Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Broome v Great Lakes Council [2014] NSWCATAD 154 Hearing dates: 28 November 2013 Decision date: 25 September 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: S Higgins, Principal Member Decision: 1. Pursuant to paragraph 55(3)(b) of the Administrative Decisions Tribunal Act 1997, order that it is necessary to deal with the applicant's application in the absence of the applicant having applied for an internal review of the decisions the subject of review. 2. The decision of the respondent to impound the applicant's cattle is set aside. 3. The decision of the respondent to impose fees and charges is set aside. 4.The respondent to repay the applicant the amount of $1,500.00. Catchwords: ADMINISTRATIVE LAW - merit review of decision of agency - impounding of cattle - whether impounding officer believed on reasonable grounds that the cattle were unattended Legislation Cited: Administrative Decisions Tribunal Act 1997 Administrative Decisions Tribunal regulation 2009 Civil and Administrative Tribunal Act 2013 Impounding Act 1993 Local Government Act 1993 Local Land Services Act 2013 Rural Lands Protection Act 1998 (repealed) Rural Lands Protection Regulation 2010 (repealed) Cases Cited: George v Rocket and Another (1990) 93 ALR 483; (1990) 170 CLR 104 McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423 Woolworths Ltd v Waverly Council [1999] NSWSC 308 Category: Principal judgment Parties: Gary Fraser Broome (Applicant) Great Lakes Council (Respondent) Representation: Slater & Gordon Lawyers (Applicant) T Pickup (Respondent ) File Number(s): 133284 reasons for decision Introduction 1The applicant, Mr Broome, seeks review of a decision of the respondent, Great Lakes Council, to impound four head of cattle he owned, pursuant to the Impounding Act 1993. The cattle were impounded, on 30 August 2013, by a senior ranger employed by the respondent, Mr David Oates. The applicant has been charged $8,060.00 in respect of the impounding of his cattle. However, his cattle were released to him on 3 October 2013 after he paid an amount of $1,500.00 to the respondent. The respondent nevertheless seeks to recover the entire amount charged. 2The applicant is a grazier and the owner of land known as 91 Sawpit Road, Boolambayte in the State of New South Wales. The applicant does not reside on this land. However, he uses this land for the agistment of a number of cattle he owns. 3The applicant has made his application for review under section 38 of the Impounding Act on the grounds that the impounding of his cattle was unlawful and, if found to be lawful, the applicant asserts that the fees and charges imposed by the respondent were improperly charged and excessive. 4On 30 September 2013, the applicant lodged his application for review with the former Administrative Decision Tribunal (ADT) and his application was heard on 28 November 2013. At the conclusion of the hearing I reserved my decision and made orders for the filing and serving of further written submissions by the parties. 5As anticipated, prior to the submissions being filed, on 1 January 2014, the ADT was abolished on the establishment of the NSW Civil and Administrative Tribunal (see s 7 and cl 3 of Schedule 1 of the Civil and Administrative Tribunal Act 2013). By reason of cl 7(2) and (3) of Schedule 1 of the Civil and Administrative Tribunal Act 2013, this application is taken to be an application before the NSW Civil and Administrative Tribunal (NCAT), with NCAT (the Tribunal) being vested with all the relevant functions of the Administrative Decisions Tribunal immediately before its abolition and the provisions of the Impounding Act continuing to apply. 6Set out below are the relevant provisions of the Impounding Act and the factual background to this application. 7No issue was taken in regard to the tribunal's jurisdiction to hear and determine the matter. However, I note that this application fell within the ADT's administrative review jurisdiction: see section 38 of the Administrative Decisions Tribunal Act 1997 (ADT Act) as it applied at that time and s 38 of the Impounding Act. Section 55 of the ADT Act sets out the requirements for making an application for review. This includes a requirement that the applicant has duly applied for an internal review and the review is taken to be finalised under subsection 53(9) the ADT Act: see paragraph 55(1)(b). Paragraph 55(3)(b) of the ADT Act gives the tribunal the power to deal with an application for review even though the applicant has not duly applied for an internal review if the tribunal is satisfied that it is necessary for the tribunal to deal with the application in order to protect the applicant's interests and the application for review was made within a reasonable time. 8The Impounding Act, nor the Administrative Decisions Tribunal Regulation 2009 provided that the section 53 internal review provisions in the ADT Act did not apply to the reviewable decisions in section 38 of the Impounding Act. Accordingly, in the absence of any evidence of an internal review request by the applicant and for abundant caution I make an order under paragraph 55(3)(b) that it is necessary to deal with the applicants application in the absence of the applicant having applied for an internal review. 9For the reasons set out below, I have found that the impounding of the applicant's cattle on 30 August 2013 was unlawful. Relevant legislation The Impounding Act 1993 10The objects of the Impounding Act are as follows: 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. 