Woolworths v Waverley Council [1999] NSWSC 308 | Case summary

1 Between 18 December 1996 and 20 June 1997 officers of the first defendant, Waverley Council, impounded ten shopping trolleys found in various locations in the municipality. The trolleys were the property of the plaintiff, Woolworths Limited and had come from its Bondi Junction store. In respect of each trolley the plaintiff exercised its right of appeal to a Local Court under the Impounding Act 1993. The appeals were heard at Waverley Local Court by the second defendant, a magistrate, who dismissed them. 2 The plaintiff seeks relief in this Court, both directly against the first defendant and of a supervisory nature arising from the disposition of the appeals. Before examining more closely the facts and the nature of the relief sought, it is necessary to set out some relevant provisions of the Impounding Act. 3 Among the objects of the Act, set out in s3, is the following: (a) to empower authorised persons to impound and deal with … articles in public places and places owned or under the control of certain public authorities if … they have been abandoned or left unattended … Various public authorities, including Councils, are empowered to appoint impounding officers: see the Dictionary. 4 The power to impound articles is conferred by s15: An impounding officer may impound an article found in the officer's area of operations if the officer believes on reasonable grounds that the article has been abandoned or left unattended. … When something is "impounded" is dealt with by s8: (1) Something is impounded as soon as an impounding officer … 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. 5 Section 17 requires impounded articles to be delivered to a pound. The procedure then to be undertaken is set out in s20: (1) An impounding authority must make all reasonable inquiries in an effort to find out the name and address of the owner of an impounded item … (2) The inquiries and search must be made as soon as practicable after the item is delivered to the authority's pound or (in the case of an article that is impounded without being delivered to a pound) as soon as practicable after the article is impounded. (3) If the impounding authority knows or finds out the name and address of the owner, the authority must cause notice of the impounding to be given to the owner of an impounded item. (4) … (5) A notice under this section must be in writing addressed to the person to be given the notice. It must clearly indicate that the item has been impounded and will be sold or otherwise disposed of if not claimed within a stated period … 6 Section 23 enables the owner of an impounded item to apply to the impounding authority for its release. The authority must release the item to the owner if, among other things, all fees and charges in relation to the impounding and holding of it have been paid: s23(2)(b). Section 24 provides for the sale by public auction of unclaimed articles. By s26, an impounding authority may fix fees and charges for the impounding, holding and disposing of an impounded article. Section 26(2) sets out the fees and charges that may be fixed, and they include the following: · a fee for conveying an impounded article to a pound, · a fee for storing an impounded article at the pound, · a fee to cover the cost of serving a notice notifying the owner of an impounded item that the item may be or has been impounded. 7 Each of the ten trolleys impounded by the defendant bore the plaintiff's name. Indeed, on the day on which possession was taken of each of them a report headed "ABANDONED SHOPPING TROLLEY" was prepared, and each of those reports acknowledged the plaintiff as the owner. Nevertheless, the defendant did not provide to the plaintiff the notice required by s20(3) of the Act in relation to any of the trolleys until 25 June 1997, five days after the last of them had been impounded. That notice was by way of a letter referring to the impounding of ten shopping trolleys "believed to be owned" by the plaintiff, and informing the plaintiff that they would be released under s23 "upon payment of impounding and holding charges amounting to $100 for each trolley". 8 The plaintiff's solicitor replied by letter of 8 July 1997 which, among other things, informed the defendant that it intended to exercise its rights of appeal under the Act. It is necessary at this stage to set out the relevant provisions. 9 The only rights of appeal are to be found in s38(1): The owner of an impounded item has the following rights of appeal to the Local Court nearest to the place of impounding: · The owner can appeal against the impounding on the grounds that the impounding of the item was unlawful. · The owner can appeal against any fee or charge required to be paid for the release of the item … on the ground that the fee or charge has been improperly charged or incorrectly calculated or is excessive. 