Klewer v Coffs Harbour City Council

[2003] NSWADT 170

CITATION:	Klewer v Coffs Harbour City Council [2003] NSWADT 170
DIVISION:	General Division
PARTIES:	APPLICANT Lucy Klewer RESPONDENT Coffs Harbour City Council
FILE NUMBER:	033099
HEARING DATES:	23/05/2003
SUBMISSIONS CLOSED:	05/23/2003
DATE OF DECISION:	07/29/2003
BEFORE:	Higgins S - Judicial Member
APPLICATION:	Jurisdiction
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Companion Animals Act 1998 Impounding Act 1993
CASES CITED:
REPRESENTATION:	APPLICANT J Carty, barrister RESPONDENT B Langler, solicitor
ORDERS:	Orders made on 23 May 2003; The Tribunal has no jurisdiction to hear the application.

REASONS FOR DECISION: EX-TEMPORE

1 Ms Klewer has brought an application under section 38 of the Impounding Act 1993 seeking review of the decision of the Coffs Harbour City Council (“the Council”) to impound her two labrador dogs. The dogs were taken possession of by Ranger Murdock, a ranger with the Council, on 5 February 2003. Ranger Murdock sent a letter to Ms Klewer on 6 February 2003 advising her that the dogs had been impounded. That letter stated that the, and I quote:

“The Coffs Harbour City Council, being the council impounding authority under the ...(reads)... animals have been impounded.”
2 Ms Klewer immediately challenged the validity of the Council impounding the dogs, who remain impounded as Ms Klewer has refused to pay the fees which have been demanded to be paid by Council before they would release the dogs. On 11 April 2003 Ms Klewer lodged an application for review with the Tribunal. Mr Langler for the council has raised a preliminary issue as to the jurisdiction of the Tribunal to hear Ms Klewer's application.

3 In support of that application Mr Langler called Mr Murdock to give evidence.

4 I will first deal with the relevant law. The first Act I will deal with is the Impounding Act 1993.

5 The Impounding Act is an Act that provides for the impounding of animals, motor vehicles and other things, and to provide for their release or disposal. Section 9 of the Impounding Act provides that an impounding officer may impound an animal that is in a public place if the officer believes, on reasonable grounds, that the animal is unattended.

6 Section 11 of the Impounding Act provides that an impounded animal is to be delivered to a pound as soon as practical after the animal is impounded. Section 20 requires an impounding authority to cause notice to be given to the owner of the animal if such owner can be ascertained.

7 In this case it is not disputed that the Council is an impounding authority under the Act and that Ranger Murdock is an impounding officer under that Act. However, section 7 of the Impounding Act provides that a dog cannot be impounded under the Act unless it is in a national park, historic site, nature reserve, State game reserve, caste conservation reserve or Aboriginal area. Again in this application there is no suggestion that the dogs were in any of these areas at the time they were impounded.

8 Section 38 of the Impounding Act provides that an owner of an impounded item, which includes an animal, can apply to the Administrative Decisions Tribunal for review of the decision to impound the item or any fee or charge required to be paid for the release of the item. So far as is relevant to this application, section 38 provides:

s. 38(1) The owner of the impounded item may apply to the Administrative Decisions Tribunal for a review 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 Administrative Decisions Tribunal for a review of any fee or charge required to be paid for the release of the item (whether to an impounding authority or the occupier of private land), but only on the ground that the fee or charge has been improperly or incorrectly calculated or is excessive.
9 It is not disputed that the Council is an impounding authority under the Act.

10 The next Act I will deal with is the Companion Animals Act 1998, which is an Act that provides for the identification and registration of companion animals. These are defined as a cat and a dog in subsection (5)(1) of the Act. The Act also sets out the duties and responsibilities of the animal’s owners. Section 13(1) provides:

s. 13(1) That a dog in a public place must be under the effective control of some competent person by means of an adequate chain, cord or leash.
11 Section 13(3) provides that, "Any -," and I emphasise the word “any”:
person (including an authorised officer) can seize a dog that the person finds in a public place in contravention of this section. If the owner of the dog is present, the dog cannot be seized except by an authorised officer and only then if the contravention continues after the owner has been told of the contravention. A reference in this subsection to the owner of the dog includes a reference to the person who is for the time being in charge of the dog.
12 In this case it is not disputed that Ranger Murdock is an authorised officer under the Companion Animals Act . Subsection 62 of the Companion Animals Act provides that:
s. 62(1) A person who seizes and animal under the authority of this Act (referred to in this Part as a seized animal ) must cause it to be delivered as soon as possible to its owner can be identified or otherwise to any duly authorised employee or agent of the council of the area in which the animal was seized at a council pound.

(2) A person who seizes an animal and does not comply with the requirements of this section is guilty of an offence.

13 So far as it is relevant section 63 of the Companion Animals Act provides:
s. 63(1) When a seized animal is delivered to a council pound, the person in charge of the pound is to give notice of the seizure of the animal to the person who appears (from the best endeavours of the person in charge to establish who the owner is) to be the owner of the animal. Notice of the seizure need not be given if those best endeavours fail to establish the name and address of the owner of the animal.

(3) The notice required by this section is to be in writing and is to be in writing and is to be given:

(a) by being served personally on the person to whom it is required to be given;

(b) by sending it by post to the person to whom it is required to be given at that person’s address ….

(c) by leaving it …

(4) The regulations may impose requirements on the form and contents of the notice required by this section and may provide for other ways in which the notice can be served.
14 The Tribunal has been informed that no regulations have been made pursuant to section 63(4) of the Companion Animal Act .

