Wyndham City Council v Fenech
[2015] VSC 723
•17 December 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2015 2385
IN THE MATTER of section 148 of the Victorian Civil and Administrative Tribunal Act 1998
BETWEEN
| Wyndham City Council | Appellant |
| v | |
| Simon Fenech | Respondent |
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JUDGE: | J FORREST J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 November 2015 |
DATE OF JUDGMENT: | 17 December 2015 |
CASE MAY BE CITED AS: | Wyndham City Council v Fenech |
MEDIUM NEUTRAL CITATION: | [2015] VSC 723 |
APPEAL FROM: | Fenech v Wyndham CC (Review and Regulation) [2015] VCAT 477 (15 April 2015) (Senior Member Butcher) |
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ADMINISTRATIVE LAW – Appeal from a decision of the Victorian Civil and Administrative Tribunal – Restricted Breed Standard – Declaration that dog not a restricted breed – Whether the Tribunal made an error of law – Whether ignoring concession made by one party constitutes an error of law – Whether open to Tribunal to ignore concession made by a party – Domestic Animals Act 1994 (Vic) – Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 51, 148.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr B Stafford | Elliott Stafford & Associates |
| For the Respondent | Mr A Schlicht with Ms C Kusiak | Michael Faltermaier Lawyers |
HIS HONOUR:
Introduction
On 2 May 2013, a dog named Axel, which may be a pit bull, was impounded by the Wyndham City Council (Council). Trevor Forward and Elaine Bugeja, authorised officers under the Domestic Animals Act 1994 (Vic) (Act), then declared Axel to be a ‘restricted breed dog’.
For the past two and a half years, Axel has been kept ‘in custody’ at the Lost Dogs Home – although he is not lost. His owner, Simon Fenech (the respondent to this appeal), sought review of the declaration in the Victorian Civil and Administrative Tribunal (Tribunal) in July 2013. After a protracted hearing, he succeeded.
On 15 April 2015, the Tribunal (constituted by a single Senior Member)[1] set aside the declaration.[2]
[1]I have used both expressions ‘Tribunal’ and ‘Senior Member’ interchangeably depending upon the context and the particular challenge made to the decision.
[2]Fenech v Wyndham CC (Review and Regulation) [2015] VCAT 477 (Reasons).
The Council now appeals that decision pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act).
An associate judge referred the Council’s application for leave to appeal to the judge determining the appeal. For the reasons that follow, I am satisfied that the Council has established a question of law on one of its 12 grounds of appeal which warrants the grant of leave.[3] I have also decided that the Council succeeds on that ground.
[3]See Secretary to the Department of Premier and Cabinet v Hulls (1999) 3 VR 331.
The Tribunal’s orders will be set aside and remitted to the Senior Member to re-consider whether Axel is a restricted breed under the Act.
Principles relevant to appeals from the Tribunal
The principles relevant to an appeal from an order of the Tribunal under s 148 of the VCAT Act have been set out in a number of judgments of this Court and need not be repeated.[4] It suffices to say that an appeal from the Tribunal must be on a question of law and is contingent on leave being granted.
[4]See Hoskin v Greater Bendigo City Council [2015] VSCA 350; Pham v Legal Services Commissioner [2015] VSC 671, [56]–[61], Commissioner of State Revenue v Kameel Pty Ltd [2015] VSC 229, [10]–[13] and Versus (Aus) Pty Ltd v ANH Nominees Pty Ltd [2015] VSC 515, [8]-[12].
It is of particular significance in this case to note that mere disagreement with the decision of a tribunal is not sufficient to found an error of law.
It is well established that whether a particular decision is open to a decision-maker on available evidence is a question of law. In S v Crimes Compensation Tribunal,[5] Phillips JA stated:
The determination of that question of fact may depend upon the acceptance or rejection of evidence that is led; it may depend upon a choice between witnesses, and an assessment of their credibility or reliability; or it may depend more directly upon the sufficiency or insufficiency of the evidence that is given. All these things are committed to the tribunal, and not to the court; and although I speak of evidence, the same is true where the tribunal is authorised to obtain information otherwise than from witnesses on oath or to act upon its own expertise. Essentially, the question whether the particular circumstances of the claimant are such as to bring his or her case within the statutory description is a question of fact, not law ... Nevertheless, if in determining whether the particular circumstances of the claimant are such as to fall within a relevant statutory description, the fact finding tribunal arrives at a conclusion which was simply not open to it, that is an error of law...[6]
[5][1998] 1 VR 83 (‘S v Crimes Compensation Tribunal’).
[6]S v Crimes Compensation Tribunal, 89–90. See also Roads Corporation v Dacakis [1995] 2 VR 508, 517.
In Karakatsanis v Racing Victoria Ltd,[7] Osborn and Beach JJA held that an error of law will be committed by the Tribunal if its decision was not reasonably open on the evidence adduced.[8]
[7](2013) 42 VR 176 (Karakatsanis).
[8]Ibid 185 [21] and 189 [40].
