Ryan v Northern Tablelands Local Land Services

[2021] NSWCATAD 36

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Ryan v Northern Tablelands Local Land Services [2021] NSWCATAD 36

Hearing dates:

On the papers

Date of orders:

25 February 2021

Decision date:

25 February 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

P H Molony, Senior Member

Decision:

(1) The Tribunal dispenses with a hearing in this matter in accordance with section 50(2) of the Civil and Administrative Tribunal Act 2013.

(2)   The application to dismiss the external appeal on the ground that there is no jurisdiction is dismissed.

(3) The respondent’s application for summary dismissal of the applicant’s external appeal under section 55(1)(b) is dismissed.

(4)   The applicant’s external appeal is to be listed for further case conference at a date and time to be fixed by the Registrar.

Catchwords:

CIVIL PROCEDURE – Civil and Administrative Tribunal – external appeal jurisdiction under s 68 of the Local Land Services Act 2013 – application to dismiss for want of jurisdiction – matters of fact and law relating to jurisdictional arguments require hearing - application for summary dismissal under s55(1)(b) of the Civil and Administrative Tribunal Act 2013 - proceedings not frivolous or vexatious or otherwise misconceived or lacking in substance.

Legislation Cited:

Administrative Decisions (Judicial Review) Act 1997 (Cth)

Civil and Administrative Tribunal Act 2013

Home Building Act 1989

Local Land Services Act 2013

Local Land Services Regulation 2014

Rural Lands Protection Act 1998

Cases Cited:

Alchin v Rail Corporation NSW [2012] NSWADT 142

Attorney-General v Wentworth (1988) 14 NSWLR 481

Aubrey Robert Mills v Local Land Services [2017] NSWLEC 25

Builders Licensing Board v Sperway Constructions (Syd.) Pty Ltd (1976) 135 CLR 616

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47

Choi v University of Technology Sydney [2019] NSWCATAD 176

Commissioner for Fair Trading v Awadallah [2006] NSWADTAP 31

Commissioner for Fair Trading v Cruz [2009] NSWADTAP 51

Griffith University v Tang [2005] HCA 7

Mills v Local Lands Services [2015] NSWCATAD 207

Owners – Strata Plan No. 92334 v Piety Capital Pty Ltd [2019] NSWCATCD 22

Preston V Commissioner for Fair Trading [2011] NSWCA 40

Yammatree Pty Ltd v North West Local Land Service [2015] NSWCATAD 35

Texts Cited:

None

Category:

Procedural rulings

Parties:

Dr Justin Ryan (Applicant)
Local Land Services (Respondent)

Representation:

Applicant (Self-Represented)
Crown Solicitor (Respondent)

File Number(s):

2020/00256660

Publication restriction:

None

reasons for decision.

Background.

1. On 8 September 2020 Dr Justin Ryan made an external appeal to the Tribunal against a decision by Local Land Services (LLS) to refuse his application for a Travelling Stock Permit (TSR) under the Local Land Services Act 2013 (NSW) (the LLS Act) relating to a property known as the Dingo Reserve. The Dingo Reserve abuts a property owned by Dr Ryan on which he operates an organic farm.

2. From 2012 to 2015 Dr Ryan was issued with a three year annual grazing permit under the Rural Lands Protection Act 1998 with respect to the Dingo Reserve. From 1 July 2015 until 30 June 2020, he was issued with a long-term grazing permit over the Dingo Reserve under the LLS Act

3. Dr Ryan says that when the long-term grazing permit was about to expire, he applied for a five year Management Agreement Permit (MAP) with respect to the Dingo Reserve, by lodging an expression of interest in a tender process advertised by LLS. In all there were two expressions of interest lodged for the Dingo Reserve.

4. On 1 July 2020, LLS advised Dr Ryan that his expression of interest was unsuccessful.

5. On 6 July 2020 Dr Ryan wrote a lengthy letter to the LLS seeking a review of that decision. On 4 August 2020, the LLS wrote confirming the decision in respect of the expression of interest (EOI) process.

Dr Ryan’s external appeal.

6. On 2 September 2020 Dr Ryan filed an external appeal against the decision with the Tribunal. He made that appeal under section 86 of the LLS Act 2013 within 28 days of receiving the review decision. Section 86 relevantly provides:

(1)   An applicant for a permit may appeal to the Civil and Administrative Tribunal against a decision of Local Land Services to refuse to issue a permit.

Note—

An appeal to the Civil and Administrative Tribunal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013. A decision of the Tribunal on such an external appeal may be appealed to the Land and Environment Court under Schedule 1 to that Act.

(2)   The holder of a permit may appeal to the Civil and Administrative Tribunal against a decision of Local Land Services to cancel or suspend the permit.

(3)   The appeal must be made within 28 days of the refusal or receipt of the notice of cancellation or suspension.

(4)   A decision of Local Land Services to refuse to issue a permit or to cancel or suspend a permit is effective and operates (subject to any final determination on appeal) from the date of the decision.

