Ryan v Northern Tablelands Local Land Services (No 2)

[2021] NSWCATAD 378

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Ryan v Northern Tablelands Local Land Services (No 2) [2021] NSWCATAD 378

Hearing dates:

18 August 2021 (Submissions closed 1 October 2021)

Date of orders:

22 December 2021

Decision date:

22 December 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J McAteer, Senior Member

Decision:

The decision of the respondent is affirmed.

Catchwords:

Administrative Law – Local Land Services Act – Jurisdiction of Tribunal – whether applicant has standing to bring review – merits of decision

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Interpretation Act 1987

Local Land Services Act 2013

Local Land Services Regulation 2014

Rural Lands Protection Act 1998

Cases Cited:

General Steels Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125

Sayed v Deng [2012] NSWSC 851

Texts Cited:

Nil

Category:

Principal judgment

Parties:

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

Representation:

Solicitors:
Applicant: (Self-Represented)
Crown Solicitor (Respondent)

File Number(s):

2020/00256660

REASONS FOR DECISION

1. The applicant Dr Ryan, seeks review of a decision of the respondent, Local Land Services dated 4 August 2020. Dr Ryan had previously held a lease with Local Land Services (LLS) for a portion of land known as Dingo Reserve near Guyra in north eastern NSW. When the lease was up for renewal Dr Ryan sought a further lease of Dingo Reserve. However in mid 2020 following an assessment process LLS awarded the lease to a third party.

2. Dr Ryan wrote to LLS on 6 July 2020 and provided a detailed submission concerning matters relating to his stewardship of Dingo Reserve as Lease Holder, matters pertaining to recent correspondence and negotiations with LLS over the stewardship and renewal, as well as scientific opinion about land use and management as it relates to Dingo Reserve. In essence Dr Ryan sought to ‘challenge the decision’, as stated in the July 2020 correspondence, believing that his management had created the current positive situation concerning the reserve and that this situation would deteriorate as other lease holders did not have the ability to positively manage the land to the same extent.

3. LLS replied to Dr Ryan on 4 August 2021 and advised that they had reviewed the assessment process and determined that the decision and the process were sound and that the outcome would not be changed.

4. Dr Ryan applied to the Tribunal for a review of the decision. The nature of the review is by way of an External Appeal. After a preliminary hearing concerning jurisdiction where the Tribunal was not persuaded that it lacked jurisdiction to hear Dr Ryan’s external appeal, following a full hearing of the matter, I have decided that Dr Ryan does not have standing under the legislation giving rise to the appeal. However for completeness I have also considered the substantive issues raised at hearing and have found that as an application of Government Policy, the decision should be affirmed on the evidence before the Tribunal. Whilst Dr Ryan’s arguments hold significant weight and may be valid, the process and criteria used in the assessment and award process were open to LLS to apply. However because Dr Ryan does not have standing the decision of LLS of 4 August 2020 will stand and the application will be dismissed.

Background to the hearing

5. On 6 September 2020 Dr Ryan made an external appeal to the Tribunal concerning a decision by LLS to refuse a fresh request for a Travelling Stock Permit under the Local Land Services Act 2013 (the LLS Act). The Travelling Stock Permit related to the Dingo Reserve, which is land which adjoins Dr Ryan’s own land holding.

6. Dr Ryan held a three year annual grazing permit from 2012 to 2015 under the Rural Lands Protection Act 1998 in respect of Dingo Reserve. In 2015 with the coming into force of the LLS Act, Dr Ryan obtained a long term (5 year) grazing permit over the Dingo Reserve land from 1 July 2015 to 30 June 2020.

7. The Tribunal understands that when the long term grazing permit was due to expire Dr Ryan lodged an expression of interest in a tender process which had been advertised by LLS. The tenders were assessed by LLS. The evidence indicates that two expressions of interest were lodged for Dingo Reserve. On 1 July 2020 Dr Ryan was advised that his expression of interest was unsuccessful. A submission was made on 6 July 2020 by Dr Ryan seeking amongst other things, a review of the process. As outlined above the reviewer affirmed both the decision and process applied and so Dr Ryan lodged his external appeal with the Tribunal.

8. The application to the Tribunal was lodged on 8 September 2020 and sought a review in the following terms:

I request a judicial review of a decision made by the LLS as the determination was made in incorrect grounds.

The decision is otherwise wrong in law and / or fact.

The decision relates to the Local Land Services (LLS) decision not to renew my long-term permit of a TSR.

