Broome v Great Lakes Council

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Broome v Great Lakes Council [2014] NSWCATAD 154

Hearing dates:

28 November 2013

Decision date:

25 September 2014

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Higgins, Principal Member

Decision:

1. Pursuant to paragraph 55(3)(b) of the Administrative Decisions Tribunal Act 1997, order that it is necessary to deal with the applicant's application in the absence of the applicant having applied for an internal review of the decisions the subject of review.

2. The decision of the respondent to impound the applicant's cattle is set aside.

3. The decision of the respondent to impose fees and charges is set aside.

4.The respondent to repay the applicant the amount of $1,500.00.

Catchwords:

ADMINISTRATIVE LAW - merit review of decision of agency - impounding of cattle - whether impounding officer believed on reasonable grounds that the cattle were unattended

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Administrative Decisions Tribunal regulation 2009
Civil and Administrative Tribunal Act 2013
Impounding Act 1993
Local Government Act 1993
Local Land Services Act 2013
Rural Lands Protection Act 1998 (repealed)
Rural Lands Protection Regulation 2010 (repealed)

Cases Cited:

George v Rocket and Another (1990) 93 ALR 483; (1990) 170 CLR 104
McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423
Woolworths Ltd v Waverly Council [1999] NSWSC 308

Category:

Principal judgment

Parties:

Gary Fraser Broome (Applicant)
Great Lakes Council (Respondent)

Representation:

Slater & Gordon Lawyers (Applicant)
T Pickup (Respondent )

File Number(s):

133284

reasons for decision

Introduction

1. The applicant, Mr Broome, seeks review of a decision of the respondent, Great Lakes Council, to impound four head of cattle he owned, pursuant to the Impounding Act 1993. The cattle were impounded, on 30 August 2013, by a senior ranger employed by the respondent, Mr David Oates. The applicant has been charged $8,060.00 in respect of the impounding of his cattle. However, his cattle were released to him on 3 October 2013 after he paid an amount of $1,500.00 to the respondent. The respondent nevertheless seeks to recover the entire amount charged.

1. The applicant is a grazier and the owner of land known as 91 Sawpit Road, Boolambayte in the State of New South Wales. The applicant does not reside on this land. However, he uses this land for the agistment of a number of cattle he owns.

1. The applicant has made his application for review under section 38 of the Impounding Act on the grounds that the impounding of his cattle was unlawful and, if found to be lawful, the applicant asserts that the fees and charges imposed by the respondent were improperly charged and excessive.

1. On 30 September 2013, the applicant lodged his application for review with the former Administrative Decision Tribunal (ADT) and his application was heard on 28 November 2013. At the conclusion of the hearing I reserved my decision and made orders for the filing and serving of further written submissions by the parties.

1. As anticipated,…