Solicitors:
Rural Law (Appellant)
Bell & Johnson (Respondent)
File Number(s): 1410153
[2]
reasons for decision
Yammatree Pty Ltd ("Yammatree") has applied to the Tribunal under the Local Land Services Act 2013 ("the Act") for orders that the Respondent compensate it for losses which are said to have arisen from decisions made by officers of the Respondent.
The Respondent, the North West Local Land Services ("the NWLLS") is a Local Land Services ("LLS") - a statutory corporation established on 1 January 2014 under section 8 of the Act. Its functions are, inter alia, to administer, deliver and fund local land services and to develop and implement appropriate governance arrangements for the delivery of local land services.
Yammatree appeals two decisions of the Respondent:
a. a refusal to issue a travelling stock permit for walk/slow travel from 25 February 2014 to 28 February 2014 ("the Refusal"); and
b. the cancellation of Permit 6193 for walking a mob of cattle from Tantaranna to Millie and covering the period from 1 March 2014 to 14 March 2014. ("the Cancellation").
[3]
Jurisdiction
Section 4 of the Act defines "local land services" to mean programs and advisory services associated with agricultural production, biosecurity, natural resource management and emergency management. These include programs and advisory services associated with natural resource management and planning, travelling stock reserves ("TSRs") and stock watering places, control and movement of stock and related services and programs.
By clause 12(1) of Schedule 6 to the Act, the Respondent is vested with the care, control and management of a number of TSRs, including TSRs which are the subject of this matter.
Part 6 of the Act, which regulates the use of TSRs, provides:
72 Unauthorised uses of travelling stock reserves
A person must not, without lawful authority:
(a) enter or remain on a travelling stock reserve, or
(b) occupy or make use of any travelling stock reserve for any purpose, or
(c) engage in any activity that damages, or is likely to damage, a travelling stock reserve.
Maximum penalty: 50 penalty units.
…
78 Stock permits authorising certain uses of travelling stock reserves and public roads
(1) An authorised officer of Local Land Services may issue a permit (a "stock permit" ) to any person authorising the person to do anything (or omit to do anything) on or in relation to any public road or travelling stock reserve (whether controlled or managed) specified in the permit in respect of stock owned or in the charge of the person and that would otherwise contravene a provision of this Division.
(2) Without limiting subsection (1), an authorised officer may issue a stock permit authorising a person to do any one or more of the following:
(a) enter a controlled travelling stock reserve with stock,
(b) remain on a controlled travelling stock reserve with stock,
(c) walk stock on a public road or travelling stock reserve,
(d) graze stock on a public road or controlled travelling stock reserve.
...
Section 80 of the Act provides that unless sooner cancelled or suspended, a stock permit remains in force for the period specified in the permit. Section 81 of the Act provides:
81 Cancellation or suspension of stock permits and reserve use permits
(1) A permit may be cancelled or suspended by Local Land Services at any time by notice in writing given to the permit holder.
(2) The notice is to state the grounds for cancellation or suspension of the permit.
(3) Without limiting the grounds on which Local Land Services may cancel or suspend a permit, Local Land Services may suspend or cancel a permit on any of the following grounds:
(a) the holder of the permit has been convicted of an offence against this Act or the regulations,
(b) the holder of the permit has contravened a condition to which the permit is subject,
(c) cancellation or suspension is necessary for the protection of any stock or of a public road or travelling stock reserve.
Section 83 of the Act provides that a stock permit is subject to such conditions as are prescribed by the Regulations or specified in the permit. Section 84 provides:
84 Movement and grazing of stock authorised by stock permits must comply with Act and regulations
The holder of a stock permit must ensure that stock that the holder owns or of which the holder has charge are not moved over, or grazed on, a public road or travelling stock reserve in contravention of any provision of this Act or the regulations.
Maximum penalty: 20 penalty units.
Section 86(1) of the Act allows an applicant for a permit under the Act to Appeal to the Tribunal against a decision of an LLS to refuse to issue a permit. Section 86(2) of the Act allows the holder of a permit to appeal to the Tribunal against a decision by the LLS to cancel the permit.
Section 29 of the Civil and Administrative Tribunal Act 2013 ("the NCAT Act") states that the Tribunal has "general jurisdiction" over a matter if:
(a) legislation (other than this Act or the procedural rules) enables the Tribunal to make decisions or exercise other functions, whether on application or of its own motion, of a kind specified by the legislation in respect of that matter, and
(b) the matter does not otherwise fall within the administrative review jurisdiction, appeal jurisdiction or enforcement jurisdiction of the Tribunal.
Note : The general jurisdiction of the Tribunal includes (but is not limited to) functions conferred on the Tribunal by enabling legislation to review or otherwise re-examine decisions of persons or bodies other than in connection with the exercise of the Tribunal's administrative review jurisdiction.
...
Section 31 of the NCAT Act gives the Tribunal external appeal jurisdiction over certain decisions:
(1) The Tribunal has
"external appeal jurisdiction" over a decision (or class of decisions) made by an external decision-maker if legislation provides that an appeal may be made to the Tribunal against any such decision (or class of decisions).
(2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its external appeal jurisdiction:
(a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings,
(b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of such proceedings.
(3) An "appealable external decision" is a decision of an external decision-maker over which the Tribunal has external appeal jurisdiction.
(4) An "external appeal" is an appeal to the Tribunal against an appealable external decision.
...
Clause 14 of Schedule 3 to the NCAT Act states:
14 External appeals under lands legislation
(1) Except as otherwise provided by the lands legislation, an external appeal made under that legislation:
(a) may be made without requiring the leave of the Tribunal concerning the grounds for the appeal, and
(b) is to be by way of a rehearing.
(2) Fresh evidence, or evidence in addition to or in substitution for the evidence received by the external decision-maker, may be given in the appeal with the leave of the Tribunal.
Clause 1 of Schedule 3 to the NCAT Act states:
"lands legislation" means the following legislation:
…
(d) the Crown Lands Act 1989
…
There does not appear to be any provision that suggests that Clause 14 of Schedule 3 to the NCAT Act should not apply.
The Respondent submits that in an appeal by way of a rehearing, the powers of the Tribunal are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the Tribunal, the decision that is the subject of the appeal is the result of some legal, factual or discretionary error: see Allesch v Maunz (2000) 203 CLR 172 at [23]. This is to be distinguished from a hearing de novo where an appellate tribunal's powers may be exercised regardless of error.
In contrast, Mr O'Neill, counsel for Yammatree, submitted that the Respondent's analysis is far too simplistic in the face of the enabling legislation and what the word "rehearing" must mean, in the face of the decision to be made by the Tribunal. Yammatree relies on views expressed by Mason J in Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 621:
"Where a right of appeal is given to a court from the decision of an administrative authority, a provision that the appeal is to be by way of rehearing generally means the court will undertake a hearing de novo, although there is no general rule to that effect."
Mr O'Neill further submitted that the Court in Builders Licensing Board v Sperway Constructions held that one of the many factors which indicate that a rehearing is, in fact, a hearing de novo is if the original decision maker conducted no hearing. Here, there was no "hearing" in any formal sense. There was no calling of evidence or record of proceedings. It was a decision in the purely administrative sense.
Mr O'Neill further submitted that section 87 of the Act provides for the Tribunal to order compensation. The power to award compensation is not a power conferred on any LLS. It is in all respects a fresh power conferred only on the Tribunal in consequence of a decision to reverse a decision of an LLS. He contends that this suggests that the appeal is a hearing de novo or, at its highest, some statutory hybrid.
Yammatree has alleged legal, factual or discretionary errors in relation to the decisions made by officers of the Respondent to refuse to issue a permit for walking/slow travel of its cattle and to cancel a permit issued for walking/slow travel of those cattle. It contends that the Refusal was not based on valid grounds. Similarly it contends that each of the grounds given for the decision to cancel the permit was without foundation in law or in fact. Further, Yammatree claims that the decisions were unreasonable or otherwise unlawful. As a consequence, Yammatree contends that the Tribunal should revoke both decisions and compensate it.
I agree with Yammatree in regard to the construction of the nature of the hearing. However, even if I am wrong on that point, I am satisfied that Yammatree has identified what it contends to be legal, factual or discretionary errors. On this basis I am satisfied that the Tribunal has jurisdiction to determine this matter and to receive fresh evidence in order to do so.
[4]
Background
Yammatree conducts farming and grazing operation from a base at Bethungra in the NSW Riverina. Yammatree conducts its operation across a number of properties in the Riverina, north-western NSW and Queensland.
Yammatree has used TSRs to move its cattle from one property to another or as a grazing area, when needed. Invariably, it engages a drover to move the cattle along the TSRs and to have the day-to-day care and control of its cattle.
In NSW the TSRs are controlled by LLSs. Each LLS charges a fee for each head of cattle it allows on a TSR. This control was previously undertaken by Pasture Protection Boards, which subsequently became the Rural Lands Protection Boards and then Livestock Health and Pest Authorities ("LHPA"). LHPAs were subsequently absorbed into LLSs. The Respondent has responsibility for the TSRs within its area. The NWLLS extends to Goondiwindi in the north and Blue Knobby in the east.
In early 2013 Yammatree engaged a drover to take a mob of 640 cows with calves at foot to graze on the TSRs. In May 2013 it obtained permits to travel the mob from west of Moree and to graze the cattle on the TSR in the area under the control of the NWLLS. The mob travelled throughout the area from May 2013 to September 2013.
In September 2013 a further 180 cows and calves were added to Yammatree's mob. With those extra 180 cows, the mob continued to travel TSRs throughout the area. New permits were issued as required.
