Gent v Cassowary Coast Regional Council - [2014] QCATA 240

CITATION:

Gent v Cassowary Coast Regional Council [2014] QCATA 240

PARTIES:	Timothy Noel Gent (Applicant/Appellant)
v
Cassowary Coast Regional Council (Respondent)

APPLICATION NUMBER:

APL569-13

MATTER TYPE:

Appeals

HEARING DATE:

21 August 2014

HEARD AT:

Brisbane

DECISION OF:

Senior Member O’Callaghan

DELIVERED ON:

27 August 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Appeal is allowed.

2. The decision of the Tribunal is set aside.

3. The application is to be returned to the Tribunal for reconsideration with the hearing of additional evidence as follows:

a. The material filed by the Cassowary Coast Regional Council in the original hearing (including the material given to Timothy Noel Gent on 11 November 2013).

b. Any statements of evidence that Timothy Noel Gent files in accordance with Order 4.

4. Timothy Noel Gent must file any further statements of evidence in the Tribunal and give a copy to Cassowary Coast Regional Council by 4:00pm 23 September 2014.

5. No party will be allowed to present any evidence at the rehearing that is not contained in the written and filed statements.

6. Unless the Tribunal otherwise orders all persons who gave written statements must attend the rehearing in person for cross-examination. Any application for a person to attend the rehearing by telephone must be made prior to 14 days before the rehearing.

CATCHWORDS:

APPEAL – where appeal allowed – where applicant denied procedural fairness in not having access to the material relied on by the Tribunal

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

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr Timothy Gent appeared on his own behalf

RESPONDENT:

Mr Allpress employee of Cassowary Coast Regional Council appeared on behalf of Cassowary Coast Regional Council

