Slade v Cairns Regional Council

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QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Slade v Cairns Regional Council [2021] QCAT 276
PARTIES: DARRYN JOHN SLADE

(applicant)

v
CAIRNS REGIONAL COUNCIL

(respondent)

APPLICATION NO/S:

GAR284-20

MATTER TYPE:

General administrative review matters

DELIVERED ON:

6 August 2021

HEARING DATE:

21 July 2021

HEARD AT:

Cairns

DECISION OF:

Member Taylor

ORDERS:

1.   The decision of the Cairns Regional Council dated 8 July 2020 to declare ‘Daisy’ a dangerous dog is confirmed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – animals – dangerous dog – where dog owner asserts attack was provoked by a third person – where victim was not the person provocateur – whether victim sustained bodily harm – where Dangerous Dog declaration made

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 18, s 19, s 20, s 24

Animal Management (Cats and Dogs) Act 2008 (Qld), s 89, s 94, s 188.

Roy v Brisbane City Council [2019] QCAT 311, considered

Brisbane City Council v Roy [2020] QCATA 147, followed
Thomas v Ipswich City Council [2015] QCATA 97, distinguished.
Gligoric v Gold Coast City Council [2020] QCAT 320, distinguished.
Nguyen v Gold Coast City Council Animal Management [2017] QCATA 121, distinguished

Acaroglu v Moreton Bay Regional Council [2020] QCAT 76, distinguished

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

T. McKee – Compliance and Appeals Review Officer

REASONS FOR DECISION

Background

  1. On the afternoon of 16 March 2020 at around 3:30 pm a young schoolgirl was waiting in the courtyard outside the Wallamurra Towers building in Abbot Street, Cairns. She was there to visit her grandparents.

  2. Medical offices are housed on the ground floor of that building with residences on the upper floors. At the same time the Applicant was there with his dog, a young blue-heeler cattle dog named Daisy. He was waiting for his wife to complete an appointment at one of the medical offices.

  3. At the time both the Applicant and the young girl were near the stairs at the front of the courtyard, Daisy bit the young girl on the rear of her thigh penetrating the skin causing bleeding (the Incident).[1]

    [1]This is a short summary of the relevant facts as they appear in Ex. 1.1 and 1.2.

  4. Later that afternoon the young girl’s mother made a complaint to the Respondent about the Incident. This appropriately caused the Respondent to investigate the complaint. During that investigation, it obtained a statement from the young girl as the victim, her mother as the complainant, and a man who had contacted the mother immediately following the Incident, doing so seemingly to assist the young girl. It is said that he witnessed the occurrence of the Incident.[2]

    [2]A copy of a statement from both the young girl and the mother appear in the Respondent’s Investigation Report which is Ex. 1.2.

  5. Following the investigation, on 9 April 2020 the Respondent issued the Applicant with a ‘Proposed Regulated Dog Declaration Notice’ under s.90 of the Animal Management…

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Details
Case
[2021] QCAT 276
Decision Date

CaseChat Overview and Summary

In the case of Slade v Cairns Regional Council, the applicant, Slade, sought to challenge a decision by the respondent, Cairns Regional Council, to declare his dog as dangerous under the Animal Management (Dogs) Act 2008 (Qld). The dispute centred on the procedural and substantive correctness of the decision to declare the dog dangerous, and whether the council had the authority to do so under the Act. Slade argued that the council failed to properly consider the evidence and the relevant considerations outlined in the Act before making the declaration.

The court had to determine whether the council exercised its discretion to declare the dog dangerous correctly and whether the council was bound to make the declaration once it had determined that the grounds for such a declaration existed. The court also had to consider whether the council's internal review process complied with the statutory requirements. The decision hinged on the interpretation of sections 89 and 94 of the Animal Management Act, specifically the discretionary powers of the council in making such declarations.

The court found that the council did exercise its discretion correctly in accordance with the Act. The court reasoned that once the council was satisfied that the grounds for declaring the dog dangerous existed, it was required by section 94(2) of the Act to make the declaration. The court emphasised that there was no discretion to refuse to make the declaration if the grounds were met, and that the internal review process was adequately conducted. The applicant's reliance on the first instance decision in Roy was deemed misplaced as the appeal decision was the one that applied to this case.

