Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Denny v Commissioner of Police, NSW Police Force [2019] NSWCATAD 18 Hearing dates: 28 May 2018, 23 July 2018, 16 August 2018, 28 August 2018, 10 September 2018, 17 September 2018, 24 September 2018. Date of orders: 14 January 2019 Decision date: 14 January 2019 Jurisdiction: Administrative and Equal Opportunity Division Before: S Montgomery, Senior Member Decision: In matter No. 201800161488 (1) The decision to impound the animals and articles was lawful and is affirmed. (2) The decision to impose fees or charges for release of the impounded animals and articles is to be varied so as to not include: (a) charges imposed in relation to the care for the horses such as drenching, manes clipping and trimming of hooves; or (b) charges imposed in relation to the veterinary care for the horses. (3) The decision to impose fees and charges is otherwise affirmed. In matter No. 201800161629 (1) The decision to impound the animals and articles was lawful and is affirmed. (2) The decision to impose fees or charges for release of the impounded animals and articles is to be varied so as to not include: (a) charges imposed in relation to the impounding of the stockyards; (b) charges imposed in relation to the care for the horses such as drenching, manes clipping and trimming of hooves; or (c) charges imposed in relation to the veterinary care for the horses. (3) The decision to impose fees and charges is otherwise affirmed. (4) The stockyards are to be released to Mr Targett, free of all impounding fees. In matter No. 201800161523 (1) The decision to impound the animals and articles was lawful and is affirmed. (2) The decision to impose fees or charges for release of the impounded animals and articles is to be varied so as to not include: (a) charges imposed in relation to the care for the horses such as drenching, manes clipping and trimming of hooves; or (b) charges imposed in relation to the veterinary care for the horses. (3) The decision to impose fees and charges is otherwise affirmed. In matter No. 201800161619 (1) The decision to impound the animals and articles was lawful and is affirmed. (2) The decision to impose fees or charges for release of the impounded animals and articles is to be varied so as to not include: (a) charges imposed in relation to the care for the horses such as drenching, manes clipping and trimming of hooves; or (b) charges imposed in relation to the veterinary care for the horses. (3) The decision to impose fees and charges is otherwise affirmed. Catchwords: Administrative Law – Impounding Act – whether applicant has standing - whether impounding lawful – whether fees and charges properly charged - whether fees and charges excessive Legislation Cited: Impounding Act 1993 Civil and Administrative Tribunal Act 2013 Administrative Decisions Review Act 1997 Cases Cited: Nil Texts Cited: Macquarie Dictionary(Sixth Edition) Category: Principal judgment Parties: Janice Denny (First Applicant) Garry Targett (Second Applicant) Jamie Power (Third Applicant) Sue-Anne Clarke (Fourth Applicant) Commissioner of Police, NSW Police Force (First Respondent) State of NSW (Second Respondent) Representation: Counsel: A Rider (Respondents) Solicitors: J Denny (Self Represented)(First Applicant) G Targett (Self Represented) (Second Applicant) J Power (Self Represented) (Third Applicant) S Clarke (Self Represented) (Fourth Applicant) Crown Solicitor's Office (Respondents) File Number(s): 2018/00161488; 2018/00161629; 2018/00161523; 2018/00161619 Publication restriction: Nil Reasons for Decision Introduction 1. These matters concern applications by Ms Janice Denny, Mr Garry Targett, Ms Sue-Anne Clarke and Mr Jamie Power (collectively "the Applicants") who have each applied to the Tribunal for review of a decision under the Impounding Act 1993 ("the Act"). The decisions concern the impounding of animals and articles that took place in December 2017 and the imposition of fees or charges in relation to the release of those animals and articles. The animals involved include horses, cattle and sheep. The articles include portable steel stock yards and portable loading ramp, steel gates and various items relating to the handling and feeding of horses such as ropes and halters and water and food containers. 2. The Applicants contend that the impounding was unlawful and that fees or charges have been improperly charged and are excessive. 3. It is not in dispute that animals and articles were removed from the Candelo Common ("the Common") on 11 and 12 December 2017 and animals were removed from the Crown and private land at Auckland Street, Candelo (DPI 13751) ("the Auckland Street property") on 12 December 2017. It appears that some items, including mobile yard panels and loading ramp, were removed from a gazetted road adjacent to the Common. 4. The removal appears to have been a joint exercise by the RSPCA, the Bega Valley Shire Council ("the Council"), Crown Lands, NSW Police and Local Land Services ("the LLS"). It seems that this joint exercise arose because of ongoing complaints about Ms Denny's animals trespassing and straying in the Candelo and Tantawangalo areas and complaints about neglect of some of those animals. Previous efforts to have the animals removed had been unsuccessful. In November 2017 livestock and yards were observed on the Candelo Common. 