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Siberian Husky and Alaskan Malamute Rescue of Queensland Inc. v Moreton Bay Regional Council[2018] QCAT 414

Siberian Husky and Alaskan Malamute Rescue of Queensland Inc. v Moreton Bay Regional Council[2018] QCAT 414

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Siberian Husky and Alaskan Malamute Rescue of Queensland Inc. v Moreton Bay Regional Council [2018] QCAT 414

PARTIES:

SIBERIAN HUSKY AND ALASKAN MALAMUTE RESCUE OF QUEENSLAND INC.

(applicant)

v

MORETON BAY REGIONAL COUNCIL

(respondent)

APPLICATION NO/S:

GAR382-18; GAR436-18

MATTER TYPE:

General administrative review matters

DELIVERED ON:

7 December 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane 

DECISION OF:

Member Kanowski

ORDERS:

In GAR382-18:

The application to stay a decision filed on 30 October 2018 is refused.

In GAR436-18:

  1. Siberian Husky and Alaskan Malamute Rescue of Queensland Inc. (‘SHAMROQ’) must give to Moreton Bay Regional Council copies of:
  1. (a)
    the application to review a decision filed on 30 November 2018 (together with all attachments); and
  2. (b)
    the application to stay a decision filed on 4 December 2018 (together with all attachments),

by:

4:00pm on 10 December 2018.

  1. Moreton Bay Regional Council must file in the Tribunal two copies, and give one copy to SHAMROQ, of submissions in response to the application to stay a decision, by:

4:00pm on 17 December 2018.

  1. The application to stay a decision will be decided by a member of the Tribunal on the papers, not before 4:00pm on 17 December 2018.
  2. SHAMROQ must file two copies in the Tribunal, and give one copy to Moreton Bay Regional Council, of submissions on whether it is eligible to bring the proceedings in the Tribunal, by:

4:00pm on 21 December 2018.

  1. Moreton Bay Regional Council must file two copies in in the Tribunal, and give SHAMROQ one copy, of submissions on whether SHAMROQ is eligible to bring the proceedings in the Tribunal, by:

4:00pm on 15 January 2019.

  1. Unless either party requests an oral hearing on the question of whether SHAMROQ is eligible to bring the proceedings in the Tribunal, that question will be decided by a member of the Tribunal on the papers, not before 4:00pm on 15 January 2019.
  2. If the Tribunal decides that SHAMROQ is not eligible to bring the proceedings in the Tribunal, it may dismiss the application to review a decision without further notice to the parties.

CATCHWORDS:

ANIMALS – LIABILITY OF OWNERS AND KEEPERS IN RESPECT OF INJURIES BY ANIMALS – VARIOUS STATUTORY PROVISIONS – REGULATION OF COMPANION ANIMALS – OTHER MATTERS – where local government authority declared a dog to be dangerous – where internal review notice given to a carer – whether another entity can seek review of the decision 

Animal Management (Cats and Dogs) Act 2008 (Qld),

s 188

REPRESENTATION:

 

Applicant:

E Pike

Respondent:

D MacKellar

APPEARANCES:

 

This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).

REASONS FOR DECISION

Introduction

  1. [1]
    These proceedings stem from actions taken by the Moreton Bay Regional Council (‘the Council’) to declare a dog called Arabella dangerous. This followed an incident on 18 June 2018, when Arabella allegedly attacked another dog.
  2. [2]
    Full records are not presently available to the Tribunal, but from the available documents it appears that as at June 2018 Arabella was in the care of Mr Robert Constantine, but more recently she has been in the care of Ms Andrea Rogers. It appears that for some of the time, the Siberian Husky and Alaskan Malamute Rescue of Queensland Inc. (‘SHAMROQ’) may have been the owner of Arabella, with Mr Constantine and Ms Rogers caring for Arabella under fostering or adoption arrangements.
  3. [3]
    The documents presently available to the Tribunal indicate that:
    1. (a)
      on 15 August 2018 the Council sent a proposed regulated dangerous dog declaration notice to Mr Constantine;
    2. (b)
      on 20 September 2018 the Council sent a regulated dangerous dog declaration notice to Ms Rogers;
    3. (c)
      on 30 October 2018 SHAMROQ filed in the Tribunal an application to stay the Council’s decision to make the dangerous dog declaration;
    4. (d)
      on 2 November 2018 the Council sent a review notice to Ms Rogers advising that it had confirmed the decision to make the dangerous dog declaration;
    5. (e)
      on 30 November 2018 SHAMROQ filed in the Tribunal an application to review the Council’s decision to make the dangerous dog declaration; and
    6. (f)
      on 4 December 2018 SHAMROQ filed in the Tribunal a further application to stay the decision.
  4. [4]
    SHAMROQ has filed statements and other documents in support of the earlier stay application, while the Council has filed submissions opposing the grant of a stay.
  5. [5]
    I infer that the earlier stay application must have been pursuant to section 184 of the Animal Management (Cats and Dogs) Act 2008 (Qld) (‘the Animal Management Act’). This section permits the Tribunal to grant a stay pending the finalisation of an internal review by the Council.
  6. [6]
    The second stay application would be pursuant to section 22 of the QCAT Act. This section permits the Tribunal to grant a stay pending the finalisation of a review by the Tribunal. The Tribunal has not yet invited submissions from the Council on the later stay application.