(5)   On hearing the appeal, the Civil and Administrative Tribunal may—

(a)   revoke the decision to refuse to issue the permit and issue the permit (whether or not subject to conditions), or

(b)   confirm the decision to refuse to issue the permit, or

(c)   revoke the decision to cancel or suspend the permit, or

(d)   confirm the decision to cancel or suspend the permit.

7. An appeal under section 86 of the LLS Act is an appeal within the Tribunal’s external appeal jurisdiction. This is provided for in section 36 of the Civil and Administrative Tribunal Act 2013 (the CAT Act). It provides:

(1)   The Tribunal has external appeal jurisdiction over a decision (or class of decisions) made by an external decision-maker if legislation provides that an appeal may be made to the Tribunal against any such decision (or class of decisions).

(2)   The Tribunal also has the following jurisdiction in proceedings for the exercise of its external appeal jurisdiction—

(a)   the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings,

(b)   the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of such proceedings.

(3)   An appealable external decision is a decision of an external decision-maker over which the Tribunal has external appeal jurisdiction.

(4)   An external appeal is an appeal to the Tribunal against an appealable external decision.

(5)   A provision of enabling legislation that provides for a decision of an external decision-maker to be appealed to the Tribunal extends to the following—

(a)   a decision made by a person to whom the function of making the decision has been delegated,

(b)   if the provision specifies the decision-maker by reference to the holding of a particular office or appointment—a decision by any person for the time being acting in, or performing any of the duties of, the office or appointment,

(c)   a decision made by any other person authorised to exercise the function of making the decision.

(6)   Nothing in this section permits external appeal jurisdiction to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by another Act.

8. Section 86(1) of the LLS Act, when read with section 36(1) of the CAT Act, bestows external appeal jurisdiction on the Tribunal with respect to a decision to refuse or issue a permit as defined in s 61 of the LLS Act. An external appeal is not an administrative review. Section 71 of the CAT Act provides:

(1)   An external appeal may be made to the Tribunal by a person entitled to do so under enabling legislation on such a basis or grounds, or in such circumstances, as may be provided by that legislation.

(2)   In determining an external appeal, the Tribunal may—

(a)   in the case of enabling legislation that specifies the orders that may be made by the Tribunal on the appeal—make any of those orders, or

(b)   in any other case—make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following—

(i)   the appeal to be allowed or dismissed,

(ii)   the decision under appeal to be confirmed, affirmed or varied,

(iii)   the decision under appeal to be quashed or set aside,

(iv)   the decision under appeal to be quashed or set aside and for another decision to be substituted for it,

(v)   the whole or any part of the case to be reconsidered by the decision-maker whose decision is under appeal, either with or without further evidence, in accordance with the directions of the Tribunal.

9. Clause 14 of Pt 6 of Sch 3 to the NCAT Act and provides:

14   External appeals under lands legislation

(1)   Except as otherwise provided by the lands legislation, an external appeal made under that legislation:

(a)   may be made without requiring the leave of the Tribunal concerning the grounds for the appeal, and

(b)   is to be by way of a rehearing.

(2)   Fresh evidence, or evidence in addition to or in substitution for the evidence received by the external decision-maker, may be given in the appeal with the leave of the Tribunal.

10. In Mills v Local Lands Services [2015] NSWCATAD 207 Senior Member Montgomery considered the nature of an appeal under s 86 of the LLS Act. He had regard to a number of cases concerning the nature of appeals by way of rehearing, including Yammatree Pty Ltd v North West Local Land Service [2015] NSWCATAD 35; Builders Licensing Board v Sperway Constructions (Syd.) Pty Ltd (1976) 135 CLR 616 especially at 621–622 per Mason J; and Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47. He concluded that, in context, an external appeal under section 86 of the LLS Act is in the nature of a hearing de novo. That ruling was not challenged on appeal: see Aubrey Robert Mills v Local Land Services [2017] NSWLEC 25, per Robson J. No submissions were made by the parties in this matter as to the nature of an external appeal under the LLS Act. In those circumstances, I think the conclusion reached by Senior Member Montgomery, with which I agree, should be followed.

Procedure followed in the Tribunal.

11. On 13 October 2020, the Tribunal made orders with respect to the filing of evidence and submissions regarding LLS’s forecast application to summarily dismiss Dr Ryan’s external appeal under section 55(1)(b) of the CAT Act, on the ground that the proceedings are “frivolous or vexatious or otherwise misconceived or lacking in substance.” The parties were required to lodge materials and submissions, including submissions relating to whether the summary dismissal application could be determined on the papers.

12. That summary dismissal application has been allocated to me to determine:

1. whether it should be determined on the papers without a hearing; and,

2. if so, to determine it.

13. When I first reviewed the papers, I noted that a document relied on the LLS appeared incomplete. On 15 January 2020, the registrar wrote to the parties as follows:

The application to dismiss Dr Ryan's external appeal for want of jurisdiction, or alternately, under section 55(1)(a) of the Civil and Administrative Tribunal Act 2013 has been referred to Senior Member Molony.

