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 2011DIVISION:
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 madeORDERS:
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 respondentSOLICITORS:
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…
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- Case
- [2012] QCA 284
- Decision Date
CaseChat Overview and Summary
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
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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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