Wheeler v Rockhampton Regional Council
[2011] QCAT 115
•22 March 2011
| CITATION: | Wheeler v Rockhampton Regional Council [2011] QCAT 115 |
| PARTIES: | Mr Martin John Wheeler |
| v | |
| Rockhampton Regional Council |
| APPLICATION NUMBER: | GAR103-10, GAR147-10 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Rockhampton |
| DECISION OF: | Mr Paul Favell, Member |
| DELIVERED ON: | 22 March 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The application for an order that holding costs of the respondent be paid by the applicant is dismissed. |
| CATCHWORDS: | Application for seizure cost – application made for a holding ‘costs order’ after a review hearing – jurisdiction – contempt provisions of QCAT Act Animal Management (Cats and Dogs) Act 2008, s 102 |
APPEARANCES and REPRESENTATION (if any):
Decision on the papers.
REASONS FOR DECISION
On 24 December 2010, the Tribunal reaffirmed the decisions of the Rockhampton Regional Council in relation to the declarations that two dogs, “Oppy” and “Tara”, be destroyed pursuant to section 127(4) of the Animal Management (Cats and Dogs) Act 2008 (Qld).
The Respondent Council now applies for an order that the Applicant pay ‘holding’ costs of the Rockhampton Regional Council.
The costs sought are “holding costs” made up of “retention costs” ($12,000) “seizure costs” ($1,800), “labour costs” ($3,000), and “veterinary costs” ($1,100).
The total costs sought are $17,900.
The application is made pursuant to section 102 of the Animal Management (Cats and Dogs) Act 2008 (Qld). Section 102 relevantly provides:
“102 Recovery of seizure or destruction costs
(1)This section applies if a local government has incurred a cost for an authorised person appointed by it to—
(a)take possession of, or move, a regulated dog that, under chapter 5, part 4, has been seized (a seized dog); or
(b)…
(c)provide a seized dog with accommodation, food, rest, water or other living conditions; or
(d)arrange veterinary or other treatment for a seized dog; or
(e)…
(2)The local government may recover the cost from the dog’s owner or former owner if the incurring of the cost was necessary and reasonable.
...
(4)The cost may be claimed and ordered in a proceeding—
(a)to recover a debt of the amount; or
(b)for an offence against this chapter to which the claim relates.
(5)This section does not limit a court’s powers under the Penalties and Sentences Act 1992 or another law.”
Section 17 of the Queensland Civil and Administrative Tribunal Act 2009 (“the QCAT Act”) has the effect of providing for the review jurisdiction of the tribunal as the jurisdiction conferred on it by the Animal Management (Cats and Dogs) Act 2008 (“the Act”).
In exercising the review jurisdiction, the tribunal is required under section 19 of the QCAT Act to decide the review in accordance with the Act and the QCAT Act. The tribunal has all the functions of the decision-maker for the reviewable decision being reviewed. In accordance with section 20 of the QCAT Act the purpose of the external review is to produce the correct and preferable decision. The Tribunal must hear and decide the review by way of a fresh hearing on the merits. That was done.
As was said in Galia v Slater Coast Regional Council [2010] QCAT 576 “the QCAT Act makes provision for the awarding of costs but costs orders are usually in relation to costs rising in relation to the proceedings. That is not the nature of the application here”.
The question arises here as to whether the Tribunal has the jurisdiction to make an order with respect to costs as contemplated by section 102 of the Animal Management (Cats and Dogs) Act 2008.
That section provides that “local government may recover the cost from the dogs owner or former owner if the incurring of the costs was necessary and reasonable”. Section 102 (4) provides “that costs may be claimed and ordered in a proceeding–
(a)to recover a debt of the amount; or
(b)an offence against this chapter to which the claim relates”.
Section 102(5) provides “this section does not limit a court’s powers under the Penalties and Sentences Act 1992 or in other law”.
This Tribunal is not a Court and it does not exercise power under the Penalties and Sentences Act 1992. Its jurisdiction with respect to matters covered by the Animal Management (Cats and Dogs) Act 2008 is provided for by Chapter Two, Part One of the QCAT Act 2009. The Tribunal’s jurisdiction generally is provided for in section 9 which provides that the Tribunal has “jurisdiction to deal with matters it is empowered to deal with under this act or an enabling act”. There are three types of jurisdiction conferred on the Tribunal, they being an original jurisdiction, review jurisdiction or an appeal jurisdiction.
