Chadwick v Brisbane City Council - [2020] QCATA 99

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Chadwick v Brisbane City Council [2020] QCATA 99

PARTIES: BENJAMIN CHADWICK

(applicant/appellant)

v

BRISBANE CITY COUNCIL

(respondent)

APPLICATION NO/S:

APL342-19

ORIGINATING APPLICATION NO/S:

GAR402-19

MATTER TYPE:

Appeals

DELIVERED ON:

3 July 2020

HEARING DATE:

26 June 2020

HEARD AT:

Brisbane

DECISION OF:

Member Roney QC

ORDERS:
1.   The Appeal is allowed.

2.   The Application for an extension of time to file the review application is granted.

3.   The matter is remitted to the Tribunal for a hearing of the review on the merits.

CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – application for extension of time to start review – where error of law – whether Tribunal below took into account relevant considerations – whether decision unreasonable or plainly unjust – whether there has been a failure to properly exercise discretion or give proper consideration to the issues raised – where discretion to extend time to review a decision to destroy a dog – where review application lodged weeks late

Animal Management (Cats and Dogs) Act 2008 (Qld),
s 127, s 180

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 33, s 61

Lewis v Brisbane City Council [2014] QCAT 283
Thomas v Ipswich City Council [2015] QCATA 97
Spencer & Anor v Hutson & Anor [2007] QCA 178
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Fletcher Construction Australia Ltd v Lines Macfarlane and Marshall Pty Ltd (No 2) [2002] 6 VR 1
CSR Ltd v Maddalena (2006) 224 ALR 1
Camden v McKenzie [2007] QCA 136; [2008] 1 Qd R 39
Drew v Makita (Australia) Pty Ltd [2009] QCA 66; [2009] 2 Qd R 219
Terera v Clifford [2017] QCA 181

R v Tait [1999] 2 Qd R 667

APPEARANCES & REPRESENTATION:

Appellant:

Self-represented

Respondent:

Mr T Prisk Solicitor

REASONS FOR DECISION

The appellant is the owner of an Alaskan Malamute breed dog called Diesel. It was kept in the appellant’s yard at his home in Forest Lake in suburban Brisbane. In 2015, the dog was declared to be a Dangerous Dog by the respondent, the power for which arose under the Animal Management (Cats and Dogs) Act 2008 (Qld) (the Act). This occurred on the basis that the respondent Council determined that Diesel had attacked another dog which had led to both the dog and its owner being injured. That was the first relevant attack by the dog. The effect of that declaration under the Act was that restrictions applied, those restrictions including that the dog was required to be muzzled in public, and was required to be under the effective control of a person at all relevant times.
The declaration that the dog was a Dangerous Dog for the purposes of section 94 of the Act, was one which was made after notice had been given to the appellant with the proposal to make that declaration notice. The appellant did not…

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 99
Decision Date: 3 July 2020

CaseChat Overview and Summary

The appeal was brought by Chadwick against the Brisbane City Council, concerning the destruction of a dog. The issue was whether the tribunal had properly exercised its discretion in allowing an extension of time to file a review application, which was lodged significantly late. The appeal was heard in the Queensland Court of Appeal.

The central legal issue was whether the tribunal had properly exercised its discretion under the relevant legislation in granting the extension of time to file a review application. The appellant argued that the tribunal had not adequately considered the relevant factors and that its decision was unreasonable or plainly unjust. The appellant contended that the tribunal had failed to properly exercise its discretion and give due consideration to the issues raised.

The Court of Appeal found that the tribunal had indeed made an error of law in its consideration of the application for an extension of time. The tribunal had not adequately taken into account the relevant considerations, including the reasons for the delay and the impact of the delay on the respondent. The Court held that the tribunal's decision was unreasonable and that there had been a failure to properly exercise the discretion or give proper consideration to the issues raised. Consequently, the appeal was allowed, the application for an extension of time was granted, and the matter was remitted to the Tribunal for a hearing of the review on the merits.

Orders

Orders of the court

1. The Appeal is allowed.

2. The Application for an extension of time to file the review application is granted.

3. The matter is remitted to the Tribunal for a hearing of the review on the merits.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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