Lee v Brisbane City Council - [2012] QCA 284

SUPREME COURT OF QUEENSLAND

CITATION:

Lee v Brisbane City Council [2012] QCA 284

PARTIES:

NANCY LEE
(applicant)
v
BRISBANE CITY COUNCIL
(respondent)

FILE NO/S:

Appeal No 4652 of 2012
QCAT No 428 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Queensland Civil and Administrative Tribunal Act

ORIGINATING COURT:

Queensland Civil and Administrative Tribunal at Brisbane

DELIVERED ON:

19 October 2012

DELIVERED AT:

Brisbane

HEARING DATE:

10 October 2012

JUDGES:

Holmes and White JJA and Applegarth J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Application for extension of time is granted.

2.   Application for leave to appeal is refused.

3.   The applicant is to pay the respondent’s costs.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – OTHER MATTERS – where the applicant seeks to appeal a decision of the appeal tribunal of the Queensland Civil and Administrative Tribunal refusing an application for leave to appeal to that tribunal – where the appeal may only be brought on a question of law and with this court’s leave – whether leave should be granted

Animal Management (Cats and Dogs) Act 2008 (Qld), s 89(2), s 89(7), s 94
Companion Animals Act 1998 (NSW), s 16
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(2), s 142(3)(b), s 150, s 151(2)

Lake Macquarie City Council v Morris (2005) 63 NSWLR 263; [2005] NSWSC 387, cited

COUNSEL:

Leave granted for Dr Lee to appear on behalf of the applicant
L A Godfrey (sol) for the respondent

SOLICITORS:

Leave granted for Dr Lee to appear on behalf of the applicant
Brisbane City Legal Practice for the respondent

HOLMES JA: Section 150 of the Queensland Civil and Administrative Tribunal Act 2009 sets the conditions on which a person may appeal to this court against a decision of the appeal tribunal of the Queensland Civil and Administrative Tribunal refusing an application for leave to appeal to that tribunal. The appeal may be brought only on a question of law and with this court’s leave. The applicant seeks leave for such an appeal and an extension of time for the making of the leave application which, without an order of this court, would be out of time under s 151(2) of the Queensland Civil and Administrative Tribunal Act.

The rather complicated history of applications which has led here begins with a decision of a delegate of the Brisbane City Council to make a regulated dog declaration under s 94 of the Animal Management (Cats and Dogs) Act 2008 in respect of a German Shepherd whose registered owner is the applicant. Section 89(2) of that Act permits the making of a dangerous dog regulation where, inter alia, a dog “has seriously attacked...another animal”. “Seriously attack” is defined in s 89(7) as meaning:

“...to attack in a way causing bodily harm, grievous bodily harm or death.”

“Bodily harm” is defined in schedule 2…

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: [2012] QCA 284
Decision Date: 19 October 2012

CaseChat Overview and Summary

The applicant, Lee, appealed a decision of the appeal tribunal of the Queensland Civil and Administrative Tribunal (QCAT), which refused an application for leave to appeal to QCAT. The dispute revolves around the applicant's dissatisfaction with a QCAT ruling, seeking to challenge this decision on the grounds of legal interpretation and application. The case was heard in the Queensland Court of Appeal.

The primary legal issue before the court was whether leave should be granted to appeal the QCAT tribunal's refusal of leave to appeal. The applicant argued that the tribunal's decision involved a question of law and that the court should exercise its discretion to allow the appeal. The respondent, Brisbane City Council, contended that the tribunal's decision was correct and that the applicant had not demonstrated a sufficient basis for the appeal.

The court found that the appeal was not solely based on a question of law, as required by the legislation. Additionally, the applicant failed to demonstrate that the tribunal's decision involved any error of law or any other compelling reason warranting the court's intervention. Consequently, the court refused the application for leave to appeal, emphasising the limited circumstances under which such an appeal could be granted. The court also granted the applicant's application for an extension of time, but ordered the applicant to pay the respondent's costs.

The court's decision clearly delineates the stringent criteria for appealing a QCAT tribunal decision and underscores the importance of demonstrating a clear legal basis for such appeals. The applicant's request for leave to appeal was denied, and costs were awarded to the respondent, reflecting the court's stance on the matter.

Orders

Orders of the court

1. Application for extension of time is granted.

2. Application for leave to appeal is refused.

3. The applicant is to pay the respondent’s costs.

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.

CITATION:	Lee v Brisbane City Council [2012] QCA 284
PARTIES:	NANCY LEE (applicant) v BRISBANE CITY COUNCIL (respondent)
FILE NO/S:	Appeal No 4652 of 2012 QCAT No 428 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave Queensland Civil and Administrative Tribunal Act
ORIGINATING COURT:	Queensland Civil and Administrative Tribunal at Brisbane
DELIVERED ON:	19 October 2012
DELIVERED AT:	Brisbane
HEARING DATE:	10 October 2012
JUDGES:	Holmes and White JJA and Applegarth J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for extension of time is granted. 2. Application for leave to appeal is refused. 3. The applicant is to pay the respondent’s costs.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – OTHER MATTERS – where the applicant seeks to appeal a decision of the appeal tribunal of the Queensland Civil and Administrative Tribunal refusing an application for leave to appeal to that tribunal – where the appeal may only be brought on a question of law and with this court’s leave – whether leave should be granted Animal Management (Cats and Dogs) Act 2008 (Qld), s 89(2), s 89(7), s 94 Companion Animals Act 1998 (NSW), s 16 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(2), s 142(3)(b), s 150, s 151(2) Lake Macquarie City Council v Morris (2005) 63 NSWLR 263; [2005] NSWSC 387, cited
COUNSEL:	Leave granted for Dr Lee to appear on behalf of the applicant L A Godfrey (sol) for the respondent
SOLICITORS:	Leave granted for Dr Lee to appear on behalf of the applicant Brisbane City Legal Practice for the respondent