Mitchell v Gympie Regional Council
[2022] QCATA 40
•22 March 2022
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Mitchell v Gympie Regional Council [2022] QCATA 40
PARTIES: KATE MITCHELL (applicant\appellant)
v
GYMPIE REGIONAL COUNCIL (respondent)
APPLICATION NO/S:
APL025-21
ORIGINATING APPLICATION NO/S:
GAR297-17
MATTER TYPE:
Appeals
DELIVERED ON:
22 March 2022
HEARING DATE:
11 February 2022
HEARD AT:
Brisbane
DECISION OF:
Senior Member Aughterson
ORDERS: 1. The application for leave to appeal is refused.
2. The appeal is dismissed.
3. The destruction order is stayed for 28 days from the date of this decision
CATCHWORDS: APPEALS – GENERAL ADMINISTRATIVE REVIEW – DOG DESTRUCTION ORDER – where Tribunal upheld the respondents dangerous dog declaration and destruction order – where the applicant seeks to appeal destruction order – where question of law and questions of mixed law and fact - whether leave to appeal should be granted – whether error of law
Animal Management (Cats and Dogs) Act 2008 (Qld), s 59, s 127
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 20, s 21, s 28, s 142
Barca v The Queen (1975) 133 CLR 82
Briginshaw v Briginshaw (1938) 60 CLR 336
Chamberlain v The Queen (No 2) (1984) 153 CLR 521
Director-General, Department of Justice and Attorney-General v CMH [2021] QCATA 6
Lee v Lee; Hsu v RACQ Insurance Limited; Lee v RACQ Insurance Limited [2018] QCA 104
Mitchell v Gympie Regional Council [2021] QCAT 40
Nguyen v Gold Coast City Council Animal Management [2017] QCATA 121
Peacock v The King (1911) 13 CLR 619
Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22
Terera & Anor v Clifford [2017] QCA 181
APPEARANCES & REPRESENTATION:
Applicant:
LA Ygoa-McKeown of counsel, instructed by Lumme Rynderman Legal Pty Ltd.
Respondent:
KW Wylie of counsel, instructed by Gympie Regional Council.
REASONS FOR DECISION
This is an appeal from a decision of the Tribunal at first instance confirming a decision of the respondent to destroy the dogs ‘Max’ and ‘Maggie’, owned by the appellant. It was found that Max and Maggie were responsible for the death of the dog ‘Boof’, who belonged to the owners of an adjoining property.
The grounds of appeal are that the Tribunal erred:
(a)in finding that Max and/or Maggie were involved in the death of Boof (Ground 1);
(b)in finding that there was ‘some doubt’ as to whether the appellant would comply with the conditions for the keeping of a dangerous dog (Ground 2); and
(c)in drawing adverse inferences to the appellant’s case on the basis that no evidence was presented about the current health of Max and Maggie (Ground 3).
In relation to ground 1, it is submitted that there was an error of law on the basis of legal unreasonableness, or, in the alternative, an error of fact or mixed law and fact in that insufficient weight was given to the appellant’s evidence.[1] In relation to ground 2, it is submitted that there was an error of law in that there was no evidence to support the finding, or, in the alternative, an error of fact or mixed law and fact in that the finding was not supported by the evidence, but rather the evidence supported a conclusion that the appellant would comply with the conditions for the keeping of a dangerous dog.[2] In relation to ground 3, it is submitted that there was no evidence to support the adverse inference drawn, which raises a question of law.[3] While there is a right of appeal on a question of law, by s 142(3)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) leave to appeal is required where the appeal raises a question of fact or of mixed law and fact. In relation to the granting of leave, in Terera & Anor v Clifford it was stated that the issues to be considered are whether:[4]
(a)an appeal is necessary to correct a substantial injustice;
(b)there is a reasonable argument that there is an error to be corrected; and
(c)on the question of whether leave to appeal might be given, the court usually makes some preliminary assessment of the prospects of the proposed appeal.
[1]Transcript, 1-9, L 1-12.
[2]Ibid, 1-9, L 44 to 1-10, L 37.
[3]Ibid, 1-13, L 27-47.
[4][2017] QCA 181.