11Part 2 of the Impounding Act deals with the impounding of animals and articles. The word 'article' is also defined in the Dictionary at the end of the Impounding Act to mean 'anything capable of ownership except a living creature.' 12Division 1 of Part 2 of the Impounding Act contains general provisions in regard to impounding. Section 5 in this Division prescribes who can impound and what can be impounded. That section relevantly provides: 5 Who can impound and what can be impounded (1) Impounding officers can impound certain animals and articles, as provided by this Act. ... 13The term 'impounding officer' is defined in the Dictionary to mean 'a person appointed by an impounding authority to exercise the powers of an impounding office'. The term 'impounding authority' is also defined in the Dictionary. It includes a council under the Local Government Act 1993. The respondent is such a council and there is no dispute that Mr Oates was an impounding officer at the time he took control over the applicant's cattle. 14Section 6 in Division 1 of the Impounding Act sets out the areas within which an impounding officer has authority to impound, which includes the following: 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) ... 15The term 'area of operations' is defined in the Dictionary. It is unnecessary to repeat that definition, as there is no dispute that the area in which Mr Oates found the cattle fell within his area of operations. 16Section 8, also in Division 1 of the Impounding Act sets out when an 'item' is impounded under the Act. It 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. 17The word 'item' is defined in the Dictionary to mean an animal or an article. 18Division 2 of Part 2 of the Impounding Act deals with the powers of an impounding officer to impound abandoned, unattended and straying animals. For the purpose of this application, the relevant provision is section 9, which provides: 9 Animals unattended in public places can be impounded (1) An impounding officer may impound an animal that is in a public place in the area of operations of the officer if the officer believes on reasonable grounds that the animal is unattended. (2) An animal is not to be regarded as being unattended for the purposes of this section: (a) while the animal is in a public place in response to an invitation contained in a notice published by the relevant public authority and in accordance with any conditions specified in that notice, or (b) while the animal is in a public place with the consent of the relevant public authority, or (c) while the animal is in a public place and its presence there is authorised by or under an Act, or (d) in the case of an animal that is stock (as defined in Part 10 of the Rural Lands Protection Act 1998) that is unattended on a road or travelling stock reserve, in any circumstances prescribed by section 138 of that Act, (e) in any circumstances prescribed by the regulations for the purposes of this section. 19The word 'unattended' in regard to an animal is defined in the Dictionary to include abandoned or straying animal. 20Part 10 of the Rural Lands Protection Act 1998 made provision for the impounding of unattended and trespassing stock. I have dealt with these provisions, as they applied on 30 August 2013, below. 21Section 11 in Division 2 of Part 2 of the Impounding Act contains makes provision for the impounding officer to detain an animal without impounding it and if it is impounded the impounding officer is required to deliver the animal to a pound as soon as practicable. That section relevantly provides: 11 Impounded animals to be delivered to pound (1) An impounding officer must have an impounded animal delivered to a pound as soon as practicable after the animal is impounded. (2) An impounding officer of a council may detain an animal liable to be impounded without impounding it. The detained animal may be placed on any land on agistment or on any land owned by or under the control of the council. It must not be detained for longer than 7 days before being impounded. (2A) An impounding officer of Local Land Services may detain an animal liable to be impounded without impounding it. The detained animal may be placed on any land on agistment or on any land owned by or under the control of Local Land Services. It must not be detained for longer than 7 days before it is impounded. (3) The pound to which an impounded animal is to be delivered is the nearest convenient pound (if impounded by a police officer) or (if impounded by an impounding officer of an impounding authority) the nearest pound operated or used by that authority. (3A) For the purposes of subsection (3), an impounding officer of an impounding authority that is Local Land Services delivers an impounded animal to the nearest pound operated or used by Local Land Services if Local Land Services has established a private pound at some place on the land where the animal was impounded and the animal is detained in that pound. (4) ... (4A) ... (5) The impounding authority may recover as a debt from the owner of an animal the cost of destroying the animal and disposing of its carcass. 22Division 4 of Part 2 deals with the impounding of articles and special provision is made in regard to motor vehicles. That Division is not relevant to this application. 23Part 3 of the Impounding Act sets out how impounded 'items' are to be dealt with. That is, these provisions apply to animals and articles that have been impounded pursuant to the Impounding Act. 24Section 20 in this Part sets out the steps that are to be taken once an item is impounded. That section is in the following terms: 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) ... 