Goodluck v City of Darwin
[2021] NTSC 86
•12 November 2021
CITATION: Goodluck v City of Darwin [2021] NTSC 86
PARTIES: GOODLUCK, Gregory Donald
v
CITY OF DARWIN
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:2021-00485-SC
DELIVERED: 12 November 2021
HEARING DATE: 23 April 2021
JUDGMENT OF: Grant CJ
CATCHWORDS:
ADMINISTRATIVE LAW – Grounds of review other than procedural fairness – Irrelevant and relevant considerations – Unreasonableness – No evidence
Whether decision to release dog involved in attack on person was valid – Decision quashed.
Akers v Minister for Immigration & Ethnic Affairs (1988) 20 FCR 363, Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, East Melbourne Group v Minister for Planning (2008) 23 VR 605, McDowell & Partners Pty Ltd v Button (1983) 79 FLR 166, McVeigh v Willarra Pty Ltd (1984) 6 FCR 587, Minister for Immigration, Local Government & Ethnic Affairs v Pashmforoosh (1989) 18 ALD 77, Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611, Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165, Smith v Commonwealth (2009) 31 VAR 474, Turner v Linkenbagh (1994) 37 ALD 106, Waniewska v Minister for Immigration & Ethnic Affairs (1986) 70 ALR 284, referred to.
REPRESENTATION:
Counsel:
Plaintiff:EG Withnall
DefendantJW Roper
Solicitors:
Plaintiff:Withnall Halliwell
DefendantHWL Ebsworth Lawyers
Judgment category classification: B
Judgment ID Number: GRA2120
Number of pages: 23
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINGoodluck v City of Darwin [2021] NTSC 86
No. 2021-00485-SC
BETWEEN:
GREGORY DONALD GOODLUCK
Plaintiff
AND:
CITY OF DARWIN
Defendant
CORAM: GRANT CJ
REASONS FOR JUDGMENT
(Delivered 12 November 2021)
On the morning of 15 November 2020, the plaintiff was playing with his dog in a park across the road from his residence in the northern suburbs of Darwin. While there, the plaintiff and his dog were attacked by two other dogs which had escaped from the yard of the plaintiff’s next door neighbour. One of those other dogs, a pit bull/dingo cross, attacked and bit the plaintiff. As a consequence, the plaintiff required hospitalisation and surgery. The other dog, a pit bull, attacked and savaged the plaintiff’s dog. That attack on the plaintiff’s dog only stopped after the plaintiff’s wife, hearing the plaintiff’s cries for help, ran from their residence and stabbed the assailant animal to death with a kitchen knife.
From in or about April 2020, the defendant had received a number of reports of the two assailant dogs being constantly at large and a danger to the community. Rangers employed by the defendant had served the owner of the dogs with compliance notices on two occasions, in April and early-November 2020 respectively. Rangers were called to the scene in the immediate aftermath of the incident which took place on 15 November 2020. They impounded the pit bull/dingo cross and took the body of the deceased pit bull for disposal.
On 9 December 2020, the defendant determined to declare the surviving dog a Declared Dog (Category 1) pursuant to by-laws 55A and 55B of the Darwin City Council By-laws 1994 (NT). A Declared Dog (Category 1) is a dog that has committed a Level 1 attack, namely biting or holding a person or animal in its mouth. The defendant further determined to return the dog to its owner on condition that it be de-sexed and that the fence surrounding the owner’s property be repaired prior to the dog’s release.
On 15 December 2020, the dog was released from the pound and returned to its owner. The plaintiff has sought judicial review of that decision on the grounds which are described further below. For the reasons that follow, in the application of administrative law principles the defendant’s decision was manifestly flawed on a number of grounds and is quashed.
Procedural history
Following the release of the dog on 15 December 2020, the dog was impounded again after the owner had failed to comply with the conditions of the dog’s release. At or about the same time, the plaintiff made a complaint to the defendant about the release of the dog. In response to that complaint, the defendant purported to conduct a review of the decision. That review was conducted over the course of January and February 2021 pursuant to the defendant’s complaints handling policy. That review again determined that the dog should be released to its owner subject to conditions, and that the dog would be returned on 1 March 2021.
