Munday v Larrarte
[2023] TASSC 12
•19 May 2023
[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 connection between causation of injury and the seizure and destruction is required. In the alternative, the applicant contends both decisions breached the rules of natural justice because, firstly, the applicant was not afforded a fair hearing in respect to either of the decisions made and, secondly, the respondent's conduct was tainted by a reasonable apprehension of bias. Finally, the applicant contends the respondent's reasoning in determining there was no alternate provision of the DCA which could be utilised to ensure the protection and safety of the community was illogical and therefore unreasonable.
4 There is no challenge to the claim that the decision/s made by the respondent are reviewable under the JRA. Nor is there any challenge to the claim that the decisions made were pre-conditioned upon the application of principles of natural justice or that the applicant is a person "aggrieved" by a decision.
Background
5 Throughout September/October 2022 the respondent – who is employed as a compliance supervisor for the City of Hobart – spoke with members of the public concerning a dog who matched the description of Hardy, being tethered outside shops in the city centre for extended periods of time and causing a barking nuisance.
6 On 19 October 2022 the respondent was walking in Liverpool Street and observed a dog he recognised as Hardy to be tethered to a pole. He observed Hardy "barking incessantly and aggressively and pulling on the leash towards pedestrians as they walked by". No person was with Hardy.
7 On 25 October 2022 the respondent spoke to another member of the public concerning a dog, who again matched the description of Hardy, and was again tethered in the same place the respondent
2 No 12/2023
had observed Hardy. The dog was said to be behaving in a similar manner as that which the respondent had observed. The respondent was told by the member of the public that the dog had been left tethered on the pole, unattended, for upwards of 30 minutes.
8 The respondent directed Animal Management Officers to locate the dog whom he believed to be Hardy, and seize it as it was unregistered and was also deemed to be at large given the dog was not under any person's effective control and given the extended periods of time for which the dog was apparently being left unattended.
9 The Animal Management Officers expressed concerns about seizing the dog because of previous difficulties they had encountered with the same dog on an occasion when it had been in the pound. The respondent commenced making alternate enquiries and endeavoured to seek advice as to how the dog might be safely seized without any harm being caused to it, or any person.
10 On 31 October 2022, the respondent became aware of a "dog attack request investigation report" (hereinafter "request report") that had been submitted by a police officer via the Hobart City Council's online portal.
11 The request report alleged that a dog matching Hardy's description, who was with a man matching the appellant's description, had bitten a female on the street near the Centrepoint Shopping Centre on 28 October 2022. The details of the request report provided the following information:
"Location of incident Corner of Collins Street and Victoria Street
HobartDetails of incident What or who has been attacked? person Date of attack 28/10/2022 Approximate time of attack: 5.30 pm Detailed description of what happened
Matthew Mundy was walking his dog when the dog lunged at a walker-by and bit her on the arm. The woman has reported this matter to Police.
What did the dog look like? white with brown patches Was the dog with a person? yes Description of person (include their name if you know it) Matthew MUNDY Do you know where the dog is kept? Yes Provide as much detail as possible Matthew MUNDY is currently homeless.
Police have regular interactions with him.Did you get medical or veterinary help after the attack? Yes (Please provide any other information that may help our Animal Management)
Officers in the investigation Submitted by Constable WIGGINS 3550" 3 No 12/2023
12 Photographs of the injury were attached to the request report. The injuries could not be described as grievous. They depict a mild laceration. A medical report subsequently obtained by the respondent from the victim describes the injury as: "dog bite – bite through two layers of clothing – skin 3 linear bruises on the right forearm."
13 On 2 November 2022 the respondent spoke with the victim who advised she had provided a Statutory Declaration to police outlining the incident. The respondent requested a copy of the Statutory Declaration from Tasmania Police on the same day.
14 On 11 November 2022 the respondent received information from the Animal Management After Hours Call Centre advising a report had been received of a dog, matching the description of Hardy, being left tethered to a post, with no owner in sight, for several hours.
15 On 14 November 2022 the respondent received information that Hardy had been taken to the pound by a member of the public after being left overnight.
16 On 14 November 2022 the applicant attended at Hobart City Council and it was arranged that he would return the following day to participate in an interview process.
17 On 15 November 2022 an interview was conducted by the respondent (assisted by a legal officer employed by Hobart City Council) with the applicant. The applicant was assisted by an Auslan interpreter.
18 During the interview the applicant said, amongst other things:
•
He confirmed he owned Hardy, whom he described as a white coloured Staffordshire Bull Terrier cross.
•
The dog does not like "bad people" and acts out when faced with situations or people he does not like.
•
The dog had rushed at, and bit at a boy who was on a skateboard, as the dog does not like skateboards.
