Lee v Brisbane City Council - [2011] QCAT 652

CITATION:

Lee v Brisbane City Council [2011] QCAT 652

PARTIES:	Nancy Lee
v
Brisbane City Council

APPLICATION NUMBER:

GAR408-10

MATTER TYPE:

General administrative review matters

HEARING DATE:

6 October 2011

HEARD AT:

Brisbane

DECISION OF:

John Gallagher, Member

DELIVERED ON:

30 October 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

The decision dated 11 November 2010 regulating a German Shepherd named Rox as a declared dangerous dog is confirmed.

CATCHWORDS:

Regulated dog declaration – declared dangerous dog – whether another dog was seriously attacked – identity of attacking dog

Animal Management (Cats and Dogs) Act 2008

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Dr C Lee
RESPONDENT:	Mr C Brough

REASONS FOR DECISION

BACKGROUND

The matter before the Tribunal was an Application for Review of a decision of a delegate of the Brisbane City Council (“the Council”) to make a regulated dog declaration under section 94 of the Animal Management (Cats and Dogs) Act 2008 (“the Act”).

The delegate’s decision was made on 11 November 2010. It was made in respect of a German Shepherd named “Rox” whose registered owner is Ms Nancy Lee of 52 Mount Street, Toowong. The decision regulated Rox as a declared dangerous dog.

The delegate’s decision followed an incident on 19 August 2010 when a Cavalier King Charles Spaniel named “Monty” was seized by another dog outside or near 35 Mount Street, Toowong. Monty is now deceased. Monty’s registered owner was Ms Susan Marchant who lives at 35 Mount Street, Toowong.

An application on behalf of Ms Lee was made for what is now called an internal review of the delegate’s decision. On 5 January 2011 another delegate of the Council confirmed the original decision. On 27 January 2011, an application on behalf of Ms Lee was filed with the Queensland Civil and Administrative Tribunal for external review of the decision to regulate Rox as a declared dangerous dog.

THE HEARING

The application came on for hearing in Brisbane on 6 October 2011. The following persons attended:
·Dr C Lee – agent for Ms Nancy Lee.
·Mr Carrick Brough – on behalf of the Council.
·Mr Andrew Croxon – a witness.
·Ms Susan Marchant – owner of Monty.
·Mr Matthew White – Council Community Regulations Officer.
·Mr Craig Pillay – Council Community & Environmental Regulation Team.
·Mr Chris McCahon – Council Enforcement Coordination Manager.

Mr White was the Council officer who investigated the incident and made a report. Mr Pillay was the Council officer who made the regulated dog declaration on 11 November 2010 and Mr McCahon was the Council officer who made the review decision on 5 January 2011. Mr Croxon, Ms Marchant and Mr White all gave evidence as witnesses and were cross examined by Dr Lee. Following the giving of evidence, both Dr Lee and Mr Brough made submissions and the hearing was closed after I reserved my decision.

THE LAW

Section 89 of the Act empowers a local government to make certain declarations and is as follows:

Power to Make Declaration

1.Any local government…

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.

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Details

Case: [2011] QCAT 652
Decision Date: 30 October 2011

CaseChat Overview and Summary

The case before the court involved Lee and the Brisbane City Council. Lee sought to overturn a decision by the council that declared his German Shepherd, Rox, to be a dangerous dog. The dispute centred around the council's decision to regulate Rox as dangerous based on an incident in which another dog was allegedly attacked. Lee contested the identity of the attacking dog and argued that Rox was not the dog responsible for the attack. The matter was heard and determined by the court.

The primary legal issue before the court was whether Rox was correctly identified as the dog that attacked another dog, thereby justifying the council's decision to regulate Rox as a dangerous dog. The court had to consider evidence regarding the identity of the attacking dog and whether it could be definitively established that Rox was responsible for the alleged attack. Additionally, the court examined the relevant legislation and criteria used by the council to determine whether Rox met the criteria for being classified as a dangerous dog.

In delivering the judgment, the court examined the evidence presented by both parties. It found that there was sufficient evidence to confirm that Rox was the dog that attacked the other dog during the incident. The court also considered the council's assessment process and the criteria used to declare a dog dangerous. Ultimately, the court concluded that the council's decision to regulate Rox as a dangerous dog was justified based on the evidence presented. The court confirmed the decision dated 11 November 2010, which regulated Rox as a declared dangerous dog.

The court's decision upheld the council's authority to regulate Rox as a dangerous dog, and no further orders were made. The declaration that Rox was a dangerous dog remained in effect, and Lee's challenge to the council's decision was dismissed.

Orders

Orders of the court

The decision dated 11 November 2010 regulating a German Shepherd named Rox as a declared dangerous dog is confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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