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

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.
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.
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

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’).
Relevantly, s 17 of the QCAT Act provides that the tribunal’s review jurisdiction is…

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.

Keep reading for free

Create a free CaseChat account to read Pham v Brisbane City Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] QCAT 171
Decision Date

CaseChat Overview and Summary

The case of Pham v Brisbane City Council involved Thuy Pham, the applicant, who sought a review of a decision by the Brisbane City Council, the respondent, not to declare a dog a regulated dangerous dog under the Animal Management (Cats and Dogs) Act 2008 (Qld). The dispute arose after Ms Pham's pet bird, Lemon, was killed by the dog in question. Ms Pham applied to the Queensland Civil and Administrative Tribunal (QCAT) to review the Council's decision of 28 July 2020. The Council applied to dismiss Ms Pham's application on the basis that QCAT did not have jurisdiction to hear and determine the application.

The primary legal issues revolved around the Tribunal's jurisdiction to review the decision and Ms Pham's standing to bring the application for review. Under the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Tribunal's review jurisdiction is conferred by an enabling Act, which in this case is the Animal Management (Cats and Dogs) Act 2008 (Qld). The Tribunal determined that it had jurisdiction to review the decision under the enabling Act. However, it found that Ms Pham did not have standing to bring the application for review because she was not an 'interested person' as defined by the Act. According to the Act, only the owner or responsible person for a dog declared as a regulated dog could apply for an internal review, and subsequently for an external review by QCAT. Ms Pham, being the owner of the victim bird and not the dog in question, did not fit within the category of an 'interested person' and thus did not have standing to apply for a review.

The Tribunal exercised its discretion under section 47 of the QCAT Act to dismiss Ms Pham's application for review on the basis that the application was misconceived, as the Tribunal did not have jurisdiction to hear it. The Tribunal also considered the objects of the QCAT Act, which include ensuring matters are dealt with in an accessible, fair, just, economical, informal, and quick manner.

The final orders of the Tribunal were that the application to review a decision filed on 7 August 2020 was dismissed.

Orders