The TSR in question is Dingo Reserve (R14267) and the relevant LLS is the Northern Tablelands.

I have attached the decision made by LLS (Annex A).

9. Dr Ryan’s application also set out the grounds that he was seeking his review. They were as follows:

The LLS decision not to renew TSR lease fails to take into account the true impact on my organic farm and lifestyle.

The decision fails to ensure conservation of rare and endangered plants within an endangered regional ecosystem.

The site specific context and environmental aspects have not been fully regarded.

Only direct monetary returns were valued while environmental services were not fully considered.

The decision did not factor in a cost against environmental harm from the reintroduction of grazing to the reserve. I have included detailed documents that provide the background and context to my appeal.

10. The statutory basis for the application to the Tribunal arises from the LLS Act. Part 6 of the LLS Act relates to Travelling Stock Reserves and Public Roads. Division 5 of Part 6 concerns the use of travelling stock routes and public roads. Under Division 5 are provisions relating to the issuing of permits for stock and reserve use. Section 86 of the LLS Act provides for appeals concerning the issue, cancellation or suspension of permits. The section is as follows:

86 Appeals concerning the issue, cancellation or suspension of permits

(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.

(6) (Repealed)

11. Dr Ryan’s appeal to the Tribunal is brought under s 86. LLS says that Dr Ryan does not have standing to bring such an appeal and as a result the Tribunal does not have jurisdiction to entertain his appeal. This matter was initially ventilated before the Tribunal by LLS who lodged an application for summary dismissal. That matter was heard by the Tribunal (differently constituted) dispensing with a hearing and which concluded that there was jurisdiction for the Tribunal to determine the appeal. The decision of S.M. Molony dated 26 February 2021 at: Ryan v Northern Tablelands Local Land Services [2021] NSWCATAD 36 relates. (Ryan No 1)

Jurisdiction hearing

12. In Ryan No 1 the Tribunal was asked by the respondent (LLS) to consider whether it had jurisdiction to determine an external appear with respect to Dr Ryan’s appeal. The substance of that determination is set out at [47] - [57] of the decision.

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 to 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 suggests 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.

13. The Tribunal was also asked to consider a backup argument from the respondent that the appeal was misconceived or lacking in substance. As a result of the decision in Ryan No 1 the matter progressed to a substantive hearing before me on 18 August 2021. LLS re-agitated their submission that the Tribunal did not have jurisdiction because Dr Ryan did not have standing to make the appeal to the Tribunal. In addition LLS addressed the substantive merits of the appeal and submitted that the decision was sound and should not be set aside by the Tribunal on the basis of the evidence and submissions of Dr Ryan.

14. Dr Ryan responded to the jurisdiction issue and prosecuted his application before the Tribunal concerning his position that the decision was made on incorrect grounds and was wrong in law.

15. From an examination of the decision in Ryan No 1, it is apparent that the Tribunal did not accept the LLS’s arguments that Dr Ryan had not applied for a permit and rather had only participated in an expression of interest (EOI) process. This was portrayed by the LLS as being a separate or anterior process to the process where a successful tenderer (following the EOI process) could apply for a permit. In such circumstances having applied for a permit a ‘permit applicant’ might be refused a permit, or granted a permit. If the permit was refused an appeal right exists under s 86 ss (1). Once issued a permit the ‘permit holder’ could have the permit suspended or cancelled, and this gives rise to an appeal right under s 86 ss (2).

16. The Tribunal noted that the evidence before it showed that the permit was awarded to Dr Ryan’s competing bidder, who when advised of their successful tender, were advised in terms which related to the issuance of permits, and as a result this suggested that LLS considered tenderers to be applicants for Management Agreement Permits (MAPs). The Tribunal made a finding arising from this evidence at [54] that it is arguable that the advice Dr Ryan subsequently received from LLS that his expression of interest for a MAP on Dingo Reserve was unsuccessful, constitutes a refusal to grant Dr Ryan the permit as sought (at [56]).

17. In essence the Tribunal was not persuaded that the expression of interest for a MAP process and the application for a permit process were not one and the same. Due to this lack of clear distinction the Tribunal understandably found that it had jurisdiction to determine the appeal under s 86 of the LLS Act.

18. On the lacking in substance back up argument in the summary dismissal application, the Tribunal found that having reviewed the relevant authorities as they applied to an application before the Tribunal, that the application had merit. The Tribunal considered LLS’s arguments that even if the Tribunal had jurisdiction no remedy was available from the Tribunal for Dr Ryan. LLS submitted that this was because Dr Ryan was seeking an order that the Tribunal revoke the decision to refuse him a permit and issue the permit to him. LLS argued that such an order is not sustainable because the permit had already been issued to a third party. Such an order would (as submitted by LLS) divest a successful tendered of their permit or declare the permit void. LLS said that s 86 of the LLS Act does not provide the Tribunal with such powers.