In October 2013, the LHPA determined that all large travelling mobs of stock needed to be restricted from and removed from all TSRs in the North West region. Yammatree's mob was one such large travelling mob of stock. Following a Rangers meeting on 18 October 2013, it was resolved that any new walking stock must nominate a destination, and would be required to walk a minimum of 10 kilometres per day. The new conditions were based on the view that the North West TSRs could no longer support large mobs of cattle and were primarily aimed at destocking and protecting the TSRs.
At a further Rangers meeting on 25 October 2013 officers of the North West LHPA were directed to make contact with all drovers and/or owners of large travelling mobs to notify them that the TSRs within the North West area would be restricted to destination only travelling stock and to all but local land owners.
The owners or drovers of travelling mobs were required to nominate a destination on or before 14 November 2013. The term 'nominate a destination' meant in effect, that the stock owners had to find somewhere to which they could relocate the cattle, somewhere other than a North West LHPA TSR. The advance warning to stock owners was to give them plenty of time to walk their stock out of the North West LHPA area.
An LHPA Officer, Ms Rebecca Gray, contacted Mr James Henwood who was acting on behalf of Yammatree and advised him of the proposed restrictions.
A media release issued on 4 December 2013 stated:
"North West LHPA Responds To Criticism Relating to Travelling Stock Reserve Restrictions
The North West LHPA has responded to criticism for imposing restrictions on the use of travelling stock reserves (TSRS) in light of the ongoing dry conditions.
North West LHPA Senior Ranger, Gerard O'Connor, said a decision was taken at the beginning of November to place some restrictions on the travelling stock reserve use, due to the diminishing groundcover levels created by a large travelling and grazing stock burden and the prolonged dry conditions.
"In the past 12 month period, we have issued 1728 [grazing permits] and 580 walking permits in the North West," Mr O'Connor said.
"This compares with the previous 12 months, where we issued 1363 grazing permits and 117 walking permits. This is in addition to the 300 annual grazing permits that are issued."
Mr O'Connor said the figures show the TSR network had done its share of supporting stockowners through the dry in the last 12 months
"The condition that was applied is all walking stock must have a destination," he added.
"This may be their home property, the nearest saleyard or into a neighbouring LHPA, provided they will accept them."
Mr O'Connor said grazing permits for local stock would still be issued, where there are pockets of feed available.
"These conditions came into effect on 14 November 2013 in all areas of the North West LHPA except the Warialda sector, which will allow a continuance of the current condition to apply to the walking stock.
"The situation in this area will be monitored and is likely to fall into the same category in late December."
Mr O'Connor said the North West LHPA's current Board of Directors is and has always been very committed to maintaining a viable and functional TSR network.
"Previous management will provide the new North West LLS with a tremendous asset to manage into to the future," he concluded."
The release made no distinction in relation to the size of the mobs of stock to which the restrictions applied nor was there any mention of whether nominated destinations could be varied.
In November 2013 Yammatree engaged another drover, Mr Jason Burns, to take over the mob ("the mob"). Mr Burns remained in charge of the mob for the period in which the circumstances that are relevant to this matter arose.
In consultation with Mr Burns, Yammatree made the decision to move the mob into Queensland and obtained a permit to allow it to do so. That permit ended at Goondiwindi East on the Queensland border.
At the same time Yammatree also had another mob of 613 cows and calves consigned to another drover and travelling on the TSRs in the area.
Mr Burns crossed the mob into Queensland on 29 December 2013, with the intention of going through to Injune, in central Queensland. However, as the mob moved north-west, conditions became bad and a decision was made to turn the mob around and head south to Tenterfield. This was done in the hope that, by the time the mob got there, the Tenterfield area would have received the benefit of late summer rains and there would be a feed bank available for the mob.
The mob reached the border on 13 February 2014 and, on 14 February 2014, Yammatree sought, and obtained, a permit ("Permit 7059") was issued by Officer Gerard O'Connor for the NWLLS. This permit allowed Yammatree to walk the mob from the border through the NWLLS region to the boundary of the NWLLS region and the Northern Tablelands Local Land Services ("the NTLLS") area at Blue Nobby. Permit 7059 was to expire at mid-night on 28 February 2014.
The mob travelled east through the NWLLS region towards Blue Nobby but did not travel past North Star. Yammatree made a decision to not keep moving towards Blue Nobby because of the view that it was not in the best interests of the cattle due to the lack of feed. Instead, the decision was made to walk the mob to Bethungra rather than continue east.
On 25 February 2014, Mr Henwood rang Mr O'Connor and indicated that they needed to change the mob's destination. Mr O'Connor told him that the mob would not be able to get to Bethungra as all routes were closed. He told Mr Henwood that Yammatree couldn't change the destination of the mob.
Shortly after the conversation between Mr Henwood and Mr O'Connor, Mr Burns also rang Mr O'Connor to discuss the problem they saw of continuing on to Blue Nobby. Mr O'Connor advised Mr Burns that if they moved the mob south they would be in breach of the permit and would be fined.
Mr Henwood instructed Mr Burns to walk the mob towards Croppa Creek while he attempted to reach an arrangement with the NWLLS.
On 27 February 2014, Mr Henwood and Mr Burns had the mob at the Croppa Creek bore when Mr O'Connor spoke to them. Mr Henwood again indicated that they wanted to change their destination to go south. Mr O'Connor again advised that they could not change the destination and would need to come up with another option. Later on that day, Mr O'Connor received a letter from Yammatree's solicitor, Rural Law, inter alia, requesting a change of destination on Permit 7059 to 'Yammatree', Bethungra, NSW or for Mr O'Connor to issue Yammatree with a new permit for that destination. On 28 February 2014, Mr O'Connor responded to Rural Law by email refusing the request.
Mr Henwood then attempted to make an arrangement with the Wilga Feedlot, near Bellata, to use their yards to truck out the cattle, if necessary. He hoped that, with further rain, there would be sufficient feed to allow them to continue to walk the cattle on the TSRs without needing to truck them.
On Mr Henwood's instruction, Yammatree's solicitor also wrote to the NWLLS to repeat Yammatree's request for a change of destination.
Mr O'Connor subsequently advised Mr Henwood that if Yammatree had proposed to truck the cattle to Bethungra he would allow him to walk the mob to Moree. However, he would not allow them to be walked to Bellata.
Yammatree's permit ran out at mid-night on 28 February 2014. Yammatree decided to drive the mob towards Moree and Mr Henwood directed Mr Burns to do so.
On 3 March 2014 the mob was at Tantaranna, near the property "Milo", north of Moree. Ms Gray went to Tantaranna where she spoke with Mr Henwood. Mr Henwood told her that Yammatree wanted to take the mob through Millie and Combadello. Ms Gray told him that she couldn't let them go that way but that she could give them a permit to take the mob through Tycannah to Millie. She issued Permit 6193 - a walking permit for the mob covering the period from 1 March 2014 to 14 March 2014. That permit was undated.
On 4 March 2014, Ms Gray again met with Mr Henwood and Mr Burns and she told them that Permit 6193 had been cancelled. She handed Mr Henwood a letter from Mr O'Connor advising that the permit had been cancelled pursuant to Section 81 of the Local Land Services Act 2013 ("the Act"). The letter was wrongly dated 11 February 2014. The letter stated:
"As per section 81 of the Local Lands Services Act, you are herby advised that permit 006193 is herby cancelled in accordance with this legislation. The reasons for this cancellation are as follows.
A permit has previously been refused at Croppa Creek due to the contravention of the conditions of the previous permit.
The person in charge of the said stock has walked the stock along TSR in contravention of the previous permit which expired on February 28.
The person in charge of the stock had then walked the stock some 30 kilometers without a permit being in force since February 28.
The permit applicant did not make the permit issuing officer aware of the current situation regarding these material facts.
The permit holder and the owner have been made aware of the current conditions that apply in the North West LLS and continue to have disregard for these conditions.
Cancellation of this permit is for the protection of the stock as there is insufficient feed and water to sustain them on the owners proposed journey.
The cancellation of this permit is also necessary for the protection of the TSR, by not allowing further degradation of ground cover levels by large mobs of travelling stock in the current drought situation."
Mr Henwood rang Mr O'Connor to discuss the issue. Mr O'Connor advised him that if he walked the mob past Moree they would be impounded.
On 5 March 2014, Ms Gray handed Mr Henwood a further letter from Mr O'Connor. That letter was in the same terms as the letter dated 11 February 2014 with the exception that it was dated 5 March 2014.
Yammatree took the decision to keep walking the mob towards Moree and to truck them out from the Moree Saleyards. On 7 March 2014 Yammatree was granted a permit to allow that to take place. That permit was for the period from 8 March 2014 to 14 March 2014.
The mob was trucked out of the Moree Saleyards on 13 and 14 March 2014. It was transported to north-western New South Wales just below Hungerford, Queensland and placed on agistment there.
On 17 March 2014, Yammatree received two General Penalty Notices, each dated 6 March 2014. One notice was for the offence of contravening a condition of Permit 7059 on 27 February 2014 at Croppa Creek. The other notice was for the offence of occupy or make use of the stock reserve on the Gwydir Highway on 6 March 2014 without authority. Mr Burns received two General Penalty Notices at around the same time for the same offences.
[5]
Yammatree's case
Yammatree relies on the evidence of Mr Henwood and Mr Burns. Each gave a statement and also appeared at the hearing, gave evidence and was cross-examined.
[6]
Mr Henwood's evidence
Mr Henwood provided a written statement in which he set out a chronology of events relevant to the matter. For the most part his chronology does not differ to that of the Respondent.
