Webber v Moreton Bay Regional Council
[2011] QCAT 84
•3 March 2011
| CITATION: | Webber v Moreton Bay Regional Council [2011] QCAT 84 |
| PARTIES: | Michael Jon Webber |
| v | |
| Moreton Bay Regional Council |
| APPLICATION NUMBER: | GAR033-11 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Sandra Deane, Member |
| DELIVERED ON: | 3 March 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | [1] The Application for a stay is refused |
| CATCHWORDS : | Application for stay Queensland Civil and Administrative Tribunal Act 2009, s 22 Animal Management (Cats and Dogs) Act 2008, s 59 Van Cuylenburg v Tablelands Regional Council [2010] QCAT 274 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Background
An application was made to the Tribunal on 22 February 2011 by Michael Jon Webber seeking a review of a decision of the Moreton Bay Regional Council (“the Council”) to declare a dog owned by him to be a regulated dog under the Animal Management (Cats and Dogs) Act 2008. Mr Webber also sought a stay of the decision under review.
The Council’s declaration arises out of an incident on 14 October 2010 following Mr Webber’s dog breaking free of its tether and being involved in an incident where it is contended for by the Council that another dog was seriously attacked.
Legislation
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 by the decision-maker and having regard to the public interest.
Evidence and Submissions
Mr Webber has stated that he was and has been for some time heavily medicated and was to be in hospital on 21 February 2011 to have a major operation which will require an extended hospital stay followed by rehabilitation.
Mr Webber states that as a consequence he has been and will be unable to deal with this matter for some time. Mr Webber estimates this time as three months.
Mr Webber acknowledges that there was an incident on 14 October 2010. He contends that the dog which broke free of its tether at his property and was involved in an incident was not the dog named in the Council’s decision but rather his other dog (“Max”) and that the incident arose out of Max acting in ‘self-defence’.
The Council opposes the application for a stay.
The Council contends that:
a)following investigation there was sufficient evidence to warrant the decision;
b)at the time of the incident a proper enclosure was not provided at Mr Webber’s property to prevent the dog escaping; and
c)Council has serious concerns for the safety of the public and other animals should the stay be granted.
Discussion and Decision
The Tribunal is required to have regard to how Mr Webber’s interests will be affected in the event that a stay of the decision is not made.
[10] In this regard Mr Webber has referred to being heavily medicated and his operation. No supporting evidence such as a medical certificate has been provided. Mr Webber simply submits he has not been and is not able to defend himself or his dog or deal with this matter.
[11] Mr Webber has not submitted for the Tribunal’s consideration any material of the consequences to him of the failure to grant the stay other than he would be required to comply with the mandatory conditions in the Council’s notice.
[12] Further Mr Webber has not submitted for the Tribunal’s consideration any material as to the steps, if any, taken since the incident to ensure that his dogs are not involved in further incidents. He has not informed the Tribunal of any arrangements for the care of the dogs whilst he is in hospital and incapacitated.
[13] Mr Webber’s submission appears to be that in about three months time he will take some steps.
[14] The Tribunal is required to have regard to the submissions of the decision-maker.
[15] Pursuant to section 59 of the Animal Management (Cats and Dogs) Act 2008 the Council is responsible for declaring dogs to be dangerous, as part of the statutory scheme to protect the community from damage or injury from particular dogs.
[16] The Council submits that it has concerns for the safety of the public and other animals in the event a stay is granted and the mandatory conditions are not enforced.
[17] The Tribunal must also have regard to the public interest.
[18] The Tribunal has previously considered what constitutes the public interest in these types of matters in Van Cuylenburg v Tablelands Regional Council [2010] QCAT 274.
[19] In that decision the Member stated at [11] –[13]:
“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.
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.
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.”
[20] Whether the Council has correctly discharged its duties is a matter for determination by the Tribunal upon review of the decision.
[21] Mr Webber has not sufficiently demonstrated that his interests will be adversely affected. Mr Webber provided no evidence or submissions as to the cost or other consequences of complying with the notice.
[22] Mr Webber’s submission that he will deal with this in about three months time is unsatisfactory given the public safety aspects of the statutory scheme.
[23] I find that a stay in this case would tend to undermine the integrity of the statutory scheme.
[24] Having regard to the public interest I find that there are insufficient grounds to stay the operation of the decision under review.
Order
[25] The application for a stay is refused.
0
0
0