Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Kilpatrick v Port Kembla Port Corporation [2013] NSWADT 195 Hearing dates: 5 August 2013 Decision date: 30 August 2013 Jurisdiction: General Division Before: Judge K P O'Connor, President Decision: 1. Application for review dismissed for want of jurisdiction. 2. Registrar to make directions in relation to consideration of the respondent's foreshadowed costs application. Catchwords: JURISDICTION - Application for review of decision to take possession of goods invoking Tribunal's review jurisdiction under the Impounding Act - Objection by respondent - Contended that the decision was made under Uncollected Goods Act - Tribunal not satisfied that decision made under Impounding Act - Objection upheld. Impounding Act 1993, Uncollected Goods Act 1995 Legislation Cited: Administrative Decisions Tribunal Act 1997 Companion Animals Act 1998 Impounding Act 1993 Uncollected Goods Act 1995 Cases Cited: Capital Finance Co Ltd v Bray [1964] 1 WLR 323 Klewer v Coffs Harbour City Council [2003] NSWADT 170 Texts Cited: Lindgren's Business Laws of Australia Category: Principal judgment Parties: Leslie Kilpatrick (Applicant) Port Kembla Port Corporation (Respondent) Representation: In person (Applicant) S Dyball, Heard McEwan Legal (Respondent) File Number(s): 133178 reasons for decision 1In or about November 2012 the Port Kembla Port Corporation (the Port Corporation) took possession of three heavy vehicles located on its land, all of a kind used in marine salvage (1995 Komatsu PC 200-6 Excavator, Serial Number 84671; Caterpillar 330B Excavator, Serial Number 8SR00164 and Mitsubishi Hook Lift Bin Truck), as well as various associated items. 2Later the liquidators of a company placed in liquidation, Kilpatrick Group Pty Ltd (Kilpatrick Group), claimed ownership of the goods. Kilpatrick Group has three directors - Mr Leslie Kilpatrick, his wife, and his son, Mr Paul Kilpatrick. 3The Port Corporation released the goods. The liquidator put them up for public auction. The public auction has not proceeded, pending the resolution of an application for review before the Tribunal. 4The review applicant is Mr Leslie Kilpatrick. He asserts that he is the true owner of the goods, as an individual trading (with his wife) as 'Steel City Metals'. 5He has applied to the Tribunal for review of the Port Corporation's decision to take possession of the vehicles. His application is made under s 38 of the Impounding Act 1993. 6The Port Corporation objects to the Tribunal dealing with the application on the ground that it is not within jurisdiction. In essence, the Port Corporation submits that it acted under the Uncollected Goods Act 1995 (Uncollected Goods Act). The parties accept that there is no equivalent review jurisdiction vested in the Tribunal under that Act. 7The Port Corporation drew attention to the scheme of the Impounding Act. It notes that there is no evidence that an 'impounding officer' within the meaning of the Act removed the goods, nor if there was an 'impounding officer' that the impoundment occurred within an 'area of operation' of an impounding officer. The Port Corporation also submitted that the land upon which the goods were located was owned by the Port Corporation and did not constitute an 'area of operation' within the meaning of the Act. (As to these issues, the relevant provisions of the Impounding Act are ss 5, 6, 8 and the definition section, s 4, which in turn refers to the Dictionary; see also, meaning of 'area of operations', and 'impounding authority'.) The Port Corporation's evidence is that it took action under the Uncollected Goods Act. 8Material before Tribunal: The parties filed the following material: submissions from the solicitors for the respondent, 16 July 2013; affidavit from the applicant, filed 2 August 2013; submissions from the applicant, filed 5 August 2013 shortly before the Tribunal commenced a telephone hearing. At the conclusion of the hearing the Tribunal gave the respondent liberty to file within three days any submissions in reply to the applicant's submissions filed 5 August 2013. The respondent filed further written submissions on 8 August 2013. The respondent foreshadowed an application for costs if its objection is upheld. 9The following history emerges from the material furnished to the Tribunal. 10Mr Kilpatrick has been involved in the business of marine salvage and in the collection and sale of scrap metal through at least the two businesses already mentioned, 'Steel City Metals', described as a metal recycling business, and Kilpatrick Group, described as a specialised demolition, salvage and deconstruction company. 11Mr Paul Kilpatrick has filed an affidavit in which he gives a history of dealings said to have taken place between Steel City Metals and the operations manager of Oceanlinx Ltd in connection with the deconstruction and other associated works in relation to the Oceanlinx owned vessel, MR 1 Wave Energy Barge. 12He refers to difficulties in moving it from its moored location, and the making of a proposal by the company for the vessel to be floated. He states that Steel City Metals was to complete the process of demolition of the '475 tonne scrap steel structure'. 13Mr Paul Kilpatrick states that the person who is both the Harbour Master and General Manager of the Port Corporation was involved in those discussions. He gives a history of interactions commencing in July 2009. He refers to the company being successful in obtaining the salvage tender in July 2011. He gives accounts of further interactions with the Port Corporation with a view to undertaking the work, and the complexities involved. He says that the Caterpillar excavator was floated to the site on 10 October 2011 along with various attachments, and the Komatsu excavator was floated to the site on 18 October 2011. The lift hook bin was also floated to the site, along with many other items. He attaches to his affidavit various documents that he says supports these statements. 