What order should be made in respect of the first stay application?

  1. [7]
    A stay granted under section 184 of the Animal Management Act cannot extend past the time when the internal review decision is made by the Council and any later period that the Tribunal allows to enable the applicant to file an application to review the decision.
  2. [8]
    SHAMROQ has now filed an application to review the decision, so it would not now be proper to make any stay order under section 184. Accordingly, the first stay application should be dismissed.

What should be done about the second stay application?

  1. [9]
    The Tribunal can make a stay order under section 22 of the QCAT Act only after considering any submission by the decision-maker. The Council has not yet been given an opportunity to make a submission on the second stay application. While it may well be that the Council has said all that it would wish to say, in its submissions on the first stay application, that should not be assumed. Accordingly, I will make directions allowing the Council to make submissions on the second stay application. In the circumstances, however, it will be sufficient to allow only a relatively short time for those submissions.
  2. [10]
    It may be worth noting that if a stay order is made, certain conditions must be attached by the Tribunal under section 189 of the Animal Management Act. Those conditions would relate to the muzzling and control of Arabella when she is away from her registered address.

Is SHAMROQ entitled to apply to the Tribunal for a review of the Council’s decision and for a stay order?

  1. [11]
    One matter which requires clarification before the matter can proceed to a full review is whether SHAMROQ is entitled to bring the proceedings in the Tribunal.
  2. [12]
    It may be useful to trace through the chain of relevant provisions in the Animal Management Act. Under section 90(1), a council proposing to make a declaration about a dog must give a proposed declaration notice to any owner of the dog. ‘Owner’ is widely defined in section 9 to include a registered owner, the owner in a property sense, the usual keeper of the dog, and so on. An owner is entitled to make written representations about the proposed declaration: section 90(1)(e).
  3. [13]
    If the council then decides to make a declaration, it must give an ‘information notice’ to any owner: section 95(1).
  4. [14]
    An ‘interested person for an original decision’ may apply to the chief executive officer of the council for an internal review of the decision: section 181(2). ‘Interested person, for an original decision’ is defined in Schedule 2 to mean a person who has been given, or is entitled to be given, an information notice about the decision and, if the decision relates to a dog, the owner of, or person responsible for, the dog.
  5. [15]
    Once the internal review decision has been made, the chief executive officer must give the applicant a ‘review notice’ of the internal review decision: section 187(2).
  6. [16]
    A person who is given, or is entitled to be given, a review notice for a decision may apply to the Tribunal for an external review of the decision: section 188.
  7. [17]
    On the available material, it appears that Ms Rogers was the applicant for the internal review decision. On the basis of the provisions outlined above, it would then seem that Ms Rogers would be the only person entitled to be given a review notice, and therefore the only person eligible to apply to the Tribunal for an external review. This would be regardless of whether or for how long SHAMROQ has been the owner.
  8. [18]
    This is just a provisional view, without the benefit of submissions from the parties. It is appropriate to invite submissions from the parties on the question.
  9. [19]
    That process will take some time, but in my view this should not hold up the determination of the stay application. However, it may be appropriate to limit the duration of any stay order until there is more clarity around SHAMROQ’s eligibility.

Conclusion

  1. [20]
    I will make orders to refuse the first stay application, and to set a timetable in relation to the second stay application and the question of SHAMROQ’s eligibility.
Close

Editorial Notes

  • Published Case Name:

    Siberian Husky and Alaskan Malamute Rescue of Queensland Inc. v Moreton Bay Regional Council

  • Shortened Case Name:

    Siberian Husky and Alaskan Malamute Rescue of Queensland Inc. v Moreton Bay Regional Council

  • MNC:

    [2018] QCAT 414

  • Court:

    QCAT

  • Judge(s):

    Kanowski

  • Date:

    07 Dec 2018

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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