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- Unreported Judgment
Till v Logan City Council QCAT 363
Till v Logan City Council  QCAT 363
Saleshni Sarika Till
Logan City Council
General administrative review matters
1 March 2016
11 May 2016
10 October 2016
ADMINISTRATIVE REVIEW – DANGEROUS DOG DECLARATION – where concurrent regulated dog declarations and destruction notices issued – where parties agreed a jurisdictional error – where parties agreed no decision at all – where applicant sought declarations to estop Council from future action against the dogs – whether tribunal has power under the review jurisdiction to make the orders sought
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 17, s 24, s 47, s 100, s 102, s 164
Animal Management (Cats and Dogs) Act 2008 (Qld) s 89, s 90, s 94, s 194, s 195, s 196
Herron v The Attorney General for New South Wales (1987) 8 NSWLR 601 followed
Ascot v Nursing & Midwifery Board of Australia  QCAT 364 followed
Queensland All Codes Racing Industry Board v Abbott (No 2)  QCATA 49 followed
Van Cuylenburg v Tablelands Regional Council  QCAT 406 followed
Miller v Cairns Regional Council  QCAT 665 followed
Saleshni Sarika Till represented by Mr R.W. Haddrick of Counsel instructed by Mahoneys Lawyers
Logan City Council represented by Mr M. McLoughlin
REASONS FOR DECISION
- On 19 October 2015 the Logan City Council declared two dogs owned by Saleshni Sarika Till – “Indi” and “Cooper” – to be regulated dangerous dogs.
- The Council issued concurrent regulated dog declarations and destruction notices to Ms Till. These declarations were made after a requested review by Ms Till of an earlier decision concerning each dog and was the result of an alleged attack by the dogs on another neighbouring dog on 2 March 2015.
- Ms Till filed an application to review these decisions on 20 November 2015.
- The application came before the tribunal exercising its review jurisdiction over two days, 1 March and 11 May 2016.
- Section 24 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) sets out the function of this Tribunal on review. The Tribunal may confirm or amend the decision, set aside the decision and substitute its own, or set aside the decision and return the matter for reconsideration to the decision maker with directions if appropriate.
- The purpose of the review is to produce the correct and preferable decision and is heard and determined by way of a fresh hearing on the merits.
- Prior to embarking on a hearing of the substantive review application, a preliminary matter was raised by Ms Till concerning procedural errors she alleged were made by the Council while making the decision the dogs were to be declared dangerous.
- In summary these five errors identified by Ms Till were that:
- The Council failed to issue a notice, pursuant to s 90 of the Animal Management (Cats and Dogs) Act 2008 (Qld) stating the matters referred to in s 90, including that Ms Till had 14 days to provide written submissions as to why the proposed declaration should not be made;
- In making the declaration pursuant to s 94 of the Animal Management Act, the Council took into consideration an irrelevant matter, namely the applicability of s 196 of the Animal Management Act, in circumstances where no allegation had been made of any breach of ss 194 or 195 of that Act;
- In making the declaration pursuant to s 94(2) of the Animal Management Act, the Council failed to consider whether the injuries sustained by the complainant’s dog out to be characterised as a “serious attack”, as is required by the operation of s 94(2), and ss 89(2), (3) and (7) of the Animal Management Act;
- In making the declaration pursuant to s 94(2) of the Animal Management Act, the Council failed to afford Ms Till natural justice, as the Council failed to invite her to provide written representations and any evidence to accompany the representations, as required by s 90 of the Animal Management Act.
- In conducting the internal review, the authorised officer of the Council has changed the declaration, which was purportedly made pursuant to s 90 of the Act, in relation to the dog identified as “Cooper”, to include a second dog identified as “Indi”, when that second dog was not the subject of the original decision being internally reviewed.
- Ms Till also made a costs application.
- Directions were made for the filing of submissions in support of, and response to, this application with the application to be determined on the papers without a further oral hearing.
- On 22 March 2016, The Council wrote to the solicitor for Ms Till, also sending a copy to this tribunal. The letter stated as follows:
“Council accepts that it is required to give a proposed declaration notice before making a regulated dog declaration for a dog, in accordance with the Animal Management (Cats and Dogs) Act 2008.
Council further accepts its first notice dated 17 April 2015 is not a proposed declaration notice for the purpose of the Animal Management (Cats and Dogs) Act 2008.
