Nancy Lee v Brisbane City Council - [2013] HCASL 37

NANCY LEE
v
BRISBANE CITY COUNCIL
[2013] HCASL 37
B65/2012

The applicant seeks special leave to appeal against orders of the Court of Appeal of the Supreme Court of Queensland (Holmes and White JJA, Applegarth J) refusing the applicant leave to appeal against an order of the appeal tribunal of the Queensland Civil and Administrative Tribunal ("QCAT"). The appeal tribunal of QCAT had refused the applicant's application for leave to appeal to that body.
A delegate of the Brisbane City Council made a regulated dog declaration under s 94 of the Animal Management (Cats and Dogs) Act 2008 (Q) in respect of a German Shepherd dog of which the applicant was the registered owner. The delegate decided that the applicant's dog had attacked and injured another dog.
The applicant sought internal review of the delegate's decision. The reviewer upheld the decision. The applicant then sought review by QCAT which, after a fresh hearing of the merits of the matter, confirmed the original decision. On the applicant's application for leave to appeal to the appeal tribunal of QCAT, the appeal tribunal noted that the other dog may have first "attacked" the applicant's dog by running at the applicant's dog barking. Nonetheless, the appeal tribunal concluded that there was evidence to support the view reached that the applicant's dog had seriously attacked the other dog.
The Court of Appeal concluded that a finding of serious attack by one dog on another was not precluded by the fact that the second dog might have first attacked.
As the applicant does not have legal representation, the application falls to be dealt with under r 41.10 of the High Court Rules 2004.
We see no reason to doubt the correctness of the Court of Appeal's conclusion. An appeal to this Court would not enjoy sufficient prospects of success to warrant a grant of special leave to appeal.
Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

K.M. Hayne
10 April 2013 S.M. Crennan

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: [2013] HCASL 37
Decision Date: 10 April 2013

CaseChat Overview and Summary

Nancy Lee applied for special leave to appeal against the Court of Appeal of the Supreme Court of Queensland's refusal to grant her leave to appeal against an order of the Queensland Civil and Administrative Tribunal (QCAT). The Brisbane City Council had issued a regulated dog declaration under the Animal Management (Cats and Dogs) Act 2008 (Q) regarding her German Shepherd, concluding it had attacked and injured another dog. After the applicant's application for internal review and subsequent review by QCAT was unsuccessful, the appeal tribunal of QCAT also denied her leave to appeal. The applicant argued that the other dog may have initiated the attack by running at her dog barking, but the tribunal concluded there was evidence to support the view that her dog had seriously attacked the other dog.

The legal issues before the Court of Appeal were whether the finding of a serious attack by one dog on another was valid despite the other dog potentially initiating the conflict. The Court of Appeal concluded that such a finding was not precluded by the other dog's potential initial attack, and that the applicant's application for special leave to appeal did not have sufficient prospects of success. Given the applicant's lack of legal representation, the matter was assessed under rule 41.10 of the High Court Rules 2004. The Court found no reason to doubt the Court of Appeal's conclusion and dismissed the application for special leave to appeal.

The High Court's reasoning was that the Court of Appeal's conclusion was correct, and an appeal to the High Court would not enjoy sufficient prospects of success. As a result, the Registrar was directed to draw up, sign, and seal an order dismissing the application. The Court's decision emphasized the importance of the Court of Appeal's analysis and the absence of a compelling reason to grant special leave to appeal. The application was dismissed, and no further appeal was permitted.

Orders