25Section 23 in this Part makes provision for the impounded item to be released to the owner. That section is in the following terms: 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. 26Section 26 makes provision for the fixing of fees and charges in regard to the impounding of an item. That section provides as follows: 26 Impounding fees and charges (1) An impounding authority may fix the fees and charges that are to be paid in respect of the impounding, holding and disposing of an item by the authority and its impounding officers. The Commissioner of Police may by order in writing fix the fees and charges that are to be paid in respect of the impounding of an item by a police officer. (2) The fees and charges that may be fixed are as follows: - a fee for walking or transporting an impounded animal to the pound or to the address of its owner and to a market or saleyard for sale, - a charge for providing an impounded animal with food, water and veterinary care, - a charge for loss or damage attributable to an impounded animal while it was unattended or trespassing, - a fee for conveying an impounded article to a pound, - a fee for storing an impounded article at the pound, - a fee to cover the cost of serving a notice notifying the owner of an impounded item that the item may be or has been impounded. (3) Fees and charges may be fixed so as to differ according to the kinds of animals or articles impounded. (4) A fee or charge must not exceed the corresponding maximum fee or charge (if any) prescribed by the regulations, and any amount that is fixed so as to exceed the maximum is reduced to the maximum. (5) Fees and charges fixed under this section are the fees and charges payable in respect of the impounding, holding and disposing of an item under this Act. (6) An impounding authority must remit to the Commissioner of Police any fee or charge paid to or deducted or recovered by the authority that was payable in respect of the impounding of an item by a police officer. (7) An impounding authority may waive payment of a fee or charge, or part of a fee or charge, in respect of the impounding of an animal in a public place that had strayed because a gate or fence had ceased to be animal proof due to fire, flood or other natural disaster 27Section 38 of the Impounding Act sets out an owner's right to seek review of decisions made in regard to the impounding of an item under the Act. At the relevant time, that section was in the following terms: 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) ... (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. 28As I have noted, the applicant seeks review under subs 38(1) and (2). The Rural Lands Protection Act 1998 29As I have noted, Part 10 of the Rural Lands Protection Act 1998 made provision for the impounding of unattended and trespassing stock. That Act was repealed by section 210(a) of the Local Land Services Act 2013 on 1 January 2014. Part 8 of the latter Act has continued to contain provisions in similar terms to that which was contained in Part 10 of the repealed Act. 30The objects of the Rural Lands Protection Act included to provide for the sustainable management of travelling stock reserves and stock watering places, to deal with certain unattended and trespassing stock and to regulate the movement of stock: see paragraph 2A (f), (g) and (h) of the Rural Lands Act. 31Section 139 of the Rural Lands Protection Act created an offence of causing or permitting stock to be on a public road etc. without authority. On 30 August 2013, that section was in the following terms: 139 Offence of causing or permitting stock to be on a public road, travelling stock reserve or public land without authority (1) If stock (whether attended or unattended) are on a public road, travelling stock reserve or other public land except in accordance with the authority conferred by (and in accordance with any conditions of) a stock permit or by or under any law the owner of the stock, and the person in charge of the stock (if not the owner), are each guilty of an offence. Maximum penalty: 50 penalty units. (2) It is a defence to a prosecution for an offence against this section if the defendant proves that the defendant had taken all reasonable steps to prevent the contravention. (3) An impounding officer may impound any stock the impounding officer suspects to be on a public road, travelling stock reserve or other public land in contravention of this section in the same way that the impounding officer may impound an animal under section 9 of the Impounding Act 1993. 32The terms 'stock', 'impounding authority' and 'unattended' were defined in section 137 of the Local Land Services Act as follows:. 137 Definitions (1) In this Part: stock includes pig and deer. (2) If an expression is defined in the Impounding Act 1993 and is also used in this Part, the expression as used in this Part has, unless the contrary intention appears, the same meaning as in that Act. Note. Expressions used include: impounding authority, which is defined to include Local Land Services. unattended which is defined, in relation to an animal, to include abandoned or straying. 