Nomchong v Ku-ring-gai Council

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Nomchong v Ku-ring-gai Council [2013] NSWADT 291
Hearing dates:	10 December 2013
Decision date:	19 December 2013
Jurisdiction:	General Division
Before:	Magistrate N Hennessy, Deputy President
Decision:	The application is dismissed
Catchwords:	MERITS REVIEW - whether applicant has applied for review of a decision to charge a fee for the release of his vehicles - whether the Tribunal has power to extend the time for the making of the application
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Impounding Act 1993
Cases Cited:	Attorney-General (Cth) v Oates (1999) 198 CLR 162 Harding v Coburn [1976] 2 NZLR 577 Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 231 Re Bland Brothers and the Council of the Borough of Inglewood (No 2) [1920] VLR 522
Texts Cited:	Pearce & Geddes, Statutory Interpretation in Australia, 6th ed (2006)
Category:	Interlocutory applications
Parties:	Gregory Nomchong (Applicant) Ku-ring-gai Council (Respondent)
Representation:	G Nomchong (Applicant in person) T Messenger (Respondent)
File Number(s):	133322

reasons for decision

Introduction

1. The Kur-ring-gai Council impounded two of Mr Nomchong's motor vehicles (Y67032 & P85293). Mr Nomchong says that the two vehicles were registered and legally parked when they were impounded. He received the impounding notice on 18 September 2013 and moved the vehicles to another place in the same street. But the vehicles were impounded the next day and Mr Nomchong had to recover them from Pickles Auctions yard.

1. Mr Nomchong has applied to the Tribunal for a review of the impounding decision. He applied more than 28 days after he was notified of that decision. Mr Nomchong also says that he has applied for a review of the decision to charge a fee for the release of the vehicles. The Council does not accept that Mr Nomchong has made the second application.

1. Three preliminary issues arise:

(1)   whether Mr Nomchong has applied for a review of the decision to charge a fee;

(2)   whether the Tribunal has power to extend the time for the making of the application;

(3)   if the Tribunal has power to extend time, whether the time should be extended.

Has Mr Nomchong applied for a review of the decision to charge a fee for the release of the vehicles?

1. Under s 38 of the Impounding Act 1993 the owner of an impounded item may apply to the Tribunal for a review of the decision to impound the item. The owner may also apply for a review of any fee or charge required to be paid for the release of the item. The relevant parts of s 38 are set out below:

(1) The owner of an 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…