Gault v Moreton Bay Regional Council
[2018] QCAT 386
•20 November 2018
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Gault v Moreton Bay Regional Council [2018] QCAT 386
PARTIES:
RICHARD KYLE GAULT
(applicant)v MORETON BAY REGIONAL COUNCIL
(respondent)
APPLICATION NO/S:
GAR121-18
MATTER TYPE:
General administrative review matters
DELIVERED ON:
20 November 2018
HEARING DATE:
24 August 2018
HEARD AT:
Brisbane
DECISION OF:
Member Traves
ORDERS:
The application to review (GAR121-18) is dismissed on the basis the Tribunal does not have jurisdiction to determine the application.
CATCHWORDS:
ADMINISTRATIVE REVIEW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – animal management – whether decision to seize dogs pursuant to warrant issued by magistrate under s 117 of the Animal Management (Cats and Dogs) Act 2008 (Qld) reviewable – whether decision to dispose of dogs under Local Law reviewable
Animal Management (Cats and Dogs) Act 2008 (Qld),
s 44, s 117, s 118, s 125, s 187, s 188
Animal Management (Cats and Dogs) Regulation 2009 (Qld), reg 30A
Moreton Bay Regional Council Local Law No 2 (Animal Management) 2011, s 29, s 32
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 47APPEARANCES & REPRESENTATION:
Applicant:
Self-represented
Respondent:
Self-represented by D Mackellar
REASONS FOR DECISION
On 14 March 2018 the Tribunal received an application to review from Mr Gault relating to action taken by the Moreton Bay Regional Council in relation to two dogs that resided at Mr Gault’s address. In broad terms, the dogs had been seized by the Council pursuant to a court order that was issued ostensibly to assist the Council in its investigation of ongoing offences under the Animal Management (Cats and Dogs) Act 2008 (Qld) (‘AM Act’) relating to unpaid registration renewal fees. When Mr Gault refused to pay the fees claimed to be owing, the Council relinquished ownership or disposed of the dogs.
Mr Gault argues that he was not obliged to pay registration fees because the dogs were ‘security dogs’ or ‘working dogs’ under ‘ATO law’ and were thereby exempt under
s 44(4) of the AM Act. He claims that the act of seizing of the dogs was illegal and that the Council had no power to take ownership of the dogs. In his application for review Mr Gault seeks orders including that the dogs be returned and that if they are not, that he be paid compensation totalling $7,811.65. This amount includes an amount for damage sustained to a padlock when the dogs were seized ($101.50) and an amount for each dog ($3,500.00 each).
On 27 April 2018 the Tribunal initiated an application to dismiss the proceedings and sought submissions from both parties as to whether the Tribunal had jurisdiction to review ‘the letter from the Moreton Bay Regional Council dated 22 February 2018’.
The letter of 22 February 2018 was a letter annexed to Mr Gault’s application which effectively reviewed and provided reasons for the Council’s actions and administrative decision making processes in relation to the seizure and relinquishment of the two dogs.
The issue before me is whether the review proceeding, as framed, is frivolous, vexatious or misconceived; lacking in substance; or otherwise an abuse of process within s 47(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). At the hearing on 24 August 2018 Mr Gault was given leave to file in the Tribunal a copy of the Australian Taxation Ruling upon which he wished to rely together with any submissions as to its relevance.[1] Mr Gault subsequently filed a document headed ‘Guard dog expenses’ which purported to be a decision dated 10 August 2011 relating to how costs incurred in the acquisition, training and maintenance of a guard dog should be treated under the Income Tax Assessment Act 1991 (Cth).[2]
[1]Directions dated 24 August 2018.
[2]Response by applicant filed 6 September 2018.
The matter concerns, in effect, an application for review of two decisions by the Moreton Bay Regional Council. Those decisions are:
(a)the decision to seize the dogs from the relevant place by court order for the continuance of the offence under s 44 of the Animal Management (Cats and Dogs) Act 2009 (‘the AM Act’) (‘the first decision’);[3] and
(b)the decision to relinquish ownership of those dogs upon the non-retrieval of the dogs from the Animal Care Shelter (‘the second decision’).[4]
[3]Decision to seize made 5 February 2018.
[4]Decision to relinquish ownership on 22 February 2018.
The Tribunal’s review jurisdiction is the jurisdiction given to it by an enabling Act to review a decision made under that Act.[5] Such a decision is called a ‘reviewable decision’.[6] An enabling Act includes an Act or subordinate legislation that confers review jurisdiction on the Tribunal.[7] Here, the relevant enabling Act is the AM Act.
[5]QCAT Act, s 17.
[6]QCAT Act, s 17(2).
[7]QCAT Act, s 6(2).
Section 188 of the AM Act provides:
Who may apply for external review
A person who is given, or is entitled to be given, a review notice for a decision under part 1 may apply, as provided under the QCAT Act, for an external review of the decision.
Under s 187 a ‘review notice’ must be given to a person who receives a PID review decision or an internal review decision. The review notice must include a notice complying with s 157(2) of the QCAT Act, advising, amongst other things, that there is a right to review the decision in the Tribunal.[8] A PID review decision is an internal review decision of an original decision made by the chief executive under chapter 2, part 1, division 3, subdivision 3 or chapter 6.[9] Otherwise an internal review decision will be of an original decision made by a local government.[10] An ‘original decision’ is defined to be a decision about which an information notice must be given.[11]
[8]AM Act, s 187(3).
[9]AM Act, s 181(1).
[10]AM Act, s 181(2).
