Lewis v Brisbane City Council
[2014] QCAT 283
•29 May 2014
| CITATION: | Lewis v Brisbane City Council [2014] QCAT 283 |
| PARTIES: | Leone Lewis (Applicant) |
| v | |
| Brisbane City Council (Respondent) |
| APPLICATION NUMBER: | GAR129-14 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member O’Callaghan |
| DELIVERED ON: | 29 May 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application to extend or shorten a time limit or for waiver of compliance with procedural requirement filed on 13 May 2014 is refused. 2. The application for review is therefore dismissed. |
| CATCHWORDS: | Procedure – extension of time to lodge review Animal Management (Cats and Dogs) Act 2008 (Qld) |
APPEARANCES and REPRESENTATION (if any):
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
Leone Lewis owns a Staffordshire Bull Terrier cross breed dog called Rosie.
Rosie was seized by the Brisbane City Council (‘BCC’) in November 2013 following a failure by Ms Lewis to comply with conditions imposed following the declaration of Rosie as a dangerous dog.
In January 2014 BCC, on an internal review, confirmed its decision to issue a destruction notice with respect to Rosie.
On 10 April 2014 Ms Lewis filed an application in QCAT to review that decision. As the review application was filed out of time she also sought an extension of time to lodge the review.
On 29 May 2014 I ordered that the application to extend time (and consequently the review application) be dismissed. Ms Lewis has sought reasons for that decision and these are those reasons.
Background
The submissions received from BCC set out the events leading to the decision to seize Rosie.
· On 4 January 2012 BCC received a complaint relating to an alleged attack on a person by Rosie.
· Rosie was unregistered with the Council at the time of the attack.
· BCC issued a prescribed infringement notice to Ms Lewis.
· On 17 August 2012 BCC received a further complaint from a person alleged to have been attacked by Rosie causing a puncture injury to the complainant’s thigh.
· On 25 September 2012 a proposed regulated dog declaration notice was issued to Ms Lewis advising her that it was proposed that Rosie would be declared a dangerous dog and inviting submissions.
· No submissions were received. It is noted that Ms Lewis says she did not receive the invitation to make submissions.
· On 10 October 2012 a notice was sent to Ms Lewis advising that Rosie had been declared a dangerous dog. The notice included the requirements that had to be complied with for keeping the dangerous dog.
· On 30 July 2013 a BCC inspection took place at the address were Rosie was housed. It was found that the fencing was not in accordance with the requirements, in particular:
i)Access could not be gained to the front access door of the premises.
ii)Parts of the fence were climbable.
iii)Gaps were evident providing potential for Rosie to escape.
· On 15 August 2013 a compliance notice for regulated dog offences was given to Ms Lewis requiring that:
i)The enclosure be repaired to comply with the requirements.
ii)Rosie was to be registered.
iii)Rosie was to be desexed.
· On 4 November 2013 BCC investigated a wandering dog complaint and confirmed that Rosie had been wandering outside the enclosure at the premises.
· A Council officer conducted an inspection of the premises and found that no alterations had been made to the fence to comply with the requirements and the compliance notice.
· Rosie had not been registered with the Council.
· On 14 November 2013 Rosie was seized by the BCC.[1]
· On 14 November 2013 a destruction order information notice was issued to Ms Lewis with respect to Rosie.
· On 20 November 2013 an application was made for an internal review of that decision.
· On 21 January 2014 BCC made a decision confirming the decision to seize Rosie and to issue the destruction notice (this is the decision which Ms Lewis seeks to review through QCAT).
[1]In accordance with s 25(c) of the Animal Management (Cats and Dogs) Act 2008 (Qld) (‘the Act’).
The reasons for the decision as outlined in BCC’s letter of 29 January 2014 were that:
a) Since Rosie had been declared dangerous Ms Lewis had not complied with the requirements for keeping a regulated dog.
b) Since 2009 Rosie had been the subject of 25 separate complaints (six of which were categorised as attacks).
c) Rosie represented a real risk to the safety of other animals and humans due to Ms Lewis’s lack of compliance with the requirements for keeping a dangerous dog.
Ms Lewis was advised in that letter that she had until 14 February 2014 to review the decision through QCAT failing which Rosie would be euthanized.
Ms Lewis did not lodge a review application but on the 19 February 2014 made an application under the Right to Information Act for access BCC documents relating to Rosie.
On 12 March 2014 the BCC released documents under the FOI application to Ms Lewis.
An application to review the decision of 29 January 2014 was filed in QCAT on 10 April 2014. As the application was filed out of time Ms Lewis was contacted by the QCAT Registry on the 29 April 2014 and advised that an extension of time application would need to be filed. The application form was emailed to her. The application to extend time was filed by Ms Lewis on 13 May 2014.
Applicant’s Submissions
Ms Lewis submitted in her application to review that the decision should be overturned because regard was not had to her personal circumstances in making the decision, that is:
· She was a single mother of three children.
· Her partner was in custody.
· She too spent short periods in custody during the time Rosie was declared dangerous and seized.
· There was no evidence to support the alleged attack which precipitated the decision to declare Rosie dangerous.
· She should be given an extension of time to lodge the review because from November 2013 to 11 December 2013 she was incarcerated.
