mr Chapman initiated telephone conversations with the Board; first, to an administration officer and then with the Chair, Mr Mills. Mr Chapman asked the Board for a 'waiver' of the decision to impose the fine. There is some dispute as to whether this occurred in December/January 2018 or on 1 March 2019. Mr Chapman followed his conversations up with a letter to the Board dated 1 March 2019. In that letter, Mr Chapman made the following points:

1. Wallerberdina's sub-lessee (the lease manager) was away when the return was due; 2. Mr Chapman forgot to raise it with him on his return in late August;

1. He did not fully read the Board's September letter;

1. He sought the information from the sub-lessee by email on 30 September 2018; 2. He filled out the form and it was ready on 3 October 2018; 3. He made contact with the Justice of the Peace he usually uses, Mr Goldsworthy, who was away for a "couple of weeks"; 4. He met with the Mr Goldsworthy on his return, executed the document and sent it on 22 October 2018; 5. He sent a further iteration of the return containing his signature when it was drawn to his attention by the Board that the signature was missing; 6. The failure to sign the return was an oversight that was promptly rectified; 7. The stocking figures in the document were correct; 8. No mischief has eventuated from the late lodgement;

1. The fine is excessive.
2. These points were advanced to support a request that the Board 'waive' the fine.
3. The Chair emailed Mr Chapman to advise him that his letter would be discussed at the following Board meeting. That meeting occurred on 2 May 2019.
4. Mr Chapman submitted that he had been given an undertaking in his conversation with Mr Mills that the fine would not be imposed until his request for waiver was considered.
5. The minutes of the meeting on 2 May 2019 record that:

The Board concurred that there were no grounds to revoke the decision to fine the Wallerberdina lessee. The lessee provided no compelling reasons as to why the 2017-19 (sic) stock return was not submitted by the required date.

1. The resolutions that were noted or approved (as appropriate) were:

1. Note the letter from the Wallerberdina lessee, Mr Grant Chapman, requesting that the Board waive the $1,000 fine issued on 5 December 2018, for breach of lease conditions for failure to submit a 2017-18 stock return within the required timeframe. 2. Note that the Board is not able to consider waiving the breach of lease conditions pursuant to section 36 of the Act, and cannot waive the fine without the approval of the Treasurer.

1. Note that there are no grounds for revoking the decision to fine issued pursuant to section 37 of the Act, or to seek approval from the Treasurer to waive the fine.

1. Writes to Mr Chapman informing him of the decision and outlining the reasons for the decision. 2. Note that PIRSA will issue the fine invoice to Mr Chapman, as notified in the 5 December fine notification letter.
2. On 13 May 2019, the Board wrote to Wallerberdina advising of its decision and enclosing a fine notice requiring it to pay the sum of $1,000 within 30 days. The letter contained reference to Wallerberdina's rights to challenge the decision by seeking a review by this Tribunal.
3. The company did not pay, but instituted this review in the Tribunal on 12 July 2019.
4. The nature of a review under s 34 of the SACAT Act is a re-hearing in which the Tribunal is required to reach the correct or preferable decision. The Tribunal must have regard to, and give appropriate weight to, the decision of the Board. The Tribunal examines the evidence or material that was before the Board and may receive fresh evidence in its discretion. The exercise of review jurisdiction is performed in accordance with the SACAT Act and the PLMC Act.

1. There have been legislative amendments between the date the obligation arose and the bringing of the application for review. The Crown submitted that the appropriate version of the legislation is the PLMC Act as it was in force from 4 October 2018 until 8 August 2019. Whilst there may be no consequence arising from this, that is the version of the legislation that has been relied on in reaching this decision.

1. Mr Chapman's submissions reveal that he takes issue with several decisions that the Board made. Whilst his application focused upon the Board's decision made on 13 May 2019 not to waive the fine, he readily accepted that he also considered that the original decision to impose the fine made on 1-2 November 2018 was wrong. In respect of that decision, Wallerberdina requires an extension of time to bring the review. Notwithstanding that Mr Chapman was advised of Wallerberdina's right to challenge the November 2018 decision, the Crown did not object to any extension of time required that would enable the substantive merits of this matter to be resolved. In that regard, the Crown properly adopted a model litigant stance and Ms Kleinig exemplified this with her careful, fair and helpful approach to the Tribunal throughout the proceedings.