In response to that determination, the plaintiff commenced proceedings by application filed in the Local Court on 22 February 2021. That application sought an urgent injunction restraining the defendant from releasing the dog to its owner on 1 March 2021 in order ‘for due processes of review to occur’. When the matter came before the Local Court on 26 February 2021, that court transferred the proceedings to the Supreme Court on an undertaking by the defendant to keep the dog impounded until 12 March 2021. The reason for that determination to transfer the proceedings would appear to be that the Local Court considered it did not have jurisdiction to hear an application for judicial review of the defendant’s decision to return the dog, or to grant ancillary injunctive relief.
When the matter first came before this Court, the plaintiff’s application asserting invalidity was directed toward the decision made by the defendant to release the dog to its owner for a second time, following the review conducted over the course of January and February 2021. However, during the course of the case management processes in this Court, the defendant adopted the position that the original decision which had been made by the defendant on 9 December 2020 was a final and binding administrative decision, and any purported internal ‘review’ of that decision was misconceived. On that contention, the application for judicial review was properly redirected to the decision made on 9 December 2020. The plaintiff concurred with the defendant’s characterisation of the operative decision, and the proceedings before this Court were directed exclusively to the question of whether the decision made on 9 December 2020 was invalid on administrative law grounds.
The initiating process that had been filed by the plaintiff in the Local Court did not contain any pleading or endorsement of claim. As that was the only initiating process transferred to this Court, the plaintiff was ordered to file points of claim identifying the grounds on which the decision was said to be ultra vires. That was done by document dated 21 April 2021, which, by way of broad summary, ‘pleaded’ the following grounds:
(a)the defendant failed to identify or make proper enquiry as to which dog had bitten the plaintiff, constituting unreasonableness or a failure to take into account relevant considerations;
(b)the defendant determined to release the dog to its owner at a time when the state of the fence around the owner’s property did not prevent its escape, constituting unreasonableness and/or an improper exercise of power;
(c)the defendant failed to comply with its own compliance and enforcement policy requiring an evidence-based investigation, with the consequence that the plaintiff was denied natural justice;
(d)the defendant relied on an assessment made by PAWS Darwin in determining to return the dog to its owner in circumstances where the information provided by the defendant to the assessor was deficient and/or erroneous, which resulted in unreasonableness, the consideration of irrelevant material, and a failure to take into account relevant considerations;
(e)the defendant failed to elicit relevant information from the plaintiff during the interview conducted with him while he was hospitalised, which resulted in a failure to take into account relevant considerations and the consideration of irrelevant material.
Those contentions fall to be addressed on the basis that judicial review is not concerned with the merits of the decision in question, but rather whether the manner in which the power was exercised was valid.
Consideration
The defendant’s decision to release the dog to its owner was made on 9 December 2020 by the General Manager, Community and Regulatory Services for the defendant (‘the decision-maker’). The decision-maker made an affidavit on 15 April 2021 annexing the documents to which he says he had regard in making the decision. He says that he considered all of the documents. At paragraph 7 of that affidavit, he deposes to the matters that informed the decision to release the dog. They included the following matters:
(a)It was unclear on the evidence which of the two dogs bit the plaintiff.
(b)The plaintiff’s statement did not specify which of the two dogs bit him.
(c)Although the plaintiff’s wife said that the plaintiff told her that it was the pit bull/dingo cross that bit him, that statement was given little weight because it was ‘hearsay’.
(d)Even if the pit bull/dingo cross was the one which had bitten the plaintiff, it was not possible to conclude that the dog did so ‘intentionally’ rather than in the course of the plaintiff attempting to intervene in that dog attacking his own dog.
(e)The behavioural assessment completed by PAWS found the dog to be fearful but not aggressive.
(f)The Department of Housing was going to repair the inadequate fencing around the public housing residence occupied by the dog’s owner ‘in order to better contain’ the dog.
For the reasons that follow, those contentions are variously ill-founded or erroneous.
I turn first to the decision-maker’s finding that it was unclear which dog had bitten the plaintiff. The decision-maker deposes at paragraph 6 of his affidavit that he had regard to the Investigation Report which had been prepared by the Ranger with carriage of the investigation, together with the brief of documents which accompanied that Report. That part of the Investigation Report which is expressed to ‘list the determined facts based on available evidence’ relevantly provides:
After reading the statements by Mr and Mrs Goodluck, Marley [the pit bull/dingo cross] attacked Mr Goodluck and Tyson [the pit bull] attacked Miko [the plaintiff’s dog].