Mr Molony notes that the copy of the Permit for grazing dated the 29 October 2015, forming part of Tab 7 to Mr Fuller's statement, is incomplete. The copy provided to the Tribunal does not show the Commencing Date, the Term, the Terminating Date or details of the Reserve. He presumes that this is a copying error.

Could the Respondent please provide both the Tribunal and of Dr Ryan with a complete copy of the Permit by email to [email protected] by close of business on 18 December 2020. Dr Ryan should advise if he disputes the accuracy of that document by close of business on 21 December 2020.

14. Given the intervention of Christmas, I next turned my mind to the matter in the middle of January 2021. I noted that nothing had been received from either party. I was told by the Tribunal Registry that the Crown Solicitor’s office advised that the document should be filed within a week.

15. Nothing has been received to date. I have proceeded to determine the matter.

Material before the Tribunal.

16. The following material was provided to the Tribunal when this matter was referred, and has been considered by me:

1. by Dr Ryan:

1. General application filed 2 September 2020 with attachments;

2. Submissions dated 27 October 2020 as to the proposed hearing on the papers, which also responds in part to the application for summary dismissal:

3. An article by Ryan, McAlpine, Ludwig and Callow intitled Modelling the Potential of Integrated Vegetation Bands to Retain Stormwater Run-Off on Steep Hill Slopes of Southeast Queensland, Australia, published in Land 2015, 712 -736. Dr Ryan is one of the authors.

4. An article by Ryan, Fife, and McAlpine intitled Biomass retention and carbon stock in integrated vegetation bands: a case study of mixed age, brigalow-eucalypt woodland in southern Queensland, Australia, published in 37 The Rangeland Journal 261 to 271. Dr Ryan is one of the authors.

5. Submissions dated 27 October 2020.

6. Dr Ryan’s CV.

7. An article by Ryan, McAlpine, and Ludwig intitled Integrated vegetation design for enabling water retention and recycling in agroecosystems, published online in Landscape Ecology.

8. Submission letter dated 12 October 2020.

9. An email submission dated 6 October 2020.

2. by LLS:

1. Statement of Ross Fuller with attachments;

2. Submissions from LLS on its application to dismiss and with respect to a hearing on the papers.

17. I note that Dr Ryan has subsequently filed further material relating to subsequent events after he was refused the MAP. I have not had regard to those materials in considering the dismissal application. They were filed after the time for making submissions had passed, and do not appear to address the summary dismissal issue. They may be relevant in a final hearing.

18. I also note that, like many applicants in person, Dr Ryan’s submissions contain mixtures of fact, opinion and some conclusions of law. He has signed his submissions. They contain assertions of fact which should properly be in a statement. I intend to treat them as if they were. In doing so I note:

1. that section 38 of the CAT Act says the Tribunal is not bound by matters of form and may inform itself as it thinks fit; and,

2. that the guiding principle of the Tribunal in matters of practice and procedure, is that set out in section 36 of the CAT Act; namely, to facilitate the just, quick and cheap resolution of the real issues in the proceeding.

Should the application be determined without a hearing?

19. 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.

20. In this regard the LLS has indicated it agreement to the dismissal application being determined without a hearing. Dr Ryan while saying he is addressing the issue has not done so directly. He has however responded to the summary dismissal application in his own submissions. Having reviewed all the materials, I am satisfied that the dismissal application can be determined in the absence of the parties by considering the materials lodged by the parties. I therefore dispense with a hearing of the summary dismissal application.

The Local Land Services Act 2013.

21. The objects of the LLS Act are set out in section 3.

The objects of this Act are as follows—

(a)   to establish a statutory corporation (to be known as Local Land Services) with responsibility for management and delivery of local land services in the social, economic and environmental interests of the State in accordance with any State priorities for local land services,

(b)   to establish a governance framework to provide for the proper and efficient management and delivery of local land services,

(c)   to establish local boards for the purpose of devolving management and planning functions to regional levels to facilitate targeted local delivery of programs and services to meet community, client and customer needs,

(d)   to require decisions taken at a regional level to take account of State priorities for local land services,

(e) to ensure the proper management of natural resources in the social, economic and environmental interests of the State, consistently with the principles of ecologically sustainable development (described in section 6 (2) of the Protection of the Environment Administration Act 1991),

(f)   to apply sound scientific knowledge to achieve a fully functioning and productive landscape,

(g)   to encourage collaboration and shared responsibility by involving communities, industries and non-government organisations in making the best use of local knowledge and expertise in relation to the provision of local land services,

(h)   to establish mechanisms for the charging of rates, levies and contributions on landholders and fees for services,

(i)   to provide a framework for financial assistance and incentives to landholders, including, but not limited to, incentives that promote land and biodiversity conservation.

