Whether or Not the Councils Resolution Is Valid - Essay Example

I FACTS OF THE CASE The Jacobsons live in their house in Quenbeyan that is fairly big with five bedrooms and very big backyard. Now that their children including the adopted children have moved out the two parents, Jack and Jill live alone in the big house. Jill is very fond of animals especially cats but did not previously indulge because of the number of children she was caring and their need for space. Now that the children have moved out she saw the opportunity to indulge her interest so she went to the Quenbeyan RSCPA to collect cats, she collected two a male and a female. Two weeks later, she went back to the RSCPA to collect two more but was denied by the officer on duty that day because she was given two already. Disappointed, Jill started to collect stray cats both from Quenbeyan and Canberra that at the end of 2006 they have 69 cats in their premises. The neighbours started to complain because of the smell and the noise the cats created and lodged their complaint before the Quenbeyan Municipal Council. Simon Sikofsmel a neighbour and member of the Council brought the matter to the Council for consideration during its February 13, 2007 meeting. The Council resolved to use its power under the Local Government Act 1919 to limit the number of cats into two that the Jacobson’s could keep at any time. The voting of the Council was unanimous supported by Simon. It is the contention of the Council that under Section 60(1) of the Local Government Act 1919: “the Council may control and regulate the keeping: of animals, and in particular, dogs, cats, pigs, pigeons and poultry on premises”.1 The term of the resolution provides that the Jacobson’s be served with the notice and to give them three months to comply the terms of the said resolution. However, because of a political implications Simon and some Councillors sought the approval of the President of the Council to delay the service of notice and have them under the leadership of Simon negotiate with the Jacobson’s first of which the President agreed. Simon along with his colleague Councillors met with the Jacobson’s on March 1, 2007 and that the latter get rid of the unnecessary number of cats in their premises within three months which the Jacobson’s agreed. However, when Simon checked on June 30, 2007 he thought he’d seen more cats than he had seen the last time he was in the premises. Hence, Simon asked the Council President to serve the resolution to the Jacobson’s which the Council’s Executive officer did. ISSUES Whether or not the Council’s resolution is valid? Whether or not the Jacobson’s could protect and keep their cats? Whether or not the Jacobson’s can avail of any remedy? RULING/ LAWS/ ACTS Based on the history of the Local Government Act in New South Wales, the Local Government Act 1919 was amended by the Local Government Act 1993 to eliminate the need for numerous approvals to be obtained by Councils in exercising their functions.2 However, Section 124 of the Local Government Act 1993 provides: “A Council may take such action as is necessary to bring into compliance with relevant standards or requirements set or made by or under this Act or under the Local Government Act 1919”.3 Provided further: “The Council may order requiring that premises be used or not used in specified ways, not to keep birds or animals on premises, other than of such kinds, in such numbers or in such manner as specified in the order.”4 Section 25 of the Administrative Appeals Tribunal Act 1975 provides that: “The Tribunal may review certain decisions made in the exercise of powers conferred by an enactment, or for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.”5 In the case of Australian Broadcasting Tribunal v Bond 170 CLR 321 (1990) Mason CJ stated that: “... a reviewable decision is one for which provision is made by or under a statute. That will generally, but not always, entails a decision, which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A ... decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision ... is under an enactment. Another essential quality of a reviewable decision is that it be a substantive determination.”6 In addition, an application for review of decisions may be made also before the Federal Court or the Federal Magistrates Court by the person whose interest is aggrieved by such decision on the basis that the decision involved an error of law, whether or not the error appears on the record of the decision as explicitly provided in Section 5(1)(f) of the Administrative Decisions (Judicial Review) Act 1977.7 When a Council gives order and the person does not comply with the order and does not appeal, Council carries out order at person’s cost and then the Council prosecutes. But if the person appeals, the Court may overturn the order, confirms order, or gives modified order and if again the person does not comply the Council carries out order at person’s cost and then the Council prosecutes. The Administrative Appeals Tribunal reviews a wide range of administrative decisions made by Australian Government ministers, departments, agencies, authorities and other tribunals. The Tribunal can also review administrative decisions made by state government and non-government bodies in limited circumstances. Sometimes, the Tribunal cannot review a decision until an internal review has been conducted by the person or body that made the primary decision.8 In other cases, review by the Tribunal is only available after intermediate review by a specialist tribunal. Such as in the case at bar which could be appealed to the Land and Environment Court. CONCLUSION The Council is vested with power to regulate public