19. The Tribunal rejected LLS’s arguments on this issue as they did not address how s 86 should be interpreted to lead to the conclusion advocated by LLS. Other live issues were not addressed by LLS concerning the internal review, what the relevant policy considerations were and whether the decision had regard to those matters, and how the objects of the LLS Act and the relevant policies applied to the decision in issue and the interplay of the process and matters outlined above.

20. The Tribunal accepted Dr Ryan’s submission that s 86 of the LLS Act gave the Tribunal full power to determine the external appeal. The Tribunal acknowledged the limitations of s 86 (5) (a) – to issue a permit to a person who brings an appeal, and that the legislation does not appear to practically address the situation where a permit has already issued to a third party, in that a power in relation to a third party is not specified for the Tribunal in the LLS Act.

21. For those reasons the Tribunal dismissed the summary dismissal application and orders were made for the future conduct of the matter.

22. In respect of the substantive hearing, LLS again pressed the jurisdiction argument on more detailed grounds and with greater evidence and submissions than in the preliminary or interlocutory application. LLS submitted that the only way in which to reconcile the legislation with the process was to determine that the external appeal remedy was only available to permit holders. This would exclude Dr Ryan from standing after 30 June 2020 as he was at that time no longer a holder of a permit. In addition he had not been refused a permit by LLS.

23. In respect of re-agitating the jurisdiction argument LLS submitted that at the initial hearing as applicant for summary dismissal LLS were required to reach a very high threshold to achieve summary dismissal. Reference was made to General Steels Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 [HCA] 69 with Barwick CJ at [8] – [10].

8. The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. I have examined the case law on the subject, to some of which I was referred in argument and to which I append a list of references. There is no need for me to discuss in any detail the various decisions, some of which were given in cases in which the inherent jurisdiction of a court was invoked and others in cases in which counterpart rules to Order 26, r. 18, were the suggested source of authority to deal summarily with the claim in question. It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense". (at p129)

9. At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or "so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument"; "so to speak apparent at a glance". (at p129)

10. As I have said, some of these expressions occur in cases in which the inherent jurisdiction was invoked and others in cases founded on statutory rules of court but although the material available to the court in either type of case may be different the need for exceptional caution in exercising the power whether it be inherent or under statutory rules is the same. Dixon J. (as he then was) sums up a number of authorities in Dey v. Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 VOL CXII-9 where he says (1949) 78 CLR, at p 91 : "A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process." Although I can agree with Latham C.J. in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings (1949) 78 CLR, at p 84, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed. (at p130)

24. The above case has been relied upon by many Courts of record to establish the general principle that the nature of considering summary judgment is a different test to be considered at a higher threshold than a substantive determination of the merits of a case. Reference was also made to Beech Jones J in the case of Sayed v Deng [2012] NSWSC 851.

19. First, it means that his Honour's decision is not to be taken as a final determination of whether or not there was an accord and satisfaction. If this application is unsuccessful it would still be open to Mr Sayed to pursue that matter at a final hearing. This means that any prejudice said to have been suffered by Mr Sayed from any error on his Honour's part in refusing the application is relatively confined. In substance that prejudice is the costs and expenses that he will incur in running the balance of proceedings. If he is ultimately successful, he can in any event expect to recover a substantial amount of those costs.

20. Second, it means that Mr Sayed's complaint of error must be assessed against the criteria that his Honour must be taken to have been applying when considering the entry of summary judgment pursuant to UCPR 13.41(b) on the basis that no reasonable cause of action is disclosed.

21. The nature of that enquiry is discussed in Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62, General Steel Industries Incorporated v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, and more recently in Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 at [57] per Gaudron, Gummow and Hayne JJ:

"Ordinarily a party is not to be denied the opportunity to place his or her case before the court in the ordinary way and after taking advantage of the usual interlocutory processes.

The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceedings if it were allowed to go to trial in the ordinary way."

25. In determining the question as to re-agitating the jurisdiction argument of LLS, I accept the principles as outlined in the decisions referred to above. On a substantive hearing a mover for a summary dismissal application should be able to reapply the argument as a ground as to why the other party’s appeal should fail. I accept the proposition that the nature of summary judgment is a different test as noted in the cases referred to above.

