O'Brien v Gladstone Regional Council - [2015] QCATA 82

CITATION:

O’Brien v Gladstone Regional Council [2015] QCATA 82

PARTIES:	Shelley O’Brien (Appellant)
v
Gladstone Regional Council (Respondent)

APPLICATION NUMBER:

APL565-14

MATTER TYPE:

Appeals

HEARING DATE:

19 May 2015

HEARD AT:

Brisbane

DECISION OF:

Member Howard
Member Hughes

DELIVERED ON:

25 May 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The appeal is allowed.

2. The orders of the Tribunal dated 28 November 2014 are set aside.

3. The matter is remitted to the Tribunal for determination according to law before a differently constituted Tribunal.

CATCHWORDS:

APPEAL – ANIMAL REGULATION – PROCEDURAL FAIRNESS – where direct evidence witness not made available for cross-examination – where hearsay evidence relied upon in determination – where applicant not given opportunity to test evidence – where decision-maker did not comply with requirements to disclose its documents- whether breaches of procedural fairness

Animal Management (Cats and Dogs) Act 2008 (Qld) s 89
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 4, s 21, s 28, s 142

Gollan v Vaccaneo [2013] QCATA 228
Lee v Brisbane City Council [2012] QCA 284
Lee v Brisbane City Council (No 2) [2012] QCATA 64
O’Brien v Gladstone Regional Council [2014] QCAT 618
Olindaridge Pty Ltd & Anor v Tracey & Anor [2014] QCATA 207

APPEARANCES:

APPLICANT:

Mrs Shelley O’Brien by telephone

RESPONDENT:

Mrs Brooke Saunders for Gladstone Regional Council by telephone

REASONS FOR DECISION

What is this appeal about?

Mrs Shelley O’Brien is the owner of a Great Dane, ‘Boof’. The Gladstone Regional Council declared ‘Boof’ a ‘dangerous dog’, because he allegedly attacked another dog, ‘Ollie’.[1]
[1]Animal Management (Cats and Dogs) Act 2008 (Qld) s 89(1)(a).
The Tribunal confirmed that decision.[2] Mrs O’Brien now seeks to appeal the Tribunal’s decision. Mrs O’Brien submitted that the Tribunal did not provide her with procedural fairness, made findings of fact not available on the evidence and did not consider relevant evidence.

Was Mrs O’Brien provided with procedural fairness?

[2]O’Brien v Gladstone Regional Council [2014] QCAT 618.

What does Mrs O’Brien claim?

Mrs O’Brien claims that she was denied procedural fairness in two ways.
First, the Tribunal received hearsay evidence from a third party who was not present and could not be cross-examined. Specifically, Mrs O’Brien claims that the Tribunal erred in relying on an account relayed by Sarah Kummerow, Local Laws Supervisor, from Alan Walker who did not provide a statement and was not present to give evidence.
Second, the Gladstone City Council withheld relevant evidence which disadvantaged her in preparing for hearing. In particular, the Council had recordings of interviews conducted during its investigations. Council sought to give the recordings to the Tribunal at the hearing. Although the Tribunal declined to accept the recordings, Mrs O’Brien submits that as a matter of procedural fairness she was entitled to them.

How did the Tribunal consider Mr Walker’s evidence?

The learned Member helpfully set out the relevant evidence in her reasons for the Tribunal’s decision (with our emphasis):[3]
Mr Walker’s verbal account was recorded by Ms Kummerow…

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: [2015] QCATA 82
Decision Date: 25 May 2015

CaseChat Overview and Summary

The appellant, O'Brien, appealed against a decision of the Queensland Civil and Administrative Tribunal, which had dismissed an appeal against a decision of the Gladstone Regional Council. The underlying dispute related to the regulation of animals under the Local Government Act 2009. The Gladstone Regional Council had issued an infringement notice to O'Brien for failing to register a dog under the Act. O'Brien appealed the infringement notice, which was dismissed by the Gladstone Regional Council. O'Brien further appealed to the Tribunal, which upheld the original decision. The central issue before the court was whether the Tribunal had erred in law by failing to set aside the decision of the Gladstone Regional Council due to breaches of procedural fairness. Specifically, the court needed to determine whether the Tribunal should have found that the decision-maker did not comply with the requirements to disclose documents and whether the decision-maker breached procedural fairness by not making a direct evidence witness available for cross-examination and by relying on hearsay evidence without providing an opportunity to test it.

The court found that the Tribunal had indeed erred in law. The court held that the decision-maker did not comply with the requirements to disclose documents, which breached procedural fairness. Additionally, the decision-maker failed to make a direct evidence witness available for cross-examination and relied on hearsay evidence without providing an opportunity to test it. These failures constituted a significant procedural irregularity that affected the outcome of the decision. The court concluded that the Tribunal should have set aside the decision of the Gladstone Regional Council due to the breaches of procedural fairness. Consequently, the appeal was allowed, the orders of the Tribunal were set aside, and the matter was remitted to the Tribunal for determination according to law before a differently constituted Tribunal.

Orders

Orders of the court

1. The appeal is allowed.

2. The orders of the Tribunal dated 28 November 2014 are set aside.

3. The matter is remitted to the Tribunal for determination according to law before a differently 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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