•
The dog always pulls on the leash when being walked, the dog is muscular and makes the applicant tired and his arm sore, which is why he tethers the dog.
• The applicant utilises the Centrepoint Shopping Centre to use the toilet. •
The applicant was wearing the same clothes on the day of the incident as he was in the interview.
•
The applicant stated "maybe it's the lady at the carpark…. I asked the lady at the carpark if my dog had bit her and she said it wasn't her".
• "When my dog bit the lady, she didn't tell me." •
The applicant denied being near the Centrepoint Shopping Centre, or the corner of Collins and Victoria Streets at the time of the alleged dog attack and claimed he was at the park "where the bus is and where the water fountain is".
•
The applicant denied leaving his dog tethered for extended periods of time, saying he only left him tethered for two to five minutes.
4 No 12/2023
19 On the same day, the respondent took a photograph of the applicant and sent that photograph to the victim of the dog attack. The victim sent an email to the respondent in which she stated she was "pretty sure" that the applicant was the man in control of the dog at the time.
20 The respondent caused a review of the Franklin Square CCTV cameras to be conducted in an endeavour to ascertain whether the applicant and Hardy were in that area at the relevant time, given what the applicant had said during the interview. Subsequent information disclosed they were not visible on any CCTV footage obtained from the area.
21 On 16 November 2022 the respondent conducted enquiries to determine whether any CCTV cameras operated in the vicinity of Victoria Street and Collins Street at the relevant time. His enquiries did not reveal any operating cameras.
22 On 18 November 2022 the respondent issued the applicant with a "Seizure and Destruction Notice". The terms of that Notice were:
"TAKE NOTICE that in accordance with section 42(1)(b) of the Dog Control Act
2000, I am satisfied that:A DOG, BEING A WHITE COLOURED STAFFORDSHIRE BULL TERRIER (MICROCHIP # 956000012182118) KNOWN AS 'HARDY', REFERRED TO HEREAFTER AS 'THE DOG', HAS CAUSED INJURY TO A PERSON.
As such, I am writing to inform you of Hobart City Council's decision to seize and destroy the dog in accordance with the Act.
You, Matthew MUNDAY, as the owner of the dog, may make representation to Hobart City Council and show cause as to why the dog should not be destroyed within 7 days of this notice being served upon you."
23 Information was provided as to where any such representations should be directed.
24 On 18 November 2022 the respondent contacted Safe Space, an accommodation provider sometimes utilised by the Applicant, to enquire whether appropriate arrangements could be made for housing the dog. No such arrangements could be made. The respondent also contacted a lawyer on the applicant's behalf.
25 Between 18 November 2022 and 30 November 2022 there were a series of email exchanges between the respondent and the applicant's lawyer. They included the following:
• On 18 November 2022 at 11.14am the respondent emailed the applicant's lawyer advising the dog would not be euthanised until the opportunity for representations had expired and the contents of the representations had been considered. The respondent provided the following information to the applicant's lawyer: "The injury was to a female's right forearm area. The female was wearing two layers of clothing at the time of the attack. Specifics of the injury include:
- 1 x puncture/laceration wound (tearing of body tissue) - 3 x abrasion wounds (adjacent to laceration) - Bruising (around immediate area of wounds) - Soreness"
•
The email also confirmed that the Council would consider any representation made concerning appropriate alternatives. However any alternative arrangement would see
5 No 12/2023
the dog declared dangerous by the Council and would include strict conditions for the
restraint of the dog at all times, including enclosure requirements.
26 On 18 November 2022 at 11.20am the applicant's lawyer responded and requested further information about the date, time and location of the incident where Hardy was said to have caused the injury.
27 On 18 November 2022 at 11.29am the respondent replied with the following information:
"Time: Approximately 5.30pm Date: Friday 28th October 2022 Place: Corner of Collins Street and Victoria Street, Hobart" The respondent attached a map where the incident was said to have occurred.
28 On 18 November 2022 at 11.59am the applicant's lawyer responded by saying:
"Mr Munday instructs that he did not witness the incident or encounter a person who claimed to be injured by his dog. Do you have any evidence by way of CCTV footage, photographs and/or statutory declarations that you are able to provide?"