10 Time limits for appeals are fixed by s39: The time limit for an appeal is: (a) 28 days from the date of impounding, in the case of an appeal against impounding, or (b) 28 days from the date on which application was made for the release of the impounded item, in the case of an appeal against an impounding fee. 11 Section 40(1) provides for certain consequences, which are of no present relevance, if an appeal against impounding is disallowed. However, if such an appeal is allowed, s40(2) requires the impounding authority to release the impounded item "free of all impounding fees" and to meet the expenses of returning it to the appellant. 12 On 17 July 1997 the plaintiff filed notices of appeal at Waverley Local Court in respect of each trolley. The appeals were on both the bases set out in s38(1): that the impounding was unlawful and that the impounding charges sought by the defendant had been improperly charged or incorrectly calculated, or were excessive. 13 At the hearing, the learned magistrate took the view that the plaintiff, as appellant, bore the onus of proof and should present its evidence first. The store manager, Mr Howard Matthews was called in the plaintiff's case but his evidence did not bear upon the lawfulness of the impounding or the appropriateness of the impounding charges, as the circumstances were not within his knowledge. The defendant led no evidence. 14 Her Worship held that, on the question of the lawfulness of the impounding, nine of the appeals were out of time. She dismissed the tenth appeal on the basis that there was no evidence that the impounding of that trolley was unlawful. Similarly, she dismissed all ten appeals against the impounding charges on the basis that, in the absence of evidence of how they were arrived at, she could not conclude that they had been improperly charged or incorrectly calculated, or were excessive. Finally, she ordered the plaintiff to pay the defendant's costs. 15 All of these matters give rise to the claims for relief in the supervisory jurisdiction of this Court. Nature of Appeal 16 Senior counsel for the plaintiff in this Court submitted that, in concluding that the plaintiff bore the burden of proof in the Local Court and was required to begin, the learned magistrate had misconceived the nature of the appeal created by s38(1). He contended that the appeal is a hearing de novo. Accordingly, it was the defendant who bore the burden of proof on both issues raised and who was required to adduce evidence in relation to them: Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616, per Mason J (as he then was) at 620. I am satisfied that this is so. 17 In Ex parte Australian Sporting Club Ltd; Re Dash (1947) 47 SR (NSW) 283, Jordan CJ considered the various senses in which the word "appeal" might be used. The Chief Justice said (at 283): The word "appeal" may be used in two connections. It may refer to an appeal from one judicial tribunal to another; such an appeal may be an appeal stricto sensu or an appeal by way of rehearing, in which latter case the jurisdiction exercised by the appellate tribunal is in part original; or the word may refer to an appeal from an executive authority to some other executive authority or to a Court. If such an appeal is to a Court, the jurisdiction which it exercises is not appellate but original… His Honour concluded that the appellate jurisdiction of a magistrate under the Motor Traffic Act 1909 considered in that case fell into that last category. 18 In Sperway Constructions (at 621) Mason J did not think that Jordan CJ was enunciating "an absolute rule" that any right of appeal given to a Court from the decision of an administrative authority involves a hearing de novo. His Honour added, however, that there are "sound reasons for thinking" that in many cases such an appeal would necessarily entail a hearing of that kind. His Honour continued (also at 621): The nature of the proceeding before the administrative authority may be of such a character as to lead to the conclusion that it was not intended that the court was to be confined to the materials before the authority. There may be no provision for a hearing at first instance or for a record to be made of what takes place there. The authority may not be bound to apply the rules of evidence or the issues which arise may be non-justiciable. Again, the authority may not be required to furnish reasons for its decision. In all these cases there may be ground for saying that an appeal calls for an exercise of original jurisdiction or for a hearing de novo. On the other hand the character of the function undertaken by the administrative authority in arriving at its decision may differ markedly from the instances already supposed. The authority may be required to determine justiciable issues formulated in advance; to conduct a hearing, at which the parties may be represented by barristers and solicitors, involving the giving of oral evidence on oath which is subject to cross-examination; to keep a transcript record; to apply the rules of evidence; and to give reasons for its determination. In such a case a direction that the appeal is to be by way of rehearing may well assume a different significance. 