Fox v Heffernan
[2019] NSWCATAD 217
•22 October 2019
Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Fox v Heffernan [2019] NSWCATAD 217 Hearing dates: On the papers Date of orders: 22 October 2019 Decision date: 22 October 2019 Jurisdiction: Administrative and Equal Opportunity Division Before: P H Molony, Senior Member Decision: (1) The Tribunal dispenses with a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013.
(2) The Tribunal sets aside the decision made by the respondents to fix $270.00 as an appropriate charge of under s 13(2) of the Impounding Act, and in lieu thereof the Tribunal determines that the appropriate charge of $203.00.
(3) The respondents are to pay the applicant the sum of $67.00, being a refund of impounding charges overpaid, within 28 days.Catchwords: Administrative Law – impounding of trespassing cattle on private lands by owner – review of appropriate charge for impound under s 38(2) of the Impounding Act 1992 – charge found to be excessive. Legislation Cited: Administrative Decisions Review Act 1997
Civil and Administrative Tribunal Act 2013
Impounding Act 1993Cases Cited: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 Category: Principal judgment Parties: Catherine Eileen Fox (Applicant)
Craig Patrick Heffernan (First Respondent)
Jenifer Heffernan (Second Respondent)Representation: Counsel:
Solicitors:
A Gandar (Applicant )
Teneo Legal (Applicant )
Crookwell Law (Respondent)
File Number(s): 2019/00191359 Publication restriction: Nil
REASONS FOR DECISION
Background
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Catherine Eileen Fox (the applicant) has applied to the Tribunal for a review of the fees and charges made by her neighbours Craig Patrick Heffernan and Jenifer Heffernan (the respondents) following their impounding on their agricultural property, on 21 May 2019, of a black heifer belonging to the applicant.
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That application is made under s 38(2) of the Impounding Act 1993 which 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.
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The applicant gave the respondents notice of her intention to make the application as required by s 38(3) on 11 June 2019, and the application was made within time.
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I note that the application when filed sought five orders in total (two of which are under s 38(2)), but from the time of filing its submissions has only sought those to which s 38(2) applies.
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The matter has been referred to me to decide on the papers.
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Section 63 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act)says that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the Commissioner, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.
Material before the Tribunal
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In considering this matter I have had regard to the following written materials:
Application filed with the Tribunal on 17 June 2018 and attachments.
Affidavit of Catherine Eileen Fox dated 13 August 2019 with annexures..
Applicant’s submissions dated 13 August 2019.
Affidavit of Craig Patrick Heffernan dated 22 August 2019 with annexures.
Affidavit of Jenifer Margaret Heffernan dated 22 August 2019 with annexures.
Respondents’ Submissions dated 26 August 2019.
The Impounding Act
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The objects of the Impounding Act are set out in s 3:
The objects of this Act are:
(a) to empower authorised persons to impound and deal with animals and articles in public places and places owned or under the control of certain public authorities if, in the case of animals, they are unattended or trespassing or, in the case of articles, they have been abandoned or left unattended, and
(b) to empower occupiers of private land to impound and deal with animals trespassing on their land, and
(c) to provide for the release of impounded animals and articles that are claimed by their owners, and
(d) to provide for the disposal of impounded animals and articles that are not claimed by their owners and, if they are disposed of by sale, to provide for the disposal of the proceeds of sale.
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“Item” is defined in the dictionary to the Act as meaning “an animal or article.”
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“Cattle” fall within the definition of animal in the dictionary.
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Section 5(2) allows occupiers of private land to impound certain animals. Impounding by occupiers of private lands is governed by Division 3 of Part 2 of the Act (s12 to 14). For the present purposes only s 12 to 13 are pertinent. They relevantly provide:
12 Occupier of private land may impound trespassing animal
An occupier of private land may impound any animal that is trespassing on the land.
13 Action to be taken when identity of owner known
(1) An occupier of private land who impounds an animal and knows or can easily find out the owner’s identity must inform the owner of the animal’s whereabouts within 24 hours of impounding the animal and must then either:
(a) immediately have the animal delivered to the nearest convenient public pound, or
(b) keep the animal on the land for a period of not more than 4 days and then (if the animal has not been claimed by its owner) have the animal delivered to the nearest convenient public pound.