His evidence is that on 14 February 2014 Yammatree obtained Permit No. 7059 for Walking/Slow Travel of the mob from the East Goondiwindi Border Crossing to the NWLLS boundary at Blue Nobby. It intended to take the mob into the NTLLS by 28 February 2014. Initially the mob travelled as planned. However, by the time the mob arrived at North Star there were already two other mobs of cattle on the TSR that had eaten out the feed base between North Star and the NTLLS boundary.
Mr Henwood formed the view that the mob were at risk from a lack of feed if they continued to travel towards Blue Nobby. His evidence was that he received information as the mob moved and that this suggested that feed was deteriorating. The decision was then taken to walk the mob to Bethungra. At the very least, Yammatree wanted to get the mob to Bellata, where a decision could be made to truck the cattle out if there was not sufficient feed.
On 25 February 2014 he sought a permit from Mr O'Connor to walk the mob towards Bethungra and repeated that requests through to 28 February 2014. Mr O'Connor refused to issue the permit. On 27 February 2014 Mr Henwood met with Mr O'Connor at Croppa Creek. At that time the mob was already off course. He told Mr O'Connor that they wanted to change their destination but Mr O'Connor said that he could not do so. Mr O'Connor told him that his best option was to continue to the NTLLS boundary at Blue Nobby.
Mr Henwood conceded that he never had permission to change course from the approved journey towards Blue Nobby to head south towards Bethungra and that he had decided to change course anyway. He also conceded that at all times he could have obtained a permit to enter the NTLLS. However the information that he had received indicated that the feed situation in the NTLLS was deteriorating.
When Permit 7059 expired on 28 February 2014, Yammatree was left without a permit for the mob. The mob headed towards Bellata without a permit.
On 3 March 2014 Ms Gray issued Permit 6193 allowing Yammatree to walk the mob from Tantaranna to Millie. Ms Gray backdated Permit 6193 to cover a period commencing 1 March 2014. Mr Henwood's evidence was that he had advised Ms Gray that Permit 7059 had expired and that Mr O'Connor had refused to vary the destination of the permit or to issue a new permit.
On 4 March 2014 Ms Gray advised Yammatree that Permit 6193 had been cancelled.
Mr Henwood also gave evidence of discussions with Ms Gray about other mobs that were travelling on the NWLLS TSRs and his own observations in regard to the state of the feed available on the TSRs and other mobs that were being grazed on the TSRs. He provided photographs to support his evidence that there was reasonable feed available on the proposed route south to Bellata. He also gave evidence of other mobs of cattle that he had observed in various locations on the TSRs, including on the Gwydir highway east of Moree. He asserted that this was evidence that there was sufficient feed for the mob. He also asserted that other mobs had been permitted to graze on areas where the Yammatree mob had been denied access, for example Bruce Smith's mob,
Ultimately, the mob was taken to Moree and it was trucked out from there.
[7]
Mr Burns' evidence
Mr Burns provided a written statement in which he set out his background and experience. He has been a self-employed droving contractor for more than a decade. He stated that his most important responsibility as a drover is the welfare of the cattle. He will often travel ahead of the mob to ascertain the level of feed ahead and to negotiate the exact route to be taken to ensure that there is sufficient feed and water for them.
He stated that the mob crossed into New South Wales at Boggabilla on 14 February 2014 heading to Blue Nobby Hill. By the time they reached North Star he was very worried about the welfare of the cattle as the feed bank at Blue Nobby Hill had gone, due to other mobs of cattle getting there before them. On about 21 February 2014 he phoned Mr O'Connor and left a message that the feed between North Star and Blue Nobby Hill had run out and that he intended to go to Blue Nobby through Croppa Creek and Yallaroi because there was better feed and water that way.
He met with Mr O'Connor at North Star on 24 February 2014 and Mr O'Connor told him that if he went through Croppa Creek he would be in breach of the permit. In the days after that conversation he attempted to negotiate with Mr O'Connor for permission to go through Croppa Creek but was unsuccessful. Mr O'Connor insisted that they couldn't change their destination. Nevertheless, on instructions from Yammatree, he started walking the cattle south towards Croppa Creek.
Under cross-examination Mr Burns gave evidence that he spoke with Mr O'Connor on about 25 February 2014 and told him that he wanted to take the cattle back to Croppa Creek as the feed was not good in the NTLLS. Shortly before that conversation Mr Burns had observed the feed situation when he had travelled to Graman to get a further 20 head of cattle that were added to the mob.
He agreed that Mr O'Connor told him that the permit did not authorise him to take the cattle back to Croppa Creek; that to do so would be in breach of the conditions of the permit; and that an infringement would be issued. He also agreed that Mr O'Connor disputed his claim that there was insufficient feed to allow the mob to continue into the NTLLS.
He again met with Mr O'Connor at Croppa Creek on 27 February 2014. He observed a conversation between Mr O'Connor and Mr Henwood in which Mr Henwood again requested permission to change their destination to go south for the welfare of the stock. Mr O'Connor again declined and informed them that there was not sufficient feed and that they would need to come up with another option.
[8]
Yammatree's submissions
Mr O'Neill submitted that the Refusal and the Cancellation were invalid on the basis that they lacked any evident and intelligent justification. He further submitted that as a consequence of the Refusal and the Cancellation, Yammatree was directed by NWLLS to walk its cattle to Moree sale yards, where they were subsequently trucked out of the LLS region.
Mr O'Neill submitted that the Tribunal should revoke both decisions and compensate Yammatree.
He points to Yammatree's evidence that by the time the mob arrived at North Star on its way to Blue Nobby, there were already two other mobs of cattle on the TSR that had eaten out the feed base between North Star and the Blue Nobby NWLLS Boundary and one of those two mobs was seeking to head back west along the NWLLS TSRs.
Mr Henwood investigated the situation and determined that the mob was at risk from a lack of feed if they continued to travel towards the Blue Nobby NWLLS Boundary. Yammatree assessed its options and decided that it wished to walk the mob to Bethungra or at least as far as the feed would allow. It sought a permit to allow it to do so and repeated its request through to 28 February 2014. Mr O'Connor refused to issue a permit. Ms Gray ultimately issued Permit 6193, backdated to cover a period commencing 1 March 2014, but Permit 6193 was subsequently cancelled.
[9]
Submissions with respect to the Refusal
Mr O'Neill submitted that the Act does not provide specific criteria in relation to what is to be considered by an LLS officer when issuing a permit. However, such a decision would need to accord with the objects of the Act and the practices and procedures of the LLS.
Both Mr O'Connor and Ms Gray acknowledged that their principal concerns were the sustainability of the TSRs (in respect of both bio-mass and water) and the welfare of animals utilising the TSRs.
As noted above, the Respondent imposed a condition, effective from 14 November 2013, which required that all walking stock on its TSRs have a nominated destination. Mr O'Neill submitted that the condition made no distinction in relation to the size of the mobs of stock to which it applied or whether destinations could be varied. Nor did it make mention of what would happen if a permit holder applied to change its destination.
Mr O'Neill submitted that the condition ought to have been irrelevant to any consideration that Mr O'Connor was required to give to Yammatree's request to change destination. His principal concerns should only have been the welfare of the animals and the sustainability of the TSRs.
Mr O'Neill further submitted that the irrationality of Mr O'Connor's decision is highlighted by three critical pieces of evidence:
a. Ms Gray conceded in cross-examination that neither the condition of the TSR nor the welfare of the animals, as they existed at that time, prevented her from issuing a permit ;
b. Permit 6193 was actually issued by an officer who was best placed to know the condition of both the TSR and the mob when it was issued having consideration of all relevant factors (including the best management policy of the TSR); and
c. other mobs were permitted to walk around the NWLLS despite the condition.
In relation to Mr O'Connor's claims that one of his concerns in relation to the change of route was stock water, Mr O'Neill referred to Ms Gray's evidence that the water that was available south of Moree was "cap and pipe" and was in little danger of running out. The only concern that Ms Gray cited was "increased foot traffic". He submitted that Mr O'Connor's evidence should be rejected. He further submitted that there was no logical reason for the refusal and that it left Yammatree with little option but to allow the mob to be impounded or to return to where there was no feed. By forcing the mob to travel to Moree, he imposed on Yammatree the need to feed and water the mob while it arranged for it to be trucked.
Further, he contends that the inconsistent application of the condition allowed some mobs to remain on the TSRs after the refusal. Mr O'Connor's reasons for why some mobs were permitted to stay, including ill health or the size of the mob, were addressed by the condition. Mr O'Neill submitted that none of them is rational in the face of the evidence of Mr Burns and Ms Gray which suggests that the mob was healthy enough to travel to their new destination.
Mr O'Neill contends that Mr O'Connor did not properly consider the request for a change of destination, despite the fact that nothing in the condition prevented it. He further contends that nothing in the Act or the Respondent's policy and/or practice reasonably permits an officer to act irrationally and without a valid reason.
Yammatree contends that the refusal should be revoked. The consequence of that revocation is that Yammatree would have been granted a permit to travel to Bellata.
[10]
Yammatree's Submissions with respect to the Cancellation
Yammatree contends that the cancellation decision should be revoked. In response to the Respondent's argument that Ms Gray was not properly authorised to grant Permit 6193 and therefore the grant was a legal nullity, such that the cancellation is a legal nullity, Yammatree submits that the Cancellation decision was not made in a vacuum. It was made by Mr O'Connor in the exercise of his purported powers under the Act.
Further, the decision had a real and tangible effect in that it prevented the mob from travelling at least as far as Millie.