[11]AM Act, Schedule 2.
Section 125 is the source of the Council’s power to seize dogs. That section relevantly provides:
Seizure power for dogs
(1) If an authorised person has, under part 2, entered a place and the person reasonably suspects a dog mentioned in the part is at the place, the person may seize the dog if –
…
(c) if the dog is a regulated dog – a compliance notice has been given in relation to the dog and the person reasonably believes the notice has not been complied with.
The Council argues that it seized the dogs pursuant to a warrant obtained from the Magistrates Court under s 117 of the AM Act. The Council argue that the Magistrate exercised the discretion granted by s 118 to authorise it to enter the relevant place and seize ‘the evidence’.
The Council may apply to a magistrate for a warrant for a place.[12] A Magistrate may issue the warrant if satisfied there are reasonable grounds for suspecting there is a particular thing or activity (the evidence) that may provide evidence of an offence against the Act and the evidence is at the place.[13] The warrant must state the place to which the warrant applies, particulars of the offence and the evidence that may be seized.[14]
[12]AM Act, s 117.
[13]AM Act, s 118.
[14]AM Act, s 118(2).
There is some doubt as to whether the dogs were ‘evidence’ that could be seized pursuant to a warrant issued under s 117, particularly in view of the specific provision in s 125 which applies when a person has entered a place under part 2. Under that provision a dog can only be seized in certain circumstances, none of which were argued to have applied here. Even if the dogs could potentially be seized as ‘evidence’ under s 117, it is not clear how the dogs were required in order to assist the Council in investigating the relevant offence under s 44 for failing to register the dogs without reasonable excuse.
Further, Mr Gault argues that there was no offence because his dogs were exempt from the registration provisions pursuant to s 44(4)(c) of the AM Act. Section 44(4)(c) provides that:
(4) It is a defence to a prosecution for an offence against subsection (2) or (3) for the defendant to prove the dog is –
(a)a government entity dog; or
(b)a working dog; or
(c)another class of dog prescribed under a regulation.
Mr Gault based his argument on a ruling in 2001, presumably by the ATO, relating to the deductibility of certain expenses for guard dogs. Mr Gault seemed to be arguing, in effect, that the dogs were classified as ‘security dogs’ or ‘working dogs’ under ‘ATO law’ and were therefore a ‘class of dog prescribed under a regulation’ within
s 44(4)(c). This argument is misconceived. The ATO ruling is not a regulation for the purposes of s 44 of the AM Act. ‘Regulation’ refers to a regulation made under the AM Act. The relevant regulation is regulation 30A of the Animal Management (Cats and Dogs) Regulation 2009 (Qld). Regulation 30A provides:
Prescribed classes of dog—Act, s 44
30A Prescribed classes of dog—Act, s 44
A dog is a prescribed class of dog for section 44 (4) (c) of the Act if—
(a) the dog is kept by a person primarily for producing canine plasma products derived completely or partly from the plasma of the dog; and
(b) the person is registered under the Animal Care and Protection Act 2001 to use the dog for the purpose.
The dogs here do not fall within either of these classes.
In any event, whether the applicant had a defence to the s 44 offence is not an issue for the Tribunal. This, and any other issues raised above surrounding the validity of the basis upon which the dogs were seized, falls outside the review jurisdiction of the Tribunal. That jurisdiction is, as I have outlined above, confined to the review of ‘reviewable decisions’.
The dogs were seized pursuant to a warrant. That warrant was issued by a Magistrate pursuant to the exercise of a discretion in s 118 of the AM Act. The Tribunal does not have the power to review the decision to issue the warrant made by the Magistrate and, accordingly, to determine whether the discretion was properly exercised. That is beyond the jurisdiction of the Tribunal.
Turning then to the second decision. This decision was one to relinquish ownership of the seized dogs. The Council argue that the decision to dispose of the dogs was made pursuant to s 32 of the Moreton Bay Regional Council Local Law No 2 (Animal Management) 2011 (the Local Law).[15]
[15]The AM Act does not prevent a local law from imposing requirements in relation to dogs generally: AM Act, s 6(1).
Section 6 of the AM Act relevantly provides:
Relationship with local laws
(1) This Act does not prevent a local law from imposing requirements in relation to cats or dogs generally.
….
(2) Subject to subsection (2), if this Act and a local law are inconsistent about a requirement, the local law is invalid to the extent of the inconsistency.
Section 29 of the Local Law sets out the circumstances when an animal may be reclaimed. They include, if an animal is no longer required for evidence: when the owner or responsible person pays the cost-recovery fee, the animal has been registered and any current compliance notice issued under the local law has been complied with.
There is no provision enabling review by the Tribunal of decisions to allow or not allow a person to reclaim an animal.
If an impounded animal is not reclaimed within the prescribed period, Division 5 of the local law applies. Division 5 includes s 32 which permits the local government to sell the animal, dispose of it without destroying it, or to destroy it.
The only context in which a review may be relevant is where review is successfully sought of a destruction order.[16] In those circumstances an owner or responsible person may be entitled to reclaim the relevant animal provided he or she has complied with the relevant requirements in s 29. As no destruction order had been made here that right of review is not relevant.
[16]Local Law, s 29(4)(b).
It follows that the Tribunal has no jurisdiction with respect to the decision made pursuant to the Local Law to relinquish ownership or otherwise dispose of the dogs.
Accordingly, as the Tribunal lacks jurisdiction with respect to both the decision to seize made pursuant to the warrant under the AM Act and to dispose of the dogs under the Local Law, the application to review is dismissed.
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