29 On 25 November 2022 the applicant's lawyer wrote to the respondent and made a number of representations in response to the Notice of Seizure and Destruction. In that communication the following was noted:
• "I note I subsequently contacted you by email on 18 November asking whether HCC had any evidence to substantiate the assertion that Hardy caused injury, whether in the form of CCTV footage, photographs or statutory declarations. I have not received a response to this email." • "Mr Munday's position is that Hardy should not be declared a Dangerous Dog until you provide adequate reasons and you produce evidence to substantiate these reasons. … It follows that his position is that Hardy should not be destroyed." • "Mr Munday is a homeless deaf man without any familial support and no immediate prospects of stable housing. Hardy has been his sole companion, friend and lifeline for four years. Being deaf, Mr Munday is very vulnerable sleeping rough at night as he cannot sense other people approaching him. Hardy assists him to feel safe at night. I argue that it is not in Mr Munday's interests to destroy Hardy as this would leave Mr Munday without a companion and by extension leave him even more vulnerable." • "To Mr Munday's knowledge, this is the first allegation in four years that Hardy has been a danger to a person, such that even if the allegation contained in the notice is substantiated, this would appear to be extremely out of character for Hardy." Some letters in support of the applicant were provided to the respondent as part of this communication.
30 On 30 November 2022 the respondent sent to the applicant's lawyer an email which read, inter
alia:
"I have considered your correspondence and attachments of 25 November 2022
carefully. I am satisfied the dog known as 'Hardy':(a) behaves in a manner and in such circumstances likely to cause injury to any person or death or serious bodily injury to any animal: and/or
(b) has caused injury to a person 6 No 12/2023
And therefore I intend to destroy the dog under the powers of section 42 of the Dog
Control Act 2000.Council's file identifies that Mr Munday has a history of failing to comply with his requirements as a responsible dog owner including but not limited to:
(a) Council seized the dog in January 2022 following reports from Tasmania Police the dog was at large having been left unattended by Mr Munday. (b) Mr Munday regularly leaves the dog tethered and unattended in public places and Council officers have both observed and received reports from members of the public that the dog creates a nuisance by barking and acting aggressively. (c) Mr Munday has advised Council officers he often tethers the dog in public places and leaves the dog without supervision so that he can rest as the dog tires him out due to constant excessive leash pulling. (d) The dog was impounded after the dog was left tethered and unattended overnight and a member of the public delivered the dog to the Dogs Home of Tasmania. (e) Mr Munday made concessions during a formal interview with Council officers that the dog had previously attacked a young male on a skateboard. (f) Mr Munday has, himself, admitted to Council officers that the dog behaves aggressively towards 'bad people'. (g) Council has received reports from independent third parties about the aggressive behaviour of the dog. (h) The victim of the more recent attack identified Mr Munday from a photograph and Mr Munday made concessions during a formal interview that an incident did occur with a woman 'near the carpark' but refused to elaborate on the particulars of the incident. While I acknowledge Mr Munday's personal circumstances, I must balance this against the objectives of the Act and I am not satisfied that there are adequate measures to protect of the safety of the community at large nor that Mr Munday is able to adequately control the dog.
Destruction of a dog is not an action the Council takes lightly but given Mr Munday is of no fixed address there is no other order under the Act which provides for the protection and safety of the community."
31 On 16 December 2022 the applicant filed the originating application which contained the grounds for judicial review.
32 On 23 December 2022 the respondent provided the applicant with a draft affidavit of the respondent which annexed the material that was considered prior to the decision of 30 November 2022, and invited the applicant to make a further submission to Council.
33 On 23 January 2023 Council confirmed that it would agree to a process whereby another authorised officer would review the material contained in the respondent's affidavit and any further material provided by the applicant, and make a "new" decision.
34 On 1 February 2023 the applicant advised Hobart City Council that they had come to the view that the decisions made by the respondent were "beyond power" and therefore did not seek to provide further submissions.
7 No 12/2023
35 On 3 February 2023 Hobart City Council requested that the applicant confirm if he wished to take the opportunity to provide submissions for consideration by a different authorised officer and, if so, to provide such submission by 10 February 2023.
36 On 8 February 2023 the applicant advised Hobart City Council that because he was of the view that the respondent's decision was not authorised by the DCA, he considered it inappropriate to provide further submissions, as to do so would invite the second authorised officer to fall into the same error.
Construct of Section 42 Dog Control Act
37 Section 42 provides:
"42. Destruction of dog (1) An authorised person or a veterinary surgeon may seize or destroy a dog, or
both seize and destroy a dog, if satisfied that the dog –
(a)
is behaving in a manner and in such circumstances likely to cause injury to any person or death or serious bodily injury to any animal; or
(b)
has caused injury to a person or death or serious bodily injury to an animal; or
(c)
is found distressed or disabled to such an extent that its continued existence is likely to involve continued suffering.
(2) An authorised person or a veterinary surgeon may enter any premises in order
to seize or destroy a dog under subsection (1).(3) If a dog destroyed under subsection (1) was wearing a registration disc or any other means of identification, the general manager is to notify the dog's owner in writing of –
(a) the destruction of the dog; and (b) the reasons for the destruction."
