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Reich v Toowoomba Regional Council[2023] QCAT 47

Reich v Toowoomba Regional Council[2023] QCAT 47

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Reich & Anor v Toowoomba Regional Council [2023] QCAT 47

PARTIES:

Suzanne Reich

and

BRETT DAVID REICH

(applicants

 

v

 

TOOWOOMBA REGIONAL COUNCIL

(respondent)

APPLICATION NO:

GAR253-21

MATTER TYPE:

General administrative review matters

DELIVERED ON:

7 February 2023

HEARING DATE:

7 October 2022

HEARD AT:

Brisbane via MS Teams

DECISION OF:

Member Taylor

ORDERS:

  1. The applicants’ Application to Review a Decision filed 8 April 2021 is dismissed for want of jurisdiction.
  2. Should the respondent wish to press its claim for costs in this proceeding, I will hear the parties on costs by way of written submissions in accordance with the timeline as set out in the following orders.
    1. (a)
      The respondent is to file and serve its written submissions on costs not later than:

4:00 pm Tuesday 28 February 2023.

  1. (b)
    The applicants are to file and serve their written submissions on costs in reply (if any) not later than:

4:00 pm Tuesday 14 March 2023.

  1. (c)
    The respondents is to file and serve its written reply (if any) to the applicants’ submissions not later than:

4:00 pm Tuesday 21 March 2023.

  1. (d)
    The issue of costs will thereafter be determined on the papers.
  1. Should the respondent decide not to press its claim for costs in this proceeding, the respondent is to inform this Tribunal and the applicants in writing not later than:

4:00 pm Tuesday 21 February 2023.

 

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – animals – dangerous dog – where Dangerous Dog declaration made – where owners of the dogs did not proceed to internal review prior to proceeding to external review – where the jurisdiction of this Tribunal is challenged by the respondent – where the respondent seeks costs of the proceeding

Acts Interpretation Act 1954 (Qld), s 14A, s 14B

Animal Management (Cats and Dogs) Act 2008 (Qld), s 60, s 61, s 89, s 90, s 94, s 95, s 180, s 181, s 183, s 184, s 186, s 187, s 188, s 189, Schedule 2

Animal Management (Cats and Dogs) Bill 2008, Chapter 8, Part 1, Clause 180

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 6, s 17, s 18, s 19, s 20, s 21, s 22, s 24, s 33, s 102

Brisbane City Council v Roy [2020] QCATA 147

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Thomas v Ipswich City Council [2015] QCATA 97

APPEARANCES & REPRESENTATION:

 

Applicants:

Self-represented by Ms Suzanne Reich

Respondent:

Mr H. Humphries – Solicitor of Clifford Gouldson Lawyers

REASONS FOR DECISION

Synopsis

  1. [1]
    On 12 March 2021, a dog known as Xena who belongs to the applicants was declared by the respondent to be a dangerous dog. This occurred as a consequence of an attack by Xena in conjunction with another dog belonging to the applicants, but now deceased, on a postal worker who was making a delivery to the applicants’ residential property.
  2. [2]
    The applicants sought an external review of that decision by this Tribunal. However, for the reasons that are explained herein, they have done so in a manner inconsistent with the process dictated by the Animal Management (Cats and Dogs) Act 2008 Qld (the Animal Act) such that this Tribunal’s jurisdiction has not arisen in order to decide their application. Accordingly, the order must be that their application is dismissed for want of jurisdiction.
  3. [3]
    But, notwithstanding that position at law, for the benefit of the applicants given the task that they undertook and the efforts they put into pressing their application, something more should be said. Having heard the evidence and competing submissions at the hearing in this proceeding I was readily able to conclude that even if jurisdiction existed the conclusion I would have reached was that the respondent’s decision to declare Xena a dangerous dog was the correct one.