Preliminary issue - was a waiver within the Board's power?

1. Mr Chapman's primary focus was on the Board's refusal to waive the fine it imposed upon him. However, throughout the proceedings, the Board has submitted that its position now is that the waiver it considered at the meeting on 2 May 2019 was beyond its power to grant. Accordingly, this issue should be examined first.
2. Ms Kleinig submitted that an analysis of the PLMC Act reveals that the purported decision of the Board on 2 May 2019 was not a decision it could make. The Board's powers in respect of a breach of lease are as set out in ss 36 and 37 of the PLMC Act as follows:

36 - Waiver

The Board may, if it thinks special reason exists for doing so, waive a breach of, or non-compliance with, a condition of a pastoral lease unconditionally or subject to conditions.

37 - Cancellation of lease or imposition of fine on breach of conditions

(1) Subject to subsection (2), the Board may -

(a) impose a fine on the lessee under a pastoral lease of an amount not exceeding $10 000; or

(b) cancel a pastoral lease,

if satisfied that a breach of a condition of the lease has occurred.

(2) The Board cannot cancel a pastoral lease unless satisfied -

(a) that the lessee has been allowed a reasonable opportunity to make good the breach but has failed to do so; or

(b) that cancellation is necessary in order to prevent, arrest or minimise damage to or deterioration of the land.

(3) On cancelling a pastoral lease under this section, the Board may -

(a) order that the lessee or the holder of any registered interest in or caveat over the lease be compensated for loss suffered as a result of the cancellation to such extent as the board thinks fit (but the total amount payable under all such orders must not exceed the market value of the lessee's interest less the costs incurred by the Board in taking action under this section); or

(b) make such incidental or ancillary orders as it thinks fit.

(4) On cancellation of a pastoral lease under this section, the land is freed from all encumbrances and claims.

(5) Fines imposed under this section -

(a) are payable by the Board into the Consolidated Account; and

(b) if unpaid, may be recovered by the Board from the lessee as a debt.

1. The Board submitted on review that the power in s 36 vests a discretion in the Board not to take action in relation to a breach by a lessee but does not confer a power to waive a penalty, once imposed. Nor does s 50, which sets out the Board's powers of review in respect of its own decisions, contain any reference to a power to review a penalty under s 37.

50 - Jurisdiction of Tribunal

(1) A lessee who is dissatisfied with -

(a) a decision to vary the conditions of a pastoral lease; or

(b) a decision not to extend the term of a pastoral lease; or

(c) a decision under section 41 (property plans); or

(d) a decision under section 45 (establishment of public access routes and stock routes); or

(e) a refusal of consent to a transfer, assignment, mortgage, subletting or other dealing with a pastoral lease; or

(f) a decision to cancel a pastoral lease or impose a fine on a lessee for breach of lease conditions,

may apply to the Tribunal under section 34 of the South Australian Civil and Administrative Tribunal Act 2013 for a review of the decision.

(2) An application for review must be made within 3 months after notification of the decision to the lessee.

(3) For the purposes of proceedings before the Tribunal under this Part, a panel of assessors must be established under section 22 of the South Australian Civil and Administrative Tribunal Act 2013 consisting of persons with expertise that would be of value to the Tribunal in exercising its jurisdiction under this part.

(4) In any proceedings under this Part, the Tribunal may, if the President of the Tribunal so determines, sit with 1 or more assessors selected by the President from the panel referred to in subsection (3).