The reasons provided for the cancellation are set out above at paragraph [47]. Mr O'Neill made submissions in relation to each of those reasons. He submitted:
a. a permit had not been previously refused at Croppa Creek due to contraventions of the previous permit. Rather, he submitted, the refusal had been for no logical reason;
b. no person had walked stock in contravention of a previous permit. Rather, the permit had expired;
c. no person had walked stock without a permit. Ms Gray had backdated Permit 6193;
d. whether or not the person issuing the permit had been aware of the facts above was irrelevant because those facts had no relevant impact on the decision;
e. There was no disregard for the conditions that applied in the NWLLS because the condition only required a destination, which was set out in Permit 6193;
f. there was clearly sufficient feed and water to sustain the stock; and
g. the TSR was unlikely to be adversely impacted other than as to foot traffic.
Mr O'Neill submitted that the cancellation was an attempt to cover the fact that Mr O'Connor was irrational in the exercise of his power.
Ms Gray's evidence was that she had considered both the health of the stock and the protection of the TSR before granting Permit 6193. She conceded that nothing had changed in respect of either between the date Permit 6193 was issued and the cancellation. The only matter about which she had been informed in that intervening period was the refusal to allow the mob to change direction and travel to Bethungra. She conceded that by issuing Permit 6193 she had effectively overruled Mr O'Connor, who was her boss.
Mr O'Neill submitted that this was the true reason for the cancellation. It had to do with Mr O'Connor feeling that he had been overruled by his subordinate in her area of operation. He further submitted that Mr O'Connor's reasons are unintelligible and irrational and therefore the cancellation should be revoked.
[11]
The compensation that Yammatree is seeking
Mr O'Neill submitted that Yammatree is entitled, under section 87 of the Act, to compensation of the following amounts:
(a) $467.50 paid to the Moree Livestock Selling Agents Association Pty Ltd to use the Moree Saleyards to truck out the mob;
(b) $54,371.24 paid to Bill Humphries Transport Pty Ltd to truck out the mob from the Moree Saleyards;
(c) $1,000 being the fines on all four General Penalty Notices;
(d) $16,441.07 paid to Ray White Schubert Boers for the agistment of the mob from 15 March 2014 to 15 April 2014;
(e) $14,850 00 paid to Ray White Schubert Boers for the agistment of the mob from 15 April 2014 to 12 May 2014 plus additional agistment paid since 12 May 2014;
(f) $1,320.00 claimed to be owing to NWLLS for water supplied by it to Yammatree after the Cancellation while the mob was in Moree; and
(g) The expenses paid for James, Kate and Cooper Henwood in relation to James Henwood's need to stay in Moree whilst he dealt with the Refusal and the Cancellation.
[12]
The Respondent's case
The Respondent relies on the statements of Ms Elizabeth Blair, the Manager, Land Services with the NTLLS; Mr Kenneth Flower, the General Manager of the NWLLS; Mr O'Connor and Ms Gray. Mr O'Connor and Ms Gray also appeared at the hearing, gave evidence and were cross-examined.
In her statement Ms Blair confirmed discussions with Peter Petrie, Senior Biosecurity Officer with the NTLLS, who advised her that he had agreed to issue a permit to accept the mob into the NTLLS. Arrangements were in place to issue the permit once the mob arrived. She further stated that at no time was that offer withdrawn and nor were the cattle turned around. She understood that a destination was available for the cattle should the mob enter the NTLLS region. However, no permit was issued for the mob.
Mr Flower recalled a telephone conversation with Mr Henwood on 25 February 2014 in which Mr Henwood expressed concerns about Mr O'Connor's refusal to issue a permit to walk the mob south from North Star.
Mr Flower stated that he heard Mr Henwood's version of the story and that he then spoke with Mr O'Connor to obtain his explanation. He ultimately accepted what Mr O'Connor had told him and advised Mr Henwood that another permit could not be issued because of the restrictions in place in the NWLLS region. He also advised Mr Henwood that his only options were to head back to Blue Nobby or to truck the cattle out of the NWLLS region.
[13]
Mr O'Connor's evidence
Mr O'Connor is a Team Manager of Travelling Stock Routes with the Respondent. He is authorised to issue stock permits under the Act. He has worked as a Ranger in the area controlled by the NWLLS for over 26 years.
During 2013 he was responsible for producing a report with respect to feed conditions throughout the NWLLS region. The information in the Report was incorporated into a Department of Primary Industries state wide report on seasonal conditions and provided Rangers and stock owners with information to allow them to ascertain the grazing conditions along the stock routes within the NWLLS region.
Mr O'Connor's evidence was that typically TSRs are used by two distinct groups of stock owners:
(a) those owners whose farms are adjacent or adjoining the TSRs; and
(b) those stock owners who do not own land adjacent or adjoining the TSR.
The local land owners typically use TSRs as emergency feed when their own grass pastures are diminished, and the non-resident group use the TSRs as a more permanent grazing arrangement. Some stock owners have their mobs of cattle permanently grazing on TSRs and simply travel from one to another within the same LLS region, or through various LLS regions.
Mr O'Connor's evidence was that the NWLLS 'best practice' for TSR management was to maintain not less than 70-75% of the vegetation cover - that is, to allow only approximately 30% of the grass cover to be eaten off by grazing stock. This policy is based on recommendations made in a report by James Austen ("the Austen report"). The practice is intended to ensure that the TSRs are not denuded of their grass cover, if the grass cover is eaten off it exposes the TSR to infestation by weeds and erosion. He said that the management of the TSRs becomes more difficult in drought conditions and that is the time when demand for TSR stock permits is highest.
He provided evidence in relation to the decision that was taken in October 2013 to require travelling stock to nominate a destination and that they would be required to walk a minimum of 10 kilometres per day. This was based on the view that the North West TSRs could no longer support large mobs of cattle. The decision was taken that grazing would be restricted to destination only travelling stock and to all but local land owners. This strategy allowed permits to be restricted to stock owners who could graze smaller areas of TSR and then return the stock to their adjacent property. A media release was issued to bring the decision to the attention of the public. All drovers and/or owners of large travelling mobs on TSRs within the NWLLS region were contacted directly to notify them of these restrictions. Mr O'Connor understood that Ms Gray had advised Mr Henwood of the restrictions.
He said that the intention was to reduce the number of large walking mobs on the TSR and to have the effect of destocking the TSR. This would require owners to make decisions in the interests of maintaining their stock in times of stress. He considered that it was critical that large mobs of cattle not be left in a situation where they ran out of grass feed; ran out of stock water; or grazed the grass to below 70% cover.
Mr O'Connor agreed that the media release made no mention of a different application of the policy insofar as its application to large or small mobs. He said that the purpose of the release was to advise of the need to nominate a destination.
Mr O'Connor gave evidence in regard to the permits issued to Yammatree. The sequence of events is not in dispute. It is common ground that he issued a permit to allow the mob to walk across the top of the NWLLS region from Boggabilla to Blue Nobby and to cross into the NTLLS. He said that he confirmed with Mr Petrie that Mr Petrie had agreed to issue a permit to accept the mob into the NTLLS. Permit 7059 allowed for travel through North Star and Yallaroi to Blue Nobby, but that was not the most direct route to the NTLLS region. Mr O'Connor's evidence was that he did not require that the mob travel by the most direct route because Mr Burns had expressed concerns regarding thick mimosa on that route.
Mr O'Connor gave evidence of a meeting with Mr Burns near North Star on 24 February 2014. Mr Burns told him that he had added some of his own cattle to the mob, and that he needed a permit for them. Mr O'Connor agreed to issue that permit and subsequently did so. He said that on the following day Mr Burns rang him and said that he was no longer going to walk the mob into Northern Tablelands as arranged, but wanted to change direction and head south to Croppa Creek. His reason for the proposed change of course was that the feed was no good in the Northern Tablelands. Mr O'Connor's evidence was that he cautioned Mr Burns against any change in direction.
He said that he travelled to North Star and then to Croppa Creek on 27 February 2014, to ascertain the whereabouts of the mob. He located them at Croppa Creek, 26 kilometres off course from the route provided for in Permit 7059. Mr Burns and Mr Henwood were present. He discussed the issue of the authorised destination and the conditions further south and he advised them that their best option was to travel to the original agreed destination at Blue Nobby and then onto Delungra in the NTLLS region. He advised that there was sufficient feed and water on the way, but they would need to supplement the water supply once they reached Delungra.
Mr O'Connor said that Mr Henwood insisted that he was going towards Moree. His evidence was that he declined to issue a permit to allow the mob to vary its course. He said that he would have allowed more time to complete the journey if Mr Henwood had adhered to the permitted destination of Blue Nobby.
Mr O'Connor's evidence was that when he became aware that Ms Gray had issued Permit 6193 to allow the mob to walk south he was surprised that Mr Henwood had instructed Mr Burns to walk the mob towards Moree. He said that Ms Gray had told him that Mr Henwood had not mentioned the discussions between himself and Mr O'Connor or that Mr O'Connor had refused to issue the permit. She had issued the permit on the understanding that he had issued a permit for the mob to walk south from Croppa Creek.
He conceded that the legislation does not prevent a person who has been refused a permit from asking for another one.
Mr O'Connor did not agree that Ms Gray must have thought that the mob would make it to Bellata. He said that she had indicated that the stock would have made it to Milli but that there were problems south of Milli. In any event, Milli was not an appropriate nominated destination for the purposes of issuing a permit. He accepted that Mr Henwood had asserted that he had arranged to use yards at Ian MacCue's property "Wilga" Bellata. However, he said that Mr MacCue had been unable to confirm that this was correct. Accordingly, the permit to walk the mob to Bellata would not be issued as there was no confirmed destination. He said that he did not think that the mob would make it to Bellata but he would have considered a request for a permit if the destination had been confirmed.