22. Local land services are defined in section 4(1):

In this Act, local land services means programs and advisory services associated with agricultural production, biosecurity, natural resource management and emergency management, including programs and advisory services associated with the following—

(a)   agricultural production,

(b)   biosecurity, including animal pest and disease and plant pest and disease prevention, management, control and eradication,

(c)   preparedness, response and recovery for animal pest and disease and plant pest and disease emergencies and other emergencies impacting on primary production or animal health and safety,

(d)   animal welfare,

(e)   chemical residue prevention, management and control,

(f)   natural resource management and planning,

(g)   travelling stock reserves and stock watering places,

(h)   control and movement of stock,

(i)   related services and programs.

23. LLS is constituted as a body corporate by section 8 and is a New South Wales government agency: section 9. LLS is subject to ministerial control and direction in the exercise of its functions: section 11. Its functions are specified in section 14. They include:

(a)   to administer, deliver or fund local land services,

(b)   to develop and implement appropriate governance arrangements for the delivery of local land services,

…

(j)   to exercise such other functions as are conferred or imposed on it by or under this or any other Act.

24. Part 3 of the LLS Act provides for there to be a Local Land Services Board with the functions set out in section 26. It also establishes a number of Local Boards with the functions set out in section 29, which functions are to be exercised in accordance with the policies, procedures and directions of LLS: section 29(2). The chair of each Local Board is a member of the Local Land Services Board. In the present case, the Local Board is concerned is the Northern Tablelands Local Board (the NTLB).

24. Part 6 of the LLS Act is concerned with travelling stock reserves and public roads. Section 61 contains a number of relevant definitions. They are:

controlled travelling stock reserve means—

(a)   a travelling stock reserve the care, control and management of which is vested in Local Land Services under this Part, or

(b)   a travelling stock reserve that is a stock watering place for which Local Land Services is the controlling authority under Part 7.

permit means a stock permit or reserve use permit.

travelling stock means stock that are being moved by being walked, and includes travelling stock that are grazing.

travelling stock reserve means—

(a) any route or camping place reserved for travelling stock route or camping place under the Crown Land Management Act 2016, or

(b)   any reserve for travelling stock, water reserve, reserve for access or crossing (where the reserve is for the purpose of providing travelling stock with access to or a crossing of water, whether expressly notified for that purpose or not), or

(c)   any stock watering place.

26. Among other things, LLS has the power to close controlled travelling stock reserves for the purposes set out in section 70(2), namely:

(a)   for the purpose of taking appropriate measures for the following—

(i)   the conservation of the soil or vegetation,

(ii)   the prevention or mitigation of soil erosion,

(iii)   the regeneration or planting of trees or pasture, or

(b)   to enable Local Land Services to exercise any of its other functions in relation to the reserve.

27. Section 72 contains a general prohibition from entering or remaining on, occupying, or using a travelling stock reserve, without lawful authority. There then follows a series of provisions creating general and specific exemptions to that prohibition. An example of a general exemption is found in section 74, which allows the use of travelling stock reserves for recreational activities during daylight.

28. Section 77 provides that LLS may issue reserve use permits:

(1)   Local Land Services may issue a permit (a reserve use permit) authorising a person or group of persons to engage in any activity in, or to occupy or make use of, a travelling stock reserve in a region for the purpose of establishing and maintaining an apiary or for any other purpose.

(2)   A reserve use permit must specify the days, or times of day, or both, that the activity, or occupation or use, is authorised.

(3)   Despite subsection (1), a reserve use permit cannot be issued to authorise engagement in any activity prohibited by this Act or to authorise occupation or use of a travelling stock reserve—

(a)   by travelling stock or for any stock for grazing purposes, or

(b)   for any recreational activity prescribed by the regulations under section 74, or

(c)   for any purpose prescribed by the regulations for the purposes of this section.

(4)   A reserve use permit is to be in the approved form.

29. Section 78 is concerned with the issue of permits authorising certain uses of travelling stock reserves and public roads. It relevantly provides:

(1)   An authorised officer of Local Land Services may issue a permit (a stock permit) to any person authorising the person to do anything (or omit to do anything) on or in relation to any public road or travelling stock reserve (whether controlled or managed) specified in the permit in respect of stock owned or in the charge of the person and that would otherwise contravene a provision of this Division.

(2)    Without limiting subsection (1), an authorised officer may issue a stock permit authorising a person to do any one or more of the following—

(a)   enter a controlled travelling stock reserve with stock,

(b)   remain on a controlled travelling stock reserve with stock,

(c)   walk stock on a public road or travelling stock reserve,

(d)   graze stock on a public road or controlled travelling stock reserve.

(3) …

30. The Dictionary provides that permits issued under s 78 are stock permits.

31. Applications for permits are to be made in accordance with section 79:

(1)   An application for a permit is to be made to Local Land Services in the manner prescribed by the regulations.