1. By contrast, the Board submitted, the Board is conferred powers to alter the effect of various specified decisions that it has made. This supports the conclusion that the legislature has turned its mind to the range of decisions it considers the Board should be able to re-visit, with the imposition of a penalty not included in that set.
2. This construction of the PLMC Act is compelling. The Board was mistaken in its approach to this matter. The period within which the Board might have waived the breach came to an end when it conveyed its decision to Wallerberdina by letter dated 5 December 2018 to impose a fine.
3. As set out earlier, the Crown did not oppose an extension of time for Wallerberdina to challenge the decision of 12 November conveyed by letter dated 5 December 2018.
4. Accordingly, the issue for the Tribunal is whether the decision of 5 December 2019 was the correct or preferable decision, to be determined in accordance with the principles of review as set out in s 34 and discussed earlier at paragraph [26].
5. It follows that the Board's reason, given in its letter of 13 May 2019, for refusing to waive the penalty on the grounds that the decision of 5 December 2018 created a debt that attracted the operation of Treasurer's Instruction 5, was misconceived and will not be further addressed.

1. There was a factual dispute between the parties as to when various communications between Mr Chapman and the Board's chairperson, Mr Mills, occurred. It is not necessary for me to resolve the difference in dates, as I have determined that the Board was operating on the misapprehension that it had the power to waive Wallerberdina's breach after 5 December 2018 when in fact it had no such power.

1. In his application to the Tribunal, Mr Chapman identified his grounds as:

1. Those raised by his letter of 1 March 2019 to the Board's chair; 2. Those raised in an email to the Registry when the challenge was made;

1. Further grounds raised in and during the application for review.

Grounds raised by the letter dated 1 March 2019

1. Essentially, these are the reasons that Mr Chapman considered warranted a waiver of the breach stated in paragraph [6]. Whilst the Tribunal is satisfied that the Board did not have the power to waive the breach once the decision had been made, the question remains as to whether the decision on 1-2 November 2018 to act on the breach was justified.
2. Those grounds can be summarised as:

1. The lateness was not excessive - 10 days late; 2. The submission contained correct figures and that was the important content of the return;

1. The fine is excessive for such a breach.
2. The grounds raised by an email to Registry on 17 June 2019 restated the grounds in a more narrative way. They said:

1. The non-compliance with signing the return was inadvertent; 2. He was told in a phone call with the Board's Chair Mr Mills that his appeal to SACAT would not run until the Board had considered his application for waiver;

1. He was then told that the three months to challenge the decision had already expired.
2. The issue concerning the three month review period is now irrelevant as no point was taken on this issue by the Board.
3. The further grounds stated in the application for review form can be summarised as:
   1. Restating that there was no harm because the figures in the return disclosed that the stocking density was appropriate;
   2. The fine is disproportionate to the offence.
4. Mr Chapman's application contends that no fine should have been imposed or, if one were imposed, it be fixed at $100.
5. At the hearing, these grounds were supplemented by the following contentions, made in Mr Chapman's written submissions or at the hearing:

1. Wallerberdina was not given any warning that the Board intended on acting on its power, when it had not done so previously; 2. The Board should have given consideration to the reasons for late lodgement and upon those reasons, waived or reduced the penalty;[3]

1. The decision was ineffective because it was made in relation to an entity with a name different from that of the respondent;

1. The Board asked itself the wrong question when considering whether to act on the breach; 2. The Board took into account past non-compliance without providing the company the opportunity of responding to that; 3. The Board did not discuss the 'statistics' from the returns. That means that the deadline was of no significance.
2. As there is some overlap in these grounds, they are addressed below under headings in the order of the events as they occurred.

1. Mr Chapman contented that his evidence of the sequence of events leading to the late return provided a basis for a finding that the decision to issue a penalty was wrong. As the Board had no such evidence before it in December when it made the decision, and the decision in May 2019 was beyond power, this submission can only succeed if the Tribunal accepts it on review.
2. Nothing in the legislative scheme suggests that inadvertence amounts to a "special reason" to waive compliance with this obligation. The obligation is to perform an administrative act annually by a particular date. A failure to comply can be waived for a special reason. If forgetting to comply were a special reason, it is difficult to imagine an example of a reason that would not be special. Inadvertence may be relevant to the quantum of penalty but not to the decision as to whether to waive. This ground of review fails.

