Pignat v Tableland Regional Council
[2012] QCAT 254
•4 April 2012
| CITATION: | Pignat v Tableland Regional Council [2012] QCAT 254 |
| PARTIES: | Rodger George Pignat |
| v | |
| Tableland Regional Council |
| APPLICATION NUMBER: | GAR015-12 / GAR023-12 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | K O'Callaghan, Senior Member |
| DELIVERED ON: | 4 April 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The application to extend time is dismissed. |
| CATCHWORDS: | Procedure – extension of time to lodge review Animal Management (Cats & Dogs) Act 2008, s 89 |
APPEARANCES and REPRESENTATION (if any):
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
Rodger Pignat sought to review and stay a decision of the respondent Council to declare his dogs “Aries” and “Hercules” menacing. Each dog was the subject of a separate application.
The decisions were made by the Council in August 2010. The applications for review and stay were filed in the Tribunal in January 2012, some 17 months out of time.
The applicant also sought an extension of time to lodge the reviews.
On 14 April 2012 I ordered that the applications to extend time and the stay were dismissed.
Rodger Pignat has sought reasons for these decisions.
These are the reasons for my decision.
Background
The incident which culminated in Hercules and Aries being declared “menacing” under section 89 of Animal Management (Cats & Dogs) Act 2008 (“the Act”) occurred in September 2009.
The declarations were made in June 2010 following further requests for information and clarification of the events from Mr Pignat.
Following an internal review decisions were made in August 2010 confirming the decisions to declare the dogs menacing. These are the decisions which Mr Pignat sought to review.
No steps were taken by Mr Pignat to review the decisions in QCAT until January 2012.
Mr Pignat explains in his stay applications what prompted the review. He says “due to a change in local laws on 1 January 2012 the dogs have to now be registered and have tighter restrictions applied upon them”.
In submissions in support of his application to extend time Mr Pignat says that:
i)No action was taken in August 2010 to review the decisions because at that time there were no financial implications as a result of the declarations. This changed in January 2012 and he was going to have to incur significant cost to comply with the conditions of housing declared dogs.
ii)If he was required to comply with the conditions the security at his property would be reduced because the dogs could not patrol the borders of their property.
iii)He maintained the dogs were innocent.
iv)He did not receive proper advice at the time of the decision being made about his appeal rights particularly that fees could be waived.
v)He had other pressing legal issues at the time.
The Council opposes the extension of time.
Consideration
As pointed out by Mr Pignat, section 188 the Act gives him a right to review the decision to declare dogs menacing however the QCAT Act requires that review be lodged within 28 days of the decision being made.
Mr Pignat also correctly points out the Tribunal can extend that time under section 61 of the QCAT Act.
The factors to be taken into account when deciding whether to grant an extension of time have been enunciated in previous Tribunal and Court decisions.[1] These are as follows:
§Whether there is an acceptable explanation for the delay;
§Length of delay;
§Any action taken by the applicant other than by making an application for review under the Act, to inform the decision maker that the finality of the decision is contested. This reflects public policy supporting a need to ensure finality in disputes and to prevent difficulties that result from fading memory as time languishes;
§Whether there is prejudice to other parties;
§Strength of the applicant’s case;
§Whether it is in the interests of justice to grant the extension.
[1]Hunter Valley Developments Pty Ltd v The Honourable Barry Cohen, Minister for Home Affairs (1984) 3 FLR 344, Cavalier Homes Brisbane Pty Ltd v Queensland Building Services Authority [2012] QCAT 6, Crime and Misconduct Commission v Chapman and Anor [2011] QCAT 229.
The submissions in support of his application essentially revolve around financial hardship.
In explaining his delay Mr Pignat suggests that he was not aware that he could have obtained a fee waiver when applying to QCAT.
It is also implied that no steps were taken at the time because the decision at that stage did not have any financial impact on Mr Pignat and this only became the case recently when new regulations were introduced in January this year.
Whilst this is clearly the explanation for the delay I do not think it is an acceptable explanation.
Mr Pignat could have made enquiries with QCAT as he was directed to do in the notice of August 2010 as to how an application for review could be made.
He has clearly done this in January 2012 and has obtained the requisite fee waiver.
Mr Pignat’s financial situation would not be a relevant ground for setting aside the decision of the Council.
The question, for the Tribunal, if the extension of time were granted, would be whether or not that was the correct and preferable decision to declare the dogs menacing.
Under section 89 of the Act a menacing dog declaration may be made if the dog has attacked or acted in a way that caused fear to another person or animal.
The materials submitted by the Council related to an incident whereby it was alleged that the Mr Pignat’s dogs entered the neighbour’s property and attacked dogs on the neighbouring property.
Mr Pignat disputes that this is an accurate reflection of the event that occurred.
If the Tribunal were to review the decision the question would arise as to whether or not the Tribunal was satisfied that Mr Pignat’s dogs did attack or cause fear to the other animals.
The evidence of the owners of the other animals would have been relevant.
With the passage of time of nearly 2 years it is conceivable that the owners of the other dogs may well not now have a clear recollection of what occurred.
Whilst it is unfortunate that Mr Pignat let the opportunity pass to test the correctness of the Council’s decision and that now has financial implications that he did not envisage at the time, I do not consider it a proper exercise of discretion to grant an extension of time of some 17 months to bring this review application.
There has been lengthy delay, the explanation for the delay was, in my view, not acceptable, the Council and the complainant would no doubt have assumed that the decision in August 2010 to make the declaration was a final decision as there was no suggestion until January 2012 that the decision was to be challenged.
It is difficult to ascertain the merits of the application on the material currently filed. Certainly it would be more difficult now for the Tribunal to be able to consider whether or not the decision made in August 2010 was correct and preferable as the passing of time would have affected the parties’ recollection of events.
It is for these reasons that I decline to grant the extension of time. It follows that the application for stay and the application for review itself must necessarily fail.
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