15 The other relevant Act is the Administrative Decisions Tribunal Act 1997. Section 38 of that Act provides that the Tribunal has jurisdiction under an enactment to review a decision if the enactment provides that applications may be made to it for review of any such decision made by the administrator.

16 I will briefly deal with the evidence. Mr Murdock gave oral evidence follows:

(a) On 5 February 2003 he went to a private residence in Korora as a result of the owner of the residence stating that he had found two stray labrador dogs on his street and that he had placed them in his backyard;

(b) He went into the backyard and saw that neither dog had a name tag on its collar. However, one of the dogs had an outdated registration tag on its collar. He used a scanning machine to ascertain whether either dog was microchipped and could be identified in that way. After using the scanner he found neither dog was microchipped;

(c) As a result of this he decided to take the dogs to the council pound. He did this on the basis that the dogs were not registered and not identified. This is supported by the customer request action form that he completed after he had taken the dogs to the pound. In that customer request action form he has entered the following details, and I quote:

Dogs not microchipped; impounded male lab wearing old rego tag NO21986; owner Lucy Klewer; message left with daughter re dog impounded; also male lab pup impounded, no id.
(d) It was Mr Murdock's belief that he was exercising powers under the Companion Animals Act when he took the dogs to the pound. When he returned to the office he looked up the old registration system to see if he could identify the owner of the dog who had the outdated registration on him. He found that the owner was Ms Klewer. He telephoned her home and spoke to her daughter. He was informed that Ms Klewer was in Sydney and he states that he informed Ms Klewer's daughter that he had impounded the dogs that day.

(e) On 6 February 2003 Mr Murdock wrote and sent a letter to Ms Klewer. This letter was written from a template the introductory words of which I have already quoted. The letter also had the following statements contained in it, and I quote:

Location impounded.

The seized animal is housed at Council's impounding facility located at the RSPCA Shelter.


Fees and charges payable for release are currently $70, two day collection, increasing $10 each day thereafter. Additional fees and charges apply for dogs which are not microchipped or currently registered with council.

You are advised that council may sell or destroy a seized animal if it has not been claimed within 14 days after the required notice of seizure is given.

(f) Mr Murdock also stated that while he is authorised to impound animals under the Impounding Act , he almost never uses it when detaining dogs and cats. In these circumstances he relies on the powers given to him under the Companion Animals Act .
17 I will now deal with the submissions.

18 Mr Langler, for the council, submitted that Mr Murdock was not the seizing officer in this case. He stated that the evidence was that the dogs had been seized by the owners of the residential property in Korora. The owners of the property, then did what they were required to do under section 62 of the Companion Animals Act, in that they made contact with the council. Mr Murdock was accordingly merely doing what he was required to do under section 63 of the Companion Animals Act. That is, having attended the home of the persons who had seized the animals he had delivered them to the pound and was giving the requisite notice as required under section 63 of the Companion Animals Act.

19 In respect of the letter of 6 February 2003, Mr Langler stated it was clear that the seizure and detention of the labrador dogs was under the Companion Animals Act and not the Impounding Act even though it was referred to in the letter of notification. On this basis Mr Langler submitted that the Tribunal had no jurisdiction to hear the application as the Companion Animals Act makes no provision for a review of a decision made under that Act, which is a requirement in order for the Tribunal to have jurisdiction as provided by section 38 of the Administrative Decisions Tribunal Act.

20 Mr Carty, for Ms Klewer, submitted that despite the evidence of Mr Murdock, the letter of 6 February 2003 indicated that the impounding was under the Impounding Act. In particular he referred to the following matters: (a) the letter is headed Notification of Impoundment; (b) the letter makes reference to the Impounding Act 1993; (c) the letter makes reference to the location of impoundment. He also pointed out that in a subsequent letter written by the Council, on 8 February 2003, reference continued to be made to the fact that the dogs were impounded.

21 In my opinion Mr Murdock gave truthful and forthright evidence. That is, he believed he was exercising a power of seizure and detention under the Companion Animals Act, he was not exercising any power under the Impounding Act. In regard to the power he was exercising it was clear he did not understand with any specificity the nature of his statutory powers. This I do not think detracts from his evidence that he was not seeking to invoke any powers under the Impounding Act, which he was not entitled to do.

22 This latter fact (i.e. no power to seize the dogs under the Impounding Act) Mr Murdock appears to have been unaware of. Furthermore, the fact he did not understand fully the specifics of his powers under the Companion Animals Act may have been the reason why he did not question the template he used. However, this does not detract from the evidence he gave in respect of the powers he was seeking to exercise at the particular time in question. Accordingly, on the material before the Tribunal I find that Mr Murdock was not seeking to exercise any powers under the Impounding Act, he was seeking to invoke his powers under the Companion Animals Act.

23 In light of this finding I find that the Tribunal has no jurisdiction to hear Ms Klewer's application as Mr Langler correctly pointed out, the Tribunal only has jurisdiction to hear matters in respect of which the Companion Animals Act makes specific provision for the Tribunal to review a decision under that Act. The Companion Animals Act has no such provision.

24 It is unfortunate that the council has worded its template as it has. It can only lead to confusion and while the Tribunal understands the position Ms Klewer has taken in respect of this aspect of the case, it is unfortunate that this issue has clouded the substance of what appears to be the real issue, namely the fact that her animals have not been registered or identified as required under the Companion Animals Act.