The Tribunal’s original jurisdiction is the jurisdiction conferred on it by section 11 and under an enabling act to decide the matter in the first instance.
The Tribunal has the jurisdiction to hear and decide a minor civil dispute. In that instance the tribunal may exercise it’s discretion for a minor civil dispute if the relevant person has, under the QCAT Act, applied to the Tribunal to deal with the dispute.
‘Minor civil dispute’ is defined in Schedule 3 of the QCAT Act and it can be “a claim to recover a debt or liquidated demand of money, with or without interest, of up to the prescribed amount”.
However, if an enabling Act confers jurisdiction on the Tribunal to deal with a claim (however called), the claim is not a minor civil dispute unless the enabling Act expressly states it is a minor civil dispute.
The prescribed amount for a minor civil dispute is $25,000.00.
Section 12 of the QCAT Act provides when the Tribunal may exercise its jurisdiction for a minor civil dispute and that is when a relevant person has, under the Act, applied to the Tribunal to deal with the dispute. Section 12(4) of the QCAT Act defines ‘relevant person’ to mean:
“(a)for a claim to recover a debt or liquidated demand of money—a person to whom the debt is owed or money is payable”.
The application which was before the Tribunal in GAR103-10 and GAR147-10 was an application for a review of decisions made by the council that the dogs “Oppy” and “Tara” be destroyed pursuant to section 127 of the Animal Management (Cats and Dogs) Act 2008. That being so, those applications are not a proceeding either to recover a debt of the amount or for an offence against the Chapter of the Animal Management (Cats and Dogs) Act 2008 in which section 102 appears.
Other than the methodology provided for in section 102(4) I am unable to find any power of the Tribunal in an application for review to make an order concerning a claim that a “holding” cost, even if it were necessary and reasonable, be paid by the owner of the dogs. Further, the applicant in GAR103-10 and GAR147-10 was Martin John Wheeler, not the Rockhampton Regional Council.
Without expressing a final view on the matter, if the Council was to seek an order to recover debt it needs to make an application in a proceeding which meets the description “a proceeding to recover a debt of the amount” or “a proceeding for an offence against Chapter 5 of the Animal Management (Cats and Dogs) Act 2008 to which the claim relates” and arguably the claim must be a minor civil dispute under the enabling Act.
Here, I have been provided with a schedule of the costs claimed but it is simply a schedule of a claim which purports to be made in review applications made by an applicant other than the council.
In my view this is not a cost about which Part 1 of Chapter 2 of the QCAT Act involving reviews is concerned.
Further, in my view, the claim that is purportedly made for the recovery of seizure or destruction costs are not costs which are contemplated in Division 6 of Chapter 2 of the QCAT Act.
Accordingly, the finding of the Tribunal in the present circumstances is that the application made for the awarding of costs set out in Annexure A to the Council’s submissions on costs are not presently within the jurisdiction of this constituted Tribunal. Further, the content of the costs schedule is not proved and it is not shown that the cost was necessary and reasonable.
In the course of submissions and in the material that was attached to the submissions, it appears that the respondent council was served with the decision and order of the Tribunal on 24 December 2010. The dogs were euthanized on 4 January 2011.
Those facts were put forward by Mr Wheeler and are of concern to Mr Wheeler. They are also are of some concern to the Tribunal.
The QCAT Act in Part 8, Division 1 of Chapter 2 provides for appeals to the Appeal Tribunal. Section 142 provides for the right of a party to a proceeding to appeal to the Appeal Tribunal against the decision of the Tribunal in the proceeding if a judicial member did not constitute the appeal in the proceeding. That was the case here. Section 143(4) provides that an appeal must be filed in the registry within 28 days after the relevant day. The relevant day is the day the person is given written reasons for the decision being appealed against or if a person makes an application under Part 7, Division 5, 6 or 7 about the decision being appealed against, within 28 days after the person is given written reasons for the decision: the day that application is finally dealt with under that division.
Here, it is clear that the two dogs were euthanized well before the expiration of the appeal period.
The lawyers acting for the Council (respondent) said in correspondence dated 14 January 2011:
“We confirm that we have now received advices from the Council that QCAT has made a decision that the original order should stand and it is appropriate for both dogs to be destroyed. We were advised last week by the Council that given the lengthy period of time the dogs had already been held in the pound for the welfare of the dogs, they considered it appropriate that they be euthanized immediately and that occurred last week.”