In S v Crimes Compensation Tribunal, Phillips JA explained this expression:
The word ‘reasonably’ is used in this context, I suggest, just to emphasise that, when judging what was open and what was not open below, we are speaking of rational tribunals acting according to law, not irrational ones acting arbitrarily. The danger of using the word ‘reasonably’ lies in its being taken to suggest that a finding of fact may be overturned, on an appeal which is limited to a question of law, simply because that finding is regarded as ‘unreasonable’. That is not the law as I understand it, at least in Australia. A finding of fact will be overturned on an appeal on a question of law only if that finding was not open.[9]
[9]S v Crimes Compensation Tribunal, 91.
The Act and the classification of a restricted breed
The relevant parts of the Act at the time of the declaration were as follows:
98A Power of authorised officers to make declarations as to breed of dogs
(1)If an authorised officer is of the opinion that a dog is a restricted breed dog, the authorised officer may make a declaration to the effect that the dog is a restricted breed dog.
Section 3 of the Act states:
restricted breed dog means a dog that is any one of the following breeds —
(a) Japanese Tosa;
(b) fila Brasiliero;
(c) dogo Argentino;
(d) Perro de Presca Canario (or Presa Canario);
(e) American Pit Bull Terrier (or Pit Bull Terrier);
….
(3)A dog that falls within an approved standard for a breed of dog specified in a paragraph of the definition of restricted breed dog is taken to be a dog of that breed.
(4)For the purposes of subsection (3) an approved standard is a standard that has been approved by the Minister and published in the Government Gazette.
So, there are two ways for a dog to be held to be a restricted breed:
(a) first, if the dog is one of the five restricted breeds as provided by the definition – in this case, as a Pit Bull terrier; and
(b) second (and alternatively), it is deemed a restricted breed if it meets the standard referred to in sub-section (3) of the definition.
The Standard
The standard (published in the Government Gazette) under which Axel had been assessed by the officers, was amended in January 2014 (whilst the Tribunal hearing was part-heard). For reasons which I will explain later, it was agreed that the ‘new’ standard was applicable to the assessment before the Tribunal. The ‘new’ standard operated in the following way.
The first task is to determine whether the dog falls within the standard or is exempt under four categories of exemption, which include, for example, that the dog has blue eyes or a curled tail. If it does not, the second task is to assess whether the dog meets three cumulative requirements explained in the extract below:
Amendment to the Act
There is one other matter I should mention concerning an amendment to the Act which also occurred during the course of the Tribunal hearing. On 1 July 2014, sub-section (4) was inserted into s 98A of the Act. [10] The sub-section reads as follows:
(4)If a declaration is made under subsection (1) to the effect that a dog is a restricted breed dog, then for the purposes of any proceedings under this Act, including a proceeding in the Tribunal, it is presumed, in the absence of evidence to the contrary, that the dog is a restricted breed dog if at the time of the making of the declaration—
(a)the authorised officer who made the declaration had completed a course of training for the purposes of making approved by the Minister; and
(b)the Minister's approval of the course of training had been published in the Government Gazette.
[10]Domestic Animals Amendment Act 2014 (Vic) s 2(2).
I was told by counsel for Mr Fenech that s 98A(4) was not applied by the Tribunal as the relevant determination (either under the old or new standard) was made before July 2014. This approach was consistent with what was said by Garde J in Gray v Brimbank City Council,[11] and appears to have been accepted by both parties at the Tribunal. Assuming for a moment that the provision was applicable, the statutory presumption would have been rebutted in any event because of the contested nature of the hearing.
[11][2014] VCAT 1485.
The hearing and decision at the Tribunal
Under s 51(1) of the VCAT Act, the Tribunal, exercising its review jurisdiction, ‘has all the functions of the [original] decision-maker’. In Sisters Wind Farm Pty Ltd v Moyne Shire Council,[12] Emerton J described the Tribunal’s task as follows:
It is trite law that in exercising its review jurisdiction, the Tribunal does not review the propriety or legality of the decision made by the initial decision-maker. Its task is to ‘stand in the shoes’ of the original decision-maker and make the correct or preferable decision, having regard to the material before it. The review therefore takes place without any presumption as to the correctness of the decision under review. It is carried out on the basis of the facts and the law at the time the review decision is made.[13]
[12]Sisters Wind Farm Pty Ltd v Moyne Shire Council & Ors [2012] VSC 324.
[13]Ibid [40].
The expression ‘stand in the shoes’ should not be taken too literally. The Tribunal is not necessarily required to carry out the same tasks as the initial decision maker. It makes a determination based on the facts as presented to it and in accordance with the relevant piece of legislation it is required to apply.[14]
[14]See yesterday’s decision Hoskin v Greater Bendigo City Council [2015] VSCA 350.
The VCAT hearing
As I mentioned, the hearing had a protracted history. It occupied eight hearing days between September 2013 and November 2014.
Between 26 and 27 September 2013, Mr Forward and Ms Bujega were called by the Council and cross-examined by counsel for Mr Fenech. Dr John Ayerbe, a veterinarian, was called by Mr Fenech and cross-examined. During the evidence of Ms Bugeja, who was the last of the three to be called, there was a question as to whether the photographs used by the officers to make their assessment were of Axel. The hearing was adjourned.
The hearing resumed briefly on 15 November 2013, but no evidence was adduced.
The hearing commenced again on 20 February 2014 with Ms Bugeja resuming her evidence under cross-examination. The hearing was adjourned again.