33Section 138 of the Rural Lands Protection Act set out circumstances where stock were not to be regarded as being unattended for the purpose of the Impounding Act. Section 138 was in the following terms: 138 Unattended stock Stock are not unattended for the purposes of sections 9 (2) (d) and 32 (3) (d) of the Impounding Act 1993 if the stock are unattended on a road or travelling stock reserve: (a) in accordance with the authority conferred by (and any conditions of) a stock permit, or (b) in any other circumstances prescribed by the regulations for the purposes of this paragraph 34Clause 48 of the Rural Lands Protection Regulation 2010 prescribed the following circumstances for the purpose of section 138(b) of the Act: 48 Unattended stock For the purposes of section 138 (b) of the Act, stock are not unattended for the purposes of section 9 (2) (d) and 32 (3) (d) of the Impounding Act 1993 in the following circumstances: (a) if stock are unattended because of an emergency preventing the person in charge of the stock from attending the stock, (b) if the stock are unattended while the person in charge of the stock is moving a stock warning sign or taking other action necessary for the well-being of the stock or required by law. The evidence 35The applicant tendered into evidence two statements made by him. One was dated 29 October 2013 and the other was undated but was a response to the statement of Mr Oates. The applicant also tendered into evidence photos of different breeds of cows and a report to the respondent in regard to a proposal to make changes to Sawpit Road, which is the road that gives the applicant access to his land. 36The applicant also relied on a statement made by Thomas Charles Kneller (dated 19 October) and Robert Marsh (dated 15 October). 37The applicant, Mr Kneller and Mr Marsh gave oral evidence at the hearing and were cross-examined. 38The respondent tendered into evidence a statement made by Mr Oates, dated 12 November 2013. Mr Oates also gave oral evidence at the hearing and was cross-examined. The respondent also tendered into evidence a plan and photos of the area where the cattle were found and an email dated 5 September 2013, from Mr Oates to Lisa Schiff. 39In his evidence, the applicant explained that he purchased the land at 91 Sawpit Road, Boolambayte in 2001. He said the road runs through the middle of his property, but is not a substantial road. It is a Crown road and the applicant asserts that it is a road over which the respondent has no jurisdiction. 40The applicant explained that behind his land is another lot of land that is land locked in that the owners cannot gain access to their property via a road. He said that five to six years ago the new owners of the land behind him began using the track that ran through his land from Sawpit Road to gain access to their land. He objected to this and fenced off the road at either end of his land and prevented the neighbours trespassing on his land. In late 2010, the neighbours sought intervention from the respondent. The respondent advised it had no jurisdiction over Sawpit Road. In December 2012, the NSW Department of Trade and Investment, Crown Lands wrote to the applicant to inform him that his neighbours had formally sought approval of the upgrade of the track through his land. The essence of that correspondence was that approval had been given for the up-grade, subject to certain conditions. The applicant was also informed that if he wished to fence off the road he was required to put in gates where the fence line crosses the road, which must be kept unlocked at all times to allow public access. I understand the applicant has complied with this requirement but his dispute with the neighbours in regard to access and leaving the gate open remains. The applicant said that prior to the current owners having purchased the land behind his land he had no problems with his cattle escaping. 41As I understand this evidence, the applicant seeks to rely on this ongoing dispute as a possible explanation as to why the cattle were out on the road on the day in question. 42There is no dispute that on the morning of Friday 30 August 2013, in response to a complaint about cattle straying within the Sawpit Road area, Mr Oates went to that area and saw four cattle on the Lakes Way and Sawpit Road. He herded them from the roadway into the 'loading facility' of the nearby property that was owned by Mr Tooze. Nor is it disputed that not long after the cattle were placed into the 'loading facility', Mr Kneller and Mr Marsh drove by and had a conversation with Mr Oates. Mr Kneller, a stockman and tracker was residing on the applicant's property and he was looking after the cattle. Mr Marsh, a friend of Mr Kneller was staying with him at the applicant's property and helping him out. 43There is some dispute about what was said during this conversation, between Mr Oates and Mr Kneller and Mr Marsh. 44There is no dispute that Mr Oates arranged for the cattle to be collected that morning and taken to Nabiac pound where they remained until 3 October 2013, when the applicant made a payment of $1,500.00 towards the $8,060.00 fee charged by the respondent. Consideration (a) Was the impounding of the cattle unlawful? 45There is no contemporaneous record of Mr Oates, made on 30 August 2013, which set out the matters relied on by him in deciding to impound the applicant's cattle. 