· She liaised with the BCC employee up until she filed the application and BCC knew she was wanting to consider the documents received in the FOI application before filing the review.
· When she got the information in March 2014 she asked a friend to help her with the application and this took some time.
Council’s Submissions
BCC opposes the granting of the extension of time.
They say:
· Rosie remained unregistered and housed in an inappropriate enclosure since she was declared dangerous in October 2012 up until she was seized by BCC on 14 November 2013.
· Ms Lewis was made aware of the requirements for housing a dangerous dog on 10 October 2012 and again when the compliance notice was issued on 15 August 2013.
· She was aware of the requirements and the time limits to review the decision since receiving the notice on 21 January 2014 and was given all of the relevant information under the FOI application on 12 March 2014.
· She has had ample time to review the decision within the time limits prescribed in the legislation.
Consideration
The review was to have been filed within 28 days of the decision being made that is 27 February 2014. The application was therefore some six weeks out of time.
The Tribunal has the power to extend that time under s 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
The factors to be taken into account when deciding whether to grant an extension of time have been enunciated in previous Tribunal and Court decisions.[2] These are as follows:
· Whether there is an acceptable explanation for the delay;
· Length of delay;
· Any action taken by the applicant other than by making an application for review under the Act, to inform the decision-maker that the finality of the decision is contested. This reflects public policy supporting a need to ensure finality in disputes and to prevent difficulties that result from fading memory as time languishes;
· Whether there is prejudice to other parties;
· Strength of the applicant’s case;
· Whether it is in the interests of justice to grant the extension.
[2]Hunter Valley Development Pty Ltd v Honourable Barry Cohen, Minister for Home Affairs (1984) 3 FLR 344; Cavalier Homes Brisbane Pty Ltd v Queensland Building Services Authority [2012] QCAT 6; Crime and Misconduct Commission v Chapman & Anor [2011] QCAT 229.
Ms Lewis has explained the delay on the basis that following the decision (in January 2014) she wanted to review the material obtained in the FOI application before submitting the review application. This material was received on 12 March 2014. The review application however was not filed until some four weeks later. Ms Lewis says this delay occurred because she was waiting for a friend to complete the application form.
I accept the explanation for the delay up to the time of receiving the FOI documents and I accept that the explanation for the delay up to the time of receiving the FOI documents maybe a reasonable explanation (particularly as she was in contact with BCC representatives so they knew she wanted to wait until receipt of the information). However, in circumstances where Rosie has been in the BCC’s custody since November 2013 and Ms Lewis knew the dog was at risk of being euthanized, I would think it was incumbent upon her to file a review application as soon as the documents were received and perused. The explanation that she was waiting for a friend to complete the application form falls short of being a reasonable explanation in those circumstances. She had been advised as far back as January 2014 of the contact details of QCAT if she had any questions about filing the application she could have directed those enquiries to QCAT.
A delay of six weeks whilst not extraordinary, is in my view a lengthy delay in circumstances where the dog has been in custody for some time.
In her favour, it is noted that between the date of the decision in January up until March she made it known to the BCC that she was considering reviewing the decision but wanted to review the FOI files first. As stated above, the delay after the receipt of those documents is not reasonable in the circumstances.
As to the question of prejudice to other parties, it is always imperative in cases where a destruction notice is issued to have the review determined as soon as possible. Apart from the issue of the welfare of the animal that has been seized and no doubt kept in a confined environment there is also a consideration of the cost to the BCC of keeping the animal pending the review.
Whilst it is of course an unfortunate outcome for Ms Lewis and her dog, the question must be asked as to her prospects of overturning the decision on review if the extension of time is granted. It is not possible to say with certainty what the outcome of the review would be, however on the information known to the Tribunal at this stage it is my view that the applicant does not have a strong case.
The issue of public safety in such cases is paramount. Ms Lewis says she considers she can challenge the decision to declare Rosie dangerous as there was insufficient evidence of the attack in the BCC documents. Unfortunately for Ms Lewis she is not in a position now to challenge the decision to declare Rosie dangerous. That decision was made back in 2012 and was never challenged. The BCC says they have evidence of at least two attacks on people by Rosie.
It is also uncontested that Ms Lewis did not comply with the requirements imposed once Rosie was declared dangerous. The enclosure did not comply, Rosie was not desexed or registered despite Ms Lewis being told of these requirements in October 2012 and again in August 2013.
Rosie was found wandering the streets in November 2013.
Ms Lewis says she was unable to comply because she was incarcerated during November and December 2013. This however is no excuse for not complying with the requirements which she was aware of since October 2012 and Rosie has been found wandering the streets. There is a real risk as expressed by the BCC that a person or animal could be attacked and injured by Rosie. Due to her difficult personal circumstances, Ms Lewis seems unable to meet the requirements of housing a regulated dog. Steps should have been taken in October to ensure that Rosie could not escape from the premises. These steps had still not been taken when Rosie was seized over 12 months later.
Bearing in mind the purpose of the Act is to provide for effective management of regulated dogs and to promote responsible ownership of dogs[3] it is hard to see that the correct and preferable decision could be other than for the BCC to have seized Rosie.
[3]Section 3(b) and (c) of the Act.
It was for all of the above reasons that I exercised my discretion against granting Ms Lewis an extension of time to review the decision.
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