The solicitors for the Council respondent seem to seek to justify the euthanasia of the dogs prior to the appeal period expiring by saying:
“On the decision papers provided by QCAT and dated 24 December 2010 there is no provision or reference to any appeal of 28 days. That documentation was forwarded direct to our client in the first instance and not to this office as this office was closed during the Christmas period and the Council acted in accordance with that decision of QCAT. It is clear that this two-page appeal information sheet is additional information which we confirm was not attached to the decision forwarded to this office or to the Council and we note that in fact it is an additional document forwarded to yourselves under cover of the case manager’s email from QCAT 6 January 2011. We believe we have satisfactorily dealt with your complaint. We have advised of the Council’s attitude and the legal position of this matter a number of times. Neither the Council or this office intend to enter into further correspondence about this particular matter.”
In my view, it is extraordinary that the Council, when they should have known that the legislation provided for an appeal period, would euthanize the dogs so that any appeal if it were to be lodged would be meaningless.
Further, it is incorrect to say or suggest (if that is the result of the letter from the solicitor for the Council) that because the Tribunal made a decision, it is appropriate for both dogs to be destroyed before any appeal period lapsed or any appeal was decided.
As was said by Sir John Donaldson MR in Attorney-General (UK) v Newspaper Publishing PLC (one of the Spycatcher cases) [1988] Ch 333, 368:
“The Law of contempt is based on the broadest of principles, namely that the courts cannot and will not permit interference with the due administration of justice. Its application is universal.”
The broad base of the law of contempt has, as observed by Lord Bridge in Re Lonvho PLC [1990] 2 AC 154, 201, meant that is “fraught with difficulties and uncertainties”[1].
[1] Contempt of Court 3rd ed. C.J. Miller Oxford.
A ground for contempt which has emerged from the evolution of the law of contempt is “an undermining of public confidence in the administration of justice”: Attorney-General v. Tonks [1939] NZLR 533; Attorney-General v Times Newspapers Ltd [1974] AC 273; Re Channel Four Television Co Ltd, The Times 18 December 1987.[2] Often that ground is considered in circumstances of a publication made post or prior to a trial, but it may well be that the circumstances here could be said to undermine public confidence in the administration of justice.
[2]See also Victoria v Australian Building Construction Employees’ and Builders Labourer’s Federation at 166-167.
In Hinch v Attorney-General (1987) 164 CLR 15 at 18, Mason CJ identified, amongst other things, “the need to protect the integrity of the administration of justice”. There, the approach of Jordan CJ in Ex Parte Bread Manufacturers; Re Truth and Sportsman Ltd (1937) 37 SR (NSW) 242 at 249-250[3] when he said:
“It is of extreme public interest that no conduct should be permitted which is likely to prevent a litigant in a Court of Justice from having his case tried free from all matter of prejudice”.[4]
[3]Approved in Attorney-General v Times Newspapers [1974] AC 273 at 296-297 and by Gibbs CJ in Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federal (1982) 152 CLR 25 at 59-60).
[4] See also R v Glennon [1992] 173 CLR 592 at 612.
Arguably the conduct of the Council here could amount to conduct which would prevent a litigant from having his case tried (appeal heard), “free from all matter of prejudice”. Obviously, here, the conduct may be argued to be such as to prevent, in a practical sense, Mr Wheeler from exercising any right of appeal he may have. Although the absence of an intention to interfere with the due administration of justice will not necessarily lead to a conclusion that there has been no contempt, it is a relevant consideration: Hinch v Attorney-General (1987) 164 CLR 15.
The jurisdiction to deal with contempt is an incident of every court of record. This Tribunal is not a court. Absent relevant statutory provisions, the Tribunal does not possess a jurisdiction to deal with contempt.
Section 22 of the QCAT Act provides for the effect of the start of a proceeding for the review of a reviewable decision. The start of such a proceeding does not effect the operation of the decision or prevent the implementation of the decision. Unless “an enabling Act that is an Act” provides otherwise or the Tribunal has made an order staying the operation of the reviewable decision under section 22, the order is still in effect.
Section 218 of the QCAT Act provides for circumstances in which a person may be in contempt of the Tribunal.