46The most contemporaneous record is an email Mr Oates sent, on Monday 2 September 2013, to Lisa Schiff (also an employee of the respondent) following a complaint that had been made about the impounding of the applicant's cattle. In that email Mr Oates said: I understand Robyn Dorman forwarded an email advising Mr Fraser Broomes (sic) cattle had been impounded by Council on Friday 30 August. Over a period of two to three weeks prior to last Friday I have received several complaints from Police, Mr Terry Tooze and Mr Stuart Robinson regarding the cattle straying in the area and have been for some time. On Friday morning I received a phone call from Kathy Newman from the depot reporting the cattle were out at the time. As a result I attended the sawpit rd area. The cattle were observed on the lakes way and Sawpit rd. I had permission from the land owner to use his loading facility if required. I herded the cattle from the roadway into the property of Mr Tooze. The cattle were secured in the cattle yards, A total of 4 head secured, 3 baldy type and 1 Hereford type. Only 1 with an NLIS ear tag An unidentified male said they look like Frasers cattle, I advised they have been impounded and the male person responded Good they are a pain in the arse always out he then continued to say that he casually lived and worked on Mr Broome's property and recognised the cattle ... 47In his statement, prepared for these proceedings, Mr Oates said the respondent had received a number of complaints on Monday 26 August and Thursday 29 August 2013 about cattle straying on the Lakes Way and Sawpit Road, Boolambayte. He said the complaints were from NSW Police at Bulahdelah and Mr Tooze. 48Mr Oates said that at approximately 9:30 am on Friday 30 August, the respondent received a further complaint from Mr Tooze about cattle being 'unattended on the Lakes Way'. Mr Oates said he attended the Boolambayte area and saw four head of cattle on the Lakes Way, walking towards Sawpit Road. He went on to say: ... [There] were no person(s) with the cattle and no signs erected indicating cattle or livestock were grazing. I formed the opinion the cattle were unattended and posed an immediate threat to the general public by continuing to stray on the road areas as The Lakes Way is sign posted as a 100km speed limit. 49Mr Oates said he then entered the nearby property of Mr Tooze, who agreed to let Mr Oates use his paddock and cattle yard to secure the cattle. He also asked Mr Tooze if he knew who owned the cattle to which Mr Tooze responded 'Yes Fraser Broome.' Mr Oates then caused the cattle to enter the cattle yard, where they were secured. Mr Oates said that he then telephoned Council Officer Steve Burgess and asked him to bring out the cattle trailer to Sawpit Road as he had 'impounded some stray cattle.' Mr Burgess allegedly responded by saying he would be there in about 'one and half hours.' 50Mr Oates said that 'at the time the cattle were secure in Mr Tooze's yard, two male persons arrived in a brown Holden sedan and spoke to Mr Tooze'. Mr Oates said he had the following conversation with these men: I said: 'David Oates from Great Lakes Council and you are?' He said: 'I am Tommy Kneller and this is Robert Marsh' I said: 'Tommy, do you know who owns the cattle?' He said: 'Yes they look like Fraser's cattle.' I said: 'How do you know?' He said: 'I look after the place and do a bit of work there.' I said: ' I have impounded the cattle as they have been straying around for a while and Council keeps getting complaints about them straying on the public roads.' He said: 'Good, they are a pain in the arse & always getting out.' I said: 'Did you know they were out?' He said: 'They are always out.' 51Mr Oates said that the men left and that Mr Burgess and Martin Garnett, also an employee of the respondent, arrived with the trailer and the cattle were transferred to the Nabiac pound. Mr Oates said that on Monday 2 September 2013, at about 11.45 am he telephoned Mr Broome to inform him that his cattle had been impounded. He said Mr Broome accused him of having stolen his cattle. 52In his oral evidence before the Tribunal Mr Oates said he received a telephone call from Mr Tooze at about 9am on the morning of 30 August. He said he went out to the property at about 9:30, arriving at about 10:15am. He reiterated that he had previously spoken to the applicant about 'straying cattle' in 2011 and in 2012 he had sent him a warning letter. He said that even though he had not seen the straying cattle when he sent the warning letter, he had every reason to believe they belonged to Mr Broome as he knew his property was an 'abatement property.' In regard to his actions on 30 August 2013, he denied he was intent on getting the applicant's cattle. 53In his statement Mr Kneller said that on the morning of 30 August 2013 he and Mr Marsh went to feed the applicant's cattle. He said when they arrived they found four head of cattle were missing. He said a few days earlier they had also gone missing but he was able to locate them. He took his car and a bale of hay, which he used to lure the cattle back up Sawpit Road and onto the applicant's property to look for the cattle. Mr Kneller said that when he noticed the cattle were missing on the morning of the 30th he again took a bale of hay in his car to look for the cattle. 54Mr Kneller said that he and Mr Marsh drove up the road towards the highway looking for the cattle. By the time they reached the highway he had not seen the cattle and as he had run out of cigarettes he decided to drive into town and buy another packet and then head back towards the applicant's property. He said, on the way back he called in to a neighbouring property and asked the neighbour if he had seen the cattle. Mr Kneller said the neighbour told him that they were on his property and he had herded them back up Sawpit Road. He said he and Mr Marsh drove back up Sawpit Road and as they approached Mr Tooze's property they saw Mr Tooze with Mr Oates and the applicant's four head of cattle. Mr Kneller said he opened the door of his car and stepped out when Mr Oates said to him: 'They are mine. I own them. You can't have them, they're mine.' 55Mr Kneller said Mr Oates said this to him before he even said a word or shook his hand. Mr Kneller said he