Peterson & Anor v Rockhampton Regional Council - [2023] QCAT 146

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Peterson & Anor v Rockhampton Regional Council [2023] QCATA 146

PARTIES:

CIMEROND PETERSON

SAMANTHA LISTER
(applicants/appellants)

v

ROCKHAMPTON REGIONAL COUNCIL

(respondent)

APPLICATION NO:

APL044-22

ORIGINATING APPLICATION NO/S:

GAR346-19
GAR395-19

MATTER TYPE:

Appeals

DELIVERED ON:

28 April 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Aughterson

ORDERS:

1. Leave to appeal in relation to grounds of appeal 1, 4 and 5 is refused.

2. The appeal in relation to grounds of appeal 2 and 3 is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – RIGHT OF APPEAL – WHEN APPEAL LIES – OTHER CASES – appeal on question of law or fact or mixed law and fact – where dangerous dog declaration – where decision upheld by Tribunal – where applicants seek to appeal that decision – whether leave to appeal should be granted – whether error of law established

Animal Management (Cats and Dogs) Act 2008 (Qld),
s 89

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142, s 147

Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39
Harrison and Anor v Meehan [2016] QCATA 197
Lee v Lee; Hsu v RACQ Insurance Limited; Lee v RACQ Insurance Limited [2018] QCA 104
Peterson v Rockhampton Regional Council; Lister v Rockhampton Regional Council [2022] QCAT 43
Piric & Anor v Claudia Tiller Holdings Pty Ltd [2012] QCATA 152
Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22
Seirlis & Ors v Queensland Building and Construction Commission [2020] QCATA 37

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

On 9 February 2022, the Tribunal confirmed the decision of the respondent to declare ‘Chocolate’, ‘Panic’ and ‘Karma’ dangerous dogs pursuant to s 89 of the Animal Management (Cats and Dogs) Act 2008 (Qld). The first two named dogs were owned by the first applicant, the mother of the second applicant. The third named dog was owned by the second applicant. The two separate applications for review (GAR346-19 and GAR395-19) were heard and determined together.
The two applications concerned a single attack by the three named dogs on a dog named Brutus. While there was no dispute that the attack occurred or that Brutus sustained significant injury, the applicants denied that their dogs were involved in the attack. The attack occurred on the roadway outside the residence of the owner of Brutus, Ms Flowers, and opposite the residence of the second applicant. It was the applicants’ case that at the time of the attack their dogs were chained at the residence of the first applicant, the applicants were not present at the time of the attack and that they did not go to the residence of the second applicant until sometime after the attack.[1]
[1]Peterson v Rockhampton Regional Council; Lister v Rockhampton Regional Council [2022] QCAT 43, [30], [38], [43], [46].
In confirming the decision of the respondent,…

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: [2023] QCAT 146
Decision Date: 28 April 2023

CaseChat Overview and Summary

The applicants, Peterson and another, sought an appeal against the decision of the Tribunal which upheld a declaration by the respondent, Rockhampton Regional Council, that their dog was dangerous. The appeal was heard in the Queensland Court of Appeal. The applicants argued that the Tribunal had erred in its decision and sought to appeal on questions of both law and fact.

The court was required to determine whether the applicants had established an error of law, which would warrant granting leave to appeal, and whether the appeal should be dismissed or allowed. The central issues revolved around the interpretation of the relevant statutory provisions and the application of these provisions to the facts of the case.

The court found that the applicants had not demonstrated a clear error of law that warranted an appeal. The court held that the Tribunal's decision was based on a reasonable interpretation of the legislation and the evidence presented. As such, leave to appeal was refused in relation to grounds of appeal 1, 4, and 5. The appeal in relation to grounds of appeal 2 and 3 was also dismissed, as the court found no error in the Tribunal's decision.

The court concluded that the applicants had not established grounds for appeal, and therefore, the decision of the Tribunal was upheld. The court's final orders were to refuse leave to appeal in relation to grounds of appeal 1, 4, and 5, and to dismiss the appeal in relation to grounds of appeal 2 and 3.

Orders

Orders of the court

1. Leave to appeal in relation to grounds of appeal 1, 4 and 5 is refused.

2. The appeal in relation to grounds of appeal 2 and 3 is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Peterson & Anor v Rockhampton Regional Council [2023] QCATA 146
PARTIES:	CIMEROND PETERSON SAMANTHA LISTER (applicants/appellants)
v
ROCKHAMPTON REGIONAL COUNCIL (respondent)
APPLICATION NO:	APL044-22
ORIGINATING APPLICATION NO/S:	GAR346-19 GAR395-19
MATTER TYPE:	Appeals
DELIVERED ON:	28 April 2023
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Senior Member Aughterson
ORDERS:	1. Leave to appeal in relation to grounds of appeal 1, 4 and 5 is refused. 2. The appeal in relation to grounds of appeal 2 and 3 is dismissed.
CATCHWORDS:	APPEAL AND NEW TRIAL – RIGHT OF APPEAL – WHEN APPEAL LIES – OTHER CASES – appeal on question of law or fact or mixed law and fact – where dangerous dog declaration – where decision upheld by Tribunal – where applicants seek to appeal that decision – whether leave to appeal should be granted – whether error of law established Animal Management (Cats and Dogs) Act 2008 (Qld), s 89 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142, s 147 Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39 Harrison and Anor v Meehan [2016] QCATA 197 Lee v Lee; Hsu v RACQ Insurance Limited; Lee v RACQ Insurance Limited [2018] QCA 104 Peterson v Rockhampton Regional Council; Lister v Rockhampton Regional Council [2022] QCAT 43 Piric & Anor v Claudia Tiller Holdings Pty Ltd [2012] QCATA 152 Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22 Seirlis & Ors v Queensland Building and Construction Commission [2020] QCATA 37
APPEARANCES & REPRESENTATION:	This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).