Background

  1. [4]
    The applicants live on a rural property in Mount Rascal, which is located within the Toowoomba region of Queensland. In January 2021 they were the owners of two dogs, one named Xena and one named Mini.
  2. [5]
    On the morning of Monday 22 January 2021, Mr Parker, a mail delivery contractor for Australia Post attended at the property to deliver some parcels. Both dogs were present there on that day. That morning, having left the parcels at what he described as ‘a pre-arranged safe spot’, he was walking back to his car when he saw two dogs running towards him, described by him as “barking with their heads lowered”. He says he knew the dogs lived at that address, describes them both as Blue Heelers, and says that they looked very similar such that he could not tell them apart. He says that once the dogs reached him one of them bit his left calf, described as being not a nip but one that had “grabbed me good”, whilst the other dog bit one of his steel capped boots and “began to shake”.[1] (the Attack)
  3. [6]
    On 29 January 2021, following the respondent’s investigation of the Attack, it issued a Proposed Regulated Dog Notice under s 90 of the Animal Act to Mr Reich as the nominated owner of the two dogs.[2] (Proposed Regulated Dog Notices)
  4. [7]
    On 10 February 2021, the two applicants responded to the Proposed Regulated Dog Notices by way of a single letter addressed to the respondent’s ‘Animal Management Centre’. The subject matter of the letter was described as ‘Appeal of Proposed Regulated Dog Declaration Notice for Xena Reich and Mini Reich’.[3]
  5. [8]
    The content of that document is prolix, and for present purposes it suffices to note that the applicant’s made representations therein under the headings ‘Adequate management of dogs in place’, ‘Postal delivery obligations’, ‘Usual nature of the dogs’, ‘Inconsistent allegations’, and ‘Subjective interpretation and harsh application of relevant legislation’. (the Applicants’ Representations)
  6. [9]
    They conclude these representations with the following statement:

REVIEW OF DECISION

On the basis of the arguments set out above that constitute our grounds of appeal we request a review of this decision. Upon review, we would ask that Council exercise a more objective approach to considering the full scope of evidence that is available, the additional factors set out in this appeal, and a fair and reasonable application of the law as it relates to this case.

  1. [10]
    By letter dated 12 March 2021 the respondent issued to both applicants a letter responding to the Applicants’ Representations. It informed the applicants that they had “not provided evidence to demonstrate that Council had erred in its decision to propose your dogs ‘Xena’ and ‘Mini’ and Council will not withdraw the proposal”. It included therewith a ‘Regulated Dog Declaration Information Notice’ for each dog declaring both Xena and Mini dangerous dogs.[4] (the Dangerous Dog Declarations)
  2. [11]
    What then followed was that on 8 April 2021 the applicants, in the name of Ms Reich only,[5] applied to this Tribunal seeking external review of the Dangerous Dog Declarations.[6] (the External Review Application). The premise of that application was expressed therein as follows:
  1.  Discretionary decision making power has been improperly exercised; and
  1.  The investigation process was not conducted in a professional, integral or impartial manner.
  1. [12]
    Subsequently, on 1 June 2021 the applicants, once again in the name of Ms Reich only, applied to this Tribunal for a stay of the Dangerous Dog Declarations. By order of this Tribunal given 6 July 2021, those declarations were stayed until the External Review Application had been determined by this Tribunal. (the Stay Order)
  2. [13]
    On 13 December 2021, the parties attended a compulsory conference as part of this proceeding, the outcome of which is recorded in Directions issued by this Tribunal that same day. Those Directions required the applicants to notify the Tribunal and the respondent not later than 20 December 2021 as to whether they wished to proceed with the Review Application, and if they decided not to proceed then the outcome of the proceeding would be that the Dangerous Dog Declarations would be set-aside and substituted with a ‘menacing dog declaration’ for each of Xena and Mini. On 20 December 2021, the applicants advised of their election to proceed with the Review Application. (the Compulsory Conference Outcome)
  3. [14]
    Since the Compulsory Conference Outcome,  Mini has passed away. Accordingly the issues before me now concern only the Dangerous Dog Declaration concerning Xena.
  4. [15]
    It is against the background as I have just described it that I conducted the hearing before me and reached the decisions I did in this proceeding, my reasons for which being as follows here.

The Issues in these Proceedings

  1. [16]
    There is a fundamental issue that I must consider as a threshold point. It is whether this Tribunal has jurisdiction to determine the External Review Application. The respondent submitted that this Tribunal is not seized of jurisdiction because the applicants did not first proceed to internal review as they were required to do under Chapter 8 of the Animal Act.
  2. [17]
    In the short discussion that ensued at the start of the hearing when this issue was raised, on enquiry from me, Mr Humphries who appeared for the respondent stated that it had not been raised with the Tribunal previously. Ms Reich who appeared for herself and her husband as applicants could not contribute much to the discussion other than to say her understanding was that they had applied for internal review by way of their ‘appeal document’, referring to their letter to the respondent of 10 February 2021.
  3. [18]
    Given these facts, and that this Tribunal’s time and resources had already been allocated to the hearing of the matter that day, and moreover that the parties were prepared and ready to deal with it that day, the parties were agreeable to me reserving my decision on jurisdiction without hearing from them further and/or adjourning the hearing to enable them to prepare and make submissions to me on the issue, and were content to continue with the hearing to hear and receive the evidence and submissions on the substantive issues so as I could deal with the application in its entirety should I ultimately decide there was jurisdiction. As such the hearing then continued with the presentation of short opening statements, evidence, and oral closing submissions.[7]
  4. [19]
    That informed me it was not in issue that the Attack occurred, but that what was in issue was whether the Attack was one which properly fell within the ambit of s 89(2) of the Animal Act. As I understood the argument being pressed by the applicants, the identity of the dog which is said to have bitten Mr Parker on his calf, vis-à-vis the dog which merely bit his boot, was also in issue, such arising given the passing of Mini and thus the External Review Application proceeding as one concerning only Xena.
  5. [20]
    Before discussing that threshold jurisdictional issue, and then dealing with the substantive issues as need be, it is appropriate that I first outline the applicable law.

