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  4. Mehalski v Gladstone Regional Council - [2022] QCAT 223

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Mehalski v Gladstone Regional Council[2022] QCAT 223

Mehalski v Gladstone Regional Council[2022] QCAT 223

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Mehalski v Gladstone Regional Council [2022] QCAT 223

PARTIES:

margaret anne mehalski

(applicant)

v

gladstone regional council

(respondent)

APPLICATION NO/S:

GAR310-21

MATTER TYPE:

General administrative review matters

DELIVERED ON:

17 June 2022

HEARING DATE:

7 June 2022

HEARD AT:

Brisbane

DECISION OF:

Member Browne

ORDERS:

  1. The application to extend the time for filing the application for review is allowed.
  2. The application to dismiss or strike out the application for review is refused.
  3. The interim order made on 31 May 2021 is revoked.

THE TRIBUNAL DIRECTS THAT:

  1. Gladstone Regional Council must file in the Tribunal two (2) copies and give to Margaret Anne Mehalski one (1) copy of the following documents pursuant to s 21(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld):
    1. (a)
      a written statement of reasons for the decision; and
    2. (b)
      all documents or things in its possession or control that may be relevant to the Tribunal’s review.

by:

4:00pm on 11 July 2022.

  1. Margaret Anne Mehalski must file in the Tribunal two (2) copies and give to Gladstone Regional Council one (1) copy of all material upon which she intends to rely at the hearing. The material must:
    1. (a)
      contain statements of all witnesses including Margaret Anne Mehalski ‘s statement;
    2. (b)
      each witness statement must have attached to it all relevant documents with an explanation in the statement as to how they are relevant; and
    3. (c)
      all attachments must be page numbered and must be referred to in the statements;

by:

4:00pm on 2 August 2022.

  1. The application is listed for a compulsory conference on a date and time to be advised by the Tribunal.
  2. The application is listed for a directions hearing on a date and time to be advised by the Tribunal.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TIME, EXTENSION AND ABRIDGMENT – where the applicant filed an application to review a decision out of time – where the applicant filed an application for an extension of time – where the respondent applied to dismiss the application for review – whether the application for an extension of time should be granted – whether the application should be dismissed

Animal Management (Cats & Dogs) Act 2008 (Qld), s 188

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47, s 33, s 61

Coppens v Water Wise Design Pty Ltd [2014] QCATA 309

Harper Property Builders Pty Ltd v Queensland Building and Construction Commission [2018] QCATA 70

APPEARANCES &

REPRESENTATION:

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. [1]
    Gladstone Regional Council applies to dismiss Ms Mehalski’s application for review because it was not filed within the prescribed time for filing an application. Ms Mehalski also applies for an extension of time to file her application.
  2. [2]
    The Council contends that the time for filing an application with QCAT in respect of its internal review of a dangerous dog declaration expired on 25 June 2021. Further to that, it is contended that no application for external review has been served on Council.[1]
  3. [3]
    On the other hand, Ms Mehalski argues that she was given the wrong information by the local Magistrates Court about filing an application in QCAT and requests that the Tribunal grant her an extension of time to file an application for review.[2]
  4. [4]
    In this matter I required to determine the Council’s application to dismiss or strike out and Ms Mehalski’s application for an extension of time to file an application for review. I am also required to determine whether an interim order (to not destroy any dogs) dated 31 May 2021 should be revoked pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).[3]

Background

  1. [5]
    On 17 May 20021, Ms Mehalski applied to the Tribunal to review the Council’s original decision dated 6 May 2021 to declare the dogs ‘Baloo’ and ‘Jewell’ dangerous dogs.[4] Attached to the application for review was a notice of destruction order dated 5 May 2021 for the relevant dogs.
  2. [6]
    Ms Mehalski also applied for a stay of Council’s decision and on 31 May 2021, the Tribunal granted a stay and ordered that the Council must not destroy the dogs the subject of any destruction order.[5]
  3. [7]
    Ms Mehalski’s application for review was premature because she did not firstly apply to the Council for an internal review of its decision. Relevantly, under the Animal Management (Cats & Dogs) Act 2008 (Qld) (the Act), an interested person for an original decision must firstly apply to the Council for an internal review before applying to QCAT for an external review of the decision.[6]
  4. [8]
    After filing the application in QCAT, Ms Mehalski applied to the Council for an internal review and on 28 May 2021, the Council confirmed its original decision to declare the dogs ‘Baloo’ and ‘Jewell’ dangerous dogs.
  5. [9]
    After confirming its original decision on internal review, the Council applied to the Tribunal to dismiss or strike out Ms Mehalski’s application for review.[7]
  6. [10]
    Ms Mehalski applied to the Tribunal to extend the time for filing the application and filed fresh applications to review Council’s decision of 28 May 2021.[8]