The hearing

26. At the hearing on 18 August 2021 the Tribunal engaged with the jurisdiction issue and then (without making a determination on that matter) proceeded to hear the merits of the appeal. That approach was in effect taken by consent because it would be more efficient from the parties’ perspective. Time had been allocated and the hearing had been prepared on the basis that all issues would be canvassed. Any residual issues about jurisdiction could be addressed by way of brief written submissions post hearing.

27. As there had already been the summary dismissal application determined on the papers, the Tribunal accepted that both jurisdiction and the merits should now be considered. This was consistent with submissions around appeals and how it would be more appropriate to have both questions decided by the Tribunal to not further draw out the matter at first instance. This is also consistent with the guiding principle to resolve the issues in dispute in a just quick and cheap manner (s-36 NCAT Act).

28. LLS submitted on the jurisdiction issue at hearing that Dr Ryan had participated in an EOI process that lead to the identification of what LLS referred to as the ‘most appropriate tenderer’, to go forward as the applicant for a permit. At the conclusion of that period LLS entered into a series of standard negotiations with the tenderer selected from the EOI process and once those negotiations had concluded then a permit was issued. LLS submitted that because of the way in which the LLS Act is framed it does not contemplate a person who participates in the EOI process being an applicant for a permit which might give rise to appeal rights under s 86.

29. During the hearing the Tribunal actively engaged with LLS and inquired as to what was the purpose of the s 86 appeal if it was not available to anyone other than a successful tendered who was then issued with a permit. This inquiry was particularly relevant noting the statutory language of s 86 that ‘an applicant for a permit may appeal…’(s 86 (1)), and that ‘the holder of a permit may appeal …’ (s-86 (2)). LLS submitted that the EOI process must be treated as a preliminary process to the s 86 appeal process. The submission being that the person who goes forward at the end of the EOI process is the applicant for a permit for whom s 86 provisions are available.

30. The Tribunal still had some difficulty in understanding how a permit applicant or holder under s 86 might have grounds for an appeal, in that the contentious process having essentially concluded once they were selected to ‘go forward’ at the end of the EOI process. LLS submitted that appeals might arise in the context of the fee to be charged to the applicant for a permit, issues around insurance or other matters concerning a permit holder.

31. In addition LLS submitted that the reading of s 86 can only relate to someone who has applied for a permit or holds a permit (as a single entity) as the EOI process only contemplates that a single entity succeeds to become an ‘applicant for a permit’. Likewise, further on in the process once that entity receives their permit (post application) and is a ‘permit holder’ then they are also a single entity. LLS submitted that this situation illustrates how s 86 only contemplates one person or entity appealing, not the multifaceted situation referred to by the Tribunal in the summary dismissal application, whereby if Dr Ryan’s appeal succeeded then another person (the successful EOI tenderer) would be impacted and have appeal rights arising.

32. LLS conceded in oral submissions that the purpose and intent of the provisions of s 86 did seem somewhat at odds with what might be contemplated or take place in practice. Whilst a permit holder might have an issue with the permit and the regulator LLS, and could come to the Tribunal to address that issue, in practice it appeared to be a very narrow and somewhat unusual set of circumstances which might give rise to a practical grievance which would be remedied by lodgement of an appeal.

33. A further matter raised by LLS in submissions to characterise the discrete issue of how only a permit holder or applicant had standing to bring an appeal, concerned a reference to s 79 of the LLS Act. Section 79 provides:

79 Applications for stock permits and reserve use permits

(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

(b) in relation to a stock permit that solely authorises a person to walk stock on a public road or travelling stock reserve (as referred to in section 78 (2) (c))—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

(c) in relation to a stock permit that solely authorises a person to graze stock on a public road (as referred to in section 78 (2) (d))—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, 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.

(4) Local Land Services must display in a conspicuous place in its office the fees prescribed by the regulations or determined by Local Land Services as payable for applications for permits.

(5) An application under this section is taken (for the purposes only of any appeal) to have been refused if it has not been determined within the period of 14 days after the making of the application.

(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.

34. LLS submitted that the reference to the term issue in s 79 (2) (d) was significant in determining the proper construction of the provisions. The issuing of a permit would be a process to follow any preliminary process. Where a preliminary process was contemplated then after the conclusion of that process the substantive process or decision or action occurred, being the issuance of the permit. LLS submitted that the legislature did not use the words ‘refuse the application’, or ‘refuse to grant the application’, but rather deliberately contemplated that once an applicant for a permit had been identified, further steps were required such as paying of fees and insurances.

