Gray v Brimbank City Council - [2014] VSC 13

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No S CI 2013 5064

JESSICA GRAY	Appellant
v
BRIMBANK CITY COUNCIL	Respondent

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JUDGE:	RUSH J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 December 2013
DATE OF JUDGMENT:	6 February 2014
CASE MAY BE CITED AS:	Gray v Brimbank City Council
MEDIUM NEUTRAL CITATION:	[2014] VSC 13

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ADMINISTRATIVE LAW – Appeal from decision of Victorian Civil and Administrative Tribunal – Declaration by Council that the dog of the appellant is a “restricted breed dog” – Declaration upheld by VCAT – Adverse findings made by senior member against expert witness of the appellant – Apprehended bias – No evidence – Inadequate reasons – Admissibility of purported expert evidence at VCAT – Leave to appeal granted – Appeal allowed – Matter remitted for rehearing.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R Kendall QC with Mr A Felkel	Turks Legal
For the Respondent	Mr R Appudurai (solicitor)	Russell Kennedy

HIS HONOUR:

Introduction

This matter has a protracted legal history. On 7 May 2012, the appellant’s unregistered dog, “Mylo”, was found wandering at large and was seized by Mr T. Christie, an Authorised Officer of the Brimbank City Council (“respondent”) pursuant to s 80 of the Domestic Animals Act1994 (“the Act”). The seizure occurred on the basis that Mr Christie believed Mylo was a restricted breed dog – an American pit bull terrier.

On 11 May 2012, the appellant signed an “animal surrender authorisation”.[1] On 12 June 2012, the appellant made application to the Victorian Civil and Administrative Tribunal (“VCAT”) for a review of Mr Christie’s decision to declare Mylo an American pit bull terrier.
[1]Pursuant to s 33A of the Domestic Animals Act 1994.

On 17 May 2012, Mr Christie made a formal declaration that Mylo was a restricted breed dog.[2]
[2]Domestic Animals Act 1994 s 98A(1).

At the hearing of the application for review of the declaration at VCAT on 12 June 2012, the respondent contended as a consequence of the signing of the animal surrender authorisation, ownership of Mylo passed from the appellant to the respondent and VCAT had no jurisdiction to determine the application. This submission was accepted by VCAT.

The appellant appealed the VCAT decision to this Court. Kyrou J concluded VCAT misconstrued s 33A of the Act, and that VCAT did have jurisdiction to hear the application. The matter was remitted to VCAT for rehearing.[3]
[3]See Gray v Brimbank City Council [2013] VSC 281.

The rehearing was heard at VCAT on 20 and 21 August 2013. The senior member delivered an ex tempore judgment on 21 August. At contest was the merits of the declaration by Mr Christie that Mylo was a restricted breed dog.

The Standard

Under s 3(1) of the Act, a restricted breed dog is any one of five breeds of dog, the fifth of which is an American pit bull terrier (or pit bull terrier). The Act provides that a dog “that falls…

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.

Continue reading Gray v Brimbank City Council

Details

AGLC: Gray v Brimbank City Council [2014] VSC 13
Case: [2014] VSC 13
Decision Date: 6 February 2014

CaseChat Overview and Summary

The appeal before the court involved Gray, the appellant, and Brimbank City Council, the respondent, with the dispute centering on the classification of the appellant's dog as a “restricted breed dog.” The case was heard in the Supreme Court of Victoria. The appellant sought a review of a decision by the Victorian Civil and Administrative Tribunal (VCAT) which upheld the Council’s declaration regarding the dog’s breed classification.

The central legal issues in the case pertained to the procedural fairness of the VCAT decision, specifically whether there was any apprehended bias on the part of the tribunal member, whether the reasons provided for the decision were adequate, and the admissibility of expert evidence presented at VCAT. The appellant argued that the tribunal member exhibited bias and that the reasons for the decision were insufficient and inadequate. Furthermore, the appellant contended that the tribunal improperly excluded expert evidence which was critical to their case.

The court found that there was no evidence of apprehended bias on the part of the tribunal member. However, the court did determine that the reasons provided for the decision were inadequate. The reasons did not sufficiently explain how the tribunal arrived at its conclusions regarding the dog’s breed and the admissibility of expert evidence. Additionally, the court found that the exclusion of the appellant’s expert evidence was improper. Consequently, the appeal was allowed, and the matter was remitted for rehearing before a different tribunal member. The court's decision highlighted the importance of detailed and comprehensive reasons in administrative law decisions, particularly in cases involving expert evidence.

Orders