The application to extend time

  1. [11]
    Time limits should be complied with unless there is a compelling reason not to comply.[9]
  2. [12]
    The Tribunal may extend the time for filing an application for review.[10] The usual considerations relevant to the exercise of the Tribunal’s discretion to extend time include the length of the delay, the adequacy of an explanation of the delay, the merits of the proceeding sought to be litigated, prejudice to others and the interests of justice.[11]
  3. [13]
    In the present matter, the Council contends that on 25 May 2021, it issued a destruction order for the dogs ‘Baloo’ and ‘Jewell’ and on 17 June 2021 settlement was reached between the Council and Ms Mehalski’s legal representative with respect to the dangerous dog decision.
  4. [14]
    The Council says that Ms Mehalski agreed to surrender the dog ‘Baloo’ for destruction and to accept the requirements for keeping a dangerous dog with respect to the dog ‘Jewell’.[12] The Council says that on 25 June 2021, a formal notice of withdrawal of the destruction order (issued on 25 May 2021) in respect of ‘Jewell’ was issued to Ms Mehalski.[13]
  5. [15]
    The Council says that Ms Mehalski was aware of the requirement to file an application for review within the required time limit should she wish to do so.[14] Further to that, the Council says that Ms Mehalski has provided no reason for not having filed an application for review within the required time and that the time for filing the application expired on 25 June 2021.
  6. [16]
    The Council refers to the purpose of the Act and submits that the decision to declare the dog a dangerous dog was necessary to ensure the protection of the community from the risk of the dog being unrestrained in a public place and further injuring another animal or a person. Finally, the Council says that it would be contrary to the purposes of the Act to allow Ms Mehalski over 4 months extension of time to file an application for external review particularly in circumstances where she agreed in June 2021 to accept the dangerous dog declaration, to comply with the obligations for keeping a dangerous dog. The Council submits that the QCAT proceedings should be discontinued.
  7. [17]
    I have carefully considered the submissions filed by the Council and Ms Mehalski. I am satisfied that the Ms Mehalski has provided an explanation for the delay in filing the application for review. Ms Mehalski says that after she applied to QCAT the Council sent emails about her application being filed early. Ms Mehalski says and I accept that she continued to ‘await instructions from QCAT’.
  8. [18]
    The Tribunal’s record shows that Ms Mehalski filed her application for review on 11 May 2021 and on 31 May 2021 the Tribunal issued directions to the parties for the filing of material and amongst other things, directed that the matter be listed for a compulsory conference. In my view, it was reasonable for Ms Mehalski to assume that her application had been accepted by the Tribunal on the basis that directions were issued to the parties for the filing of material and listing the matter for a compulsory conference. Further to that, the Council only applied to the Tribunal to dismiss or strike out Ms Mehalski’s application for review on 4 August 2021 being some months after the application for review was filed in the Tribunal.
  9. [19]
    Although I accept that the Council may not have received a copy of Ms Mehalski’s application despite her being directed to do so, the Tribunal did issue directions to the parties and stayed the decision (to destroy the dogs) on 31 May 2021. It is open for me to find that the Council was aware of Ms Mehalski’s application for review having been filed in the Tribunal on or about 31 May 2021, the date of the Tribunal’s directions that were issued to the parties.
  10. [20]
    There is some delay by Ms Mehalski in filing a fresh application to review the Council’s internal review decision. This is one of a number of matters to be considered in exercising my discretion to allow an extension of time. I am satisfied that Mr Mehalski has provided an explanation for the delay in filing the application.
  11. [21]
    I accept, as contended by the Council, that an agreement was reached between the parties with respect to the issuing of a destruction order for the dogs including that ‘Baloo’ would be surrendered to Council. I do not accept, however, that Ms Mehalski agreed to waive her rights to apply for an external review of any decision with respect to ‘Jewell’.
  12. [22]
    On a fair reading of the email dated 16 June 2021 identified by the Council as the document that sets out the terms of agreement, the Council refers to Ms Mehalski as being able to make a further application in respect of ‘Jewell’ should she not be satisfied with the internal review. On balance, I accept Ms Mehalski’s submission that she believed that she could exercise her rights with respect to Council’s decision about ‘Jewell’ based on the information she had received from her lawyer.[15]
  13. [23]
    I accept that Council has a statutory duty to make relevant decisions under the Act and this requires the Council in certain cases to make decisions to declare a dog a dangerous dog to ensure the protection of the community. This alone is not a reason to refuse the application to extend time. Indeed, Ms Mehalski is required to meet any statutory requirements for keeping ‘Jewell’ a declared dangerous dog and Council is responsible for ensuring that such requirements are being met.
  14. [24]
    Although it is not necessary for me to determine the merits of Ms Mehalski’s application for review, on balance, I am satisfied that Ms Mehalski may have an arguable case. Ms Mehalski submits that the Council did not take into consideration eye witness accounts of the incident that resulted in the decision to declare her dog a dangerous dog and that she will provide her witness statements should the matter go ahead.[16] The Tribunal on review in arriving at the correct and preferable decision is well placed to consider all of the evidence including any proposed terms of settlement that the Council now contends is relevant to the reviewable decision to declare ‘Jewell’ a dangerous dog.
  15. [25]
    The time for filing the application for review in respect of the decision to declare the dog ‘Jewell’ a dangerous dog should be extended. I order accordingly.