35. LLS submitted that the practice of selecting the preferred tenderer following calls for an expression of interest, is not a decision to refuse to grant the application but merely the selection process for a viable applicant.

36. In responding to the summary dismissal findings of the Tribunal LLS submitted that the outcome of the appeal process did not create a perverse situation, as contrary to the earlier preliminary finding of the Tribunal, only an entity with standing could mount an appeal. As a permit only issues to one entity, no complicating factors (such as interference in the rights of third parties) arise. The Tribunal is faced with determining one appeal brought by a permit applicant or holder who is a solitary party and the decision only has an immediate effect on them and no other entity (except the respondent).

37. Whereas if Dr Ryan’s application was to have standing then the Tribunal if making a decision in favour of Dr Ryan, would in effect be impacting on the rights of the successful tenderer who was not a party to these proceedings. If the Tribunal granted Dr Ryan’s application and made a decision under s 86 (5) (a) and revoked the decision to issue the permit (and subsequently made a decision to issue the permit), that would impact on the rights of the third party who is the current permit holder for the land in question.

38. LLS submitted that if Dr Ryan was aggrieved by the EOI process, then the proper remedy was not under s 86 but by way of judicial review.

39. Dr Ryan submitted that he made the application to the Tribunal under s 86 based on advice that he received from the respondent agency. He said that he requested an internal review following the EOI process. He said that he always saw himself as a MAP (Management Agreement Permit) applicant in that LLS officer Mr Fuller advised that there would be an internal review of his MAP application. Dr Ryan then referred to the second instance where he received confirmation that he was a MAP applicant, when he received the letter from LLS which concluded that there were no issues with the assessment of his MAP application.

40. Following this process Dr Ryan received an email response to his external appeal inquiry which directed him to s 86 of the LLS Act.

41. Dr Ryan’s main submissions on the matter related to the process undertaken by LLS as being faulty. He understood in oral submissions and responses to the Tribunal’s questions what LLS’s arguments about jurisdiction were and the point that any positive outcome for him would have an adverse impact on the current leaseholder, who had held the lease for in excess of 12 months at the time of the hearing.

42. Dr Ryan disagreed with LLS’s submission on jurisdiction and submitted that as a MAP applicant he should have appeal rights and to be denied appeal rights would be an injustice. The Tribunal notes that the issue of judicial review or prerogative relief was not canvassed further in the hearing, but references were made to other remedies potentially being open to an applicant who might be denied standing under s 86.

43. Dr Ryan provided a written statement on 10 September 2021 post hearing on the issues of both jurisdiction and merits. His position was that all tenderers for MAPs are applicants, in that in his submission they have the right to apply under s 86 of the LLS Act.

44. Dr Ryan submitted that s 79 (1) referred to:

An application for a permit is to be made to Local land Services in the manner prescribed by the regulations.

45. Dr Ryan submitted that by extension permits (or MAPs) are applied for by applicants through whatever means the LLS have contrived. He submitted that if the intention of the Act was to create an EOI process separate to an application process, this would have been specifically defined in the Act.

46. Dr Ryan submitted that s 86 (5) provides for four types of remedies. The first two under s 86 (5) (a) and (b) apply to an applicant whereas those under s 86(5) (c) and (d) apply to permit holders. (See [10] above).

47. Submissions also covered the unfairness of statutory appeal rights being unavailable to those who engaged in the process. References were made to the objects and purpose of the LLS Act. Dr Ryan referred to the ‘NSW TSR State Planning Framework 2016-2021’ which referred to aims where ‘decisions should be consistent, efficient, effective, fair and capable of withstanding public scrutiny’.

48. Dr Ryan referred to references to the term ‘applicants’ in both website references of the Department and also specific to the invitation for: ‘applicants to inspect the TSR before submitting a tender’.

Consideration of the jurisdiction issue

49. I have referenced the arguments of the parties and the manner in which the issues as to jurisdiction were addressed at the hearing. Where necessary the decision of the Tribunal in declining to accept that there was no jurisdiction has been identified and contrasted with the substantive process now underway. Both parties have had the opportunity to put on further submissions post hearing. In some aspects this was to ensure fairness to Dr Ryan who understandably understood that the jurisdiction issue was settled with the Tribunal’s decision of 26 February 2021.

50. As set out at some length above, the jurisdictional issue can be revisited at the substantive hearing. Consistent with the guiding principle of the Tribunal the approach of dealing with all issues is appropriate. The fact that LLS did not appeal the summary dismissal decision is immaterial to the matter going forward.