(2) The occupier must ensure that any animal kept on the land after it is impounded:
(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.
(3) If the owner of the animal claims the animal, the occupier must do one of the following:
(a) release or send the animal to its owner on payment in full of the appropriate charge,
(b) if the animal’s owner declines to pay the appropriate charge—have the animal delivered to the nearest convenient public pound,
(c) release or send the animal to its owner without payment in full of the appropriate charge.
(4) …
(5) The appropriate charge is an amount not exceeding:
(a) the expenses actually incurred in providing the animal with food, water and veterinary care, and
(b) the cost of rectifying any loss or damage attributable to the trespassing of the animal.
(6) An occupier of private land who fails to comply with a requirement of this section is guilty of an offence.
Jurisdiction
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When read together with the provisions of s 9 of the ADR Act and s 30 of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act), s 38(2) of the Impounding Act gives the Tribunal jurisdiction to review the impounding charges demanded and paid on the ground that the fee or charge has been improperly charged or incorrectly calculated or is excessive.
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In conducting an administrative review in the present circumstances, the decision to impose a charge under s 13(2) of the Impounding Act is the decision made under enabling legislation over which the Tribunal has administrative review jurisdiction under the ADR Act. Because the respondents were the person who made that decision, s 8 of that Act provides that they are the administrator with respect to that decision. While this may not be a title that readily fits, it is one that the ADR Act confers on the respondents for the purpose of the Tribunal’s exercise of its jurisdiction under the ADR Act.
Should the matter be determined on the papers?
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Section 50 (2) to (4) of the CAT Act provide:
(2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.
(3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first:
(a) afforded the parties an opportunity to make submissions about the proposed order, and
(b) taken any such submissions into account.
(4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.
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In this case both parties have filed submissions asking the Tribunal to determine the application without a hearing and on the papers, due to the relative simplicity of the issues involved, their agreement on the basic facts, and in order to avoid the significant costs of a hearing. Having reviewed the material relied on by the parties I am satisfied that this is a matter that can be adequately determined without a hearing on the papers. I note that such a course of action is consistent with the guiding principle underlying the CAT Act, namely facilitating the just, quick and cheap resolution of the real issues in the proceedings” see s 36(1).
Outline of the agreed facts and of evidence of loss
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The parties are in substantial agreement about the background facts. All agree with the following outline set out in pars 10 to 12 of the applicant’s submissions:
10. At 9.46pm on 21 May 2019, Mr Heffernan sent an email to Ms Fox and her partner stating that he had impounded a black heifer (the Heifer) said to have been found stray on his property at 7.00am that moming.3 Mr Heffernan said:
"I have been advised ... that we need to comply with the NSW Impounding Act 1993... I am hereby giving you notice within 24 hours of impounding that the animal is impounded in our cattle yards. I will require for you to:
1. Identify that the heifer belongs to you, and if so
2. Arrange for transport to your property by 5pm, Thursday 23 May
3. Pay in full invoice for impounding costs to me before the animal is released"
11. Ms Fox responded at 10.35pm stating her intention to attend the Mr Heffernan's cattle yards the following morning at 9.30am to identify the Heifer and make arrangements for her collection.
12. At 6.51am the following morning, 22 May 2019, the Mr Heffernan replied stating that due to prior appointments, 9.30am was not convenient and that they could meet at the cattle yards at 5.00pm.
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There is no dispute that the parties met at the cattle yard as arranged and that the respondents presented the applicant with an invoice for $270.00. The respondents required that the invoice be paid before they would release the heifer. The invoice read:
Impounding of black heifer on 21 May 2019
Retrieval and securing of animal (3 hours x 2 persons) $240.00
Providing hay and water whilst impounded x 1 day $30.00
Total owing (including GST) $270.00
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The applicant then returned home and paid the charges. Upon her return to the respondents property she collected and removed the heifer.
