Nomchong v Ku-ring-gai Council

[2013] NSWADT 291

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 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. The Council accepts that Mr Nomchong has applied for a review of the decision to impound his vehicles. It does not accept that Mr Nomchong has also applied for a review of the fee charged by the Council to release the vehicles. Mr Nomchong said that that was his intention.

1. Mr Nomchong filled in the application for review himself. He does not have legal representation. Under the heading "A brief description of the decision to be reviewed is . . .", Mr Nomchong wrote:

The council impounded two of my registered and legally parked vehicles and I did move them as required by the impound notice and re-parked them in the same street and the following day the council removed them from the street.

1. In another part of the application form, Mr Nomchong wrote that, "The Council illegally removed registered and legally parked vehicles after compliance with 'Impound Notice' and caused damage and loss of property."

1. The Council has provided Mr Nomchong with a statement of reasons for its decision to impound the vehicles. No reasons were provided in relation to whether or not the fees had been improperly charged, incorrectly calculated or were excessive.

1. It is a pre-requisite to the filing of an application under s 38(3) of the Impounding Act that the person give Council notice in writing of an intention to apply to the Tribunal:

(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 Administrative Decisions Tribunal.

(4) If notice of intention to apply to the Administrative Decisions 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 2 October 2013, after receiving advice from the Ombudsman's office, Mr Nomchong emailed Tony McCormack, Team Leader Rangers, in the following terms:

You are hereby notified that I intend to lodge a review of council's decision to impound my legally registered and legally parked trailers with the Administrative Decisions Tribunal.

1. There was no evidence of Mr Nomchong having advised the Council in writing of his intention to apply for a review of the decision to charge a fee for the release of the vehicles.

1. Mr Nomchong did not make it clear in his application to the Tribunal that he was applying for a review of the decision to charge a fee for the release of the vehicles. More significantly, he has not complied with his obligation to notify the Council of his intention to make such an application. In all the circumstances, I am not satisfied that Mr Nomchong's application for review includes an application for review of the decision to charge a fee for the release of the vehicles.

1. The remainder of these reasons deals solely with Mr Nomchong's application to review the decision to impound his vehicles.

Does the Tribunal have power to extend the time for the making of the application?

1. Mr Nomchong accepts that he was notified of the impounding on 18 September 2013. Twenty-eight days from that date is 17 October 2013. Mr Nomchong did not lodge his application until 25 October 2013, 8 days after the 28 day period. He cannot apply for a review of the decision unless the Tribunal has power to extend the time.

1. The question is whether the words, "This section has effect despite the provisions of the Administrative Decisions Tribunal Act 1997" ("the overriding words") in s 39(1) of the Impounding Act mean that the Tribunal has no power to extend time beyond the 28 day period provided for in s 39(2). For the reasons given below I consider that there is no power to extend time.

1. The relevant provision is s 39:

(1) This section has effect despite the provisions of the Administrative Decisions Tribunal Act 1997.

(2) The time limit for making an application for 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 a review of the impounding decision.

(4) The time limit for making an application for 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.

1. According to Pearce & Geddes, Statutory Interpretation in Australia, 6th ed (2006) (Pearce & Geddes), [12.4], 'Despite' is now being used by drafters, particularly of Commonwealth legislation, in circumstances where 'subject to' was formerly used. It is a synonym for "notwithstanding": Attorney-General (Cth) v Oates (1999) 198 CLR 162 at 178; 164 ALR 393 at 403.

1. The principle was stated in Harding v Coburn [1976] 2 NZLR 577 at 582 by Cooke J in the following terms:

... The qualification 'subject to' is a standard way of making clear

which provision is to govern in the event of conflict. It throws no light, however, on whether there would in truth be a conflict without it. As was said by Megarry J in C & J Clark Ltd v Inland Revenue Commissioner [1973] 1 WLR 905; [1973] 2 All ER 513, 'where there is no clash, the phrase does nothing: if there is a collision, the phrase shows what is to prevail' (ibid, 911; 520).

1. In Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 231, the Land and Environment Court was interpreting s 88 of the Roads Act 1993 which states that:

A roads authority may, despite any other Act or law to the contrary, remove or lop any tree or other vegetation that is on or overhanging a public road if, in its opinion, it is necessary to do so for the purpose of carrying out road work or removing a traffic hazard.