In light of these matters, Council acknowledges the notices (2) dated 17 April 2015 are of no effect.
Council proposes that the QCAT proceedings GAR286-15 be discontinued with no order as to costs.”
- Despite these admissions from the Council, Ms Till persisted with her applications and filed further submissions on 24 June 2015. These last submissions identified four issues. These are:
Issue 1: Can the Tribunal exercise a power (pursuant to s 23 of the QCAT Act) to invite the Council to reconsider its decision?
Issue 2: How should the Tribunal decide the application for review presently before it, and what power does it have to make that decision?
Issue 3: What is the effect of the exercise of the power to grant declaratory relief?
Issue 4: Who should pay the costs of the application, and what should the sum of the costs order be?
- On 18 July 2016, the Council filed submissions in response.
- The first issue to be decided by this Tribunal is a basic question – is there a decision to review?
- Ms Till submits that the effect of the errors referred to in paragraph 8 of these reasons is that :
Each of the errors clearly shows that the correct and preferable outcome is to conclude that, as a matter of law:
- (a)there was no declaration that the dog identified as a black entire male Wolfhound Cross, named “Cooper”, is a dangerous dog; and
- (b)there was no declaration that the dog identified as a desexed female Greyhound Cross, named “Indi”, is a dangerous dog; and
- (c)the Destruction Orders affirmed on 7 December 2015 in respect of each of the dogs mentioned in (a) and (b) above, are without a lawful basis.
- The Council agrees with this saying:
- Council agrees with the submissions contained throughout the Applicant’s Further Submissions dated 23 June 2016 (the submissions filed 18 July 2016) that:
- (a)The purported internal review decision by Council was tainted by jurisdictional error and is therefore no decision at all;
- (b)The purported notices issued by Council on 17 April 2015 were not notices under the Act and therefore were of no effect; and
- (c)Because there were no declarations made and there was no decision made by internal review there is nothing to be confirmed, amended or set aside by the Tribunal (paragraph 56(a) of the Applicant’s Further Submissions).
- Council agrees with the submissions contained throughout the Applicant’s Further Submissions dated 23 June 2016 (the submissions filed 18 July 2016) that:
- Ms Till seemingly also agrees, saying that “the power to confirm, amend or set aside all require there to be a decision”, as the text of subs 24(1)(a), (b) and (c) clearly indicate. As has been argued in paragraphs  to  inclusive, there is no decision in the eyes of the law (by reason of jurisdictional error), therefore there is nothing to be confirmed, amended, or set aside by the Tribunal’.
- Section 17 of the QCAT Act states that the tribunal’s review jurisdiction is the jurisdiction conferred on the tribunal by an enabling Act to review a decision made or taken to have been made by another entity under the Act.
- It follows then, that the first requisite is a decision. On this point, both parties agree - there is no decision. The logical conclusion then is that there is no review jurisdiction enlivened.
- The Council submits on the basis that both parties agree there is no decision to be reviewed, the only decision this tribunal ought to make is that the proceeding is lacking in substance and pursuant to section 47(2)(a) of the QCAT Act, should be struck out. The only issue left for determination by this tribunal, in the Council’s view, is that of costs.
- Ms Till submits that, as she correctly brought the Council’s error to the Council’s attention before the first hearing and invited the Council to desist in its prosecution of the matter, it is reasonable for her to be able to resist the setting aside of the purported decision. This thereby allows the Council to make the decision afresh, and denies Ms Till any advantage for correctly bringing the error to the Council’s attention prior to the first hearing.
- Ms Till requests this tribunal make declaration’s pursuant to section 60 of the QCAT Act that the notices issued by the Logan City Council about both dogs in relation to an incident that occurred on 2 March 2015 at 15 Dee Court, Carbrook, in the State of Queensland, were not lawfully issued under the Animal Management (Cats and Dogs) Act 2008 (Qld).
- She says a declaration in this form would operate against the uncontested facts and quell the controversy between the parties. However, there does not appear to be any controversy between the parties. It appears to be quite the opposite – agreement on the invalidity of the original Council decision.
- So why does Ms Till want these declarations?
- It appears the intent of this is to stop the Council from following due process on the next occasion and re-issuing notices for the two dogs in question.
- Ms Till says the making of declarations in the form sought is making a judicial determination and will form an issue estoppel as between the parties, that is, the Council is estopped from attempting to go behind the finality of the matters set out in the declarations.