19 The last sentence in that passage is couched the way it is because the legislation with which the High Court was dealing, the Builders Licensing Act 1971 (NSW), conferred a right of appeal which was expressed to be "by way of rehearing". However, the use of the term "rehearing" was by no means determinative of the Court's decision. Mason J commented upon its ambiguity in this context (at 619-20). The correct approach to the classification of the nature of an appeal was expressed by his Honour in this way (at 621-2): But in the end the answer will depend on an examination of the legislative provisions rather than upon an endeavour to classify the administrative authority as one which is entrusted with an executive or quasi-judicial function, classifications which are too general to be of decisive assistance. Primarily it is a question of elucidating the legislative intent, a question which in the circumstances of this case is not greatly illuminated by the Delphic utterance that the appeal is by way of rehearing. 20 After an examination of the relevant provisions of the Builders Licensing Act, the Court concluded that the right of appeal conferred by it was by way of hearing de novo. This conclusion was arrived at notwithstanding the fact that the decision of the Builders Licensing Board appealed against was reached after consideration of the evidence produced at an enquiry, the procedure for which was attended by a considerable measure of formality: Mason J at 622-5. 21 The Court of Appeal took the same view of the appeal from the Victims Compensation Tribunal to the District Court provided for in s29 of the Victims Compensation Act 1987: Goldsmith v Victims Compensation Tribunal (1993) 30 NSWLR 410. In so doing, the Court applied the principles expounded by Mason J in Sperway Constructions: see the judgment of Mahoney AP at 413-5. The section there under consideration did not describe the appeal as "by way of rehearing". Nor did the provision with which Jordan CJ was dealing in Ex parte Australian Sporting Club (supra). 22 The right of appeal conferred by the Impounding Act is against administrative actions which are not preceded by a hearing of any kind and for which the relevant authority is not required to give any reasons. In my view, it is clear that the jurisdiction conferred upon the Local Court is original: that is, the appeal is by way of hearing de novo. Indeed, the course of the appeal in this case demonstrates the potential for injustice if it were otherwise. It is no answer to say, as counsel for the defendant in this Court did, that the plaintiff might have fashioned its case from an examination of records of the defendant produced on subpoena. 23 My conclusion is unaffected by the fact that s38(1), unlike the provisions considered in the other cases, does not express the right of appeal in unfettered terms but specifies grounds upon which appeals might be brought. The nature of the administrative action appealed against is such that justice could be achieved only by a hearing de novo. In any event, the grounds in the subsection are so broad that it is difficult to imagine any other basis upon which an unqualified right of appeal might be exercised. 24 Accordingly, the learned magistrate misconceived the nature of the jurisdiction which she was called upon to exercise. The orders dismissing the appeals should be quashed and the plaintiff is entitled to an order that the appeals be remitted to the Local Court to be determined according to law. However, it is necessary to deal with the other matters which were argued and the other relief sought. Time limit 25 As observed, her Worship held that all the appeals on the ground that the impounding was unlawful were out of time, except the last. It will be remembered that the ten trolleys were impounded on various dates between 18 December 1996 and 20 June 1997. The appeals were lodged on 17 July 1997. Section 39(a) provides that an appeal on that ground must be lodged within 28 days from "the date of impounding". If that expression means the date upon which Council officers took possession of the trolleys, then only the last of the ten trolleys, seized on 20 June 1997, was impounded within the time limited. 26 It will also be remembered that the defendant did not notify the plaintiff that the ten trolleys had been impounded until 25 June 1997. Even then, more than 28 days had elapsed since five of the trolleys had been seized and, in any event, appeals could not be lodged until the plaintiff had notified the defendant in writing of its intention to appeal: s38(2). It did so by its letter of 8 July 1997 and the appeals were filed nine days later. In the circumstances, the plaintiff appears to have proceeded with reasonable dispatch after receiving the defendant's notification of 25 June. 27 Mr Matthews gave evidence in the Local Court that "a percentage of customers" took shopping trolleys away from the store, notwithstanding signs at the exit from the store and in the car park informing them that it was illegal to do so. The problem was persistent enough to require the plaintiff to engage a contractor to locate and return trolleys which had been unlawfully removed. He said that he was unaware that the ten trolleys in question had been impounded until the defendant's letter of 25 June was received. However, he did know over the relevant period that trolleys were being impounded from time to time. Indeed, over an even longer period he had been having discussions with a senior officer of the defendant about the continuing problem. 