1. Biscoe J interpreted the words "despite any other Act" as an intention to exhaustively exclude the application of all other statutes. His Honour set out the principles of statutory construction relevant to the interpretation of that provision at [70] to [85]. Of particular relevance to this case is the observation at [84]:

Conflict between statutory provisions can be present even where there is no direct contradiction between them. For example, where it appears, as a matter of construction, that special provisions were intended exhaustively to cover their particular subject matter and where general provisions, if held to be applicable to the particular subject matter, would constitute a departure from that intention by encroaching on that subject matter: Fernance v Nominal Defendant (1989) 17 NSWLR 710 at 720 per Gleeson CJ (Clarke JA agreeing at 731), quoting Refrigerated Express Lines (A'sia) Pty Ltd v Australian Meat and Live-stock Corporation (No 2) (1980) 44 FLR 455 at 468-469 (Deane J).

1. Biscoe J adopted a process of analysis for legislation containing such a phrase as set out in Re Bland Brothers and the Council of the Borough of Inglewood (No 2) [1920] VLR 522 where the Full Court construed a section of an Act commencing "Notwithstanding anything in this Act contained". It was held at 533:

As to the introductory words, the section should first be construed without them, and then, if there is anything in the other provisions of the Act inconsistent with the interpretation so arrived at, these other provisions must yield.

1. Adopting these steps, the first task is to construe s 39 without the overriding words in s 39(1). Without s 39(1), s 39(2) sets a time limit of 28 days for making an application for review of an impounding decision. That decision is to be calculated from the date on which impounding was notified. Section 39(3) provides for the situation where the owner is not notified of the impounding of the item. In that case, there is no time limit for making an application. Section 39(4) gives a separate date, (the date on which application was made for the release of the impounded item) as the date from which the 28 days is to be calculated in relation to a review of the decision to charge a fee for the release of the vehicles. There is no power given in the Impounding Act for these time limits to be extended.

1. The second step is to ask whether any provision of the Administrative Decisions Tribunal Act 1997 (ADT Act) contradicts the operation of s 39 as so construed.

1. The provisions of the ADT Act which govern the timing of an application to the Tribunal are in Chapter 5, Part 3, and Division 1 - "Applications for Review". The general rule is that a person may apply to the Tribunal only if "the application is made within the period or by the time prescribed by or under the enactment under which the application is made": ADT Act, s 55(1)(d). That provision states that:

(1) A person may apply to the Tribunal for a review of a reviewable decision only if:

(d) the application is made within the period or by the time prescribed by or under the enactment under which the application is made or, if no such period or time is prescribed, by the end of the default application period for the decision.

1. Section 57 of the ADT Act provides for late applications to the Tribunal:

(1) Despite section 55(1)(d), the Tribunal may, on application by an interested person seeking to make a late application to the Tribunal, extend the time for the making by that person of an application if the Tribunal is of the opinion that the person has provided a reasonable explanation for the delay in making the application.

(1A) An application by an interested person under subsection (1) must be in writing unless the Tribunal dispenses with the requirement.

(2) The time for making an application for a review of a reviewable decision may be extended under subsection (1) although that time has expired.

(3) In this section, "late application" means an application not made within the period or time referred to in section 55(1)(d).

1. The ADT Act does not directly contradict s 39 of the Impounding Act. It does not provide for a different time limit, it merely provides for a default time period where no time period is prescribed.

1. But this is a case where, as a matter of construction, the special provisions in s 39 were intended exhaustively to cover their particular subject matter, that is the time limits for any application for review. The words "despite the provisions of the Administrative Decisions Tribunal Act 1997" means all the provisions of that Act, including s 57 which would allow an extension of time.

1. The final step is to obey the overriding words and ignore what would otherwise be a contradiction of any part of s 39. In this case, I must obey the overriding words and ignore s 57 of the ADT Act. The Tribunal may not extend the time for the making of the application.

1. The purpose and scheme of the Impounding Act supports this construction.

1. 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.

1. Part 6 of the Act sets out a strict regime for a person wishing to apply for a review of an impounding decision. That strict scheme is necessary partly because an impounding authority must cause an impounded item to be offered for sale if the item is not released before the deadline for release: s 24. It is critical that any application for review be lodged promptly to avoid the sale of the impounded item. That is why the owner must give the impounding authority notice in writing of the intention to apply to the Administrative Decisions Tribunal: s 38(3). It is also at least one of the reasons that there is no power to extend time for applying to the Tribunal.

Order

The application is dismissed.

Decision last updated: 20 December 2013