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  • Unreported Judgment

Mitchell v Gympie Regional Council

 

[2020] QCATA 19

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

 

 

CITATION:

Mitchell v Gympie Regional Council [2020] QCATA 19

PARTIES:

kate mitchell

(applicant)

 

v

 

gympie regional council

(respondent)

APPLICATION NO/S:

APL157-18

MATTER TYPE:

Appeals

DELIVERED ON:

5 February 2020

HEARING DATE:

24 January 2020

HEARD AT:

Brisbane

DECISION OF:

Senior Member Aughterson

Member Cranwell

ORDERS:

  1. The appeal is allowed.
  2. The decision made by the Tribunal on 14 June 2018 is set aside, and the matter is returned to a differently constituted Tribunal for reconsideration with the hearing of additional evidence as allowed by the newly constituted Tribunal.

CATCHWORDS:

APPEAL AND NEW TRIAL – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where legal representation granted to party – where legal representative precluded from examining or cross-examining witnesses – whether error of law in original tribunal decision – whether error would affect the original tribunal’s decision – whether – whether destruction of dog required to be a ‘last resort’

Animal Management (Cats and Dogs) Act  2008 (Qld), s 59, s 127, s 127A

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 146

Bradshaw v Moreton Bay Regional Council [2018] QCATA 140

Cutbush v Scenic Rim Regional Council [2019] QCAT 80

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Nobarani v Mariconte [2018] HCA 36

Thomas v Ipswich City Council [2015] QCATA 97

APPEARANCES & REPRESENTATION:

 

Applicant:

B McMillan, instructed by Anderson Fredericks Turner Legal

Respondent:

GTC Lawyers

 

 

REASONS FOR DECISION

  1. [1]
    On 4 June 2018, the Tribunal confirmed a decision made by the Gympie Regional Council (the Council) to issue a destruction order in respect of Max and Maggie, two dogs owned by Ms Mitchell.
  2. [2]
    Ms Mitchell has appealed this decision, and relies on three grounds:
    1. (a)
      The learned member erred by hearing the application in circumstances where there was an inherent unfairness between the parties to the significant disadvantage of the applicant.  The unfairness denied the applicant the opportunity to fairly present her case.  The failure to ensure the hearing was conducted fairly and afford the applicant procedural fairness in relation to her request for legal representation is a fundamental error of law, rendering the decision invalid.
    2. (b)
      The learned member below erred by failing to consider and apply the principle that destruction of a dog is a last resort.
    3. (c)
      The decision to confirm the destruction order was unreasonable and unsupported by evidence.
  3. [3]
    We will consider each of these grounds in turn, so far as it is necessary to do so.

Ground 1

  1. [4]
    The first ground of appeal stems from an application for leave to be represented filed by the Council on 2 February 2018. 
  2. [5]
    The hearing in the matter was listed for 9 February 2018.  The hearing commenced with the following exchange between the learned member and the parties:

[MEMBER]:   This is matter GAR297 of 2017.  The applicant is Ms Kate Mitchell, and the respondent is the Gympie Regional Council.  Are you Ms Mitchell?

MS MITCHELL:   Yes, I am.

[MEMBER]:   All right, thank you.  Please take a seat.  And you’re for the counsel, are you?

MR ROGERS:   Yes. 

[MEMBER]:   What’s your name, sir?

MR ROGERS:   Dan Rogers.

[MEMBER]:   All right.  Thanks, Mr Rogers.

MS L.M. TAYLOR:   Thank you.  My name is Taylor, initials L.M., solicitor in the employ of GTC Lawyers   

[MEMBER]:   Yes.

MS TAYLOR:   Here to represent the Gympie Regional Council.  I note we’ve not yet been given leave – granted leave for representation.

[MEMBER]:   All right.

MS TAYLOR:   I also have a couple of affidavits today, and a outline of argument that I wouldn’t mind handing up.

[MEMBER]:   Yes, of course.

MS MITCHELL:   Can I say something to that?

[MEMBER]:   Yes, of course.

MS MITCHELL:   So, I first got notified by QCAT the 7th   

[MEMBER]:   Ladies, you can both sit.  You don’t sit need   

MS MITCHELL:   Sorry.

[MEMBER]:      to stand in this jurisdiction.

MS MITCHELL:   So on the 7th, they sent an email – QCAT – saying that council were going to file for having legal representation.

[MEMBER]:   Yes.

MS MITCHELL:   And I got no notification until driving down here this morning, and I happen to check my emails that they want legal representation.

MS MITCHELL:   I feel that kind of   

MS TAYLOR:   I can shed some light on that.  