28 The learned magistrate took the view that the expression "the date of impounding" in s39(a) means the date upon which each trolley was taken into possession by the defendant's officers. True it is that s8 provides that an article continues to be impounded until it is released or disposed of in accordance with the Act. However, if the word "impounding" were used in that extended sense in s39(a), there would never be a date from which the time limit ran and the purpose of the paragraph would be defeated. I agree with this analysis. 29 The plaintiff then relied upon s20, dealing with the responsibilities of an impounding authority after an article has been impounded. The effect of subss(1)&(2) of that section is that the authority must make all reasonable inquiries to identify the owner of an article as soon as practicable after it has been impounded. Those subsections are not directly relevant here, as the defendant was aware from the outset that the trolleys were the property of the plaintiff. It is subs(3) which is apposite: requiring the impounding authority to notify the owner of the impounding if the identity of the owner is known or is ascertained through inquiries. The subsection is silent as to when notice should be given. Whereas subs(2) provides that inquiries to identify the owner must be made "as soon as practicable" after the impounding, no such expression appears in subs(3). 30 Nevertheless, it was argued on behalf of the plaintiff that s20 implies an obligation to notify the owner of the impounding as soon as practicable after the owner's identity becomes known or, if the identity of the owner is known from the outset, as soon as practicable after the impounding. Section 39(a), it was said, should be read in conjunction with s20, so that the time limit runs, not from the date of the impounding but from the date upon which the owner was notified of it. Otherwise, an authority could refrain from notifying the owner for more than 28 days after the impounding, so as to frustrate the owner's statutory right of appeal. 31 Senior counsel in this Court relied upon ss33 & 34 of the Interpretation Act 1987 and judicial pronouncements about the beneficial and purposive interpretation of statutory provisions: Cole v Director General of Youth & Community Services (1987) 7 NSWLR 541, per Kirby P at 543-4 and McHugh JA at 549; Saraswati v The Queen (1990-91) 172 CLR 1 per McHugh J at 21-3. 32 Her Worship was sensitive to the injustice which might result from a literal interpretation of s39(a) and acknowledged that, in the case before her, the operation of the provision was "harsh". Nevertheless, she concluded that the terms of the paragraph are unambiguous and had to be given effect accordingly. Again, I agree. A liberal approach to statutory interpretation does not permit a court to read into a provision words that are simply not there, even though its plain language might produce injustices or anomalies in particular cases: Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404, per McHugh JA at 421. 33 That said, I commend the matter to the legislature for the consideration of amendments which might ensure fairness to the owners of impounded items without impeding the pursuit of the objects of the Act. 34 In this Court senior counsel for the plaintiff also relied upon estoppel by conduct, which had not been argued in the Local Court. Indeed, he submitted that this is the "real way of granting relief" against the imposition of the time limit. He referred to the analysis of estoppel by the High Court in The Commonwealth v Verwayen (1990) 170 CLR 394. ( He did not suggest that there was any direct parallel between that case and this and, accordingly, the differences of opinion between the members of the court about the outcome of that appeal are not presently material.) The most thorough examination of the relevant principles is in the judgment of Deane J at 431ff, with his Honour's summary of the modern law appearing at 444-6. Reference might also be made to the judgments of Mason CJ at 413-6, Brennan J at 428-9, Dawson J at 451-5 and McHugh J at 499-501. 35 The argument for the plaintiff was that the defendant's failure promptly to notify the plaintiff of the impounding of the trolleys amounted to an implied representation that the trolleys were not in its possession. This was said to arise from the duty of the defendant to notify the plaintiff under s20(3) of the Act. While that subsection does not expressly require that notice be given as soon as practicable, the duty to do so arises from the fact that time to appeal against impounding runs from the date when the article was seized. That implied representation, the argument continued, led the plaintiff to act to its detriment by not filing appeals against the impounding of most of the trolleys within the time limited. 