38 There are a number of points to be noted about this provision. Firstly, the pre-conditions to the exercise of the power are disjunctive. Satisfaction of any one of them will provide a basis for the exercise of the power in s 42(1). Secondly, once the pre-condition is satisfied, the authorised officer "may" destroy the dog. That enlivens a discretion.
39 A determination under s 42 of the DCA therefore involves a two-step process: satisfaction as to one of the pre-conditions and consideration as to whether a destruction order should be made in the exercise of a discretion.
40 The applicant contends the proper construction of s 42(1)(a) of the DCA requires the authorised officer to be satisfied that a dog "is behaving in a manner and in such circumstances likely to cause injury to any person or death or serious bodily harm to any animal" for the pre-condition to be met. He argues that necessitates a temporal connection between the behaviour of the dog and the exercise of the power and that s 42(1)(a) does not permit past behaviours to be taken into account in reaching satisfaction as to the pre-condition. The applicant contends the respondent misconstrued the operation of s 42(1)(a) by taking into account past behaviours of Hardy. The applicant further argues that even if s 42(1)(b) standing alone authorised the respondent to take into account past behaviours of Hardy, and it must be remembered the initial "Seizure and Destruction Notice "issued on 18
8 No 12/2023
November was issued pursuant to s 42(1)(b) only, the decision is nevertheless an improper one because the respondent in misinterpreting the scope of s 42(1)(a), reached his level of satisfaction as to the pre-condition on a flawed basis, and it is now impossible to separate out to what extent the misinterpretation of the parameters of s 42(1)(a) influenced the exercise of the discretion.
41 The contemporary approach to statutory interpretation is contextual and purposeful. In SZTAL v Minister for Immigration and Border Protection [2017] HCA 34, 262 CLR 362 Kiefel CJ, Nettle and Gordon JJ said at [14]:
"The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected." (footnotes omitted).
42 In any exercise of statutory interpretation, consideration ought to be given to the statute as a whole and the purpose of the statue. The purpose of the DCA is the "control and management of dogs". It provides for a scheme of registration of dogs to their owners, and for obligations to be placed on those owners as to the control and management of their dogs. It provides for consequences if the owners fail to comply with such obligations. It is directed at ensuring dogs are adequately and appropriately managed and controlled for the safety of the public and broader community. Further, any exercise of statutory interpretation must involve a consideration of the text itself, bearing in mind the context and legislative purpose.
43 In my view, s 42(1)(a) necessitates the authorised officer to consider the dog's behaviour on a continuum to determine whether the behaviour is such that it is "likely to cause injury to any person or death or serious bodily harm to any animal". This involves an analysis beyond the immediate or the "right now" as the applicant contends. It involves an assessment as to whether, if the behaviour exhibited by the dog continues, a specified outcome is likely. It involves an evaluative judgment as to risk. In making that evaluation, there is no prohibition on the authorised officer being minded to past behaviours. Indeed, such considerations informs the evaluation of risk presently existing.
44 In determining whether he was satisfied Hardy's behaviour and circumstances was such that he was "likely to cause injury to any person or death or serious bodily harm to any animal" it was appropriate for the respondent to consider both past and present behaviour and circumstances. Obviously, the more remote the behaviour and circumstances, the less likely satisfaction would be reached, but the fundamental question posed by the section is whether the authorised officer had a sufficient basis from which satisfaction as to likelihood of a specified outcome could be reached. A broad and practical approach to such considerations best promotes a primary object of the Act – the safety of the community.
45 Moreover, there is no legislative intent discernible that the pre-condition can only be satisfied if the behaviour is occurring "right now" as the applicant contends. A comparison to s 41 of the DCA highlights this. Section 41 speaks in terms of a person being authorised to "restrain or destroy a dog if the person sees the dog attacking another person or another animal" (emphasis added). This section clearly imports an element of contemporaneity and requires the behaviours of the dog to be witnessed before the pre-condition can be satisfied. A natural reading of the words of s 42(1)(a) does not give rise to the incorporation of an element of immediacy.
46 Indeed, in my view, the text and context of the section excludes the implication that the behaviour must be occurring contemporaneously and, in effect, the authorised officer must see or
9 No 12/2023
witness such behaviour. If that was intended by Parliament, it would be a very simple matter for Parliament to have expressed it as so. The absence of clear, direct words to suggest the element of contemporaneity is required, suggests it is not. There is no basis to read in a temporal connection of "right now" into s 42(1)(a) because to do so would require adding in an additional element, namely that the authorised officer witnessed the behaviour.
