Harper v Sunshine Coast Regional Council
[2023] QCAT 125
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- Unreported Judgment
- Harper v Sunshine Coast Regional Council[2023] QCAT 125
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Harper v Sunshine Coast Regional Council[2023] QCAT 125
Harper v Sunshine Coast Regional Council[2023] QCAT 125
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Harper v Sunshine Coast Regional Council [2023] QCAT 125 |
PARTIES: | heidi harper (applicant) v sunshine coast regional council (respondent) |
APPLICATION NO/S: | GAR162-22 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 5 April 2023 |
HEARING DATE: | 28 March 2023 |
HEARD AT: | Brisbane |
DECISION OF: | Member Deane |
ORDERS: | The Application to review a decision filed 11 May 2022 is dismissed for lack of jurisdiction. |
CATCHWORDS: | PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – JURISDICTION – GENERALLY – where Dangerous Dog declaration made – where owner of the dog did not await the outcome of internal review prior to proceeding to external review – whether right to external review had arisen at time Application filed – whether the Tribunal has power to make any orders ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where Dangerous Dog declaration made – where owner of the dog contends her dog was acting in self-defence – whether dog seriously attacked Animal Management (Cats and Dogs) Act 2008 (Qld), s 6, s 59, s 60, s 61, s 89, s 90, s 94, s 180, s 188, s 194, s 195, s 196, schedule 2 Human Rights Act 2019 (Qld), s 5, s 8, s 9, s 13, s 24, s 31, s 48, s 58 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24, s 28 Brisbane City Council v Roy [2020] QCATA 147 Imbrogno & Anor v Brisbane City Council [2017] QCATA 148 Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 Laidlaw v Queensland Building Services Authority [2010] QCAT 70 Lee v Brisbane City Council [2012] QCA 284 Lee v Brisbane City Council (No 2) [2012] QCATA 64 Reich & Anor v Toowoomba Regional Council [2023] QCAT 47 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self- represented |
Respondent: | L Ryan, Supervisor Prosecutions and Reviews |
REASONS FOR DECISION
- [1]Ms Harper seeks review of a decision by the Sunshine Coast Regional Council (the Council) to declare her dog, Rex, a dangerous dog under the Animal Management (Cats and Dogs) Act 2008 (Qld) (the Act).
- [2]On 17 January 2022 Ms Harper was walking Rex and another of her dogs. An incident occurred whereby Rex bit another dog, Millie, who was barking at Ms Harper and her dogs and Ms Harper says acting aggressively. Following the incident, Millie required veterinary treatment including surgery for wounds inflicted by Rex’s bite. A copy of an invoice for treatment on the day of the incident evidences expenditure of $4,987.15 (incl GST), $788.90 (incl GST) on 18 January, $440.10 (incl GST) on 19 January and $92.10 (incl GST) on 21 January.
- [3]The parties agreed with the following timeline of events:
- (a)The Council investigated the incident and on 8 March 2022 issued a Proposed Regulated Dog Notice under section 90 of the Act to Ms Harper, as the owner of Rex (the ‘proposal decision’);
- (b)Ms Harper sought internal review of the ‘proposal decision’ on 23 March 2022;
- (c)The Council issued an internal review decision of the ‘proposal decision’ on 11 April 2022, confirming the ‘proposal decision’;
- (d)The Council issued a Regulated Dog Declaration Information Notice declaring Rex a dangerous dog on 27 April 2022 (‘Declaration Decision’);
- (e)Ms Harper sought internal review of the Declaration Decision on 10 May 2022;
- (f)Ms Harper sought external review of the Declaration Decision on 11 May 2022 by filing an Application to review the Council’s decision dated 27 April 2022 (the Application);[1]
- (g)The Council issued an internal review decision on the Declaration Decision on 20 June 2022, confirming the Declaration Decision.
- (a)
Does the Tribunal have jurisdiction to hear this Application?
- [4]I find that the Tribunal lacks jurisdiction to hear and determine the external review of the Declaration Decision. The Application must be dismissed for want of jurisdiction.
- [5]At the oral hearing I raised with the parties that there may be a jurisdictional issue and sought submissions. The parties agreed that I should decide the jurisdictional point and consider the merits of the Application based on the documents filed.
- [6]Ms Harper submitted that she made enquiries with the Council as to the time frame for seeking internal and external review, she did not receive a clear answer, so she filed the external review to avoid being out of time. The Declaration Decision refers to seeking internal review and external review.[2] I accept that the information about review rights in the Council document could be clearer. It states: ‘You must have sought an internal review of this decision before applying for an external review.’