36 To express the plaintiff's position in the language used by Deane J in Verwayen at 444-5, the defendant induced an assumption on the part of the plaintiff by an implied representation and, in the circumstances, departure from that assumption would be unconscientious. It would not be necessary to prove that the defendant's delay in notifying the plaintiff of the impounding was deliberate, calculated to frustrate its right of appeal (although that was what was suggested in argument). Deane J observed (at 445) that "a critical consideration will commonly be that the allegedly estopped party knew or intended or clearly ought to have known that the other party would have been induced by his conduct to adopt, and act on the basis of, the assumption" (my italics). Toohey J (at 467) referred to the judgment of Isaacs J in Craine v Colonial Mutual Fire Insurance Co Ltd (1920) 28 CLR 305, in which his Honour was distinguishing estoppel by conduct from waiver. In that context Isaacs J said (at 327) : First of all, the law of estoppel looks chiefly at the situation of the person relying on the estoppel; next, as a consequence of the first, the knowledge of the person sought to be estopped is immaterial; thirdly, as a further consequence, it is not essential that the person sought to be estopped should have acted with any intention to deceive; fourthly, conduct, short of positive acts, is sufficient. 37 However, it must be borne in mind that the question of estoppel by conduct, while guided by principle, must not be approached inflexibly. As Deane J put it in Verwayen (at 445): Ultimately, however, the question whether departure from the assumption would be unconscionable must be resolved not by reference to some preconceived formula framed to serve as a universal yardstick but by reference to all the circumstances of the case, including the reasonableness of the conduct of the other party in acting upon the assumption and the nature and extent of the detriment which he would sustain by acting upon the assumption if departure from the assumed state of affairs were permitted. 38 I see no reason in principle why the plaintiff should not be able to rely upon an estoppel of the kind contended for, provided the evidence supports it. There was some evidence relevant to the matter before her Worship but, as the issue was not raised, it is far from sufficient to enable any finding to be made. However, it might profitably be explored at a further hearing in the Local Court. If the estoppel were established, it would seem that the appropriate remedy would be to prevent the defendant relying upon the time limitation in s39(a). 39 Finally, I should record the fact that counsel for the defendant raised the question whether s39 is not merely a limitation provision, but a privative or preclusive clause: see Londish v Knox Grammar School (1997) 97 LGERA 1, per Stein JA at 4-6 (and the cases there referred to). However, an argument that it is was not pressed and, certainly, I would not characterise the section in that way. 40 Having found that the appeals against impounding in relation to nine of the trolleys were out of time, the learned magistrate concluded that she had no jurisdiction to hear them. For the reasons I have given, that conclusion also was in error and dictates that the matter be remitted to the Local Court. Lawfulness of impounding 41 As observed, the learned magistrate found that the appeal against the impounding of one trolley was within time. As to that trolley, the plaintiff argued that, whatever might have been the circumstances of its seizure in the first place, its detention became unlawful because of the defendant's failure promptly to notify the plaintiff of its impounding. Again, the plaintiff relied upon the implication of a duty to give the notice under s20(3) as soon as practicable after the defendant took possession of the trolley. It was argued that, for the purpose of an appeal on the basis that the impounding was unlawful under s38(1), the word "impounding" includes the detention of an article after its seizure, as provided by s8(1). 42 In fact, that trolley was seized on 20 June 1997 and the notice to which I have referred was forwarded five days later. However, that does not appear to be a matter to which her Worship had regard in dismissing the appeal. She disposed of the matter by holding, firstly, that "impounding" in s38(1) means only the seizure of the article and does not extend to its detention and, secondly, that in any event s20(3) is silent as to when notice must be given to the owner. 