KELLY and CITY OF ALBANY - [2009] WASAT 195

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: DOG ACT 1976 (WA)

CITATION: KELLY and CITY OF ALBANY [2009] WASAT 195

MEMBER: MR C RAYMOND (SENIOR MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 8 OCTOBER 2009

FILE NO/S: CC 976 of 2009

BETWEEN: SANDRA KELLY
Applicant
AND
CITY OF ALBANY
Respondent

Catchwords:

State Administrative Tribunal Act 2004 (WA) - Application to determine proceedings in favour of respondent under s 48 - Original decision declaring dogs to be dangerous subject of earlier review proceedings - Pursuant to invitation under s 31 respondent elected to withdraw notices declaring dogs dangerous - New notices subsequently issued the subject of current review proceedings - Whether conduct of proceeding causing disadvantage

Legislation:

Dog Act 1976 (WA), s 33E(1), s 33F, s 33F(1), s 33F(2)(b)(ii)
Interpretation Act 1984 (WA), s 55
State Administrative Tribunal Act 2004 (WA), s 30, s 31, s 48

Result:

Application for summary determination dismissed

Category: B

Representation:

Counsel:

Applicant: Mr CJ Cook
Respondent: Mr A Carr

Solicitors:

Applicant: Christopher J Cook
Respondent: Cornerstone Legal

Case(s) referred to in decision(s):

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicant applied for the determination of a preliminary issue that the review of a decision to issue notices declaring the applicant's two dogs to be dangerous dogs under s 33F of the Dog Act 1976 (WA) be summarily determined in her favour.
The application was based on the effect of an earlier proceeding being withdrawn, as a result of the respondent, after invitation from the Tribunal for it to reconsider its decision to issue similar notices, deciding to withdraw the earlier notices. The respondent relied upon precisely the same factual circumstances to support its decisions in both proceedings.
The Tribunal rejected the applicant's submission that she was disadvantaged in the sense contemplated under s 48 of the State Administrative Tribunal Act 2004 (WA). The Tribunal considered that the respondent had acted appropriately in the earlier proceedings by bringing to the attention of the Tribunal and the applicant that it did not consider that the person who made the dangerous dog declaration notices was properly authorised. The Tribunal did not accept that the respondent had not used its best endeavours to assist the Tribunal as required by s 30 of the State Administrative Tribunal Act 2004 (WA). Nor was there any basis to conclude that the respondent had attempted to deceive either the applicant or the Tribunal.
Further, the Tribunal commented that the public interest, as evidenced by s 55 of the Interpretation Act 1984 (WA), demands that errors in the making of administrative decisions can be addressed informally, by allowing the decisions to be re-made without waiting for review by a court or tribunal.
The preliminary issue was therefore determined against the applicant.

The application

On 30 June 2009, the applicant applied under s 33F(2)(b)(ii) of the Dog Act 1976 (WA) (Dog Act) for a review of a decision made by the respondent, as evidenced by the issue of notices declaring the applicant's dogs, Minuet and Hugo, to be dangerous dogs pursuant to s 33F(1) of the Dog Act.
At an initial directions hearing held on 14 July 2009, counsel for the applicant contended that the respondent was not entitled to issue the dangerous dog declaration notices by reason of the withdrawal of earlier proceeding between the parties in matter CC 149 of 2009. The Tribunal issued directions granting the applicant leave to file an amended application raising this contention, directing that the effect of the withdrawal of the earlier proceeding be determined as a preliminary issue, and making provision for the parties to file any documents relied upon and their respective submissions on the preliminary issue. The orders further reflected that the preliminary issue be determined on the documents, and that if the issue was determined against the applicant, that the Tribunal would issue its standard directions with liberty to the parties to apply.
An amended application was duly filed on 20 July 2009, in which the following orders are sought:
1. The declarations made by the City of Albany dated 6 June and 19 June in respect to the Applicants [sic] Grey Weimeraner [sic] South Perth Registration 0091061 dated 6 June 2009 and 19 June 2009 and Grey Weimeraner [sic], South Perth registration 0091036, dated 12 June and 19 June 2009 ('Notices') are invalid and are of no force or effect; 2. The City of Albany is not to issue further notices declaring the said dogs registration numbers South Perth 0091061 and 0091036, to be dangerous on the facts and contentions stated in the Notices. 2. [sic] If orders are not made in terms of Order 1 and 2, or on substantially the same terms, the said Notices be dismissed and there be a finding that the Applicant's Dogs'[sic] specified in Order 1 are not dangerous.
The application reflects that the grounds stated in respect of Order 1 and the first Order 2 are as follows:
1. The City of Albany previously made declarations that the applicant's Dogs' [sic] were dangerous on 31 December 2008 and filed in proceedings previously brought by the Applicant SAT CC 149 2009 a a [sic] Statement of Facts and Contentions [sic], alleging the same facts and contentions and then withdrew the notices of declarations dated 31 December 2008. 2. Having withdrawn the previous notices of declarations, the City of Albany should not be permitted to issue new notices of declarations on the same facts and circumstances as those that were withdrawn …

