Brisbane City Council v Roy - [2020] QCATA 147

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Brisbane City Council v Roy [2020] QCATA 147

PARTIES: BRISBANE CITY COUNCIL

(applicant/appellant)

v

EDWIDGE ANGELE GEORGETTE ROY

(respondent)

APPLICATION NO/S:

APL284-19

ORIGINATING APPLICATION NO/S:

GAR108-19

MATTER TYPE:

Appeals

DELIVERED ON:

19 October 2020

HEARING DATE:

26 August 2020

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown
Member Howe

ORDERS:
1.     Appeal allowed.

2.     The decision made 15 October 2019 is set aside.

3.     The decision made 12 February 2019 declaring Keziah to be a dangerous dog is confirmed.

CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – GENERALLY – where the applicant asserts error by Tribunal in interpreting and applying s 89(2) of the Animal Management (Cats and Dogs) Act 2008 (Qld) – consideration of the scope of discretionary power conferred by provisions of Part 4 of the AM Act – consideration of words ‘may’ and ‘must’ under the Acts Interpretation Act 1954 (Qld) – consideration of the purposes of the AM Act

Acts Interpretation Act 1954 (Qld), s 4, s 14A(1), s 32CA
Animal Management (Cats and Dogs) Act 2008 (Qld), s 3(c), s 3(d), s 4(g), s 4(l), s 4(m), s 59, s 60, s 61(a), s 89, s 90(1), s 92, s 94, sch 2
Criminal Code Act 1899 (Qld), s 1
Interpretation of Legislation Act 1984 (Vic)
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(1), s 142(3)(b), s 146, s 147
Acaroglu v Moreton Bay Regional Council [2020] QCAT 76
Cachia v Grech [2009] NSWCA 232
Encyclopaedia Britannica (Australia) Inc v Director of Consumer Affairs [1988] VR 904
Ericson v Queensland Building Services Authority [2013] QCA 391.
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
Imbrogno & Anor v Brisbane City Council [2017] QCATA 148
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41
R v Holley; Ex Parte Attorney-General [1997] 2 Qd R 407
Roy v Brisbane City Council [2019] QCAT 311
Samad v District Court of New South Wales (2002) 189 ALR 1
Willis v Hume City Council [2013] VCAT 1033

APPEARANCES & REPRESENTATION:

Applicant:

K Cartledge, legal counsel of Brisbane City Council

Respondent:

T Crispin, instructed by Lawyers for Companion Animals

REASONS FOR DECISION

Dr Roy is the owner of a dog, Keziah. On 5 January 2019 Keziah bit a child. Brisbane City Council (‘BCC’) subsequently made a decision declaring Keziah to be a dangerous dog. The tribunal at first instance set aside the decision of the BCC and instead made a menacing dog declaration.[1]
[1]Roy v Brisbane City Council [2019] QCAT 311.
BCC appeals the decision.[2]
[2]Application for leave to appeal or appeal filed 22 October 2019.
The decision at first instance
The following facts were not in dispute below or in the appeal:
(a)On 5 January 2019 Keziah…

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: [2020] QCATA 147
Decision Date: 19 October 2020

CaseChat Overview and Summary

The Brisbane City Council (BCC) appealed against the decision of the Queensland Civil and Administrative Tribunal (QCAT) that set aside a dangerous dog declaration in relation to a dog named Keziah, owned by Dr Roy. The appeal centred on the interpretation and application of section 89(2) of the Animal Management (Cats and Dogs) Act 2008 (Qld) (AM Act). The BCC argued that QCAT erred in its interpretation of the discretionary power conferred by Part 4 of the AM Act and in the consideration of the words 'may' and'must' under the Acts Interpretation Act 1954 (Qld). The appeal also questioned the purposes of the AM Act in relation to the declaration of dangerous dogs.

The Appeal Tribunal considered the statutory framework for appeals, noting that an appeal on a question of law is as of right, while an appeal on a question of fact or mixed law and fact requires leave from the Appeal Tribunal. The Tribunal then evaluated whether there was a reasonably arguable case of error in the primary decision, a reasonable prospect of obtaining substantive relief, the necessity of leave to correct a substantial injustice, and whether the question had general importance. The Tribunal found that QCAT erred in its interpretation of the statutory provisions by not properly considering the mandatory nature of the decision to declare a dog dangerous once the ground under section 89 still existed. This error led to an incorrect application of the law, which was sufficient to set aside the QCAT decision.

The Appeal Tribunal allowed the appeal, set aside the QCAT decision, and confirmed the BCC's dangerous dog declaration in relation to Keziah. This outcome reinforced the mandatory nature of the decision-making process under the AM Act when certain conditions were met.

