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. Consideration Jurisdiction of the Tribunal 1. The Tribunal was established by the Civil and Administrative Tribunal Act 2013 (CAT Act). The objects of the CAT Act include enabling the Tribunal to review decisions made by certain persons and bodies and to ensure that the Tribunal's processes are open and transparent (s. 3(b)(ii) and (f)). 2. Part 3 of the CAT Act is entitled 'Jurisdiction of Tribunal'. The following are excerpts from the Act concerning the Tribunal's jurisdiction: 28 Jurisdiction of Tribunal generally (1) The Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation. (2) In particular, the jurisdiction of the Tribunal consists of the following kinds of jurisdiction: (a) the general jurisdiction of the Tribunal, (b) the administrative review jurisdiction of the Tribunal, (c) the appeal jurisdiction of the Tribunal (comprising its external and internal appeal jurisdiction), (d) the enforcement jurisdiction of the Tribunal. 29 General jurisdiction (1) 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. …. (5) Nothing in this section permits general jurisdiction to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by another Act. 30 Administrative review jurisdiction (1) The Administrative Decisions Review Act 1997 provides for the circumstances in which the Tribunal has administrative review jurisdiction. The Tribunal also has the following jurisdiction in proceedings for the exercise of its administrative review 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, the Administrative Decisions Review Act 1997 or enabling legislation in connection with the conduct or resolution of such proceedings. … 31 External appeal jurisdiction of Tribunal (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). … (6) Nothing in this section permits external appeal jurisdiction to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by another Act. 32 Internal appeal jurisdiction of Tribunal (1) The Tribunal has internal appeal jurisdiction over: (a) any decision made by the Tribunal in proceedings for a general decision or administrative review decision, and (b) any decision made by a registrar of a kind that is declared by this Act or the procedural rules to be internally appealable for the purposes of this section. … 33 Enforcement jurisdiction of Tribunal (1) The enforcement jurisdiction of the Tribunal is comprised of: (a) the functions of the Tribunal when dealing with an alleged or apparent contempt of the Tribunal, and (b) the functions of the Tribunal when dealing with an application under section 77 for a contravention of a civil penalty provision of this Act. … 1. The above excerpts from the CAT Act confirm the accuracy of the information provided to the Applicant in the first paragraph of the Tribunal's letter of 26 February reproduced at [4] above. That is, the Tribunal's powers are limited to where jurisdiction has been conferred or imposed on the Tribunal by either the CAT Act or by some other enabling legislation. 2. The Applicant provided an excerpt from the Tribunal web-site as to the NCAT jurisdiction table as at 4 December 2013. That excerpt stated: "the Schedules to the NCAT Act provide: the functions of the Tribunal in relation to the following legislation are allocated to the Division." The LG Act was identified as a relevant piece of legislation. The Applicant appears to have assumed that the Tribunal had plenary power to consider and determine all alleged breaches of the LG Act. This assumption is not correct. As stated in s. 28 of the CAT Act it is necessary to consider relevant legislation to determine which jurisdiction and functions have been conferred or imposed on the Tribunal. 1. A consideration of the LG Act shows that the Act has expressly granted certain jurisdiction and functions to the Tribunal. Examples from Chapters 13 and 14 of the Act include: Chapter 13 How are councils made accountable for their actions? Part 5 Inquiries, reviews and surcharging Division 2 Surcharging 437 Applications for administrative review by NCAT (1) A person who is surcharged under this Division may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision to surcharge. (2) The council must give effect to any decision of the Tribunal on an administrative review of the decision to surcharge. Chapter 14 Honesty and disclosure of interests Part 3 Complaints concerning non-disclosure Division 2 Proceedings before NCAT—pecuniary interest matters 469 NCAT to decide whether or not to conduct proceedings into a complaint (1) After considering a report presented to it in relation to a complaint, the Civil and Administrative Tribunal may decide to conduct proceedings into the complaint. (2) If the Civil and Administrative Tribunal decides not to conduct proceedings into a complaint, it must provide a written statement of its decision, and the reasons for its decision: (a) to the person against whom the complaint was made, and (b) to the person who made the complaint, and (c) to the Director-General. (3) (Repealed) Division 3 Proceedings before NCAT—misconduct matters 470A NCAT to decide whether or not to conduct proceedings into a referred matter relating to misbehaviour (1) After considering a report presented to it under section 440J in relation to a referred matter, the Civil and Administrative Tribunal may decide to conduct proceedings into the matter. (2) If the Civil and Administrative Tribunal decides not to conduct proceedings into a referred matter, it must provide a written statement of its decision, and the reasons for its decision: (a) to the councillor to whom the report relates, and (b) to the council concerned, and (c) to the Director-General. Division 4 Proceedings before NCAT—general provisions 486A Exclusive jurisdiction of NCAT over Part 2 contraventions (1) The Civil and Administrative Tribunal has exclusive jurisdiction at first instance to decide allegations of contraventions of Part 2 of this Chapter. (2) Accordingly, proceedings at first instance to decide allegations of contraventions of Part 2 of this Chapter may not be brought before, or entertained by, any other tribunal or any court. 