He said that when Ms Gray advised him that she had issued the permit, he drafted a letter of revocation and sent it to Ms Gray to hand deliver to Mr Henwood. The letter was incorrectly dated. A correctly dated letter was issued the following day. He said that in addition to the notice of revocation he also rang Mr Henwood to advise him of the revocation.
He subsequently called Mr Henwood and advised that he intended to issue him and Mr Burns with infringement notices for having stock on a TSR without a permit, and for contravening a condition of the previous permit by not adhering to the designated route.
He subsequently agreed to issue a permit to Mr Henwood to get the mob to the Moree saleyards so that they could be trucked out from there. He also advised Mr Henwood that he would not be issuing any further infringement notices as he had accepted the option of obtaining a permit to the Moree saleyards. The cattle were subsequently trucked out of the Moree Saleyards on or about 14 and 15 March 2014.
Mr O'Connor said that en route to the Moree saleyards the mob encountered TSR watering points which were either dry or which the mob drank dry. At Yammatree's request, the NWLLS arranged to truck drinking water to the cattle to ensure they did not perish from thirst. The cost of trucking water to the cattle was $1,320.
In response to questions put to him by Mr O'Neil, Mr O'Connor accepted that permits had been issued for small mobs of cattle to allow them to graze on small portions of feed e.g. at Milo Bore, and that the requirement for a nominated destination was not enforced. He also accepted that the restrictions had not been consistently applied and, as an example, that a permit was issued for a small mob in poor condition where travelling was regarded as high risk. He agreed that the media release did not make any mention of these exceptions. He explained that he used his discretion to try to help.
[14]
Ms Gray's evidence
Ms Gray stated that she has known Mr Henwood for approximately 15 months. She said that the mob had travelled throughout the NWLLS region from May 2013. She was aware that Mr Burns took over the droving of the mob in November 2013. She referred to various permits which indicated the movement of the mob prior to the issues that are the subject of this matter.
She noted that the Moree area did not receive significant rainfall for the second half of 2013, or the start of 2014, and so the condition of the TSRs deteriorated substantially. Some isolated areas did receive storm rain, such as the area around Waterloo and Glenroy Bore, but this rain was not widespread, The TSRs only received good widespread rainfall in late March 2014.
In this context the determination was made that monthly grazing permits would only be granted subject to groundcover limitations and a restriction would be imposed on new mobs of travelling stock. This would require a nominated destination where the stock would remain for a period of at least two months, or a destination to an adjoining LLS region, and that all new walking stock were required to walk 10 kilometres per day. Existing walking stock were able to maintain the rate stated on their permit. Officers had discretion to grant additional slow travel days where it was assessed as warranted in the circumstances. This determination was subsequently varied to apply to all walking stock.
Ms Gray's evidence is that she phoned Mr Henwood and informed him of the determination and requested that he nominate a destination on or before 14 November 2013. On 14 November 2013 she informed Mr Burns of the restrictions. Mr Burns nominated Longreach in Queensland as the mob's destination, and he was given a permit to travel to the Queensland border.
Ms Gray disagreed with Mr Henwood's evidence that there was good feed for most of the way down to Narrabri. She said that in February 2014 she had observed that there was only an isolated area of feed near the Waterloo & Glenroy water points. There was no feed on the TSR to the north or south of that area. She also disagreed with Mr Henwood's evidence that on 26 February 2014 there was a good feed bank and stock were grazing within temporary fenced areas on the TSR along the Inverell Road some 10kms east of Moree. She did not agree that there was sufficient feed and water to sustain the mob on its proposed journey.
She stated that she was not aware of any walking or grazing permits issued within 10 kilometres on the Gwydir Highway east of Moree. However she was aware of some temporary fencing in this area that related to stock owners with Annual Grazing Permits. She said that the holders of Annual Grazing Permits are at liberty to erect and remove temporary fences in accordance with their existing Permit. The restrictions in place at the time did not prohibit them doing so.
Ms Gray's evidence is that by February 2014 she had observed the condition of the TSR's to be consistent across the Narrabri and Walgett board areas. They contained little or no grass. She said that in the Moree area, just about all water points had very little available grass feed around them, and there was very little to no water in the natural water points. The majority of Moree district water points are cap and pipe bore schemes, and so are fairly reliable as to water but there was little to no feed. Cap and pipe water bores are water bores that were once free flowing bores fed by the underground water held in the Great Artesian Basin. They have since been capped and piped to reduce waste and water loss. The majority tend not to dry up and are therefore reliable stock water points.
Ms Gray's evidence in regard to the meeting with Mr Henwood on 3 March 2014 when she issued Permit 6193 is that she was at a location known as 15 Mile Reserve when she saw both Mr Burns and Mr Henwood with the mob. She was speaking to another drover when Mr Henwood approached her and said that he needed a permit to travel south. He nominated Bethungra as their destination. Ms Gray stated that she told Mr Henwood that she could only give a permit to Waterloo and that there wasn't much feed ahead of him. He responded that he would truck the cattle out when the feed got too bad.
She recounted the conversation that took place between them prior to her issuing Permit 6193. She denied that Mr Henwood ever told her that Mr O'Connor had denied or refused to issue him a permit. She also denied that she had any knowledge of a letter from Yammatree's solicitor. She said that she had assumed that Mr Henwood had a permit and that it had expired. She said that she learned of the true situation after she told Mr O'Connor that she had issued Permit 6193. At that stage Mr O'Connor told her that the permit that Mr Henwood had been given was to travel the mob from Boggabilla to Blue Nobby and that the mob shouldn't have been at the 15 Mile Reserve.
She considered that she had issued Permit 6193 in error.
In relation to Mr Henwood's contention that the NWLLS was not giving the mob similar treatment to other mobs, for example Bruce Smith's mob, Ms Gray's evidence was that the Smith mob was only about 200 head of cattle and they were in poor condition. They had a Grazing Permit to use up the last pockets of feed. That permit expired on 31 March 2014 and the stock were to be trucked out by the end of March 2014. In her opinion the small amount of feed relied upon by the Smith mob would never have sustained the Yammatree mob. She also stated that the Yammatree mob was required to walk as a condition of their permit, not graze.
Ms Gray stated that on 4 March 2014 she delivered a cancellation notice for Permit 6193 to Mr Henwood and Mr Burns at a location known as Milo Bore. It was dated 11 February 2014. She advised them that the permit had been cancelled but denied Mr Henwood's assertion that that she told them that the cancellation was because they had changed the destination and that it was out of her hands. On 5 March 2014 she delivered a further permit cancellation notice, dated 5 March 2014, to Mr Henwood and Mr Burns at a location known as Newell Highway.
Ms Gray stated that on 6 March 2014 Mr O'Connor told her that Mr Henwood had advised that he had arranged to use yards at Ian MacCue's property at Bellata. She phoned Mr MacCue who advised her that he was travelling and that he had not spoken to Mr Henwood. He suggested that Mr Henwood may have spoken with his son. He also indicated that if they had rain he did not want cattle or trucks damaging his yards and roads in the wet.
Ms Gray also contradicted Mr Henwood's evidence that there was an excellent feed bank on the Mehi River at Sollings Lane. She said that while she saw some green feed concentrated along the river, it was only a very small area of feed and the other end of Sollings Lane did not look the same. She said that the majority of the mob looked to be in fair condition; however the tail of the mob were struggling.
Ms Gray stated that on 7 March 2014 Mr O'Connor told her that Mr Henwood had agreed to walk the cattle to the Moree saleyards and truck them out from there. At Mr O'Connor's request she issued a permit to allow the mob to walk to Moree saleyards with sufficient slow travel to allow for trucking to be organised. Mr Henwood told her that trucks had been organized to truck the cattle from Moree saleyards on 13 and 14 March 2014. When she last saw the mob their condition had not improved.
Ms Gray stated that on 14 March 2014 there were three Grazing Permits issued for stock owners to graze the sections of feed located near Waterloo, Glenroy and Little Bumble water points. She also said that she was aware that those stock owners had commenced erecting temporary fencing at those locations prior to 14 March 2014. The first mob of local cattle went into the area on 10 March 2014; the second on 21 March 2014; and the third on 25 March 2014. Those permits were issued on the condition that there was a 100 head limit in each area. She said that in her opinion the small pockets of feed would not have sustained a mob of 800 head of cattle. She also noted that on a Walking Permit the mob would have been required to walk 10 kilometres per day and she did not observe there to be any feed north or south of this area. She said that while walking stock have right of way to walk through grazing sections, she disagreed with Mr Henwood's evidence that they have priority.
Further, she disagreed with Mr Henwood's evidence that there was a good feed bank along the TSR. She said there was an isolated area of feed in the Waterloo and Glenroy area as that area had received some storm rain in the weeks prior. However, in her opinion the condition of the TSR, and the condition of the cattle, would have deteriorated very quickly and they had nowhere to go from that point. She also noted that the mob was not transported to the destination that Mr Henwood had described to her when she issued him Permit 6193.
Under cross-examination Ms Gray agreed that at the time she issued Permit 6193 she had considered both the health of the stock and the protection of the TSR. While there wasn't much feed ahead of them, she believed that the mob would make the journey to Waterloo - the boundary of her area of responsibility. She said that she would not have walked the mob there because the TSR would have been degraded.
In relation to the decision to revoke Permit 6193 Ms Gray agreed that between the time she issued the permit and the revocation there had been no change in the available feed, water or destination. She also accepted that the only change was that Mr O'Connor had told her that he had refused to issue Mr Henwood with a permit to vary the mob's journey.