The Statutory Framework of the Animal Act[8]

  1. [21]
    Under s 60 of the Animal Act, a regulated dog means a declared dangerous dog, a declared menacing dog, or a restricted dog. Under s 61(a) of the Act, a declared dangerous dog includes a dog declared to be dangerous under s 94 of the Act.
  2. [22]
    Under s 89(1) of the Animal Act a local government may declare a dog to be dangerous, menacing, or restricted. Under s 89(2) of the Act a dangerous dog declaration may be made if a dog:
    1. (a)
      has seriously attacked, or acted in a way that caused fear to, a person or another animal; or
    2. (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.
  3. [23]
    A menacing dog declaration may be made for a dog only if a ground referred to in s 89(2) of the Animal Act exists, except that the attack was not serious.[9]
  4. [24]
    ‘Seriously attack’ means to attack in a way causing bodily harm, grievous bodily harm or death.[10] ‘Grievous bodily harm’ and ‘bodily harm’ have the meaning given by the Criminal Code Act 1899 (Qld) Schedule 1 (‘Criminal Code’), s 1.[11] 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.
  5. [25]
    Under s 90(1) of the Animal Act, 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.
  6. [26]
    In satisfaction of s 94(1) of the Act, the local government must then consider any written representations and evidence submitted by the dog owner. Under s 94(2) of the Act, if the local government is satisfied that a ground for making the declaration still exists, it must make the regulated dog declaration.
  7. [27]
    The making of a regulated dog declaration then requires the local authority to give the owner of the dog the subject of the declaration a notice under s 95 of the Act. On the facts as they arise in this proceeding, the relevant part of that provision is subsection (4) that provides for the notice to be an ‘information notice about the decision’.
  8. [28]
    There are three relevant defined terms in the Act that should be noted at this point in the discussion on the statutory framework. These are as I have extracted them here:[12]

information notice, about a decision, means a notice stating—

  1. (a)
    the decision and the reasons for it; and
  1. (b)
    that the person to whom the notice is given may apply for an internal review of the decision to the original decider for the decision within 14 days after the person receives the notice; and
  1. (c)
    how to apply for the internal review.

interested person, for an original decision, means—

  1. (a)
    a person who has been given, or is entitled to be given, an information notice about the decision; and
  1. (b)
    if the decision relates to a dog—the owner of, or responsible person for, the dog.

original decision means a decision about which an information notice must be given.

  1. [29]
    Upon having received an information notice, should the interested person wish to have that original decision reviewed, they must then proceed in the manner laid down by Chapter 8 of the Animal Act. The starting position therein is Part 1 – Internal review of decisions.
  2. [30]
    Under s 180 of the Act which is found within that Part, every review of an original decision must be, in the first instance, by way of an application for internal review. On the facts as they arise in this proceeding, such would be a ‘general review application’ as that term is defined in s 181(2) of the Act.[13]
  3. [31]
    Under s 183 of the Act, a general review application must be in the approved form, supported by enough information to enable the application to be decided, and made within 14 days after the applicant is given the relevant information notice, or such longer period as the chief executive officer, which in this case is of the respondent, may allow.
  4. [32]
    Under s 184 of the Act, a general review application does not stay the original decision, but the applicant may, immediately after being given the information notice for the original decision, apply, as provided for under the Queensland Civil and Administration Act 2009 (Qld) (QCAT Act), to this Tribunal for a stay of the original decision. The Tribunal then is afforded a discretion to stay the original decision. For ease of reference, I extract here the entirety of s 184, such being expressed in the following manner in the Act

