Van Cuylenburg v Tablelands Regional Council
[2012] QCATA 60
•5 April 2012
| CITATION: | Van Cuylenburg v Tablelands Regional Council [2012] QCATA 60 |
| PARTIES: | Susan Van Cuylenburg (Applicant/Appellant) |
| v | |
| Tablelands Regional Council (Respondent) |
| APPLICATION NUMBER: | APL382-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Townsville |
| DECISION OF: | Honourable K A Cullinane, Member |
| DELIVERED ON: | 5 April 2012 |
| DELIVERED AT: | Townsville |
| ORDERS MADE: | [1] Appeal allowed. [2] Determination of 24 June 2011 set aside. [3] Remit the matter for hearing before a differently constituted tribunal. |
| CATCHWORDS: | Appeal on question of law – review of decision about menacing dog declaration – Part 4 involves a single process with multiple steps –applicant for review is entitled to have reviewed the decisions taken at each step Animal Management (Cats and Dogs) Act 2008, Part 4 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
In this case, the Appellant Susan Van Cuylenburg, appeals against a decision of the Tribunal delivered on 24 June 2011 on a question of law. In addition, she seeks leave to appeal under section 142(3)(b) of the Queensland Civil and Administration Tribunal Act 2009 (the Act) in respect of what is said to be a question of mixed law and fact.
In the result, it is not necessary to say anything further about the second of these two matters.
Division 1 of Part 8 of Chapter 2 of the Act deals with such appeals. The powers of the Tribunal on appeal in respect of an appeal on a question of law only are provided for in section 146 of the Act.
The decision was given on 24 June 2011.
It concerned a hearing by way of review by the Tribunal of menacing dog declarations of the Respondent in relation to two rottweiler dogs owned by the Appellant under Part 4 of Chapter 4 of the Animal Management (Cats and Dogs) Act 2008, as amended.
It is desirable if I set out the relevant provisions of the Animal Management (Cats and Dogs) Act 2008. These are sections 90, 91, 92, 93 and 94. These provide respectively as follows:
90Notice of proposed declaration
(1)If a local government proposes to make a regulated dog declaration it must give any owner of the dog a notice (a proposed declaration notice) stating-
(a) the following details for the dog-
(i)breed;
(ii)colour;
(iii)sex;
(iv)any other noticeable distinguishing features or marks; and
(b)the local government proposes to declare the dog to be a regulated dog; and
(c)the type of regulated dog declaration proposed to be made, other than for a restricted dog; and
(d)if the proposed declaration is for a dangerous dog declaration or menacing dog declaration – reasons for the proposed declaration; and
(e)an owner of the dog may make, within a stated period, written representations to show why the proposed declaration should not be made; and
(f)if the dog is a restricted dog, that-
(i)the representations may include a written opinion from a veterinary surgeon or other evidence about the dog’s breed; and
(ii)under section 71, a person must not, unless the person has a reasonable excuse, own, or be a responsible person for, a restricted dog unless the relevant local government has issued a restricted dog permit for the dog.
(2)The stated period must end at least 14 days after the proposed declaration notice is given.
(3)The proposed declaration notice may be accompanied by a written opinion from a veterinary surgeon or other evidence about the dog’s breed.
91Proposed declaration notice does not limit other powers
The giving of a proposed declaration notice does not limit an authorised person’s powers under-
(a)chapter 5; or
(b)a regulation.
92Withdrawing proposed declaration notice
The local government may withdraw the proposed declaration notice by giving notice of the withdrawal to any owner of the dog the subject of the notice.
93Owner’s obligations if proposed declaration notice in force
(1)Each owner of, and responsible person for, the dog the subject of the proposed declaration notice must ensure the permit condition imposed under schedule 1, section 3, is complied with for the dog.
Maximum penalty – 75 penalty units.
Notes-
· schedule 1, section 3 (Muzzling and effective control in place that is not relevant place)
· See also sections 66 (Prohibition on supply of restricted dog) and 67 (Prohibition on supply of declared dangerous dog or declared menacing dog).
(2)Subsection (1) ceases to apply if the notice is withdrawn.
94Making declaration
(1)The local government must consider any written representations and evidence accompanying them within the period stated in the proposed declaration notice.
(2)If, after complying with subsection (1), the local government is satisfied that the relevant ground under section 89 still exists, it must make the regulated dog declaration for the dog.