REASONS FOR DECISION

This is an application to appeal and for leave to appeal a Tribunal decision confirming on review a decision of the Council to declare Mr Gent’s dog ‘Boris’ a menacing dog.
Mr Gent raised three grounds of appeal:
1.     The evidence from the Council was handed to him for the first time at the hearing giving him no time to respond to the allegations;
2.     The evidence/facts from the Council are highly questionable;
3.     Key witnesses were not available at the hearing.
Whilst not particularised by Mr Gent, Grounds 1 and 3 raise questions of whether Mr Gent was denied natural justice and Ground 2 would appear to be an argument about the evidence and factual finding.
A party may appeal a decision on a question of law without the Appeal Tribunal’s leave[1] but an appeal which involves a question of fact or mixed law and fact can only be brought once the Appeal Tribunal’s leave is granted.
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) s 142(3).
In this case Grounds 1 and 3 relate to a question of law namely whether Mr Gent was denied natural justice in presenting his case.
Ground 2 raises questions of fact and can only proceed if leave of this Appeal Tribunal is given.
I will deal firstly with the appeal and consider whether Mr Gent was denied natural justice.
He says, that the case should be reheard because the Council’s material was only given to him at the hearing which was not in a timely manner as directed by QCAT. He said this meant he was unable to get legal advice and that his request for an adjournment was denied. He also complains that ‘key witnesses were not available at the hearing’.
If it can be shown that Mr Gent was denied procedural fairness then I would be inclined to allow the appeal. (This would not necessarily result in a different decision it may simply mean that a rehearing would take place to enable that error to be corrected)
In deciding whether Mr Gent was denied natural justice it is necessary to carefully assess the circumstances of the case and how the learned Member dealt with the matter.
As is the common practice in reviews of decisions about regulated dogs, the Tribunal issued directions requiring the Council to file its statements of evidence; for Mr Gent to then file his statements of evidence and then setting the matter down for a hybrid hearing.
The directions also provided that:
a) No party would be allowed to present any evidence at the hearing that was not contained in the written and filed statements without justifying the need for such additional evidence to the Tribunal; and
b) Unless the Tribunal otherwise orders, all persons who gave written statements were required to attend the hearing in person for cross-examination. Any application for a person to attend by telephone was required to be made at least 14 days prior to the hearing.
The hybrid hearing process involves an oral hearing at the conclusion of which the Member adjourns the hearing to make a decision. The decision is not revealed to the parties at that time and the Member conducts a mediation. If the matter resolves, the decision is not revealed to the parties. If it is not resolved the hearing is resumed and the Member delivers the decision and oral reasons.
Neither Mr Gent nor the Council filed their statements of evidence in compliance with the Tribunal’s direction. On the day of the hearing the Council representative provided to the Tribunal and to Mr Gent a bundle of documents which contained statements from persons who had made complaints about Boris. A statement from the Council’s officer Brian Hughes was also included in that bundle.
The transcript of the hearing records that at the commencement of the hearing the learned Member raised his concerns about the provision of this late material by the Council. He asked Mr Gent’s view about the provision of the material.[2]
[2]Transcript page 2, line 30.
Mr Gent said relevantly that he was not happy. He complained that the material was supposed to be filed some two months earlier in accordance with the directions.
The learned Member asked Mr Gent about his witnesses and noted that Mr Gent had provided three statements with his original application. Mr Gent said he had no witnesses present at the hearing. He said:[3]
No I’ve got no body here. I didn’t know if we needed any witnesses or what was basically going on. I’ve got heaps of witnesses, I’ve got a 100, if I could bring a 100 people along as witnesses.
[3]Transcript, page 3, line 20.
The learned Member pointed out that the directions issued required all persons who had given statements to attend the hearing unless given leave to attend by phone.[4]
[4]Ibid, line 45.
Mr Gent said:[5]
There was basically like nothing going – I’ve tried to get as much information as I can from QCAT. And I was still led to believe it wasn’t going to be – not the word serious. But it was just going to be basically more put down to what’s on paper than actual witnesses. I would have prepared witnesses if that was the case. So – because I’ve basically had nothing till now – I’ve got nothing to work on.
[5]Ibid, line 35.
The learned Member ruled in those circumstances that he would not admit the evidence filed that day by the Council as it was provided too late. He indicated however he was prepared for the matter to proceed on the basis of the material that he understood had been filed with Mr Gent’s application namely a statutory declaration of a complainant (Mr Lawrence) and the Council’s records of other complaints about Boris (‘the Original Material’). He was of the understanding that Mr Gent had had the Original Material and therefore nothing in it would have been a surprise.
It turns out that this was a mistaken understanding. It became apparent to me after hearing oral submissions from the parties and a careful reading of the file that Mr Gent had not in fact been provided with or seen the Original Material.
It transpired that when Mr Gent filed his application to review the decision he did not include a full copy of the Council’s decision subject to the review. The QCAT Case Manager being unable to contact Mr Gent asked the Council to forward a copy of their decision to the Tribunal.
On 21 August 2014 in response to this request the Council helpfully forwarded to the Tribunal a bundle of documents that they had in relation to the matter including their decision. The material included the original statutory declaration of Mr Lawrence and the Council’s record of complaints.
Upon receipt, this Original Material was filed in the QCAT file with Mr Gent’s application. A copy of the Original Material was in fact not provided to Mr Gent (it is noted it was not at this stage ordered to be provided).
The standard directions were subsequently made and as discussed earlier in these reasons not complied with by the Council until the day of the hearing.
The hearing was conducted via remote conferencing. The Member was in Brisbane and the parties were in Cairns. It appears that the Tribunal Member looking at the file mistakenly thought the Original Material had been filed by Mr Gent with his original application. The learned Member then proceeded to determine the matter based on this material as he thought Mr Gent had been aware of it and indeed had filed it.
This was not the case. The state of confusion is regrettable but understandable in the circumstances. As a result, Mr Gent was unwittingly denied procedural fairness in the hearing. Not only had he not received the Council’s statement material (which the Member did not rely on), he had also not received the Original Material which the Member did rely on in coming to a decision that the regulated dog declaration should be confirmed.
I am satisfied having heard the parties submissions (noting that the Council did not submit that they had provided copies of the Original Material to Mr Gent) that Mr Gent has established that he was not provided procedural fairness.
Whilst throughout the course of the hearing Mr Gent was able to reference the material he was given on the morning of the hearing he never actually saw the Original Material upon which the determination was based.
In the circumstances it is appropriate that the appeal be allowed and the matter returned to the same Member for reconsideration after all of the evidence is given to Mr Gent and he is able to respond. It is appropriate in these circumstances that the Tribunal on reconsideration have regard to all of the material filed by the Council. In making this order I am not suggesting that the Member erred in concluding that the material he had regard to was sufficient to support a finding that Boris should be declared menacing. It is simply the case that Mr Gent did not have that material and as such did not have a reasonable opportunity to respond to that material.
It is appropriate Mr Gent be provided with a copy of the Original Material and that he be given an opportunity to file statements of evidence in response to that material and to the Councils statement material delivered at the hearing.
I order accordingly.