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In her affidavit the applicant provided evidence of agistment rates in the local area.. This included evidence:
that the respondents had been paid agistment fees at the rate of $4.50 per week for dry cows between May and September 2017, while heifers with calves were charged at the rate of $5.00 per week in the same period; and
that the applicant had charged a similar rate for agisting cows between May and October, while from September to October 2017 cows with calves were charged $5.50 per week for agistment.
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The respondents did not dispute the agistments rates they had received in 2017, but relied on the fact that they were seeking to recover actual costs incurred, not agistment fees. In his affidavit Mr Heffernan said that agistment rates could be higher. With respect to amounts charged, he said in his affidavit:
4. On 21 May 2019 in consultation with Jenifer, and in accordance with section 13 (5) of the wording of the Impounding Act (1993) we raised a Tax Invoice for the costs incurred in impounding the Applicant's heifer. Those costs were charged as follows:
(i) Contract time to retrieve, secure and attend to
the heifer @ $50 per hour including GST for 3 hours. $150.00
(I incurred over 5 hours but only charged 3 hours)
(ii) Jenifer's lost wages 3 hours @ $30 per hour
for 3 hours $ 90.00
(iii) hay @ $30 $ 30.00
Total $270.00
…
7. We purchase hay in bulk and attached and marked "D" is a Tax invoice from AJ & DL Arnold for 57.44 tonne of hay, costing $22,987.53 or $400.20 per tonne. Jenifer and I fed the heifer 2 biscuits of hay over the 2 days equating to $32.00. I charged the Applicant $30.00 including GST.
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The invoice for the hay is dated 5 November 2018.
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Mr Heffernan also referred to evidence showing that he had done contract work for the applicant in 2017 at the rate of $50.00 per hour. I note that the invoice in question was for “Labour use of equipment and supply of chemicals.”
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In his affidavit Mr Heffernan said that on the morning of 21 May 2019 at 0700 he had observed two cattle in the paddock. He had returned home and asked his wife to go with him and walk the cattle back to the cattle yards. They had got the cattle and while walking them back a grey heifer jumped a fence into the applicant’s property. They had continued to take the black heifer to their yard, arriving about 11pm. He had then fed and watered the heifer.
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In her affidavit Mrs Heffernan confirmed all the matters outlined by Mr Heffernan that were within her own knowledge. She added, that because she was “required to assist Craig to move the Heifer,” she lost three hours work as a casual veterinary nurse, which represents $90.00 gross wages. This was supported by a letter to that effect from her employer.
Consideration
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The issues that require resolution in this matter are whether the fees and charges, paid by the applicant in order for the respondent’s to release the heifer from impound, were
improperly charged,
incorrectly calculated, or
excessive.
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Section 15(2) of the Impounding Act allows occupiers of private land, like the respondents, to charge the owner of trespassing stock for the expenses actually incurred in providing food, water and veterinary care to the animal, and for rectifying any loss or damage attributable to the trespassing of the animal.
Actual expenses incurred
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As evidence of expenses actually incurred the respondents have provided evidence that they purchased hay in November 2018 at the costs of $400.20 per tonne. They do not say that this is the hay actually fed to the heifer. They do use that price to justify what they charged the applicant. They say that the heifer was given two biscuits of hay when impounded. On their calculations this cost them $32.01.
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A tonne is 1000kg. At $400.20 per tonne, the respondents hay costs 40 cents a kilogram. For the heifer to have consumed $32.00 worth of hay, it must have consumed 80kg of hay when impounded for less than 2 days. As the respondents say it was given two biscuits of hay while impounded, this means that each biscuit of hay weighed 40kg. I do not accept that the heifer was fed this amount. It impresses me as a fanciful amount and much more than a single heifer would consume in the available time. A consumption of 10kg or less a day is far more probable. I am satisfied that the costs which the respondents claim they incurred are excessive.
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I accept the respondent’s submission that they are entitled to recover their expenses actually incurred and that evidence of agistment costs does not provide evidence of the costs they actually incurred. Agistment costs can be expected to include a profit margin, in addition to the cost actually incurred by the person offering agistment. Such a margin is not recoverable under s 12(5)(a) of the Impounding Act which is confined to the recovery of expenses actually incurred.