nuisance and to issue orders for the resolution of such. The Councillors as part of their duties being elected by the community serve as representatives of the latter to the Council and provide guidance and leadership to the community. Such powers are with legal basis under the Local Government Act 1919 and Local Government Act 1993 with regards to the abatement of nuisance cats or dangerous dogs. However, nothing in the abovementioned Acts that it limits the number of animals to be kept in premises into two at any time. The notice issued to the Jacobson’s of the Council’s resolution is valid since it is premised in the Local Government Act 1919 as amended by Local Government Act 1993. The said Acts also provide the right of the person issued with the notice to make an appeal before the Land and Environment Court against the order or part of the order and specify the period within which the appeal may be made.9 The Jacobson’s has a remedy by applying for an appeal of the Council’s decision of which the order may be overturned or modified. II FACTS OF THE CASE Dora Smith brought her white dress to the Southern Dry Cleaners in Goulburn in November 1, 2006 and was told that it would cost her $30 and it could be ready the following day, the amount was also shown in the receipt docket issued to her that day. The following day, Dora went back for her dress and paid $30 but upon inspection she saw a black mark on the dress which she knew haven’t been there before. So she went back to the Southern Dry Cleaners and pointed out the mark but the manager reasoned out that it was not because of their action in drying-cleaning the garment. Dora filed a complaint before the NSW Consumer Claims Tribunal under the Consumer Claims Tribunal Act 1974 (NSW) with the contention that Southern Dry Cleaners caused the damage to her dress. A hearing was set on January 10, 2007 but no one represented the Southern Dry Cleaners, nevertheless, the Tribunal proceeded with the case and entered judgment for Dora. It appeared that Nash Nasti forgot the date of the hearing because of work commitments until a clerk of the Tribunal called him. He went immediately to the Tribunal and applied that the Case be set for rehearing but he was told earlier by the clerk that there is no rehearing because the case has been decided and in the transcript of the case it was simply recorded “No Rehearing”, the reason for such refusal was not indicated. ISSUE Whether or not the Court may grant Nash Nasti’s application? RULING In the Administrative Decisions (Judicial Review) Act 1977, it is explicitly provided in Section 5(1) that: “in the application for review of decision a person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the decision on any one or more of the following grounds: that a breach of the rules of natural justice occurred in connection with the making of the decision;10that procedures that were required by law to be observed in connection with the making of the decision were not observed;11 that there was no evidence or other material to justify the making of the decision12provided, however, that it shall not be taken to be made out unless the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established.13 Furthermore, any person affected by the decision may obtain reasons for decision as clearly provided in Section 28 of the Administrative Appeals Tribunal Act 1975. A notice in writing given to the person who made the decision, request that person to give to the applicant a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision, and the person who made the decision shall, as soon as practicable but in any case within 28 days after receiving the request, prepare, and give to the applicant, such a statement.14 CONCLUSION For the NSW Consumer Claim Tribunal’s contention that there would be no rehearing but has not indicated any reason for such, Nash Nasti could very well apply before the Administrative Appeals Tribunal for the provision of reason for the decision. Moreover, the doctrine of natural justice provides two aspects: (1) the right to be heard; and (2) the right to determination by an unbiased decision maker. In Kioa v West, Mason J referred to examples of occasions when natural justice and fairness had been equated and noted that it had: “been recognized that in the context of administrative decision-making it is more appropriate to speak of a duty to act fairly or to accord procedural fairness. This is because the expression ‘natural justice’ has been associated, perhaps too closely associated, with procedures followed by courts of law. The developing application of the doctrine of natural justice in the field of administrative decision-making has been largely achieved by reference to the presence of characteristics which have been thought to reflect important characteristics of judicial decision-making.”15 As a judge, based on the above premise, Nash Nasti has the right to be heard and the right to know the reason of the decision for no rehearing, thus, application is granted. III A. Importance of the Principle Section 13 of the Administrative Decisions (Judicial Review) Act 1977 specifically provides for any person who can file an application to the Federal Court or to the Federal Magistrates Court to give notice in writing to a person who made the decision requesting him or her to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision. According to a judgment of the House of Lords in Save Britain’s Heritage v Number 1 Poultry Ltd that, “a statutory requirement to give reasons is the analogue in Administrative Law of the common law’s requirement that justice should not only be done, but also be seen to be done. Furthermore, the giving of reasons was the third principle of natural justice, it should be deemed to form part of the record for the purpose of certiorari. B. Steps involved on how to determine the reasons for a decision in a given case may be obtained from the decision maker as specified in Section 13 of the Administrative Decisions (Judicial Review) Act 1977:16 1. Any person who is entitled to make an application to the Federal Court or the Federal Magistrates Court under section 5 in relation to the decision may, by notice in writing given to the person who made the decision, request him or her to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision. 