Section 218 of the QCAT Act relevantly provides:
“218 Contempt of tribunal
(1) The circumstances in which a person may be in contempt of the tribunal include if the person—
(a) insults an official while the official is—
(i)sitting on or with the tribunal in a proceeding; or
(ii)attending a proceeding; or
(iii)entering or leaving the place where the tribunal is sitting; or
(b) obstructs or assaults a person attending a proceeding, compulsory conference or mediation; or
(c) obstructs or hinders a person from complying with a decision of the tribunal, or a notice given by the tribunal under section 97; or
Editor’s note—
Section 97 (Requiring witness to attend or produce document or thing)
(d) unreasonably interrupts a proceeding, compulsory conference or mediation, or otherwise misbehaves at a proceeding, compulsory conference or mediation; or
(e) creates or continues, or joins in creating or continuing, a disturbance in or near a place where the tribunal is sitting; or
(f) contravenes an undertaking the person has given to the tribunal; or
(g) commits an offence against this part.
Note—
See also section 222 (Court’s powers relating to person contravening non-publication order).
(2) A child is not in contempt under subsection (1) if the thing that would otherwise constitute contempt is done by the child in the course of, or relates in any way to, a review of a reviewable decision about the child.
(3) In this section—
official means—
(a) a member; or
(b) an adjudicator; or
(c) an assessor; or
(d) the principal registrar; or
(e) a registrar; or
(f) a registry staff member; or
(g) a Magistrates Court staff member.”
The circumstances in which a person may be in contempt of the Tribunal, as set out in section 218 of the QCAT Act above, are not relevant to the circumstances here or, in particular, the conduct of the Council.
Section 218 of the QCAT Act sets out circumstances in which a person may be in contempt but does not purport to be an exhaustive statement of such circumstances.
The term “contempt” is not defined in the Act.
Section 219 of the QCAT Act relevantly provides (underlining added):
“219 Punishment of contempt
(1) The tribunal has, for itself, all the protection, powers, jurisdiction and authority the Supreme Court has, for that court, in relation to contempt.
(2) The tribunal must comply with the Uniform Civil Procedure Rules 1999 relating to contempt, with necessary changes, including changes prescribed under the rules.
(3) The principal registrar may apply to the tribunal for an order that a person be committed to prison for contempt of the tribunal.
(4) The tribunal’s jurisdiction and powers to punish a contempt of the tribunal may be exercised on the application of a person or on its own initiative.
(5) The tribunal’s jurisdiction and powers to punish a contempt of the tribunal may be exercised only by a judicial member.
(6) If contempt is committed in the face of the tribunal and the tribunal is not constituted by a judicial member, the presiding member of the tribunal may certify the contempt in writing to the president.
(7) For subsection (6), it is enough for the presiding member to be satisfied there is evidence of contempt.
(8) The tribunal has jurisdiction to punish an act or omission as a contempt of the tribunal even though a penalty is prescribed for the act or omission.”
Although section 219 is headed “Punishment of contempt”, section 219(1) goes beyond just providing for punishment and is the nature of a power conferring section. It confers on the Tribunal all the “protection”, “powers”, “jurisdiction”, and “authority” of the Supreme Court.
Section 219(2) requires the Tribunal to comply with the Uniform Civil Procedure Rules 1999 (Qld) relating to contempt. The Tribunal’s jurisdiction and powers with respect to contempt may be exercised on the application of a person or on its own initiative.
In my view, given that Mr Wheeler has raised this matter it may have been appropriate for the Tribunal to exercise its jurisdiction on its own initiative and if appropriate comply with the Uniform Civil Procedure Rules 1999 and call on the council to make submissions as to why it should not be dealt with for contempt. The Tribunal’s jurisdiction to punish contempt can only be exercised by a judicial member.
The presiding member determining this application is not a judicial member.
If a contempt was committed in the face of the Tribunal and as here the Tribunal was not constituted by a judicial member the presiding member of the Tribunal may certify the contempt in writing to the president.
At common law a contempt in the face of the court consists of any act in a court which interferes with or tends to interfere with the due administration of justice: Lewis v Ogden (1984) 153 CLR 682 at 188; MacGroarty v Clauson (1989) 167 CLR 251 at 255. The Tribunal does not consider the conduct of the Council here to be a contempt in the face of the Tribunal as the conduct was not an act in the Tribunal.
If the conduct of the Council here amounts to a contempt, it is a contempt in the sense outlined earlier and any jurisdiction to deal with that contempt can only be exercised by a judicial member.
In the circumstances it is not appropriate for me to further consider any exercise of the Tribunal’s jurisdiction or powers. In my view the generality of section 219(1) is restricted by section 219(5).
In the circumstances, the order of the Tribunal will be that the application of the respondent for an order that the holding costs of the respondent be paid by the applicant is dismissed.
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