As I mentioned at paragraph [14], the standard under which the dog had been assessed was replaced in January 2014. At a directions hearing on 17 April 2014, it was agreed by the parties that the authorised officers should re-assess the dog under the ‘new’ standard, which they did in May 2014. Axel, again, was found to be a ‘restricted breed’. The Tribunal then engaged in a review of that determination applying the new standard.
The hearing recommenced (or should I say, commenced for the first time with the application of the new standard) on 7 August 2014. Ms Bugeja gave evidence and was cross-examined. For reasons which are unclear, the matter was adjourned again and resumed on 20 November. On this day Dr Ayerbe and Mr Forward again gave evidence. Mr Forward’s evidence continued until 21 November when the hearing concluded.
The Tribunal then requested written submissions from the Council and Mr Fenech, which were filed on 3 and 12 December 2014 respectively.
The decision
On 15 April 2015, the Senior Member set aside the decision of the Council, finding that Axel did not meet the definition of ‘restricted breed’.
He commenced his reasons by stating that he was to apply the standard of proof set out in Briginshaw v Briginshaw,[15] describing it as follows:
I need to be satisfied as to the elements of each criterion to a comfortable level of satisfaction on the balance of probabilities consistent with the gravity of the allegations.[16]
[15](1938) 60 CLR 336.
[16]Reasons [15].
He then went on to his determination under the new standard, which, rightfully, began with an assessment of whether any categories of exemption applied to the dog. After concluding that none were applicable, the Senior Member moved on to determine whether the cumulative requirements were met beginning with the conformation criteria.
Criterion 1: height at withers from the ground is 43 – 53cm
This was a real issue before the Tribunal. Under cross-examination, the authorised officers explained that a manila folder was placed on top of the dog’s head as a crosspiece, which was used as the position on the dog from which the measurements were taken. It was put to the authorised officers that the crosspiece was sloping down, which would have impacted their findings. Thus, at the hearing there was a contest about the accuracy of these measurements.
The Senior Member agreed with Mr Fenech about the accuracy of their findings.
He found the measurement method of the crosspiece to be ‘unscientific and lacking certainty’ and so, was ‘unable to be satisfied to the Briginshaw standard’ that the dog met this criterion.[17]
[17]Reasons [25].
Criterion 2: weight is 14 – 36Kg
The Senior Member also found that this criterion was not met:
None of the witnesses weighed the dog. Evidence was received that an employee of the Lost Dog Home weighed the dog, but this person did not give evidence. In submissions after completion of the hearing, Counsel for [Mr Fenech] stated that it is not disputed that the dog falls within the weight range in the Standard. No basis was given. A party not disputing something and the Tribunal being comfortably satisfied of that they are two entirely separate matters. Give the onus being on the [Council] and the lack of direct evidence of the weight of the dog, I am unable to be satisfied to the Briginshaw standard that the dog meets his criterion[sic].[18]
[18]Reasons [27].
The Senior Member then passed over the third and fourth criterion, and went on to consider the fifth criterion.
Criterion 5: distance from withers to elbow and the elbow to ground is equal
As with the first criterion, the Senior Member was not satisfied with the measuring system adopted by the authorised officers. Further he found that the evidence revealed that the difference between the two distances was 4cm (28cm for the distance from elbow to the ground, and 24cm for the distance from withers to elbow). As counsel for Mr Fenech said, that was a differentiation of 15 per cent.[19] Therefore, the Senior Member stated that he was ‘unable to be satisfied to the Briginshaw standard that the distance from withers to the elbow and the elbow to the ground are generally equal’.[20]
[19]Transcript of proceedings, Wyndham City Council v Fenech (Supreme Court of Victoria, S CI 2015 2385, J Forrest J, 16 December 2015) 49 (Transcript).
[20]Reasons [33].
Conclusion
The Senior Member did not go on to consider the other two cumulative requirements, having found that the dog did not meet three of the five confirmation criteria. The Senior Member concluded that the dog could not be deemed to be a Pit Bull Terrier under the new standard.
Grounds of appeal
The Council’s notice of appeal sets out 12 grounds of appeal:
1.The learned Senior Member erred in law by deciding that there was a burden of proof on the [Council] in the proceeding.
2.The learned Senior Member erred in law in that he misconstrued his role as being one of a tribunal of review when in fact in law he stood in place of the decision maker and was required by law to make the decision de novo standing in the place of the decision maker.
3.The learned Senior Member erred in law by concluding that the dog did not meet the height requirement of the standard for restricted breed dogs (“the standard”) when the only evidence before him was that it did.
4.Alternatively to paragraph 3, if the Senior Member could not be satisfied as to the height of the dog he was required by law to:
a.Measure the height of the dog himself; or
b. Come to some proper arrangement so that he could satisfy himself as to the height of the dog
5.The learned Senior Member erred in law as to the weight requirement of the confirmation criterion of the standard because:
a.There was evidence of the dog’s weight which he failed to consider; and
b. The parties agreed that the dog’s weight met the standard.
6.Alternatively to paragraph 5, if the Senior Member could not be satisfied as to the weight of the dog he was required by law to:
a.Measure the weight of the dog himself; or
b. Come to some proper arrangement so that he could satisfy himself as to the weight of the dog.
