Till v Logan City Council - [2016] QCAT 363

CITATION:

Till v Logan City Council [2016] QCAT 363

PARTIES:	Saleshni Sarika Till (Applicant)
v
Logan City Council (Respondent)

APPLICATION NUMBER:

GAR286-15

MATTER TYPE:

General administrative review matters

HEARING DATE:

1 March 2016
11 May 2016

HEARD AT:

Brisbane

DECISION OF:

Member Gardiner

DELIVERED ON:

10 October 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application for miscellaneous matters filed 29 April 2016 is dismissed.

2. The review application filed on 23 November 2015 is dismissed.

3. The application for costs is dismissed.

CATCHWORDS:

ADMINISTRATIVE REVIEW – DANGEROUS DOG DECLARATION – where concurrent regulated dog declarations and destruction notices issued – where parties agreed a jurisdictional error – where parties agreed no decision at all – where applicant sought declarations to estop Council from future action against the dogs – whether tribunal has power under the review jurisdiction to make the orders sought

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 17, s 24, s 47, s 100, s 102, s 164
Animal Management (Cats and Dogs) Act 2008 (Qld) s 89, s 90, s 94, s 194, s 195, s 196

Herron v The Attorney General for New South Wales (1987) 8 NSWLR 601 followed
Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364 followed
Queensland All Codes Racing Industry Board v Abbott (No 2) [2016] QCATA 49 followed
Van Cuylenburg v Tablelands Regional Council [2012] QCAT 406 followed
Miller v Cairns Regional Council [2012] QCAT 665 followed

APPEARANCES:

REPRESENTATIVES:

APPLICANT:

Saleshni Sarika Till represented by Mr R.W. Haddrick of Counsel instructed by Mahoneys Lawyers

RESPONDENT:

Logan City Council represented by Mr M. McLoughlin

REASONS FOR DECISION

On 19 October 2015 the Logan City Council declared two dogs owned by Saleshni Sarika Till – “Indi” and “Cooper” – to be regulated dangerous dogs.
The Council issued concurrent regulated dog declarations and destruction notices to Ms Till. These declarations were made after a requested review by Ms Till of an earlier decision concerning each dog and was the result of an alleged attack by the dogs on another neighbouring dog on 2 March 2015.
Ms Till filed an application to review these decisions on 20 November 2015.
The application came before the tribunal exercising its review jurisdiction over two days, 1 March and 11 May 2016.
Section 24 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) sets out the function of this Tribunal on review. The Tribunal may confirm or amend the decision, set aside the decision and substitute its own, or set aside the decision and return the matter for reconsideration to the decision maker with directions if appropriate.[1]
[1]QCAT Act s 24(1).
The purpose of the review is to produce the correct and preferable decision and is heard and determined by way of a fresh hearing on the merits.[2]
[2]Ibid, s 20.
Prior to embarking on a hearing of the substantive review application, a preliminary matter was raised by Ms Till concerning procedural errors she alleged were made by the Council…

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: [2016] QCAT 363
Decision Date: 10 October 2016

CaseChat Overview and Summary

In the matter of Till v Logan City Council, the applicant sought declarations to prevent the respondent from taking any further action against two dogs identified as Cooper and Indi. The Council had issued regulated dog declarations and destruction notices for the dogs, which were subsequently affirmed by the Council. The applicant contested the validity of these actions, arguing that the Council had made jurisdictional errors, resulting in no valid decision being made. The Council conceded that the decisions were indeed flawed and that there was no valid decision to review.

The central issue before the Tribunal was whether there was a decision to review, given that both parties agreed that the Council's actions were flawed and amounted to no decision at all. The Tribunal noted that under section 17 of the Queensland Civil and Administrative Tribunal Act 2009, the tribunal's review jurisdiction requires the existence of a decision. Given the agreement between the parties that there was no valid decision, the Tribunal concluded that its review jurisdiction was not triggered. The Tribunal further considered the Council's submission that, in the absence of a decision to review, the proceedings should be struck out as lacking in substance. The applicant argued that she should be allowed to resist the setting aside of the purported decision due to her proactive role in bringing the Council's error to its attention before the first hearing.

The Tribunal ultimately dismissed the application for miscellaneous matters, the review application, and the application for costs. It held that since there was no valid decision to review, the proceedings were effectively without merit and should be dismissed. The Tribunal did not find it necessary to address the issue of costs, given its conclusion on the lack of a decision to review.

Orders

Orders of the court

1. The application for miscellaneous matters filed 29 April 2016 is dismissed.

2. The review application filed on 23 November 2015 is dismissed.

3. The application for costs is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The first issue to be decided by this Tribunal is a basic question – is there a decision to review? Ms Till submits that the effect of the errors referred to in paragraph 8 of these reasons is that :Each of the errors clearly shows that the correct and preferable outcome is to conclude that, as a matter of law:(a)there was no declaration that the dog identified as a black entire male Wolfhound Cross, named “Cooper”, is a dangerous dog; and(b)there was no declaration that the dog identified as a desexed female Greyhound Cross, named “Indi”, is a dangerous dog; and(c)the Destruction Orders affirmed on 7 December 2015 in respect of each of the dogs mentioned in (a) and (b) above, are without a lawful basis. The Council agrees with this saying[3]:1. Council agrees with the submissions contained throughout the Applicant’s Further Submissions dated 23 June 2016 (the submissions filed 18 July 2016) that:(a)The purported internal review decision by Council was tainted by jurisdictional error and is therefore no decision at all;(b)The purported notices issued by Council on 17 April 2015 were not notices under the Act and therefore were of no effect; and(c)Because there were no declarations made and there was no decision made by internal review there is “nothing to be confirmed, amended or set aside by the Tribunal (paragraph 56(a) of the Applicant’s Further Submissions). [3]At paragraphs 30-31 of the submissions filed 18 July 2016. Ms Till seemingly also agrees, saying that “the power to confirm, amend or set aside all require there to be “a decision”, as the text of subs 24(1)(a), (b) and (c) clearly indicate. As has been argued in paragraphs [46] to [51] inclusive, there is no decision in the eyes of the law (by reason of jurisdictional error), therefore there is nothing to be confirmed, amended, or set aside by the Tribunal’[4].[4]Ibid paragraph 56(a). Section 17 of the QCAT Act states that 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 the Act. It follows then, that the first requisite is a decision. On this point, both parties agree - there is no decision. The logical conclusion then is that there is no review jurisdiction enlivened. The Council submits on the basis that both parties agree there is no decision to be reviewed, the only decision this tribunal ought to make is that the proceeding is lacking in substance[5] and pursuant to section 47(2)(a) of the QCAT Act, should be struck out. The only issue left for determination by this tribunal, in the Council’s view, is that of costs.[5]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 47(1)(b). Ms Till submits that, as she correctly brought the Council’s error to the Council’s attention before the first hearing and invited the Council to desist in its prosecution of the matter,[6] it is reasonable for her to be able to resist the setting aside of the purported decision. This thereby allows the Council to make the decision afresh, and denies Ms Till any advantage for correctly bringing the error to the Council’s attention prior to the first hearing. [6]Affidavit of M Downes, 23 June 2016, Exhibit page 1.

Ratio Decidendi

Legal Principle Established

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