History

The facts which follow are uncontested, as reflected in the parties' respective submissions, or form part of the record contained in the earlier mentioned proceedings in matter no CC 149 of 2009. The applicant's submissions are based on the assumption that the Tribunal would have reference to that file as the documents filed are common to the parties.
The original notices declaring the applicant's dogs to be dangerous relied on an alleged incident when the dogs were said to have been allowed off their leashes and rushed at an Australian Post worker. In a statement of issues, facts and contentions dated 5 March 2009, filed in the earlier proceeding, other events were relied upon to support the declaration. It is not necessary to outline the events and it is not in issue that the current notices rely on all of these alleged events and no other circumstances.
The original proceedings were listed for a final hearing to commence on 14 April 2009. Prior thereto, the respondent applied for the proceedings to be dismissed. The basis for that application was that s 33E(1) of the Dog Act provides that a local government, or on behalf of the local government an authorised person or persons specifically authorised by the local government for the purposes of that section either generally, or in a particular case, may, by notice in writing given in accordance with s 33F of the Dogs Act, declare a dog to be a dangerous dog, but the declaration and notices were made by a person who was not so authorised.
It appears that the applicant joined issue on the interpretation of s 33E(1) of the Dogs Act, but in any event, the result was that the final hearing was vacated and an order was made by the Tribunal, on 27 March 2009, inviting the respondent to reconsider its decision. That order was obviously made pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
On 16 April 2009, by facsimile letter of that date, the solicitors for the respondent informed the Tribunal and the applicant's solicitor that the respondent had reconsidered its decision and had decided to withdraw the notices, the subject of the proceeding.
The applicant applied for legal costs and that application was initially opposed. The parties reached an agreement that the respondent pay the applicant an amount of $660 towards the cost of the proceeding, and on that basis the applicant withdrew the application for review.
In the submissions filed in support of the costs application, the applicant's solicitor set out the orders which the applicant sought in the following terms (original emphasis):
Upon the withdrawal by the Respondent of the two declaration notices dated 31 December 2008, in relation to the Applicant's two Weimaraner dogs and upon the Applicant, pursuant to section 46(2) of The Dog Act 1976, having no choice but to agree to the withdrawal of the proceedings:
1.The Declaration notices served by the Respondent on the Applicant, leading to the Application for Review being withdrawn by the Respondent, the Respondent, do pay (pursuant to sections 87 (3) and 88 (2) of the State Tribunal Act 2004[)], [sic] the costs of the Applicant on an indemnity basis and the sum of $10,472, to compensate the Applicant for her embarrassment, inconvenience and expenses.
2.The proceedings otherwise be dismissed.
3.Pursuant to section 49 of The State Tribunal Act 2004 [sic] and to avoid any doubt, the Applicant have leave to file a further Application for review, if the City of Albany makes any further Declaration against the Applicant or the Applicant's Dogs of the same kind.