5. Crown Lands as the "impounding authority" formally requested NSW Police to act as the "impounding officers" to impound livestock trespassing on the Candelo Common and Crown Lands. The owner of private land in Auckland Street, Candelo also requested NSW Police to impound livestock trespassing on the land. The Tribunal's jurisdiction 1. Part 6 of the Act sets out the basis for applications to the Tribunal in regard to impounded items. It provides: Part 6–Applications to Civil and Administrative Tribunal 38 Owner of impounded item can apply to Civil and Administrative Tribunal for administrative review (1) The owner of an impounded item may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 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 Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 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 Civil and Administrative Tribunal. (4) If notice of intention to apply to the Civil and Administrative Tribunal is given, the authority must not sell or otherwise dispose of the impounded item until the time limit for an application has expired or until it has been notified that any application made has been refused or withdrawn. (5) This section does not affect section 22 (Injured, diseased or distressed animals can be destroyed). (6) An impounding authority may release an impounded item pending the determination of an application. The release of an impounded item does not affect any right of recovery that the impounding authority may have under this Act. 39 Time limit for applications (1) (Repealed) (2) The time limit for making an application for an administrative review of an impounding decision is 28 days from the date on which impounding was notified. (3) However, if the owner of an impounded item is not notified of the impounding of the item, there is no time limit for making an application for an administrative review of the impounding decision. (4) The time limit for making an application for an administrative review of any fee or charge required to be paid for the release of an impounded item is 28 days from the date on which application was made for the release of the impounded item. (5) Nothing in this section affects the operation of section 24. 40 Result of application to Civil and Administrative Tribunal (1) If an application for an administrative review of an impounding decision is dismissed, the applicant is liable for any additional impounding fees incurred up to the time the impounding authority is notified of the decision on the application. (2) If an application for an administrative review of an impounding results in the impounding decision being set aside, the impounding authority must release the impounded item free of all impounding fees and convey it to the applicant at the expense of the authority. 1. Section 63 of the Administrative Decisions Review Act 1997 provides: 63 DETERMINATION OF ADMINISTRATIVE REVIEW BY TRIBUNAL (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. 1. Ms Denny previously commenced applications in relation to these issues (proceedings 2018/9399 and 2018/16157. It became apparent that there were significant defects in those matters. On 20 April 2018 I dismissed Ms Denny's applications under section 55(1)(b) of the Civil and Administrative Tribunal Act 2013 on the basis that the proceedings were misconceived or lacking in substance. 2. Ms Denny's appeal in relation to those decisions was dismissed. Commencement of these proceedings 1. Each of the Applicants was served with a notice of impounding. 2. On 20 April 2018 Ms Denny signed a Notice of intention to apply to the Tribunal in respect of the impounding of cattle and sheep from the Candelo Common on 11 December 2017 and the Auckland Street property, Candelo on 12 December, in total being 21 cattle, 14 sheep and 41 horses. 3. Notices of intention to apply to the Tribunal were provided by the other Applicants on 21 April 2018. 4. Section 38(4) of the Act provides: (4) If notice of intention to apply to the Civil and Administrative 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. 1. On 21 May 2018, the Tribunal's Registry confirmed to the Respondents' solicitor that no new applications had been lodged in respect of the impounding of the animals and articles. This advice was incorrect as valid applications had been lodged through the Services NSW Queanbeyan office. Ms Denny advised the Respondents' solicitor of this lodgement by text message on 20 May 2018. However, the Respondents relied on the information that had been provided by the Tribunal's Registry. 2. On 22 May 2018, the Respondents' solicitor wrote to Ms Denny advising her that arrangements had been made to sell the cattle and sheep by public auction. 3. On 22 May 2018, the impounded sheep and cattle were sold at public auction, purportedly in accordance with section 24(1) of the Act. However, Ms Denny had lodged a valid application prior to the expiry of a 28 day period from the time of her Notice of intention to apply to the Tribunal. She had also advised the Respondents' solicitor of the applications prior to the sale. Accordingly she has questioned whether the sale was in accordance with section 24(1) of the Act. Ms Denny alleges that the cattle and sheep were sold in breach of the Act because notice of intention was served, relevant documents lodged within the required time frame and the Respondents were notified of the lodgement. 4. I do not need to decide this issue of whether the cattle and sheep were sold in breach of the Act. 5. Nevertheless, several issues have arisen for determination in these matters. The Respondents have raised the preliminary issue of whether any of the Applicants have standing to make the applications as the "owner" of any of the impounded animals and articles under the Act. 6. Ms Clarke, Mr Targett and Mr Power assert ownership of various horses. Ms Denny asserts ownership of cattle and sheep. Mr Targett asserts ownership of the stockyards, troughs and related items. Ms Clarke also asserts ownership of other items including a training rope and rope halter and water and food containers. 