Wright v Moreton Bay Regional Council
[2018] QCAT 42
•20 February 2018
CITATION: | Wright v Moreton Bay Regional Council [2018] QCAT 42 |
PARTIES: | Juanita Wright |
| v | |
| Moreton Bay Regional Council (Respondent) | |
APPLICATION NUMBER: | GAR139-17 |
MATTER TYPE: | General administrative review matters |
ON-PAPERS HEARING DATE: | 10 November 2017 |
HEARD AT: | Brisbane |
DECISION OF: | Member Quinlivan |
DELIVERED ON: | 20 February 2018 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | The Respondent is to pay the Applicant’s reasonable costs of this matter, calculated on a standard basis from 11 October 2017 and any fees incurred in bringing this application before the Tribunal. |
CATCHWORDS: | Costs, “interests of Justice”, Queensland Civil and Administrative Act sections 100, 102(1), 102(3) and Section 43 Declaration of “Menacing dog” |
APPEARANCES: | |
APPLICANT: | Juanita Wright represented by Melissa Jane Jarvin, Solicitor |
RESPONDENT: | Moreton Bay Regional Council represented by Desmond Mackellar and Natalia Kamusinski |
REASONS FOR DECISION
Background
On 16 October 2017, the Queensland Civil and Administrative Tribunal considered an application by Ms Juanita Wright for the review of a decision by the Moreton Bay Regional Council made on 8 May 2017.
The applicant sought 2 Orders:
1. An order from the Tribunal substituting the decision of the Respondent to not make a declaration under section 89 of the Animal Management (Cats and Dogs) Act 2008.
2. Further and in the alternative, the Applicant sought an order from the Tribunal substituting the decision of the Respondent to declare that an Applicant’s dog as a “menacing dog” pursuant to section 81 of the Act.
This matter was determined by the Tribunal on 16 October 2017 in a hybrid hearing. The parties failed to reach an agreement and as a result the Tribunal determined as follows:
· Pursuant to section 24(1)(b) of the Queensland Civil and Administrative Tribunal Act 2009, the decision of the Moreton Bay Regional Council dated 8 May 2017 is set aside and there is to be no declaration regarding the Applicant’s dog, Patch.
As a result, the Applicant, through her legal representative, sought an order for costs.
The Applicant submitted that the starting point for an order regarding costs in QCAT is that each party must bear its own costs.[1] She submitted that this presumption may, however, be displaced if the Tribunal considers it to be “in the interests of justice” to order a party to pay all or part of the costs of another party[2]. She pointed out that the phrase ‘in the interests of justice’ is not defined in the Act but is to be construed according to its ordinary and plain meaning, which confers a broad discretionary power on the decision-maker[3].
[1]Qld Civil and Administrative Tribunal Act 2009(Qld) s.100.
[2]Ibid, s102(1)
[3]Herron v The Attorney General for NSW (1987) 8 NSWLR 601 at 613 (per Kirby P).
The Applicant argued that in determining whether it is in the interests of justice to award costs against another party, the Tribunal may have regard to the following matters:
· The nature and complexity of the dispute;
· The relative strengths of the claims made by each of the parties; and
· Whether a party has acted in a way that unnecessarily disadvantages another party[4].
[4]QCAT Act 2009 s102(3).
She contended that given the complexity of the legal and evidentiary issues in this matter and the Respondent's actions in making a declaration that lacked any direct evidence to support it, the Applicant was required to retain legal representation and therefore, it is in the interests of justice for the Tribunal to order that reasonable legal costs be paid by the Respondent to the Applicant.
On 19 October 2017 the Respondent provided written submissions regarding the costs application as follows:
· Section 100 of the QCAT Act contains a strong contra-indication to the awarding of costs.
· The costs submissions by the Applicant “lack sufficient particularity and do not provide any reasons to support the award of costs”.
· The Applicant has not raised any compelling submissions that support the Tribunal in exercising its discretion under section 102 of the QCAT Act.
· It would not be in the interests of justice for the Tribunal to make the costs order sought by the Applicant.[5]
[5]Ralacom Pty Ltd (No2) 2010 QCAT 412
Discussion
This matter came before the Tribunal as a result of an incident that occurred on 16 August 2016. The Tribunal found, there was no consistency in the reported information supplied by the complainant to the Respondent. The state of evidence particularly from the Respondent was extremely poor. There was no clear statement of the complainant's version of events that could be relied upon.
[10] The Respondent relied on a veterinarian report that was nothing more than a repeat of the version of the information provided by the complainant to the veterinarian.
[11] The Respondent received information from the Council officers who attended the premises but failed to acknowledge that the officers formed the view that the action they took was appropriate in the circumstances.
[12] The Tribunal accepted the decision maker’s view that the fact that the Applicants had relocated was irrelevant, as was any impact that these proceedings may have had on the Applicant and/or her daughter.
[13] The Tribunal found that it was not appropriate and reasonable to find on the balance of probabilities that the subject dog entered the property as outlined by the decision maker in his decision. The address given in the evidence was in fact the property where the dog was living with his owners. In any event, the Tribunal found that the evidence did not support a finding that the subject dog attacked the other dog without provocation or other lawful reason.
[14] As a result of the steps taken by the Respondent, in escalating the matter to the point of declaring the subject dog was a dangerous dog when the original determination by the attending officers was that no further action should be taken, the Applicant was left with no option but to take the action that she did.
[15] In all the circumstances, I am satisfied that there is a compelling case presented by the Applicant in this matter to overcome the strong indication in the QCAT Act that each party should bear their own costs. However, I am aware that Section 43 of the QCAT Act provides in effect that the parties can only be legally represented with the leave of the Tribunal[6]. Leave was granted to the applicant on 11 October 2017.
[6]See Decision of Senior Member O’Callaghan, GAR123-13 at para [18].
[16] I also find that it is appropriate for the Respondent to pay to the Applicant any fees incurred with bringing this matter before the Tribunal
[17] This matter should never have reached the stage that it did and should have been finalised by the parties at a much earlier stage. Ms Wright had leave to be represented in these proceedings. I am satisfied that she had no alternative other than to proceed with the matter.
[18] This is a case where the interests of justice require that an order for costs should be made:
The order is:
The Respondent is to pay the Applicant’s reasonable costs of this matter, calculated on a standard basis from 11 October 2017 and any fees incurred in bringing this application before the Tribunal.
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