Van Cuylenburg v Tablelands Regional Council
[2010] QCAT 274
•17 June 2010
| CITATION: | Van Cuylenburg v Tablelands Regional Council [2010] QCAT 274 |
| PARTIES: | Susan VAN CUYLENBURG |
| v | |
| TABLELANDS REGIONAL COUNCIL |
| APPLICATION NUMBER: | GAR182-10 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 17 June 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, senior member |
| DELIVERED ON: | 17 June 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | Stay refused |
| CATCHWORDS : | Application for stay – section 22 of Queensland Civil and Administrative Tribunal Act 2009 |
APPEARANCES and REPRESENTATION (if any):
The hearing took place on the papers in the absence of the parties.
REASONS FOR DECISION
An application was made to the Tribunal on 19 June 2010 by Susan Van Cuylenburg (the applicant) seeking a review of a decision of the Tablelands Regional Council (the respondent) made on 12 May 2010 to declare two dogs owned by her to be regulated dogs under the Animal Management (Cats and Dogs) Act 2008. The applicant also sought a stay of the decision under review.
Section 22 of the Queensland Civil and Administrative Tribunal Act 2009 provides that the Tribunal can make an order to stay a decision only if it considers it desirable after having regard to the interests of any person whose interests may be affected by the making of, or declining of, a stay order, having regard to any submissions made to the Tribunal by the decision maker and having regard to the public interest.
Ms Van Cuylenburg submitted that complying with the Regulated Dog Declaration Notice for Menacing Dogs would impose unreasonable and harsh conditions on her in circumstances where it is not reasonable or warranted pending the determination of the application for review. She submitted that the victim of the attack alleged to have been perpetrated by her dogs had left the area, her dogs were securely contained within a fenced and gated yard with a bolt having been affixed to the gate subsequent to the alleged incident, the dogs had no history of violence, nuisance or aggressiveness either prior to or since the alleged incident, the dogs were not a threat to public safety and compliance will cause significant financial cost which may be wasted if the notices are set aside.
Evidence was produced from six witnesses who generally attested to the non aggressive nature of the two dogs owned by Ms Van Cuylenburg.
The Tablelands Regional Council via its General Manager Planning and Development opposed the application for a stay of the decision under review. Submissions were made on behalf of the respondent that the Council has a responsibility to enforce the Animal Management (Cats and Dogs) Act 2008 and has a duty of care to the health and safety of the community.
The Tribunal had regard to the submissions made by Ms Van Cuylenburg as to how her interests will be affected in the event that a stay of the decision is not made. She has submitted that she will be put to significant financial cost which may be wasted if the decision under review is ultimately set aside by the Tribunal. She has not given any evidence as to the extent of that financial cost. It is not appropriate for the Tribunal to speculate as to those costs in the absence of relevant evidence.
Based on the submissions made by Ms Van Cuylenburg, it would appear that the dog alleged to have been attacked by her dogs is no longer residing in the same area where Ms Van Cuylenburg and her dogs reside. In that circumstance, the interests of the owner of that other dog would not be directly affected in the event that a stay of the decision under review is granted.
Section 22 (4) of the Queensland Civil and Administrative Tribunal Act 2009 requires the Tribunal to also have regard to the submissions of the decision maker. The respondent has cited reliance on a statutory obligation to take action by way of enforcement of the law and on its common law duty of care to maintain public safety.
In section 59 of the Animal Management (Cats and Dogs) Act 2008 the Tablelands Regional Council has been given responsibility to declare dogs to be dangerous, menacing or restricted dogs as part of the statutory scheme to protect the community from damage or injury from particular dogs and to ensure that such dogs are not a risk to community health or safety and are controlled and kept in a way consistent with community expectations and the rights of individuals.
10. The respondent submitted that it acted in reliance of that responsibility. Based on an examination of the documents provided to the Tribunal, including the Regulated Dog Declaration Information Notices, that submission appears to have been soundly made. However that submission is not in itself sufficiently cogent to prevent a stay being granted if the Tribunal is satisfied that it is otherwise desirable that a stay be granted.
11. The Tribunal must also have regard to the public interest as required by section 22(4) of the Queensland Civil and Administrative Tribunal Act 2009. Determining what is the public interest in this case requires in the view of the Tribunal a consideration of the provisions of the Animal Management (Cats and Dogs) Act 2008 (the Act) in particular section 3 which sets out the stated purposes of the Act and section 4 which sets out how those purposes are to be achieved.
12. Two of the stated purposes of the Act are to provide for the effective management of regulated dogs and to promote the responsible ownership of cats and dogs. The ways in which those purposes are to be achieved include imposing obligations on regulated dog owners and imposing obligations on particular persons to ensure dogs do not attack or cause fear. The Tribunal considers that the public interest can be adequately described as an interest in having a risk to community health or safety being managed by a system of control over dogs consistent with community expectations and the rights of individuals.
13. The Tribunal considers that it is in the public interest that the respondent is able to carry out its statutory responsibility, imposed by section 59 of the Act, of ensuring that regulated dogs are not a risk to community health or safety with all reasonable diligence and independence. It is in the public interest that the functions of the respondent, while subject to review by this Tribunal, are not unnecessarily impeded in ways that would tend to undermine the integrity of the statutory scheme for the protection of the public against regulated dogs.
14. The Tribunal is not satisfied that it is desirable in this case to make an order to stay the operation of the decision under review. Ms Van Cuylenburg has not provided any evidence of the financial cost of complying with the requirements of the respondent. She has not convinced the Tribunal that her interests will be adversely affected in the event that a stay is not granted and on that basis she has not established grounds for a stay.
15. The Tribunal is also satisfied that consideration of the public interest in this case must result in a refusal of a stay of the decision under review as a stay would tend to undermine unnecessarily the integrity of the statutory scheme set out in the Animal Management (Cats and Dogs) Act 2008 to impose obligations on dog owners to ensure dogs do not attack or cause fear to others.
16. The submissions made by Ms Van Cuylenburg in support of her stay application do not deny that her dogs were involved in an attack on another dog. If the respondent has discharged its statutory obligations correctly, and that is a matter for ultimate determination in the review, its independence to make similar declarations in the future would be unduly fettered if owners could seek to delay compliance with their statutory obligations by successfully applying for a stay in cases where a finding of harm caused by a dog is not contested.
17. The application for a stay of the decision of the respondent is dismissed.
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