7. In addition to the stockyards and other articles, Mr Targett's application concerns a Quarter horse X mare and 30 horses that were said to be in his joint care, custody and control with Mr Power. 8. In addition to the articles, Ms Clarke's application concerns two horses which she identified as "Gizelle" and "Casper Jr. 9. Mr Power's application concerns 30 horses which were said to belong to him and which were said to be in his care, custody and control. 10. There are clearly difficulties relating to the identification of the animals that are the subject of these proceedings and proof of their ownership. For the most part, the evidence of ownership is limited to the assertions of the Applicants accompanied by photographs of animals over which they assert ownership. The process of identification has not been assisted by the fact that ownership of most of the animals is not registered in any way, and also by the fact that the Applicants have been denied access to the animals. Many of the animals are the offspring of others that have been removed and as such there is no record of their birth or purchase. If the Applicants had been given access to the animals it may have provided them with some means of establishing bloodlines which could have provided additional support for their evidence regarding the genetic relationships between some of the animals and how their ownership of the animals came about. 11. In the circumstances, I have not got sufficient evidence to establish ownership of each of the animals or articles categorically. However, I am satisfied that it is probably that each of the Applicants is the "owner" of at least one of the impounded animals or articles for the purposes of section 38 of the Act. 12. I am satisfied that it is probable that Ms Denny was the owner of at least some of the cattle and sheep. Ms Clarke either owns the two horses which she identified as "Gizelle" and "Casper Jr" or is in the process of buying them. It is probable that she owns some of the equipment such as lead ropes and halters, and also feed and water containers used for the care of those horses. It is probable that Mr Targett owns the stockyards, troughs and related items. It is probable that Mr Power is the owner of at least some of the 30 horses. 13. I am therefore satisfied that each of the Applicants has standing to bring their application. The difficulty remains, however, that I am unable to determine who owns the majority of the animals. 11 The power to impound 1. The power to impound is governed by sections 9, 10 and 15 of the Act which provide: 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 (within the meaning of Part 8 of the Local Land Services Act 2013) that is unattended on a road or travelling stock reserve, in any circumstances prescribed by section 115 of that Act, (e) in any circumstances prescribed by the regulations for the purposes of this section. 10 Trespassing animals can be impounded An impounding officer may impound an animal that the officer believes on reasonable grounds to be trespassing in a place in the area of operations of the officer (other than a public place). 15 Abandoned and unattended articles can be impounded An impounding officer may impound an article found in the officer's area of operations if the officer believes on reasonable grounds that the article has been abandoned or left unattended. ... [Note: The Local Government Act 1993 gives a council power to order the removal of an object or matter that is causing or likely to cause an obstruction.] 1. The Act defines "unattended", in relation to an animal, to include "abandoned or straying", but does not otherwise define these terms. I agree with the Respondents that the expressions should be given their ordinary meaning. The Macquarie Dictionary defines: "unattended" to include "unaccompanied; with no-one in charge; not taken care of; not heeded or paid attention to"...; "abandoned" to include "forsaken" and "unrestrained"...; "stray" to include "ramble"; "roam"; "found wandering at large or without owner"; and "to go beyond the proper limits"... 1. As a threshold matter it was necessary to determine whether there were reasonable grounds to believe that the animals or articles that were removed from the Common were unattended. Tenure over the Candelo Common 1. At issue is whether Ms Denny had tenure over the Candelo Common. Ms Denny asserted that the Crown Lands Department granted her a "permissive occupancy" of the Candelo Common in about 2005. Ms Denny claims that she was granted the occupancy in return for maintenance of the Common fences and weed and vermin control, and that she has continued to pay rates in regard to that occupation. She claims that her right of occupancy continued and that pursuant to the grant she was entitled to run animals on the Common at the time of the impounding on 11 and 12 December 2017. 2. Ms Denny asserted that she kept the animals and items on the Common on behalf of the other Applicants. 3. There is no suggestion that Ms Clarke, Mr Targett or Mr Power had tenure over the Common at the time of the impounding or at any other time. If they had the right to have animals and items on the Common, it would only have been through any tenure that Ms Denny had over the Common. 