14Kilpatrick Group went into liquidation on 26 October 2012. 15In the Port Corporation's opinion, the equipment had by that time been abandoned and remained (unmarked and unidentified) on the Port Corporation's land for in excess of 18 months. 16It states that on 9 and 16 November 2012 the Port Corporation obtained certificates under s 31 of the Uncollected Goods Act warranting that the vehicles were not stolen, and conducted searches of the Personal Property and Security Register (PPSR) to ascertain whether the equipment had any declared owner or encumbrances. The search provided no relevant information. The certificates and PPSR returns are in the material before the Tribunal. 17On 5 April 2013 Paul Kilpatrick discovered that the three items mentioned and associated equipment were being offered for sale at South Coast Auctions. He learnt that the goods had been placed with the auctioneer by the liquidator of the company. He contacted the liquidator on 8 April 2013, and advised that his father was the owner of the goods. He was told that the goods were subject to a lien from the Port Corporation said to be in excess of $20,000 for storage and associated costs. 18He claims that the Port Corporation has wrongly impounded them and wishes to have its decision to impound set aside. 19The Port Corporation states that it contacted the Kilpatrick Group by letter on 20 June 2012 and by email on 19 April 2013 enquiring whether it owned the goods and, if so, demanding it remove them from the Port Corporation's land. It states that no response was received to those communications. Mr Paul Kilpatrick's affidavit contests this statement so far as the communication of 19 April 2013. I have not sought to resolve that difference. 20Mr Paul Kilpatrick states that he demanded on 26 April 2013 that the Port Corporation return the goods to his father, and threatened otherwise to take action in the Tribunal under the Impounding Act. 21In line with its solicitor's reply of 30 April 2013 the Port Corporation has indicated to the Tribunal that it would be prepared to recover the items from the liquidator and deliver the items to Leslie Kilpatrick if he can satisfy it that he, personally, is the true owner, and subject to payment of the Port Corporation's fees, costs and expenses. 22Paul Kilpatrick has filed documentation in the form of bank statements said to confirm cash transactions that prove that his father personally purchased the items. The Tribunal's Jurisdiction under the Impounding Act 23Section 38 provides: 38 Owner of impounded item can apply to Administrative Decisions Tribunal for review (1) The owner of an impounded item may apply to the Administrative Decisions Tribunal for a review of the decision to impound the item, but only on the ground that the impounding of the item was unlawful. (2) The owner of an impounded item may apply to the Administrative Decisions Tribunal for a review of any fee or charge required to be paid for the release of the item (whether to an impounding authority or an occupier of private land), but only on the ground that the fee or charge has been improperly charged or incorrectly calculated or is excessive. (3) An application cannot be made under this section until the owner of the impounded item has given the impounding authority or occupier concerned notice in writing of intention to apply to the Administrative Decisions Tribunal. (4) If notice of intention to apply to the Administrative Decisions Tribunal is given, the authority must not sell or otherwise dispose of the impounded item until the time limit for an application has expired or until it has been notified that any application made has been refused or withdrawn. (5) This section does not affect section 22 (Injured, diseased or distressed animals can be destroyed). (6) An impounding authority may release an impounded item pending the determination of an application. The release of an impounded item does not affect any right of recovery that the impounding authority may have under this Act. 24The following provisions are relevant to an understanding of the place of s 38 in the scheme of the Act: 3 Objects of this Act The objects of this Act are: (a) to empower authorised persons to impound and deal with animals and articles in public places and places owned or under the control of certain public authorities if, in the case of animals, they are unattended or trespassing or, in the case of articles, they have been abandoned or left unattended, and (b) to empower occupiers of private land to impound and deal with animals trespassing on their land, and (c) to provide for the release of impounded animals and articles that are claimed by their owners, and (d) to provide for the disposal of impounded animals and articles that are not claimed by their owners and, if they are disposed of by sale, to provide for the disposal of the proceeds of sale. Section 5 provides: 5 Who can impound and what can be impounded (1) Impounding officers can impound certain animals and articles, as provided by this Act. The power to impound conferred by this Act on an impounding officer of Roads and Maritime Services is limited to the impounding of motor vehicles, unless the regulations otherwise provide. (2) Occupiers of private land can impound certain animals, as provided by this Act. (3) A police officer has and may exercise the powers of any impounding officer (as if he or she had been appointed as an impounding officer by each impounding authority). This does not make a police officer subject to the direction or control of an impounding authority. Note. Impounding officers are persons appointed as impounding officers by impounding authorities. See the definitions of impounding officer and impounding authority in the dictionary. See the definition of animal in the dictionary for the types of animals to which this Act applies. Section 6 provides: 