2. The person who made the decision shall, subject to this section, as soon as practicable, and in any event within 28 days, after receiving the request, prepare the statement and furnish it to the person who made the request. 3. Where a person to whom a request is made is of the opinion that the person who made the request was not entitled to make the request, the first mentioned person may, within 28 days after receiving the request: (a) give to the second mentioned person notice in writing of his or her opinion; or (b) apply to the Federal Court or the Federal Magistrates Court for an order declaring that the person who made the request was not entitled to make the request. IV Differences between the roles of the Administrative Review Tribunals formerly the Administrative Appeals Tribunal and that of the Ombudsman are: Administrative Review Tribunals: 1. The second tier of external appeal process for a decision of the Repatriation Commission.17 2. Provides independent review of a wide range of administrative decisions made by the Australian Government and some non-government bodies.18 3. Tribunal may review certain decisions as may be provided by an enactment: (a) for review of decisions made in the exercise of powers conferred by that enactment; or (b) for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.19 4. The Tribunal as may be provided by an enactment may review decisions of a person made in the exercise of a power conferred on that person, that provision of enactment applies also in relation to decisions made in the exercise of that power: (a)  by any person to whom that power has been delegated; (b)  in the case where the provision specifies the person by reference to his or her being the holder of a particular office or appointment--by any person for the time being acting in, or performing any of the duties of, that office or appointment; or (c)  by any other person lawfully authorized to exercise that power.20 5. The Tribunal has power to review any decision in respect of which application is made to it under any enactment.21 6. The Tribunal may determine the scope of the review of a decision by limiting the questions of fact, the evidence and the issues that it considers.22 7. Tribunal to determine persons whose interests are affected by decision. Where it is necessary for the purposes of the Administrative Appeals Tribunal Act to decide whether the interests of a person are affected by a decision, that matter shall be decided by the Tribunal and, if the Tribunal decides that the interests of a person are affected by a decision, the decision of the Tribunal is conclusive.23 8. Referral of proceeding for alternative dispute resolution process.24 Ombudsman: 1. Complaints may be filed to the Ombudsman against any person including public authority about the conduct of a public authority.25 2. The Commonwealth Ombudsman safeguards the community in its dealings with Australian Government agencies.26 3. The Ombudsman’s office handles complaints, conducts investigations, performs audits and inspections, encourages good administration, and carries out specialist oversight tasks.27 4. The Commonwealth Ombudsman is also the Defence Force, Immigration, Law Enforcement, Postal Industry and Taxation Ombudsman.28 References: Acts Section 60(1), Local Government Act 1919. Section 124(5), Local Government Act 1993. Section 124(18), Local Government Act 1993. Section 125, Local Government Act 1993. Section 138(1), Local Government Act 1993. Section 232(2), Local Government Act 1993. Section 5(1)(a), Administrative Decisions (Judicial Review) Act 1977. Section 5(1)(b), Administrative Decisions (Judicial Review) Act 1977. Section 5(1)(f), Administrative Decisions (Judicial Review) Act 1977. Section 5(1)(h), Administrative Decisions (Judicial Review) Act 1977. Section 5(3)(a), Administrative Decisions (Judicial Review) Act 1977. Section 13, Administrative Decisions (Judicial Review) Act 1977. Section 25(1), Administrative Appeals Tribunal Act 1975. Section 25(1)(a)(b), Administrative Appeals Tribunal Act 1975. Section 25(3A), Administrative Appeals Tribunal Act 1975. Section 25(4), Administrative Appeals Tribunal Act 1975. Section 25(4A), Administrative Appeals Tribunal Act 1975. Section 31, Administrative Appeals Tribunal Act 1975. Section 34(A), Administrative Appeals Tribunal Act 1975. Section 12(1), Ombudsman Act 1974. Journals/ Articles Administrative Appeals Tribunal. Retrieved on April 23, 2010 from http://www.aat.gov.au Administrative Review Tribunal. Retrieved on April 23, 2010 from http://www.vvaa.org.au/art.htm Commonwealth Ombudsman. Retrieved on April 23, 2010 from http://www.ombudsman.gov.au Local Council Provides History of the Local Government Act. Retrieved on April 20, 2010 from http://www.curriculumsupport.education.nsw.gov.au/nswconstitution/html/6th/bgr/invest2.html Retrieved on April 23, 2010 from http://www.aat.gov.au/AboutTheAAT/IntroductionToTheAAT.htm Case Laws Australian Broadcasting Tribunal v Bond 170 CLR 321 (1990). Kioa v West [1985 ] HCA 81; (1985) 159 CLR 550 (18 December 1985) Read More