1. Mr Chapman submitted that the return was only 10 days late. The period between the last extension of time granted by the Board and the sending of the unsigned document was 10 days.
2. That contention must be rejected. The company's failure was to provide a return as required by the legislation, namely by 30 June. The fact that the Board provided several further opportunities for the company to submit a return did not change the obligation that was breached. At the time the Board was considering whether a special reason existed to waive compliance, the return was two and a half months late.
3. Mr Chapman submitted that the lack of a signature was a trivial non-compliance and that the important thing was that the content revealed that the leased land was not over-stocked.
4. The contention that the signature is irrelevant must also be rejected. An under-stating of the stocking density is, by virtue of it being made as a statutory declaration, an offence. The requirement that the statement be made in those circumstances is a regulatory tool used by the Crown to avoid the need to audit each pastoralist's return. For Mr Chapman to suggest that it does not matter fails to appreciate the regulatory mechanisms that the legislature has established to oversee the management of pastoral leases in an efficient way. It was not unreasonable for the Board to require the return to be executed properly, or to treat the return as non-compliant until it was received in its complete form.

1. Mr Chapman submitted that there was no warning issued to Wallerberdina in relation to the previous late returns (which were later than this one) that repetition would result in penalty. There was no evidence led about this except Mr Chapman's assertion. However, it was unchallenged.
2. Insofar as this is a claim that the Board was estopped, in some way, from imposing a penalty because it had failed to do so in the past, it cannot be accepted. The power of enforcement in the Act remains whether or not the Board has used it on other occasions that it might have done. However, it may be relevant to the penalty imposed.
3. In the letter of 2 August 2018 the Board alluded to a possible penalty but did not seek a reason from the lessee as to its non-compliance. But in its subsequent letter of 20 September 2018, the Board stated:

...our records indicate that your stock return has not been submitted and there has been no reason provided as to why this has not occurred.

1. At the Board's meeting of 1-2 November 2018, the Board was required to make a decision as to whether there had been non-compliance by Wallerberdina and what its response should be.
2. In terms of the options for its response, waiving the non-compliance was open to the Board, by virtue of s 36 of the Act which provides that the Board was entitled to "waive a breach of, or non-compliance with, a condition of a pastoral lease unconditionally or subject to conditions".
3. Mr Chapman submitted that the Board considered the wrong test in relation to waiver. He submitted that the briefing note by the Executive Officer directs the Board to decide whether Wallerberdina's reasons for non-compliance were "compelling" rather than special. This was in the context of the May 2019 Board meeting at which the Board was considering Mr Chapman's correspondence of 1 March 2019. However, it has already been determined earlier in these reasons that the Board was proceeding on a mistaken assumption as to its power. The relevant meeting for the consideration of the power to waive was that which occurred on 1-2 November 2018.
4. It is clear that whether the test was understood by the Board to be special reasons or compelling reasons, and whether those tests are different in any way that may have had a bearing on the decision made, is irrelevant in relation to Wallerberdina. No reasons whatsoever were furnished at the time and Wallerberdina could not have met the test however it was put.
5. However, on review, the Tribunal must make the correct or preferable decision based on the evidence it has before it, having exercised a discretion to admit fresh evidence.
6. I have reviewed the material put to the Tribunal by the applicant as to why the return was late. None of the evidence that Mr Chapman put to the Tribunal as relevant to the making of the decision regarding the circumstances by which Wallerberdina came to submit its return in October (or November), namely:

1. The lessee being away; 2. Mr Chapman not thoroughly reading the September letter from the Board;

1. Wanting to use a particular justice of the peace who was away; or 2. Forgetting to sign the document

amount to a special reason to waive the breach. Whilst the Tribunal could not find any authority on the term "special reason" under this Act, I consider that the approach taken to the term in other contexts regarding the exercise of a discretion can assist. "Special" connotes something different from "general". Something that is ordinary or common is not special. The reason must be extraordinary, unusual or atypical.[4]

1. There was nothing unusual or atypical about the reasons for Wallerberdina's non-compliance.

The deadline was irrelevant because the content of the return was not discussed

1. The lessee contended that the failure of the Board to discuss the contents of the returns at any of the meetings prior to the imposition of the penalty indicated that the time-frames imposed were meaningless. The lessee maintained that only if the Board were denied the opportunity to discuss the lessee's stocking density by virtue of the lateness of the return and, if necessary, take action in respect of the answers supplied by the lessee, could it be said that there had been any harm caused by the late return.
2. Actual harm caused by a breach is a factor relevant to penalty. It is an aggravating factor. But nothing in the legislative scheme suggests that a breach is incapable of being penalised if no harm eventuates from it. This ground of challenge, insofar as it relates to waiver, must fail. It requires further consideration under the issue of whether the penalty was appropriate.