That finding was confirmed by the plaintiff during the course of the evidence he gave in this Court. The Officer Recommendation made in the Investigation Report clearly reflected the finding that the pit bull/dingo cross was the dog that had attacked the plaintiff, and contained the following assessment:
Behaviour Assessment on Marley [the pit bull/dingo cross], I am concerned about community safety and the fact that they were not able to keep them properly contained. She has shown concerning behaviour at the pound (skittish) and believe that due to the severity of this attack on Mr Goodluck that she could attack again.
The Investigation Report was provided to the defendant’s Animal Management Supervisor for the purpose of making a recommendation to the decision-maker as the officer with the delegation to decide the matter. In a handwritten endorsement on the Investigation Report, the Animal Management Supervisor states:
It is not clear whether it was Tyson [the pit bull] or Marley [the pit bull/dingo cross] who bit Gregory Goodluck on the leg.
That observation or finding is unsupported by anything in the Investigation Report, and is in fact directly contrary to the finding of fact recorded in the Report, namely that it was the pit bull/dingo cross that had attacked the plaintiff. When the Report was provided in turn to the decision-maker, he made a further handwritten endorsement agreeing with the recommendation. As is apparent from the affidavit he subsequently made, that agreement extended to the adoption of the Animal Management Supervisor’s unfounded conclusion that it was unclear which dog had bitten the plaintiff.
The decision-maker sought to defend that finding during the course of his evidence despite his acceptance of the fact that the accounts of the incident given by the plaintiff and his wife were to the effect that it was the pit bull/dingo cross which had bitten the plaintiff, and his acceptance of the fact that there was absolutely no evidence to the contrary. While the decision-maker asserted that he had to ‘weigh’ the evidence that the pit bull/dingo cross had bitten the plaintiff against the other evidence, there was simply no countervailing evidence against which to weigh it.
While it is true that the plaintiff’s formal statement dated 24 November 2020 does not specifically identify which dog bit him and ripped the flesh on his lower right leg, it did not follow that it was unclear or unknown which dog had bitten him. If that was to be a pivotal issue in the decision-maker’s determination, the onus was on the defendant to clarify that matter. That is particularly so given the fact that the plaintiff was seriously injured and medicated at the time the Ranger took the statement from him. The evidence is to the effect that the Ranger attended on the plaintiff at his home on 18 November 2020 for the purpose of interviewing him. The Ranger then prepared a draft statement based on that interview which she provided to the plaintiff to sign. After making certain changes, the plaintiff signed the statement which had been drafted by the Ranger.
The plaintiff’s evidence is that during the course of the interview conducted on 18 November 2020 he advised the Ranger on at least one occasion that the pit bull/dingo cross was the dog that had bitten him. The Ranger’s affidavit evidence was that she could not recall the plaintiff specifying which of the dogs committed each part of the attack, and that if the plaintiff had told her that one of the dogs in particular had bitten his leg she would ordinarily have included that information in a witness’s statement. That does not constitute a denial that the plaintiff advised her which dog had bitten him, and I accept the plaintiff’s evidence in that respect, not least because it is entirely consistent with what he is recorded as having told his wife at the time. For the same reason, I also reject the defendant’s submission to the effect that the plaintiff deliberately withheld information from the defendant, or otherwise purposefully obfuscated the identity of the dog which had attacked him.
It is unclear why the Ranger did not incorporate that information into the plaintiff’s statement, or otherwise seek to clarify the issue, given that it would seem highly relevant to the decision-maker’s ultimate decision of whether or not to release the dog. When questioned about that matter during the course of her evidence, the Ranger suggested that she did not incorporate that information into the plaintiff’s statement while drafting it because it was irrelevant for her purposes whether the dog had bitten a human or another animal. While it is the case that under the By-laws a Category 1 declaration may be made in circumstances where a dog has carried out an attack involving biting either a person or an animal, it is clearly and highly relevant for other purposes that it be known that a dog has carried out an attack on a person. It is also clear that the Ranger’s failure to incorporate that information into the plaintiff’s statement could not subsequently be relied upon by the decision-maker as giving rise to uncertainty in relation to that matter.
In any event, the Ranger made the express finding in the Investigation Report that the pit bull/dingo cross was the dog which had attacked the plaintiff. Although the Ranger did not seek to clarify that matter in the plaintiff’s statement, the finding was presumably made on the basis that the statement given by the plaintiff’s wife identified the pit bull/dingo cross as the dog that had bitten the plaintiff. It appears that the Ranger considered that to be an adequate and appropriate basis on which to make a finding to that effect in the Investigation Report.