184  Stay of operation of original decision

  1. (1)
    A designated review application or general review application does not stay the original decision the subject of the application.
  1. (2)
    However the applicant may, immediately after being given the information notice for the original decision, apply, as provided under the QCAT Act, to QCAT for a stay of the original decision.
  1. (3)
    QCAT may stay the original decision to secure the effectiveness of the internal review and a later application to QCAT for external review.
  1. (4)
    A stay may be granted on conditions QCAT considers appropriate.
  1. (5)
    However, if the original decision relates to a regulated dog declaration a condition must be imposed that each owner of, and responsible person for, the dog must, until the internal review and any external review and appeal are decided, ensure the requirements under schedule 1, section 3, are complied with for the dog the subject of the declaration.
  1. (6)
    The period of the stay must not extend past the time when—
  1. (a)
    …; or
  1. (b)
    if the chief executive officer of a local government makes an internal review decision about the original decision—the chief executive officer makes the decision and any later period QCAT allows the applicant to enable the applicant to apply for an external review of the internal review decision.
  1. (7)
    A designated review application or general review application affects the original decision, or carrying out of the decision, only if the decision is stayed.
  1. [33]
    Upon a general review application being made, it must then be dealt with in the manner provided for under s 186 and s 187 of the Animal Act, which for ease of reference are extracted here in full:

186  Other internal review decisions

  1. (1)
    The chief executive officer of a local government must, within 20 days after receiving a general review application made under section 183—
  1. (a)
    conduct an internal review of the original decision the subject of the application; and
  1. (b)
    make a decision (the internal review decision) to—
  1. (i)
    confirm the original decision; or
  1. (ii)
    amend the original decision; or
  1. (iii)
    substitute another decision for the original decision.
  1. (2)
    The application must not be dealt with by—
  1. (a)
    the person who made the original decision; or
  1. (b)
    a person in a less senior office than the person who made the original decision.
  1. (3)
    Subsection (2)—
  1. (a)
    applies despite the Acts Interpretation Act 1954, section 27A; and
  1. (b)
    does not apply to an original decision made by the chief executive officer of the local government personally.
  1. (4)
    If the internal review decision confirms the original decision, for the purpose of an application for external review, the original decision is taken to be the internal review decision.
  1. (5)
    If the internal review decision amends the original decision, for the purpose of an application for external review, the original decision as amended is taken to be the internal review decision.

187  Notice of designated decision or internal review decision

  1. (1)
    The chief executive must, within 10 days after making a designated review decision, give the applicant notice (the review notice) of the review decision.
  1. (2)
    The chief executive officer of a local government must, within 10 days after making an internal review decision, give the applicant notice (also the review notice) of the internal review decision.
  1. (3)
    If the internal review decision or designated review decision is not the decision sought by the applicant, the review notice must include or be accompanied by a notice complying with the QCAT Act, section 157(2) for the decision.
  1. (4)
    If the chief executive does not give the review notice within the 10 days, the chief executive is taken to have made a decision confirming the original decision.
  1. (5)
    If the chief executive officer of the local government does not give the review notice within the 10 days, the chief executive officer is taken to have made a decision confirming the original decision.
  1. [34]
    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. For ease of reference, given their relative brevity, the entirety of that 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.

189  Condition on stay granted by QCAT for particular decisions

  1. (1)
    This section applies if a person makes an application for external review to QCAT for a decision about a regulated dog declaration.
  1. (2)
    If, under the QCAT Act, section 22(3) QCAT decides to grant a stay of the decision, QCAT must impose a condition on the stay that each of the following persons must, until the external review is decided, ensure the requirements under schedule 1, section 3 are complied with for the dog the subject of the declaration—
  1. (a)
    the owner of the dog;
  1. (b)
    a responsible person for the dog.
  1. [35]
    As to the nature of the review that is thus before this Tribunal, namely the External Review Application, the purpose of such a review is to produce the correct and preferable decision. It is conducted by way of a fresh hearing on the merits.[14] In effect, as the Member constituting this Tribunal for the purposes of the review, I stand in the shoes of the decision maker of either the original decision or the internal review decision, dependant on whether s 186(4) or s 186(5) of the Animal Act applies.
  2. [36]
    I am not concerned with the process by which the decision under review was reached and whether any error was made in any of the steps taken by the decision-maker. Accordingly, the role of the respondent is not to advocate for the correctness of the decision, but rather to assist me in my task of being required to make the correct and preferable decision.[15] In doing so the respondent primarily refers to the material that was before its decision-maker, and to have its witnesses confirm their previously filed written statements and make them available for cross-examination, but it may also present other evidence during the hearing by way of other witnesses.[16]
  3. [37]
    Following consideration of the relevant material I may confirm or amend the decision, set aside the decision and substitute my own decision, or set aside the decision and return the matter for reconsideration by the decision-maker.[17]
  4. [38]
    However, before being able to do so, this Tribunal must be seized of jurisdiction.

