Van Cuylenburg v Tablelands Regional Council - [2012] QCATA 60

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
Queensland Civil and Administration Tribunal Act 2009, s 146

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…

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: [2012] QCATA 60
Decision Date: 5 April 2012

CaseChat Overview and Summary

Van Cuylenburg appealed against the determination of the Local Government Act Tribunal of 24 June 2011, which dismissed his application for review of a menacing dog declaration made by the Tablelands Regional Council. The Council had made the declaration under the Animal Management (Cats and Dogs) Act 2008, following the attack by Van Cuylenburg’s dog on a person. The Tribunal had found that the Council had followed the correct procedure in making the declaration, and the application for review was dismissed. Van Cuylenburg appealed against the Tribunal’s determination, contending that the Tribunal had erred in law by failing to review the whole process for making the declaration. The Council opposed the appeal, contending that the Tribunal had correctly limited its review to the merits of the decision to make the declaration.

The appeal required the Court to consider the scope of review of a decision to make a menacing dog declaration under the Animal Management (Cats and Dogs) Act 2008. The Court had to determine whether the Tribunal was correct to limit its review to the merits of the decision, or whether it should have reviewed the whole process for making the declaration, including the decision to give the proposed declaration notice. The Court had to consider the relevant provisions of the Act, including sections 90 to 94, which set out the process for making a regulated dog declaration. The Court also had to consider the appropriate scope of review under the Judicial Review Act 1990.

The Court held that the Tribunal had erred in law by failing to review the whole process for making the declaration. The Court found that the relevant provisions of the Act set out a single process with multiple steps, and that the applicant for review was entitled to have reviewed the decisions taken at each step. The Court held that the Tribunal had limited its review to the merits of the decision to make the declaration, without considering whether the Council had followed the correct procedure in giving the proposed declaration notice, and in considering the written representations and evidence accompanying them. The Court held that this was an error of law, as the Tribunal was required to review the whole process for making the declaration. The Court allowed the appeal, set aside the Tribunal’s determination, and remitted the matter for hearing before a differently constituted tribunal.

Orders

Orders of the court

[1] Appeal allowed.

[2] Determination of 24 June 2011 set aside.

[3] Remit the matter for hearing before a differently constituted tribunal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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 powersThe 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 noticeThe 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: