Fleming v Gladstone Regional Council
[2021] QCAT 432
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- Unreported Judgment
- Fleming v Gladstone Regional Council[2021] QCAT 432
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Fleming v Gladstone Regional Council[2021] QCAT 432
Fleming v Gladstone Regional Council[2021] QCAT 432
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Fleming v Gladstone Regional Council [2021] QCAT 432 |
PARTIES: | PETER DOUGLAS FLEMING (applicant) v GLADSTONE REGIONAL COUNCIL (respondent) |
APPLICATION NO/S: | GAR334-21 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 18 November 2021 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Browne |
ORDERS: | The application to review a decision filed 25 May 2021 is dismissed pursuant to s 48 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) due to non-compliance with the Tribunal’s Directions. |
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where applicant fails to comply with tribunal directions – whether application for review should be dismissed Animal Management (Cats and Dogs) Act 2008 (Qld), s 180, s 188 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 48 Aon Risk Services Australia Limited v Australian National University [2009] 239 CLR 175 Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-represented |
Respondent: | Self-represented This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) |
REASONS FOR DECISION
- [1]In this matter I must determine whether to dismiss an application for review pursuant to s 48 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) due to non-compliance with the Tribunal’s directions.
- [2]It is convenient to set out below the relevant background to this matter that makes clear the many opportunities presented to Peter Douglas Fleming to comply with the Tribunal’s directions.
- [3]On 25 May 2021, Mr Fleming applied to review a decision by Gladstone Regional Council made on 5 May 2021 that his dog ‘Kandy’ be declared a dangerous dog (the original decision).[1] Mr Fleming also applied for a stay of the original decision on 25 May 2021.
- [4]By Order dated 8 July 2021, the Tribunal stayed the Council’s original decision of 5 May 2021 on certain conditions until determination of the review application by the Tribunal.[2]
- [5]On 23 August 2021, the Council filed an application to dismiss or strike out Mr Fleming’s application for review and applied for an order that the stay decision made on 8 July 2021 is lifted.[3]
- [6]In the application to dismiss or strike out, the Council refers to relevant sections of the Animal Management (Cats and Dogs) Act 2008 (Qld) (‘the Act’) that it says confer jurisdiction on the Tribunal to review certain decisions including a decision to declare a dog a dangerous dog. The Council says that by email dated 22 June 2021 it agreed to conduct the internal review of the original decision. The Council says that it advised Mr Fleming of the internal review decision on 13 July 2021.
- [7]Relevantly, s 180 of the Act provides that every review of an original decision must be, in the first instance, by way of an application for internal review. The Council says that, in the present matter the Tribunal did not have jurisdiction to determine the application for review filed on 25 May 2021. Further to that, s 188 of the Act provides that only a person who has been given a notice of internal review may apply for an external review of the original decision.
- [8]Put simply, the filing of Mr Fleming’s application for review is premature because he did not firstly apply to the Council for an internal review of the original decision. Only a person who has applied for an internal review may apply to the Tribunal for an external review.
- [9]On 31 August 2021, the Tribunal directed Mr Fleming to provide written submissions in response to the Council’s application to dismiss or strike out. The Council was directed to file any written submissions in reply.
- [10]On 20 September 2021, Mr Fleming filed an application to stay a decision. In the application Mr Fleming states that his dog has had a litter of 11 puppies and she is having complications. Mr Fleming states:
We ask that you please stay this process until January 2022 so we have time to sort all of this out and so we are able to keep the puppies with Kandy so she can raise them until we find suitable homes for them all.
- [11]On 23 September 2021, the Tribunal directed Mr Fleming to file in the Tribunal and to give to the Council an amended application for review (to review the internal review decision of 13 July 2021) and an application for an extension of time for filing the application for review (the time for filing the application for review having expired on ‘4:00pm on 10 August 2021’) together with written submissions in support.
- [12]The Tribunal also directed that if Mr Fleming fails to comply with the Tribunal’s directions by ‘4:00pm on 8 October 2021’ the Tribunal may proceed to dismiss the application for review filed on 25 May 2021 and the stay granted on 8 July 2021 will come to an end without further notice to the parties.
- [13]On 8 October 2021, Mr Fleming requested an extension of time to comply with the Tribunal’s directions stating that he is currently seeking legal advice on how to proceed.
- [14]On 20 October 2021, the Tribunal extended the time for Mr Fleming to comply with the direction to file an amended application for review and application to extend the time for filing the application for review to ‘4:00pm on 11 November 2021’. The Tribunal directed that if Mr Fleming fails to comply with the direction by ‘the said date’ the Tribunal may proceed to dismiss the application for review filed 25 May 2021 and the stay granted by the Tribunal on 8 July 2021 will come to an end without further notice to the parties.