The Appeal Tribunal will not readily interfere with findings of fact of the Tribunal at first instance, unless they are demonstrated to be wrong by “incontrovertible facts or uncontested testimony”, or they are “glaringly improbable” or “contrary to compelling inferences”.[5]
[5]Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22 at [43]; followed in Lee v Lee; Hsu v RACQ Insurance Limited; Lee v RACQ Insurance Limited [2018] QCA 104.
Ground 1
Ground 1 of the appeal is that the Tribunal erred in finding that Max and/or Maggie were involved in the death of Boof. With reference to Briginshaw v Briginshaw,[6] the appellant submits that a high standard of proof is required to make a finding that Max and Maggie were involved in the attack, because of the seriousness of the attack and the consequence of the destruction of the dogs.[7]
[6](1938) 60 CLR 336.
[7]Applicant’s appeal submissions, [12]-[13].
However, review before the Tribunal is an administrative review. By s 20(2) of the QCAT Act, the Tribunal must hear and decide the matter by way of a fresh hearing on the merits and, by s 19(c), has all the functions of the decision-maker for the reviewable decision. In relation to the present matter, by s 127(2) of the Animal Management (Cats and Dogs) Act 2008 (Qld) (‘the Act’), an authorised person may immediately destroy a regulated dog if ‘the person reasonably believes the dog is dangerous and the person can not control it’. Alternatively, a ‘destruction order’ may be made pursuant to s 127(4) of the Act. By s 127(7) and (8), a dog may be destroyed where that order is upheld following internal or external review.
As discussed in Director-General, Department of Justice and Attorney-General v CMH,[8] in administrative review proceedings the Tribunal, in effect, stands in the shoes of the original decision maker. They are not adversarial proceedings. The role of the present respondent is to assist the Tribunal in reaching the correct and preferable decision.[9] The Tribunal is not bound by the rules of evidence.[10] The concepts of onus and standard of proof emerged in an adversarial setting and are creatures of the common law rules of evidence. As noted in the authorities cited in CMH, the rule in Briginshaw is a rule of evidence derived from curial proceedings and curial proceedings are inherently different to the tasks entrusted to administrative tribunals. In particular, the task of the Tribunal is to produce ‘the correct and preferable decision’, proceed with relative informality, and deal with matters in a way that is ‘accessible, fair, just, economical, informal and quick’.[11]
[8][2021] QCATA 6, [12]-[15].
[9]QCAT Act, s 20(1), s 21(1).
[10]Ibid, s 28(3)(b).
[11]Ibid, s 3(b).
In any event, to the extent that the Tribunal might consider the principles outlined in Briginshaw, in the present case consideration must be given not only to the consequences for the animal and owner if a dog is destroyed, but also the consequences to the welfare of the wider public and other animals if a dangerous dog is not appropriately contained. Chapter 4 of the Act deals with regulated dogs and, in relation to the purposes of that Chapter, s 59(1) provides:
The purposes of this Chapter are to –
(a)protect the community from damage or injury, or risk of damage or injury, from particular types of dogs called ‘regulated dogs’; and
(b)ensure the dogs are –
(i)not a risk to community health or safety; and
(ii)controlled and kept in a way consistent with community expectations and the rights of individuals.
In Nguyen v Gold Coast City Council Animal Management,[12] the Tribunal said:
[12][2017] QCATA 121.
[31]The essential question is whether the dog can be controlled taking into consideration the threat, or likely threat, to the safety of other animals or to people by attacking them or causing fear, posed by the dog.
[32]Determining whether a dog can be controlled will require a consideration by a decision-maker of a range of matters which might include:
(a)the relevant history of the behaviour of the dog giving rise to the consideration of the making of a destruction order;
(b)any other relevant history of the behaviour of the dog, including the circumstances giving rise to the declaration that the dog was a regulated dog;
(c)the current behaviour of the dog including whether the behaviour of the dog has been, and/or could be, modified through appropriate training;
(d)the arrangements for the dog at its place of residence including the security of any enclosure and whether any interaction by the dog with persons, including household members and other persons entering upon the property, post a threat of harm to such persons;
(e)the risk the dog poses to community health or safety including the risk of harm to people and other animals outside the place of residence of the dog;
(f)compliance by the owner of the dog with any permit conditions imposed as a result of the dog being declared a regulated dog;
(g)whether the owner of the dog demonstrates insight into and understanding of the dog’s behaviour and has acted appropriately to mitigate any risk posed by the dog to people or animals;
(h)the rights of individuals including the owner of the dog.