43 Again, I must conclude that her Worship's reasoning was in error. In my view, the term "impounding" in s38(1) should be given the extended meaning which it is afforded by s8(1). One can readily conceive of circumstances in which the seizure of an article was lawful but its detention became unlawful. For example, if inquiries to ascertain the identity of the owner were not made as soon as practicable after the article was seized, as required by s20(2), its continued detention would be unlawful. When the owner eventually became aware of the impounding, a successful appeal under s38(1) would lead to the release of the article free of impounding fees: s40(2). Such an outcome would be just and would conform with the objects of the Act. 44 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. While s20(3) does not impose a time frame for notification of an owner whose identity is known, it is appropriate to imply a requirement that it also be done as soon as practicable. Unreasonable delay in notifying the owner in those circumstances, far from advancing the objects of the Act, would be an abuse of the powers conferred by it and would render the detention of the article unlawful. Whether that is so in this case would need to be determined in the light of the evidence at a renewed hearing in the Local Court. 45 This view of the ambit of an appeal against impounding under s38(1) highlights the unfairness of the time limit set by s39(a), referred to earlier. Although an owner complains of the detention of an article, rather than its seizure, the time limit runs from the date of the seizure. It is in this very situation that the owner might not be notified of the impounding until after the time limit for appeal has expired. It may be that the owner could then rely upon estoppel, but that is hardly a satisfactory state of affairs. In my view, s39(a) should be amended to prescribe a time limit from the date of notification. 46 It will be remembered that s15 enables an officer to impound an article reasonably believed to have been "abandoned or left unattended". In this Court, but not in the Local Court, it was argued on behalf of the plaintiff that the defendant impounded the trolleys on the basis that they were abandoned, rather than left unattended. As observed earlier in these reasons (paragraph 7), on each occasion a Council officer prepared a report on a standard form referring to the trolley as "abandoned". The same expression was used in the notification forwarded by the defendant to the plaintiff on 25 June 1997. 47 That being so, submitted senior counsel for the plaintiff, the seizure of each trolley was lawful only if the impounding officer reasonably believed it to be abandoned, rather than left unattended. In the Macquarie Dictionary the word "abandon" is defined, relevantly for present purposes, as "to cast away or leave personal property with no intention of reclaiming it, thereby making the property available for appropriation by any person". This is consistent with the legal notion of abandonment to be found, for example, in the law of larceny: Hibbert v McKiernan [1948] 2 KB 142. 48 Clearly, the argument continued, the plaintiff had not abandoned any of the trolleys. They had been removed from the store unlawfully by customers, who had left them where they were later found by officers of the defendant. There was no basis on which any of those officers could have believed otherwise. Accordingly, the only belief they might reasonably have formed was that the trolleys had been left unattended. 49 Counsel for the defendant suggested that a trolley left in the street by a customer of the plaintiff might properly be described as "abandoned" by that customer. I do not agree. I accept the plaintiff's argument that the word should be confined to articles relinquished by their owner. On the evidence before me, it does seem that the trolleys would more properly be described as "left unattended". However, this does not mean that the plaintiff has succeeded in establishing that they were unlawfully impounded. 50 In the absence of further evidence, I would not conclude that the officer in each case formed the belief that the trolley was abandoned, as opposed to left unattended, merely from the fact that that word was used in the defendant's documentation. More importantly, however, I do not accept that a valid exercise of the power conferred by s15 requires the impounding officer to choose whether the article has been abandoned or left unattended. The plaintiff's argument would put the officer to such an election, much as an informant in criminal proceedings might have to select one of a number of statutory alternatives in framing a charge. This cannot be the intention of the legislation. In many cases an officer might fairly conclude that an article has been abandoned or left unattended, but would have no way of knowing which. He or she would still be entitled to impound it. 51 On the basis of these arguments about the seizure and detention of the trolleys, the plaintiff invited me to determine that their impounding was unlawful and to order that they be delivered up to the plaintiff. For the reasons I have given, the evidence is insufficient for me to make such a determination. I put to one side the question whether, even if I could, it would be appropriate for me to take such a course. This matter also must be decided in the Local Court.

Woolworths v Waverley Council

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