Orders

Orders of the court

1. Appeal allowed.

2. The decision made 15 October 2019 is set aside.

3. The decision made 12 February 2019 declaring Keziah to be a dangerous dog is confirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

BCC appeals the decision.[2][2]Application for leave to appeal or appeal filed 22 October 2019.The decision at first instance The following facts were not in dispute below or in the appeal:(a)On 5 January 2019 Keziah bit the child on the back of her leg leaving three puncture wounds;[3](b)On the same day Keziah was seized by an officer from the BCC and returned to Dr Roy within the next few days;[4](c)On 10 January 2019 the BCC issued to Dr Roy a Proposed Declaration Notice – Dangerous Dog (‘the Notice’);[5](d)Dr Roy subsequently made submissions to the BCC about why the dangerous dog declaration should not be made;[6](e)On 12 February 2019 the BCC made a dangerous dog declaration.[7][3]Reasons [5].[4]Ibid [6].[5]Ibid [7].[6]Reasons [7].[7]Ibid. The learned member found:(a)The attack by Keziah upon the child was unprovoked and unwarranted;[8](b)The attack by Keziah resulted in the child suffering three small puncture wounds causing bleeding;[9](c)The injuries sustained by the child constituted bodily harm as defined in Schedule 2 of the Animal Management (Cats and Dogs) Act 2008 (Qld) (‘AM Act’);[10](d)The attack was more in the nature of a snap rather than a vicious bite;[11](e)In accordance with s 89(3) of the AM Act the attack was not serious.[12][8]Ibid [14].[9]Ibid [30].[10]Ibid [13][11]Ibid [30]. [12]Ibid.Appeals – the statutory framework An appeal on a question of law is as of right.[13] An appeal on a question of fact or mixed law and fact may only be made with the leave of the Appeal Tribunal.[14][13]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) s 142(1).[14]Ibid s 142(3)(b). If an appeal involves the determination of a question of law only, the appeal is as of right. In determining an appeal on a question of law only, the Appeal Tribunal may confirm or amend the decision; set aside the decision and substitute its own decision; or set aside the decision and remit the matter to the tribunal for reconsideration with or without the hearing of additional evidence.[15][15]Ibid s 146. The Appeal Tribunal should only substitute its own decision if the determination of the question of law resolves the appeal entirely in the appellant’s favour.[16] Otherwise the matter should be remitted for reconsideration. [16]Ericson v Queensland Building Services Authority [2013] QCA 391. If an appeal is one against a decision on a question of fact only or a question of mixed law and fact, and subject to leave to appeal being granted, the appeal must be decided by way of rehearing with or without the hearing of additional evidence as decided by the Appeal Tribunal.[17] In deciding the appeal, the Appeal Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision or set aside the decision and remit the matter to the tribunal for reconsideration.[18][17]QCAT Act ss 147(1), (2).[18]Ibid s 147(3). The relevant principles to be applied in determining whether to grant leave to appeal are: is there a reasonably arguable case of error in the primary decision;[19] is there a reasonable prospect that the applicant will obtain substantive relief;[20] is leave necessary to correct a substantial injustice to the applicant caused by some error;[21] is there a question of general importance upon which further argument, and a decision of the appellate court or Tribunal, would be to the public advantage.[22][19]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.[20]Cachia v Grech [2009] NSWCA 232, [13].[21]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. [22]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578, 580.

Ratio Decidendi

Legal Principle Established

If a local government proposes to make a regulated dog declaration it must first give to the owner of the dog a proposed declaration notice.[32] The local government must consider any written representations and evidence submitted by the dog owner.[33] If the local government is satisfied that a ground for making the declaration still exists, it must make the regulated dog declaration.[34][32]Ibid s 90(1).[33]Ibid s 94(1).[34]Ibid s 94(2).Consideration Although Dr Roy’s submissions appear to argue that the child did not sustain bodily harm, there is no cross appeal by Dr Roy disputing the finding by the learned member that the attack did in fact result in bodily harm. Accordingly we do not intend to address further this aspect of Dr Roy’s submissions. Similarly, although Dr Roy’s submissions appear to contest the finding by the learned member that Keziah attacked the child, in the absence of a cross appeal by Dr Roy we do not propose to address this aspect of the submissions any further. The statutory regime set out in the AM Act as it relates to declarations of dangerous and mischievous dogs was considered in some detail by the Appeal Tribunal in Imbrogno & Anor v Brisbane City Council:[35] The steps required to be undertaken in deciding whether to make a regulated dog declaration under Chapter 4, Part 4 of the AM Act include the local government giving to the owner of a dog a proposed declaration notice, the dog owner being given the opportunity to make written representations and provide evidence, the local government considering any representations and evidence by the dog owner and the local government deciding whether to make a regulated dog declaration.[35][2017] QCATA 148, [47]. In Imbrogno the Appeal Tribunal considered the scope of an application to review a decision made under s 94 of the AM Act:[36]… A decision by a local government to issue a proposed declaration notice under s 90 of the AM Act is not a reviewable decision for the purposes of s 188 of the Act. Such a decision is not an ‘original decision’ in relation to which an information notice must be given. The AM Act sets out various circumstances in which an information notice must be given. An information notice is not required to be given at the time a proposed declaration notice under s 90 is given. An application for a review of a decision under s 94 of the Act cannot, in my view, extend to what is in effect the review of a decision under s 90 of the Act which is not otherwise a decision for the purposes of s 188 of the Act. The steps referred to in Van Cuylenburg, and which are required to be considered as part of the review of a decision under s 94 of the Act, are those relating to the circumstances relevant to s 89(2), (3) or (4), a consideration of any written representations and evidence submitted by a dog owner, and a determination as to whether the relevant ground under s 89 still exists.[36]Ibid [50]-[51]. The learned member considered Imbrogno in the context of what he said was the question for determination as contended for by the BCC: … having considered all of the evidence including that before the reviewer, is whether the relevant ground under s 89 still exists after considering ‘any written representation and evidence accompanying them’ pursuant to s 94(1). If nothing changes, or materially changes, then the local government ‘must’ make the regulated dog declaration for the dog.[37][37]Reasons [20].