Till v Logan City Council

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QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Till v Logan City Council [2018] QCATA 150

PARTIES:

SALESHNI SARIKA TILL
(appellant)
v

LOGAN CITY COUNCIL

(respondent)

APPLICATION NO/S:

APL367-16

ORIGINATING APPLICATION NO/S:

GAR286-15

MATTER TYPE:

Appeals

DELIVERED ON:

14 September 2018

HEARING DATE:

25 September 2017

HEARD AT:

Brisbane

DECISION OF:

Senior Member Howard, Presiding

Member Hughes

ORDERS:

1.   Leave is granted to Saleshni Sarika Till to appeal the Tribunal’s decision dated 10 October 2016 in relation to costs.

2.   The appeal is allowed.

3.    (i) The Tribunal’s orders dated 10 October 2016   numbered 2 and 3 are set aside;

(ii Pursuant to section 23 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) the Logan City Council is invited to reconsider its decisions to issue Regulated Dog Declarations and Destruction Order Information Notices dated 17 April 2015 for ‘Indi’ and for ‘Cooper’;

(iii)  The Logan City Council must file in the Tribunal a copy of its decisions on the reconsideration at the same time that its sends the decisions to Saleshni Sarika Till;

(iv)  The review application and the application for costs are remitted to the Tribunal for reconsideration.

(v)             The Tribunal may make such directions for the filing of further evidence and submissions as it sees fit.

(vi)  The proceeding in GAR062-16 GAR286-15[1] must be listed for a directions hearing at least 42 days after the date of these orders of the Appeal Tribunal.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – GENERALLY  – where parties agreed decision was invalid – where the Tribunal did not determine whether decisions were reviewable – where the Tribunal did not determine whether it had jurisdiction – where the Tribunal made orders on the basis of no jurisdiction – whether the Tribunal had jurisdiction – whether invalid decisions are reviewable

Animal Management (Cats and Dogs) Act 2008 (Qld), s 95, s 185A, s 188
Queensland Civil and Administrative Tribunal Act 2009 (Qld),s 17, s 20, s 22, s 23, s 24, s 60, s 90, s 102, s 142, s 146, s 150, s 187

Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 328
Harrison v President of the Industrial Court of Qld & Ors [2016] QCA 89
House v The King (1936) 55 CLR 499
JM Kelly (Project Builders) Pty Ltd v Queensland Building Services Authority [2013] QCAT 502
McNab ConstructionsAustralia P/L v Queensland Building Services Authority [2013] QSC 057
Public Service Association of South Australia Inc v Industrial Relations Commission (SA) & Anor. (2012) 128 ALD 463
R v Blakeley; Ex parte the Association of Architects, Engineers, Surveyors and Draughtsmen of Australia (1950) 82 CLR 54
Skaines v Kovac Enterprises [2007] 1 Qd R 98
Till v Logan City Council [2016] QCAT 363

APPEARANCES & REPRESENTATION:

Applicant:

Mr RW Haddrick of Counsel instructed by Mahoneys solicitors

Respondent:

Mr BJ Power of Counsel instructed by Minter Ellison solicitors

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Details
Case
[2018] QCATA 150
Decision Date

CaseChat Overview and Summary

In the case of Till v Logan City Council, the appellant, Saleshni Sarika Till, appealed the decision of the Queensland Civil and Administrative Tribunal (QCAT) which dismissed her application for review of certain decisions made by the Logan City Council. The Council had issued Regulated Dog Declarations and Destruction Order Information Notices for two dogs, 'Indi' and 'Cooper', which the appellant contested on the grounds that the decisions were invalid. The primary issue before the court was whether the Tribunal had jurisdiction to review the decisions of the Council, and if so, whether the decisions were valid. The appellant argued that the Tribunal erred in law by dismissing her application without determining whether it had jurisdiction or whether the decisions were reviewable.

The court held that the Tribunal had jurisdiction to review the decisions and that the decisions were indeed reviewable. The court found that the Tribunal had failed to properly consider whether it had jurisdiction to review the decisions, and whether the decisions were reviewable under the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). The court further held that the Tribunal was obliged to resolve jurisdictional facts and determine whether it had jurisdiction, which required a statutory construction exercise. The court noted that the Tribunal had not considered the proper construction of s 17 of the QCAT Act, which provides for the Tribunal's review jurisdiction. The court also noted that the Tribunal had not considered whether the decisions were affected by jurisdictional error, which was inconsistent with the purpose of the legislation as revealed in its objects.

The appeal was allowed, and the Tribunal's orders dated 10 October 2016 numbered 2 and 3 were set aside. The Logan City Council was invited to reconsider its decisions to issue Regulated Dog Declarations and Destruction Order Information Notices dated 17 April 2015 for 'Indi' and for 'Cooper'. The Council was required to file a copy of its decisions on the reconsideration at the same time that it sent the decisions to the appellant. The review application and the application for costs were remitted to the Tribunal for reconsideration, and the proceeding was listed for a directions hearing at least 42 days after the date of these orders of the Appeal Tribunal. The Tribunal was directed to make such directions for the filing of further evidence and submissions as it saw fit.

Orders

Orders of the court

1. Leave is granted to Saleshni Sarika Till to appeal the Tribunal’s decision dated 10 October 2016 in relation to costs.