47 The applicant further contends that to not read into the section a requirement that the behaviour and satisfaction as to the pre-condition have a temporal connection creates an "impermissibly broad" power, and provides Council with an alternate route which potentially results in the destruction of a dog, without the limitations imposed by other sections such as those relating to dangerous dogs. It is important to recall that satisfaction as to injury is a threshold requirement that opens the exercise of a discretion. It does not lead to an inevitable outcome. There is no question the section creates a broad power but Parliament made a decision to confer upon an authorised officer the option to exercise such a power upon the threshold test being met and the discretion being exercised appropriately. To interpret s 42(1)(a) in the manner contended for by the applicant would necessitate reading into it a limitation which is not apparent from the natural, ordinary meaning of the words. I can identify no legitimate reason for construing the section in this manner.
48 I reject the applicant's submission that the authorised officer was limited to considering only behaviour that was occurring "right now" in reaching satisfaction of pre-condition. There is nothing to suggest the respondent took into consideration irrelevant matters. The discretion reposed in the authorised officer is in unqualified terms. There is nothing in the DCA to suggest the decision as to the exercise of the discretion in s 42 is to be made other than administratively. As to the exercise of a discretion by an administrator, Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Limited
[1986] HCA 40, 162 CLR 24 at [40] stated: "What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard (see Reg. v. Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62 (1979) 144 CLR 45, at pp 49-50, adopting the earlier formulations of Dixon J. in Swan Hill Corporation v. Bradbury[1937] HCA 15; (1937) 56 CLR 746, at pp 757-758, and Water Conservation and Irrigation Commission (N.S.W.) v. Browning [1947] HCA 21; (1947) 74 CLR 492, at p 505). By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Act."
49 Here then, given there is no specificity associated with relevant considerations, it is largely for the decision-maker to determine which matters he regards as relevant and the importance or weight which is to be attached to each such consideration.
| 50 | The matters the authorised officer considered to be relevant are set out in his email of 30 November. The applicant asserts he took into consideration irrelevant matters because he |
10 No 12/2023
misconstrued the operation of s 42(1)(a) of the DCA and took into account past behaviours. That argument having been rejected there is no other basis from which to determine the respondent took into account irrelevant considerations.
51 In any event, s 42(1)(b) clearly provides for the authorised officer to be satisfied taking into account past events. Again, the natural and ordinary meaning of what is actually said in the DCA must be the starting point. The language of the section in no way limits the circumstances in which an authorised officer may be satisfied that the dog has caused injury, to only those circumstances where the injury is presently occurring, as opposed to having already occurred. The applicant does not submit to the contrary. Rather he argues that if the respondent was not permitted to consider historical matters pursuant to s 42(1)(a), and was limited to considering only s 42(1)(b), his discretion may have been exercised differently. Given my rejection of the applicant's submissions in respect to the statutory construct of s 42(1)(a), it is unnecessary to determine this secondary argument. For the sake of completeness, however I note that even if the respondent had reached satisfaction of the pre- condition only in respect to s 42(1)(b), and had paid no regard whatsoever to s 42(1)(a), there still would not have been a prohibition of him considering the matters he did as outlined in his email of 30 November in respect to the exercise of the discretion pursuant to s 42(1)(b). It is important to recall that satisfaction as to injury is a threshold requirement that opens the exercise of an unfettered discretion.
52 There is not a basis to conclude the making of the decision was an improper exercise of the power conferred by s 42 of the DCA or that the decision involved an error of law.
Natural Justice
53 As was stated by Lindgren J in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs
[1997] FCA 324, 81 FCA 71:
"The general law notion of natural justice comprises the 'impartial tribunal'
requirement (the bias rule) and the 'fair hearing requirement' (the hearing rule)".
54 In Annetts v McCann (1990) 170 CLR 596, 598 Mason CJ, Deane and McHugh JJ stated:
"It can now be taken as settled that, when a statue confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment."
55 The respondent does not dispute he was required to accord natural justice to the applicant, but the existence of a duty to accord natural justice does not mean the respondent was bound to act judicially. There is a fundamental difference between a court exercising a discretion judicially and a body exercising an administrative discretion. The extent and content of the authorised officer's duty to act in accordance with natural justice falls to be determined having regard to the statutory framework within which the relevant powers sits.
56 The ambit of the procedural fairness required in any given case was discussed by Mason J in
Kioa v West [1985] HCA 81, 159 CLR 550 at [31]-[33]:
"31 The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. It seems that as early as 1911 Lord Loreburn L C understood that this was the law when he spoke of the obligation to 'fairly listen to both sides' being 'a duty lying upon everyone who decides anything' (Board of Education v Rice (1911) AC 179, at p 182). But the duty does not attach to every decision of an administrative character.
