Pham v Brisbane City Council

[2021] QCAT 171

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Pham v Brisbane City Council [2021] QCAT 171

PARTIES:

THUY PHAM

(applicant)

v

BRISBANE CITY COUNCIL

(respondent)

APPLICATION NO/S:

GAR288-20

MATTER TYPE:

General administrative review matters

DELIVERED ON:

10 May 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Browne

ORDERS:

The application to review a decision filed on 7 August 2020 is dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where dog attacked and killed the applicant’s pet bird – where the applicant complained to the local Council – where the Council did not declare the relevant dog a regulated dangerous dog – where the applicant applied to review the decision not to declare the relevant dog a dangerous dog – where Council applied to strike out the application for review – whether the applicant has standing to bring the application – the Tribunal’s power to review generally

Animal Management (Cats and Dogs) Act 2008 (Qld), s 59, s 89, s 90, s 94, s 95, s 181, s 187, s 188, schedule 2

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 18, s 19, s 20, s 23, s 47, s 157

Allan v Transurban City Link Limited (2001) 208 CLR 167

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

J Thong, City Legal

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

REASONS FOR DECISION

1. The Council applies to dismiss Ms Pham’s application to review filed on 7 August 2020 on the basis that the Tribunal does not have jurisdiction to hear and determine the application.[1]

   [1]Application for miscellaneous matters (to dismiss) filed by the respondent on 23 October 2020 and submissions on behalf of the respondent filed 14 December 2020.

2. By way of background, Ms Pham applied to the Tribunal to review Council’s decision of 28 July 2020 not to declare a dog a dangerous dog. Ms Pham contends that she is an affected person who can review the decision because her pet bird, ‘Lemon’, was killed in front of her children by the relevant dog.

3. Ms Pham contends that Lemon, an Indian Ring-Necked bird, was attacked by the relevant dog on 22 May 2020. Ms Pham says that the dog was not on a leash, trespassed her property and caused severe trauma to her children.[2] Further to that, Ms Pham says that she has been deeply hurt and feels unsafe for herself and her pets since the relevant dog is not declared a dangerous dog.[3]

   [2]Applicant’s response filed 11 January 2021.

   [3]Ibid.

The Tribunal’s power to review a decision

1. The Tribunal only has the power to review a decision under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) as conferred upon it by the enabling Act, here the Animal Management (Cats and Dogs) Act 2008 (Qld) (‘the Act’).

2. Relevantly, s 17 of the QCAT Act provides that the tribunal’s review jurisdiction is the jurisdiction conferred on the tribunal by an enabling Act to review a decision made or taken to have been made by another entity under that Act.

3. Section 18(1) of the QCAT Act provides that the tribunal may exercise its review jurisdiction if a person has, under the QCAT Act, applied to the tribunal to exercise its review jurisdiction for a reviewable decision.

4. Section 157 of the QCAT Act requires the decision-maker for a reviewable decision to give ‘written notice’ of the decision to each person who may apply to the tribunal for a review of the decision and sets out relevant information that must be provided in the notice. A failure to comply with s 157 of the QCAT Act does not affect the validity of the reviewable decision.[4]

   [4]QCAT Act, s 157(4).

5. In the present matter, the Council notified Ms Pham by email dated 28 July 2020 of its decision not to declare the relevant dog responsible for the death of Ms Pham’s family pet Lemon as a dangerous dog.[5]

   [5]See application to review filed 7 August 2020.

6. It is open for me to find that there is, for the purposes of s 17 of the QCAT Act, a decision made or ‘taken to have been made’ by the Council not to declare the relevant dog a dangerous dog under the Act.

7. The question that now arises is whether Ms Pham is a person entitled to review Council’s decision of 28 July 2020.

8. The question of whether a person is entitled to review a decision made under an enactment is commonly referred to as standing. In Allan v Transurban City Link Limited[6] the High Court said, and I accept, that the starting point is the construction of the Act with regard to its subject, scope and purpose:

   The expression “affected by” and cognate terms appear in a range of laws of the Commonwealth. This is not the occasion for a disquisition on that topic. It is necessary to answer the questions posed above in respect of s 119(1) of the Authority Act by reference to the subject, scope and purpose of that statute, rather than by the application of concepts derived from decisions under the general law respecting what has come to be known as “standing”. “Standing” is a metaphor to describe the interest required, apart from a cause of action as understood at common law, to obtain various common law, equitable and constitutional remedies.[7]

   [6]Allan v Transurban City Link Limited (2001) 208 CLR 167.

   [7]Ibid, [15].

9. The Act empowers the local government to make decisions about dogs such as to, amongst other things, declare a dog a regulated dog. A regulated dog is a dangerous dog, menacing dog or restricted dog.[8]

   [8]The Act, s 60.

10. The purpose of the Act as set out under s 59 is to protect the community from damage or injury, or risk of damage or injury, from particular types of dogs called regulated dogs and to ensure the dogs are not a risk to community health or safety; and controlled and kept in a way consistent with community expectations and the rights of individuals. The purposes are to be achieved by, amongst other things, providing for local governments to declare dogs to be dangerous dogs, menacing dogs or restricted dogs.[9]

    [9]Ibid, s 59(2).