MS MITCHELL:   And pushing me into   

[MEMBER]:   Well   

MS MITCHELL:   I’ve have no time to prepare   

[MEMBER]:   There has been an application made by the council for leave for legal representation.  And the order was made by Acting Senior Member Brown on the 7th of February, indicating that the matter of leave would be determined by me this morning.

MS MITCHELL:   Right.

[MEMBER]:   All right.  So do you have an objection to the council having legal representation?

MS MITCHELL:   Well, at such short notice, it’s given me no time to follow and seek if I need further advice myself.

[MEMBER]:   Well, do you need further advice?

MS MITCHELL:   Well, I believe I do now, yes.  They’re trying to file for costs and   

[MEMBER]:   On what basis do you seek – do you say that you need further advice before this matter proceeds?

MS MITCHELL:   Well, I’m a layperson, and the actions of the council are an objection of justice   

[MEMBER]:   How are they an objection of justice?

MS MITCHELL:   Because the email I got sent last night.  Now, luckily, I opened it on the way down here this morning.  I’ve been on the phone trying to get some advice from anyone that I could possibly help.  Like, why did council leave it so late?  They’ve had two weeks to do this.

MS TAYLOR:   If I may   

MS MITCHELL:   Why leave it so late and give me no opportunity to see what I else I need to do, like.

MS TAYLOR:   If I could just shed some light on that issue to assist?  The notice – or the field application for representation was sent by registered post on the 7th.

[MEMBER]:   Yes.

MS TAYLOR:   And, I note, by email.  However, late yesterday late afternoon, and this is in my affidavit of service, the email bounced back.  So then I provided it again last night, along with the affidavit of costs, to the applicant.  I have that material in front of me if you want to have a look.

[MEMBER]:   All right, we’ll have a look at that.

MS TAYLOR:   So I’ve got – I’m not sure if you want the outline of argument at this stage, but there’s the affidavit of service   

[MEMBER]:   All right.

MS TAYLOR:      along with the registered post notice, and the delivery failure to email, and then the subsequent email.

MS MITCHELL:   So why is it council left it for two days prior?  Like, they obviously knew they wanted legal representation.  Why leave it so close to the date so I didn’t have an opportunity to seek advice before walking in here?  Are they trying to divert natural justice here?

[MEMBER]:   Well   

MS MITCHELL:   Like, what’s going on?

[MEMBER]:      what do you mean by that?

MS MITCHELL:   Well   

[MEMBER]:   What do you mean by diversion of natural justice?

MS MITCHELL:   Well, why leave it so late?  Why is that you need legal representation now?  I thought the idea of QCAT was not to have legal representation in it.  We stand here and defend – put our arguments to you without legal representation.  That’s why we’re not in a Court, I believe;  is that right?  Is there a difference between Court and QCAT?  I’m not sure.  I’m a simple woman.  I have no idea.

[MEMBER]:   What is your email address, madam?

MS MITCHELL:   Mine?  [email protected]

[MEMBER]:   Dot-com or .com.au? 

MS MITCHELL:   Dot-com.  It’s gmail.com.

MS TAYLOR:   That was the error in the first email   

[MEMBER]:   All right.

MS TAYLOR:   It had au on the end.

[MEMBER]:   Look, I’m of the view that leave should be granted.  The Gympie Regional Council is an organisation that needs to be represented in proceedings by a person, and in the nature of these proceedings, I’m satisfied that there is sufficient grounds to give leave for the council to be represented, in this instance, by a legal practitioner.  So I’m going to grant leave.  Right   

MS MITCHELL:   So I don’t get the opportunity to get someone to help me now?

[MEMBER]:   Well, why do you need someone?

MS MITCHELL:   Well, why do they need legal representation?  Why has it come to that?  Is there something that I don’t know?  Is there something that they’re hiding? 

[MEMBER]:   Well   

MS MITCHELL:   Are they   

[MEMBER]:      you’re the applicant, madam.  They’re responding to your application.

MS MITCHELL:   Well, it just doesn’t seem fair to me.  It seems it’s diverting   

[MEMBER]:   All right. 

MS MITCHELL:      the natural course of justice.

[MEMBER]:   All right then   

MS MITCHELL:   Why can’t have I have someone here beside me helping me now that they’ve got legal representation?  I couldn’t find someone in an hour from driving down here.

MS TAYLOR:   I – I’ve provided the applicant with the outline of argument earlier this morning for their perusal before we attended.

