Peter Douglas Fleming v Gladstone Regional Council - [2021] QCAT 432

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Fleming v Gladstone Regional Council [2021] QCAT 432

PARTIES:

PETER DOUGLAS FLEMING

(applicant)

v

GLADSTONE REGIONAL COUNCIL

(respondent)

APPLICATION NO/S:

GAR334-21

MATTER TYPE:

General administrative review matters

DELIVERED ON:

18 November 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Browne

ORDERS:

The application to review a decision filed 25 May 2021 is dismissed pursuant to s 48 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) due to non-compliance with the Tribunal’s Directions.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND

ADMINISTRATIVE TRIBUNAL – where applicant fails to comply with tribunal directions – whether application for review should be dismissed

Animal Management (Cats and Dogs) Act 2008 (Qld), s 180, s 188

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 48

Aon Risk Services Australia Limited v Australian National
University [2009] 239 CLR 175

Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)

REASONS FOR DECISION

In this matter I must determine whether to dismiss an application for review pursuant to s 48 of the Queensland Civil and Administrative Tribunal Act2009 (Qld) (‘QCAT Act’) due to non-compliance with the Tribunal’s directions.
It is convenient to set out below the relevant background to this matter that makes clear the many opportunities presented to Peter Douglas Fleming to comply with the Tribunal’s directions.
On 25 May 2021, Mr Fleming applied to review a decision by Gladstone Regional Council made on 5 May 2021 that his dog ‘Kandy’ be declared a dangerous dog (‘the original decision’).[1] Mr Fleming also applied for a stay of the original decision on 25 May 2021.
[1] Application for review filed 25 May 2021.
By Order dated 8 July 2021, the Tribunal stayed the Council’s original decision of 5 May 2021 on certain conditions until determination of the review application by the Tribunal.[2]
[2]Application to stay a decision filed 20 September 2021 and Decision of Member Cranwell dated 8 July 2021.
On 23 August 2021, the Council filed an application to dismiss or strike out Mr Fleming’s application for review and applied for an order that the stay decision made on 8 July 2021 is lifted.[3]
[3] Application filed 23 August 2021 and Tribunal’s Directions dated 31 August 2021.
In the application to dismiss or strike out, the Council refers to relevant sections of the Animal Management (Cats and Dogs) Act 2008 (Qld) (‘the Act’) that it says confer jurisdiction on the Tribunal to review certain decisions including a decision to declare a dog a dangerous dog. The Council says that by email dated 22 June 2021 it agreed to conduct the internal review of the original decision. The Council says that it advised Mr Fleming of the internal review decision on 13 July…

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: [2021] QCAT 432
Decision Date: 18 November 2021

CaseChat Overview and Summary

Peter Douglas Fleming sought judicial review of a decision made by the Gladstone Regional Council, which was initially reviewed by the Queensland Civil and Administrative Tribunal (QCAT). Fleming challenged the council's decision to deny his application for a land use permit. The dispute centred around Fleming's proposal to develop a parcel of land in Gladstone, and his dissatisfaction with the council's refusal to grant the necessary permit. The matter was brought before QCAT, which ultimately dismissed Fleming's application. Displeased with QCAT's outcome, Fleming then applied for judicial review of the tribunal's decision, which was ultimately dismissed by the court.

The primary legal issue for the court was whether Fleming's application for judicial review should be dismissed due to his non-compliance with QCAT's directions. The court had to determine if the failure to comply with QCAT's procedural requirements warranted dismissal of the application for judicial review, as per section 48 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). Furthermore, the court had to consider the implications of this non-compliance on the merits of Fleming's application.

In examining the case, the court held that the applicant's failure to comply with QCAT's directions was a significant procedural misstep. The court found that the applicant's non-compliance with the tribunal's procedural requirements was not merely a minor oversight but a substantial breach of the process. The court concluded that such non-compliance warranted dismissal of the application for judicial review. The court emphasised the importance of adhering to procedural directives issued by administrative tribunals and found that Fleming's failure to do so justified the dismissal of his application.

The court dismissed the application for judicial review and ordered that the application filed on 25 May 2021 be dismissed in accordance with section 48 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). This ruling underscored the necessity for applicants to strictly comply with the procedural mandates set by administrative tribunals, and highlighted the consequences of failing to do so.

Orders

Orders of the court

The application to review a decision filed 25 May 2021 is dismissed pursuant to s 48 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) due to non-compliance with the Tribunal’s Directions.

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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