51. The Tribunal adjudicated an issue brought before it on an application of LLS. The Tribunal appropriately formed a view to the relevant standard that there was jurisdiction and that the application was not misconceived. The Tribunal appropriately found on the available evidence that Dr Ryan’s jurisdiction and standing as an applicant for a MAP was arguable. It was not (in the language of Barwick CJ in General Steel Industries Inc) ..

.."so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense".

52. I acknowledge consistent with the view of the High Court in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 (1964) 112 CLR 125)) that the power must be exercised with great care and only in circumstances where the proceedings are so obviously untenable that it cannot possibly succeed. For those reasons the earlier decision of the Tribunal was soundly made.

53. However, notwithstanding the finding that the jurisdiction issue was arguable, having conducted a detailed examination of this matter at hearing and with post hearing submissions I am not satisfied that the process engaged in by Dr Ryan in 2020 constituted a permit application process. Whilst ultimately that was the purpose of the exercise, to either be offered or to practically progress to the stage of applying for a permit, that was not what eventuated.

52. For reasons based on Government policy, LLS engaged in an EOI process which was a tender submission and evaluation process. Persons or entities were invited to examine the assessment criteria and submit an EOI. Those EOI’s for hundreds of leases across NSW were evaluated against pre-set evaluation criteria. That process resulted in an overall score made up of sub scores. Through the assessment and scoring process a preferred tenderer was identified and offered or invited to apply for a permit.

53. In my view the actual legislation, rather than any actions of LLS giving information or advice defeat Dr Ryan’s claim of standing and jurisdiction to bring the external appeal. When read properly the remedy under s 86 only applies to permit applicants or permit holders. In my view, because of the nature of the preliminary process that Dr Ryan engaged in and did not progress from, he was neither an applicant for a permit or a permit holder.

54. Section 86 (1) refers to an applicant for a permit. Section 86 (2) refers to the holder of a permit. At the time of his appeal to the Tribunal Dr Ryan was not the holder of or an applicant for a reserve use permit, or a stock permit. He was the pervious holder of a permit which expired on 30 June 2020. He was also a participant in the EOI tender process. However as has been shown by the evidence this process was a precondition to the issuing of permits.

55. I can see nothing in s 79 which would establish that at the relevant time Dr Ryan could be considered (in a legal sense) an applicant for a permit, even if by his actions that was the ultimate purpose of his endeavours in engaging in the EOI process. Section 79 (1) and (2) relevantly provide:

79 Applications for stock permits and reserve use permits

(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,

58. Clause 71 of the Regulation deal with permits.

71 Applications for permits

(1) An application for a permit is to be made to Local Land Services—

(a) orally, or

(b) in the approved form (if any) for the permit concerned.

(2) If an application is made orally, Local Land Services may request the applicant to confirm the application in writing.

Note—

If Local Land Services has delegated its functions relating to applications to a member of the Board, a member of the staff of Local Land Services or an authorised officer, the application may be made to that delegate.

(3) An application for a stock permit must be made at least 2 working days before the stock enter, remain on, walk or graze on, or are moved by vehicle over, a travelling stock reserve or public road in a region (unless Local Land Services agrees to accept the application although it is not made in that period).

Note—

Section 79 of the Act requires an application to be made in accordance with the regulations. Local Land Services need not process an application that is not received at least 2 working days before it is required.

(4) Fee for issue of permit For the purposes of section 79 (2) (c) and (d) (ii) of the Act, the following fee (being a fee in respect of a stock permit that solely authorises a person to graze stock on a public road or a stock permit that solely authorises a person to graze stock on a controlled travelling stock reserve) is prescribed—

(a) for small stock—$1 per day for each 10 or less small stock,

(b) for large stock (other than horses and camels)—$1 per day for each animal,

(c) for horses and camels—$2 per day for each animal.

(5) For the purposes of section 79 (2) (e) of the Act, the fee of $20 per year is prescribed.

59. On the question of jurisdiction I do not believe that Dr Ryan has standing to make the application under s 86, and therefore the Tribunal does not have jurisdiction to entertain his specific application, and I so find.

60. However I do not believe that Dr Ryan’s case was misconceived when he initially lodged the appeal with the Tribunal. I note from the case of State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at [124] where Ormistion J held that:

..”misconceived” referred to a misunderstanding of legal principle and ‘lacking in substance’ as encompassing an untenable proposition of fact or law.