[MEMBER]:   I won’t give a reason in this case today.  I will adjourn after I’ve heard the evidence.  The parties will then be invited to make submissions to me at the end of the case.  If you feel you need to obtain legal advice to assist in the preparation of those submissions, you may do so, all right?

MS MITCHELL:   Okay.  So – sorry, what does that mean?  Can you   

[MEMBER]:   Well   

MS MITCHELL:   So what does – what happens?

[MEMBER]:      as I said, I will not give a decision here and now today.

MS MITCHELL:   Right.

[MEMBER]:   I will reserve my decision, and before I give a decision, I will invite the parties to make submissions to me.  Now, as part of that process, you can seek legal advice in the preparation of your submissions. 

MS MITCHELL:   So I give you more information   

[MEMBER]:   Yes.

MS MITCHELL:      when I’ve got   

[MEMBER]:   At the end of today, I will allow a period of time – a few weeks – for the parties to make further submissions before I give a decision.

  1. [6]
    On the same day, 9 February 2018, the learned member made written directions which included the following:

Kate Mitchell is given leave to be represented by a legal practitioner.

  1. [7]
    In Minister for Immigration and Citizenship v Li, Hayne, Kiefel and Bell JJ stated:[1]

A denial of procedural fairness may result in a decision made in excess of jurisdiction to which s 75(v) of the Constitution will respond. A failure to accede to a reasonable request for an adjournment can constitute procedural unfairness.

As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

  1. [8]
    In our view, the approach taken by the learned member to grant leave to Ms Mitchell to be legally represented but not to grant an adjournment, thereby proceeding to conduct the hearing in circumstances where any legal representative for Ms Mitchell was precluded from examining or cross-examining witnesses, can be characterised as legally unreasonable because it lacks “an evident and intelligible justification”.
  2. [9]
    In reaching this conclusion, given the nature of the learned member’s error it is not necessary for us to engage in speculation as to whether the examination or cross-examination of witnesses by a legal representative for Ms Mitchell might have led to a different outcome.  As the High Court observed in Nobarani v Mariconte:[2]

Senior counsel for the respondent made detailed oral submissions in this Court, almost relitigating the entire case, partly in support of a submission that the Court should exercise the discretion in s 75A(10) of the Supreme Court Act not to order a new trial despite a material denial of procedural fairness. He submitted that this was because a properly conducted trial could not make a difference to the result. It will be rare that such a submission succeeds. In this case, the submission cannot be accepted because it suffers from an erroneous basic assumption. That assumption is that this Court should attempt such an assessment by, in effect, conducting a hypothetical trial including the following: (i) making suppositions about the extent to which the evidence of Mr Lemesle might be made admissible; (ii) assessing the likely evidence of Mr Lemesle in light of the evidence of the solicitor for the deceased; (iii) drawing inferences, based upon limited evidence, about other witnesses, including expert witnesses, that the appellant had indicated he might call; and (iv) speculating about the lines of cross-examination that the appellant might pursue, based upon his grounds of challenge to the 2013 Will.

  1. [10]
    We are therefore satisfied that ground 1 is made out.

Ground 2

  1. [11]
    The second ground of appeal relates to the so-called “last resort” test. 
  2. [12]
    It was conceded by counsel for Ms Mitchell at the appeal hearing that the last resort is not a test which appears in the Animal Management (Cats and Dogs) Act 2008 (Qld) (the Animal Management Act).  Rather, the test was formulated by the Appeals Tribunal in Thomas v Ipswich City Council[3] and Bradshaw v Moreton Bay Regional Council,[4] where in each case it was stated that “the destruction of a dog is a ‘last resort’”.
  3. [13]
    The power to make a destruction order is contained in Chapter 5 of the Animal Management Act.  Section 127 affords an authorised person the power to destroy a dog in the following circumstances:
    1. (a)
      if the person reasonably believes the dog is dangerous and the person cannot control it (s 127(2)(a));
    2. (b)
      if the owner of the dog has asked the person to destroy it (s 127(2)(b));
    3. (c)
      if a non-regulated dog has been seized in certain circumstances and a registered owner or person responsible for the dog is unable to be identified (s 127(3)); or
    4. (d)
      upon the expiry of 14 days after making a destruction order, in the absence of an application for review (s 127(4)-(8)).
  4. [14]
    Section 127A affords an authorised person the power make a destruction order concurrently with a regulated dog declaration.
  5. [15]
    The objectives of Chapter 4 of the Animal Management Act, relating to regulated dogs, are set out in s 59:
  1. The purposes of this chapter are to—
  1. protect the community from damage or injury, or risk of damage or injury, from particular types of dogs called ‘regulated dogs’; and
  2. ensure the dogs are—
  1. not a risk to community health or safety; and
  2. controlled and kept in a way consistent with community expectations and the rights of individuals.
  1. The purposes are to be achieved primarily by the following—
  1. providing for local governments to declare dogs to be dangerous dogs, menacing dogs or restricted dogs;
  2. providing for the compulsory desexing of declared dangerous dogs and restricted dogs;
  3. providing for identification of dogs as regulated dogs;
  4. providing for permits for restricted dogs;
  5. imposing conditions on keeping, and requirements for the control of, regulated dogs;
  6. allowing authorised persons to seize or destroy dogs in particular circumstances;
  7. providing for local governments to administer, and be responsible for, the matters mentioned in paragraphs (a) to (f).
  1. [16]
    We respectfully adopt Member Gordon’s observations in Cutbush v Scenic Rim Regional Council:[5]