(2)   A permit must not be issued unless—

(a)   in relation to a reserve use permit (as referred to in section 77 (1))—the fee (if any) determined by Local Land Services has been paid or arrangements have been made for payment of the fee after issue of the permit, or

…

(d)   in relation to a stock permit that solely authorises a person to graze stock on a controlled travelling stock reserve (as referred to in section 78 (2) (d))—the following fee (if any) or amount has been paid or arrangements have been made for payment of the fee or amount after issue of the permit—

(i)   the fee determined by an auction, public tender or other means approved by Local Land Services for the permit,

(ii)   the fee (if any) prescribed by the regulations in respect of the permit, or such lesser amount as may be determined by Local Land Services in accordance with subsection (3), or

(e)   in relation to any other stock permit—the fee (if any) prescribed by the regulations in respect of the permit, or such lesser amount as may be determined by Local Land Services in accordance with subsection (3), has been paid or arrangements have been made for payment of the fee or the lesser amount after issue of the permit.

(3)   For the purposes of subsection (2), any lesser amount determined by Local Land Services must be determined by reference to—

(a)   a class of persons, public roads, travelling stock reserves or activities, or

(b)   situations that come within circumstances described in the determination.

…

(6)   If Local Land Services has determined that the fee for a stock permit that solely authorises a person to graze stock on a controlled travelling stock reserve is to be determined by an auction, public tender or other means approved by Local Land Services (as referred to in subsection (2) (d) (i)) and such an auction, public tender or determination by other means occurs, Local Land Services may not accept the fee or lesser amount (as referred to in subsection (2) (d) (ii)) for the permit.

32. Division 4 of Part 6 of the Local Land Services Regulation 2014 (NSW) (the LLS Regulation) is concerned with permits. Clause 71 provides that an application for a permit may be made orally or in the approved form (if any). An oral application must be confirmed in writing. The clause goes on to provide when an application should be made and what fee is payable.

33. Section 80 provides that a stock permit, unless cancelled or suspended, remains in force for the period specified in the permit. A stock permit may be cancelled or suspended by LLS at any time by notice in writing, stating the grounds for cancellation or suspension: see s 81.

34. Classes of stock permits and the authority they give may be prescribed: s 82. There are no provisions in the LLS Regulation dealing with classes of stock permits and their authority.

35. Stock permits are subject to such conditions as are prescribed by the Regulations or specified in the permit; s 83. Clause 73 of the LLS Regulation is concerned with the conditions of stock and reserved use permits. It provides:

The holder of a permit must—

(a)   produce the permit for inspection on demand by an authorised officer, and

(b)   comply with any reasonable request made, or direction given, by an authorised officer.

Maximum penalty—5 penalty units.

36. The holder of a stock permit must ensure that their stock is not moved over or grazed on a TSR in contravention of any provision of the Act or the regulations: s 84.

37. At paragraph 6 above, I quoted the text of section 86 which allows an appeal against a decision to cancel or refuse a permit to be made to this tribunal.

The Dingo Reserve Tender

38. I will outline, as briefly as possible, the evidence relating to the Dingo Reserve tender. It should be noted that, in determining issues of jurisdiction and applications for summary dismissal, the Tribunal makes its assessment based on the case as alleged by the applicant (Dr Ryan). It is not the Tribunal’s function in the circumstances to resolve contested issues of fact, but rather, to ask whether, based on the case as alleged by the applicant:

1. the Tribunal has jurisdiction to hear and determine the external appeal; and,

2. the external appeal should be dismissed under s55(1)(b) if the Cat Act.

39. What follows is not a detailed exposition of the evidence relied on by the parties.

40. Dr Ryan’s five year, long-term grazing permit over the Dingo Reserve was due to expire on 30 June 2020.

41. In May 2020 LLS embarked on a state-wide, publicity and advertising campaign, calling on those interested to participate in a tender application process for five year MAPs over TSRs. A fact sheet downloadable from LLS’s website advised:

This fact sheet provides an overview of the application process for lodging a tender for a Management Agreement (MA) Permit over a Travelling Stock Reserve (TSR). The fact sheet also describes the subject TSR’s and the assessment criteria for all applications.

42. The fact sheet advised that if people wished to tender for an ‘advertised grazing opportunity’, they would need to meet a number of requirements. These included:

…

▫ submit a TSR MA Permit tender

▫ read and understand the ‘TSR plan of management”. TSR – Delivering better TSR Services for our customers document

▫ read and understand the ‘Best Environmental Management Practice Toolkit for TSRs”

…

Be able to meet other requirements outlined in the permit Terms and Conditions

43. MAPS, according to Mr Fuller, from the NTLB, were previously known as Annual Grazing Permits and then Long-Term Grazing Permits. There is certainly no mention of any of those terms in either the LLS Act or the LLS Regulation. The failure to use language consistent with the statute is unfortunate, as it can result in confusion and complications.