61. This application was not misconceived, but required a consideration of jurisdiction by examining statutory language and the meaning of those provisions in the context of the legislation as a whole. It is only with the benefit of the jurisdiction argument being thoroughly examined that Dr Ryan’s application fails.

62. An application brought after a finding of a lack of standing or jurisdiction might be considered to be misconceived or encompassing an untenable proposition of fact or law. But that position only arises after a consideration of the jurisdiction issue. At the time that the application was brought, the matter was a live issue.

63. For completeness as explained above, the Tribunal now will briefly examine the merits of the decision (if jurisdiction was conferred).

64. At hearing evidence was given by two witnesses for LLS who were cross examined by Dr Ryan.

Evidence of P Hutching

65. Mr Hutching the General Manager of Local Land Reserves gave evidence that he has 26 years’ experience in this domain. He adopted his statement of 2 July 2021. Mr Hutching inspected the Dingo Reserve site the day prior to the hearing to make sure that the land was being managed by the current permit holder.

66. Mr Hutching said that traditionally stock reserves are for limited grazing and watering of livestock. He said that part of his role was to make sure that state wide standards were applied to travelling stock routes and reserves with the Northern Tablelands LLS. This entailed a multi criteria assessment process and an expert panel to assessment management agreement permits.

67. Mr Hutching spoke to the assessment criteria as set out in the fact sheet. The fact sheet criteria were set out at State wide level by LLS. The witness went through the seven evaluation criteria and gave evidence that the EOI assessment was carried out in isolation against the criteria without any comparison to other applications.

68. The witness referred to two main ongoing management issues relating to the land in question, being weeds (Blackberry) and fencing of the site. The witness indicated that these issues and the score on these criteria were of some relevance in the overall assessment scores of the two tenderers. Other issues regarding the introduction of stock grazing on the reserve and the long period of a lack of stock grazing were canvassed in Mr Hutching’s evidence. The matters relating to prior weed management, fencing and stock availability for the site were matters where Dr Ryan had been less proactive than what LLS was anticipating for permit holders, but these criteria were assessed on the proposals put by Dr Ryan (and the other tenderer) in the EOI.

69. Mr Hutching was asked about Dr Ryan’s claim that the tender process was faulty. This was denied and Mr Hutching’s evidence was that it was done consistently with the State wide process used across northern NSW.

70. In cross examination Mr Hutchings was asked about a number of matters including his knowledge of Blackberry on the reserve. Mr Hutching had knowledge of the history of the reserve before he was responsible for it and noted weed issues and prior fencing issues around complaints of stock entering the reserve.

71. Mr Hutching was asked about bushfire management for the site and the issue that the current leaseholder lives seven kilometres away, whereas Dr Ryan lives next door. Mr Hutching noted that bushfire management is often about prevention and preparedness.

Evidence of R Fuller

72. Mr Fuller had provided three statements to the Tribunal which other than a small correction were adopted.

73. In cross examination Mr Fuller confirmed that the weighting criteria were not unique to Dingo Reserve. He gave evidence that LLS Staff had provided information to inform the assessment panel dealing with the EOI’s.

74. Dr Ryan and the witness disagreed in respect of some issues about land use and management of the reserve such as Dr Ryan’s suggestion that erosion had accelerated in the 12 months since his management of the reserve ended. There was also questions contrasting Dr Ryan’s asserted record of fencing and protection of riparian areas from livestock grazing with what LLS took to be the position.

75. Other differing points of view around stock fencing appeared to be at cross purposes with Dr Ryan raising issues about the current leaseholder’s fence management and Dr Ryan’s boundary fencing not being stock proof.

76. In oral submissions at the end of the evidence Dr Ryan told the Tribunal that LLS had over emphasised his apparent issues with Blackberry and fencing as being important factors in his application being rejected. He said that the current lease (MAP) holder’s approach with damage to the riparian area was not known but should have been known. Dr Ryan submitted that the fact that it was not known during the assessment process was considered unimportant by LLS to the overall assessment process.

77. In submissions LLS said that the witnesses evidence clearly favours the assessment process outcome as made in 2020. LLS referred to Dr Ryan’s written evidence and submissions and noted that they focused on allegations about the process rather than the merits of the two applications.

Consideration

78. This external appeal application has been brought under s 86 of the LLS Act. I have already found that Dr Ryan does not have standing to make the application to this Tribunal under that provision, and as a result the Tribunal does not have jurisdiction to deal with the matter.

