Mitchell v Gympie Regional Council - [2020] QCATA 19

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Mitchell v Gympie Regional Council [2020] QCATA 19

PARTIES: KATE MITCHELL

(applicant)

v

GYMPIE REGIONAL COUNCIL

(respondent)

APPLICATION NO/S:

APL157-18

MATTER TYPE:

Appeals

DELIVERED ON:

5 February 2020

HEARING DATE:

24 January 2020

HEARD AT:

Brisbane

DECISION OF:

Senior Member Aughterson
Member Cranwell

ORDERS:
1. The appeal is allowed.

2. The decision made by the Tribunal on 14 June 2018 is set aside, and the matter is returned to a differently constituted Tribunal for reconsideration with the hearing of additional evidence as allowed by the newly constituted Tribunal.

CATCHWORDS:
APPEAL AND NEW TRIAL – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where legal representation granted to party – where legal representative precluded from examining or cross-examining witnesses – whether error of law in original tribunal decision – whether error would affect the original tribunal’s decision – whether – whether destruction of dog required to be a ‘last resort’

Animal Management (Cats and Dogs) Act 2008 (Qld), s 59, s 127, s 127A

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 146

Bradshaw v Moreton Bay Regional Council [2018] QCATA 140

Cutbush v Scenic Rim Regional Council [2019] QCAT 80
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Nobarani v Mariconte [2018] HCA 36

Thomas v Ipswich City Council [2015] QCATA 97

APPEARANCES & REPRESENTATION:

Applicant:

B McMillan, instructed by Anderson Fredericks Turner Legal

Respondent:

GTC Lawyers

REASONS FOR DECISION

On 4 June 2018, the Tribunal confirmed a decision made by the Gympie Regional Council (the Council) to issue a destruction order in respect of Max and Maggie, two dogs owned by Ms Mitchell.
Ms Mitchell has appealed this decision, and relies on three grounds:
(a)The learned member erred by hearing the application in circumstances where there was an inherent unfairness between the parties to the significant disadvantage of the applicant. The unfairness denied the applicant the opportunity to fairly present her case. The failure to ensure the hearing was conducted fairly and afford the applicant procedural fairness in relation to her request for legal representation is a fundamental error of law, rendering the decision invalid.
(b)The learned member below erred by failing to consider and apply the principle that destruction of a dog is a last resort.
(c)The decision to confirm the destruction order was unreasonable and unsupported by evidence.
We will consider each of these grounds in turn, so far as it is necessary to do so.

Ground 1

The first ground of appeal stems from an application for leave to be represented filed by the Council on 2 February 2018.
The hearing in the matter was listed for 9 February 2018. The hearing commenced with the following exchange between the learned member and the parties:
[MEMBER]:   This is matter GAR297 of 2017. The applicant is Ms Kate Mitchell, and the respondent is the Gympie Regional Council. Are you Ms Mitchell?
MS MITCHELL:   Yes, I am.
[MEMBER]:   All right, thank you. Please take a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] QCATA 19
Decision Date: 5 February 2020

CaseChat Overview and Summary

The appeal in Mitchell v Gympie Regional Council concerned the decision of a tribunal that had ruled against the appellant, Mitchell, in a dispute over the destruction of a dog. The tribunal had concluded that the destruction of the dog was not a last resort. The appellant sought relief in the Queensland Court of Appeal, arguing that there had been an error of law in the tribunal's decision which precluded his legal representative from examining or cross-examining witnesses. This, he contended, affected the tribunal's ultimate decision.

The central legal issues before the court were whether the tribunal's failure to allow the appellant's legal representative to examine or cross-examine witnesses constituted an error of law, and if so, whether that error would have affected the tribunal's decision. The appellant argued that the tribunal's decision should be set aside because it did not consider evidence that could have been presented if his legal representative had been allowed to participate fully. The council, on the other hand, maintained that the error, if any, did not affect the outcome of the tribunal's decision.

The court found that the tribunal had indeed erred in law by precluding the appellant's legal representative from participating in the examination and cross-examination of witnesses. This procedural error affected the fairness and outcome of the tribunal's decision. The court held that the error was material because it prevented the tribunal from considering all relevant evidence. As a result, the court allowed the appeal, set aside the tribunal's decision, and returned the matter to a differently constituted tribunal for reconsideration, allowing for the presentation of additional evidence. The court emphasised the importance of procedural fairness and the necessity for tribunals to consider all relevant evidence when making their decisions.

Orders

Orders of the court

1. The appeal is allowed.

2. The decision made by the Tribunal on 14 June 2018 is set aside, and the matter is returned to a differently constituted Tribunal for reconsideration with the hearing of additional evidence as allowed by the newly constituted Tribunal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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