44. The fact sheet advised of the following selection criteria:

The following selection criteria will be used by the committee when making the recommendation on tender submissions (not necessarily in order of priority):

1.   proposed use of grazing on TSR (e.g. particulars of intended grazing purpose, any existing and proposed structure required to supplement use, if using conjunction with adjoining land or as a ‘stand-alone’ parcel of land and any other information [in] relation to the use of the TSR)

2.   the type of stock and the stocking rate intended to apply to the TSR

3.   immediate management issues considered to be a priority

4.   the applicant’s experience in land management and his or her ability to ensure appropriate ongoing management of the TSR (e.g. training courses undertaken i.e. Prograze, grazing for profit)

5.   proposed Drought Management Strategy (strategy to maintain acceptable groundcover during drought conditions, e.g. de-stocking, restricted grazing)

6.   proposed a Bushfire Hazard Reduction Plan (under the Rural Fires Act 1997, landholders are required to take the necessary steps to prevent the occurrence and spread of bushfires)

7.   current fencing condition and that he intended maintenance/replacement program (boundary fences are to contain stock, and any maintenance/replacement requires negotiation with adjoining landholders).

In addition to these criteria, consideration will also be given to the annual permit fee offered, payment history and past land management performance of the applicant.

45. With respect to the selection process, the fact sheet advised:

1.   Only submissions received by the closing date will be considered.

2.   All submissions will be evaluated by a selection committee, which will recommend an application or a shortlisting of several suitable applicants.

3.   If required, negotiation of final permit arrangements will be made with shortlisted applicants, in order of merit, as determined by the selection committee.

4.   A final recommendation will be made by the selection committee, which will require the approval of the Local Land Services delegated officer.

5.   All applicants will be notified in writing of the outcome. The successful applicant will be required to pay a permit application fee of $300 and one years permit fee in advance.

6.   If no applications are supported to the committee, the TSR will be managed under standard monthly grazing permits.

46. On 8 June 2020 Dr Ryan submitted an expression of interest for a MAP, over the Dingo Reserve, in which he addressed all of the selection criteria.

Does the Tribunal have external appeal jurisdiction with respect to Dr Ryan’s appeal?

47. LLS relied on decisions of the Appeal Panel of the ADT, with respect to literally interpreting provisions conferring administrative review jurisdiction on the Tribunal. These were Commissioner for Fair Trading v Awadallah [2006] NSWADTAP 31 and Commissioner for Fair Trading v Cruz [2009] NSWADTAP 51, in which the Appeal Panels adopted a literal approach when construing provisions of the Home Building Act 1989 (NSW) conferring jurisdiction on the Tribunal.

48. The conclusion reached by the Appeal Panel in Cruz, was that the word ‘penalty’ in s 83B(3) of that Act did not encompass a reprimand under the Act, so as to confer a right of appeal. That decision was overruled by the Court of Appeal in Preston V Commissioner for Fair Trading [2011] NSWCA 40, which found that the word punishment in s 83B(3), and in the context of the Home Building Act as a whole, included a reprimand: per Campbell JA; with Tobias and Young JJA agreeing.

49. In Dr Ryan’s case, LLS submits that, construed literally, section 86(1) of the LLS Act, which grants to applicants for a permit a right to appeal against a decision of LLS to refuse a permit, does not apply. This is so because:

24. … it cannot be said that the respondent ‘refused to issue’ the applicant with a permit rather, the applicant’s expression of interest in a process whereby has the applicant been successful, he would then have become an “applicant for a permit”.

50. LLS says that Dr Ryan was not an applicant for a permit and has not been refused a permit. Rather, by participating in the tender Dr Ryan entered into “an arrangement between the parties anterior to the making of an ‘application” by the successful lodger of the tender/EOI.” Therefore, LLS submits, no decision was made to refuse his application, as no application was made as his application was not selected by LLS. LLS then relies on an unsatisfactory analogy with the issue of whether certain decisions were made “under an enactment” for the purposes of the Administrative Decisions (Judicial Review) Act 1997 (Cth). One such case is Griffith University v Tang [2005] HCA 7.

51. I have significant difficulties with LLS’s jurisdictional argument. Section 86(1) of the LLS Act says that an applicant for a permit may appeal a decision to refuse to issue a permit. Section 79 of the LLS Act says that an application for a permit is to be made in the manner prescribed by the regulations but that a permit must not be issued unless the fee has been paid s 79(2).

52. The fee for permits, like the one in issue here - that solely authorises a person to graze stock on a controlled travelling stock reserve issued under section 78(2)(d) - may be prescribed (78(2)(d)(ii)), or determined “by an auction, public tender or other means approved by the local land services for the permit.” It is important to note that, read literally, the purpose of any such auction, public tender, etc is to “determine the fee”, not to determine, to whom the permit will issue.

53. Clause 71 of the LLS Regulation provides that applications for permits can be made orally (but later confirmed in writing) or in a prescribed form. No form is prescribed.

54. LLS’s evidence in this case, shows that it put up for tender a MAP for the Dingo Reserve for a period of five years. Interested persons were advised of the requirements of be the successful applicant, which included that they submit a permit tender. The evidence shows that Dr Ryan submitted such a tender. The selection process described in the fact sheet published by LLS uses the words “submissions”, and “application” alternately with “tender”, without distinguishing between the three. The selection process for the tender, as described in the fact sheet, would result in the selection of a successful applicant, who would be required to pay the necessary fees. The evidence shows that the permit was awarded to Dr Ryan’s competing bidders, who were advised of their “successful tender application for the Northern Tablelands Local Land Services 2020 – 2025 Management Agreement Permits.” On its face, this suggest that LLS considered tenders to be applications for MAPs.