1. The Application states that the Applicant relies on LG Act s. 650 (6) and (7) and submits that the Tribunal declare that the Notice issued by the Council is invalid on the grounds that it was unlawfully issued. Subsections (6) and (7) are set out in full at [37] below. They do not refer to the Tribunal. They provide that the owner of any private land may enter into an agreement with a council under which the land or any part of the land is set aside for use as a free parking area, and that it is the duty of the Director-General to establish guidelines to be followed by councils in relation to relevant agreements. Statutory procedure to challenge penalty notices 1. Relevant legislation for review of parking penalty notices is set out below: Local Government Act 1993 Dictionary free parking area means any area of public land (other than a public road) for the accommodation of vehicles without payment of a fee or charge, and includes any area of land the subject of an agreement referred to in section 650 (6) Chapter 16 Offences Part 5 Parking 650 Free parking areas (1) The driver of a vehicle parked in a free parking area otherwise than as permitted by a notice or sign erected by the council is guilty of an offence. 651 Liability of vehicle owner for certain offences (1) This section applies to any offence against section …. 650 (1) or … that arises from the parking of a vehicle, in this section referred to as a parking offence. (2) The owner of a vehicle with respect to which a parking offence is committed is, by virtue of this section, guilty of the offence as if the person were the actual offender, unless: (a) if the offence is dealt with by penalty notice, the owner satisfies a prescribed officer that the vehicle was, at the relevant time, a stolen vehicle or a vehicle illegally taken or used, or (b) in any other case, the court is satisfied that the vehicle was, at the relevant time, a stolen vehicle or a vehicle illegally taken or used. Road Transport Act 2013 195 Penalty notices for certain offences (1) A police officer or other authorised officer may serve a penalty notice on a person if it appears to the officer that the person has committed any of the following offences: … (c) an offence against section 650 (1) or …. of the Local Government Act 1993 (including an offence by virtue of the operation of section 651 of that Act), Road Transport (General) Regulation 2013 122 Penalty notice offences (1) For the purposes of section 195 of the Act: (a) each offence: (i) that is created by a provision specified in Column 1 of Schedule 5, and (ii) for which an amount of penalty is specified in Column 3 of Schedule 5, is declared to be a penalty notice offence, and (b) the authorised officers for such an offence are officers of the class or classes specified in relation to the offence in Column 2 of Schedule 5, and (c) subject to subclause (2), the prescribed penalty for such an offence is the amount of penalty specified in relation to the offence in Column 3 of Schedule 5. (2)… (3)… (4) Despite subclause (1) (b): (a) an authorised officer who is an officer or employee of a council may exercise the functions of an authorised officer only within the local government area of that council, and … Schedule 5 Penalty notice offences (Clause 122) Local Government Act 1993 Column 1 Column 2 Column 3 Provision Authorised officer Penalty Section 650 (1) (in relation to a notice or sign referred to in section 650 (2) (a) or (b)); Section 650 (4); Section 650 (5) Class 1, 6, 7, 12 Level 2 Definitions of 'authorised officer' and 'penalty' are found in the Regulation. 1. The Fines Act expressly provides for persons affected by penalty notices to seek a review of the decision to issue the notice. A summary of the penalty notice procedure is set out in s. 19 of the Fines Act. The details of the procedure to be followed by a person alleged to have committed a relevant offence are set out in subsequent sections of that Act including: Section 23A which provides conditions under which a person may elect to have a matter dealt with by a court; and Section 24A which provides that an application may be made by or on behalf of any person for a review of the decision to issue a penalty notice in respect of the person. That section sets out the procedure to be followed in making the application. 