Gala v Fraser Coast Regional Council - [2010] QCAT 576

CITATION:

Gala v Fraser Coast Regional Council [2010] QCAT 576

PARTIES:	Mrs Frances Gala
v
Fraser Coast Regional Council

APPLICATION NUMBER:

GAR153-10

MATTER TYPE:

Animal Care and Protection matter

HEARING DATE:

11 March 2010

HEARD AT:

Hervey Bay

DECISION OF:

S Bothmann, Member

DELIVERED ON:

15 November 2010

DELIVERED AT:

Brisbane

ORDERS MADE:

1. That the respondent is authorised to destroy the seized regulated dog, Molly pursuant to Section 127 of the Animal Management (Cats and Dogs) Act 2008.

2. That the applicant is ordered to pay the respondent's costs for sustenance charges for the dog Molly in the sum of $1000.00.

CATCHWORDS :

Declaration Dangerous Dog – S127 Animal Management (Cats & Dogs) Act 2008 – Cost for sustenance of dog

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Frances Gala was legally represented by Sarah Laikind from Aboriginal and Torres Strait Islander Service.
RESPONDENT:	Fraser Coast Regional Council was legally represented by Joel Blane of Bell Dixon Butler Lawyers.

REASONS FOR DECISION

Background

Mrs Gala (the applicant) has sought review by the Queensland Civil and Administrative Tribunal (QCAT or the Tribunal) of a decision made by an officer of Fraser Coast Regional Council (the respondent or the council) that the Great Dane cross dog, Molly (Molly) belonging to the applicant, be the subject of a Destruction Notice issued by the council on 18 March 2010.
Each party appeared and gave evidence and made submissions to the Tribunal. A number of witnesses provided written statements and gave oral evidence.
QCAT has jurisdiction to review the substantive decision, arising principally under section 188 of the Animal Management (Cats and Dogs) Act 2008 (the Act) and sections 17-20 of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act). On review, the Tribunal must hear and decide the matter by way of fresh hearing on the merits,[1] and the review is by way of rehearing. The purpose of the review is to produce the correct and preferable decision.[2] The decision-maker must use his or her best endeavours to assist the Tribunal so that it can make its decision on the review.[3]
[1] QCAT Act s20(2).
[2] QCAT Act s20(1).
[3] QCAT Act s21(1).
Under section 62(1) of the QCAT Act, the Tribunal may give directions at any time in a proceeding as necessary for the speedy and fair conduct of the proceeding. Under section 28(1) of the QCAT Act, the procedure for a proceeding is at the discretion of the Tribunal, subject to that Act, an enabling Act and the rules. Under section 90 the Tribunal may determine that the proceedings of the hearing are to be closed to the public in certain circumstances. Under Division 6 the Tribunal may make orders as to costs.

Evidence and Submissions of the Parties

The facts in the matter are largely non-contentious. In relation to the matters in dispute they are outlined specifically below.
It is agreed that Molly is a six year old bitch who has belonged to the applicant since…

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.

Keep reading for free

Create a free CaseChat account to read Gala v Fraser Coast Regional Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] QCAT 576
Decision Date: 15 November 2010

CaseChat Overview and Summary

The matter of Gala v Fraser Coast Regional Council involved a dispute over the dangerous dog declaration of a dog named Molly. The applicant, Gala, sought to challenge the Regional Council's decision to declare Molly as dangerous, and the subsequent costs associated with the dog's care while in the council's possession. The case was heard in the Queensland Civil and Administrative Tribunal (QCAT).

The primary legal issues before the tribunal were whether the Regional Council was justified in declaring Molly as a dangerous dog and whether the applicant was liable for the costs of the dog's care while in the council's possession. The applicant contested the declaration of dangerousness on the grounds that Molly did not pose a threat to public safety. Additionally, Gala argued that the costs for the dog's sustenance should not be her responsibility if the declaration was overturned.

The tribunal found that the Regional Council was justified in declaring Molly as dangerous based on the evidence presented, which included instances of the dog attacking other animals and displaying aggressive behaviour. The tribunal accepted that the Regional Council acted within its statutory powers when making this determination. Regarding the costs for the dog's care, the tribunal ruled that the applicant was liable for these expenses as per Section 127 of the Animal Management (Cats and Dogs) Act 2008. The tribunal determined that the applicant's ownership of the dog made her responsible for the costs incurred while the dog was in the council's care, regardless of the outcome of the dangerous dog declaration.

As a result, the tribunal authorised the Regional Council to destroy Molly and ordered the applicant to pay the council $1000 for the costs of the dog's care. The tribunal concluded that the Regional Council's actions were lawful and that the applicant's liability for the costs was appropriate under the circumstances. The tribunal's decision was based on a thorough examination of the evidence and the applicable legislation.

Orders

Orders of the court

1. That the respondent is authorised to destroy the seized regulated dog, Molly pursuant to Section 127 of the Animal Management (Cats and Dogs) Act 2008.

2. That the applicant is ordered to pay the respondent's costs for sustenance charges for the dog Molly in the sum of $1000.00.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.