Deventer v Green

[2001] QCA 161

[2001] QCA 161

COURT OF APPEAL

de JERSEY CJ
THOMAS JA
MACKENZIE J

Appeal No 9373 of 2000

REBECCA VAN DEVENTER
                 (Applicant)                   Appellant
and

ALAN DOUGLAS GREEN, MANAGER OF
ENVIRONMENTAL HEALTH SERVICES
TO THE CARDWELL SHIRE COUNCIL
                 (First Respondent)     First Respondent
and

CARDWELL SHIRE COUNCIL
                 (Second Respondent)    Second Respondent

BRISBANE

..DATE 27/04/2001

JUDGMENT

THE CHIEF JUSTICE: The appellant applied unsuccessfully to the learned primary Judge for an order under section 38 of the Judicial Review Act 1991 that the respondent council state in writing its reasons for declaring appellant's three dogs to be "dangerous dogs" under its by-laws.

The council originally made its decision on 2 December 1999 and then confirmed it on 2 February 2000 following a review had been sought by the appellant.  As the learned Judge found the council did not specify reasons for its decision.

By section 32 of the Act the appellant was entitled to request reasons but because of section 33 subsection (4) paragraph (a) the council was not obliged to furnish reasons unless, in this case, requested to do so within 28 days of 2 February 2000. 

Mr Wrenn, who appeared this morning for the appellant raised the question whether the appellant's letter to the council of 29 December 1999 might be read as amounting to a sufficient request for reasons.  That, however, was plainly a request for the review of the decision to which I earlier referred.  Reasons must, under section 32 of the Act, be requested in writing.  The letter of 29 December could not reasonably be regarded as a request for reasons even allowing for the approach suggested in Ansett Transport Industries Operations Pty Ltd v. Wraith 48 ALR 500 at 508.

It was not until 8 August 2000 that the appellant in fact requested reasons which the council then declined to give because the request was out of time. The learned Judge upheld the council's approach. There was no basis urged before the learned Judge upon which he might reasonably have exercised, favourably to the appellant, an independent discretion in the Court under section 38 of the Act to make an order against the council notwithstanding that the council had not been obliged to respond to the request of 8 August 2000.

It was not a case for example where the appellant had been prevented by some circumstance without fault on her part from requesting reasons in a timely way.  Neither was there any information to suggest any judicial review application ultimately brought might be promising, such as there was  jurisdictional basis for questioning the validity of the original council declaration. 

All that was put, in summary, was that the appellant had "endeavoured at her best to do whatever she (could) to find out and that's what brought this application about".  That somewhat overstated the position, favourably to the appellant.  The pertinent point, as indeed was mentioned by the learned Judge, is that she simply failed to make her request in a timely way, and that failure remained and to this day remains inadequately explained.  For these reasons I would dismiss the appeal.

THOMAS JA:  I agree.

MACKENZIE J:  I agree.

THE CHIEF JUSTICE:  The appeal is dismissed.

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