6 Areas in which impounding officers can impound (1) An impounding officer may impound something under this Act only in the area of operations of the impounding officer. (2) This Act does not confer power on an impounding officer to enter a place that the officer could not otherwise lawfully enter. (3) Nothing in this Act prevents an impounding officer from entering private land at the invitation of the occupier, so long as it is within his or her "area of operations". Note. See the definition of area of operations in the Dictionary for the areas in which impounding officers can impound. Section 8 provides: 8 When is something "impounded"? (1) Something is impounded as soon as an impounding officer or an occupier of private land takes possession of it under a power conferred by this Act. It continues to be impounded until it is released or disposed of in accordance with this Act. (2) An item does not have to be taken to a pound for it to be "impounded" for the purposes of this Act. Section 15 provides: 15 Abandoned and unattended articles can be impounded An impounding officer may impound an article found in the officer's area of operations if the officer believes on reasonable grounds that the article has been abandoned or left unattended. Section 16 affects this if the article is a motor vehicle. Note. The Local Government Act 1993 gives a council power to order the removal of an object or matter that is causing or likely to cause an obstruction. Section 20 provides: 20 Impounding authority to notify owner (1) An impounding authority must make all reasonable inquiries in an effort to find out the name and address of the owner of an impounded item and, in the case of an impounded motor vehicle, must also make a search of the PPS Register for information concerning PPS security interests in the vehicle. (2) The inquiries and search must be made as soon as practicable after the item is delivered to the authority's pound or (in the case of an article that is impounded without being delivered to a pound) as soon as practicable after the article is impounded. (3) If the impounding authority knows or finds out the name and address of the owner, the authority must cause notice of the impounding to be given to the owner of an impounded item as soon as practicable after becoming aware of the name or address. (4) If the impounding authority's search of the PPS Register reveals a PPS security interest in the motor vehicle, the authority must also cause notice of the impounding to be given to the person who claims the interest. (5) A notice under this section must be in writing addressed to the person to be given the notice. It must clearly indicate that the item has been impounded and will be sold or otherwise disposed of if not claimed within a stated period (not less than 7 days in the case of an animal and not less than 28 days in the case of an article). (6) Inquiries as to the owner of a motor vehicle need not be made under this section if those inquiries have already been made under another provision of this Act. (7) This section does not apply to a motor vehicle that has been destroyed or otherwise disposed of under section 18 (Impounded motor vehicles worth less than $500 may be destroyed). (8) In this section: PPS Register means the Personal Property Securities Register under the Personal Property Securities Act 2009 of the Commonwealth. PPS security interest, in relation to a motor vehicle, means a security interest in the vehicle to which the Personal Property Securities Act 2009 of the Commonwealth applies (including a transitional security interest within the meaning of that Act). Note. See section 49 for the ways in which notice can be given. Section 23 provides: 23 Owner can obtain release of impounded item (1) Application may be made to an impounding authority for the release of an impounded item held by it or impounded by one of its impounding officers. The application may be made at any time before the item is sold or disposed of. (2) The impounding authority must release the item to the applicant if: (a) the authority is satisfied on reasonable grounds that the applicant is the owner of the item, is authorised to claim the item on the owner's behalf or is otherwise entitled to lawful possession of the item, and (b) all fees and charges payable in respect of the impounding, holding and disposing of the item are paid to the impounding authority, and (c) the authority is satisfied that all penalties imposed in connection with the event that gave rise to the impounding have been paid, and (d) the applicant signs a receipt for the release of the item. Section 45 provides: 45 Protections from liability (1) A person who destroys an animal under a power conferred by this Act or who destroys or otherwise disposes of a motor vehicle under section 18 is not liable in damages for any loss that the owner of the animal or motor vehicle or any other person has sustained as a result of that action and nor is any impounding authority that authorised the person, unless it is proved that the person or authority did not act in good faith. (2) If an item is sold or disposed of under a power conferred by this Act, the following provisions apply: · the buyer obtains the ownership of the item, · the item is discharged from any right, interest, trust or obligation to which it was subject immediately before sale, · the person who was the owner of the item immediately before the sale or disposal ceases to have any claim in respect of the item or any right of action in respect of the sale or disposal except as specifically provided by this Act. (3) A person is not prevented from recovering damages from an impounding authority in respect of the sale or disposal of an item if the person establishes that the authority, or the person who effected the sale or disposal, did not act in good faith or acted without reasonable care. The Uncollected Goods Act 25The following provisions are