Gibbings v Moreton Bay Regional Council
[2013] QCAT 35
| CITATION: | Gibbings and Anor v Moreton Bay Regional Council [2013] QCAT 35 |
| PARTIES: | Kingsley William Gibbings Kylie Therese Venn (Applicants) |
| v | |
| Moreton Bay Regional Council (Respondent) |
| APPLICATION NUMBER: | GAR352-12 / GAR353-12 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Susan Gardiner, Member |
| DELIVERED ON: | 25 January 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The applications to extend time are dismissed. |
| CATCHWORDS: | PROCEDURE – extension of time to file an application to review a decision to declare dogs menacing – where four months filed outside 28 days – where application not filed until dogs seized – where extension of time not granted Animal Management (Cats and Dogs) Act 2008 McClintock v QBSA [2010] QCATA 68 followed Hunter Valley Developments v. the Honourable Barry Cowen, Minister for Home Affairs and Environment (1984) 3 FCR 344 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Mr Gibbings and Ms Venn own two rottweiler dogs, Boss and Betty. After a complaint to the Moreton Bay Regional Council, the Council declared both dogs “menacing” on 28 May 2012, under the Animal Management (Cats and Dogs) Act 2008.
Mr Gibbings and Ms Venn were advised of this declaration and under the legislation, had 28 days to review this decision to QCAT. No review was filed.
A declaration of a dog as menacing comes with it certain conditions if the owners want to continue to keep the dogs. One of these is height requirements for fences around the property where the dogs reside.
The Council says that after the declaration, the Council inspected the residential property of Mr Gibbings and Ms Venn on a number of occasions, (11 July 2012, 20 August 2012 and 5 September 2012) to monitor Mr Gibbings’ and Ms Venn’s compliance with the new fencing requirements.
It became clear to the Council that the requirements of the declaration were not being met and as a reasonable time had elapsed in the Council’s view, the dogs were seized in October of 2012 and destruction orders placed on them.
At that point, Mr Gibbings and Ms Venn took some action. They filed applications in QCAT to review the original menacing dog declarations and to review the destruction orders.
The only application made within the time limits of the Animal Management (Cats and Dogs) Act 2008 was the review of the destruction orders of both dogs.
QCAT moved quickly to hear the applications concerning the destruction orders as fees for the holding of the dogs were mounting for Mr Gibbings and Ms Venn. The matter was set for mediation and a hearing on 27 November 2012
On 2 November 2012, Mr Gibbings and Ms Venn advised QCAT by letter that the Council had further inspected their property and, being satisifed that the fencing reqirements had been met, returned the two dogs to them.
Mr Gibbings and Ms Venn did advise however that they wished to continue with the review of the declarations of the dogs as menacing. This requires first, an extension of time application to be considered and directions were made for the filing of submissions by all parties in that regard.
The Tribunal can extend that time under section 61 of the QCAT Act. Extending time is a discretionary power[1]. In the exercise of this power the accepted considerations are: whether there has been reasonable explanation for the delay in filing; whether the granting of an extension would be fair and reasonable in the circumstances; any action taken by the applicants other than by making an application for review under the Act, to inform the decision maker that the finality of the decision is contested; whether there has been any prejudice suffered as a result of the delay; and whether the substantive application has merit. This is not an exhaustive list and the particulars of the matter are also to be considered[2].
[1] McClintock v QBSA [2010] QCATA 68 per Senior Member Oliver.
[2]Hunter Valley Developments v the Honourable Barry Cowen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at paras 4 and 5.
Mr Gibbings and Ms Venn submit as follows:
§the original Council declaration to declare the dogs menacing was made on 28 February 2012;
§an internal review application was submitted on 13 March 2012 and a reply to that application received on 28 May 2012;
§they allege the internal review of the original declaration was undertaken by the same original decision maker within the Council and that this is unfair;
§the review application alleges a personal vendetta towards one of the applicants by a Council officer;
§the neighbours (the original complainants) would not contribute to raising the height of the fence.
The application to review is substantially out of time. The final Council decision was made on 28 May 2012 and the review period ran from that time.
Mr Gibbings and Ms Venn do not directly address why they did not review the decision in the time allowed under the legislation, particularly in light of the alleged personal clashes that they say have occured. As it is, the current application is now some 4 months out of time.
The Council alleges that Mr Gibbings and Ms Venn did not inform the Council that they contested the last menacing dog decision. It says in fact they took no further action (including making the required fencing changes) until the dogs were seized, despite inspections of the property during the intervening period.
The Council also argues that the passage of time has meant that it suffers prejudice in a hearing now as the officer who made the decision has now left the Council – not the situation if the applicants had filed a review within the legislated time period.
The Council further advises that the same officer did not conduct the internal review requested by Mr Gibbings and Ms Venn and that their assertions in that regard are unfounded. Council says that in the review notice of 28 May 2012, the reviewing officer advised Mr Gibbings and Ms Venn that Council would be prepared to reconsider the declarations if the applicants remedied the defective fencing (which prompted the declarations to be issued) within 21 days but that no fencing was undertaken so the declarations were maintained.
Inherent in the extension of time application and review application of Mr Gibbings and Ms Venn is that their financial position delayed the required work to the fencing, hence effecting their ability to comply with the Council requirements. But the applicant’s financial position is not a ground for consideration of an extension of time.
On the strength of Mr Gibbings’ and Ms Venn’s case, the Council submits that the declarations were validly made, based on sufficient grounds. A complaint had been received that the dogs were behaving aggressively and attempting to push through a fence on the boundary of the property. This followed earlier incidents in January 2011 where the dogs broke through the fence and injured a neighour’s dog and the neighbour when she sought to intervene.
A Council officer attending the property observed the dogs’ behavior and the impact on the fencing and had formed a reasonable opinion as required in s 89 of the Act that the dogs had acted or may act to cause fear to a person or animal.
With such antecedents and with the dogs observed continuing to attempt to push through the fence, it is difficult to see how the applicants could mount an argument that the dogs were not menencing in the terms of s 86. I am not satisifed that the prospects of success are sufficent to extend time for the applicants to now file a review application.
Mr Gibbings’ and Ms Venn’s concern that the same officer made the original and the review decision has proven unfounded and indeed the reviewing officer made an offer to the applicants in terms of reconsidering the declarations if the applicants remedied the defective fencing – an offer not acted upon.
I am not satisfied that the delay has been reasonably explained or that the Council was aware that Mr Gibbings and Ms Venn continued to contest the decision. I am satisifed that the Council stands to suffer some prejudice presenting its case because of the time delay and that this reflects public policy supporting a need to ensure finality in disputes and to prevent difficulties that result from fading memory as time languishes or as witnesses become unavailable.
I am satisifed that Mr Gibbings and Ms Venn only finally took action when the dogs were seized.
I am not satisfied that an extension of time is appropriate and will make an order accordingly.
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