The relevant decision in this case was to release the dog from the pound to its owner. In the ordinary course, the considerations that are relevant and irrelevant in the exercise of administrative power are to be determined by construing the legislation conferring the decision-making power. In the present case, the legislation does not expressly or exhaustively define the matters that are relevant to the decision. However, this does not mean that the decision-maker’s discretion was arbitrary or unlimited. Basing a decision on a mistaken or incorrect finding of fact will constitute the consideration of an irrelevant matter where the fact is found unreasonably[1]; where the decision-maker proceeds upon an erroneous premise on a fundamental matter[2]; where the decision-maker has regard to mere conjecture to make an insupportable finding[3]; or when the finding in relation to a fundamental matter is attended by significant deficiencies[4]. Similarly, failing to consider a fundamental matter, such as the finding made in the Investigation Report in this case, will constitute a failure to take a relevant matter into consideration.
In addition to those grounds of review, incorrect, perverse or unreasonable findings may be quashed on the grounds of unreasonableness and/or no evidence. Unreasonableness in the Wednesbury sense[5] will be made out where there was manifest illogicality in arriving at the decision, in the sense that the findings were illogical or the inferences of fact drawn by the decision-maker were unsupported by probative material or logical grounds.[6] The ground of 'no evidence' will be made out where a fact critical to the determination is found when there is no probative material to support its finding, or where an inference drawn from the facts as found is not reasonably open.[7] In this particular case, the decision-maker did not make a positive finding. Rather, he considered that he was unable to find that it was the pit bull/dingo cross that had bitten the plaintiff. As is described above, there was no evidence that the pit bull/dingo cross was not the dog that bit the plaintiff, and the inference that the other dog may have bitten the plaintiff was not reasonably open.
The decision-maker’s finding to the effect that it had not been established that the pit bull/dingo cross had bitten the plaintiff was critical, instrumental and fundamental in his determination to release the dog to its owner. That was a finding: (a) made on the basis of no evidence; (b) which took into account an irrelevant consideration for the reasons described above; (c) which failed to take into account a relevant consideration in circumstances where the Investigation Report had concluded that the pit bull/dingo cross had in fact bitten the plaintiff; and (d) which was unreasonable in the Wednesbury sense that no reasonable decision-maker could have arrived at it in the circumstances I have described.
I turn then to consider the decision-maker’s finding that even if the pit bull/dingo cross was the dog that had bitten the plaintiff, it was not possible to conclude that the dog did so ‘intentionally’ rather than in the course of the plaintiff attempting to intervene in the pit bull/dingo cross attacking his own dog. For the reasons which follow, that finding is circumstantially related to the significant extent to which the decision-maker relied on the behavioural assessment completed by PAWS, which the decision-maker says found the dog to be fearful but not aggressive.
The PAWS Darwin Assessment Form includes a section titled ‘Known Dog History’, which contains the following information:
Dog has history of being at large with a second dog. Most likely non-compliant owners.
Dog lived with another dog.
Dog Entire Female – heavily pregnant.
Dog was at age and present when companion dog attacked another dog. Human intervention caused human to be bitten. No confirmation that Marley [the pitbull/dingo cross] was the dog responsible for the bite to human.
The author of the Behavioural Assessment Report confirmed in her evidence that she had no independent source of information in relation to the dog’s history. The background information contained in that section of the assessment was provided to her by the Ranger(s) who made the referral. The author was not provided with any documentation in relation to the attack, and was not provided with any statement made by the plaintiff or his wife about the incident. In particular, the information to the effect that human intervention caused the victim to be bitten and that there was no confirmation that the pit bull/dingo cross was the dog responsible for the bite, was all information provided by the referring Ranger(s).
The first point to be made here is that there is nothing in the Investigation Report which would sustain a finding that the pit bull/dingo cross initially bit the plaintiff’s leg in the course of the plaintiff attempting to intervene in a fight between that dog and the plaintiff’s own dog. This piece of speculation was conveyed to PAWS by the defendant; incorporated into the PAWS Report which was subsequently provided to the defendant; and ultimately relied upon by the decision-maker as an independent source of information on which to found the possibility that the bite to the plaintiff’s leg was inflicted in those circumstances. The plaintiff’s statement makes it tolerably clear that he was attacked before the assailant dogs turned on his dog, and before he subsequently ‘was trying to get them away from Miko’. The plaintiff confirmed that course of events during the course of his evidence.