55. Dr Ryan argues that in those circumstances he made an application for a MAP for Dingo Reserve in accordance with LLS’s requirements. If he had not participated in the tender process established by LLS, he would have had no opportunity to apply for the MAP. As I understand it, he says that his submission of his EOI for the “Management Agreement Plan Expression of Interest – Dingo Reserve” on 8 June 2020 was, in the circumstances, an application for a permit. There is no doubt it was made to LLS.

56. It resulted in Dr Ryan receiving a letter from LLS advising that his expression of interest for a MAP on Dingo Reserve was unsuccessful. It is clearly arguable that this constitutes a refusal by LLS to grant Dr Ryan the permit he sought.

57. I am not persuaded that the Tribunal does not have jurisdiction to hear and determine Dr Ryan’s external appeal. His case clearly discloses a basis upon which the Tribunal could find it has external appeal jurisdiction.

Is the external appeal misconceived or lacking in substance?

58. In Choi v University of Technology Sydney [2019] NSWCATAD 176 I considered the authorities with respect to applications that are lacking in substance or misconceived. I wrote:

63  In Alchin v Rail Corporation NSW [2012] NSWADT 142 Judicial Member Wright SC (as he then was) examined the meaning of the predecessor provision to s 55(1)(b) - s 73(5)(g)(ii) of the Administrative Decisions Tribunal Act 1977. As to the meaning of ‘misconceived’ and ‘lacking in substance’, he said:

25 The expressions used in s 92(1)(a)(i) of the ADA, namely "misconceived" and "lacking in substance" are found not only in the ADA but also in s 73(5)(g) of the ADT Act and similar legislation in other states. With respect to a similar provision found in the Equal Opportunity Act 1984 (Vic), Ormiston JA in State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at [14] said:

"misconceived" and "lacking in substance" have not, so far as I am aware, been used in this context before though each expression is commonly used by lawyers, the one connoting a misunderstanding of legal principle and the other connoting an untenable proposition of law or fact. If one may discern, in these provisions, an attempt to express the powers of tribunals in non-technical language, then "misconceived" would represent a claim which did "not disclose a cause of action" ..., whereas "lacking in substance" might be seen to represent a claim where the defendant could obtain summary judgment ...

26 This approach of construing "misconceived" as including a misunderstanding of legal principle and "lacking in substance" as encompassing an untenable proposition of fact or law has been applied by the Tribunal in many decisions including, for example, Keene v Director-General, Department of Justice and Attorney-General [2011] NSWADT 59 at [14], McDonald v Central Coast Community Legal Centre [2008] NSWADT 96 at [22] and Stanborough v Woolworths Ltd [2005] NSWADT 203 at [50].

64  In the present case, the Tribunal referred to the frequently-cited explanation of this term by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491:

1.   Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.

2.   They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.

3.   They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.

65 It will be seen that Roden J’s first category covers conduct that falls within the meaning of ‘frivolous’, while his third category embraces the kind of cases to which the expressions ‘misconceived’ and ‘lacking in substance’ are directed (or, in the case of the UCPR categories, cases not disclosing a reasonable cause of action).

66 In our view a reasonably broad connotation should be given to the meaning of the four categories of conduct identified by s 55(1)(b). The intent of the provision, as we see it, is to seek to give the Tribunal a broad power to deal with abuses of its processes, and for them to be interpreted and applied in a power which captures any kind of abuse of process, that can reasonably be seen to fall within their compass. While ‘misconceived’ and ‘lacking in substance’ may be seen as relatively specific terms, we think a flexible, purposive interpretation can be adopted in determining whether proceedings are ‘frivolous’ or ‘vexatious’, conscious always of the gravity for an applicant or plaintiff of summary dismissal of proceedings.

39. In The Owners – Strata Plan No. 92334 v Piety Capital Pty Ltd [2019] NSWCATCD 22 Principal Member Rosser noted with respect to the word misconceived that:

33 The meaning of “misconceived” in an equivalent provision to s 55(1)(b): s 75(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998 has been considered in a number of cases by the Victorian Civil and Administrative Tribunal (VCAT).

34  For example, in Ballarto Pastoral Pty Ltd v Department of Primary Industries [2006] VCAT 478, VCAT stated at [32] that “misconceived” in the context of s 75(1)(a) means “obviously untenable or groundless …. or means that the applicant has brought an incorrect type of application”. In Kyriakidis v State of Victoria (Human Rights List) [2014] VCAT 1039 (21 August 2014), VCAT characterised as misconceived an application in which the complaint as articulated was not capable as a matter of law of enlivening VCAT’s power to make the order sought. This conclusion was also reached in Keogh v Higgins(Civil Claims) [2014] VCAT 1256 (3 October 2014).

