Toward v Logan City Council
[2014] QCAT 6
•15 January 2014
| CITATION: | Toward v Logan City Council [2014] QCAT 006 |
| PARTIES: | Benjamin Warren Toward (Applicant) |
| v | |
| Logan City Council (Respondent) |
| APPLICATION NUMBER: | APL386-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member O’Callaghan |
| DELIVERED ON: | 15 January 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for leave to appeal and appeal dismissed. |
| CATCHWORDS: | APPEAL – where owner of dogs appeal decision to confirm council decision to declare dogs dangerous – where no error in exercise of discretion Animal Management (Cats and Dogs) Act 2005 s 89 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Mr Toward is the owner of two Bull Mastiff cross breed dogs named “Ghost” and “Bear”.
Ghost and Bear were declared dangerous by the Logan City Council after they were involved in two separate attacks on miniature horses. Mr Toward applied to QCAT to review that decision. On review the Tribunal confirmed the decision. Mr Toward is not happy with the decision and seeks to appeal it.
In his application, Mr Toward does not identify any error which he considers was made by the Tribunal. That said, he appears to be asking that his application be reconsidered because of steps he has now taken to ensure the dogs do not attack small horses in the future.
This approach is carried through into his written submissions in support of his application for leave to appeal.
He says:
· he no longer has his horses at Carbrook next door to the horses involved. He has moved them to Redland Bay;
· the horse that was the victim of the attack is now in good health;
· he has taken measures to ensure the dogs will not come into contact with small horses;
· one dog has now been desexed and the other will be; and
· he has taken advice from an animal behaviourist and now understands how he can keep the dogs under control.
An appeal is not an opportunity for the losing party to have a second chance to present his case.
Mr Toward seeks to present further evidence from the animal behaviourist, Dr Jennens who, gave evidence at the original hearing. This material is in the form of an email from Dr Jennens to Mr Toward and sets out why Dr Jennens considers the decision of the Tribunal was wrong.
Dr Jennens says, amongst other things, that the Member erred in his findings that the dogs posed a threat to small animals and presumably that this finding lead to an erroneous exercise of the learned Member’s discretion.
The Appeal Tribunal will only accept fresh evidence (in this case the further report from Dr Jennens) if it was not reasonably available at the hearing.[1]
[1] QCAT Act ss 137 and 138.
To the extent that this email details Dr Jennens opinion on the circumstances of the attack it is simply an embellishment or repetition of the evidence which he gave at the hearing and should be disregarded.
I am prepared however to accept his submission about the error of fact as being a submission (not evidence) on the part of Mr Toward and will address this as the only alleged error raised in his application for leave to appeal.
This is an alleged error of fact and as such leave to appeal is necessary.[2]
[2] QCAT Act s 142(3)(b).
Leave to appeal would ordinarily only be granted where there is some question of general importance on which further argument, and a decision of the Appeal Tribunal would be to the public advantage: or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief.
Another question sometimes asked is leave necessary to correct a substantial injustice to the applicant caused by some error.
Here the only error identified is that the Member made a finding against the evidence that the dogs posed a danger to small animals.
The evidence before the Tribunal was that one and possibly two of the dogs had attacked a small horse in August 2012. The horse had to be put down as a consequence of its injuries. Both dogs were then involved in the second attack on a small horse in October 2012 which resulted in the horse sustaining injuries which required the attention of a vet. Whereas Mr Toward and Dr Jennens played down the seriousness of the injuries the photos put before the Tribunal revealed wounds to the horses sheath and penis and neck and nose.
All parties accepted that it was open to the Tribunal to find as the Council did that the threshold test for making of a dangerous dog declaration had been reached. That is the dogs had seriously attacked or acted in a way that caused fear to a person or another animal.[3]
[3] Animal Management (Cats and Dogs) Act 2005 s 89(2)(a).
Mr Toward says however that the learned Member had a discretion as to whether to declare the dogs dangerous and committed an error in exercising that discretion because in doing so he found the dogs were a danger to small animals.
I do not accept that the learned Member erred in making this finding of fact. It was open to him on the basis of the injuries sustained to the horses to find that the dogs did present a future danger.
In summary it is clear that Mr Toward is not happy with the learned Member’s decision however that in itself is not a basis to give leave to appeal. An appeal or application for leave to appeal is not an opportunity to have the application heard again by raising further argument. Mr Toward has not identified any error other than that referred to in Dr Jennens report namely that the Member erred in finding the dogs if not regulated presented a danger to small animals. I do not consider this was an error. The finding was open on the evidence of the dogs attack on the small horses.
There is no error in the Member’s exercise of discretion in determining that the decision of the Council to declare the dog’s dangerous should be confirmed. There is no reasonable prospect of substantive relief for Mr Toward on appeal. There is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal is refused.
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