11 No 12/2023
Many such decisions do not affect the rights, interests and expectations of the individual citizen in a direct and immediate way. Thus a decision to impose a rate or a decision to impose a general charge for services rendered to ratepayers, each of which indirectly affects the rights, interests or expectations of citizens generally does not attract this duty to act fairly. This is because the act or decision which attracts the duty is an act or decision -
'... which directly affects the person (or corporation) individually and not simply as a member of the public or a class of the public. An executive or administrative decision of the latter kind is truly a 'policy' or 'political' decision and is not subject to judicial review.'
(Salemi (No 2), at p 452, per Jacobs J.).
32 Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute. In Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475, Kitto J. pointed out (at pp 503-504) that the obligation to give a fair opportunity to parties in controversy to correct or contradict statements prejudicial to their view depends on 'the particular statutory framework'. What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject matter, and the rules under which the decision-maker is acting (Reg. v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, at pp 552-553; National Companies and Securities Commission v. The News Corporation Ltd. [1984] HCA 29; (1984) 58 ALJR 308, at pp 314, 318; [1984] HCA 29; 52 ALR 417, at pp 427-428, 434).
33 In this respect the expression 'procedural fairness' more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, that is, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations (cf. Salemi (No 2), at p 451, per Jacobs J.)."
57 A resolution of the question as to what the duty to act fairly required in this case necessitates a recognition that as a representative of Hobart City Council it was expected that the respondent would exercise his powers in furtherance of the intent and purpose of the legislation, including the protection of the community and the advancement of the public interest. This is particularly so given the discretion is not subject to any express statutory conditions, guidelines or fetters.
A fair hearing?
Is the 18 November 2022 Notice a final decision?
58 The applicant contends he was not given a fair hearing because he was not given notice that a destruction order may be made and was not given a reasonable opportunity to argue against that determination. To advance this argument the applicant contends the ultimate decision was grounded in the 18 November decision, and thus it was to that decision principles of procedural fairness needed to apply. The applicant contends he was denied procedural fairness in respect to this decision because prior to the decision of 18 November to issue the show cause notice, he was not given any notice that such decision was forthcoming and was not provided with any information which explained or justified the decision. The respondent contends the decision of 18 November was, at best an interim decision, and not a final decision and in practical terms was an invitation to the applicant to make submissions as to why a final decision to destroy the dog should not be made. The respondent contends the purpose of the show cause notice was to alert the applicant to the possibility that a decision pursuant to s 42 of the DCA to destroy the dog may in fact be made, and to provide an opportunity to be heard as to why such a determination ought not to be made. In essence, the
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respondent says the provisions of the DCA did not obligate him to provide such a show cause notice,
and the fact he did, highlights the procedural fairness that was afforded to the applicant.
59 I accept the respondent's submissions as to this issue.
60 In Griffith University v Tang [2005] HCA 7, 221 CLR 99, Gummow, Kirby, Callinan and Heydon JJ at 130, [89] discussed the notion of a decision, in the context of an enactment and said:
"89 … first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations … " (My emphasis)
61 In my view, similar considerations are applicable here. The issuing of the Notice on 18 November 2022 was clearly not a decision which immediately and irreversibly impacted on the applicant's rights. Rather, it was an invitation for the applicant to make representations prior to a final decision being made. If those representations were persuasive, no further action may have been taken by Council. The notice did not, at that point, alter the applicant's rights or ownership status. It was the mechanism by which the applicant was alerted to the possibility of a decision being made pursuant to s 42 and it involved the extension of an invitation to make representations as to same. The applicant was not presented with a definitive, inevitable outcome but was instead offered the opportunity to respond to Council's position.
62 It is noteworthy that s 42 DCA does not require the issuing of any "show cause" notice or any form of hearing as a pre-condition to the exercise of the discretion. This is to be contrasted with other sections of the DCA which require the service of notices (for example s 29). By issuing the show cause notice the respondent acted in accordance with principles of procedural fairness and created an opportunity for the applicant to be heard.
63 The applicant contends, however, that even if the decision of 18 November was not a final one, he was nevertheless denied procedural fairness because he was not provided with all of the information, particularly prejudicial information, upon which the decision may be based and therefore was limited in his ability to make a fulsome submission in reply. I do not accept this submission. Principles of natural justice required the applicant to be alerted to the nature of the allegations, and that the critical issues upon which an administrative decision was likely to be made, be brought to his attention. In my view, the respondent complied with that obligation. The respondent, by the show cause notice, indicated the decision that may potentially be made and invited the applicant to make submissions in response.
64 The applicant was provided with details of the injury that was the basis of the exercise of the power pursuant to s 42(1)(b) of the DCA. Additionally, prior to the decision of 30 November 2022, Council had provided further information and conducted investigations to see if there was any substance to the applicant's claim that he was not in the area of Centrepoint carpark at the relevant time. It had provided the applicant with the opportunity to make representations, and gave appropriate consideration to the matters raised within those representations before making the determination of 30 November 2022.