- [15]The Council’s written submissions filed on 12 October 2021, that were brought to the Tribunal’s attention after the Tribunal issued directions dated 20 October 2021, make clear that on 13 July 2021 Mr Fleming received notification of the Council’s decision to confirm the decision to declare Kandy a dangerous dog (the internal review decision). The Council says that it was satisfied that the evidence relied on by the Council in making the original decision (confirmed on internal review) is that Mr Fleming’s dog ‘Kandy’ attacked a lady walking her partner’s dog on a leash resulting in injuries to the dog requiring veterinary treatment and causing fear to the lady walking the dog. As reflected in the Council’s submissions, Mr Fleming claimed that ‘Kandy’ had not shown aggression in her own environment and had not hurt anyone, however, admitted that ‘Kandy’, as stated, amongst other things, is a ‘big dog and a bit scary’. Further to that, the Council says:
- (a)Mr Fleming gave no indication to the Council of any intention to file an application for review of a reviewable decision or that he was contesting the decision until Mr Fleming emailed the Council on 20 September 2021;
- (b)Mr Fleming provides no submissions addressing the grounds of the application to dismiss or strike out,
- (c)There is no valid application for external review before the Tribunal;
- (d)Mr Fleming has provided no reason for not having filed an application for review within the statutory time frame (noting that Mr Fleming was advised of the time frame by email dated 13 July 2021); and
- (e)The time for filing an application for review of the internal review decision expired on 10 August 2021.
- (a)
- [16]Mr Fleming sent an email to the Tribunal and the Council dated 19 October 2021 stating that, amongst other things, he has been waiting for a decision and Council is now wanting $499.00 to register his dog, there are at least 6 white dogs (meaning of similar description to his dog) in the area and his dog has ‘pups’ that are 5 weeks old. Mr Fleming states:
I’ve given you papers and such haven’t asked for deferrals just to have this matter dismissed the dog description is wrong and the time of ten weeks is a long time to bring a complaint.
- [17]On 3 November 2021, the Tribunal issued directions giving Mr Fleming a further opportunity to file an amended application for review (to review the internal review decision of 13 July 2021) and an application for an extension of time for filing the application for review (the time for filing the application for review having expired on ‘by 4:00pm on 10 August 2021’) together with written submissions in support by ‘4:00pm on 11 November 2021’. The Tribunal directed that if Mr Fleming fails to file the amended application for review and application to extend time by ‘4:00pm on 11 November 2021’, the application for review filed 25 May 2021 will be dismissed by the Tribunal and the stay granted on 8 July 2021 will come to an end without further notice to the parties.
- [18]The Tribunal’s record reflects that Mr Fleming did not respond to the Tribunal’s directions dated 3 November 2021.
The power to dismiss under s 48 of the QCAT Act
- [19]In determining whether to dismiss Mr Fleming’s application for review pursuant to s 48 of the QCAT Act, I have considered the many opportunities given to Mr Fleming to comply with the Tribunal’s directions and his failure to provide a reasonable excuse for his non-compliance.
- [20]Section 48 of the QCAT Act permits the Tribunal, in certain circumstances, to order that a proceeding be dismissed. Relevantly, the Tribunal may dismiss a proceeding if satisfied that a party to a proceeding is acting in a way that unnecessarily disadvantages another party in the proceeding including by not complying with a tribunal order or directions without reasonable excuse.
- [21]I am satisfied that Mr Fleming has failed to provide a reasonable excuse for his noncompliance with the Tribunal’s directions. Mr Fleming has failed to take care in his dealings with the Tribunal.[4] He did not take the necessary steps to progress his matter, he did not file an amended application for review and an application for an extension of time as directed by the Tribunal.
- [22]I am satisfied that Mr Fleming’s non-compliance with the Tribunal’s directions has caused disadvantage to the Council for the purposes of s 48(1) of the QCAT Act. As discussed above, the Council maintains its position with respect to applying to strike out or dismiss the application for review citing Mr Fleming’s failure to, amongst other things, file an application for review within the statutory time frame, the time for filing the review having expired on 10 August 2021.
- [23]In exercising my discretion to dismiss the application for review, I take into account the Tribunal’s objectives set out under s 3 of the QCAT Act to, amongst other things, deal with matters in a way that is accessible, fair, just, economical, informal and quick. I order that the application to review a decision filed 25 May 2021 is dismissed pursuant to s 48 of the QCAT due to non-compliance with the Tribunal’s directions.
Footnotes
[1]Application for review filed 25 May 2021.
[2]Application to stay a decision filed 20 September 2021 and Decision of Member Cranwell dated 8 July 2021.
[3]Application filed 23 August 2021 and Tribunal’s Directions dated 31 August 2021.
[4]Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69, [9] citing Aon Risk Services Australia Limited v Australian National University [2009] 239 CLR 175, at 217, para [113].