responded to Mr Oates by saying: 'I've got a bale of hay in the boot. We've been out looking for these cattle.' Mr Kneller said Mr Oates responded saying: 'you can't have them, they're mine.' 56Mr Kneller said he was ready and willing to take the cattle and they would have followed him up the road to the applicant's property, but went on to say: I did not see much point in trying to argue with Mr Oates. I took the view that he was the authority in much the same way as a police officer is an authority, and there was nothing I was going to say that would make him change his mind.' 57In his oral evidence, Mr Kneller said he had never been called 'Tommy' and he denied saying that the cattle were a 'pain in the arse.' He said that he had been repairing fences since a group of stay cattle had got through. He said he checked the fences regularly and on 30 August 2013, the fences were fine. 58In his statement Mr Marsh gave the following account of the conversation with Mr Oates at this time. He said that as he and Mr Kneller stopped the car, he got out and heard Mr Oates say: 'They're mine. I own them now, you can't have them. They're mine.' 59Mr Marsh said he walked towards Mr Oates and extended his arm to shake his hand, when Mr Oates said: 'I'm David Oates, I'm the ranger. Are you Fraser?' Mr Marsh responded and said 'No, I'm Rob Marsh' and they shook hands. Mr Marsh said he told Mr Oates that they were there to pick up the cattle. He said they had a bale of hay in the boot of the car and the cattle would follow them up the road. He said Mr Oates responded by saying: 'You can't have them, they're mine.' 60Mr Marsh said that while they were there he saw and heard Mr Oates make a number of calls on his mobile phone to try and arrange for a truck to come and collect the cattle. 61The applicant argues that there are two basis on which the tribunal should find that the decision to impound the applicant's cattle was unlawful. He submits that on the evidence: (a) Mr Oates did not have reasonable grounds to believe that the applicant's cattle were 'unattended' and (b) the cattle were not 'unattended' at the time. 62In regard to (a) above, the applicant argued that Mr Oates made a predetermined decision to impound the cattle even before he left the office and also unreasonably failed to ascertain relevant facts, give appropriate weight to relevant considerations and made a decision to impound rather than release the cattle to Mr Kneller. 63In regard to (b) above, the applicant argued that Mr Kneller was taking action necessary for the wellbeing of the cattle and he was taking action as required by law and hence, by reason of clause 48 of the Rural Lands Protection Regulation the cattle were not 'unattended'. It was argued that Mr Kneller was taking steps to look for the cattle as he felt he had a responsibility to do so and for this purpose he had a bale of hay to lure them back to the applicant's property. It was the applicant's submission that subsection 9(2) of the Impounding Act must be read independently of subsection 9(1) of that Act. That is, it should be construed to operate as a defence 'or carve-out' to subsection 9(1) (i.e. the decision to impound). 64The respondent submitted that Mr Oates in taking the cattle to Mr Tooze's yard, that this was the act of impounding and that it was lawfully exercised as he had reasonable grounds to believe the cattle were 'unattended'. The respondent also contended that the evidence did not support a finding that Mr Kneller was taking action necessary for the wellbeing of the cattle and he was taking action as required by law. Nor did the respondent accept the construction put forward by the applicant in regard to clause 48 of the Rural Lands Protection Regulation or subsection 9(2) of the Impounding Act. 65In my view, the matter in issue is relatively straight forward in that it centres on the question as to whether at the time of purported impounding there were reasonable grounds to believe the cattle were unattended. 66It is the evidence of Mr Oates that he believed the cattle were 'unattended' immediately on seeing them walking on Lakes Way (a public place) towards Sawpit Road (see paragraph [48] above). While Mr Oates asserts he had reasonable grounds to believe that the cattle were unattended, this is not the test. The test is an objective one that is to be approached from the view of a reasonable decision maker: see George v Rocket and Another (1990) 93 ALR 483 at 488, (1990) 170 CLR 104, at 109. 67In George v Rocket, at 488, the High Court (per Mason CJ, Brennan, Dean, Dawson, Toohey, Gaudron and McHugh JJ) said the following: When a statute prescribes that there must be "reasonable grounds" for a state of mind - including suspicion and belief - it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person. That was the point of Lord Atkin's famous, and now orthodox, dissent in Liversidge v Anderson [1942] AC 206: see Nakkuda Ali v MF De S Jayaratne [1951] AC 66 at 76-7; R v IRC; Ex parte Rossminster Ltd [1980] AC 952 at 1000, 1011, 1017-18; Bradley v Commonwealth (1973) 128 CLR 557 at 574-5 ; 1 ALR 241; WA Pines Pty Ltd v Bannerman (1980) 41 FLR 169 at 180- 1 ; 30 ALR 559 at 566-7. That requirement opens many administrative decisions to judicial review and precludes the arbitrary exercise of many statutory powers: see, for example, Attorney-General v Reynolds [1980] AC 637. Therefore it must appear to the issuing justice, not merely to the person seeking the search warrant, that reasonable grounds for the relevant suspicion and belief exist. ... 