4. Ms Denny was unable to produce any evidence in support of her assertion regarding the grant to her of a "permissive occupancy". In contrast, the Respondents produced evidence which indicates that even if there were such a grant, any such occupancy is no longer current. 5. The Respondents rely on the evidence of Mr Gregory Campbell, Senior Team Leader, Compliance and Regulation, North West with the Office of Environment and Heritage. From 2007 until October 2017 Mr Campbell was employed in the position of Compliance Project Officer with the Department of Industry – Lands and was responsible for the investigation of alleged breaches on Crown land. 6. Mr Campbell's evidence was that the Candelo Common is untenured Crown land and had been so since 2006. 7. The Respondents' evidence shows that the Crown ceased granting new "permissive occupancies" over Crown land in New South Wales around 1989. In 2005, the Candelo Common was managed by the Candelo Common Trust, which had an estate in fee simple in the Common. 8. Ms Denny points to LLS correspondence concerning the Annual Return of Land and Stock as at 30 June 2017. That correspondence supports the Respondents' position as it is addressed to "TRUSTEES OF CANDELO COMMON" – not to Ms Denny. 9. There is no suggestion that the Candelo Common Trust granted Ms Denny a right to use the Common. 10. Further, there is no suggestion that any permit had been granted to Ms Denny giving her a right to use or graze stock on the gazetted road adjacent to the Common. 11. Further, the Respondents submit that from 1989 licences granted over Crown land were revocable at will by the Minister. 12. They rely on a letter dated 20 October 2017, Crown Lands which advised Ms Denny that she did not hold any tenure over any Crown land in NSW and ordered her to permanently remove all stock, portable structures and any refuse from Crown land within 14 days. 13. I note that Ms Denny claims she never received that letter. It is not in dispute that there is no evidence of registered mail, no affidavit of service and no evidence of the letter ever being sent or received. 14. Nevertheless, with the exception of Ms Denny's own evidence, there is no evidence to support a finding that she had tenure over the Common at the time of the impounding on 11 and 12 December 2017. On the basis of Mr Campbell's evidence I found that Ms Denny did not have tenure over the Candelo Common at the time of the impounding. 15. The Respondents also rely on the evidence of Detective Senior Constable Clinton Ernest Oxenbridge regarding conversations with Mr Targett and Mr Power concerning removal of the animals and items from the Common. The Respondents also rely on the evidence of Jan Rorie, Mr Christopher Pearson a Council officer, and Mr Campbell regarding conversations with Ms Denny on 25 September 2017 concerning removal of the animals and items from the Common. 16. I am satisfied that even if Ms Denny did not receive the Crown Lands' letter dated 20 October 2017, she had been given notice to remove the animals and items from the Common prior to their removal by the Respondents. 17. I accept that Ms Denny was advised that she would be given reasonable time to remove the stock and items from the Common before the Respondents would act to remove them. In my view, the time between the meeting on 25 September 2017 and the removal of the animals and items from the Common on 11 and 12 December 2017 was reasonable. If Ms Denny did receive the Crown Lands' letter dated 20 October 2017, she would still have had reasonable time to remove the stock and items from the Common. 18. I am satisfied that Ms Denny did not take reasonable steps to remove the animals and items from the Common prior to their removal by the Respondents. Were there reasonable grounds for impounding? 1. At the hearing I found as a fact that there were reasonable grounds for an impounding officer to believe that the animals that were removed from the Common on 11 and 12 December 2017 were unattended. This is because none of the Applicants had the right to use the Common, Ms Denny was advised to remove the animals and items from the Common and she failed to do so. Ms Denny did not own any of the horses. No-one appeared to own, attend to or be in charge of the animals or the items. 2. The Respondents were entitled to remove the animals and items from the Common pursuant to section 9 and 15 of the Act. 3. Part of the Auckland Street property (Lots 1 and 2 in DPI 13751) is owned by Glenn and Kirsty Umbers. There is no suggestion that Ms Denny or any of the other Applicants had any tenure over that part of the Auckland Street property. 4. The Respondents rely on the evidence of Mr Glenn Umbers. Mr Umbers stated that he did not give Ms Denny or any other person permission to graze stock upon the Auckland Street property. He wanted the stock removed. He conceded that he never told Ms Denny to remove horses from the property but stated that they were never meant to be there. Mr Umbers had also spoken about the issue with Helen Schaefer, the District Veterinarian. 5. Detective Senior Constable Oxenbridge gave evidence that he had spoken to Mr Umbers in relation to the removal of animals from the Auckland Street property. Mr Umbers had indicated that he had previously spoken to police about the issue and nothing had happened and that he wanted the stock removed. Prior to the impounding Mr Umbers confirmed that he wanted the stock removed. 6. The Respondents material shows that in December 2017 the remainder of the Auckland Street property comprised: 1. Part of Lot 3 in DP 113751 in Auckland Street, Candelo which was Crown Land and a "public place" managed by LLS as a Travelling Stock Reserve; and 2. Lot 4 in DPI 13751 and the remaining portion of Lot 3 in DPI 13751 in Auckland Street, Candelo which was Crown Land and a "public place" managed by the Council. 