Gray v Brimbank City Council - [2013] VSC 281

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2012 05452

Jessica Gray	Appellant
v
Brimbank City Council	Respondent

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JUDGE:	KYROU J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 May 2013
DATE OF JUDGMENT:	30 May 2013
CASE MAY BE CITED AS:	Gray v Brimbank City Council
MEDIUM NEUTRAL CITATION:	[2013] VSC 281
JUDGMENT APPEALED FROM:	Gray v Brimbank CC [2012] VCAT 1304 (Member Butcher)

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ADMINISTRATIVE LAW — Appeal from a decision of the Victorian Civil and Administrative Tribunal dismissing an application for review for want of jurisdiction — Whether the appellant was the owner of a dog at the time it was declared to be a restricted breed dog — Tribunal misconstrued s 33A of the Domestic Animals Act 1994 and erred in holding that it lacked jurisdiction to hear the appellant’s application for review — Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms M Loughnan SC with Mr R Watters	Michael Faltermaier Lawyers
For the Respondent	Mr A Halse	McNamaras

TABLE OF CONTENTS

Introduction and summary............................................................................................................... 1

Relevant provisions of the Domestic Animals Act....................................................................... 2

Facts....................................................................................................................................................... 5

VCAT’s decision................................................................................................................................. 7

Questions of law................................................................................................................................. 9

Question 1: Scope of s 33A of the Act............................................................................................. 9

Question 4: Whether s 33A of the Act can apply to a seized dog............................................ 11

Question 2: Is the passing of ownership under s 33A of the Act irrevocable?..................... 15

Question 3: Did the Surrender Document transfer ownership to the Council?................... 16

Should VCAT’s decision be set aside and the proceeding remitted to VCAT?................... 17

Proposed order.................................................................................................................................. 18

HIS HONOUR:

Introduction and summary

On 7 May 2012 the appellant’s unregistered dog, Mylo, escaped from the appellant’s property. On the following day, Mylo was seized by Mr Tim Christie, an authorised officer of the Brimbank City Council (‘Council’), and taken to the Lost Dogs’ Home. The seizure was made pursuant to s 80 of the Domestic Animals Act 1994 (‘Act’) on the basis that Mr Christie reasonably believed that Mylo was a ‘restricted breed dog’, namely, an ‘American Pit Bull Terrier (or Pit Bull Terrier)’.[1]
[1]See the definition of ‘restricted breed dog’ in s 3(1) of the Act.

On 11 May 2012, the appellant signed a document titled ‘Animal Surrender Authorisation’ (‘Surrender Document’)[2] which the Council contends had the effect of passing ownership in Mylo from the appellant[3] to the Council in accordance with s 33A of the Act.
[2]The Surrender Document is erroneously dated 10 May 2012.
[3]At common law, Mylo was owned by the appellant’s daughter. As the daughter was under the age of 18 years, s 4 of the Act deemed the appellant to be the owner of Mylo for the purposes of the Act.

Section 33A of the Act provides as follows:

33ACouncil animal shelters and pounds must accept surrendered animals
(1)A Council of a municipal district must accept any dog or cat kept in that municipal district which is given to the Council by…

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 [2013] VSC 281
Case: [2013] VSC 281
Decision Date: 30 May 2013

CaseChat Overview and Summary

The appellant, Gray, filed an appeal against a decision by the Victorian Civil and Administrative Tribunal, which dismissed an application for review of a decision by Brimbank City Council to declare a dog to be a restricted breed dog. The appellant claimed to be the owner of the dog at the relevant time and sought to challenge the Council’s decision. The Tribunal found that it lacked jurisdiction to hear the application because it concluded that the appellant was not the owner of the dog at the time it was declared to be a restricted breed dog. Gray appealed this decision, contending that the Tribunal had misconstrued section 33A of the Domestic Animals Act 1994 and erred in holding that it lacked jurisdiction.

The primary legal issue before the court was whether the Tribunal correctly interpreted section 33A of the Act and whether it had jurisdiction to hear Gray’s application. Gray argued that the Tribunal had misconstrued the relevant provisions of the Act and failed to consider relevant evidence which demonstrated that the appellant was indeed the owner of the dog. The Council, on the other hand, contended that the Tribunal's interpretation of the Act was correct and that the Tribunal was correct to find it lacked jurisdiction.

The court found that the Tribunal had indeed misconstrued section 33A of the Act. It held that the Tribunal’s interpretation of the relevant provisions did not align with the plain language of the statute. The court held that the Tribunal should have considered all evidence before it, including evidence which supported the appellant’s claim to be the owner of the dog. As a result, the court found that the Tribunal erred in concluding that it lacked jurisdiction to hear the appellant’s application for review. Consequently, the appeal was allowed and the matter was remitted to the Tribunal for further consideration.

The court did not make any specific orders but directed that the matter be remitted to the Tribunal for reconsideration in light of the court's findings.

Orders