59. At the heart of LLS’s submissions, is that the external appeal made by Dr Ryan is misconceived because the Tribunal is unable to grant him a remedy. LLS refers to the orders that the Tribunal is able to make on an external appeal relating to the grant of a permit. Section 86(5) of the LLS Act provides that the Tribunal may make orders that:

(a)   revoke the decision to refuse to issue the permit and issue the permit (whether or not subject to conditions), or

(b)   confirm the decision to refuse to issue the permit, or

(c)   revoke the decision to cancel or suspend the permit, or

(d)   confirm the decision to cancel or suspend the permit.

60. Put shortly, LLS submits that Dr Ryan is seeking an order that the Tribunal revoke the decision to refuse him a permit and issue the permit to him. LLS says it is not possible to make the second part the order sought, because the MAP has already been issued to another person. LLS asserts that:

29. … properly construed, section 86(5)(a) of the LLS Act does not authorise the Tribunal to make an order where, as here, the permit has already been issued to another person.

…

31. … The Tribunal has no power to divest a successful tenderer, to whom the permit has been issued, of the permit. Nor can the Tribunal “declare ”the successful tenderers” permit void, as the applicant argues.

61. LLS says that in the circumstances of these proceedings, it is not open to the Tribunal to make an order under section 86(5)(a) of the LLS Act revoking the decision to refuse Dr Ryan a MAP over the Dingo Reserve, and to issue him with such a permit. The circumstances to which LLS refers are of its own making. LLS’s submissions do not address how the section 86 should be interpreted to lead to the conclusion it advocated.

62. In his submissions, Dr Ryan highlights that the result is of LLS’s making. He points out that he had requested a review before LLS received the executed MAP from the successful bidder. He then sought a review which was accepted as such and resulted in the decision being confirmed on 4 August 2020. On receipt of the review decision, he sought an external appeal within time. Implicit to these observations is that LLS should have been and was aware of the potential for an appeal and should have held off on further action with respect to the new MAP until such time as the position was clarified. The outcome of this may depend upon a final determination as to when the new MAP commenced.

63. Dr Ryan also challenges the veracity of the tender process alleging that he was told by Mr Turner that his bid - which he asserts was the highest bid – was deemed uncompetitive and disregarded. He also questions what value if any was attributed to ecological and management considerations when determining to refuse his application. My review of the legislation also raises questions concerning whether the tender process adopted by LLS was consistent with the requirements of the LLS Act. Whether it is consistent with LLS policy is a question that has not been canvassed.

64. It follows that there are live issues between the parties concerning the decision to refuse Dr Ryan a permit. In that sense his external appeal is not frivolous, vexatious, misconceived or lacking in substance.

65. I accept LLS’s submission that, if the Tribunal were to make an order under section 86(5)(a) of the LLS Act, that order would have to encompass both a revocation of the refusal to issue a permit and a decision to issue the permit to Dr Ryan. LLS, however, asserts that because it has issued a MAP over the Dingo reserve to another person, the Tribunal has no power to make an order under section 86(5)(a). A practical consequence of this submission is that by issuing a MAP to another person, after refusing an application from an applicant, LLS can effectively deprive an applicant whose application for a permit has been refused of a right to appeal and of the remedy provided by the LLS Act.

66. It should also be noted that the meaning and effect of section 86(4) of the LLS Act may also impact on the proper construction of the Tribunal’s powers on external appeal under section 86(5)(a). Section 86(4) provides:

(4)   A decision of Local Land Services to refuse to issue a permit or to cancel or suspend a permit is effective and operates (subject to any final determination on appeal) from the date of the decision.

67. Dr Ryan in his submission says that the Tribunal has full power to hear and determine his external appeal and may make an order under section 86(5)(a) in the circumstances. Read literally, section 86 supports his position. It clearly gives the Tribunal power to make such an order under 86(5)(a) on the application of a person who has been refused a permit. It does not address the situation when the refused permit has been issued to someone else. While the result of allowing such an appeal to proceed, and potentially succeed, may be seen to be perverse, so to is the outcome advocated for by LLS: that a person whose permit application is refused cannot make an appeal seeking an order under section 86(5)(a), after a MAP is issued to another person (especially in a tender process).

68. In my view these issues are complex, require careful investigation, argument and consideration. I do not accept LLS’s submission that, because of difficulties associated with what order the Tribunal can make (if any) under section 68(5) of the LLS Act, Dr Ryan’s external appeal is necessarily frivolous, vexatious, misconceived or lacking in substance. There are real issues of law and fact to be resolved.

Orders.

69. The Tribunal makes the following orders:

1. The Tribunal dispenses with a hearing in this matter in accordance with section 50(2) of the Civil and Administrative Tribunal Act 2013.

2. The application to dismiss the external appeal on the ground that there is no jurisdiction is dismissed.

3. The respondent’s application for summary dismissal of the applicant’s external appeal under section 55(1)(b) is dismissed.

4. The applicant’s external appeal is to be listed for further case conference at a date and time to be fixed by the Registrar.

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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: 26 February 2021