The second point to be made in relation to the PAWS Report is that the information provided to the author by the referring Ranger(s) to the effect that it could not be said that the pit bull/dingo cross was responsible for biting the plaintiff was directly inconsistent with the Ranger’s own finding in the Investigation Report that ‘Marley [the pit bull/dingo cross] attacked Mr Goodluck and Tyson [the pit bull] attacked Miko [the plaintiff’s dog]’. While it may be accepted that the PAWS Report was submitted on 7 December 2020, and that the Investigation Report was not completed until 9 or 10 December 2020, at no stage prior to the completion of the PAWS Report did the defendant correct the misinformation which was initially provided to the author of the PAWS Report.
To the extent the PAWS behavioural assessment might have suggested that the dog was fearful but not aggressive, that suggestion was no doubt influenced by the incorrect information provided by the defendant. That is, that human intervention caused the plaintiff to be bitten, and that there was no evidence that it was the pit bull/dingo cross that had bitten the plaintiff. When the author of the PAWS Report completed the document she sent it to the defendant. Nobody from the defendant subsequently discussed the content of the Report with the author. During the course of her evidence, the author of the Report posited the obvious qualification that the information she was provided about the incident was important in her assessment. The second important point she made was that it was not her job to recommend whether the dog being assessed should be released, and her Report certainly did not do that. The effect of the author’s evidence given in court was that in her opinion the dog was extremely maladjusted and poorly socialised. Of course, that was not information that the decision-maker took into account because he only considered the written report, which, as stated, was based in significant part on misinformation provided by the defendant.
The decision-maker says that he considered it ‘highly relevant and influential’ in his decision that the behavioural assessment completed by PAWS found the dog to be fearful but not aggressive. The implication in his affidavit is that this behavioural assessment also caused him to doubt that it was the pit bull/dingo cross that had bitten the plaintiff. For the reasons already described, that doubt or uncertainty was a confection entirely of the decision-maker’s own making, and not in any way supported by the evidence.
Even leaving that matter aside, the PAWS Report also contained the following observations:
In my professional opinion I would not go into the cage with her as [encroaching] into her space may trigger a bite, however I believe that she is too afraid of people to bite someone unless her space was invaded or she felt that she was threatened and had no escape.
Is it possible that she bit the human involved in the incident, yes it is if she was bolstered by the other dog and someone put their hands on her. I think from the little I know about the attack that it is possible she was not injured during the attack because she did not get close enough to humans or the other dogs to get hurt. Without witnessing the attack or speaking to witnesses about the attack I am unable to be 100 percent sure of this.
Overall I think the dog is a risk if cornered or feels at risk …
The decision-maker apparently did not consider those matters to be highly relevant and influential in his decision, although they were sufficient to lead the Ranger who prepared the Investigation Report to conclude that the dog gave rise to concerns about community safety and that, given the severity of the attack on the plaintiff, the dog could attack again.
The decision-maker’s finding to the effect that it was not possible to conclude that the pit bull/dingo cross ‘intentionally’ bit the plaintiff was critical, fundamental and instrumental in his determination to release the dog to its owner. In the application of the principles of administrative law which have been discussed above, that was a finding: (a) made on the basis of no evidence; (b) which took into account the irrelevant consideration that the plaintiff was bitten while intervening in a fight between the two dogs; and (c) which was unreasonable in the Wednesbury sense that no reasonable decision-maker could have arrived at it in the circumstances I have described.
I turn then to the decision-maker’s reliance on the fact that the Department of Housing was going to repair the inadequate fencing around the public housing residence occupied by the dog’s owner ‘in order to better contain’ the dog. It is necessary to put that determination into proper context. The Investigation Report made reference to and annexed the compliance notices which had previously been served on the owner of the dogs in April and November 2020 respectively. The first notice dated 24 April 2020 advised that the owner was in contravention of those provisions of the Darwin City Council By-laws 1994 in relation to her dogs being at large and not properly contained. The notice required the owner to keep the dogs in a fenced area from which they were unable to escape, and under effective control when in a public place. The second notice dated 5 November 2020 advised the owner that Rangers had recently attended the property and observed ‘2 large breed dogs’; that there were no dogs registered to the property; that it was an offence to keep an unregistered dog; and that the animals had to be registered within seven days. It was only 10 days after that notice was issued that the attack on the plaintiff and his dog took place.
The Investigation Report drew the following conclusion in relation to the owner’s liability and culpability for the offences created by the Darwin City Council By-laws 1994 of failing to keep a dog properly contained, allowing a dog to be at large and a dog committing an attack:
Due to the dogs being constantly at large, the dog owner has been extremely negligent.