- I do not accept I have power to make the declarations sought by Ms Till to bind any future actions by the Council in relation to these dogs. The review jurisdiction is exactly that – a review of an existing decision – not of a decision yet to be made.
- The decisions I can make in the QCAT review jurisdiction are set out under section 24 of the QCAT Act. I stand in the shoes of the original decision maker – here the Council – to make afresh the correct and preferable decision on the evidence before me. The only evidence before me is an agreement that there was no valid decision.
- I am not satisfied that my review jurisdiction extends any further. I accept the submissions of the Council in this regard and will dismiss Ms Till’s application for miscellaneous matters filed 29 April 2016. The answer to the other issues raised by Ms Till (except her application for costs) flows from the decision about the first issue.
Issues 2 and 3
- As I am satisfied I cannot exercise a power to invite the Council to reconsider a decision that does not exist in law, issues 2 and 3 are answered by the making of an order dismissing the original review application. This is on the basis that I have no power to make the declaration sought. There is also no effect of the power to grant declaratory relief as I am not satisfied I have the power to make such a declaration.
Issue 4 - Costs
- Ms Till makes an application for her costs on an indemnity basis against the Council for the costs incurred by her having to bring this application for review, and because the Council failed to accept her offer to compromise the matter by way of entering into undertakings.
- The starting point concerning costs in QCAT is that each party must bear its own. This presumption may, however, be displaced if the Tribunal considers it in the interests of justice to order a party to pay all or part of the costs of another party. 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.
- In determining whether it is in the interests of justice to award costs against another party the Tribunal may have regard to 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.
- Under the QCAT Act the question that will usually arise in each case in which costs are sought is whether the circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in section 100.
- Ms Till submits the “interests of justice” require such a costs order in her favour and on an indemnity basis because:
- (a)the Council failed to afford Ms Till natural justice by failing to issue proper s 90 notices under the Act, and thereby failed to permit her 14 days to “show why the proposed declaration should not be made”;
- (b)even after the Council’s error in failing to correctly comply with the requirement to issue a s 90 notice was drawn to the Council’s attention in writing by Ms Till’s solicitor prior to the first hearing of the application for review, the Council did not abandon its position, Council continued to insist that the dangerous dog declarations were lawful, and indeed pressed for a trial;
- (c)Ms Till says her solicitors wrote to the Council by letter dated 23 February 2016 advising Council that:
“Given that the Council failed to comply with Chapter 4, Part 4 of the Animal Management (Cats and Dogs) Act 2008 (Qld), Council will be unable to resist the application to set aside the decision to declare the dogs as dangerous dogs when the decision is externally reviewed by the Tribunal”
- (d)Ms Till’s solicitors then invited the Council to set aside any decision in respect of Cooper and / or Indi, and advised Council that in the event that this invitation is not taken up, the Applicant will rely on this letter on the question of costs, “which will be sought on the indemnity basis”.
- (e)Even after having the legal errors orally identified by counsel for the Ms Till at the first hearing, and after an offer to compromise the matter with the Council entering into comprehensive undertakings in relation to the two dogs, the Council still refused to entertain any suggestion of undertakings being entered into, and insisted upon a trial;
- (f)This costs offer was renewed in correspondence dated 22 February 2016, 9 and 22 March 2016 and 1 April 2016.