68As noted by Gleeson CJ and Kirby J in McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423 at [9], powers of search and seizure and arrest are often conditioned on the existence of reasonable grounds for a state of mind such as suspicion and in this regard they said, at [10]: 10. This is an objective test. George v Rockett was concerned with Queensland legislation empowering the issue of a search warrant if there were reasonable grounds for suspecting that there was incriminating evidence in a house. The statutory formula, however, is widely used. The point of the objectivity of such a test, when it is necessary to consider whether a primary decision-maker had reasonable grounds for a given state of mind, is that the question is not whether the primary decision-maker thinks he or she has reasonable grounds. 69In Woolworths Ltd v Waverly Council [1999] NSWSC 308 at [44], Hidden J said that the Impounding Act: .. should be construed in the light of the fact that it permits the serious invasion of the proprietary rights of citizens (and corporations). The powers granted by the Act must be exercised in accordance with the conditions expressly imposed by it, or fairly to be implied by it. ... 70In my view, the remarks of the High Court in George v Rocket equally apply to the power invested in impounding officers under the Impounding Act. That is, subsection 9(1) requires the existence of facts, which are sufficient to induce a state of mind in a reasonable person that the animal was 'unattended'. 71The word 'unattended' is defined to the extent that it includes abandoned and straying and it does not include the circumstances prescribed in subsection 9(2) circumstances. However, it is not otherwise defined. Accordingly, it should be given its ordinary meaning. In this regard the Macquarie Dictionary (third edition) contains the following definition: Unattended ... adjective 1. unaccompanied. 2. alone. 3. with no-one in charge. 4. not taken care of . 5. not heeded or paid attention to. 72In this case, the evidence points to the following facts that existed at the time Mr Oates asserts he impounded the cattle. These were that a report had been made that cattle were seen in the Sawpit Road area. About an hour and a quarter later, Mr Oates arrived at that area and saw four head of cattle on Lakes Way heading for Sawpit Road. He did not see anyone with the cattle, nor did he see any sign indicating the cattle were grazing. While I accept Mr Oates believed that this was sufficient grounds to exercise his powers under subsection 9(1) of the Impounding Act in my opinion, in the absence of making any inquiries, these were not sufficient grounds, to induce a state of mind in a reasonable person that the cattle were 'unattended.' Arguably, they were sufficient to detain the cattle pursuant to subsection 11(2) of the Impounding Act for the purpose of making further inquiries before taking the step of impounding them. However, the position of the respondent has at all times been that Mr Oates impounded the cattle immediately after he arrived. 73The fact that Mr Oates did not see anyone with the cattle did not necessarily mean that no one was in charge of them, or that no one was taking care of them. Nor did Mr Oates make any inquiries as to whether any of the circumstances in subsection 9(2) applied, or inquire as to whether the cattle he saw were the same cattle that had been the subject of the reports earlier that morning. Who made these reports and what they said is not clear. Mr Oates has given different accounts as to who made the reports. In cross-examination he agreed that the respondent had had complaints about a herd of wild cattle in the area that had been causing considerable damage to private property. In any event, if the cattle he saw on the day in question were the same cattle the subject of the reports to the respondent that morning, they had not moved very far. 74I have some difficulty in accepting the evidence of Mr Oates that he did not know who the cattle belonged to when he first arrived, especially given his earlier dealings with the applicant and knowing that his property was very close to where he found the cattle and purported to impound them. 75Any inquiries that were made by Mr Oates were made after his purported impounding. It was then that he spoke to Mr Tooze, who told him that the cattle belonged to the applicant. Shortly thereafter Mr Kneller and Mr Marsh came along and identified the cattle as belonging to the applicant. They said they had been looking for them and were ready to take them back onto the applicant's land. In my view, following the arrival of Mr Kneller and Mr Marsh, there was no basis on which Mr Oates was authorised to continue to detain the cattle and they should have been returned, as they clearly were not unattended. 76In this regard, I accept the evidence of Mr Kneller and Mr Marsh. At the same time I accept that they are likely to have said that the cattle were a 'pain in the arse', but doubt it was in the context recounted by Mr Oates. 77While I understand Mr Oates' sense of frustration in ongoing reports of stray cattle damaging private property, as I have indicated, I am unable to accept that Mr Oates did not know who the cattle belonged to, or that there were reasonable grounds to believe that the cattle were unattended at the time Mr Oates decided to exercise his power to impound the cattle. 78Nevertheless, the cattle were clearly on a public road where they should not have been. It was the responsibility of the applicant or his agents to ensure that they remained fenced in within his property. A failure to do so can lead to a prosecution under section 138 of the Rural Lands Protection Act (now Local Lands Services Act 2013) and the impounding of the cattle. 