Application to dismiss or strike out

  1. [26]
    I refuse Council’s application to dismiss or strike out the application for review because I have determined that the time for filing the application for review is extended. In determining whether to refuse Council’s application to dismiss or strike out, I have considered the submissions made in support that effectively rely upon Ms Mehalski’s failure to file her application for review within the prescribed time limit of 28 days from when she was notified of Council’s internal review decision. Further to that, Council has referred me to the settlement agreement entered into between the parties with respect to the issuing of a destruction order for the dogs and has made submissions with respect to the merits of Ms Mehalski’s review proceedings.
  2. [27]
    As discussed above, I accept Ms Mehalski’s explanation for her delay in filing the application for review and, amongst other things, that she may have an arguable case. I am disinclined to exercise my discretion to dismiss the application for review.[17] I order that the application to dismiss or strike out is refused.

Should the interim order dated 31 May 2021 be dismissed?

  1. [28]
    The reviewable decision before the Tribunal is the Council’s decision to declare ‘Jewell’ a dangerous dog. I am satisfied that it is appropriate to exercise my discretion under s 47 of the QCAT to revoke the interim order granted on 31 May 2021 to not destroy the dogs the subject of a destruction order. I order accordingly.

Footnotes

[1]  Application for miscellaneous matters (to dismiss or strike out) filed by the respondent on 4 August 2021 together with written submissions.

[2]  Application to extend time filed 12 October 2021.

[3]  Tribunal’s Directions dated 15 December 2021 and applications listed for a decision on the papers on 7 June 2022.

[4]  Application for review filed 17 May 2021.

[5]  Decision dated 31 May 2021 and application to stay a decision filed on 11 May 2021.

[6]  See s 188 and Part 1 of the Act.

[7]  Application to dismiss or strike out filed 4 August 2021.

[8]  Applications filed on 13 October 2021 and 3 November 2021.

[9]  See Coppens v Water Wise Design Pty Ltd [2014] QCATA 309, 4 [14].

[10]  Queensland Civil and Administrative Tribunal Act 2009 (Qld), (QCAT Act), s 61 and s 33.

[11]  See Harper Property Builders Pty Ltd v Queensland Building and Construction Commission [2018] QCATA 70.

[12]  Application and submissions filed 4 August 2021.

[13]  Ibid, p 23 of the supporting material.

[14]  Council’s submissions filed 8 November 2021.

[15]  Submissions filed 29 November 2021.

[16]  Ibid.

[17]  See sections 47 and 48 of the QCAT Act.

Close

Editorial Notes

  • Published Case Name:

    Mehalski v Gladstone Regional Council

  • Shortened Case Name:

    Mehalski v Gladstone Regional Council

  • MNC:

    [2022] QCAT 223

  • Court:

    QCAT

  • Judge(s):

    Member Browne

  • Date:

    17 Jun 2022

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Coppens v Water Wise Design Pty Ltd [2014] QCATA 309
2 citations
Jump To
Cite 1 - [2014] QCATA 309
Cite 2 - [2014] QCATA 309
Harper Property Builders Pty Ltd v Queensland Building and Construction Commission [2018] QCATA 70
2 citations
Jump To
Cite 1 - [2018] QCATA 70
Cite 2 - [2018] QCATA 70

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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