The relevant findings made by the Tribunal appear in paragraphs 5-12 of the reasons:
“[5]The applicants own two Rottweiler dogs named Casius and Samson. On the 30th of January 2010 the two dogs left the property, most likely due to the front gate failing to be correctly latched after visitors entered. They wandered down the road and got into a fight with a neighbour’s Rottweiler by the name of Neo owned by a Mr Morgan Blake. Both Neo and Samson were injured. During the hearing there was some dispute whether the applicant’s dogs were in fact the aggressors in this incident. It is immaterial for the purposes of this review as to which dog instigated the fight. It was accepted by all parties that there was an incident involving all three dogs which resulted in injury. At no time did the applicants allege it was not their dogs involved in the incident or that they had not left their property.
[6]It was submitted by the applicants that the owner of Neo became very aggressive towards the applicant’s husband following the dog fight. An investigation occurred into the incident and statements were taken from a number of people. The applicants reside on a five acre allotment which is fully fenced. The neighbouring properties are all of similar size. Many are unfenced.
[7]Ms Katrina Muller, Law Officer, from the Tablelands Regional Council investigated the complaint. She interviewed witnesses as well as the applicants. She took photographs of the applicant’s dogs and photographs of Neo. She observed the applicant’s dogs to be friendly. The owner of Neo attended the Council at Mareeba and withdrew her complaint about the applicant’s dogs.
[8]After speaking to witnesses and taking statements, Katrina Muller, Law Officer, reached the view that the Van Cuylenberg’s dogs were responsible for the attack. A Dangerous Dog notice was issued to the applicants for both dogs.
[9]Following the issuing of the notice the applicant approached the Council asking them to reconsider the notice. The applicant made a number of phone calls regarding the issuing of the notices as the owner of Neo had withdrawn the complaint. It was the applicant’s testimony that she was not advised of how to appeal the decision and she found it difficult to get in contact with the appropriate person in the Council to address her concerns to. A meeting was held on the 15th of February 2010 with the decision maker and the council manager. The applicant asked for a review of the decision. Following this meeting no response was received from the respondent and the applicant sought further contact with the respondent. A second meeting was held on 11 March 2010. Still no decision was made. On 12th May 2010 a decision was made to issue a Menacing Dog notice to the applicant in respect of both dogs.
[10]A number of people provided statements in support of the applicant and the two dogs in question. Adrienne Easton was the vet who treated the two injured dogs following the incident. She gave oral evidence that both dogs owned by the applicant were old dogs and their condition was commensurate with their age. She stated that dogs had not been aggressive in her presence.
[11]Kerry Ramsden, dog behaviouralist, provided oral evidence that she had been doing some work with both dogs and that they were capable of being socialised to reduce any risk of a similar incident.
[12]Todd Newman is an electrician who has carried out a lot of work at the applicant’s residence. Mr Newman stated that the dogs were welcoming and were not at all intimidating.”
The Respondent contended and the Tribunal accepted that on its proper construction Part 4 provided in sections 89 and 94 for the making of two separate and distinct decisions.
The Tribunal accepted that as a decision under section 94 in referring to the decision of 12 May 2010 the Appellant identified the decision to be reviewed.
On appeal the Respondent conceded that the Tribunal misconstrued the provisions of Part 4 in reaching the above conclusion. It nevertheless contended that the decision should stand.
The Respondent’s concession is in my view correct. Part 4 provides for a single process consisting of a number of steps.
On an application to review the decision under section 94 an applicant is entitled to have reviewed the decisions taken at each step.
The Respondent must determine to make a declaration in respect of a dog (subject to the following provisions of Part 4). It must take the steps for which section 90 provided. It must consider the written representations and accompanying evidence within the time provided for. If after considering such material it is satisfied the grounds to make the declaration still exist it must proceed to make the declaration.
By confining consideration to the decision under section 94 the Tribunal has unnecessarily limited the Appellant’s right of review.
The order of the Tribunal must be set aside.
It is open to this Appeal Tribunal to set aside the decision and substitute its own. However the matter is one involving consideration of a body of evidence both viva voce and written. In these circumstances I think the appropriate course to take is to act under section 146(c) of the Act and remit the matter.
In the circumstances it would be desirable if upon the re-hearing the Tribunal was differently constituted.
The formal orders are:
[1] Appeal allowed.
[2] Determination of 24 June 2011 set aside.
[3] Remit the matter for hearing before a differently constituted Tribunal.
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