79Accordingly, I find that the applicant's cattle were unlawfully impounded. (b) Have the fees and charges been improperly charged or are they excessive 80On the basis of my findings above, it is unnecessary to deal with this aspect of the applicant's application. However, in the event I am wrong I have considered the applicant's arguments in this regard. 81The applicant contends that Mr Oates could have detained the cattle for up to seven days before impounding them. In my view this is an issue that goes to the question of an authorised officer's power to impound an animal and not the issue of fees and charges. 82The evidence is that the fees and charges were imposed in accordance with the scale of fees fixed pursuant to section 26 of the Impounding Act. 83The question is whether, assuming the impounding of the cattle was lawful, was the ongoing detention of the cattle lawful: see Woolworths Ltd v Waverly Council [1999] NSWSC 308 at [43]. 84As pointed out above, subsection 20(3) of the Impounding Act required notice of the impounding of the cattle to be given 'as soon as practicable after becoming aware' of the applicant's name and address. In this case, I have found that Mr Oates was aware of the applicant's name and address when he purportedly impounded the cattle. This was during the morning of 30 August 2013. Yet he did not cause a notice to be issued until 2 September 2013. It is the evidence of the applicant that he did not receive that notice until three days later, on 5 September. 85Nevertheless, from 2 September 2013, the respondent was aware that the applicant considered the impounding of his cattle as being unlawful. 86On 16 September 2013, the applicant's solicitor wrote to the respondent confirming the applicant's position and advising that the applicant would be seeking review of the respondent's decision by the Administrative Decisions Tribunal. That application was made on 30 September 2013 and in addition to seeking review of the decision to impound the cattle, the applicant sought a stay of the decision to impound his cattle. That application was settled prior to the first directions hearing. I understand it was settled on the basis of the applicant paying the respondent a sum of $1,500.00 towards the cost of the cattle being impounded and the his cattle were subsequently released to him. 87As noted above, under subsection 38(6) of the Impounding Act, the respondent is given express power to release the cattle pending the determination of an application for review. 88Why the cattle were impounded for as long as they were is difficult to understand. On the basis of the correspondence from the respondent to the applicant, I assume the respondent took the position that it could not release the cattle until the applicant had paid all outstanding the fees and charges as at the time they were released. These fees and charges accumulating on a daily basis ($40 for feed and $45 for agistment per day). 89If I am correct, then in my view the respondent has misconstrued section 23 of the Impounding Act. As I have noted subsection 23(1) makes provision for an application to the impounding authority that the impounded item be released. Subsection 23(2) sets out the circumstances where the impounding officer must release the item. The first circumstance being where the impounding authority is satisfied that the applicant is the owner of the item. This is followed by all fees, charges and penalties having been paid. 90In my view, this subsection should not be construed in a manner that prohibits an impounding authority from releasing an item to an identified owner before all fees and charges have been paid. Provision is made in section 27 of the Impounding Act for these fees and charges to be a debt owing to and recoverable by the impounding authority. The inference being that items can be released prior to the fees and charges being paid. It is of course a matter lying within the discretion of the impounding authority to be exercised in accordance with what the circumstances of the case before them. 91In this case, I do not propose to make a final finding as to whether the applicant's cattle might have been released, as this was not a matter fully argued before me. However, I would indicate that my preliminary view is that they could and should have been released much earlier that they were released. Conclusions 92For the reasons set out above I have found that the respondent's decision to impound the applicant's cattle was unlawful. On this basis no fees or charges can be imposed and what has been paid should be refunded. 93The orders the Tribunal can make on a review application are set out in subsection 63(3) of the Administrative Decisions Tribunal Act 1997 (as it applied prior to 1 January 2014). These are as follows: 63 Determination of review by Tribunal (1) ... (2) ... (3) In determining an application for the review of a reviewable decision, the Tribunal may decide: (a) to affirm the reviewable decision, or (b) to vary the reviewable decision, or (c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or (d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. 94Having regard to my findings above, the appropriate orders are to: (1)set aside the decision of the respondent to impound the applicant's cattle; and (2)set aside the decision of the respondent to impose $8,060.00 in fees and charges; and (3)order that the respondent repay the applicant an amount of $1,500.00. ********** 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: 26 September 2014