Martin v Queanbeyan City Council [2015] NSWCATOD 110

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Martin v Queanbeyan City Council [2015] NSWCATOD 110 Hearing dates: On the papers Date of orders: 12 October 2015 Decision date: 12 October 2015 Jurisdiction: Occupational Division Before: N S Isenberg, Senior Member Decision: The application is dismissed for want of jurisdiction. Catchwords: Jurisdiction – Local Government Act 1993 – Fines Act 1996 – extent of Tribunal's jurisdiction Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Fines Act 1996 Local Government Act 1993 Category: Procedural and other rulings Parties: Daniel Martin (Applicant) Queanbeyan City Council (Respondent) Representation: D Martin (Applicant in person)

Solicitors: Baker Deane & Nutt (Respondent) File Number(s): 1520059

Reasons for decision 1. These reasons provide the basis for the Tribunal's decision as to whether or not the Tribunal has jurisdiction to deal with the substantive application by Mr Martin, the details of which are set out below.

Background 1. On 21 August 2012 an Electronic Penalty Notice (the Notice) was issued in respect of an alleged parking offence. The Notice includes the following details: 1. Inf Type: "Council Free Car Parks"; 2. Suburb Of Offence: Queanbeyan; 3. Issuing Authority: QCC; 4. Short Title Of Offence: "Stand vehicle in area when closed to public"; 5. Notes: "NO PERMIT VISIBLE STOOD BETWEEN SIGNS Woolworths staff area no permit displayed Vehicle unattended Witnessed by Ranger" (surname inserted) 1. On 26 February 2015 the Tribunal received an application from the Applicant seeking to have the Notice declared invalid on the grounds it was unlawfully issued. A covering letter included the following: I have pursued this matter from the very beginning - Aug 2013 – SDRO / OSR / CEO OSR / QCC / DLG / OLG / CEO OLG / Ministers Local Member / ICAC and finally back to the new Acting General Manager QCC. There has been a concerted effort to stonewall the provision of information (Compliant Agreement with Owners) and other information sought by me from the outset… 1. The Tribunal replied to the Applicant on 26 February and informed him: The jurisdiction of the Civil and Administrative Tribunal… to review decisions of public sector agencies or make other orders is limited to the power conferred on the Tribunal. This power is set out in the relevant New South Wales legislation. The Tribunal does not have overall jurisdiction to review all matters, nor to investigate issues or deal with complaints concerning government agencies. I now return your application including the attachments… You may wish to seek independent legal advice… 1. On 31 March 2015 the Applicant filed with the Tribunal a General Application Form (the Application) in the Tribunal's Occupational Division. The Application states that the legislation in respect of which the Application was made is "LGA-650 (6 & 7) & LGA-650 (7) Guidelines Section 6 & 7". 2. The orders sought by the Applicant were "Requested that Penalty Notice (parking) No … dated 21 Aug 2012, issued by QCC is Declared invalid on the grounds it was unlawfully issued..". The Application also requested a reimbursement of out-of-pocket expenses and "compounding Interest". 3. In summary the Grounds for Application to the Tribunal were "QCC has been issuing Penalty Notices (Parking) at the Woolworths car park at Queanbeyan since at least Mar 2001, up until the present time Without the Compliant Agreement of the Owners, as they are required to obtain iaw LG650." The Applicant made other allegations including that Queanbeyan City Council (the Council): 1. breached LGA650(7) by failing to provide documents "due to third-party release and commercial sensitivities"; 2. threatened to remove his Driver's Licence; 3. failed to provide full information to him; 4. covered up the matter; 5. continued "issuing Penalty Notices without a Compliant LOA at this car park"; and 6. hides its non-compliance and behaviour. 1. The documents provided by the Applicant indicate that there have been substantial communications between the Applicant on the one hand and the Council and its solicitors on the other and the matter has been raised in at least one meeting of the Council. The documents include a letter from the Applicant to the Tribunal dated 25 March 2015 (the March letter) which states amongst other matters: The NCAT response (dated 26 February 2015) "appears very vague as to the reasons for rejecting the submission. This response also appears to be the standard template that NCAT use, when it rejects an application. It is unclear if NCAT is stating that they do not have jurisdiction or they do not wish to investigate the matter. I request clarification as to the reasons for NCAT's rejection of the submission. 1. The March letter then sets out the Applicant's submissions as to the Tribunal's jurisdiction. Specific references are made to the Tribunal's web site which the Applicant states provides that legislation under the Tribunal's jurisdiction includes LGA 1993. It is my understanding that the Applicant's references to LG and LGA are to the Local Government Act 1993 (LG Act) and references to QCC are to the Council. The March letter and other communications from the Applicant include references to sections 439, 470, 486, 486A, 650, 672, 674 and 676 and Chapter 17 of the LG Act. The Applicant submitted that each of these provisions enable the Tribunal to provide the relief he seeks. 1. The Respondent is represented by solicitors who have submitted to the Tribunal that the Notice was issued under the Fines Act 1996 rather than under the LG Act, and that the review process for an aggrieved person in respect of a dispute arising under Fines Act includes the dispute being dealt with by a court and not by the Tribunal. In summary the Respondent's position is that the Tribunal has no jurisdiction to deal with matters arising from the issue of the Notice 2. On 12 May 2015 the Tribunal directed the parties to file submissions and any evidence on which they intended to rely and set the matter down for determination on the papers as to whether the Tribunal had jurisdiction to deal with the Application. 3. By letter dated 11 June 2015 (the June letter) the Applicant submitted: 1. his allegations are that the Respondent's maladministration and misconduct affected the wider community of Queanbeyan, had done so for many years and continued to the date of his letter. That "maladministration and misconduct falls firmly with NCATs jurisdiction (sic)"; 2. the jurisdiction of the former Local Government Pecuniary Interest and Disciplinary Tribunal in relation to counsellor misconduct and breaches of the pecuniary interest provisions of the LG Act had been referred to the Tribunal; 3. the then Acting General Manager of the Respondent stated at a meeting on 14 January 2015 that he did not want the matter going to the Tribunal and a person appointed by the Council to investigate his superiors in a different complaint stated to a counsellor that "this was an NCAT matter"; 4. the Council continued to issue penalty notices in private car parks between January and March 2015 without a relevant agreement with the owners of the car parks; 5. section 439 of the LG Act requires counsellors staff delegates and administrators to act honestly and exercise a reasonable degree of care and diligence in carrying out their functions under relevant legislation; 6. in accordance with s. 486 NCAT could refer the matter to the Director General to investigate and provide a thorough/fall report back to NCAT and that after considering such a report in accordance with s. 470 NCAT may dispense with a hearing; and 7. referred to sections 672, 674, 676 in relation to persons bringing proceedings in the Land and Environment Court. 1. The June letter submitted that the Tribunal needed to deliberate who was the best fit for dealing with breaches of the LG Act and the Applicant's allegations of maladministration and gross misconduct. The letter also stated that there were ample grounds for the matter to be referred to the Director of Public Prosecutions.