Thorne v Brisbane City Council - [2020] QCAT 239

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Thorne v Brisbane City Council [2020] QCAT 239

PARTIES: STEPHANIE THORNE

(applicant)

v

BRISBANE CITY COUNCIL

(respondent)

APPLICATION NO/S:

GAR195-19

MATTER TYPE:

General administrative review matters

DELIVERED ON:

29 June 2020

HEARING DATES:

6 February 2020; 7 February 2020

HEARD AT:

Brisbane

DECISION OF:

Member Poteri

ORDERS:

The destruction order for the destruction of Karmae made by the Brisbane City Council on 30 April 2019 pursuant to s 127 of the Animal Management (Cats and Dogs) Act 2008 (Qld) is confirmed.

CATCHWORDS:
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where a regulated declared dangerous dog has been seized and a destruction order has been made – where allegations that the dog has seriously attacked three dogs on three separate occasions – where the issue of identification of the attacking dog is disputed by the owner

Animal Management (Cats and Dogs) Act 2008 (Qld), s 3, s 4, s 59, s 127

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20

Thomas v Ipswich City Council [2015] QCATA 97
Nguyen v Brisbane City Council Animal Management [2017] QCATA 121

Cutbush v Scenic Rim Regional Council [2019] QCAT 80

APPEARANCES & REPRESENTATION:

Applicant:

J Manley

Respondent:

A Swindley, Lawyer

EXHIBITS:

(1)      Two photographs and maps of Sanananda Street, Darra.

(2)      Two photographs of a Shar Pei dog by the name of Kenny.

(3)      Photographs of the enclosure for Karmae on the Applicant’s property at 38 Sanananda Street, Darra.

(4)      Transcript of a recorded conversation between A Johnson and J Lynch dated 14/7/2018.

(5)      Transcript of a recorded conversation between G Rasleigh and J Lynch dated 18/7/2018.

(6)      Photograph of Karmae.

(7)      Copy of an email from Ms Lewis of Ipswich City Council and the Applicant dated 19/10/2016.

(8)      Agreed Chronology of relevant events 23/8/2016 to 11/9/2019.

(9)      Transcript of the recorded conversations between B Tatters and J Mills dated 28/3/2019.

(10)    Copy of the certificate of registration of Karmae effective from 18/8/2019 and 17/8/2020.

REASONS FOR DECISION

Representation, Proceedings and Background

This matter was heard on 6 and 7 of February 2020. At the commencement of the hearing, Ms J Manley applied for leave to appear for the Applicant. Ms Manley is a lay person and is a relative by marriage of the Applicant, who was not present during the hearing. I spoke to the Applicant by remote conferencing who advised me that she could not afford to take time off work and Ms Manley could represent her interests at the hearing. I explained the shortcomings with this process. Ms Swindley, the Respondent’s representative did not object to Ms Manley appearing on behalf of the Applicant. I agreed to Ms Manley representing the Applicant, however, I imposed the condition that I would discuss the progress of the hearing with the Applicant after each main break in the proceedings. I carried out this process during the hearing and the Applicant advised me that she was happy with the way the hearing…

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.

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Details

Case: [2020] QCAT 239
Decision Date: 29 June 2020

CaseChat Overview and Summary

In the case of Thorne v Brisbane City Council, the respondent, Brisbane City Council, had issued a destruction order for a dog named Karmae, which had been declared dangerous. The applicant, Thorne, the owner of the dog, contested the destruction order. The dispute was heard and determined by the Queensland Civil and Administrative Tribunal (QCAT). The central issue before the tribunal was whether the dog Karmae was correctly identified as the dog that had seriously attacked three other dogs on three separate occasions. The owner disputed this identification, arguing that there were inconsistencies in the identification process.

The tribunal considered the evidence provided by the council, including witness statements, photographs, and expert testimony, against the arguments presented by the owner. The tribunal found that the evidence provided by the council was sufficient to establish that Karmae was the dog that had attacked the other dogs. The tribunal concluded that the identification of Karmae was accurate and reliable. The tribunal also found that the council had followed the correct procedures in issuing the destruction order, and that the order was therefore valid.

As a result of the tribunal's decision, the destruction order for Karmae made by the Brisbane City Council on 30 April 2019 was confirmed. The tribunal's decision was based on its finding that the identification of Karmae as the attacking dog was accurate, and that the council had followed the correct procedures in issuing the destruction order. The tribunal's decision is final and binding on the parties.

Orders

Orders of the court

The destruction order for the destruction of Karmae made by the Brisbane City Council on 30 April 2019 pursuant to s 127 of the Animal Management (Cats and Dogs) Act 2008 (Qld) is confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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