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In my view cattle agistment costs, in the absence of other compelling evidence, can be used as evidence of the costs of keeping cattle fed and watered on someone else’s property. As such that evidence may inform a decision about what the reasonable costs of providing food and water to impounded cattle is.
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In this case having regard to the price the respondents paid for hay, agistment costs in the area paid in 2017 and 2018, and noting that the costs of stock feed has substantially increased as the drought has worsened, I am satisfied that the costs actually incurred by the respondents for feed and water for the impounded heifer was $8.00. I propose to allow that amount for feed and water. The one dollar allowance urged by the applicant is too low and does not reflect the actually cost of hay.
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As I result, I conclude that the $30.00 charged by the respondents for providing feed and water to the heifer was improperly charged and excessive. They should refund $22.00 of that charge to the applicant.
Loss or damage attributable to the trespassing
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The remaining $270.00 demanded by the respondents and paid for by the applicant prior to the release of the heifer was claimed for time spent retrieving and securing the animal: “3 hours x 2 persons $240.00.” The applicant objects that this is not an expense incurred and should not be allowed. The respondents on the other hand say that their time charges can be considered expenses incurred.
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In my opinion time lost by the respondents associated with recovering and securing trespassing cattle is a loss attributable to the trespassing. The value of that lost time in a matter for assessment.
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In the present case the respondents initially claimed three hours each, at an apparent cost of $120.00 each or $40.00 per hour. Subsequent explanations of those charges, made after they received payment, say the amount represented:
3 hours spent by Mr Heffernan at his contract charge out rate of $50.00 per hour.
3 hours casual work, at the rate of $30.00 per hour, lost by Mrs Heffernan as a result of missing out on work.
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Invoices produced show that Mr Heffernan’s contract rate includes the provision of equipment and chemicals, the amount and cost of which is not specified. It therefore does not represent his on farm hourly rate. In the absence of any other evidence as to what would be a reasonable rate I propose to fix this at $35.00 per hour, or $105.00 for three hours.
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I am satisfied that the $45.00 charged by the respondents over that amount was improperly charged and excessive. It should be refunded.
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On the evidence I accept that Mrs Heffernan’s loss is $30.00 per hour and that she lost three hours work totalling $90.00.
Conclusion
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The total amount that the respondents were entitled to recover under s 13(5) of the Impounding Act was $203.00 comprised of:
feed and water $8.00
Mr Heffernan’s lost time $105.00
Mrs Heffernan’s lost wages $90.00.
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On review, the Tribunal finds that that the correct and preferable decision in this case is that the charges levied by the respondents should be set aside and in lieu thereof a charge levied of $203.00.
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As the applicant actually paid the respondents $270.00, she is entitled to a refund of $67.00. I will make an order that the respondents pay the applicant that amount within 28 days of today’s date. I do so pursuant to the Tribunal’s power to make ancillary decisions under s 30 of the CAT Act, considering, as I do, an order for payment necessary to give efficacy to my decision.
Costs
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The respondents made submissions seeking costs, if the proceedings were dismissed. As the applicant has been successful in demonstrating that the charges made by the respondent were excessive, there is no need to deal with those premature, submissions further.
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Nonetheless, so that there is no doubt, I wish to make it clear that I consider this a matter in which the Tribunal should follow the usual course mandated by s 60(1) of the CAT Act and leave the parties to bear their own costs. On the material before me I can see nothing pointing to the existence of special circumstances under s 60(2) of the CAT Act which would justify a departure from that course. I am reinforced in this conclusion by the very small amount in issue and simplicity of the issues. This is clearly a case in which a modicum of practicality would have seen the matter resolved, without consuming the significant public costs of requiring the Tribunal to determine it on the papers, and the private costs to the parties associated with presenting their cases. It is fitting that they meet their own costs.
Orders
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The Tribunal makes the following order:
The Tribunal dispenses with a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013.
The Tribunal sets aside the decision made by the respondents to fix $270.00 as an appropriate charge of under s 13(2) of the Impounding Act, and in lieu thereof the Tribunal determines that the appropriate charge of $203.00.
The respondents are to pay the applicant the sum of $67.00, being a refund of impounding charges overpaid, within 28 days.
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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
Decision last updated: 22 October 2019
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