1. It is clear from the evidence that Mr Umbers did not give Ms Denny or any other person permission to graze stock upon Lots 1 and 2 of the Auckland Street property and that he had confirmed with Detective Senior Constable Oxenbridge that he wanted the stock removed. Ms Denny did not have any right of use of Lots 3 or 4 of the Auckland Street property. 2. As noted, section 10 of the Act provides that an impounding officer may impound an animal that the officer believes on reasonable grounds to be trespassing. At the hearing I found as a fact that Detective Senior Constable Oxenbridge had reasonable grounds to believe that the animals on the Auckland Street property were trespassing. 3. It follows that the Respondents were entitled to remove the animals and items from the Auckland Street property pursuant to section 10 of the Act. 4. Ms Denny contends that there was no right to impound animals or articles from a gazetted road adjacent to the Common as they were not on common land. I do not agree. The removal was as a result of a joint exercise by the RSPCA, the Council, Crown Lands, NSW Police and the LLS. Pursuant to sections 9 and 15 of the Act, animals unattended in public places can be impounded and abandoned and unattended articles can be impounded. In my view there were reasonable grounds to believe that the animals and articles had been left unattended. 5. It follows that the Respondents were entitled to remove the animals and items from the gazetted road adjacent to the Common. 6. It also follows that the applications must fail insofar as they are based on the contention that the impounding was unlawful. Are the charges reasonable? 1. Section 21 of the Act provides: 21 Care of impounded animals (1) An impounding authority has a duty to ensure that every impounded animal held at its pound: (a) is provided with adequate food, water and veterinary care, and (b) is kept in a place that is well drained and maintained in a clean condition, and (c) is provided with adequate shade for the climatic conditions, and (d) is kept secure, and (e) is separated from other animals that are diseased or, if the animal is or appears to be diseased, is kept separate from other animals. (2) This duty is subject to any power or duty to destroy an animal under this or any other Act. 1. An impounding authority may fix the fees and charges that are to be paid in respect of the impounding and holding of items: see section 26 of the Act. An impounding authority may recover fees and charges as a debt from the person responsible for an impounded item: see section 27 of the Act. 2. Section 23 of the Act 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. 1. The Tribunal may review the Respondents' decisions that all impounding fees and any associated fines must be paid in full before the release of any impounded item. 2. Under section 38(2) of the Act, the owner of an impounded item may apply to the Tribunal for a review of any fee or charge required to be paid for the release of the item, but only on the ground that the fee or charge has been improperly charged or incorrectly calculated or is excessive. The Applicants bear the onus of proof that the fees or charges have been improperly charged, incorrectly calculated or excessive. The Respondents' evidence of costs incurred 1. The Respondents provided a breakdown of the fees and charges incurred in relation to the impounded stock. The information provided included: 1. Invoices in relation to transport, feed and yards 2. Invoices in relation cattle and sheep feed and transport 3. Invoices in relation agistment of horses 4. Invoices in relation various veterinary fees for horses 5. A Council letter of 27 September 2018 regarding the Council's schedule of fees 6. An email from DSC Oxenbridge in relation to LLS lucerne bales 1. The Councils 2018/2019 fees and charges schedule is a public document available on the Council's website. A fee or charge is imposed for a range of services provided by Council. The sustenance fee charged for animals that are impounded under the Act varies depending on the type of animal. Council charge a daily fee of $17.00 per head for horses, $15.00 for cattle and $5 40 for sheep. 2. It is not in dispute that the cattle and sheep that were impounded are no longer held by the Respondents. 3. Invoices provided by the respondents indicate that agistment of the horses was charged at rates varying between $10 and $15 per day. 4. Hay was purchased at varying prices e.g. small bales of lucerne hay varied in price between $12 and $22 per bale. The majority of the hay purchases were at the lower end of this range. 5. Invoices were also included showing expenses incurred in relation to veterinary and other care such as drenching, manes clipping and trimming hooves. No evidence has been provided in support of the need for any of the care provided to the horses. 6. In relation to storage of large articles, where Council incurs cost for storage, Council charges a daily fee of $38.00. In relation to storage of small articles Council charges a daily fee of $11.00. 7. An invoice issued by the Council for storage of portable stock yards charged a daily fee of $34, to a total of $5,780. 