She said that she had not seen the permit that Mr O'Connor had given that allowed the mob to travel from Boggabilla to Blue Nobby. She said that Mr Henwood had told her that he needed a permit and she assumed that he had a permit that allowed the mob to enter her area and that it had expired. She said that he had misled her by not telling her the truth. She said that there was a whole backstory that she didn't know about, because Mr Henwood had not told her and that effectively she was issuing a permit that was overriding her boss. She conceded that she did not ask Mr Henwood about the permit to travel from Boggabilla to Blue Nobby.
Ms Gray accepted that Permit 6193 had been issued in contravention of the restrictions on the TSRs. She agreed that she had backdated Permit 6193 but did not know why she had done so. It was possibly because the mob was in her area from the start of the month. She said that she was not in the habit of backdating permits and that Permit 6193 was the only one she had backdated.
[15]
The Respondent's submissions
Mr Russell provided submissions on behalf of the Respondent. He submitted that the Tribunal should confirm the Respondent's decision to refuse to grant Yammatree's request to change the destination on Permit 7059 or for the issue of a new permit for travel to Bethungra, and its decision to cancel Permit 6193.
Mr Russell submitted that the evidence shows that on 27 February 2014, Mr Henwood made it clear to Mr O'Connor that he was taking the mob south of Moree, a destination or route not permitted by any permit. Yammatree's solicitor subsequently requested a change of destination on Permit 7059 and Mr O'Connor refused that request. Mr Russell noted that Yammatree sought a permit to travel to Bethungra and not Bellata or anywhere else. Permit 7059 expired at midnight on 28 February 2014, and the mob was on the TSRs without lawful authority. Permit 6193, if valid, would have retrospectively authorised the travel; but the Respondent contends that it did not do so as it was a nullity.
When Ms Gray issued Permit 6193 on 3 March 2014, the mob was off course from the route to Blue Nobby. There is much dispute as to the circumstances in which this permit was issued. However, since that time Ms Gray and the Respondent have discovered that she was not an authorised officer of the Respondent for the purposes of section 78 of the Act or for the purposes of Part 8 of the former Rural Lands Protection Act 1998. Mr Russell submitted that accordingly, Permit 6193 was a nullity and otherwise of no force and effect.
Mr Russell submitted that the starting point for the consideration of the merits of the Refusal is the fact that it is an offence for any person to enter or remain on or occupy or make use of a TSR without lawful authority. Lawful authority is obtained by means of a permit issued by the Respondent.
The Respondent is statutorily charged with the care, control and management of TSRs and the administration, delivery and funding of local land services. Further, permits only permit persons to do or not do something on TSRs in accordance with their terms and conditions for such period as they are in force and not otherwise, until they are cancelled, suspended or varied.
The Act does not specify any criteria to which the Respondent or its authorised officer must have regard in exercising their discretion to issue a permit. However, Mr Russell submitted that on a proper construction of the Act, any discretion ought to be exercised in accordance with the objects of the Act and the practices, policies and procedures adopted or implemented by the Respondent from time to time for the care, control or management of TSRs under the Act. Mr Russell further submitted that Yammatree did not identify, let alone prove, any legal, factual or discretionary error in the Refusal and does not establish any proper basis for the Tribunal to revoke the Refusal.
The evidence shows that in late October 2013 the LHPA determined that all large travelling mobs of stock needed to be restricted from and got off all TSRs in the North West region. Owners and drovers of the large mobs were required to nominate a destination by 14 November 2013. Yammatree's mob was such a large mob. Mr Russell submitted that that decision was informed by the 'best practice' management policy of TSRs to maintain at not less than 70-75% of vegetation groundcover to prevent soil erosion; prevent infestation of weeds; and prevent diminution in water quality.
Ms Gray informed Mr Henwood and Mr Burns of the requirement and Yammatree nominated Goondiwindi as the mob's destination. On 29 December 2013 walked the mob off the NWLLS region and into Queensland.
The Respondent's evidence shows that the conditions worsened over the period from November 2013 to February 2014. Knowing those conditions, Yammatree applied for and was granted Permit 7059 to enable the mob to walk from East Goondiwindi to Blue Nobby via Yalleroi so as to allow them to enter the Northern Tablelands region where there was sufficient feed and a permit would be issued. Despite the suggestions of Yammatree, the Northern Tablelands region had sufficient feed for the mob and the NTLLS were prepared at all times to issue an appropriate permit.
Despite the warning from Mr O'Connor that it would be in breach of Permit 7059, Yammatree changed direction, left the route to Blue Nobby and headed south and made it to Croppa Creek. There was insufficient feed and water to sustain the mob on the journey south that Yammatree had proposed. As soon as the mob left North Star and headed to Croppa Creek, they had left the route provided for in Permit 7059.
The Respondent contends that Yammatree was aware of the restrictions on the TSRs and that it had to have a destination by which the mob got off the TSRs; Yammatree was only allowed to bring the mob back on the TSRs for one short journey to Blue Nobby. It was clearly disregarding those restrictions when it changed course and headed off in a different direction in breach of Permit 7059.
Mr Russell further submitted that the fact that under the legislation there may have been other means or methods by which the Respondent may have implemented its policy decision to restrict large travelling mobs of stock does not mean that the Refusal was infected with any legal, factual or discretionary error. He contends that the refusal was consistent with the Respondent's responsibility for the management of TSRs and the policy decision to keep such large mobs of stock off the TSRs. Accordingly, the Tribunal ought to confirm the Refusal.
Mr Russell submitted that Permit 6193 was a nullity and otherwise of no force and effect. Accordingly, there really was no need for the Respondent to cancel that permit. However, the Tribunal ought to confirm the cancellation on that ground alone. He further submitted that if the Tribunal does not find that the permit was a nullity or otherwise of no force and effect, then the Tribunal should confirm the cancellation in any event.
He argues that the Tribunal should reject Mr Henwood's evidence that he told Ms Gray that he had been refused a permit. He says that Ms Gray ought to be believed and that it is absurd to suggest that Ms Gray would write a permit in knowledge that one had been refused by her boss, Mr O'Connor. He further says that in any event, there is no suggestion that Ms Gray was told the full background of the matters.
Further, Mr Russell contends that Yammatree did not identify, let alone prove, any legal, factual or discretionary error in the cancellation and did not establish any proper basis for the Tribunal to revoke the cancellation. He submits that the cancellation accords and is consistent with the refusal and the Respondent's policy decision to get all large travelling mobs of stock off the TSRs.
With respect to Yammatree's claim for compensation, the Respondent's position is that there is no proper basis for the Tribunal to award any compensation. It contends that the Act does not provide or allow for compensation in relation to any refusal by the Respondent to issue a permit. It further contends that all times since 28 February 2014, Yammatree had no valid permit. This was so because Permit 6193 was a nullity or otherwise of no force and effect. Accordingly, cancellation could not have caused or given rise to any loss to Yammatree.
The Respondent further contends that none of the losses claimed by Yammatree could be said to have arisen from the cancellation in circumstances where:
Yammatree changed course and left the route to Blue Nobby provided for under Permit 7059;
Yammatree unilaterally decided to head south, without lawful authority and in full knowledge of the Respondent's Refusal;
to the extent that Permit 6193 had any force or effect, it was issued in error by Ms Gray and without her being fully aware of the circumstances of the dealings between Yammatree and the Respondent. In light of the history of those dealings Yammatree could not have had any confidence that Permit 6193 would be allowed to stand once Mr O'Connor became aware of its existence;
Permit 6193 remained on foot for about 1 day only before it was cancelled and it is difficult to understand how Yammatrees' claimed losses could have arisen from a cancellation that was given so quickly;
the evidence suggests that there was insufficient feed and water on the proposed southern journey to sustain the mob. With the exception of isolated areas around the Waterloo and Glenroy area, Ms Gray had concerns for most of her area. Mr O'Connor's evidence was that there was insufficient feed and water south of Millie on the proposed route to Bethungra. Accordingly the mob would have had to have been trucked out in any event. Yammatree had no permit for the mob beyond Millie, the destination on Permit 6193, so at the latest it would have had to use yards and trucks at that point in time; and
Yammatree did not truck the mob to its stated desired destination but instead took them in the opposite direction.
The Respondent submits that many of Yammatree's claimed items of expenditure appear to be items that would normally be incurred in the conduct of its business. In the absence of evidence of what items of expenditure it did or would otherwise have incurred (in the event that the cancellation had not occurred), Yammatree's claimed items of expenditure cannot be described or identified as 'loss arising out of the cancellation of the permit', in respect of which compensation the Tribunal may order compensation.
For example, the Respondent contends that the fines that Yammatree paid related to proven offences and were not the result of any Cancellation; the agistment fees for the mob after the expiry of Permit 6193 bear no relationship whatsoever to the Cancellation; the claim in relation to water supplied by NWLLS while the mob was in Moree is an item of usual expenditure of Yammatree in running its mobs of cattle and has no relationship to the Cancellation; and the expenses incurred by Mr Henwood and his family for staying in Moree are in the nature of a usual item of expenditure of Yammatree in conducting its agricultural business.
In relation to the restrictions on the use of TSRs imposed in October 2013, which required that all large walking mobs of stock had to nominate a destination, Mr Russell noted that Mr O'Connor had conceded in cross-examination that the press release that he had issued did not state that the restrictions applied to large travelling mobs and not all travelling stock. However, he submitted that Mr O'Connor also explained that the purpose of the press release inter alia was to inform the broader community. Stock owners and drovers were contacted individually and given the message.
Mr Russell submitted that even if the restrictions applied to all walking stock, it would not assist Yammatree because the mob was 'walking stock'. Further, there is no evidence or suggestion that there were other walking mobs of stock (of the size of Yammatree's mob or otherwise) which had been allowed to remain on the TSRs.
