Rios v Pine
[2012] QCAT 658
•21 December 2012
| CITATION: | Rios v Pine [2012] QCAT 658 |
| PARTIES: | Opelia Leon Rios |
| v | |
| Anthony Bruce Pine |
| APPLICATION NUMBER: | MCDO2081-12 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | 10 August 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Paul Favell, Member |
| DELIVERED ON: | 21 December 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Application dismissed for want of prosecution. |
| CATCHWORDS: | Minor civil dispute – claim for veterinary fees incurred because of injury claimed to be caused by a dog attack – jurisdiction |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Opelia Leon Rios |
| RESPONDENT: | Anthony Bruce Pine |
REASONS FOR DECISION
The Applicant, Opelia Leon Rios, seeks an order for the amount of $4,711.53, being the amount the Applicant paid in veterinary bills following the attack of the Applicant’s cat by a dog on the Respondent’s property. Neither party asserts to have seen the attack as set out in the Applicant’s claim.
The Applicant claims that the Respondent’s dogs had previously exhibited aggressive behaviour both towards her and towards her other cat.
The relevant attack occurred on 15 October 2012. The Applicant knocked on the Respondent’s front door at 6.00am and was refused entry. The Applicant entered the Respondent’s backyard via a side door to collect her injured cat, which subsequently died on the way to the vet as a result of the attack wounds. The Applicant claims she has suffered symptoms of depression and anxiety as a result of the incident, which was confirmed by psychologist Evelyn (Gasparillo) Hibberd (Exhibit 1).
The Respondent contends that he had taken reasonable steps to control the movement of his dogs as his backyard is fully fenced to the height of 1.8m. Further, the Respondent contends that his dogs are controlled and well-behaved. In a letter from the Brisbane City Council dated 10 February 2012 (Exhibit 6), the Council had confirmed that they would not regulate the Respondent’s dog as dangerous or menacing.
The matter was heard over a number of days because the applicant required an interpreter. From the evidence it is clear that the cat named Gringo owned and loved by the applicant was injured such that on 15 October 2011 he died because of multiple puncture wounds to both sides of his chest with multiple palpable rib fractures.
It is also clear that the respondent is an owner of two dogs who have the free run of a large back yard surrounded by a fence of 1.8m high.
The applicant claims that a dog owned by the respondent killed her cat and she seeks to hold the respondent responsible for the costs of treating the cat as a result of attacks by a dog owned by the respondent.
Much evidence was presented in order to prove that a dog owned by the respondent did in fact kill the cat. However there is a question of jurisdiction which has arisen. This application is brought in the minor civil dispute jurisdiction of QCAT. Section 11 of the Queensland Civil and Administrative Tribunal Act 2009 provides that the Tribunal has jurisdiction to hear and decide minor civil disputes.
The Tribunal may exercise its jurisdiction for a minor civil dispute if a relevant person has applied to the Tribunal to deal with the dispute.
It seems to be obvious that was so but I could not satisfied that the dog escaped and caught the cat or that the respondent should be held responsible for the death of the cat.
Section 12 defines a relevant person to mean:
a) For a claim to recover a debt or a liquidated demand of money – a person to whom the debt is owed or money is payable; or
b) Subject to paragraphs (c) – (g), for a claim arising out of a contract between a consumer and a trader – the consumer; or
c) For a claim arising out of a contract between two or more traders – any of the traders; or
d) For a claim for payment of an amount for damage to property caused by, or arising out of the use of, a vehicle – a person incurring loss because of the damage; or
e) For a claim for repair of a defect in a motor vehicle under the Property Agents and Motor Dealers Act 2000 section 248 or 324 – the buyer of the vehicle; or
f) For a tenancy matter – a person who, under the Residential Tenancies and Rooming Accommodation Act 2008, may apply to the Tribunal for a decision in relation to the matter; or
g) For a claim that is the subject of a dispute under the Neighbourhood Disputes Resolution Act 2011 – a party to the dispute; or
h) For a matter under the Building Act 1975, Chapter 8, Part 2A – a person who, under the Building Act 1975, Chapter 8, Part 2A, may apply to the Tribunal for a decision in relation to the matter.
In my view, the claim made by the applicant is not a claim which is listed above and accordingly the applicant is not a relevant person.
Minor civil dispute is also defined in Schedule 3 to the Act.
In my view, this application is not a valid application as a minor civil dispute and this Tribunal does not have jurisdiction to make the orders sought by the applicant. Those orders are in fact damages because of either negligence of the respondent in allowing his dog to attack and kill the cat, or an action in nuisance. None of those are covered in this jurisdiction. The appropriate order in the circumstances is that the application be dismissed for want of prosecution.
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