McCARRON and SHIRE OF BROOME

[2016] WASAT 29

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: STATE ADMINISTRATIVE TRIBUNAL ACT 2004 (WA)

CITATION:   McCARRON and SHIRE OF BROOME [2016] WASAT 29

MEMBER:   MS H LESLIE (MEMBER)

HEARD:   31 DECEMBER 2015

DELIVERED          :   3 MARCH 2016

FILE NO/S:   CC 2023 of 2015

BETWEEN:   ALEXANDRA McCARRON

Applicant

AND

SHIRE OF BROOME
Respondent

Catchwords:

Seizure and destruction of dangerous dog - Dismissal for want of prosecution

Legislation:

Dog Act 1976 (WA)
State Administrative Tribunal Act 2004 (WA), s 43(3), s 43(4), s 46(3)

Result:

Application dismissed for want of prosecution

Summary of Tribunal's decision:

The applicant sought review of the respondent's decision to seize, detain and destroy a dog that had been declared a dangerous dog.  After participating in an initial directions hearing by telephone, the applicant then failed to attend and/or participate in any of two mediations and a further directions hearing.  At the final listing, the applicant, as well as not attending or participating, could not be contacted by telephone.  She had been given notice of all listings.  The final mediation had been convened in her home town to endeavour to facilitate participation.  No explanation or reason for her non­participation was provided.  She was on notice that the Tribunal may dismiss her application for want of prosecution.

The Tribunal made an order under s 43(3) of the State Administrative Tribunal Act 2004 (WA) dismissing the applicant's application.

Category:    B

Representation:

Counsel:

Applicant:     N/A

Respondent:     N/A

Solicitors:

Applicant:     N/A

Respondent:     N/A

Case(s) referred to in decision(s):

Nil

REASONS FOR DECISION OF THE TRIBUNAL: 

Introduction

1. The application was lodged in the Tribunal on 31 December 2015.  It came on for hearing at a directions hearing on 21 January 2016.  On that date, Ms A McCarron (applicant) and the representative of the Shire of Broome (respondent) both participated by telephone link from Broome.  The matter was adjourned to a mediation to be held at 2 pm on Thursday, 28 January 2016 by videolink to Broome.  Notice of the mediation was sent to the applicant.  On 27 January 2016, the applicant advised the Tribunal that she was unable to obtain legal advice.  The video mediation was therefore deferred and re­listed for 10 February 2016 by video link to Broome.  Notice of the mediation was sent to the applicant.

2. On 10 February 2016, the mediation was convened. The applicant did not attend. Orders were made further adjourning the proceedings to a directions hearing on Friday, 26 February 2016. Additionally, an order was made that the applicant be advised that her failure to attend the mediation on 10 February 2016 may result in the application being dismissed for want of prosecution, pursuant to s 46(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The orders were sent to the applicant, as was notice of the directions hearing.

3. The directions hearing was convened on Friday, 26 February 2016 before Judge Parry. On that date, the representative of the respondent attended by telephone. The applicant did not attend. Orders were made programming the matter for hearing which was listed to be held on 1 April 2016. The matter however was also referred to a further mediation at 2 pm on 3 March 2016, to be held by a Tribunal mediator attending in Broome to meet with the parties and endeavour to resolve the matter. The orders made by Judge Parry also provided that 'if the applicant does not attend the mediation on 3 March 2016 [the presiding mediator] is to consider whether to strike out the proceeding for want of prosecution under s 46(3) of the SAT Act'. Orders were also made that the orders made by Judge Parry be emailed by the Tribunal to the applicant at her email address. It was noted that the respondent also undertook to give a copy of the orders made by Judge Parry to the applicant in person or to leave a copy of those orders at her house on 29 February 2016. The orders were sent to the applicant as was notice of the mediation.

4. The mediation was convened on 3 March 2016 at 2 pm at the Broome courthouse. The mediation was opened at 2 pm. The applicant was not in attendance. The respondent's representative confirmed that a copy of the orders made on 26 February 2016 by Judge Parry had been left at the applicant's address with the applicant's mother, for delivery to the applicant in compliance with the undertaking. The Tribunal member sitting as mediator and the respondent's representative waited at the Broome courthouse for 35 minutes. During this time, attempts were made to telephone the applicant on her mobile phone number and also to contact the applicant by contacting her mother on her mobile phone number. Neither mobile phones appeared to be operating properly and no contact could be achieved with either the applicant or her mother. At the conclusion of 35 minutes, the mediator concluded the mediation. As flagged in the orders made by Judge Parry, the respondent sought an order that the applicant's application be dismissed for want of prosecution under s 46(3) of the SAT Act. The presiding Tribunal member sitting as mediator, being a legally qualified member as required under s 43(4) of the SAT Act, considered the matter and made an order under the section dismissing the applicant's application for want of prosecution. The reasons for that dismissal are as follows.

Reasons for decision

1. The history of the matter is that the applicant's dog, 'Boss', said to be a Roman Boxer/Bull Mastiff cross, was declared a dangerous dog in early November 2015 by the Shire of Broome pursuant to the Dog Act 1976 (WA). Notice of the declaration was served on the applicant on 11 November 2015.