- [7]The Act sets out review rights, which determines the Tribunal’s powers.
- [8]Section 180 of the Act provides:
Every review of an original decision must be, in the first instance, by way of an application for internal review.
- [9]The undisputed evidence is that Ms Harper sought an internal review on 10 May 2022 and that on 20 June 2022 the Council confirmed its decision of 27 April 2022.
- [10]At the time Ms Harper filed the Application on 11 May 2022 the internal review had not been completed and she had not received a review notice for the internal review. The requirement for an internal review under section 180 of the Act is mandatory.
- [11]As the Tribunal has relevantly found:
Given the express words of s 180 of the Animal Act, it is only after the internal review process under Chapter 8 Part 1 has been exhausted do the provisions of Chapter 8 Part 2 – External reviews apply. ……Part 2 is extracted here.
188 Who may apply for external review
A person who is given, or is entitled to be given, a review notice for a decision under part 1 may apply, as provided under the QCAT Act, for an external review of the decision.[3]
- [12]Ms Harper had not received a review notice in respect of the Declaration Decision at the time she filed the Application. The external review right did not arise until at least 20 June 2022. The Tribunal has no jurisdiction to make any orders under the Act.
- [13]The Human Rights Act 2019 (Qld) commenced on 1 January 2020. In deciding whether the Tribunal has jurisdiction under the Act, the Human Rights Act applies to the extent the tribunal has functions under part 2 and part 3, division 3.[4] I have interpreted statutory provisions, to the extent possible that is consistent with their purpose, in a way that is compatible with human rights.[5] I accept that these proceedings potentially impacts Ms Harper’s rights.[6] I have considered Ms Harper’s human rights, raised the jurisdictional issue, invited submission and considered the undisputed evidence. I am satisfied that the decision that the Tribunal lacks jurisdiction is compatible with her human rights as the limitations on those rights are reasonable and justifiable and are in accordance with the clear intention of the Act that internal review should be completed before external review is commenced.
- [14]In view of the Council’s indication that if Ms Harper commenced a new review application in respect of the internal review decision of 20 June 2022 it would not consent to an application to extend time for filing such a review, I have considered what orders would be appropriate if I am wrong and the Tribunal has jurisdiction.
What would be the correct and preferable decision?
- [15]I find that the correct and preferable decision, on the evidence before me, is to confirm the Council’s decision.
- [16]On a review, the Tribunal has power to confirm or amend the Council’s decision, set aside the decision and substitute its own or set aside the decision and return it to the Council for reconsideration.[7] The Tribunal’s function is to reach the correct and preferable decision after a fresh hearing on the merits.[8] The Tribunal must decide the review in accordance with the QCAT Act and the enabling Act under which the decision was made. There is no presumption that the decision under review is correct.[9]
- [17]
- [18]The Tribunal has recognised that an applicant in review proceedings has no formal onus of proof but has an evidential or practical onus to adduce evidence which supports its case as the Tribunal must make its decision on the material before it. As stated in Laidlaw v Queensland Building Services Authority[11]
In the absence of appropriate evidence the tribunal will not be free to make the decision sought by the party. This has sometimes been described as an evidentiary burden, but there is no formal onus of proof. The question is whether the Tribunal is satisfied that the provision under consideration can be invoked on the information or material before it.
- [19]The Appeal Tribunal in Brisbane City Council v Roy[12] considered the statutory scheme, which it described as follows:
- [20]A regulated dog means a declared dangerous dog, a declared menacing dog or a restricted dog.[13] A local government may declare a dog to be dangerous, menacing or restricted.[14] A declared dangerous dog includes a dog declared to be dangerous under s 94 of the AM Act.[15] A dangerous dog declaration may be made if a dog:
- (a)has seriously attacked, or acted in a way that caused fear to, a person or another animal; or
- (b)may, in the opinion of an authorised person having regard to the way the dog has behaved towards a person or another animal, seriously attack, or act in a way that causes fear to, the person or animal.[16]
- [21]A menacing dog declaration may be made for a dog only if a ground referred to in s 89(2) of the Act exists, except that the attack was not serious.[17]
- [22]‘Seriously attack’ means to attack in a way causing bodily harm, grievous bodily harm or death.[18] ‘Grievous bodily harm’ and ‘bodily harm’ have the meaning given by the Criminal Code Act 1899 (Qld) (‘Criminal Code’), s 1.[19] Under the Criminal Code: ‘bodily harm’ means any bodily injury which interferes with health or comfort; ‘grievous bodily harm’ means the loss of a distinct part or an organ of the body; or serious disfigurement; or any bodily injury of such a nature that, if left untreated, would endanger or be likely to endanger life, or cause or be likely to cause permanent injury to health; whether or not treatment is or could have been available.