7.The learned Senior Member erred in law as to the distance from withers to the elbow and the elbow to the ground requirement of the confirmation criterion of the standard because:
a.The evidence of Ms Bugeja and Mr Forward was that they did make direct measurements but he found as a fact they did not; and
b. As the only evidence as to the measurements of the dog was that given by Ms Bugeja and Mr Forward he ought to have been satisfied as a matter of law that these measurements were correct.
8.Alternatively to paragraph 7, if the Senior Member could not be satisfied as to the distance from withers to the elbow and the elbow to the ground of the dog he was required by law to.
a.Measure the distance himself; or
b. Come to some proper arrangement so that he could satisfy himself as to the distances.
9.The learned Senior Member erred in law in that he failed to consider the submission by the [Council] that an adverse inference should be drawn against [Mr Fenech] under the rule in Jones v Dunkell [sic] because:
a.[Mr Fenech] did not give evidence; or
b. [Mr Fenech] did not call Dr Choi to give evidence;
c.[Mr Fenech] did not call Ms Campbell to give evidence.
10.The learned Senior Member erred in law in not considering the evidence of Dr Ayerbe (being a qualified veterinary surgeon and having the expertise to give the evidence) that the dog was a pit bull and hence a restricted breed.
11.The learned Senior Member erred in law in that he misunderstood the standard of proof in Briginshaw v Briginshaw and misapplied it to the facts of the proceeding.
12.The decision is against the evidence and the weight of the evidence.
Analysis
The majority of the Council’s grounds of appeal are unsustainable. Many amount to a merits review of the way by which the Tribunal reached its conclusions relating to the three criteria. I will return to those grounds shortly.
There is, however, one basis on which the Council must succeed – ground 5. The Council is granted leave to appeal on this ground. Critical to the Senior Member’s decision was his conclusion that there was insufficient evidence (at least to the Briginshaw standard) to satisfy the second criterion concerning weight.[21]
[21]Reasons [27].
Ground 5 – the Senior Member erred in law as to the weight requirement
I have set out the Tribunal’s finding at paragraph [32].
The admissible and uncontested evidence as to the weight of the dog was as follows.
Mr Forward in cross-examination (on the first hearing day in September) was taken to a document (in evidence) prepared by the Council which recorded the dog’s weight. Although not part of the evidence on this appeal, it apparently recorded the dog’s weight as 27 kilograms. Mr Forward explained:
MR FORWARD: And the 27 kilos was from the Lost Dogs Home that actually weighed it, just before we got there.
COUNSEL: Before you got there, so you didn’t actually see that? ---
MR FORWARD: No.
COUNSEL: So you can’t conclusively give evidence that that was the weight of the dog?
MR FORWARD: No.[22]
[22]Court Book, 212-213.
Then there was evidence given by Ms Bugeja on 7 August 2014, when the hearing recommenced after Axel was re-assessed under the new standard. She said:
COUNSEL: How did you obtain the weight of the dog?
MS BUGEJA: He was weighed, um, as I’ve stated in there, he was weighed prior to us arriving. Ah, the Lost Dogs Home had weighed him, as part of their daily requirements.
COUNSEL: And your report indicates that they confirmed the weight at 27.8 kilos?
MS BUGEJA: If that’s the information they passed, yes.[23]
[23]Court Book, 346.
The last piece of evidence regarding weight was again given by Mr Forward when the hearing recommenced on 20 November. He said:
COUNSEL: You weren’t able to weigh Axel?
MR FORWARD: No
COUNSEL: But you were given the weight?
MR FORWARD: From the Lost Dogs Home… we couldn’t weigh the dog on the day, it um, came later that day, from the Lost Dog Home.[24]
[24]Court Book, 451.
The lack of cogent direct evidence was explained, to a large extent, by the concession made in Mr Fenech’s written submissions:
No witness made [the weight] measurement. However, it is not disputed that Axel falls within the weight range of the Standard.[25]
[25]Fenech’s written submissions to the Tribunal dated 12 December 2014, [66].
On this application, counsel for Mr Fenech submitted that because the Senior Member found that there was no evidence before him as to the dog’s weight, it was open for him to conclude that he was not satisfied that the dog met the criterion.[26] Counsel for Mr Fenech argued that Briginshaw required the Tribunal to be comfortably satisfied of the weight of the dog and there was no evidence enabling the member to be so satisfied.[27]
[26]Fenech’s submissions, [23] and Transcript 58.
[27]Transcript 58.
I do not accept this proposition. First, there was evidence before the Tribunal regarding the weight of the dog which was uncontradicted. Admittedly it was hearsay,[28] but the Tribunal had no other contrary evidence; counsel for Mr Fenech had not suggested that the Lost Dogs Home weight was erroneous, merely that it was not ascertained by the witnesses themselves.
[28]The Tribunal is not bound by the rules of evidence: see Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 98(1).
Second, and critically, the concession contained in the written submissions – that there was no dispute that the weight criteria was satisfied – should have disposed of this issue. The Tribunal was not obliged to assess the quality of the evidence as to the dog’s weight, given the concession.
