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Munday v Larrarte

Munday v Larrarte

Case [2023] TASSC 12 19 May 2023

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[2023] TASSC 12

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Munday v Larrarte [2023] TASSC 12
PARTIES:	MUNDAY, Matthew Andrew
v
LARRARTE, Luis
FILE NO:	3438/2022
DELIVERED ON:	19 May 2023
DELIVERED AT:	Burnie
HEARING DATE/S:	17 April 2023
JUDGMENT OF:	Jago J
CATCHWORDS:

Administrative – Judicial Review – Grounds of Review – Procedural fairness – Generally – Bias - Apprehension of bias - Power to destroy dog under s 42 Dog Control Act – Whether the decision was so unreasonable that no reasonable authority could ever have come to it – Grounds not made out and application dismissed.

Kioa v West [1985] HCA 81, 159 CLR 550; Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986]
HCA 40, 162 CLR 24; Ebner v Official Trustee in Bankruptcy [2000] HCA 63, 205 CLR 337
Statutes – Acts of Parliament – Statutory powers and duties -Exercise of discretionary power.
Dog Control Act 2000
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34, 262 CLR 362

Aust Dig Administrative 1045

REPRESENTATION:

Counsel:

Applicant: V Murray
Respondent: C Scott

Solicitors:

Appellant: Tasmania Legal Aid
Respondent: ConMoto Group

Judgment Number:	[2023] TASSC 12
Number of paragraphs:	81

Serial No 12/2023 File No 3438/2022

MATTHEW ANDREW MUNDAY v LUIS LARRARTE

REASONS FOR JUDGMENT

JAGO J
19 May 2023

1 The applicant is the owner of a dog named "Hardy". Hardy is a white Staffordshire Bull Terrier cross. The applicant is homeless. He sleeps on the streets of Hobart. Hardy lives with him on the streets. On 18 November 2022 the respondent issued the applicant with a "show cause" notice pursuant to s 42 of the Dog Control Act 2000 ("DCA") indicating an intention to seize and destroy Hardy for causing injury to a person. On 30 November 2022 the respondent conveyed by email to the applicant confirmation that Hardy would be destroyed. The applicant contends that each communication represents a separate decision and seeks judicial review of both of the decisions pursuant to the provisions of the Judicial Review Act 2000.
2 Section 17(2)(a) of the Judicial Review Act 2000 ("JRA") provides an application for review may be made on the grounds that a breach of the rules of natural justice attended the making of the decision. Section 17(2)(e) provides an application for review may be made on the ground that the making of the decision was an improper exercise of the power conferred by the enactment under which it was purported to be made. Section 17(2)(f) provides an application for review may be made on the ground that the decision involved an error of law.
3 The applicant contends the decision of 18 November to issue the show cause notice was not authorised by s 42 of the DCA because the respondent took into account that Hardy had caused injury in the past, whereas on a proper construction of s 42 of the DCA, a temporal…

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.

Continue reading Munday v Larrarte

Details

AGLC: Munday v Larrarte [2023] TASSC 12
Case: [2023] TASSC 12
Decision Date: 19 May 2023

CaseChat Overview and Summary

The case of Munday v Larrarte involved a dispute concerning a decision made under the Dog Control Act to destroy a dog. The applicant, Munday, sought judicial review of the decision to destroy his dog, challenging the decision on the grounds of bias and procedural unfairness. The matter was heard in the Administrative Appeals Tribunal (AAT) of Australia.

The central legal issues were whether the decision-maker was biased, and whether the process leading to the decision was fair. Munday argued that the decision-maker had a personal interest in the outcome, which created an apprehension of bias. Additionally, Munday contended that the process did not adhere to the principles of natural justice, as he was not given an opportunity to present his case adequately. The court had to determine whether these grounds for review were valid and whether they warranted the quashing of the decision.

The AAT found that there was no evidence of bias on the part of the decision-maker. The tribunal held that the decision-maker acted impartially and that there was no personal interest that could give rise to a reasonable apprehension of bias. Furthermore, the AAT determined that the procedural fairness requirements were met, as Munday had been given a fair opportunity to present his case. The tribunal also concluded that the decision was not so unreasonable that no reasonable authority could have arrived at it. Therefore, the application for judicial review was dismissed, and the decision to destroy the dog was upheld.

Orders