65 The applicant places considerable emphasis upon the respondent's failure to disclose the full details of the statutory declaration of the victim of the dog bite. Two things need to be said about this. Firstly, the respondent provided details of when the injury was alleged to have occurred and the nature of the injury. It was sufficient to allow the applicant to contradict the claim and advance an alternate theory as to why it was not Hardy who had caused the injury. The respondent investigated the alternate theory but found no evidence to support it. It could not be said however that the applicant was not given "fair opportunity to correct or contradict statements prejudicial to his view". The applicant has not shown disclosure of the redacted details of the statutory declaration would have, in
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any meaningful way, enhanced his ability to contradict or rebut the information. Secondly, the focus on the complaint of failure to make full and comprehensive disclosure of one aspect of the material upon which the decision was made, ignores the reality that it was in fact a number of behaviours displayed by Hardy that in combination gave rise to the exercise of the discretion and not one discreet act. As already discussed, this was a permissible approach for the respondent to take.
66 In assessing whether there has been a failure to afford natural justice it is necessary to consider whether the affected person could have provided a response which might realistically result in a different determination. See Minister for Immigration and Border Protection v SZMTA [2019] HCA 3, 264 CLR 421 at [45]-[46] and [49]. In considering this aspect it is relevant that since the decision of 30 November, the Council has provided full disclosure of all material requested by the applicant and has offered the opportunity for the matter to be further reviewed by a second authorised officer. The applicant declined to take up this opportunity.
67 The applicant has not provided a response which introduces any realistic prospect of an alternate decision being made. Given the history of Hardy's behaviours, and the expectation and obligation of Council to exercise its powers bearing in mind community interests and safety, a predominant consideration has to be whether Hardy can live safely in the community given the applicant's living circumstances. The applicant has not advanced any information or practical solutions that supports his position. I am not satisfied there has been a breach of procedural fairness, but even if I was of the view that disclosure of material ideally should have occurred in a more timely manner, it would make no material difference. In circumstances where a breach could have no bearing on the outcome, and no practical injustice has been occasioned, a decision ought not to be seen as lacking in statutory force. (see Stead v State Government Insurance Commission (1986) 161 CLR 141 at [11]).
Apprehension of bias ground
68 Natural justice requires that the decision-maker be free of both actual and apparent bias. In Ebner v Official Trustee in Bankruptcy [2000] HCA 63, 205 CLR 337, the High Court stated at [6] that a judge will be disqualified if a fair minded lay observer might reasonably apprehend that the judge did not bring an impartial mind to the resolution of the question to be decided.
69 The principle has been applied not only to judicial decisions, but to many other kinds of decision-makers, see Isbester v Knox City Council [2015] HCA 20, 255 CLR 135 at 22 where Kiefel, Bell, Gageler, Keane and Nettle JJ said at [20]:
"The question whether a fair-minded lay observer might reasonably apprehend a lack of impartiality with respect to the decision to be made is largely a factual one, albeit one which it is necessary to consider in the legal, statutory and factual contexts in which the decision is made."
And further at [23]:
"The hypothetical fair-minded observer assessing possible bias is to be taken to be aware of the nature of the decision and the context in which it was made as well as to have knowledge of the circumstances leading to the decision."
70 The authorities also clearly establish however that in the context of administrative decision- making, the extent to which the rules of bias, or apprehended bias are engaged depends upon a consideration of the task of the decision maker, evaluated by reference to the statutory arrangements for the exercise of the power in question. (See Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507).
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71 An allegation of bias necessitates a consideration of the matter which underpins the apprehension that a decision-maker may decide the issue other than on its merits. The fact that an administrative decision-maker was also involved in the investigation of the relevant facts does not automatically disqualify that person from making the ultimate determination. The fact that a decision- maker may have formed preliminary view prior to a hearing, or expressed an opinion does not, as and by itself, amount to apprehended bias. The question is whether a fair minded observer would reasonably infer that the authorised officer remained open to persuasion and prepared to listen to contrary argument. Or in other words, whether a fair minded, reasonable and responsible observer might assume that the authorised officer had closed his or her mind to alternate possibilities.