Mr Russell submitted that apart from the press release, there is nothing to suggest that Mr O'Connor's evidence as to the extent and application of the restrictions is wrong or that he should be disbelieved. He also noted that Mr O'Connor had made clear in his cross-examination that the purpose of the restrictions was to destock the TSRs because they were no longer able to cope with large walking mobs and to protect the TSRs. He rejected the suggestion that the purpose was primarily aimed to keep mobs moving, to stop looping and/or to protect local stock owners.
Mr Russell submitted that there is no evidence of any inconsistent application of the restrictions which allowed some mobs to walk around and remain on the TSRs despite the restrictions and/or after the Refusal. He referred to Ms Gray's unchallenged evidence in relation to Bruce Smith's mob. Her evidence was that the Smith's mobs were on grazing permits. Mr Russell submitted that while the permits were 'ticked' to indicate that they were walking permits, they were clearly grazing permits as they do not contain any destination, they were for a grazing location and the period on each of them if for the calendar month of March, which is how grazing permits are written.
[16]
Discussion
Most of the facts and circumstances of this matter are not in dispute. The Respondent has provided a summary of the evidence with which I agree substantially. I adopt the following as findings of fact:
the Respondent is statutorily charged with the care, control and management of TSRs;
TSR best practice management adopted by the Respondent was to ensure groundcover/vegetation cover levels did not fall below 70 to 75% and biomass to be maintained above 1200 kg per hectare. This practice was based on recommendations made in the Austen Report;
a person must not enter or remain on or occupy or make use of any TSR for any purpose without lawful authority;
lawful authority is obtained from the Respondent when one of its authorised officers issues a stock permit. Only an "authorised officer" may issue a stock permit;
at all relevant times Mr O'Connor was an authorised officer able to issue permits. Ms Gray was not an authorised officer;
as part of its care, control and management of TSRs, the Respondent is entitled to place restrictions on their use;
restrictions on the use of TSRs may be imposed or enforced by the issue or refusal to issue stock permits or by the imposition of conditions on permits;
in October 2013, the LHPA, the body which had previously had responsibility for the NWLLS' region, decided to impose restrictions on the use of TSRs in order to address exceptional circumstances brought about by the prevailing drought conditions. Those restrictions, inter alia, required Yammatree to nominate a destination to walk the mob off the TSRs;
Yammatree was informed of the restrictions and the need to nominate a destination;
Yammatree nominated Goondiwindi as the point at which the mob would leave the NWLLS region and a permit was issued to allow it to walk the mob off the NWLLS region at Goondiwindi;
on 5 December 2013, the Respondent issued a press release concerning the restrictions placed on the TSRs. The purpose of the press release was to inform the wider public of the restrictions. Owners and drovers of mobs on the TSRs were individually notified of the restrictions. There is no evidence that Mr Henwood or Mr Burns relied on the press release in any way;
Yammatree walked the mob out of the NWLLS region and crossed into Queensland on 29 December 2014;
drought conditions worsened in the NWLLS region in the period from November 2013 to February 2014;
the conditions in Queensland were even worse and the mob ran out of feed and water and were turned around;
the restrictions on the TSRs in the NWLLS region were lifted on 1 May 2014. There is no evidence to suggest that the conditions of the TSRs were such that the restrictions that were introduced in October 2013 were not required or that the conditions of the TSRs had improved at any time to the extent that the restrictions could or ought to have been lifted before 1 May 2014.
after Yammatree had secured the agreement from Officers of the NTLLS region that they would accept the mob, Mr O'Connor agreed to issue Permit 7059 to enable the mob to be walked across the top of the NWLLS region from East Goondiwindi to Blue Nobby on an agreed route via North Star and Yalleroi, a distance of 106 km;
Mr O'Connor issued Permit 7059 on 14 February 2014. The permit was to expire on 28 February 2014.
Mr Henwood and Mr Burns were aware that Mr O'Connor only issued Permit 7059 to allow the mob to travel across the top of the NWLLS region so as to get into the NTLLS region. Otherwise, Mr O'Connor was not going to allow the mob to re-enter the NWLLS region;
on 24 February 2014 Mr O'Connor met Mr Burns and the mob near North Star. At Mr Burns' request, Mr O'Connor issued a permit for an additional 20 head of stock that Mr Burns had added to the mob. That permit was dated from 23 February 2014, to expire on 28 February 2014, and was to enable the stock to walk from Mobinbry to Blue Nobby via Yalleroi;
at all relevant times the NTLLS region was prepared to accept the mob
on about 25 February 2014 Mr Henwood decided that he would not take the mob to the NTLLS region but wanted to take them to Bethungra, a distance of some 1200 km;
on 25 February 2014, Mr Burns telephoned Mr O'Connor and informed him that he was not going to walk the mob into the NTLLS region because the feed there was apparently no good. He wanted to change direction and head south to Croppa Creek. Mr O'Connor informed Mr Burns that his permit did not cover that change in direction; he would be in breach of the permit and could be issued with infringement notices.
despite Mr O'Connor's refusal and warnings, Yammatree changed course at North Star on 25 February 2014 and headed to Croppa Creek;
from 25 February 2014, when the mob left the route provided for in Permit 7059, Yammatree was walking the mob in contravention of Permit 7059;
on 27 February 2014, Yammatree refused Mr O'Connor's request or suggestion that they continue to take the mob to Blue Nobby and continued heading towards Bethungra. At that time the mob was some 26 km off course. Yammatree was aware that Permit 7059 would expire the next day;
Permit 7059 expired at mid-night on 28 February 2014. Yammatree decided to drive the mob towards Moree and Mr Henwood directed Mr Burns to do so;
on 3 March 2014 the mob was at Tantaranna, north of Moree. At Mr Henwood's request Ms Gray issued Permit 6193. On its face, Permit 6193 allowed Yammatree to walk the mob from Tantaranna to Millie. The permit was backdated to cover a period commencing 1 March 2014;
Ms Gray either knew or assumed that Yammatree did not hold a valid permit for the mob. She did not sight Permit 7059 nor did she ask to do so;
Mr Henwood did not inform Ms Gray of the discussions he had had with Mr O'Connor or Mr Flower in regard to Permit 7059 or that Mr O'Connor had refused to vary the destination of the permit or to issue a new permit.
Ms Gray was not authorised to issue Permit 6193. Permit 6193 was issued in error because Ms Gray was not aware of the discussions between Mr Henwood and Mr O'Connor or Mr Henwood and Mr Flower in regard to Permit 7059 or that Yammatree's request for permission to walk the mob to Bethungra had been refused;
on 4 March 2014 Mr O'Connor determined to cancel Permit 6193. Also on 4 March 2014 Ms Gray advised Yammatree that Permit 6193 had been cancelled. She delivered a wrongly dated permit cancellation notice to Mr Henwood and Mr Burns;
on 5 March 2014 Ms Gray delivered a correctly dated permit cancellation notice to Mr Henwood and Mr Burns;
there was insufficient feed or water south of Millie for the mob to walk to Bethungra. Yammatree had no realistic plan to walk the cattle to Bethungra but merely a hope that there would be more rains by the time the mob got to Bellata;
Yammatree asserted that Mr McCue, a farmer at Bellata, had agreed to allow Yammatree to use his yards to truck out the cattle from there if necessary. Enquiries by both Ms Gray and Mr O'Connor indicated that no such arrangement was in place;
Yammatree did not have permission or agreement to go into the neighbouring Central West LLS region at any relevant time;
When the mob was trucked from Moree, Yammatree did not take them south to Bethungra (in the Riverina) but took them to a location near Hungerford (on the NSW-Qld border);
while the mob were apparently not fit to truck at Goondiwindi, they were fit and able to be trucked out from 25 February 2014. There were cattle yards from which the cattle could have been trucked at various places along the permitted route from Goondiwindi south. Alternatively, Yammatree could have made use of portable yards as it was proposing to do if the need arose.
The issues for determination are whether Mr O'Connor's decision to refuse to grant a permit that would allow Yammatree to walk the mob to Bethungra and the decision to cancel Permit 6193 should be set aside and whether Yammatree's application for compensation should be granted.
[17]
The decision to refuse to vary Permit 7059 or to grant a permit to allow Yammatree to walk the mob to Bethungra
As noted the LHPA imposed a condition which required that all walking stock on its TSRs have a nominated destination. I agree with Mr O'Neill that the condition did not address the issue of whether destinations could be varied. Nor did it make mention of what would happen if a permit holder applied to change its destination.
I am satisfied that the Respondent has authority in relation to issuing of permits and the authority to vary a permit that has been issued. I agree that any decision with respect to variation of a permit ought to be exercised in accordance with the objects of the Act and the practices, policies and procedures adopted or implemented by the Respondent from time to time for the care, control or management of TSRs under the Act. The principal concerns to be taken into account are the sustainability of the TSRs and the welfare of the animals utilising the TSRs.
I do not agree with Mr O'Neill that the conditions imposed in October 2013 were an irrelevant consideration with respect to the refusal because those conditions were framed on the understanding that the North West TSRs could no longer support large mobs of cattle. They were primarily aimed at destocking and protecting the TSRs. That in turn was consistent with the the Respondent's statutory responsibility for the care, control and management of TSRs. These are issues relevant to the exercise of the discretion of whether to issue a permit or to vary an existing permit.
I do not agree with Yammatree's contention that there was no logical reason for Mr O'Connor's refusal. The evidence clearly shows that Mr O'Connor granted Permit 7059 to allow the mob to walk to the NWLLS boundary with the NTLLS region. The evidence also shows that the NTLLS agree to allow the mob to enter its area. I am satisfied that at all relevant times there was sufficient feed and water to sustain the mob on its entry into the NTLLS.
