Miller v Cairns Regional Council
[2013] QCAT 665
•17 December 2013
| CITATION: | Miller v Cairns Regional Council [2013] QCAT 665 |
| PARTIES: | Rodney John Miller (Applicant) |
| v | |
| Cairns Regional Council (Respondent) |
| APPLICATION NUMBER: | GAR123-13 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member O’Callaghan |
| DELIVERED ON: | 17 December 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Application for costs is dismissed. |
| CATCHWORDS: | COSTS – whether in the interests of justice require costs order Animal Management (Cats and Dogs) Act 2008 (Qld) s 127 |
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 (QCAT Act).
REASONS FOR DECISION
This application involved a review by Mr Miller of a decision of the Cairns Regional Council made 14 March 2013 to issue a destruction order with respect to his dog Harvey.
Harvey is a black Great Dane. He was known to the Cairns Regional Council. The destruction order recorded his history with the Council as part of the reasons of the original decision as follows:
·On 2 February 2012 Harvey “menaced a cyclist”.
·On 6 February 2012 the Council issued Mr Miller with a compliance notice ordering Mr Miller to immediately take all reasonable and practical steps to prevent Harvey causing harm to another person or animal and ensuring that the dog was not allowed in a public place unless the dog was under effective control.
·On 6 June 2012 Harvey attacked and caused significant injury to a cyclist.
·On 15 June 2012 the Council issued Mr Miller with a proposed regulated dog declaration notice. Mr Miller did not make any representations to the Council against the proposed declaration.
·On 18 July 2012 the Council issued Mr Miller with a regulated dog declaration notice informing Mr Miller that Harvey was a declared regulated dog (menacing) and that all conditions of the notice were required to be complied with.
·On 22 January 2013, Harvey was out of his yard and became involved in a fight with another dog during which the other dog sustained injuries.
The decision to issue a destruction notice was confirmed on internal review on 4 April 2013. Mr Miller then applied to QCAT to review that decision.
Directions were issued by the Tribunal on 18 June requiring both parties to file statements of evidence and a hearing date was allocated in Cairns for 16 August 2013. The parties filed statements of evidence in accordance with the directions.
On 5 August 2013 the solicitors for Mr Miller advised the Tribunal that their client had received notification that the Council had withdrawn the destruction order with respect to Harvey. On that basis Mr Miller was withdrawing his application to review the decision however he sought an order that the Council pay his costs.
The parties filed submissions in relation to the issue of costs. I made a decision on 11 October 2013 dismissing the application for costs. Mr Miller has sought reasons for this decision. These are the reasons.
The starting point for consideration of the question of costs is s 100 of the QCAT Act which provides ‘that other than as provided for by the act or an enabling act, each party must bear their own costs’.
The exception is provided for in s 102 of the QCAT Act namely that the interests of justice requires such an order.
Some guidance is provided for in that section as to the matters that the Tribunal can have regard to in determining this issue.[1]
[1]QCAT Act s 102(3)(a) – (f).
Mr Miller submits that it is in the interests of justice to award him the costs of bringing the application because:
1.The Council in confirming the decision to issue a destruction notice took into account Harvey’s prior history with the Council which history had not been referred to in the original destruction notice.
I do not consider that Mr Miller was disadvantaged by this. When the review was filed in the Tribunal he was aware of these issues. If the review had proceeded it would have been a fresh hearing on the merits and Mr Miller would have had the opportunity to address the Tribunal as to Harvey’s history with the Council before the Tribunal at that time.
2.The Council had no power to issue the destruction notice because Harvey had never been “seized” by the Council and as such the Council, if the review had proceeded, would have maintained an untenable position.
It is correct that by virtue of the provisions of the Animal Management (Cats and Dogs) Act 2008 (Qld)[2] the power to destroy a dog is limited to circumstances where the dog has been seized by the Council.
[2]QCAT Act s 127.
Harvey had not been seized. The affidavit of the Council employee involved in the incident, Mr Maloney, explains in detail why this was the case.[3]
[3]Affidavit of Luke Francis Maloney 27 June 2013.
Mr Maloney says that when he took steps to seize the dog Mr Miller told him that he would be appealing the order and would not surrender Harvey. Mr Maloney said that given the emotional state of Mr Miller at this point he agreed for Mr Miller to keep the dog in his possession until the appeal was heard.
The manner in which this question would have been determined at the hearing is unknown.
In the circumstances I did not consider that the points raised by Mr Miller warranted a finding that the strong indication against an order for costs should be overcome in this case.
I also noted the claim for costs was for Mr Miller’s legal costs.
Section 43 of the QCAT Act provides in effect that the parties can only be legally represented with the leave of the Tribunal. Mr Miller had not sought the Tribunal’s leave to be represented.
In all the circumstances it was not in the interests of justice to make a costs order in Mr Miller’s favour.
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