2. The appeal is allowed.

3. (i) The Tribunal’s orders dated 10 October 2016 numbered 2 and 3 are set aside;

(ii Pursuant to section 23 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) the Logan City Council is invited to reconsider its decisions to issue Regulated Dog Declarations and Destruction Order Information Notices dated 17 April 2015 for ‘Indi’ and for ‘Cooper’;

(iii) The Logan City Council must file in the Tribunal a copy of its decisions on the reconsideration at the same time that its sends the decisions to Saleshni Sarika Till;

(iv) The review application and the application for costs are remitted to the Tribunal for reconsideration.

(v) The Tribunal may make such directions for the filing of further evidence and submissions as it sees fit.

(vi) The proceeding in GAR062-16 GAR286-15[1] must be listed for a directions hearing at least 42 days after the date of these orders of the Appeal Tribunal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 17 of the QCAT Act provides:17 Generally(1) The tribunal’s review jurisdiction is the jurisdiction conferred on the tribunal by an enabling Act to review a decision made or taken to have been made by another entity under that Act.(2) For this Act, a decision mentioned in subsection (1) is a reviewable decision and the entity that made or is taken to have made the decision is the decision-maker for the reviewable decision. In making its decision, the Tribunal relied upon and accepted the parties’ agreement that the decisions had no legal effect. It treated this, it says, as ‘evidence’ that there was no valid decision.[19] Accepting as a matter of evidence that the decisions had no legal effect, the learned Member determined that there was no reviewable decision, the Tribunal’s review jurisdiction was not enlivened, and that therefore, the review application must be dismissed. [19]Ibid [28]. The Tribunal’s key finding that ‘the only evidence’ before it was to the effect that there was no valid decision. As a consequence, the Tribunal considered there was no decision to review, its review jurisdiction was not enlivened and the application must be dismissed. It appears the learned Member considered that because the parties agreed that the decisions made by the Council had no legal effect, they could not be reviewable decisions for the purposes of s 17 of the QCAT Act. With due respect to the learned Member, the parties’ agreement about the effect of the decisions did not mean that there was no decision for the purposes of enlivening the Tribunal’s review jurisdiction. The Tribunal was obliged to resolve jurisdictional facts and determine whether it had jurisdiction.[20] To determine whether it had jurisdiction the Tribunal’s task required a statutory construction exercise. The proper construction of a statutory provision is a question of law. Although the Tribunal adverted briefly to s 17 of the QCAT Act, it did not consider the proper construction of that provision. [20]R v Blakeley; Ex parte the Association of Architects, Engineers, Surveyors and Draughtsmen of Australia (1950) 82 CLR 54, 90; Public Service Association of South Australia Inc v Industrial Relations Commission (SA) & Anor. (2012) 128 ALD 463; Harrison v President of the Industrial Court of Qld & Ors [2016] QCA 89; .Skaines v Kovac Enterprises [2007] 1 Qd R 98, 100-101. In considering the merits review jurisdiction of the Administrative Appeals Tribunal, the Federal Court has said:[21] It is to be noted that the subjects of the review are decisions. If an administrator makes a particular decision in the course of government administration, then whether or not he is authorised to do so, there is in fact a decision made. The fact that that decision cannot affect legal rights or liabilities is irrelevant to that fact.[21]Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 328 at 346. Further, the then Deputy President of QCAT in discussing the construction of s17 of the QCAT Act, relevantly said:[22][22]JM Kelly (Project Builders) Pty Ltd v Queensland Building Services Authority [2013] QCAT 502, [50-51], [57-59].[50] The expression ‘decision’ is not otherwise defined by the Act. Nor does the Act explain the meaning to be given to the expression ‘made or taken to have been made’. In my view, the inclusion within the Tribunal‘s review jurisdiction of decisions taken to have been made under an enabling act recognises that under some enabling acts there may be provisions which deem a decision to have been made in circumstances in which no decision has in fact been made.[51] Unlike the legislation considered in Zubair, s 17(1) does refer to a decision made, or taken to be made, ‘under the (enabling) act’. Notwithstanding that the Court in Zubair particularly noted the absence of such a qualification as supporting its conclusion that an invalid decision was reviewable, I am of the opinion that s 17 should not be construed so as to limit reviewable decisions under the QCAT Act to only those made validly under an enabling act.…[57] In my view, a construction of s 17 which required a determination of whether any decision which a party applied to have reviewed in the Tribunal was affected by jurisdictional error would not be consistent with the purpose of the legislation as revealed in its objects.[58] I am also of the view that the extension of the Tribunal‘s jurisdiction to review decisions not in fact made, but taken to be made, strongly suggests that the intention of Parliament was to confer broad review jurisdiction upon the Tribunal. It would seem quite inconsistent, and an odd result, that the Tribunal could exercise its review jurisdiction in certain cases in which there was no decision at all, but where there was a decision made in fact, could only review that decision if it was made in valid exercise of the powers under the enabling act.[59] This construction is also supported by s 18(1) of the QCAT Act which provides:18 When review jurisdiction exercised(1) The tribunal may exercise its review jurisdiction if a person has, under this Act, applied to the tribunal to exercise its review jurisdiction for a reviewable decision.

Ratio Decidendi

Legal Principle Established

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