[33]The decision-maker must also take into account the purposes of the Act generally, the purpose of Chapter 4 specifically and how the Act states those purposes are to be achieved. As the appeal tribunal said in Thomas any decision must be made in the context of the legislative scheme, and specifically Chapter 4 of the AM Act in which the protection of the community is clearly given a higher priority than the individual rights of dog owners.
The appellant refers to a number of ‘relevant’ facts, including that there were no witnesses to the attack, the dogs were calm and compliant when subsequently seized, there was no blood on either of the dogs, and wild dog activity had been reported in the vicinity of the place where the attack occurred.[13]
[13]Applicant’s appeal submissions, [16]-[18].
However, in canvassing the relevant facts, the Tribunal at first instance noted the matters referred to by the appellant,[14] including that there were no witnesses to the attack and that there was no blood on Max and Maggie.[15] In relation to the blood issue, the Tribunal also stated that it was difficult to draw any conclusions as it appeared that some hours had elapsed between the apparent time of the attack and when the dogs were seized.[16] On the other hand, it was noted that ‘it is significant that there is no evidence that there were any injuries to Maggie or Max when they were seized’.[17] The learned Member also canvassed the evidence in relation to wild dogs, including the evidence that there was no indication that wild dogs were in the vicinity of the property and, after noting that Maggie and Max were and remained in close proximity to the body of Boof, concluded that no wild dogs were in the vicinity at the relevant time and that Maggie and Max were responsible for the death of Boof. Those conclusions were reasonably open on the evidence before the Tribunal.
[14]Mitchell v Gympie Regional Council [2021] QCAT 40, at [25]-[35].
[15]Ibid, [30]-[31].
[16]Ibid, [31].
[17]Ibid.
The appellant also submits that to make a finding on circumstantial evidence that Max and/or Maggie attacked and killed Boof, the Tribunal was required to negative any reasonable hypothesis consistent with their innocence and there was insufficient evidence to negative the wild dog hypothesis.[18] However, that principle applies in criminal proceedings, in circumstances where the evidence against the defendant is circumstantial in nature.[19] The nature of administrative review proceedings, including in the context of the present legislation, is discussed above.
[18]Applicant’s appeal submissions, [18].
[19]See Peacock v The King (1911) 13 CLR 619, at 630 per Griffith CJ; Barca v The Queen (1975) 133 CLR 82, at 104; Chamberlain v The Queen (No 2) (1984) 153 CLR 521, at 536.
To the extent that it is based on error of law, Ground 1 of the appeal is rejected. To the extent that it is based on questions of fact or mixed law and fact, there is no reasonably arguable case of error on the part of Tribunal at first instance and no reasonable prospect that the appeal will succeed. There is no substantial injustice to be corrected and no issue of public importance arises and nor is it so submitted. Leave to appeal on Ground 1 of the appeal is refused.
Ground 2
Ground 2 of the appeal is that the Tribunal erred in finding that there was ‘some doubt’ as to whether the appellant would comply with the conditions for the keeping of a dangerous dog.
In her written submissions, the appellant submitted that this finding was not reasonably supported by the evidence and that the evidence supported a finding that the applicant had undertaken to comply with the relevant laws and regulations for keeping a dangerous dog if the destruction order was set aside.[20] It was also submitted:[21]
Significantly, the learned member accepted the applicant’s explanation ‘that the delay in dealing with these notices and matters was because she was under great stress at the time because of DVO proceedings’, but immediately discounts this explanation because ‘Ms Mitchell still had opportunities after the refusal to review the Decision to interact with the Council. For example, a “Trespass Infringement Notice” signed by Ms Mitchell was served on the Council on 15 September 2017’.
[20]Applicant’s appeal submissions, [20].
[21]Ibid, [23].
In fact, the learned Member did not state that he ‘accepted the applicant’s explanation’, but rather simply stated that whilst ‘Ms Mitchell says that the delay in dealing with’ the notices was because of the stress, she still had opportunities to interact with the Council.[22] He also stated that he ‘did not find Ms Mitchell a convincing witness’.[23]
[22]Mitchell v Gympie Regional Council [2021] QCAT 40, [54](d).