The parties' submissions

The juridical basis upon which the applicant seeks to support a summary determination of the proceeding in her favour is less than clear, but as I understand the submissions, it is based on the following principal factors:
1)That the respondent, in breach of s 30 of the SAT Act, failed to use its best endeavours to assist the Tribunal to make its decision on the review.
2)The concern raised about the legality of the declarations in the earlier proceeding was unjustified. Upon a proper construction of s 33E(1), the declarations had been made by the local government as the notice was issued on the respondent's letterhead. Also, it is submitted that the presiding member of the Tribunal had made some suggestion that it was not necessary to go behind the notices and had invited the respondent to reconsider its decision.
3)As the respondent had been invited to reconsider its decision, it could have substituted 'its new decision'.
4)Exactly the same alleged factual circumstances were relied upon. It is not just and equitable and in the circumstances it is unconscionable that the respondent be permitted to cause litigation on a second occasion concerning the same facts as those that previously led to a failed determination.
5)The applicant has suffered detriment in relation to the cost of the previous proceedings of about $2,762, net of the costs awarded, and has had to pay a filing fee in respect of these proceedings.
6)Reliance is placed on s 48 of the SAT Act as providing a power to determine the proceeding in favour of the applicant if the Tribunal believes that a party to a proceeding is conducting the proceeding in a way that unnecessarily disadvantages another party to the proceeding by failing to comply with either the SAT Act or the enabling Act, or by attempting to deceive another party or the Tribunal.
7)It is submitted that the respondent failed to comply with s 30 of the SAT Act, and by the letter of 16 April 2009, deceived both the applicant and the Tribunal to believe that the respondent had reconsidered its decision to declare the applicant's dogs to be dangerous.
The respondent asserts that the withdrawal of the earlier proceedings has no effect on the power of the respondent to issue new dangerous dog declaration notices, that there had been no determination of the validity of the earlier notices and there had been no judgment on the merits. The respondent emphasises that the applicant recognised the possibility of new dangerous dog declaration notices being issued, as reflected in the orders sought by the applicant outlined above.
The respondent rejects the contention that it has not complied with its obligations under s 30 of the SAT Act. It is asserted, that by raising the issue of the validity of the dangerous dog declaration notices, the respondent was conscious of its obligations under s 30.

Considerations

The frustration of the applicant is perfectly understandable, but I consider that the basis of her application is entirely misconceived.
The respondent made clear in the earlier proceeding that it considered that the decision made by its executive officer, and the issuing by him of the dangerous dog declaration notices, was invalid because he was not properly authorised. It is apparent that the Tribunal did not find it necessary that it proceed to determine the merits of that concern because it could be addressed by the respondent being invited to reconsider the decision. I consider that it was entirely appropriate that the respondent raised this concern with the Tribunal and the applicant. Conversely, it would have been inappropriate for the respondent to have proceeded with the final hearing knowing that the executive officer had not been authorised to issue the notice and to not disclose that knowledge.
There is nothing within the enabling legislation nor the SAT Act which prevents a decision-maker readdressing an administrative decision. Indeed, s 55 of the Interpretation Act 1984 (WA) (Interpretation Act) expressly provides that where a written law confers a power or imposes a duty upon a person to do any act or thing of an administrative or executive character, the power or duty may be exercised or performed as often as is necessary to correct any error or omission in any previous purported exercise or performance of the power or duty.
There is no basis on which to conclude that in acting as it did, the respondent in any way attempted to deceive either the Tribunal or the applicant. The only reason for concern ever communicated, in relation to the earlier decision, was that the person who made it was not authorised. It is that decision which was reconsidered - the making of a declaration by giving a notice is the physical manifestation of that decision. The applicant's submissions as to costs in the earlier proceeding reflect that the applicant well understood that there was a possibility that the respondent might subsequently decide to issue further notices declaring her dogs to be dangerous dogs.
In any event, the power to grant relief under s 48 of the SAT Act is enlivened by the Tribunal believing that a party to a proceeding is conducting the proceeding in a way that unnecessarily disadvantages another party, by conduct such as that which is there listed, namely:
48. Conduct of proceeding causing disadvantage
(1)This section applies if the Tribunal believes that a party to a proceeding is conducting the proceeding in a way that unnecessarily disadvantages another party to the proceeding by conduct such as -
(a)failing to comply with an order or direction of the Tribunal without reasonable excuse;
(b)failing to comply with this Act or the enabling Act;
(c)asking for an adjournment the need for which is attributable to a failure described in paragraph (a) or (b);
(d)attempting to deceive another party or the Tribunal;
(e)vexatiously conducting the proceeding; or
(f)failing to attend any hearing in the proceeding.
(2)If this section applies, the Tribunal may -
(a)if the party causing the disadvantage is the applicant, order that the proceeding be dismissed or struck out;
(b)if the party causing the disadvantage is not the applicant -
(i)determine the proceeding in favour of the applicant and make any appropriate orders; or
(ii)order that the party causing the disadvantage be struck out of the proceeding.
(3)The Tribunal’s powers to act under subsection (2) are exercisable only by a legally qualified member.
(4)The Tribunal may act under subsection (2) on the application of a party or on its own initiative.
In my view, the conduct referred to relates to the manner in which the proceeding is conducted. The respondent complains of conduct in other proceedings. That is not to say that conduct in other proceedings will always be irrelevant - it may be that conduct, coupled with the conduct of the existing proceeding, which enables the Tribunal to conclude that the proceeding has been commenced vexatiously.
In this case, the attack goes to the remaking of an administrative decision, not the manner in which the respondent is opposing the application for review.
The public interest, as evidenced by s 55 of the Interpretation Act, demands that errors in the making of administrative decisions can be addressed informally, without waiting for a court or tribunal to review the decision. That is precisely what has occurred in this case. Of course, if the subsequent review should show that the respondent has in any way acting improperly, such as by proceeding without evidence which prima facie supports its decision, and in those circumstances involves a citizen unnecessarily in multiple proceedings, that may become relevant in considering costs. But if it is ultimately established that the recent dangerous dog declarations were well-founded and that the decision under review should be affirmed, the respondent will have acted properly in ensuring the protection of the public.
It may also be, in any event, that upon full enquiry, it may be appropriate to make an order that the respondent pay part of the applicant's costs, because the respondent did not use the invitation to reconsider its earlier decision to substitute a new decision and notices declaring the applicant's dogs to be dangerous dogs. If that course had been followed, the applicant would not have been put to the cost of the current application fee and possibly other costs.