1. Extracts from sections 19, 23A and 24A of the Fines Act are below: Division 1 – Summary of penalty notice procedure 19 Summary of penalty notice procedure (1) The following is a summary of the penalty notice procedure under this Part: (a) A person is alleged to have committed an offence under a statutory provision for which a penalty notice may be issued… (a1) The appropriate officer determines whether to issue a penalty notice or whether an official caution would be more appropriate… (b) If it is determined that it is not appropriate to give an official caution, a penalty notice is issued under the relevant statutory provision. The notice requires payment of a specified monetary penalty, unless the person alleged to have committed the offence elects to have the matter dealt with by a court… (b1) A reviewing agency may conduct a review of the decision to issue the penalty notice. If a review is conducted, the agency may withdraw the penalty notice or confirm the decision and issue a penalty reminder notice ... (c) If the penalty is not paid, a penalty reminder notice is issued. The person who is alleged to have committed the offence may elect to have the matter dealt with by a court … (d) If payment of the specified monetary penalty is not made and the person does not elect to have the matter dealt with by a court, a penalty notice enforcement order may be made against the person … (e)… (f) A penalty notice enforcement order may, on application, be annulled by the Commissioner or, if the Commissioner refuses the application, by the Local Court. If the order is annulled, the alleged offence is to be heard and determined by the Local Court (see Division 5). (2) This section does not affect the provisions of this Part that it summarises. 23A Person may elect to have matter dealt with by court (1) A person alleged to have committed or to be guilty of the offence to which a penalty notice relates: (a) has the right to elect to have the matter dealt with by a court instead of under the statutory provision providing for the issue of the penalty notice, and (b) may make that election… Division 2A – Internal review 24A Application for review of penalty notice (1) An application may be made by or on behalf of any person for a review of the decision to issue a penalty notice in respect of the person. (2) An application for a review: (a) is to be made in writing to the issuing agency for the penalty notice or to the Commissioner (if the fine under the penalty notice is payable to the Commissioner), and (b) is to include the mailing address of the applicant and the grounds on which the review is sought… 1. None of the statutory provisions in relation to the procedure to seek either a review of the decision to issue the penalty notice or to elect to have the matter dealt with by a court provide any power to the Tribunal to review the decision to issue the penalty notice. Applicant's submissions as to jurisdiction of the Tribunal under the LG Act 1. As noted at [9] above the Applicant submitted that sections 439, 470, 486, 486A, 650, 672, 674 and 676 and Chapter 17 of the LG Act empowered the Tribunal to provide the relief he sought. Each of those provisions is dealt with below as are certain other provisions of the LG Act. 2. Section 439 states: 439 Conduct of councillors, staff, delegates and administrators (1) Every councillor, member of staff of a council and delegate of a council must act honestly and exercise a reasonable degree of care and diligence in carrying out his or her functions under this or any other Act. (2) Although this section places certain duties on councillors, members of staff of a council and delegates of a council, nothing in this section gives rise to, or can be taken into account in, any civil cause of action. (3) This section applies to an administrator of a council (other than an administrator appointed by the Minister for Primary Industries under section 66) in the same way as it applies to a councillor. 1. Chapter 14 encompasses sections 439 to 490B of the LG Act. Section 439 is found within Division 1 of Part 1 of Chapter 14. It provides for councillors, members of staff of a council and delegates of a council to act honestly and exercise a reasonable degree of care and diligence in carrying out their functions. The section does not refer to the Tribunal. 2. Section 440J enables the Director-General to refer allegations of misconduct by a councillor to the Tribunal for consideration. There is no evidence before the Tribunal of any relevant referral. 3. Section 440L provides that a councillor against whom disciplinary action is taken by the Director-General may appeal to the Tribunal against the decision of the Director-General to take disciplinary action. If there is an appeal the Tribunal has certain powers in relation to the decision by the Director-General. There is no evidence of any relevant appeal. 4. Part 2 of Chapter 14 (sections 441 to 459) relates to duties of disclosure of pecuniary interests. Part 3 (sections 460 to 486A) relates to complaints concerning relevant non-disclosure and investigation of those complaints. Section 465 requires the Director-General to notify the Tribunal of a decision to investigate a relevant complaint or to refer a complaint for investigation to an authority and s. 468 requires the Director-General to present a report of an investigation to the Tribunal. There is no evidence of any relevant investigation or report. 