Herbohn v Isaac Regional Council - [2018] QCAT 31

CITATION:	Herbohn v Isaac Regional Council [2018] QCAT 31
PARTIES:	Thomas Herbohn (Applicant)
v
Isaac Regional Council (Respondent)
APPLICATION NUMBER:	GAR166-17
MATTER TYPE:	General administrative review matters
9 October 2017
HEARD AT:	Mackay
DECISION OF:	Member Beckinsale
DELIVERED ON:	6 February 2018
DELIVERED AT:	Brisbane
ORDERS MADE:	The decision of the Isaac Regional Council to declare Diesel and Pepper dangerous dogs is confirmed.
CATCHWORDS:	ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – declaration of dangerous dogs Animal (Cats and Dogs) Management Act 2008 (Qld), s 3,s 4,s 59, s 70(1), s 89(1), s 89(2)(a), s 89(2)(b), s 89(3), s 89(7), s 95, s 127(4), s 194, s 195, s 196(1)(a)(b), Schedule 2 Criminal Code 1899 (Qld), s 1 Invasion of Privacy Act 1971 (Qld), s 43(1), s 43(2), s 45(1), s 45(2)(b) s 45(3), s 46 Queensland Civil and Administrative Act 2009 (Qld), s19, s 20(1), s 20(2), s 21, s 24 Bradshaw v Moreton Bay Regional Council [2017] QCATA 139 Briginshaw v Briginshaw (1938) CLR 336 Lee v Brisbane City Council (No 2) [2012] QCATA 64 Thomas v Ipswich City Council [2015] QCATA 97
APPEARANCES:
APPLICANT:	Thomas Herbohn
RESPONDENT:	Isaac Regional Council

REPRESENTATIVES:
APPLICANT:	self represented
RESPONDENT:	represented by Trevor Maher

REASONS FOR DECISION

Mr Herbohn is the owner of male and female American Staffordshire Terriers named “Diesel” and “Pepper” kept at his residence at Clermont.
Following an incident at Mr Herbohn’s residence on 2 April 2017 which resulted in his next door neighbour’s male Kelpie named, “Spud”, requiring veterinary attention, the Isaac Regional Council issued Regulated (Dangerous) Dog Declarations in accordance with s 95 of the Animal Management Act (Cats and Dogs) 2008 (Qld) (the AM Act) with respect to both Diesel and Pepper. Additionally, Council issued Infringement Notices with respect to Diesel and Pepper not being registered with the Council and a Compliance Notice to Spud’s owner for having an insufficient enclosure. Upon internal review, Council confirmed its decision to issue Dangerous Dog Declarations. Mr Herbohn applied to the Tribunal for a review of that decision.

Legal Framework

In reviewing a decision, the Tribunal does so by way of a fresh hearing on the merits.[1] The Tribunal must decide the review in accordance with the Queensland Civil and Administrative Tribunal Act 2009 and the act giving jurisdiction to hear the matter.[2] The Tribunal stands in the shoes of the decision-maker and is required to produce the correct and preferable decision.[3]
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(2).
[2]Ibid s 19.
[3]Ibid s 20(1).
The Tribunal may confirm the decision, amend the decision or set aside the decision and substitute a new decision.[4]
[4]Ibid s 24.
The decision-maker is required[5] to assist the Tribunal to reach the correct and preferable decision.
[5]QCAT Act, s 21.
Section 3 of the AM Act sets out that the purposes of the AM Act include the effective management of regulated dogs and to promote responsible ownership.
Section 4 sets out how those purposes…

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.

Keep reading for free

Create a free CaseChat account to read Herbohn v Isaac Regional Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] QCAT 31
Decision Date: 6 February 2018

CaseChat Overview and Summary

In the case of Herbohn v Isaac Regional Council, the dispute involved the decision of the Isaac Regional Council to declare two dogs, Diesel and Pepper, as dangerous under the Dangerous Dogs Act 2009 (Qld). The case was heard and determined by the Queensland Civil and Administrative Tribunal (QCAT). The appellant, Herbohn, contested the council's decision, arguing that the process by which the council arrived at its decision was flawed and that the evidence was insufficient to justify the declaration of the dogs as dangerous.

The legal issues central to the case revolved around the procedural fairness of the council's decision-making process and the sufficiency of the evidence to support the declaration that the dogs were dangerous. Herbohn argued that the council failed to follow proper procedures, did not provide adequate notice of the hearing, and did not allow sufficient opportunity for the owner to present evidence. Additionally, Herbohn contended that the evidence presented by the council was not robust enough to justify the dangerous dog declaration.

The tribunal considered the arguments presented by both parties and examined the procedural steps taken by the council. It found that, although there were some procedural shortcomings, they did not significantly impact the fairness of the overall process. Furthermore, the tribunal determined that the evidence provided by the council was sufficient to reasonably conclude that the dogs posed a danger to public safety, thus upholding the council's decision. The tribunal confirmed the council's declaration of Diesel and Pepper as dangerous dogs.

Orders

Orders of the court

The decision of the Isaac Regional Council to declare Diesel and Pepper dangerous dogs is confirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.