Wheeler v Rockhampton Regional Council - [2011] QCAT 115

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…

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: [2011] QCAT 115
Decision Date: 22 March 2011

CaseChat Overview and Summary

The case of Wheeler v Rockhampton Regional Council involves a dispute regarding an application for a 'holding costs order' after a review hearing. The applicant, Wheeler, sought to have the respondent, Rockhampton Regional Council, pay the holding costs incurred during the review. The case was heard and determined by the Queensland Civil and Administrative Tribunal (QCAT). The primary legal issue before the Tribunal was whether it had the jurisdiction to make a holding costs order in such circumstances and, if so, whether the order should be granted. The respondent argued that QCAT did not have the jurisdiction to make such an order, relying on the contempt provisions outlined in the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

The Tribunal considered the relevant provisions of the QCAT Act and found that it did not have the jurisdiction to make a holding costs order. The Tribunal reasoned that the contempt provisions under the QCAT Act did not provide for a holding costs order to be made in this context. Furthermore, the Tribunal noted that the making of such an order would be inconsistent with the statutory framework governing QCAT's powers and functions. Consequently, the application for an order that holding costs be paid by the respondent was dismissed.

In dismissing the application, the Tribunal emphasised the importance of adhering to the statutory framework governing QCAT's jurisdiction and powers. The Tribunal concluded that making a holding costs order in this case would exceed its statutory authority and would not be appropriate given the legislative scheme. The orders made by the Tribunal were that the application for an order that holding costs of the respondent be paid by the applicant is dismissed.

Orders

Orders of the court

The application for an order that holding costs of the respondent be paid by the applicant is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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