- [23]If a local government proposes to make a regulated dog declaration it must first give to the owner of the dog a proposed declaration notice.[20] The local government must consider any written representations and evidence submitted by the dog owner.[21] If the local government is satisfied that a ground for making the declaration still exists, it must make the regulated dog declaration.[22]
- [20]Ms Harper did not dispute that Millie suffered bodily harm from Rex’s actions rather she contends that Rex acted in self-defence in response to Millie’s aggression and was acting to protect her from a threat of harm. She contends that Millie attacked her and her dogs within the meaning of a local law and that the Council’s employee who investigated the incident had made such a finding.
- [21]Where the Act and a local law are inconsistent the Act prevails.[23] The term ‘seriously attack’ in the Act is not defined by reference to the definition of attack in a local law.
- [22]The Appeal Tribunal[24] has previously found that review of a decision under section 94 of the Act cannot effectively extend to what is in effect the review of a decision under section 90 of the Act to issue a proposed declaration notice and stated the issue for decision:
having considered all of the evidence including that before the reviewer, is whether the relevant ground under s 89 still exists after considering ‘any written representation and evidence accompanying them’ pursuant to s 94(1). If nothing changes, or materially changes, then the local government ‘must’ make the regulated dog declaration for the dog.[25]
- [23]The Appeal Tribunal noted the contrast between the discretion under section 89 of the Act with section 94 of the Act, where there is no discretion.[26]
- [24]
the focus of Chapter 4 is upon the protection of the community from damage or injury from regulated dogs and ensuring regulated dogs are not a risk to the community and are appropriately controlled and kept, and that dogs are controlled and kept in a way consistent with community expectations and the rights of individuals. In some respects construction of the provisions of Chapter 4 so as to give effect to these stated purposes is difficult.
- [25]Further the Appeal Tribunal noted:
On a proper construction of the section, a proposed declaration notice may be withdrawn by a local government at any time after issue until such time as, after the owner of the dog has made written representations, the local government is satisfied that the relevant ground under s 89 still exists. This is the logical construction of the section, noting that the process prescribed by Part 4 can come to an end either by withdrawal of the proposed declaration notice or the making of the declaration.[28]
- [26]The Appeal Tribunal found (references omitted):
- [54]If the local government is satisfied about the facts out of which the power to make a declaration about a dog arises, the local government must, by s 94(2) of the AM Act, make the declaration.
- [55]The ‘relevant ground’ in s 94(2) is a reference to the considerations which must be taken into account in exercising the power to make a regulated dog declaration to which we have earlier referred, that is ss 89(2) and (3).
- [56]Use of the word ‘must’ in s 94 indicates that the power granted is required to be exercised. There is no discretionary element involved save that the decision maker must be satisfied that the relevant ground under s 89 is made out. If it is not, the regulated dog declaration proposed cannot be made.
- [57]Nor, do we consider s 94(2) permits in such circumstance any other order than to refuse to make the proposed regulated dog declaration. The mandatory notice of proposed declaration under s 90(1)(c) must state the particular type of regulated dog declaration proposed to be made. Where the relevant ground supporting the particular type of regulated dog declaration is not made out, the mandatory notice provision of s 90 cannot have been satisfied in respect of another type of declaration.
- [58]Turning then to the decision by the learned member, it follows from the aforesaid that, having found that the considerations set out in s 89(2) had been satisfied, the learned member was obliged to make the dangerous dog declaration. He had no discretion to do otherwise.
- [27]I accept the evidence Ms Harper provided as to the usually gentle nature of Rex. Although section 196 of the Act provides that provocation is a defence to prosecution for an offence against sections 194 or 195 there is no similar provision regarding section 89 of the Act.
- [28]This is a review proceeding, where Ms Harper is the applicant. It is not a prosecution of Ms Harper nor Rex, nor Millie nor her owner.