helpful in understanding the role of this legislation: 4 Object of Act (1) The object of this Act is to provide persons in possession of uncollected goods subject to bailment (bailees) with means of disposing of those goods without incurring any liability to the bailor or any other person. (2) The means of disposal are by way of court order or after due notice to the bailor and other 5 When goods uncollected for purposes of Act Bailed goods are uncollected for the purposes of this Act if: (a) the goods are ready for delivery to the bailor in accordance with the terms of the bailment, but the bailor has failed to take delivery of the goods or, if those terms so provide, to give directions as to their delivery, or (b) the bailee is required to give notice to the bailor before the goods are so ready for delivery, but is unable to trace or communicate with the bailor, or (c) the bailee can reasonably expect to be relieved of any duty to safeguard the goods on giving notice to the bailor, but is unable to trace or communicate with the bailor. 6 When Act available for disposal of uncollected goods (1) This Act is available for the disposal of uncollected goods where there is no agreement between the parties on the means of their disposal. If there is such an agreement, this Act applies to any aspect of the disposal of those goods that is not dealt with in the agreement. (2) This Act is also available as an alternative to other statutory means of disposal of particular uncollected goods. However, it is not available as an alternative to the Unclaimed Money Act 1995, the Pawnbrokers and Second-hand Dealers Act 1996 or to any other Act or instrument prescribed by the regulations. (3) This section is subject to section 32. 25 Persons to whom notices not required to be given Nothing in this Part requires notice to be given to a person (other than the bailor and any person who has a publicly registered interest in the goods) if the bailee: (a) is unaware of the fact that the person has or claims an interest in the goods, or (b) cannot trace or communicate with the person. 34 Purchasers acquire good title The purchaser of any goods sold under this Act acquires a good title to the goods, free from any interest that may have existed in the goods in favour of some other person before the goods were sold, if the purchaser buys them: (a) without notice of any failure by the bailee to comply with the provisions of this Act, and (b) without notice of any defect or want of title in the bailor. Consideration 26It will be seen that the Uncollected Goods Act starts with the premise that the person in possession of the goods holds possession by means of a bailment. In this instance the Port Corporation characterises the presence of the goods on its land as one of 'involuntary bailment' (as to which, see generally, Lindgren's Business Laws of Australia [270,520]; and Capital Finance Co Ltd v Bray [1964] 1 WLR 323). 27In light of the factual summary I have given, I understand Mr Leslie Kilpatrick's case to be that the Port Corporation ought reasonably to have known that the goods were on its land for purposes of a salvage contract, that they had been placed there as part of the arrangements the Kilpatricks had made for salvage of the barge, and that it should have understood that either Mr Leslie Kilpatrick personally or the Kilpatrick Group were the true owners of the goods. As I understand it, they challenge the suggestion that the goods could ever be said to have been 'abandoned' and to question the reliance placed on the PPSR searches. 28An involuntary bailment can arise merely from goods being left uncollected. It is not essential to the characterisation of the relationship with goods as one of 'involuntary bailment' that ownership be truly unknown and that they are 'abandoned'. 29The premise which underlies 'impounding' legislation, as I see it, is that the person taking possession did not previously have possession of the goods, as for example where a dog that is roaming free is impounded. 'Impounding' carries the connation of bringing the goods into possession by means of the act of impounding. 30The Port Corporation contends that the items are not 'impounded' items, and therefore s 38 is not engaged. In particular, as noted earlier, it submits that for an item to be 'impounded' it must be the subject of action by an 'impounding officer' and the impoundment must take place in the 'operating area' of the officer. This is correct. 31As explained, the Impounding Act and the Uncollected Goods Act represent different means by which an authority can take action against seemingly abandoned or uncollected goods. 32In this instance the respondent's evidence is that it acted under the Uncollected Goods Act. The Port Corporation is under a duty (Administrative Decisions Tribunal Act 1997, s 58) to lodge all relevant material with the Tribunal. The material it has lodged corroborates that it took action pursuant to the Uncollected Goods Act. The applicant has not lodged any material that might suggest otherwise, in support of his alternative contention. He has not, for example, identified any impounding officer, nor specified the operating area in which the impounding officer is said to have operated. 33The case of Klewer v Coffs Harbour City Council [2003] NSWADT 170 provides an analogy. There the owner of a dog applied for review under the Impounding Act of Council action taken in relation to the dog. The respondent successfully objected on the basis that the action was taken under the Companion Animals Act 1998, which does not invest the Tribunal with a review jurisdiction. 34In these circumstances I must prefer the case of the Port Corporation. Order 1. Application for review dismissed for want of jurisdiction. 2. Registrar to make directions in relation to consideration of the respondent's foreshadowed costs application. 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: 30 August 2013