Appleby v Monash City Council - [2013] VSC 282

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IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

JUDICIAL REVIEW & APPEALS LIST

2013 02202

JANE APPLEBY	Plaintiff/Applicant
v
MONASH CITY COUNCIL	Defendant / Respondent

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JUDGE:	ZAMMIT AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	16 May 2013
DATE OF JUDGMENT:	29 May 2013
CASE MAY BE CITED AS:	Appleby v Monash City Council
MEDIUM NEUTRAL CITATION:	[2013] VSC 282

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ADMINISTRATIVE LAW – Victorian Civil and Administrative Tribunal – Appeal to Supreme Court – Leave to appeal - Question of Law – Attended with sufficient doubt -Discussion that plaintiff’s dog a “Restricted Breed Dog” pursuant to s 3(1) of the Domestic Animals Act 1994 (Vic) - Test to be applied in determining whether dog falls within the approved standard for Restricted Breed Dog - Whether Tribunal applied correct test – Dudas v Monash City Council; Tarawa-Shearer v Darebin City Council [2012] VSC 578.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Klotz with Ms S Bailey	Michael Smith Solicitors
For the Defendant/Respondent	Mr P Connor	Hoeys Lawyers

HER HONOUR:

The plaintiff, Jane Appleby, seeks leave to appeal orders made on 3 April 2013 by VCAT pursuant to s 148(1) of the VCAT Act 1998.

By way of background, on 4 December 2012, the defendant, Monash City Council (“the Council”) collected and impounded two dogs owned by Ms Appleby. One of the dogs, named Kerser, is the subject of the leave application.

On 11 December 2012, an Authorised Officer of the Council gave notice pursuant to s 98A of the Domestic Animals Act 1994 (Vic) (“the Act”) to Ms Appleby that Kerser was declared to be a Restricted Breed Dog, an American Pit Bull Terrier.

The implications of the declaration for Kerser and Ms Appleby are significant. Under s 41EA of the Act, there is a prohibition on keeping a Restricted Breed Dog that was not registered in Victoria before 30 September 2011 and under s 17(1AA), the Council is not permitted to register such a dog. Kerser is not registered.

Ms Appleby sought a review of the Council’s decision declaring Kerser a Restricted Breed Dog.

Ms Appleby relies on the affidavit of Michael Smith, affirmed 15 May 2013.

An amended draft notice of appeal was filed on behalf of Ms Appleby in the course of submissions. No objection was taken by the Council.

When will leave be granted under s 148(1) of the VCAT Act?

Section 148(1) provides:
A party to a proceeding may appeal, on a question of law, from an order of the Tribunal in the proceeding –
(a)to the Court of Appeal, if the Tribunal was constituted for the purpose of making the order by the President or a Vice President, whether with or without orders; or
(b)to the Trial Division of the Supreme Court in any other case if the Court of Appeal or the Trial Division, as the case requires, gives leave to appeal.
Any appeal from orders made by VCAT must be “on a question of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] VSC 282
Decision Date: 29 May 2013

CaseChat Overview and Summary

Appleby v Monash City Council is an appeal against a decision made by the Victorian Civil and Administrative Tribunal (VCAT) regarding the classification of the appellant's dog as a "Restricted Breed Dog" under the Domestic Animals Act 1994 (Vic). The case has been brought before the Supreme Court to determine if leave to appeal should be granted, focusing on the question of law pertaining to the correct test applied by VCAT in deciding whether the dog met the criteria for being classified as a Restricted Breed Dog.

The central legal issue the court had to decide was whether VCAT correctly applied the relevant test in determining whether the dog was a Restricted Breed Dog. The appellant argued that VCAT did not apply the correct legal test, which was established in previous cases such as Dudas v Monash City Council and Tarawa-Shearer v Darebin City Council. The appellant contended that the Tribunal should have considered whether the dog conformed to the approved standard for a Restricted Breed Dog, rather than whether it exhibited characteristics commonly associated with the breed.

The court considered the arguments presented and the precedent set in previous cases. It concluded that there was sufficient doubt as to whether VCAT applied the correct legal test in its decision. The court held that the Tribunal's approach should align with the established criteria, focusing on whether the dog met the approved standard, rather than merely exhibiting characteristics of the breed. The court found that this issue of law was attended with sufficient doubt to warrant the grant of leave to appeal.

The Supreme Court granted leave to appeal, allowing the matter to proceed to a higher level of scrutiny. This decision ensures that the correct legal test will be applied in determining whether the dog meets the criteria for being classified as a Restricted Breed Dog, ensuring consistency and fairness in similar future cases.

Orders