Mr Henwood and Mr Burns both contradicted Mr O'Connor's evidence that there was sufficient feed and water to sustain the mob on the route authorised by Permit 7059 prior to its entry into the NTLLS. Despite those suggestions I am satisfied that the NTLLS region had sufficient feed for the mob and Officers of the NTLLS were prepared at all times to issue an appropriate permit.
Mr Burns is clearly an experienced drover who had the welfare of the mob as a priority. However, I note that he added 20 head of his own cattle to the mob on about 24 February 2014. Prior to doing so he had travelled to Graman and had been able to observe the feed situation going into the NTLLS. He added the extra cattle to the mob at a time when he knew that the mob was only authorised to travel to the NTLLS via Blue Nobby. At that stage he had no reason to believe that a permit would be granted to allow the mob to travel south and yet he chose to add 20 head of his own cattle to the mob. In my view, this supports Mr O'Connor's evidence that there was sufficient feed to allow the mob to continue into the NTLLS.
It is improbable that he would have chosen to add his own stock to the mob if he didn't believe that the available resources were sufficient for the journey to Blue Nobby. I accept Mr O'Connor's evidence that there was sufficient feed and water on the way, but they would need to supplement the water supply once they reached Delungra. His role in relation to production of a report with respect to feed conditions throughout the NWLLS region and his general involvement in the NWLLS region was such that he would have been far more aware of the prevailing conditions than either Mr Burns or Mr Henwood.
I am satisfied that Mr O'Connor had taken the sustainability of the TSRs and the welfare of the animals utilising the TSRs into account in agreeing to issue Permit 7059. I am also satisfied that he was entitled to take those factors into account when he had to decide whether or not to grant a permit that would allow Yammatree to walk the mob to Bethungra. The Respondent's evidence shows that the conditions worsened over the period from November 2013 to February 2014.
I do not agree with Mr O'Neill's contention that Mr O'Connor did not properly consider the request for a change of destination. I am satisfied that he considered the request and formed the view that the available resources were sufficient for the journey to Blue Nobby and that there was no valid reason why that journey should not be completed. While I agree that neither the Act nor the October 2013 condition prevented Mr O'Connor authorising a change of destination, it is my view that in the circumstances Mr O'Connor should not have approved Yammatree's request unless he was satisfied that the considerations in favour of the change of destination outweighed the considerations concerning the sustainability of the TSRs and the welfare of the stock. As the available resources were sufficient for the journey to Blue Nobby, Yammatree's request was based on a preference rather than a necessity.
I am satisfied that the available resources were not sufficient for the journey to Bethungra. Both Mr O'Connor and Ms Gray considered that there were problems south of Milli. If Yammatree had been given a permit to walk the mob to Bethungra as Yammatree had requested, the welfare of the animals would have been placed in jeopardy. The increased foot traffic would have also impacted on the sustainability of the TSRs. These are relevant consideration in regard to Yammatree's request. In the circumstances I do not agree that there was no logical reason for the refusal. I note that Mr Flower also formed the same conclusion after his discussions with Mr Henwood and Mr O'Connor. In my view, the refusal was consistent with the exercise of the Respondent's responsibility for the management of TSRs and the policy decision to keep large mobs of stock off the TSRs.
In my view, Yammatree did not prove any legal, factual or discretionary error in the Refusal and it did not establish any proper basis for the Tribunal to revoke the Refusal. It follows that Mr O'Connor made the correct decision in refusing to grant Yammatree's request.
[18]
The decision to cancel Permit 6193
It is not in dispute that Permit 7059 expired at midnight on 28 February 2014. Nor is it in dispute that Permit 6193 was not issued until 3 March 2014. Permit 6193 was backdated to 1 March 2014 but in my view this does not alter the fact that the mob had not adhered to the route designated by Permit 7059. This occurred in circumstances in which Yammatree was in no doubt that Mr O'Connor had refused to grant Yammatree's request to change the mobs course. In my view this was a deliberate decision taken by Yammatree in defiance of the notice given by both Mr Flower and Mr O'Connor. In my view this was sufficient justification for the cancellation.
At the time that Ms Gray issued Permit 6193, the mob was some 30 km off course and there was no valid permit that allowed the mob to be on the TSR. Permit 6193, if valid, would have retrospectively authorised the travel. In the circumstances, Ms Gray was not authorised to issue Permit 6193. The Respondent contends that it was therefore a nullity. I do not need to determine whether or not that is correct, as it is my view that the cancellation was justified. However, my preliminary view is that if Mr Henwood had advised Ms Gray of the full circumstances and she had then issued a permit in the knowledge of those circumstances, then Yammatree would have been entitled to rely on the purported authorisation given by the permit. Nevertheless, in the circumstances of this matter Yammatree would not be able to claim that benefit. Yammatree's failure to advise Ms Gray of the full circumstances meant that Permit 6193 was issued in error. That error was the result of Yammatree's failure to advise Ms Gray. Yammatree cannot benefit from that failure.
I am satisfied that Ms Gray was aware that Yammatree did not hold a valid permit. However, I am also satisfied that she was not aware of the discussions that had taken place between Mr Henwood and Mr O'Connor and between Mr Henwood and Mr Flower. Ms Gray issued Permit 6193 on the understanding that Mr O'Connor had issued a permit for the mob to walk south from Croppa Creek. She conceded that she did not ask Mr Henwood about the permit to travel from Boggabilla to Blue Nobby. In my view it is improbable that Ms Gray would have issued Permit 6193 if she had been aware of those discussions. In the circumstances, Permit 6193 should not have been issued. There is no evidence that Permit 6193 was cancelled because of Mr O'Connor's feeling that he had been overruled by his subordinate.
Yammatree did not prove any legal, factual or discretionary error in the cancellation and did not establish any proper basis for the Tribunal to revoke the cancellation. It follows, in my view, that the decision to cancel Permit 6193 was correct.
[19]
The compensation claim
In my view there is no proper basis for the Tribunal to award any compensation. None of the losses claimed by Yammatree could be said to have arisen from the cancellation in circumstances where Permit 6193 only remained on foot for about 1 day before it was cancelled and Yammatree could not have had any confidence that Permit 6193 would be allowed to stand once Mr O'Connor became aware of its existence.
It is not in dispute that Mr O'Connor advised Mr Henwood of the cancellation of Permit 6193 within a day of the issue of the cancellation notice. As a result of negotiations between Mr O'Connor and Mr Henwood, Mr O'Connor agreed to issue a permit to Mr Henwood to get the mob to the Moree saleyards so that they could be trucked out. The cattle were subsequently trucked out from there on or about 14 and 15 March 2014. In the circumstances, the costs incurred by Yammatree in doing so were a direct result of its decision to alter the course of travel from that approved by Permit 7059.
Yammatree had no permit for the mob beyond Millie, the destination on Permit 6193, so at the latest it would have had to use yards and trucks at that point in time. Ms Gray's evidence was that she believed that the mob would make the journey to Waterloo. There was an isolated area of feed in the Waterloo and Glenroy area as that area had received some storm rain in the weeks prior. However, there was not much feed ahead of them. In her opinion the condition of the TSR, and the condition of the cattle, would have deteriorated very quickly and the mob would have had nowhere to go from that point. I accept that evidence. I am satisfied that there was insufficient feed to allow the mob to reach Bellata. It was therefore inevitable that the mob would need to be trucked out before it could reach that point.
The evidence shows that there were several places on the route taken by the mob from which it could have been trucked. Yammatree made a deliberate decision not to take advantage of those opportunities. In my view, the costs that it incurred were a direct result of the decisions that it took.
I agree with the arguments presented on behalf of the Respondent in relation to each of the items for which Yammatree has sought compensation and summarised at paragraphs [152] and [153] above.
My view is not altered by the fact that permits were issued to other mobs on the NWLLS TSRs. I accept the evidence that permits had been issued for small mobs of cattle to allow them to graze on small portions of feed where it was available. I also accept that there was some inconsistency in the way that the restrictions had been applied. However, I am satisfied that those permits were granted subject to mob size limitations and were related to the available resources. I am satisfied that the available resources relating to those permits would not have sustained a mob of 800 head of cattle. There is no evidence or suggestion that there were other walking mobs of stock of the size of Yammatree's mob or otherwise which had been allowed to remain on the TSRs. I am satisfied that the flexibility exercised by the Respondent in issuing those permits was consistent with its obligations in relation to the management of TSRs and the welfare of the stock.
In summary, it is my view that:
1. the Respondent's decision to refuse Yammatree's request for a change of destination on Permit 7059 to 'Yammatree', Bethungra, NSW or for the Respondent to issue Yammatree with a new permit for that destination was correct.
2. the Respondent's decision to cancel Permit 6193 was correct.
It follows in my view that Yammatree's application for compensation in relation to those decisions must fail.
Accordingly, Yammatree's appeal should be dismissed.
[20]
Order
The appeal is dismissed.
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 11 March 2015
Mr Russell submitted that there is absolutely no evidence to suggest that Mr O'Connor did not properly consider the request for a change of destination. To the contrary, the evidence is that he gave it proper consideration. Nor is there evidence that the cancellation had been issued because of Mr O'Connor's feeling that he had been overruled by his subordinate. Mr Russell submitted that Ms Gray's statement that by issuing the permit she had effectively overruled her boss was little more than her belief as to the effect of her issuing a permit.
The Respondent's position is therefore that, as there is no proper basis for the Tribunal to award any compensation as claimed by Yammatree, the application must fail.