The principles in relation to an admission or concession made by a party in the course of a hearing are helpfully set out in University of New South Wales v Gerard Michael McGuirk.[29] The case concerned freedom of information applications by the defendant to access certain written complaints made about him. The plaintiff university refused his applications, and the defendant commenced a proceeding in the New South Wales Administrative Decisions Tribunal (NSWADT). The NSWADT set aside the plaintiff’s determination, and ordered that the defendant be provided with the complaints. The plaintiff university appealed to the Supreme Court of New South Wales.[30]
[29][2006] NSWSC 1362.
[30]Like in Victoria, appeals from the NSWADT are made to the Supreme Court of New South Wales only where a question of law has been identified: see Administrative Decisions Tribunal Act 1997 (NSW) s 114. An appeal does not extend to a review of the merits of the decision.
One of the issues in contention was a concession made by the defendant. The defendant accepted that certain disclosures were protected under freedom of information legislation, and that those disclosures were not an issue for the tribunal. The tribunal did not act upon the concession. The plaintiff argued that it had been denied natural justice in that (a) it was not adequately warned that the Tribunal would not act on the defendant’s concession, and (b) it was not granted an adjournment to enable it to adduce evidence in lieu of the concession.
Nicholas J determined that this failure to accept the concession amounted to a denial of procedural fairness. His Honour said:
Ordinarily, a party would not be required to adduce evidence to prove facts which the opposing party has admitted. The parties are entitled to conduct the case on the basis that the Tribunal would accept and act upon the admission. If the Tribunal does not intend to do so, procedural fairness requires it to inform the parties accordingly and to afford them the opportunity to meet this situation. As a fact-finder, it is always necessary for the Tribunal to consider precisely what it is that is being admitted and to give careful consideration to its significance.[31]
[31][2006] NSWSC 1362, [65] (emphasis added).
Before reaching that conclusion his Honour referred to decisions of the Federal Court and the New South Wales Court of Appeal:
In Comcare v Fiedler the Full Court of Australia pointed out that in carrying out its review functions under the Administrative Tribunal Act 1975 (Cth) the Administrative Appeals Tribunal ordinarily should accept relevant admissions of fact unless there is material before it to suggest that it could not properly rely upon those admissions in determining the case. It pointed out:
The Tribunal is not, as a general rule, required to ignore the fact that one or both parties have made admissions or concessions, express or implied, that particular issues which the original decision-maker may have had to consider need not be the subject of inquiry and determination by the Tribunal. The Tribunal will, however, fall into error of law by failing to inquire of its own motion into, and make a finding on, an issue the subject of an admission or concession by a party that is martial to its decision if there is reason to doubt that the admission or concession is factually justified. But in the absence of there being some reason to question the admission or concession, the Tribunal will generally be entitled not to inquire into the issue for itself, but to act on the admission or concession in making its decision.
In Seltsam Pty Ltd v Ghaleb, Ipp, JA stated the principles in these terms:
These cases illustrate the general principle that although the basis on which the parties conduct a trial does not bind the judge, if the judge contemplates determining the case on a different basis he or she must inform the parties of this prospect so that they have an opportunity to address any new or changed issues that may arise.
A failure so to inform the parties will ordinarily result in a denial of procedural fairness. A new trial will be ordered if a party is not afforded a fair trial in circumstances where a properly conducted trial might possibly have produced a different result. It will not ordinarily be necessary to lead evidence to prove that the denial of procedural fairness had the potential to affect the outcome; in most cases the facts will speak for themselves.
An early application of these principles is exemplified in Tuite v Administrative Appeals Tribunal in which Davies J held that a tribunal ought not to have made a finding of fact contrary to an agreed fact without disclosing to the parties that it did not propose to accept the agreement or without adjourning the proceedings to enable further evidence to be adduced. He said:
…where the Tribunal’s procedures encourage the representatives of the parties to agree upon limited issues and thereby maximise the efficiency and reduce the cost of review by the Administrative Appeals Tribunal, it is obviously desirable that a concession made by the representative of one of the parties, be accepted unless there exist good reasons to the contrary. To do otherwise would be disruptive of the procedures of the Administrative Appeal Tribunal, which seeks to achieve resolution of limitation of disputes through its process of pre-trial mediation. Moreover, if a concession agreed to before a hearing is not accepted by the tribunal at the hearing, then the result will usually be, as in this case, that the hearing ought to be adjourned so that the parties may deal with the issue which they had understood to have been resolved.[32]
[32]Ibid [57]-[59] (emphasis added) (citations omitted).
In my view, the law is clear. Absent a compelling reason to the contrary (which is not apparent in this case), the concession should have been accepted by the Tribunal. A trier of fact may, in some exceptional circumstances, ignore a concession, but here there was no evidence to the contrary; indeed, what evidence there was pointed to the fact that the dog fell within the weight requirements.
The finding as to the dog’s weight not falling within the standard was not open to the Tribunal. The distinct, indeed overwhelming, impression from the transcript of the hearing and the submissions is that the question of the dog’s weight was never an issue until the decision of the Tribunal.
Moreover, the failure to advise the parties that the Tribunal was not prepared to accept the concession made by counsel for Mr Fenech in his submissions constituted a denial of procedural fairness.[33]
[33]Although not a specific ground of appeal, the point is raised in the Council’s submissions.