1. Mr Chapman submitted that the minutes of the meeting of 1-2 November 2018 containing the decision to impose the fine, misspells Wallerberdina as "Wallerberdinna". The Tribunal should conclude, he argues, that there has been no decision to impose a fine on the respondent because the respondent's name is not properly spelled in the document recording the decision.
2. The Board's record of the decision misspells the lease-holder's name in this way in several documents. Other identifiers, such as the lease number, make it clear what lease is referred to and that the decision relates to the lessee.
3. The lessee understood the stock return to relate to Wallerberdina Pty Ltd as lessee for lease CL6200/238 PE220 and took no issue with the spelling in the form. It is now too late to advance it as a ground upon which the action lacked validity.
4. The fine notice and the letter that accompanied it, sent in May 2019, refer correctly to Wallerberdina Pty Ltd.
5. It is the Tribunal's conclusion that the Board made the correct decision when it determined to impose a penalty upon the lessee. Some of the submissions by Wallerberdina are relevant to the quantum of the penalty, and consideration of those now follows.

1. The Board submitted that, at 10% of the maximum pecuniary penalty for a breach by a lessee (and noting that cancellation of the lease is also a possible penalty), the penalty was quite within the range of appropriate penalties that the Board could issue. The obligation of the Tribunal when performing its review task under s 34 of the SACAT Act requires the Tribunal to "have regard to" and to "give appropriate weight to" the decision of the original decision-maker. The weight to be given to the Board in respect of the decision made in May 2019 is very little as the Board was mistaken as to its role and power on that occasion. The weight to be given to the Board in relation to its decision of 1-2 November 2018 to proceed to penalty having found a breach is one that the Tribunal would think carefully about before overturning, as long as the process was not contaminated with error.
2. The penalty must be proportionate to the gravity of the conduct.[5] The purpose of a penalty is to punish, and for deterrent purposes (personal and general) and to rehabilitate.[6] In that sense the penalty must have some 'sting' in order to achieve its end. Proportionality and consistency are also checks on a penalty being proposed.
3. On review, Wallerberdina argued that the penalty was excessive, unfair when compared to that imposed on other lessees and also that it had not had an opportunity to disabuse the Board of the reasons for previous non-compliance.

1. On review, the Board submitted that Wallerberdina's past non-compliance was relevant to the question of penalty.
2. The Board's decision letter of 5 December 2018 makes no mention of previous non-compliance as a factor in imposing or setting the penalty. However, the briefing paper to the Board supporting the decision made on 1-2 November to impose the fine said:

In determining the fine value, the Board should consider any reasons furnished; and the level of compliance from the five lessees in regards to stock return submission over the previous three years, as shown below. It is evident that all lessees have submitted late stock returns in the previous three years, however the lessees of (redacted) and Wallerberdinna have breached more severely over the three year period compared to the lessees of (redacted).[7]

1. There followed a table that showed that Wallerberdina had submitted its return on 31 August 2017 for the year ending 30 June 2017, 13 January 2017 for the year ending 30 June 2016 and 23 December 2015 for the year ending 30 June 2015.
2. Mr Chapman submitted that he was denied an opportunity to respond to this factor until after the imposition of the penalty, whereupon it should have been relevant to the request for waiver or reduction. In particular, he submitted documents which he said demonstrated that Wallerberdina had made strenuous efforts to make the sub-lessee comply in previous years.
3. The Board submitted that Wallerberdina was not denied an opportunity to adduce that evidence and it could have been raised by Wallerberdina in the invitation to respond to its proposal to impose a fine dated 20 September 2018. Further, the Board submitted that the information provided subsequently in the form of the communications between Wallerberdina and its former sub-lessee does not "significantly reduce the impact and relevance of the Company's prior history of non-compliance".[8] In other words, if there had been a lack of procedural fairness at the time, it has been cured on review.
4. I find that the Board ought to have indicated to Wallerberdina, in its letter of 20 September 2018, that it was going to rely upon the company's previous compliance history in determining an appropriate penalty. However, it is also evident that the compliance history had no effect on the outcome, as all non-complying pastoralists - some of whom did not have a history of non-compliance - were issued with the same fine.