The Investigation Report also concluded that there were no potential defences available to the owner of the dogs, and no mitigating factors regarding the owner or the circumstances of the alleged offending. The owner of the dogs was called to give evidence during the hearing. Her demeanour and the content of that evidence was apt to raise questions concerning her suitability as an owner of these breeds of dog, and to confirm the conclusion that there were no mitigating factors. It would appear, for reasons which were not traversed in the evidence, that no prosecution action was taken against the owner of the assailant dogs in respect of the offences identified in the Investigation Report.
During the course of the interview conducted by the Ranger with the owner of the surviving dog on 23 November 2020, the owner advised that she thought the dogs had escaped her yard by getting over the fence separating her yard from the plaintiff’s yard. That is consistent with the plaintiff’s evidence that the pit bull/dingo cross was able to jump the chain-link fence between the two yards, and had previously done so on several occasions in the months prior to the attack. When the owner was advised that the surviving dog was to be released on condition that a fence inspection be completed and passed, the owner informed the Ranger that the Department of Housing was replacing the fence. There was no further detail in the evidence as to whether it was the front fence or the side fence which was being replaced. It is also unclear whether the fence was in fact being replaced, in circumstances where the decision-maker’s notation was only: ‘Fence to be repaired prior to release.’
The fence was inspected and approved by the Ranger on 14 December 2020, and the pit bull/dingo cross was released to the owner the following day. The Ranger’s evidence in relation to the inspection and the criteria she applied for that purpose contained the following concessions. First, the Ranger did not complete the form which comprises part of the approval process for fence inspections, and otherwise made no written record of the content of her inspection. Second, the Ranger did not turn her mind to whether the fence had been upgraded or whether it remained in the same configuration as it had been in on the date of the attack. Third, in making her assessment the Ranger applied something in the nature of a general standard, rather than giving any particular or specific consideration to whether the fence was sufficient to contain a dog with the pit bull/dingo cross’s characteristics. Uncontested expert evidence adduced by the plaintiff during the hearing suggested that it might be possible for a dog of this physical type to jump over the fence.
On 24 December 2020, the Ranger was instructed by her supervisor to conduct a further extension of the fencing between the two yards. This was because the plaintiff had advised that vegetation had been removed along the boundary fence which would allow the pit bull/dingo cross to climb the fence. The Ranger made contact with the owner of the dog, who advised that she would provide a time for the inspection of the fence to take place. However, the owner made no further contact for that purpose. For reasons which were not explored during the course of evidence, the fence at the front of the owner’s property was replaced by the public housing authority in January 2021. It was during that replacement that the pit bull/dingo cross was impounded for a second time.
Having regard to the concessions made by the Ranger, her determination that the fence was adequate to contain the pit bull/dingo cross was invalid for failing to take into account a relevant consideration; namely, the fence’s capacity to contain this particular dog. However, the decision-maker’s decision made on 9 December 2020 to release the dog was defective in the administrative law sense for the reasons already given. Accordingly, anything done in consequence of that decision was a nullity in any event. Even were that not so, the decision-maker’s determination to release the dog on the basis, inter alia, that the fence would be ‘repaired’ prior to release was also flawed. It gave no consideration to the nature of the ‘repair’, or whether the fence when repaired in its original configuration would be adequate to contain the dog.
Disposition
For these reasons, the defendant’s decision made on 9 December 2020 to return the dog to its owner is quashed. I will hear the parties in relation to costs if need be.
_________________________
[1]Minister for Immigration, Local Government & Ethnic Affairs v Pashmforoosh (1989) 18 ALD 77, 80; McVeigh v Willarra Pty Ltd (1984) 6 FCR 587, 599.
[2]Akers v Minister for Immigration & Ethnic Affairs (1988) 20 FCR 363, 373; McDowell & Partners Pty Ltd v Button (1983) 79 FLR 166.
[3]Waniewska v Minister for Immigration & Ethnic Affairs (1986) 70 ALR 284, 295; Turner v Linkenbagh (1994) 37 ALD 106, 113.
[4]Smith v Commonwealth (2009) 31 VAR 474, [10], [17]–[18].
[5]In this context, this ground is sometimes referred to as 'irrationality' in the context of fact-finding. See, for example, Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611, [121]–[127].
[6]East Melbourne Group v Minister for Planning (2008) 23 VR 605, [180]–[184]; Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611, [145]–[148]; Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165, [34]–[37], [52]–[60].
[7]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 355-360.
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