Finally, the reference to the rule in Briginshaw was a distraction. In the context of there being no meaningful contest over the weight of the dog, the burden of proof and degree of satisfaction was a non-issue. In any event the concession clearly meant that the Briginshaw onus was satisfied.
Simply put, it was not open to the Tribunal to find that the dog did not meet the weight criterion. This amounted to an error of law.
The remaining grounds
Having reached the conclusion that ground 5 must succeed, I will briefly deal with the other grounds which do not warrant a grant of leave to appeal.
Ground 1 - the Senior Member decided that the burden of proof was on the Council; and Ground 11 - the Senior Member misunderstood Briginshaw and misapplied it
It is appropriate to deal with grounds 1 and 11 together as they both attack the Tribunal’s approach to the issue of the applicable burden of proof.
These grounds cannot be seriously entertained given that the Council accepted, and advanced in its written submissions at the Tribunal, the proposition that the Briginshaw test was the appropriate evidentiary test for determining whether the dog was a restricted breed.[34] This was not surprising given that Garde J in Gray had applied this test in carrying out a review under the new standard. In doing so, his Honour applied the decision of the Court of Appeal in Karakatsanis.[35]
[34]Council’s submissions at the Tribunal [1].
[35]Karakatsanis v Racing Victoria Ltd (2013) 42 VR 176, [37].
However, Karakatsanis should not be misunderstood. It is worth reiterating two points from that decision. First, as the Court of Appeal emphasised, and as I said earlier, the Tribunal is not bound by the rules of evidence. It was not mandatory for the Senior Member to apply the rule in Briginshaw. That does not mean that he was not permitted to adopt it, if he considered that appropriate. On the contrary. To paraphrase Karakatsanis, it was proper for the Senior Member to direct himself to the rule in Briginshaw and, consequently, the need to be ‘comfortably satisfied’.
Second, as the Court of Appeal emphasised in Karakatsanis, Briginshaw does not create a different standard of proof. The High Court has explained:
[the rule in Briginshaw] should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a find that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.[36]
[36]Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170, 171 (Mason CJ, Brennan, Deane and Gaudron JJ).
It is common sense that the Tribunal might be less inclined to be satisfied of matters that are inherently improbable, or that would be surprising given conventional perceptions of the ordinary behaviour of members of society. Fraudulent and criminal conduct are the classic examples referred to in Karakatsanis. There the Tribunal was confronted with allegations that a licensed racehorse trainer and a registered stablehand had attempted to stomach-tube a horse immediately prior to a race. The penalty was disqualification from those professions for a period of time. It was unsurprising that the Senior Member applied the Briginshaw rule.[37]
[37]In practice in racing appeals which effect reputation, livelihood and income, the Briginshaw rule has been applied for decades whether by the principal club, the Racing Appeals Tribunal or at VCAT.
In this case, the Tribunal had a very wide discretion in the procedures and approach to be applied in determining the application. If it was necessary to do so, I would not have concluded that the Senior Member erred in his application of the Briginshaw rule.
Ground 2 – the Senior Member misconstrued his role
There is no indication in the reasons of the Tribunal that the Senior Member misconstrued his role. He was clearly aware that his task was to make a determination based on the evidence before him as it applied to the definition of a restricted breed. This he endeavoured to do. This ground fails.
Grounds 3 & 4 – the height of the dog
The Tribunal was entitled to determine the height of the dog as it saw fit on the evidence available to it. The evidence as to height was patently not all one way – there was a real issue about whether the measurement of the dog by the Council officers could be relied upon. Ultimately it was up to the Tribunal to determine, on the evidence, whether the dog did or did not satisfy the height requirement. Further, contrary to the submissions of the Council, the Senior Member was not obliged to measure the dog himself. There was no statutory requirement to do so, nor is it to be implied from the terms of the new standard. These grounds must fail.
Ground 6 – the member was required to weigh or bring about measurement of the weight of the dog
This ground is couched as an alternative to ground 5, which I have upheld. In the event that I had to consider it, I would have rejected it. The Senior Member was not required by law to measure the weight of the dog himself or to come to some proper arrangement as to the weight of the dog (whatever that might mean). Of course, it was open for the Senior Member to weigh the dog if he so desired, but he was not required to do so by law. Rather, he was required to address the evidence adduced and determine whether this criterion was made out.
Grounds 7 & 8 – withers to elbow and elbow to ground measurement
This ground also fails. There was a genuine contest as to the measurements and it was up to the Tribunal to determine whether the evidence of Ms Bugeja and Mr Forward satisfied him as to the requisite measurement. Similarly, the proposition that the Senior Member was required to measure the distances himself or ‘come to some proper arrangement’ is misconceived. I repeat that it was up to the Senior Member to determine how he would go about his task given the evidence that was adduced before him. He was not required, by the Act or by the standard, to carry out measurements himself. This ground fails.
Ground 9 – the failure to consider Jones v Dunkel
In the Council’s written submissions it was contended that a Jones v Dunkel[38] inference should be drawn on the basis of Mr Fenech failing to call:
[38](1959) 101 CLR 298.
(a) Dr Choi, ‘who attended the Lost Dogs Home to assess Axel’;
(b) Ms Campbell, a dog judge, who prepared a report for the Tribunal under the old standard; and
(c) Mr Fenech, the owner of the dog.[39]
[39]Council’s submissions at the Tribunal, [3].