The result is that if [the last resort test is] applied literally, a dog could never be destroyed unless it had already been declared a dangerous dog and the owner had demonstrated that it had failed to control it a second time. In other words there would need to be two incidents before a dog could be destroyed, the first causing the dog to be declared a dangerous dog and the second occurring during the currency of the dangerous dog declaration.

But the Act does not say this.

The result also seems to ignore the fact that a responsible keeper of an unpredictable and potentially dangerous dog will need to be vigilant to keep it under control to keep the community safe. The AM Act provides a deterrent to encourage this responsible behaviour. That deterrent effect is likely to be weakened if a dog could never be destroyed unless it had already been declared a dangerous dog and the owner had demonstrated that it could not be controlled a second time.

Such a result is not only contrary to the AM Act as originally enacted. It also ignores the addition in 2013 of section 127A in the Act which enabled the making of a concurrent regulated dog declaration and destruction order.

It is also notable that when disposing of the appeals, neither Thomas nor Bradshaw applied either the ‘last resort’ test or the ‘whether the threat posed by (the dog) can only be satisfactorily dealt with by the destruction of the dog’ test in their bare forms. Instead, in both of those appeals there was a consideration of the balance between the extent of the danger posed by the dog, having regard to the enclosure and other requirements of the dangerous dog provisions, and the likelihood of those requirements being observed by the dog’s keeper or owner in the future.

  1. [17]
    In exercising its discretion as to whether to destroy a dog, it seems to us that the correct approach is to start by a consideration of the purposes set out in s 59.  These purposes include the protection of the community from damage or injury and ensuring that dogs are not a risk to community safety.
  2. [18]
    The purposes set out in s 59 are to be achieved by, most relevantly:
  1. imposing conditions on keeping, and requirements for control of, regulated dogs;
  2. allowing authorised persons to seize and destroy dogs in particular circumstances.
  1. [19]
    Inevitably it is a balancing exercise as to whether community safety can be achieved through the conditions and requirements imposed for a regulated dog, or whether destruction of the dog is indicated in a particular case.  The destruction of a dog is neither the first resort nor the last resort, but one of the options available for achieving community safety.  As discussed above, the exercise of the discretion, as with any discretion, is constrained by the requirement to act reasonably.
  2. [20]
    We are therefore not satisfied that ground 2 is made out.

Ground 3

  1. [21]
    Given that we are allowing the appeal on ground 1, it is unnecessary for us to decide whether to grant leave to appeal in respect of ground 3.

Conclusion

  1. [22]
    In light of our findings on ground 1, the appropriate remedy is for the decision to be set aside and for the matter to be returned to the Tribunal for reconsideration by a differently constituted Tribunal pursuant to s 146(c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).  It will be a matter for the newly constituted Tribunal in rehearing the matter as to whether additional evidence is allowed, but in the event that Ms Mitchell is legally represented it can be expected that the legal representative may wish to examine or cross-examine witnesses who have already given evidence, or lead evidence from additional witnesses.  This can be addressed at the rehearing of the matter.

 

Footnotes

[1]  (2013) 249 CLR 332, [48], [76] (footnotes omitted).

[2]  [2018] HCA 36, [48].

[3]  [2015] QCATA 97, [18].

[4]  [2018] QCATA 140, [39].

[5]  [2019] QCAT 80, [175]-[178], [182] (footnotes omitted).

Close

Editorial Notes

  • Published Case Name:

    Mitchell v Gympie Regional Council

  • Shortened Case Name:

    Mitchell v Gympie Regional Council

  • MNC:

    [2020] QCATA 19

  • Court:

    QCATA

  • Judge(s):

    Senior Member Aughterson, Member Cranwell

  • Date:

    05 Feb 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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