11. The local government may declare a particular dog to be a regulated dangerous dog, as the case may be, only if it is satisfied certain requirements set out under s 89(2) have been met.

12. Relevantly, s 89(2) of the Act provides as follows:

    (2) A dangerous dog declaration may be made for a dog only if the dog—

    (a) has seriously attacked, or acted in a way that caused fear to, a person or another animal; or

    (b) may, in the opinion of an authorised person having regard to the way the dog has behaved towards a person or another animal, seriously attack, or act in a way that causes fear to, the person or animal.

13. If the local government proposes to make a regulated dog declaration such as declaring a dog a dangerous dog, it must give any owner of the dog a notice (a proposed declaration notice) providing certain information in compliance with s 90 of the Act. The local government is required to consider any representations and evidence accompanying them within the period stated in the proposed notice.[10]

    [10]Ibid, s 94.

14. If the local government decides to declare a dog a regulated dog pursuant to s 94 of the Act it is required to give the owner (of the dog) an information notice about the decision.[11] For example, the notice must include information including reasons for the decision, the day the decision takes effect and any other information prescribed under a regulation. Importantly, the owner or person responsible for the dog must comply with the requirements for the keeping of a declared regulated dog as provided under the Act.

    [11]The Act, s 95(1) and (4). See Submission on behalf of the respondent filed 14 December 2020.

15. The Act provides that an ‘interested person’ for an ‘original decision’, being a decision about which an information notice must be given,[12] may then apply to the chief executive to have the original decision internally reviewed.[13] Relevantly, schedule 2 of the Act provides that an ‘interested person’ for an original decision means:

    (a)a person who has been given, or is entitled to be given, an information notice about the decision; and

    (b)if the decision relates to a dog – the owner of, or responsible person for, the dog.

    [12]See definition of ‘original decision’ under schedule 2 of the Act.

    [13]The Act, s 181.

16. After conducting an internal review, the chief executive must give ‘the applicant’ a review notice of the internal review decision for the purposes of s 187 of the Act.[14]

    [14]Ibid, s 181(2) and s 187.

17. Section 188 of the Act provides that a person who is given, or is entitled to be given, a review notice may apply to the tribunal for an external review of the decision.[15]

    [15]Ibid, s 188.

18. In my view, s 188 of the Act when read together with relevant sections under Part 1 as a whole clearly contemplates that only a person such as the owner of, or responsible person for, a dog declared by the local government as a regulated dog such as a dangerous dog is a person entitled to apply to the chief executive for an internal review. Further to that, a person who, after applying for an internal review of the decision, has been given or is entitled to be given a review notice for a decision is a person who may apply under the QCAT Act for an external review.

19. Put simply only the owner of the dog or the responsible person for the dog who has applied for an internal review of a decision to declare the relevant dog a regulated dog such as a dangerous dog may apply to QCAT for an external review.

20. In the present matter an information notice was not required to be issued because the relevant dog was not declared a regulated dangerous dog.[16] Further to that, Ms Pham is not a person who falls into the category of an ‘interested person’. Ms Pham is not the owner or person responsible for the relevant dog, rather she is the owner of the victim bird Lemon.[17]

    [16]Ibid, s 95(1). See s 90 about the proposed notice to be given.

    [17]Submission on behalf of the respondent filed 14 December 2020, [24].

21. Ms Pham is not a person who has received or is entitled to receive a review notice and she does not have standing to apply to the Tribunal for an external review.[18]

    [18]The Act, s 188. See Submission on behalf of the respondent filed 14 December 2020.

The Tribunal’s power to dismiss the application for review – s 47 of the QCAT Act

1. I am satisfied that it is appropriate to proceed to determine Council’s application to dismiss the application for review on the papers. Ms Pham has filed written submissions responding to Council’s application to dismiss in compliance with the Tribunal’s Directions.[19] Neither party has requested that Council’s application to dismiss be listed for an oral hearing.[20]

   [19]See Tribunal’s Directions dated 13 November 2020.

   [20]Tribunal’s Directions dated 13 November 2020.

2. I am satisfied that it is appropriate to exercise my discretion under s 47 of the QCAT Act to dismiss Ms Pham’s application for review filed on 7 August 2020.

3. Relevantly, s 47(1) of the QCAT Act permits the tribunal to dismiss a proceeding or part of a proceeding if the tribunal considers a proceeding or a part of a proceeding is frivolous, vexatious or misconceived; or lacking substance; or otherwise an abuse of process.

4. Here it is appropriate in the circumstances of this matter to dismiss the application to review under s 47 of the QCAT Act on the basis that the application is misconceived because the Tribunal does not have jurisdiction for the review. In exercising my discretion under s 47 of the QCAT Act, I have also considered the objects of the QCAT Act that include, amongst other things, to have the tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick.[21]

   [21]QCAT Act, s 3.

5. The appropriate order is that the application to review a decision filed on 7 August 2020 is dismissed.