5. Section 470 states: 470 Circumstances in which NCAT may dispense with hearing (1) After considering the report of the Director-General and any other document or other material lodged with or provided to the Tribunal, the Civil and Administrative Tribunal may determine the proceedings without a hearing if: (a) the person who made the complaint and the person against whom the complaint is made have agreed that the proceedings may be determined without a hearing, and (b) there are no material facts in dispute between the person who made the complaint and the person against whom the complaint is made, and (c) in the opinion of the Tribunal, public interest considerations do not require a hearing. (2) (Repealed) 1. Section 470 is within Part 3 of Chapter 14. There is no evidence of any relevant non-disclosure or report in relation to issuing the Notice. Accordingly the section has no relevance to the Application. 2. Section 486 states: 486 Referral of matters by NCAT Despite section 489 (1) and (1A), the Civil and Administrative Tribunal may refer a matter before it under this Act to an authority if it considers that it is more appropriate that the authority deal with the matter and if the authority agrees to the referral. 1. In the June letter the Applicant stated: If NCAT believe that it does not have the ability under LGA 1993 to declare the penalty notice issued to me by the QCC invalid, or is not best placed organisation to review Councils administrative compliance (my allegations of maladministration and misconduct), under its governance role; then it has the option to forward this to the appropriate organisation to do so (Section 486), with recommendations and request a report accordingly. 1. Section 486, as with all other sections of the LG Act must be read in the context in which it appears. Section 486 is in Part 3 of Chapter 14 of the LG Act. In that context s. 486 provides that the Tribunal may refer matters which are properly before it to an authority if it considers that it is more appropriate that the authority deal with the matter and the authority agrees with the referral. In so far as the Tribunal has not received notification of any relevant investigation the powers of referral do not apply to matters concerning the Notice. 2. Section 486A states: 486A Exclusive jurisdiction of NCAT over Part 2 contraventions (1) The Civil and Administrative Tribunal has exclusive jurisdiction at first instance to decide allegations of contraventions of Part 2 of this Chapter. (2) Accordingly, proceedings at first instance to decide allegations of contraventions of Part 2 of this Chapter may not be brought before, or entertained by, any other tribunal or any court. 1. This section provides that the Tribunal will have exclusive jurisdiction over Part 2 contraventions. Part 2 of Chapter 14 relates to duties of disclosure by designated persons where the exercise of functions of that person could give rise to a conflict between that person's duties in relation to the council and the person's private interest. There is no evidence that this section is relevant to the Notice. 2. Section 650 states: 650 Free parking areas (1) The driver of a vehicle parked in a free parking area otherwise than as permitted by a notice or sign erected by the council is guilty of an offence. Maximum penalty: 5 penalty units. (2) The terms of any such notice or sign may relate to any one or more of the following: (a) the time during which the public may use the free parking area, (b) the maximum period for which a vehicle may be parked in the free parking area (or in any part of the free parking area), (c) the designation of a parking space within the free parking area as a space for the sole use of persons with disabilities. (3) For the purposes of this section, a vehicle parked otherwise than as permitted by such a notice or sign includes a vehicle parked in a parking space designated as a space for the sole use of persons with disabilities, unless: (a) a parking authority for a person with disabilities is displayed on the vehicle in the manner specified in the authority, and (b) the conditions specified in the authority are being observed, and (c) the authority is in force. (4) If spaces in which a vehicle may be parked in a free parking area are marked by the council (for example, by means of painted lines or by studs, pads or plates), a person must not cause a vehicle to be parked in a free parking area: (a) otherwise than in such a parking space, or (b) in a parking space in which another vehicle is parked, or (c) so that any part of the vehicle is on or across (or partly on or across) any line, stud, pad, plate or other mark defining the space or so that the vehicle is not wholly within the space. Maximum penalty: 5 penalty units. (5) The driver of a vehicle in a free parking area must at all times observe and comply with any reasonable direction of any authorised person regarding the parking or movement of the vehicle within the area. Maximum penalty: 5 penalty units. (6) The owner of any private land may enter into an agreement with the council under which the land, or any part of the land, is set aside for use as a free parking area. (7) It is the duty of the Director-General to establish guidelines to be followed by councils in relation to agreements of the kind referred to in subsection (6), including guidelines as to: (a) the circumstances in which a council may enter into such an agreement, and (b) the matters for which such an agreement must or must not make provision, and (c) the exercise by a council of any functions conferred on it by such an agreement. 1. Section 650 relates to parking in free parking areas, obligations of drivers of vehicles which park in such areas, agreements which may be made between the owner of private land and the relevant council and certain duties of the Director-General. That section does not empower the Tribunal to deal with penalty notices issued in relation to parking in free parking areas. 