72 In my view, the issuing of the show cause notice is not reflective of a closed mind. To the contrary, by the issuing of the show cause notice the respondent specifically invited further representations from the applicant and indicated a preparedness to take further relevant material into consideration. The terminology of the show cause notice made it clear the respondent had not yet reached a concluded view. Moreover, there is no material from which it could be concluded that the authorised officer prejudged the matter or based his determination on material other than that which was relevant to his decision. The authorised officer received the investigation report from a member of Tasmania Police. He conducted an interview with the applicant. He investigated the alibi raised by the applicant. He sought independent evidence by way of CCTV footage. He spoke with the victim and satisfied himself that the dog involved was Hardy, and Hardy was in the applicant's control at the relevant time. The respondent considered, as he was entitled to, the past history of Hardy's behaviour and the applicant's compliance with ownership obligations. The respondent considered the viability of alternate pathways under the Dog Control Act and rejected those alternatives given the practical realities of the applicant's living arrangements. The respondent considered, as he was required to, the safety interests of the community.
73 There is nothing to suggest the respondent had a pre-disposition to destruction of the dog. Indeed, to the contrary the respondent made enquiries with accommodation providers that were utilised by the applicant on occasions as to whether arrangements could be made for the housing of Hardy. There is nothing to suggest the respondent was not willing to give genuine and proper consideration to the applicant's position or was not open to persuasion should the applicant be able to demonstrate a viable alternative determination. It is not sufficient for the applicant to merely assert apprehension of bias without demonstrating a real possibility of prejudgement. (See R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546 at 533–534). The applicant has failed to do that.
74 The respondent was in a position whereby a decision had to be made as to what to do with a dog who had bitten a person, who had previously displayed aggressive behaviours, who was owned by a homeless man who by his own admission had to resort to tethering him for periods of time because he was tiring to control and about whom numerous complaints had been received from members of the public. I am satisfied a fair minded, reasonable observer would expect no more from the decision- maker confronted with those circumstances, than the bringing of a mind, untainted by personal interest, and a preparedness to give genuine and proper consideration to the matter. I can identify no basis from which I could conclude the respondent did not engage such an approach.
75 The applicant's contentions in regard to the issue of apprehended bias must fail.
The Respondent's decision that no viable alternative under the DCA existed was unreasonable.
76 In essence, the applicant argues the respondent's rejection of a declaration pursuant to s 29 of the DCA was without "rational basis or intelligible justification" and therefore unreasonable and reviewable pursuant to s 18(2)(e) of the JRA as extended by s 20(g) of the JRA.
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77 In the email of 30 November, the respondent noted "Destruction of a dog is not an action the Council takes lightly but given Mr Munday is of no fixed address there is no other order under the Act which provides for the protections and safety of the community". By inference this suggests the respondent considered but rejected proceeding pursuant to s 29 of the DCA. Had the respondent made a s 29 declaration the applicant would have been required to comply with the requirements set out in s 32 of the DCA. These include, inter alai, a requirement that the dog be kept at a premises, in an enclosure, that complies with prescribed requirements. Given the applicant was homeless, and in the material the applicant provided to the respondent in response to the show cause notice, he had not suggested that status was likely to change anytime in the foreseeable future, it was reasonable and logical to conclude the applicant could not meet those requirements. Failure to meet the requirements would have resulted in the applicant being issued with a notice pursuant to s 39A of the DCA and upon non-compliance with that notice, a discretion for the general manager of the Council to issue a notice for the destruction of the dog was enlivened.
78 In Minister for Immigration and Citizenship v Li [2013] HCA 18, 249 CLR 332 at [28] it was
noted:
"28 Beyond unreasonableness expressive of particular error however, it is possible to say, as Lord Greene MR said, that although a decision-maker has kept within the four corners of the matters it ought to consider 'they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it.' In such a case the court may interfere. That limiting case can be derived from the framework of rationality imposed by the statute. As explained by Lord Greene MR, it reflects a limitation imputed to the legislature on the basis of which courts can say that parliament never intended to authorise that kind of decision. After all the requirements of administrative justice have been met in the process and reasoning leading to the point of decision in the exercise of a discretion, there is generally an area of decisional freedom. Within that area reasonable minds may reach different conclusions about the correct or preferable decision. However, the freedom thus left by the statute cannot be construed as attracting a legislative sanction to be arbitrary or capricious or to abandon common sense."
79 A primary purpose of the statutory scheme is community safety. If there was no realistic prospect that the applicant could comply with stringent requirements directed at ensuring the safety of the community following a s 29 declaration, it was not arbitrary, illogical or perverse to reject a s 29 declaration as a viable or justifiable alternative. Indeed, it was a decision consistent with the respondent's obligation to uphold the effectiveness of the statutory scheme, and grounded in common sense.
80 The applicant has not demonstrated the decision was "so unreasonable that no reasonable authority could ever have come to it". The applicant's submissions as to the unreasonableness of the decision must fail.
Disposition and Orders
81 None of the grounds of the amended originating application are made out. The application is
dismissed.
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