The Council has far greater financial resources than Ms Till, and is in a much stronger position to press its interests before the Tribunal; conversely, Ms Till’s financial circumstances mean that she will suffer considerable financial harm as a result of having to bring and maintain this application for review to vindicate her lawful rights (and, more importantly, stop the dogs, Cooper and Indi, from being destroyed);
- (g)The Council should have had in attendance at each of the hearings a legal officer who had the ability to comprehend the statutory regime (and the tribunal’s member effectively acknowledged this by asking at the most recent hearing the Council’s officers to have a legal officer attend at any subsequent hearing). This would have saved the Council the embarrassment of having an officer explaining at the bar table the operation of the Animal Management (Cats and Dogs) Act 2008 to the Tribunal when the officer clearly had no idea about how the legislative scheme operated; it would have also fast-tracked the consideration of the legal issues;
- (h)Officers of the Council made a statement at the first hearing (on 1 March 2016) that it is not the desire of the Council to have the dogs destroyed; and that the Council is essentially happy to remove the prospect of the destruction of the dogs from the table if the Applicant accepts that a dangerous dog declaration should be made;
- (i)It is proper that Ms Till be represented by Solicitors and Counsel;
- (j)If it is not the desire of the Council to have the dogs destroyed, then this is a very significant matter. It is an entirely reprehensive way to exercise public power to issue an order to have the dogs destroyed (as the Council has unlawfully done), if that is not the intention of the Council. This reprehensible use of public power (and statutory power):
- (i)is contrary to the purpose that the Parliament provided as a mechanism for animals to be destroyed;
- (ii)causes unnecessary distress to the owners of the dogs who think that the Council wishes to have their dogs destroyed;
- (iii)should not have been confirmed on 7 December 2015 when the “decision” was internally reviewed by Council’s officers;
- (i)should not be used as a form of leverage to induce an owner to make admissions at the trial so that the owner does not contest the hearing of the matter – which is exactly what the Council has clearly sought to do in this instance;
- (ii)does not “enhance the quality and consistency of decisions made by decision-makers”, or “enhance openness and accountability of public administration”, which are both required to be promoted by subs 3 (d) and (e) of the QCAT Act; and
- (iii)this factor alone warrants the making of an indemnity costs order against the Council.
- The Council in reply submits:
- (i)There is insufficient grounds to depart from the strong contra-indication in section 100 of the QCAT Act;
- (ii)The considerations contained in section 102(3) are not grounds for awarding costs but factors to be taken into 'account'
- (iii)Council has not acted in a way that has unnecessarily disadvantaged Ms Till;
- (iv)Some submissions requirement of the tribunal were not complied with because the Council accepted Ms Till’s submission without reservation;
- (v)The adjournment on 1 March was not a disadvantage to Ms Till as the result of this adjournment was a full concession from the Council that the declarations were of no effect and there was no decision at all;
- (vi)There is no allegation the Council attempted to deceive Ms Till or the Tribunal and the Council attended each hearing day;
- (vii)The nature of the dispute was one about the correct interpretation of the Act which does have some complexity to it;
- (viii)It was not until immediately prior to the substantive hearing that Ms Till provided the Council with detailed written submissions as to why the Council’s position was incorrect. Council disputes this was brought to it attention in February 2016 as it was very difficult to “decipher” what Ms Till meant in the letter of 23 February 2016 and immediately raised numerous unanswered questions which were not clarified until the submission of 1 March 2016;
- (ix)After understanding the argument of Ms Till, Council considered its position and accepted the argument in an open letter to Ms Till dated 22 March 2016;
- (x)The Council was entitled to defend it’s position up to 8 March as the defect was not so patently obvious that officers ought to have seen it;
- (xi)The decision maker’s role in review hearings is not adversarial but to assist the tribunal by testing the evidence relied upon by the applicant;
- (xii)Council is charged with protecting the community and is therefore entitled to defend its case as long as it is defensible to do so. Once the submissions were articulated to the Council, it acted in good faith and abandoned its position;
- (xiii)Ms Till was afforded natural justice by the Council by setting aside the decision because of the defects in the declaration; by allowing extra time for Ms Till to make representations; by abandoning it s position at an appropriate time and by trying to bring a quick end to the proceedings;
- (i)The Council genuinely attempted to enable and assist the tribunal by abandoning its position and trying to bring a quick end to the proceedings;
- (ii)Council denies it has “far greater resources than the Applicant”. Council says each business unit has allocated funding in its budget - including legal costs, which must be paid by each unit from its budget. If this allocation is over-run, funds are syphoned from other allocations, which impacts on the services the Council provides to residents. This allocation has been exhausted for this year;
- (iii)No evidence is provided to support Ms Till’s contention that she would suffer considerable financial harm without an award of costs. Ms Till has displayed an ability to pay the fees of her current and past legal representation;
- (iv)Council points to the comment of the Appeal Tribunal that no award should be made for costs in Queensland All Codes Racing Industry Board v Abbott (No 2) where the appeal Tribunal commented:
It is often the case in this Tribunal that the financial circumstances of the parties differ markedly. The Tribunal hears many disciplinary proceedings. In all cases, the regulatory body is funded by fees imposed on the registration to the profession or industry. In many cases, the registrant appears before the tribunal with little or no financial support and is prevented from earning in the profession the subject of the proceeding. That circumstance is not a reason for making an order for costs.