- [29]The Appeal Tribunal has previously found that provocation is a circumstance which may be considered.[29]
- [30]
It may be accepted that the behaviour of the spaniel in running and barking could, as the appeal tribunal said, be characterised as an attack. But at issue was whether the German Shepherd had seriously attacked the spaniel, as that expression is defined in s 89(7). It will be a question of fact whether what a dog does amounts to an attack for the purposes of the section, and in deciding that question, hostile behaviour by the animal which is the victim may be relevant. There may be a factual issue, for example, as to whether one dog biting another is attacking or simply defending itself (although where there has been no physical contact preceding the bite, defence is a less likely conclusion). But as a matter of law, there is nothing in s 89 which precludes a finding of attack where the behaviour of the dog in question is a response to aggression from its victim. To put it another way, it is not a pre-requisite to a finding of serious attack by one dog on another that there be a finding that the second dog has itself done nothing which could be described as an attack.[32]
- [31]There is some conflicting evidence before me as to the level of aggression displayed by Millie including how close Millie was and how far Rex lunged to bite her. It is not unusual that recollections may vary. Such events often unfold quickly. There is no evidence that Millie bit Rex, Ms Harper, or Ms Harper’s younger dog nor evidence that there was physical contact prior to Rex biting Millie.
- [32]Even if I accepted that Millie instigated the interaction with Rex by provoking or ‘attacking’ Rex, that Millie’s owner could have taken greater control of Millie, which may have avoided contact between Millie and Rex, and that Ms Harper took reasonable steps to avoid the contact, the undisputed evidence is that Rex took Millie in his mouth and shook her. This caused injuries to Millie, which required veterinary treatment at reasonably significant expense.
- [33]I find that Rex seriously attacked Millie because he caused bodily harm to Millie.
- [34]Having considered the evidence before me, I am satisfied that a ground under section 89(2) of the Act still exists. Under the Act, in those circumstances, I have no discretion. As referred to earlier at [22], this is not a review of a decision under section 90 of the Act to issue a proposed declaration notice.
- [35]The correct and preferable decision is to confirm the decision to declare Rex a dangerous dog.
Human Rights Act
- [36]In deciding this Application on the merits, I would be acting as a public entity[33] in an administrative capacity.
- [37]I have interpreted statutory provisions, to the extent possible that is consistent with their purpose, in a way that is compatible with human rights.[34] I accept that these proceedings and a decision under the Act potentially impacts Ms Harper’s rights.[35] I have considered Ms Harper’s human rights and am satisfied that the decision would be compatible with her human rights as the limitations on those rights are reasonable and justifiable.[36]
- [38]The limitation of Ms Harper’s human rights is consistent with the purposes of chapter 4 of the Act, which relevantly are to:[37]
- (a)protect the community from damage or injury, or risk of damage or injury, from particular types of dogs called ‘regulated dogs’; and
- (b)ensure the dogs are—
- (i)not a risk to community health or safety; and
- (ii)controlled and kept in a way consistent with community expectations and the rights of individuals.
Footnotes
[1]Exhibit 1.
[2]Exhibit 10, Bundle of documents, p 38.
[3]Reich & Anor v Toowoomba Regional Council [2023] QCAT 47, [34].
[4]Human Rights Act 2019 (Qld), s 5.
[5]Ibid, s 48.
[6]Ibid, s 24, s 31.
[7]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24 (QCAT Act).
[8]Ibid s 20.
[9]Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [9].
[10]QCAT Act, s 28(2).
[11][2010] QCAT 70, [23] (references omitted).
[12][2020] QCATA 147.
[13]The Act, s 60.
[14]Ibid s 89(1).
[15]Ibid s 61(a).
[16]Ibid s 89(2).
[17]Ibid s 89(3).
[18]Ibid s 89(7).
[19]Ibid sch 2.
[20]Ibid s 90(1).
[21]Ibid s 94(1).
[22]Ibid s 94(2).
[23]Ibid, s 6(3).
[24]Imbrogno & Anor v Brisbane City Council [2017] QCATA 148.
[25]Ibid, [20].
[26]Ibid, [21].
[27][2020] QCATA 147, [35]
[28]Ibid, [42].
[29]Lee v Brisbane City Council (No 2) [2012] QCATA 64.
[30]Lee v Brisbane City Council [2012] QCA 284, [5] – [12].
[31]Ibid, [15] – [16].
[32]Ibid, [11].
[33]Human Rights Act 2019 (Qld), s 9.
[34]Ibid, s 48.
[35]Ibid, s 24 s 31.
[36]Ibid, s 8, s 13, s 31, s 48, s 58.
[37]The Act, s 59(1).