Do v Brisbane City Council

Case [2021] QCATA 99

QUEENSLAND CIVIL AND

ADMINISTRATIVE TRIBUNAL

CITATION:

Do v Brisbane City Council [2021] QCATA 99
PARTIES: MARIA-HUONG DO

(applicant/appellant)

v
BRISBANE CITY COUNCIL

(respondent)

APPLICATION NO/S:

APL184-20

ORIGINATING APPLICATION NO:

GAR321-19

MATTER TYPE:

Appeals

DELIVERED ON:

9 August 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Aughterson
ORDERS:

1.   The application to file fresh evidence is refused

2.   Leave to appeal in relation to grounds of appeal 1, 5 to 8 and 10 to 18 is refused

3.   The appeal in relation to grounds of appeal 2, 3, 4 and 9 is dismissed

CATCHWORDS:

APPEAL AND NEW TRIAL – RIGHT OF APPEAL – APPEAL ON QUESTION OF LAW OR FACT OR MIXED LAW AND FACT – where dangerous dog declaration – where decision upheld by Tribunal – where applicant seeks to appeal that decision – whether leave to appeal should be granted – where on appeal the parties sought to rely upon fresh evidence

Animal Management (Cats and Dogs) Act 2008 (Qld) s 89, 90, 94

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142, s 146, s 147

Acaroglu v Moreton Bay Regional Council [2020] QCAT 76

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593

Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39

Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404

Do v Brisbane City Council [2020] QCAT 238

Harrison and Anor v Meehan [2016] QCATA 197

Lee v Brisbane City Council [2012] QCA 284

Lee v Lee; Hsu v RACQ Insurance Limited; Lee v RACQ Insurance Limited [2018] QCA 104

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39

Pham v Legal Services Commissioner [2015] VSC 671

Piric & Anor v Claudia Tillier Holdings Pty Ltd [2012] QCATA 152

Queensland v Masson (2020) 94 ALJR 785

Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22

Seirlis & Ors v Queensland Building and Construction Commission [2020] QCATA 37

Sunshine Coast Hospital and Health Service v Webb [2020] QCA 189

SZNBX & Ors v Minister for Immigration and Border Protection & Anor [2018] FCCA 445

Willis v Hume CC [2013] VCAT 1033

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

  1. On 25 May 2020, the Tribunal confirmed the decision of the respondent to declare ‘Jay-Jay’, a large Rhodesian Ridgeback, a dangerous dog pursuant to s 89 of the Animal Management (Cats and Dogs) Act 2008 (Qld). The applicant, the owner of Jay-Jay, now appeals that decision. The applicant on appeal was also the applicant at first instance.

  2. In the decision at first instance, it was found that on 26 November 2018 Jay-Jay attacked a much smaller dog, a toy poodle named ‘Fudge’. While Fudge was being walked on a leash on the footpath, Jay-Jay ran out through the open gate of the property of its owner, seized Fudge by the neck and shook…

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Details
AGLC
Do v Brisbane City Council [2021] QCATA 99
Case
[2021] QCATA 99
Decision Date

CaseChat Overview and Summary

The case of Do v Brisbane City Council involved an appeal against a decision by the Tribunal upholding a dangerous dog declaration made by the Council. The applicant sought to appeal the Tribunal's decision, arguing that the Tribunal erred in law and/or fact. The applicant also sought leave to file fresh evidence. The Brisbane City Council opposed the application for leave to appeal and the application to file fresh evidence. The appeal was heard in the Queensland Civil and Administrative Tribunal (QCAT).

The legal issues before the Tribunal were whether the applicant had leave to appeal the Tribunal's decision, and if so, whether the appeal should be allowed. Additionally, the Tribunal had to determine whether the applicant was entitled to rely on fresh evidence not previously available. The applicant argued that the Tribunal erred in its application of the law and facts, while the Council contended that the appeal should be dismissed due to the applicant's failure to establish any grounds for appeal. The Council also argued that the fresh evidence was inadmissible as it was not available at the time of the original decision.

The Tribunal found that the applicant's grounds of appeal were largely based on a re-evaluation of the evidence rather than a legal error by the Tribunal. The Tribunal refused the application to file fresh evidence, as it was not admissible. The Tribunal also refused leave to appeal in relation to certain grounds of appeal, as they were considered to be without merit. The Tribunal dismissed the appeal in relation to other grounds, finding that they did not provide a sufficient basis for overturning the Tribunal's decision.

The Tribunal made several orders, including refusing the application to file fresh evidence, refusing leave to appeal in relation to certain grounds, and dismissing the appeal in relation to other grounds. The Tribunal concluded that the applicant had not demonstrated any grounds for appeal that warranted the setting aside of the Tribunal's decision. As a result, the dangerous dog declaration made by the Brisbane City Council remained in place.

Orders

Orders of the court

1. The application to file fresh evidence is refused

2. Leave to appeal in relation to grounds of appeal 1, 5 to 8 and 10 to 18 is refused

3. The appeal in relation to grounds of appeal 2, 3, 4 and 9 is dismissed

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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