[23]Ibid, [53].
The learned member stated that ‘there are many other factors which lead me to the conclusion that there must be some doubt regarding Ms Mitchell’s commitment to complying with all relevant laws in the future’. Those factors are then listed:[24]
(a) Maggie and Max are declared regulated dangerous dogs pursuant to s 89 of the AM Act. This is a formal declaration. Notwithstanding this formal declaration Ms Mitchell must or should have been aware that the dogs, especially Maggie, are very dangerous and aggressive dogs and a danger to other dogs. While I accept that there is no evidence that the dogs are aggressive or a danger to people, it is extremely concerning that Ms Mitchell still does not accept that her dogs are responsible for the very serious attacks on Joe (a neighbouring dog that had been the subject of earlier attacks)[25] and the death of Boof. Ms Mitchell maintains this position even though she did not witness any of the attacks and despite evidence that her dogs were responsible for the attacks; and
(b) There is evidence that the dogs escaped from their enclosure in regard to the attacks on Joe in late 2016 and early 2017. Further, I accept that Robert made complaints to Price and Ms Mitchell about the dogs’ aggressive nature and their responses were very dismissive. Also, by early March to July 2017 Ms Mitchell was aware that the Council was taking formal action regarding the attacks on Joe. Notwithstanding these complaints and the scrutiny by the Council the dogs again escaped on or about 5 July 2017 and attacked and killed Boof; and
(c) The attacks, the injuries to Joe and the death of Boof caused pain and suffering to the owners. There is no evidence in these proceedings that Ms Mitchell has shown any remorse or empathy to these owners. Further Ms Mitchell has never offered to compensate Robert for the veterinarian’s costs for the treatment of Joe’s injuries occasioned on 23 January 2017; and
(d) Ms Mitchell was aware from early July 2017 that she had to take positive action to have the dogs released back into her care. Rogers outlines details of his communications with Ms Mitchell and Price from 5 July 2017 to late August 2017 in paragraphs 81 to 106 of his affidavit dated 10 July 2020. I am of the view that the Council was justified in its refusal to entertain an internal review of the Decision on 4 September 2017. Whilst Ms Mitchell says that the delay in dealing with these notices and matters was because she was under great stress at the time because of the DVO proceedings, Ms Mitchell still had opportunities after the refusal to review the Decision to interact with the Council. For example, a “Trespass Infringement Notice” signed by Ms Mitchell was served on the Council on 15 September 2017; and
(e) Ms Mitchell now says that she accepts the authority of the Council to regulate and manage dogs and says that if the dogs are released into her care, she will register the dogs, desex Max, erect a legal enclosure for the dogs and fully comply with all laws and regulations in the future. In fact, in the recent negotiations with the Council, Ms Mitchell has undertaken to take steps to desex Max and erect a compliant enclosure for the dogs within seven days of the release of the dogs to her. Ms Mitchell says that she has not undertaken any steps because she does not wish to expend any money if the Decision is confirmed as a result of these proceedings. However, Ms Mitchell has not demonstrated this is the case. For example, Ms Mitchell has not satisfied the PIN (Penalty Infringement Notice), nor taken any positive steps to erect or plan for the erection of a legal enclosure or retain or make any arrangements with a veterinarian for the desexing of Max. Ms Mitchell did not take any of these steps even after I invited the Council to reconsider the Decision; and
(f) The dogs are dangerous dogs, weighing some 25 kilograms, and they were seized and impounded in July 2017, some three and a half years ago. Ms Mitchell gave evidence that she has never visited the dogs as she finds it too distressing. No evidence has been submitted to the Tribunal about the current health of the dogs, except Maggie has been desexed. Also, it is probable that Maggie was the principal instigator and aggressor of all the attacks on Joe and Boof and Max was the follower. However, no assessments have been undertaken by an appropriately qualified expert as to whether or not the dogs should be released from impoundment or whether their behaviour can be modified through appropriate training. Ms Mitchell gave evidence that she has made contact with a dog trainer who previously trained police dogs to undertake obedience training for the dogs if the dogs are released to her. I do not believe this undertaking is sufficient to overcome the public interest obligations contained in the AM Act on the Council to ensure that the dogs do not pose a danger to the public or other dogs.