This ground is unsustainable. As I have said, the Tribunal is not bound by the rules of evidence. It is not obliged to apply Jones v Dunkel.
Even if the Senior Member had been minded to consider the application of Jones v Dunkel it would not have advanced the Council’s case. Jones v Dunkel stands for the proposition that a failure to call a witness on a relevant issue in a case may lead to an inference that the witness’ evidence would not have assisted the party who failed to call him or her.[40] An unexplained failure by a party to call witnesses may also lead to an inference arising from the evidence of the opposing party to be drawn more confidently.
[40]Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121, [51].
But the inference can only be drawn if there is evidence upon which the tribunal of fact can act and to which the failure to call relates.
A Jones v Dunkel inference cannot be used to reinforce speculation, as opposed to an inference which can be properly drawn on the balance of probabilities. In the latter situation, the inference can reinforce that affirmative conclusion.[41] But that is not the case here.
[41]Ibid [53].
Assuming for present purposes that a Jones v Dunkel submission is available in a contested matter at VCAT, the inference cannot be drawn in respect of any of these three potential witnesses:
(a) There is no evidence as to what role Dr Choi carried out when attending at the Lost Dogs Home or whether he or she attempted to assess the dog under the terms of the Act, or the old / new standard. For a Jones v Dunkel inference to be drawn it must be established that there is a real expectation that the witness would have been called to respond on a particular issue relevant to the Tribunal’s determination.
(b) Ms Campbell’s position was also unclear. It seems that it was proposed by Mr Fenech that she would be called to express an opinion in respect of the old standard.[42] There is no evidence however that she reassessed the dog under the new standard. Therefore there could be no expectation as to her giving evidence on this issue.
(c) No Jones v Dunkel submission was made to the Tribunal in relation to the failure to call Mr Fenech. This can be ignored.
[42]Transcript of proceedings, Wyndham City Council v Fenech (Victorian Civil and Administrative Tribunal, Z26/2013, Senior Member Butcher, 26 September 2013 (first day)) 127 (VCAT Transcript).
Accordingly, no Jones v Dunkel inferences were available to assist the Council. The Tribunal was correct to ignore this unsubstantiated and scattergun submission.
Ground 10 – failure to consider the evidence of Dr Ayerbe
This ground concerned the failure of the Tribunal to address the evidence of Dr Ayerbe in determining whether Axel met the primary definition of a Pit Bull Terrier – that is, whether he was in fact (rather than deemed under sub-section (3)) an American pit bull terrier or a Pit Bull Terrier.
The Council, in its written submissions, contended that the evidence of Dr Ayerbe on 27 September 2013 supported this proposition.
It is true that the reasons of the Tribunal focus on the provisions of the new standard and do not deal with the alternative proposition. There is, however, no doubt that the Tribunal had regard to the evidence of Dr Ayerbe as the reasons refer to his evidence on several occasions.[43]
[43]Reasons [7], [26], [29].
Whilst I think that there is some force in the proposition that this issue should have been the subject of mention by the Tribunal, I am by no means satisfied that the Tribunal overlooked it to the extent it constitutes an error of law.
The evidence given by Dr Ayerbe was nowhere near as conclusive as the Council suggested in its written submissions before the Tribunal (I accept that the Council did not have the transcript at the time). The transcript, which was available after the hearing, reads as follows:
In your opinion, is that a Pit Bull?---Can I make a statement, there is no such breed as a Pit Bull Terrier.
All right. I’ll put the question slightly different. Is that a Pit Bull type dog?---It is a cross bred dog in my opinion of a Pit Bull type.
Does that mean that you don’t accept that the standard which indicates whether or not a breed is a Pit Bull Terrier is defective?---No. By genetic application there is no such breed as a Pit Bull Terrier.
Genetics doesn’t come into the standard?---I know.
So where does that leave us, if you say there’s no such breed as a Pit Bull Terrier the standard is designed to determine by reference to the standard whether or not an animal is a Pit Bull Terrier, how do you do that if you say that there’s no such thing?---All I can do is what I was asked to do which is compare that dog with the standard. To me it is a cross bred dog and the Australian and Victorian Kennel Club don’t recognise a Pit Bull Terrier. If you do a generic test it’s made up you won’t get any particular as such as a Pit Bull Terrier. I can only go by what I know.
Doesn’t that mean by definition that you can’t ever say that a dog complies with the standard to be a Pit Bull Terrier?---By looks you probably can but not by genetics.
So you accept then that the standard which is based upon observations is capable of determining whether an animal is or is not a Pit Bull Terrier?---I’d prefer to say a Pit Bull Terrier Type.
That’s not what the standard says though?---I know, but I didn’t write the standard, sir.
But you’re required to give an expert opinion?---The nearest I can do is to say this dog is similar to Pit Bull types but I can’t go closer than that. And I repeat, in my opinion it did not conform to the standard which we’re presented with.