8. The Respondents offered to waive impounding fees and release the stock yards to Mr. Targett if he pays $450 - a portion of the total cost of transport of all impounded articles on 11 December 2017. The Applicants' response to the Respondents invoices for costs incurred 1. It is not in dispute that the Applicants asked to be able to remove the animals and articles prior to them being removed from the Common. Nor is it in dispute that this request was refused. On the day of impounding Mr Targett requested to be permitted to take possession of the stockyards and other items which he claimed belonged to him, and he produced a bill of sale for the yards. This request was refused. The Applicants contend that these refusals indicate that the Respondents had no intention to mitigate any costs incurred or being incurred. 2. In relation to the invoiced items for the care of the animals, the Applicants contend that they are all experienced horse handlers and can competently deal with handling, training, hoof care and drenching of the animals. However, they submit that as the animals were removed, they were denied the opportunity to undertake that care of the animals and costs were incurred unnecessarily. 3. In relation to the invoiced items regarding the sustenance of the animals, the Applicants contend that they had alternative properties for the livestock to be held to at no cost for agistment and with private arrangements in place. They say that the properties on which the animals would have been pastured had adequate grass cover to sustain animals and supplementary feed if required. 4. In any event, the Applicants contend that the crown land could have accommodated the occupation of all animals and articles until such time as a formal arrangement was reached to remove all livestock and articles. The land could have been utilised to avoid incurring costs for introduced fodder, agistment, yarding, transport and all other costs associated with moving the animals and articles to private facilities. 5. The Applicants also indicated that they have been able to purchase hay from private sources as follows: 1. $55 large round bales - Pambula 2. $75 large rye/clover mixed bales - Bombala 3. $125 large square oaten bales, $165 large square Lucerne bales, $12-$16.50 small Lucerne and oaten - Bega 4. $10 small Lucerne bale – Nimmitabel 1. In regard to the Respondents' evidence showing that a santa gertrudis cow had been euthanize the Applicants noted that the cow was a healthy animal at the time of the impounding, no veterinary report has been supplied and an independent veterinary inspection was denied. 2. In summary, the Applicants submit that the fees and charges have been improperly charged, incorrectly calculated and are excessive. The receipts provided by the Respondents are irregular, debatable and not properly itemised. They further submit that the animals and articles returned and that all costs should be borne by the Respondents. Discussion 1. As I have noted above, I have previously made findings that the impounding was lawful. The Respondents were entitled to remove the animals and items from the Candelo Common, the gazetted road adjacent to the Common and from the Crown and private land at Auckland Street, Candelo. 2. It is common ground that the impounded sheep and cattle have been sold. This Tribunal has no jurisdiction to deal with issues arising from the sale of those animals. The question of whether or not the sale of the cattle and sheep was in breach of the Act is not relevant to the remaining issues that are to be decided. I do not need to decide this issue. 3. The remaining issues for determination are those brought pursuant to subsection 38(2) of the Act. It provides: (2) The owner of an impounded item may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 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. 1. Subsection 40(2) of the Act provides: (2) If an application for an administrative review of an impounding results in the impounding decision being set aside, the impounding authority must release the impounded item free of all impounding fees and convey it to the applicant at the expense of the authority. 1. There can be no doubt that the impounding decisions were brought to the Applicants attention at the time of the impounding or shortly afterwards. Each of the Applicants was served with a notice of impounding. The Applicants have raised issues in regard to the adequacy of those notices and apparent defects in the notices. These are not issues for determination by the Tribunal. The Tribunal's jurisdiction extends to review of the impounding decisions, not the notices of impounding. 2. As noted, the Respondents have filed invoices in relation to the costs that are said to have been incurred as a result of the impounding. No evidence has been filed to provide any insight into why these costs needed to be incurred. 3. The Applicants contend that the fees or charges have been improperly charged or incorrectly calculated or that they are excessive. 4. In relation to this issue, the Applicants have asserted that there was no need to impound the animals or the articles and therefore no expenses should have been incurred. With the limited exception of the stockyards I do not agree with that view. The Applicants asserted ownership of various items and animals at the time of the impounding. However there was no proof of ownership provided. In my view it was reasonable for the Respondents to insist on proof of ownership before releasing the impounded items and animals. The lack of evidence of ownership has been an ongoing issue throughout these proceedings and evidence is still lacking in regard to many of the items and animals. 