[24]Ibid, [54].
[25]Ibid, [9]-[24].
Reference was then made to the considerations outlined at [9], above, before it was concluded that in the present case the destruction order should be confirmed.[26]
[26]Mitchell v Gympie Regional Council [2021] QCAT 40, [55]-[56].
The appellant submits that notwithstanding the findings of the Tribunal in relation to past behaviour, the most relevant factors are the appellant’s current intentions and attitude towards compliance with the laws and regulations.[27] It is further submitted that the finding summarised at [17](e) above was unreasonable when considering the evidence relied upon by the Tribunal.[28] It is submitted that the finding was at odds with the evidence as to her undertaking to the Council and her explanation as to why steps had not yet been taken.[29] However, the Tribunal at first instance simply noted the evidence, including the fact of the undertaking, but nevertheless concluded that ‘there are many factors which lead me to the conclusion that there must be some doubt regarding Ms Mitchell’s commitment to complying with all relevant laws in the future’.[30] Further, as is noted above, the learned Member also stated that he ‘did not find Ms Mitchell a convincing witness’.[31] It is also submitted that there was no evidence to justify the finding of the Tribunal, noted at 17(e) above, that no steps were taken to attend to the matters outlined in that paragraph after the respondent was invited to reconsider the destruction order.[32] However, if steps had been taken then it is to be imagined that appropriate evidence would have been led by the appellant.[33] Further, that was simply one of many factors referred to by the Tribunal at first instance regarding Ms Mitchell’s commitment to complying with all relevant laws in the future.
[27]Applicant’s appeal submissions, [26].
[28]Ibid, [28].
[29]Ibid.
[30]Mitchell v Gympie Regional Council [2021] QCAT 40, [53].
[31]Ibid.
[32]Applicant’s appeal submissions, [29].
[33]As to evidence of earlier non-compliance, leading to the issue of a penalty infringement notice, see Respondent Submission Appeal Book, p 285-286, affidavit of Daniel Rogers, sworn 10 July 2020.
To the extent that it is based on error of law, Ground 2 of the appeal is rejected. To the extent that it is based on questions of fact or mixed law and fact, there is no reasonably arguable case of error on the part of Tribunal at first instance and no reasonable prospect that the appeal will succeed. There is no substantial injustice to be corrected and no issue of public importance arises and nor is it so submitted. Leave to appeal on Ground 2 of the appeal is refused.
Ground 3
Ground 3 of the appeal is that the Tribunal erred in drawing adverse inferences to the appellant’s case on the basis that no evidence was presented about the current health of Max and Maggie. In that regard, reference is made to the observations made by the Tribunal at first instance at [17](f) above, where it is stated: ‘No evidence has been submitted to the Tribunal about the current health of the dogs, except Maggie has been desexed’.[34] The Tribunal also stated that ‘the state of health of the dogs and how they may behave if they are released to Ms Mitchell are relevant in this review’.[35] The health issue is not otherwise expanded upon.
[34]Maggie had been desexed by the Council for health reasons: Mitchell v Gympie Regional Council [2021] QCAT 40, [2].
[35]Mitchell v Gympie Regional Council [2021] QCAT 40, [52].
The appellant submits that there is no evidence to support the adverse finding.[36] However, there was no specific finding by the Tribunal, adverse or otherwise, as to the state of health of the dogs, and the observations that were made simply noted the lack of evidence in that regard and that the state of health is a relevant factor. To the extent that an adverse inference might have been drawn, the reference to the health of the dogs appears to be a relatively minor issue in the ‘many factors’ which led to the doubt regarding Ms Mitchell’s commitment to complying with all relevant laws in the future.[37] On that basis, even if there was a relevant error, it is not apparent that it would or could have influenced the ultimate conclusion of the Tribunal at first instance.
[36]Applicant’s appeal submissions, [33]. In her submissions, at [33], the appellant also noted that the Tribunal must observe the rules of natural justice and, in oral submissions, stated that there was no opportunity to lead evidence in relation to the health of the dogs: Transcript, 1-13, l 45-47. That argument was not further developed and it was not explained in what way that opportunity was denied.
[37]See [17], above.
This ground of appeal is rejected and the appeal is dismissed.
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