The Board ought not have imposed the same penalty on those who submitted a return after the deadline but before the meeting, with those who submitted no return at all

1. All five pastoralists that submitted late returns appear to have been treated the same by the Board in respect of the proposed penalty. There was no evidence before the Board as to what happened in relation to the other pastoralists. The evidence suggests that, at the November 2018 meeting, the Board was of the view that the two pastoralists that had recently sent in returns would be treated the same as those who had not submitted a return at all. In Wallerberdina's case, the return was at that time still unsigned.
2. In light of the fact that there was no evidence about the subsequent events regarding other lessees, it is difficult to assess an argument regarding consistency of treatment. The preferable way forward in that case is for the Tribunal to assess whether the fine was an appropriate one.
3. There is not sufficient evidence before the Tribunal for it to conclude, on the basis of consistency of treatment of other lessees, the penalty was inappropriate. Having found that the steps in the process were undertaken properly, that the considerations relied upon were relevant and irrelevant considerations do not appear to have been relied upon, the Tribunal is not inclined to exercise any residual discretion to reach a conclusion that is different to the one that the Board has reached.

1. The Board submitted that a fine at 10% of the maximum was appropriate. Mr Chapman considers the breach to have been trivial both in terms of the extent of non-compliance and the harm done. However, the legislature has not created an offence that requires harm for it to be established. If the content of the return was late and contained evidence of over-stocking, that may have been an aggravating factor. But it does not follow that a failure to comply where there is no over-stocking attracts no penalty at all.
2. It is difficult to argue that a penalty at the bottom of the scale is excessive. The highest penalty would entail a cancellation of the lease and/or a $10,000 fine. It has not been established that the penalty, in a commercial context (albeit that Mr Chapman submitted that the lease is not profitable), was inappropriate.

1. The correct and preferable decision is that which the Board reached in its meeting of 1-2 November 2018. The respondent was in breach of its obligations under the Pastoral and Land Management Act and was liable to be subjected to a pecuniary penalty for that breach. There was no special reason provided to the Tribunal that would lead to the conclusion that the breach should not be acted upon. The fine, being the sum of $1,000 representing 10% of the maximum fine under the Act, was the appropriate fine.

1. The Tribunal affirms the decision under review.

[1] Item 1 in the book of supplementary documents provided by the Board pursuant to the Tribunal's directions of 13 December 2019.

[2] The error in the spelling of Wallerberdina throughout is as in the original.

1. [4] Fairclough v Stewart-Rattray & Gawler Health Service [2012] SADC 3 per Millsteed J_; Baskerville v Martin_ [1967] SASR 156 at 160; Lawrence v Baskerville [1968] SASR 86 (FC) at 88; Barwick v Crichton (1983) 36 SASR 142 at 144; Acre Development Pty Ltd v NCSC (1987) 46 SASR 261.

1. [5] Attorney-General v Tichy (1982) 30 SASR 84 at 92 per Wells J; Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2011] FCA 810 at para.25 per Gilmour J ("ABCC").

[6] Ponzio v B & P Caelli Constructions Pty Ltd and Ors [2007] FCAFC 65; (2007) 158 FCR 543 at 559-560 per Lander J; [2007] FCAFC 65 at para.93 per Lander J ("Caelli Constructions"); ABCC at para 26 per Gilmour J.

[7] The spelling of Wallerberdina in that passage reflects the original.

[8] Respondent's Reply, filed 6 December 2019, at [28].