Kopittke v Kopittke
[2014] QCAT 581
•30 September 2014
| CITATION: | Kopittke v Kopittke & Anor [2014] QCAT 581 |
| PARTIES: | Susan Margaret Kopittke (Applicant) |
| v | |
| Paul Robin Kopittke Brisbane City Council (Respondents) |
| APPLICATION NUMBER: | GAR254-14 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member O’Callaghan |
| DELIVERED ON: | 30 September 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application to stay a decision and the application to review a decision are dismissed on the basis that the Tribunal does not have jurisdiction to determine the application. |
| CATCHWORDS: | GENERAL ADMINISTRATIVE REVIEW – where consideration of whether decisions were reviewable decisions Animal Management (Cats and Dogs) Act 2008 (Qld), s 181, Schedule 2 |
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
On 15 August 2014 Ms Kopittke filed an application to review a decision and an application to stay a decision.
The application document indicated that the applicant wanted to review decisions made by the Brisbane City Council (‘BCC’) relating to a failure to enforce registration control permits and fencing regulation for dogs kept at the address of the named respondent Gary Kopittke (‘the applicant’s brother’).
It was not apparent that the Tribunal had jurisdiction to deal with the application and as such I made directions seeking submissions from all parties as to the basis upon which the Tribunal had jurisdiction to review the decisions.
Ms Kopittke filed submissions stating that she thought it was appropriate for QCAT to investigate the dispute that had arisen between her, the Council and Mr Kopittke.
Essentially it would seem she had concerns about the adequacy of the fencing to keep in dogs that were held at Mr Kopittke’s premises and also an aleged failure of the Council to deal with her complaint concerning unregistered dogs and dogs without permits kept at the premises.
BCC filed submissions which detailed the dispute with Ms Kopittke. Ms Kopittke had made several complaints to BCC regarding the dogs namely that:
· She was concerned her brother was not looking after dogs kept on the premises.
· She was concerned about the conditions in which the dogs were housed.
· She thought there were excess dogs on the property without appropriate permits.
· She had concerns about whether the owner had a permit for the dogs and whether they were registered.
· She was concerned that the dogs were being kept at the premises for pig hunting.
· She was concerned the dogs could escape.
BCC say they had dealt with the various complaints and that other than steps taken in relation to the number of dogs kept at the premises, the Council determined that it wasn’t going to take any further action regarding the complaints.
BCC submitted that there was no decision of the Council which could be the subject of the stay order. Further there was no decision of the Council which warranted review by the Tribunal.
Mr Kopittke filed submissions setting out his position regarding the application.
Upon receipt of the submissions I ordered that the application to stay and to review a decision be dismissed on the basis that the Tribunal had no jurisdiction to determine the review.
Ms Kopittke has asked for reasons for that decision. These are those reasons.
The Tribunal only has jurisdiction which is given to it under[1] the Queensland Civil and Administrative Tribunal Act 2009 (Qld). Section 17 provides that the Tribunal’s review jurisdiction is the jurisdiction conferred on the Tribunal by an enabling act to review a decision made or taken to have been made by another entity under that act.
[1]QCAT Act s 17.
QCAT’s review jurisdiction with respect to BCC decisions concerning animal management is found in the Animal Management (Cats and Dogs) Act 2008 (Qld) (‘the enabling Act’).
The enabling Act provides:
· ‘an interested person for an original decision’ can apply for an internal review of a decision.[2]
· ‘an interested person for an original decision’ is defined as a person who has been given or is entitled to be given an information notice about the decision and if the decision relates to a dog the owner of or a responsible person for the dog.
· ‘an original decision’ is defined as a decision about which an information notice must be given.[3]
[2]Section 181(1).
[3]Animal Management (Cats and Dogs) Act 2008 Schedule 2.
Once a decision in the internal review has been made, the Act provides for external review by QCAT by a ‘person who is given or is entitled to be given a review notice in relation to the decision on the internal review’.
The complaint by Ms Kopittke is that the Council failed to enforce what she considered to be breaches by Mr Kopittke of the Animal Management (Cats and Dogs) Act in not registering dogs, keeping more than the allowable number of dogs on the premises, and not establishing minimum fencing requirements.
Even if the BCC did make decisions about these complaints they were not decisions that Ms Kopittke would have been entitled to receive an information notice about.
BCC says in fact there was no need in any event for it to make enforcement decisions about the matters in the complaint because Mr Kopittke voluntarily rehoused the additional dog and registered the remaining two dogs with the Council.
The decisions or lack of decisions by the Council about which Ms Kopittke complains are not reviewable decisions. In the circumstnaces the Tribunal had no jursidiction to review her concerns and the application was dismissed.
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