The court confirmed the council's decision to declare the dog dangerous, holding that the council had the authority to do so under the Act and that the internal review process was correctly followed. The tribunal found no grounds to overturn the council's decision, and thus the declaration stood.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

However, what is telling of the decisions in Roy, both at first instance and on appeal, is the manner in which the interplay between s89 and s94 was dealt with. I need not repeat any of that to which I have already referred in the decision at first instance, and I need only refer to the Appeal Tribunal’s reasons, the relevant part of which I extract here.[52] The words of s 89(1) clearly confer upon a local government a capacity to choose between alternative courses of action: a choice that must be made in the exercise of a discretion. A local government may, subject to compliance with the requirements of Part 4, declare a dog to be dangerous, menacing or restricted. The discretion not to make any declaration at all is confirmed by s 90(1) which states ‘If a local government proposes to make a regulated dog declaration …’ (emphasis added) and then outlines the process available to that end starting with a notice of proposed declaration given to the owner. [53] Section 89(2) sets out the considerations the local government is required to take into account in exercising the discretion conferred by s 89(1) to declare a dog to be dangerous. Section 89(3) sets out the considerations the local government is required to take into account in exercising the discretion conferred by s 89(1) to declaring a dog menacing. [54] If the local government is satisfied about the facts out of which the power to make a declaration about a dog arises, the local government must, by s 94(2) of the AM Act, make the declaration. [55] The ‘relevant ground’ in s 94(2) is a reference to the considerations which must be taken into account in exercising the power to make a regulated dog declaration to which we have earlier referred, that is ss 89(2) and (3). [56] Use of the word ‘must’ in s 94 indicates that the power granted is required to be exercised. There is no discretionary element involved save that the decision maker must be satisfied that the relevant ground under s 89 is made out. If it is not, the regulated dog declaration proposed cannot be made. [45][45]Brisbane City Council v Roy [2020] QCATA 147, [52] to [56]. Footnotes omitted. Emphasis added. All that being said, in my opinion the Applicant’s reliance on the first instance decision in Roy is misplaced. The outcome of the present matter turns on the application of the decision on appeal. This is as the Respondent has submitted. The discretion that the Applicant seeks me to exercise is a discretion I do not have standing in the shoes of the decision-maker. To the extent there was a discretion afforded the Respondent’s decision-makers under the Animal Act it was that which exists under s89(2) of the Act, and one which was spent when the decision was made to issue the Applicant with the Proposed Regulated Dog Declaration Notice. But that is not the Decision now under review. It is the latter decision made under s94(2). Accordingly, what I must only consider is the question of whether, after reviewing all of the Applicant’s representations, I am satisfied that the relevant ground under s89(2) still exists. If I am so satisfied, I must in effect make the regulated dog declaration by confirming the original decision.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Applicant then sought internal review of that decision under Chapter 8 – Part 1 of the Animal Act.[6] By letter dated 8 July 2020, the Respondent informed the Applicant that it had conducted the review of the decision and confirmed the original decision as being correct, providing the Applicant with a statement of reasons for same (the Decision).[7] [6]Ex. 1.7.[7]Ex. 1.8. The Applicant now seeks a review of the Decision in this Tribunal and an order that the Decision be overturned.[8][8]Application filed 5 August 2020. The purpose of this review, arising under s.188 of the Animal Act in conjunction with s.17 to s.20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), is to produce the correct and preferable decision. It is conducted by way of a fresh hearing on the merits.[9] In effect, as the Member constituting this Tribunal for the purposes of the review, I stand in the shoes of the original decision maker. [9]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s.20(2). I am not concerned with the process by which the Decision was reached and whether any error was made in any of the steps taken by the decision-maker.[10] Accordingly, the role of the Respondent is not to advocate for the correctness of the Decision, but rather to assist me in my task of being required to make the correct and preferable decision.[11] In doing so the Respondent primarily refers to the material that was before its decision-maker during the process that led to this hearing, and to have its witnesses confirm their previously filed written statements and make them available for cross-examination, but it may also present other evidence during the hearing by way of other witnesses.[12] [10]During the hearing the Applicant on occasion sought to raise issues that went to the process of the original decision making – e.g. an asserted failure to have served him with a sworn copy of the ‘Oath or Service’ contained in the Respondent’s material at Ex. 1.6 as evidence of service of the Regulated Dog Declaration Notice on the Applicant, and an asserted failure by the decision-maker to have taken photos of the injury sustained by the young girl, or to have visited the Applicant and personally observed the dog. When it was explained to him that this is not a review of the process but a review of the original decision by way of a fresh hearing on the merits, he did not press those issues further.[11]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s.21.[12]QCAT Practice Direction No. 3 of 2013 – para 5(d). Following consideration of the relevant material, I may confirm or amend the Decision, set aside the Decision and substitute my own decision, or set aside the Decision and return the matter for reconsideration by the decision maker.[13] I respectfully adopt the following description of the statutory framework of the Animal Act from the reasoning of the Appeal Tribunal in Brisbane City Council v Roy [2020] QCATA 147 because of its succinctness and clarity.[14][14]Brisbane City Council v Roy [2020] QCATA 147, [20] to [23]. The footnote references are as contained therein at footnotes 25 to 34 but renumbered herein to reflect the sequence of footnotes in these reasons.

Ratio Decidendi

Legal Principle Established

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