2. Section 672 is in Part 1 of Chapter 17 "Enforcement". The introduction to the Chapter states "Part 1 of this Chapter provides means for enforcing the Act in addition to the summary prosecution of offences under Chapter 16." Section 672 sets out the meaning of a breach of the Act. It gives no power to the Tribunal. 3. Section 673 states: 673 Remedy or restraint of breaches of this Act—the Minister, the Director-General and councils (1) The Minister, the Director-General or a council may bring proceedings in the Land and Environment Court or such other court as may be specified in this Act for the purpose of the proceedings for an order to remedy or restrain a breach of this Act. (2) Subsection (1) does not apply in relation to an alleged contravention of Part 2 (Duties of disclosure) of Chapter 14 (Honesty and disclosure of interests). Note. Section 486A confers exclusive jurisdiction on the Civil and Administrative Tribunal to deal with such a matter at first instance. 1. Section 673 (1) provides that the Minister, the Director-General or a council may bring proceedings in various courts. This is not relevant to the Tribunal. Section 673 (2) provides that s. 673 (1) does not apply in to an alleged contravention of Part 2 of Chapter 14. I have dealt with Part 2 of Chapter 14 in my consideration of s. 486A above and found that it is not relevant to the Notice. 2. Section 674 states: 674 Remedy or restraint of breaches of this Act—other persons (1) Any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of this Act. (2) The proceedings may be brought by a person on the person's own behalf or on behalf of the person and on behalf of other persons (with their consent), or a body corporate or unincorporated (with the consent of its committee or other controlling or governing body), having like or common interests in those proceedings. (3)… (4) Subsection (1) does not apply in relation to an alleged contravention of Part 2 (Duties of disclosure) of Chapter 14 (Honesty and disclosure of interests). Note. Section 486A confers exclusive jurisdiction on the Civil and Administrative Tribunal to deal with such a matter at first instance. (5) Subsection (1) does not apply in relation to anything done or omitted to be done under Division 3 of Part 1 of Chapter 14. 1. Section 674 provides that any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of the LG Act. That section does not provide any power to the Tribunal. 2. The Applicant referred to what he described generally as the applicability of Chapter 17 and "the right to appear before the Tribunal". Chapter 17 comprises sections 672 to 733 of the LG Act. The introduction to the Chapter states: Division 1 of Part 2 relates to functions of a council in relation to legal proceedings. Examples of these functions include… the right to appear before the Tribunal. 1. Part 2 is entitled "Proceedings by the Council or its employees". Division 1 extends from s. 682 to s. 696. I have found no reference to the Tribunal in those sections although there are references as to who may represent the council in proceedings in court for certain matters. In my consideration of the whole of Chapter 17 the only references I located to the Tribunal are in the introduction to the Chapter and the notes in sections 673 and 674. The wording concerning the Tribunal is set out at [40], [42] and [44] above. 2. I find that Chapter 17 of the LG Act does not provide any right for the Applicant to appear before the Tribunal. 3. The Applicant stated in the March letter that he had sought and received legal advice which was to the effect "that the declaration of invalidating the penalty notice on the grounds it was unlawfully issued – is an NCAT matter". As no submissions were received from any lawyers acting on behalf of the Applicant I am unaware of their reasoning for any such advice and cannot take same into account. 4. The Applicant also stated in the March letter than an officer of the Council had informed a councillor that the issue brought before the Tribunal was an NCAT matter. I observe firstly that there is no evidence from the councillor or the officer that this is the Council's position and it is contrary to the written submission from the lawyers representing the Council. Secondly I observe that even if both the Council and the Applicant sought to confer jurisdiction on the Tribunal to determine the legality or otherwise of the Notice, they have no power to do so as jurisdiction can only be conferred by legislation (s.28(1) of the CAT Act). Decision 1. I accept that the Applicant has expressed serious concerns regarding the Council's operations in respect of free parking areas, the imposition of penalties regarding vehicles parked in such areas and administrative actions by the Council in relation to issues raised by the Applicant with the Council. However having regard to my above findings, the correct and preferable decision on the material before me is that the Tribunal has no jurisdiction to review or consider an appeal against the issuing of the Notice nor jurisdiction to refer the matter to any authority. Order 1. The application is dismissed for want of jurisdiction. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar ********** 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: 12 October 2015