…
So when we offer an opinion as to whether or not a dog is a Pit Bull, we’re offering an opinion as to taking into account all things about the appearance of the dog that we can confidently say that is either a Pit Bull or a Pit Bull with something else in it. It’s a quantitative analysis based on the presentation of the dog?---I as a veterinarian cannot – I can say that a dog substantially or doesn’t substantially agreed with this gazetted description, quite happy about that and I can do my assessments. But I cannot say even then in 100 per cent compliance that it is a Pit Bull and I won’t.
If I use Pit Bull in the sense that you’ve just discussed, would you agree that is Pitt Bull in Axel according to the understanding of the just concluded discussion?---No, I can’t. Sorry, no, no.
Then the reverse applies, if he’s not a Pit Bull what is he?---I would call, I would describe him as a cross bred dog and that is as far as I will go.
Cross bred with what?---I’ve got no idea because I’d have to do genetic testing to do genetic testing to determine that.
You can’t do genetic testing to establish whether it’s a Pit Bull?---No.
It's not a useful escape clause if you see what I mean?---No, I know. But I can’t scientifically give you a definition of what you’re asking me to do which is the generic makeup of an animal.
No, no, I’m not asking you to do a genetic make up because that’s meaningless. We know we can’t genetically test for Pit Bulls so that’s not an escape clause?---What is your question?
My question is, looking at Axel, if you can say he’s not a Pit Bull, can you say what he is?---No.
If you can’t say what he is how can you say he’s not a Pit Bull?---Because I will not – I can’t classify any dog as a Pit Bull. I can say it might look like one.[44]
[44]Court Book 270 – 273.
Accordingly, contrary to the submissions of the Council, the high point of Dr Ayerbe’s evidence – in the Council’s favour – was that Axel looked like a Pit Bull Terrier. It is not surprising that the Tribunal did not deal with this issue as the evidence was patently non-conclusive and could never have satisfied the breed test. This ground fails.
Ground 12: decision is against the evidence and the weight of the evidence
This non-specific ground cannot be relied upon. It is not a proper ground of appeal on a question of law.
What relief is the Council entitled to?
Section 148(7) reads as follows:
148Appeals from the Tribunal
…
(7)The Court of Appeal or the Trial Division, as the case requires, may make any of the following orders on an appeal—
(a)an order affirming, varying or setting aside the order of the Tribunal;
(b) an order that the Tribunal could have made in the proceeding;
(c)an order remitting the proceeding to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the court;
(d) any other order the court thinks appropriate.
Counsel for Mr Fenech submitted that the Supreme Court had a discretion, founded in s 148(7)(d), to make no order in relation to the orders of VCAT if it was satisfied that it would serve no useful purpose. It was argued that, inevitably, when the matter returns to VCAT, Axel will not satisfy one or other of the restricted breed criteria (muzzle and outline) not considered by the Tribunal and therefore the conclusion will be no different to that made last year.
Counsel for the Council adopted the opposite stance. He submitted, in my view oblivious to common sense and the length of time this case has taken, that the matter be remitted for a full hearing, notwithstanding the fact that it has taken two and a half years to date with no final resolution and Axel still remains in lodgings at the Lost Dogs Home.
To waste a further year (optimistically) in hearings and review is in no-one’s interest. It is also totally disproportionate in terms of time and cost, particularly when the evidence has been considered and analysed by an experienced Senior Member.
However, it is not for this Court to engage in a contested fact-finding exercise to determine whether Axel is or is not a restricted breed.
I will set aside the order of the Tribunal pursuant to s 148(7)(a). I will also order that the matter be remitted to the Senior Member. The appropriate course is for the Senior Member to reconsider whether Axel meets three of the confirmation criteria, as required by the new standard; and for him to confine his inquiry to the two criteria which were not resolved. It think it preferable that, unless the Senior Member deems it essential to do so, he should not take further evidence – rather he should make his determination on the basis of the evidence adduced at the hearing.
If Axel does not meet three of the confirmation criteria then the standard cannot be satisfied. On the other hand, if Axel meets three of the criteria, then the Tribunal will be required to go on and consider whether he meets the other components of the cumulative requirements under the new standard.
Unless the Senior Member regards it as essential, there should be no need for further submissions by the parties. The lengthy submissions provided to him in December 2014 deal with these issues comprehensively. Nothing in these reasons affects the factual matters contained in those submissions.
Orders
Subject to hearing from the parties, I propose to make the following orders:
(a) That the order of the Tribunal made 15 April 2015 be set aside.
(b) That the proceeding otherwise be remitted for rehearing by the Tribunal in accordance with law.
(c) Pursuant to s 148(8) of the VCAT Act, the Court directs that on remittal of the matter for rehearing, the Tribunal be constituted by Senior Member Butcher.
(d) Pursuant to s 148(7)(c) and (d) of the VCAT Act, the review is to be determined expeditiously, without the hearing of further evidence or further submissions by the parties, unless the Senior Member deems such a course essential.
As to the costs of this application, I make the following observations. The Council advanced a wide-ranging attack on the Tribunal’s decision, and has succeeded on only one of twelve grounds. The other 11 were, in the main, hopeless or ill-conceived (or both). Considerable time has been taken up dealing with the Council’s submissions both in writing and orally. It was not a difficult task to identify the error which resulted in the appeal succeeding. The breadth of the Council’s attack on the decision of the Tribunal was disproportionate to the true basis for its success.
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