Conclusion

For the above reasons, orders will issue reflecting that the preliminary issue is determined against the applicant and consequently refusing Order 1 and the first Order 2 as set out in the application. Directions will also issue for the further programming of the matter to final hearing.

Orders

The Tribunal will issue orders as follows:
1.The preliminary issue is determined against the applicant, in that the circumstances leading to the withdrawal of the earlier proceeding in matter CC 149 of 2009 does not affect the ability of the respondent to issue further declarations that the applicant's dogs are dangerous dogs, relying on the same factual circumstances.
2.The application, insofar as it relates to Order 1 and the first Order 2, is dismissed.
3.To enable the relief sought in the second Order 2 to be determined, the Tribunal issues the following directions.
4.By 21 October 2009, the respondent must file with the Tribunal and give to the applicant the following documents:
(a)a statement of issues, facts and contentions it says arise in relation to the decision under review; and
(b)an indexed and paginated bundle, in chronological or other logical order, of the documents it is required to file under s 24 of the State Administrative Tribunal Act 2004 (WA) namely:
(i)a statement of the reasons for the decision; and
(ii)documents and other material in its possession or under its control which are relevant to the Tribunal's review of the decision (or the internet address of any document).
5.If the applicant does not have ready access to the internet, she may require the respondent to provide her, within seven days of request, with a hard copy of any document for which only an internet address is provided in the respondent's bundle.
6.On or before 5 November 2009, the applicant must file with the Tribunal, and give to the respondent, its own statement of issues, facts and contentions setting out:
(a)by reference to each paragraph number in the respondent's statement, whether the applicant accepts or rejects the issue, fact or contention identified by the respondent; and
(b)any other issues, facts and contentions it says are relevant to the decision under review.
7.The applicant must, at the time she files and gives her statement of issues, facts and contentions, file with the Tribunal and give to the respondent an indexed and paginated bundle, in chronological or other logical order, of the documents on which she proposes to rely in the proceedings (or the internet address of any document) not in the respondent's bundle.
8.The matter is listed for a final hearing to commence at 10 am on 27 November 2009 for a duration of one day.
9.Where a party is required by these orders to file a document with the Tribunal, three copies of the document must be filed.
10.If any party proposes to give evidence or call any witness to give evidence at the hearing, it must, no less than 14 days before the hearing date, file with the Tribunal a signed statement of the witness's evidence and give a copy of the statement to the other parties.
11.Any document referred to in a witness statement, that is contained in a bundle of documents filed by any party, must be identified by reference to the relevant bundle and page number in the bundle and must not be attached to the witness statement. Any document referred to in a witness statement that is not contained in a bundle of documents filed by any party, must be attached to the witness statement.
12.Not less than five days prior to the hearing, a party must give written notice to the other party if any person who has signed a witness statement, which has been filed and served by the other party in accordance with Order 10, is required to attend the hearing for purposes of cross‑examination, failing which the witness statement may be tendered and admitted into evidence without formal proof.
13(a)Any witness from Albany called to give evidence have leave to attend the hearing by video link.
(b)The Executive Officer of the Tribunal shall arrange the video conferencing facilities and notify the parties of the place where witnesses must attend.
14.The parties have liberty to apply within 10 days of the date of this order if any variation of the above orders is necessary.

I certify that this and the preceding [30] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR C RAYMOND, SENIOR MEMBER

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Citations

Kelly and City of Albany [2009] WASAT 195

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