2. The applicant was required to comply with certain measures specified in the Dangerous Dog Declaration Notice (Notice), including fencing improvements to contain the dog at the applicant's residence.  By letter dated 1 December 2015, the applicant was given an extension of time (until 9 December 2015) to comply with the required measures specified in the Notice.  On 8 December 2015, the respondent's officers attended at the property to check whether the required measures had been undertaken.  They were satisfied that they had not been.  Further, it is alleged that at the time of this inspection, the dog was chained up at the property and 'charged' the officer in a manner alleged to qualify as a further attack.  The applicant having failed to comply with those requirements, in the circumstances, the respondent seized and detained the dog.

3. Formal notice of seizure and detention was then given to the applicant.  This notice was dated 11 December 2015 and, amongst other things, it gave notice of the respondent's intention to cause the dog to be destroyed on or after 21 December 2015 and advised the applicant of her rights.  In pursuit of those rights, the applicant lodged a written objection with the respondent stating her reasons for objecting to the seizure, detention and proposed destruction of the dog.  The matter was then reconsidered by the respondent.  By letter dated 22 December 2015, the respondent rejected the applicant's objections.  The applicant then exercised her right to apply to the Tribunal for a review of the respondent's decision.  That application was lodged by the applicant on 31 December 2015.

4. By letter, undated, received by the Tribunal in early January 2016, the applicant wrote to the Tribunal setting out her version of events and apologising for the actions of the dog, and stating that she was 'in the process of fixing the fence so that it is secure'.  She stated, in essence, that she (aged 22) and her 16­year­old sister occupy their mother's property.  It appears that the mother may be away from time to time and is unwell, and that the applicant has the dog for added security in view of risks in the neighbourhood.  It does appear that they have another dog, a Chihuahua.  The applicant stated that her mother is on a low income and it 'is hard for them' to make the yard secure.  She stated that she considered herself to be 'the responsible adult in the household' and that she takes responsibility for the situation.  There is reference to an intention to improve the fencing.  There is little other pertinent information provided.

5. The respondent's representative advised that since the time the dog was seized, he has been held at the Broome pound.  In excess of $2,000 in pound fees has now been incurred.  This is an expense of the Shire and hence, of the ratepayers of Broome; it is an expense thought to be unlikely to be able to be recovered from the applicant.  That expense is an ongoing expense accruing at $25 per day.  He further advised that upon inspection, no effort has been made to secure the yard or to improve the fencing at the property.  The applicant had asked the respondent to confirm that fencing at an alternate address was sufficient for the dog to be housed there.  The respondent had formed the view that the fencing at that property was also insufficient and had advised the applicant of this.  The last contact that the respondent had with the applicant in person was in January 2016.

6. The applicant participated in the first directions hearing by telephone from Broome.  Since then, she has failed to attend or to participate in two mediations and a further directions hearing.  One of the mediations and the directions hearing were conducted from Perth, but arrangements were available for her to participate either by telephone or video from Broome.  The second mediation was conducted in Broome in order to facilitate attendance by the applicant and more effective mediation.  The applicant did not attend and therefore did not participate in that mediation either, nor was she contactable by telephone - either her own mobile or via family.  The Tribunal is satisfied that on all occasions, the applicant received proper notice of the appointment dates and times of the directions hearings and mediations.

7. In the circumstances, the Tribunal is satisfied that the applicant is not appropriately prosecuting her application.  There is no reason or explanation advanced by her for her failure to participate in the last three Tribunal appointments.  It is clear from her earlier interaction with the Tribunal that she is able to make contact in order to prosecute the initial conduct of the matter by telephone and email and through the Broome courthouse officers.  She appears to have responded to written communications sent to her by email and post, at least initially.  On each of the last three listings, the respondent's representative has participated.  The final disposition of this matter has been delayed a number of times in order to give the applicant an opportunity to seek advice and to have an opportunity to be fairly heard.  Through mediation, considerable effort has been put into trying to assist her to negotiate a solution to the issues with the respondent; sadly, all to no avail.

8. It is not reasonable for the resources of the respondent, nor indeed the resources of the Tribunal, to be utilised in furthering this matter when it is not apparent that the applicant is attending diligently to it. Whilst one may have some sympathy for the applicant's circumstances, as a dog owner she has obligations that the law requires be met. Further, any applicant before the Tribunal has an obligation to prosecute their application with due diligence and within a timely way. The SAT Act in s 46(3) gives the Tribunal the jurisdiction to dismiss an applicant's application if it is not satisfied that this is being done appropriately by an applicant.

Conclusion

1. In the circumstances, the Tribunal is so satisfied and the applicant's application is dismissed.

Order

1.Pursuant to s 46(3) of the State Administrative Tribunal Act 2004 (WA) the proceeding is dismissed for want of prosecution.

2.Reasons for decision will be published.

I certify that this and the preceding [13] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MS H LESLIE, MEMBER