79. For completeness the merits of the application were addressed at hearing and evidence was adduced on the issue. In an external appeal the Tribunal may revoke the decision to refuse the issue of a permit, and order that a permit issue, or confirm the decision to refuse the permit. In addition where applicable (and subject to jurisdiction) the Tribunal may revoke the decision to cancel or suspend, or confirm the decision to cancel or suspend the permit.

80. I note that the Interpretation Act 1987 provides that when considering the meaning and purpose of a function under an Act, (by way of interpretation) regard should be had to the objects and purpose of that Act. Section 33 provides:

Interpretation Act 1987 No 15

33 Regard to be had to purposes or objects of Acts and statutory rules

In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.

81. The objects section of the LLS Act is set out at s 3 which provides:

3 Objects of Act

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.

82. Whilst Dr Ryan would argue on his detailed evidence that his approach places high values on s 3 (e) matters, likewise many of the criteria in the assessment process and the evidence of the respondent’s witnesses concerning the successful tenderer shows adherence to many of the other objects listed at s 3.

83. The main issue of Dr Ryan’s merits appeal relates to a view that the decision did not properly address the factors that he sees as important in the management of land reserves. His evidence and submissions and in particular his questioning of the LLS witnesses shows (in my view) a focus on an implied unfairness in the process because LLS did not hold or share similar values about importance and weighting of issues and criteria as he did. It would appear that Dr Ryan believes that the process was somewhat unfair as assumptions were made and the assessment panel had evidence and material provided by LLS officers to supplement the EOI data. Without determining specific issues and making findings of fact, it is clear that the professional officers of LLS and Dr Ryan had a different understanding and belief on the issues of who held responsibility for certain issues such as fencing.

84. However notwithstanding those differences of opinion, emphasis and importance, I have been unable to glean any direct evidence that the process put in place and carried out by LLS with the EOI process was in any manner unfair.

85. The Tribunal received evidence that the current approach was introduced to standardise the lease process whilst ensuring that the core values and policy objectives of the legislation were being met. A State wide approach was implemented, even if the evidence indicated that Northern NSW was the area where this process was currently in place.

86. If the Tribunal was conducting an administrative review, of an administratively reviewable decision, the Tribunal would be required in its decision to give effect to Government policy. Section 64 of the Administrative Decisions Review Act (the ADR Act) provides:

64 Application of Government policy

(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal must give effect to any relevant Government policy in force at the time the administratively reviewable decision was made except to the extent that the policy is contrary to law or the policy produces an unjust decision in the circumstances of the case.

(2) The Premier or any other Minister may certify, in writing, that a particular policy was Government policy in relation to a particular matter.

(3) The certificate is evidence of the Government policy concerned and the Tribunal is to take judicial notice of the contents of that certificate.

(4) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may have regard to any other policy applied by the administrator in relation to the matter concerned except to the extent that the policy is contrary to Government policy or to law or the policy produces an unjust decision in the circumstances of the case.

(5) In this section:

Government policy means a policy adopted by:

(a) the Cabinet, or

(b) the Premier or any other Minister,

that is to be applied in the exercise of discretionary powers by administrators.

87. LLS referred to various State wide criteria and polices in their evidence. Dr Ryan referred to the ‘NSW TSR State Planning Framework 2016-2021’ which he submitted aims to ensure that ‘decisions should be consistent, efficient, effective, fair and capable of withstanding public scrutiny’. In my view there is nothing in the decision or the process that is contrary to that framework or as stated above, the objects of the LLS Act.

88. In that regard to the extent that it is relevant, the Tribunal notes that the decision on its merits appears consistent with Government Policy.

Conclusion

89. Having regard to the evidence and material before me, I find that the applicant does not have standing to bring the application. As a result of that finding I find that the Tribunal does not have jurisdiction to determine the matter.

90. If I am wrong on the jurisdiction issue, I find that upon review by way of external appeal, the Tribunal would (on the evidence and material before it), assuming that Dr Ryan did have standing and was considered an applicant for a permit, I would confirm any decision to refuse to issue the permit consistent with s 86 (5) (b) of the LLS Act.

91. As the Tribunal does not have jurisdiction the appropriate order will be an order dismissing the application as misconceived. This is the position that the Tribunal arrives at, now at the conclusion of the hearing process, as contrasted with the earlier finding on s 55 (1) (b) NCAT Act.

92. I therefore make the following orders.

Orders

1. Pursuant to s 55 (1) (b) of the Civil and Administrative Tribunal Act 2013 the proceedings are dismissed because they are misconceived as the Tribunal does not have jurisdiction to deal with the application.

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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 December 2021