Mitchell v Gympie Regional Council

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

1. 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.

2. 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).

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…