- (v)Ms Till is no different to many other parties who find themselves reviewing administrative decisions and this is not a factor determinative of costs in this matter;
- (vi)Council also relied on Van Cuylenburg v Tablelands Regional Council (a regulated menacing dog review) where the applicant had spent over $40,000 on legal costs and these costs were funded by her husband. In that matter, no order for costs was mad;.
- (vii)Ms Till ought reasonably to be aware of the high costs of litigation and that there was a real possibility of no order for costs;
- (viii)Offers to settle were made but these compromise terms are submitted to be on terms less favourable to the ultimate decision that there was no decision;
- (ix)The letters of 23 February did not engage Rule 86 of the QCAT Rules as it contained an invitation only to set aside the decision in respect of the dogs, and did not offer any settlement of costs. The first offer to settle was made on 9 March 2016 with a counter offer on 22 March 2016 from the Council more favourable to her;
- (x)The first offer to settle was made on 9 March 2016 and Council countered with an offer in terms more favourable on 22 March 2016 because it placed no conditions on the dogs.
- In the decision in Miller v Cairns Regional Council the Senior Member 'observed'
“Section 43 of the QCAT Act provides in effect that the parties can only be legally represented with the leave of the Tribunal. Mr Miller had not sought the Tribunal’s leave to be represented.”
- Leave for each party to be legally represented in these proceedings was not formally given by this tribunal until the first day of the hearing of this matter on 1 March 2016.
- The Council submits that Ms Till should not be able to retrospectively claim her costs when appeared represented by legal counsel while not previously applying for legal representation under section 43 of the QCAT Act. Council submits that the majority of costs sought by Ms Till were incurred prior to leave being given.
- As previously stated, the starting point concerning costs in QCAT is that each party must bear its own. What I observed in this matter is a review application of a destruction notice for two dogs, who prima facie, inflicted serious injuries on another dog. What I also observed from the conduct of the parties in the hearing process, was a disregard by either party to assist me to make the correct and preferable decision and conduct more akin to an adversarial process. At times in and outside the hearing room, emotions ran high on both sides and my observation is that this conduct did little to credit either party.
- It is accepted that the notices were of no effect and I have determined that as there is no decision to be reviewed, the review jurisdiction is not enlivened and the application must be dismissed.
- What further complicated this otherwise straightforward review application was the attempt by the applicant to bind the Council from taking any actions against these dogs into the future. I have found that I do not have power to make the declarations sought by Ms Till to bind any future actions by the Council in relation to these dogs.
- I am not satisfied that there is a compelling case presented by Ms Till in this matter to overcome the strong indication in the QCAT Act that each party should bear their own costs. This matter could have been finalised by consent of the parties on 22 March 2016. Ms Till did not have leave to be represented in these proceedings until 1 March 2016. The outstanding issue that continued the matter to a hearing before this tribunal was the issue of estoppel raised by Ms Till which ultimately failed.
- Ms Till could have contained her costs and finalised this matter after the first hearing day. Instead, she elected to “litigate” an issue she thought may advantage her in the future. That is a decision entirely of her making and not, in my view, a reason why in the “interests of justice” a costs order should be made in her favour and the primary position as set out in the QCAT Act departed from.
- The application for costs is dismissed.
QCAT Act s 24(1).
Ibid, s 20.
At paragraphs 30-31 of the submissions filed 18 July 2016.
Ibid paragraph 56(a).
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 47(1)(b).
Affidavit of M Downes, 23 June 2016, Exhibit page 1.
As QCAT is a Court of Record: Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 164(1).
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 100.
Ibid, s 102(1).
Herron v The Attorney General for New South Wales (1987) 8 NSWLR 601 at 613 (per Kirby P).
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 102(3).
see Affidavit of M Downes, 23 June 2016, Exhibit page 1.
See Affidavit of M Downes, 23 June 2016, Exhibit page 6.
Ascot v Nursing & Midwifery Board of Australia  QCAT 364 per Deputy President Kingham at paragraph 9.
 QCATA 49 at paragraph 18.
 QCAT 406.
 QCAT 665 at paras 17-19.
- Published Case Name:
Till v Logan City Council
- Shortened Case Name:
Till v Logan City Council
 QCAT 363
10 Oct 2016