Naidu v Brisbane City Council - [2014] QCAT 420

CITATION:

Naidu v Brisbane City Council [2014] QCAT 420

PARTIES:	Shantu Naidu (Applicant)
v
Brisbane City Council (Respondent)

APPLICATION NUMBER:

GAR225-14

MATTER TYPE:

General administrative review matters

HEARING DATE:

22 August 2014

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

DELIVERED ON:

22 August 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision of the Brisbane City Council dated 1 May 2014 and 26 May 2014 to issue a Destruction Order in respect of ‘Porcha’ is set aside; and

2. The Tribunal substitutes its own decision that the grounds for a destruction order are not met.

CATCHWORDS:

ADMINISTRATIVE REVIEW – where Declared dangerous dog – whether proper grounds for Destruction Order - whether reasonable belief that dog attacked another animal – where no direct evidence of attack by Declared dangerous dog – where natural justice applies to Tribunal proceedings - whether contravention of prescribed conditions and compliance notice is separate grounds for destruction of dog – where contravention relates to offence provisions

Animal Management (Cats and Dogs) Act 2008 (Qld) ss 60, 97, 125,126, 127, 134 and Schedule 1

Animal Management (Cats and Dogs) Regulation 2009 (Qld) ss 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 20, 21, 28

Briginshaw v. Briginshaw (1938) 60 CLR 336
Gala v. Fraser Coast Regional Council [2010] QCAT 576
Lee v. Brisbane City Council (No. 2) [2012] QCATA 64
R v. War Pensions Entitlement Appeal Tribunal (1933) 50 CLR 228

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Shanta Naidu appeared in person
Shabana Sutton also appeared as representative with leave of the Tribunal

RESPONDENT:

Brisbane City Council represented by Richard Thorn, Senior Investigator

REASONS FOR DECISION

What is this Application about?

Owning a dog can provide significant benefits including security and companionship. Like all meaningful relationships, with those benefits come responsibilities.
Miss Shanta Naidu (also known as Shanta Sutton) is the registered owner of a mixed Boxer dog, ‘Porcha’.[1] Miss Naidu has applied to the Tribunal to review a decision by the Brisbane City Council to destroy Porcha.[2]
[1] Brisbane City Council Registration Details Permit Ref: AN01238382210.
[2] Although Brisbane City Council issued two Destruction Order – Information Notices
dated 1 May 2014 and 26 May 2014, the second Information Notice is identical to the first except for an update on the whereabouts of Porcha since the first Notice. For the purposes of this Review, it is the one Destruction Order.
The Council had previously declared Porcha to be a Dangerous Dog.[3]
[3] Brisbane City Council Proposed Regulated Dog Declaration Notice dated 13 March 2013.

What does the Tribunal do?

In a review application, the Tribunal’s purpose is to produce the correct and preferable decision by way of a fresh hearing on the merits.[4]
[4] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20.
The Tribunal must therefore decide whether to destroy Porcha.

What is the power to issue the Destruction Order for the dog?

An authorised person…

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: [2014] QCAT 420
Decision Date

CaseChat Overview and Summary

Shantu Naidu, the owner of a mixed Boxer dog named 'Porcha', sought a review by the Queensland Civil and Administrative Tribunal (QCAT) of a decision by the Brisbane City Council to issue a Destruction Order for Porcha. The Council had declared Porcha a dangerous dog and issued a Compliance Notice for regulated dog offences. The Council then issued a Destruction Order for Porcha, alleging that she attacked another animal, and that she was kept in contravention of prescribed conditions and the Compliance Notice. The Tribunal's task was to decide whether the Council's decision to issue the Destruction Order was correct and preferable.

The Tribunal found that the Council had failed to provide sufficient evidence to support the claim that Porcha attacked another animal. The Council relied on hearsay statements, but the only direct evidence came from the complainant and the dog's owner, who both gave conflicting accounts. The complainant did not attend the hearing to give evidence, and the Tribunal was unable to assess the credibility of the complainant's evidence. As a result, the Tribunal could not be satisfied that Porcha attacked another animal to the requisite standard of proof.

Furthermore, the Tribunal found that the provisions relating to a failure by Porcha's owners to comply with prescribed conditions or the Compliance Notice were offence provisions. These provisions prescribe an offence for which a person may be convicted for non-compliance, but they do not confer a discretion to make a destruction order. Therefore, the alleged contravention of prescribed conditions and the Compliance Notice was not a ground for Porcha's destruction.

In conclusion, the Tribunal found that the Council's decision to issue the Destruction Order for Porcha was not supported by sufficient evidence. The appropriate orders were to set aside the Council's decision and substitute the Tribunal's own decision that the grounds for a destruction order were not met.

Orders