5. The exception to this position is Mr Targett's claim in relation to the portable stockyards. Mr Targett's evidence was that he was present on the day of the impounding of the stockyards and offered to remove them so as to mitigate the costs associated with removing and storing the yards. He was also able to produce a bill of sale for the stockyards. Nevertheless, his request was refused. In my view, this refusal was not reasonable in the circumstances. 6. Had the request been granted, no transport of storage costs would have been incurred. In my view, as these costs need not have been incurred they have been improperly charged. Pursuant to subsection 40(2) of the Act, the stockyards are to be released, free of all impounding fees. 7. Section 21 of the Act imposes a duty on the Respondents to ensure that impounded animals are provided with adequate food, water and veterinary care, and kept in adequate conditions. In my view it is reasonable to expect that some expenses would be incurred in regard to caring for the animals. It cannot be said that reasonable costs associated with feeding animals that have been lawfully impounded have been improperly charged. The issue is whether the costs were incorrectly calculated or whether they are excessive. Feed 1. I have no reason to think that any of the invoices that the Respondents have filed that relate to the feed have been fabricated. There is only other basis on which I could conclude that the amount of the costs were incorrectly calculated is that the amount includes fees or charges that should not have been imposed. 2. The Applicants have provided information which suggests that they could have obtained agistment for the horses at either no or low cost. However, no evidence has been provided in support of that assertion. The Applicants have also provided information which suggests that they could have obtained hay at a lower cost than that paid by the Respondents. No evidence has been provided in support of that assertion other than the name and location of proposed suppliers. No evidence has been provided in regard to the extent to which the hay would be available. No explanation has been provided to explain the absence of that evidence. 3. The Respondents have a duty to care for the impounded animals. I accept that the costs of meeting these obligations are high. It is almost certain that the cost of caring for the animals has far exceeded the value of the animals. This situation has been exacerbated by the manner in which these applications have been conducted. This inevitably extended the amount of time for which the Respondents needed to care for the animals. 4. It is common knowledge that NSW has experienced severe drought conditions during the time that the animals have been impounded. In my view it is reasonable to expect that under drought conditions the cost of feeding animals might be higher than under less severe circumstances. I do not consider that the cost of feed paid by the Respondents is significantly higher than the alternative sources that the Applicants contend are available. I therefore do not agree that the costs of feed were excessive. 5. I see no reason to vary the decisions in regard to the costs of feed. Care for the animals 1. The Applicants have asserted that expenses incurred in relation to the care for the animals such as drenching, manes clipping and trimming hooves were unnecessary because they could have carried out those tasks free of charge, so the only applicable cost would be the worming product. They say that there is no reason to hogg manes and the Respondents had no authority to do so. 2. It is probable that the Applicants are correct in that they have the ability to carry out those tasks. However, the Act imposes the obligation on the Respondents to care for the animals that have been impounded. 3. I have no basis on which I could conclude that the care was not provided as indicated by the invoices that have been filed. However, the Respondents have not provided any evidence to show the extent of the care that was needed or provided. This is information that was not available to the Applicants and they were not permitted access to the animals to satisfy themselves of these issues. The Applicants cannot be criticised for any deficiency in their cases in regard to challenging this aspect of the expenses when the relevant information that was available to the Respondents has not been provided to either the Applicants or the Tribunal. 4. In the circumstances where the relevant evidence has not been provided, I cannot be satisfied that the drenching, manes clipping and trimming hooves of the horses were necessary or that costs relating to those activities have been properly charged. The decision to impose fees or charges for release of the impounded animals and articles should be varied so as to not include the requirement to pay those costs. Veterinary care 1. The Applicants have also asserted that expenses incurred in relation to veterinary care have not been justified. No veterinary report has been supplied and an independent veterinary inspection was denied. 2. The Respondents' material includes an invoice from Canberra Equine Hospital dated 15/03/2018 - Transaction # 979153 Patient: Wombat. 3. This invoice contains details of the treatment provided to the horse named Wombat and the reason for the treatment. The Applicants correctly note that the condition that warranted veterinary care occurred while Wombat was in the Respondents' care. The Applicants also submit that the mustering methods used to capture horses on 11 December 2017 could have caused the problem. Further, they contend that the agistment facility is not suitable for horses and could have contributed to Wombat's condition. The Applicants submit that the Respondents should bear these costs. 4. An invoice for professional services on 7 – 8 May 2018 indicates that one of the horses had suffered extensive trauma to the left eye and side of its face necessitating surgery and treatment. No veterinary report has been supplied and an independent veterinary inspection was denied. 5. The Applicants submit that this injury is consistent with blunt force trauma from being irresponsibly restrained. They question the treatment given and say that the damage to the mare is permanent and reduces her value and could be detrimental to her future health. They note that the injury occurred while the animal was in the Respondents' care and submit that the Respondents should bear these costs. 6. In regard to the euthanize santa gertrudis cow the Applicants noted that the cow was a healthy animal at the time of the impounding. No veterinary report has been supplied and an independent veterinary inspection was denied. 7. I have no basis on which I could conclude that the veterinary care was not provided as indicated by the invoices that have been filed. However, the Respondents have not provided any evidence to show the cause of the issues that lead to the need for veterinary care or the extent of the care that was needed or provided. This is information that was not available to the Applicants and they were not permitted access to the animals to satisfy themselves of these issues. The Applicants contend that the issues could have arisen as a result of the manner in which the animals had been captured or the manner in which they were kept. I have no evidence to support or to contradict this assertion. The Applicants cannot be criticised for any deficiency in their cases in regard to challenging this aspect of the expenses when the relevant information is either available to the Respondents or could be obtained by the Respondents and it has not been provided. 8. If the Applicants are correct and the issues that lead to the need for veterinary care arose because of some aspect of the way in which the animals were kept, the Applicants should not be responsible for those expenses. In the circumstances I cannot be satisfied that the costs relating to the veterinary care were properly charged. Therefore, the decision to impose fees or charges for release of the impounded animals and articles should be varied so as to not include the requirement to pay those costs of veterinary care. Conclusion 1. In my view, in each of these matters: 1. The decision to impound the animals and articles was lawful and is affirmed; 2. the decision to impose fees and charges is to be varied to show that: 1. the Applicant is not liable for payment of those charges imposed in relation to the care for the horses such as drenching, manes clipping and trimming of hooves; and 2. the Applicant is not liable for payment of those charges imposed in relation to the veterinary care for the horses. 1. the decision to impose fees and charges is otherwise affirmed. 1. In addition, in matter No. 201800161629 the decision to impose fees and charges is to be varied so as to not include charges imposed in relation to the impounding of the stockyards. The stockyards are to be released to Mr Targett, free of all impounding fees. Orders In matter No. 201800161488 1. The decision to impound the animals and articles was lawful and is affirmed. 2. The decision to impose fees or charges for release of the impounded animals and articles is to be varied so as to not include: 1. charges imposed in relation to the care for the horses such as drenching, manes clipping and trimming of hooves; or 2. charges imposed in relation to the veterinary care for the horses. 1. The decision to impose fees and charges is otherwise affirmed. In matter No. 201800161629 1. The decision to impound the animals and articles was lawful and is affirmed. 2. The decision to impose fees or charges for release of the impounded animals and articles is to be varied so as to not include: 1. charges imposed in relation to the impounding of the stockyards; 2. charges imposed in relation to the care for the horses such as drenching, manes clipping and trimming of hooves; or 3. charges imposed in relation to the veterinary care for the horses. 1. The decision to impose fees and charges is otherwise affirmed. 2. The stockyards are to be released to Mr Targett, free of all impounding fees. In matter No. 201800161523 1. The decision to impound the animals and articles was lawful and is affirmed. 2. The decision to impose fees or charges for release of the impounded animals and articles is to be varied so as to not include: 1. charges imposed in relation to the care for the horses such as drenching, manes clipping and trimming of hooves; or 2. charges imposed in relation to the veterinary care for the horses. 1. The decision to impose fees and charges is otherwise affirmed. In matter No. 201800161619 1. The decision to impound the animals and articles was lawful and is affirmed. 2. The decision to impose fees or charges for release of the impounded animals and articles is to be varied so as to not include: 1. charges imposed in relation to the care for the horses such as drenching, manes clipping and trimming of hooves; or 2. charges imposed in relation to the veterinary care for the horses. 1. The decision to impose fees and charges is otherwise affirmed. ********** 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 Amendments 14 January 2019 - Paragraph 99 Line 2 "that" added between "information" and "was". 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: 14 January 2019