The Issue of Jurisdiction

  1. [39]
    This Tribunal’s review jurisdiction in this proceeding is the jurisdiction conferred on it by the Animal Act,[18] such being found in s 188 therein. Thus, in order to consider the jurisdictional issue raised by the respondent, it is necessary to address it in terms of how that jurisdiction arises under the Animal Act and whether, in the circumstances that have led to the External Review Application, it has been enlivened.

The competing argument

  1. [40]
    As I noted it earlier in these reasons, the jurisdiction issue was raised for the first time in this proceeding at the start of the hearing with the respondent asserting that this Tribunal was without jurisdiction to proceed and determine the External Review Application. It was said that this was because the applicants had not first proceeded to an internal review.[19]
  2. [41]
    When I asked Ms Reich as to what the applicants say about it, her response was that she understood that the applicants applied for internal review when they submitted their ‘Appeal’ to the respondent, such being identified in the hearing by Ms Reich as the document I referred to earlier in these reasons as the Applicants’ Representations. She says that they followed a ‘Flow Chart’ that led them to the Review Application, however she was not able to provide a copy of that flow chart nor otherwise identify it so as I could consider its application and meaning.
  3. [42]
    In response thereto, Mr Humphries identified the fact that the bundle of documents which was the Dangerous Dog Declarations contained the respondent’s form entitled ‘Application for Review of Local Government Decision’, asserting that this was the form to have been used as an internal review application (the Internal Review Application Form).[20] He said that the applicant’s appeal document to which Ms Reich referred was only the applicants’ submissions in response to the Proposed Regulated Dog Notices.
  4. [43]
    Ms Reich’s response to that was that the Internal Review Application Form was not included with the letter and documentation as it was sent to her and her husband, nor was the requisite process ever explained to them by the respondent. She did not however make any submission in response to Mr Humphries statement that their appeal document was in response to the proposed notices.

Discussion on the competing arguments

  1. [44]
    There are a number of provisions of the Animal Act relevant to this jurisdictional issue. Working backwards, they are as follows:
    1. (a)
      Under s 188 of the Act, standing to apply to this Tribunal for an external review only arises once a person is given, or is entitled to be given a review notice;[21]
    2. (b)
      Under s 187(2) of the Act, a review notice only arises upon, as is relevant to this proceeding, an internal review decision having been made;
    3. (c)
      Under s 186 of the Act, again as is relevant to this proceeding, an internal review decision arises only after a general review application is made under s 183, and dependent upon the outcome the internal review decision is either the original decision or an amended decision;
    4. (d)
      Under s 183 of the Act, a general review application must be in the approved form and made within 14 days the applicant is given the relevant information notice, or such longer period as the chief executive officer (in this case of the respondent) may have allowed; 
    5. (e)
      Under s 181(2) of the Act, an interested person for an original decision may apply for an internal review of the decision, such being the general review application; and
    6. (f)
      Critically, under s 180 of the Act, every review of an original decision must be, in the first instance, by way of an application for internal review.[22]
  2. [45]
    The applicants however did not proceed by way of an application for internal review. It is that fact on which the jurisdictional issue turns.
  3. [46]
    The applicant’s submission by Ms Reich that their understanding was that they had done so by way of their appeal documentation, namely the Applicant’s Representations, cannot be accepted. This is because that document predated the Dangerous Dog Declarations and thus could never have been an internal review application of the decision to issue the declarations. Their appeal documentation can only ever be read as being in response to the Proposed Regulated Dog Notices, the Dangerous Dog Declarations not having been issued at that time.
  4. [47]
    Whilst the applicants may very well consider their ‘appeal’ to be an application by them for internal review by the respondent of a decision it has made, at best such could only be an internal review of the decision to issue the Proposed Regulated Dog Notices. It could not be, for the purposes of the review process under Chapter 8 of the Animal Act, the requisite ‘general review application’ as that term is used in s 181 and s 183 of the Animal Act because such can only proceed premised on an original decision communicated by way of an information notice about the decision. In that regard I note that which I have stated in paragraphs [27] and [28] herein.
  5. [48]
    That being said, a question that arises from the applicants’ assertion that they were never issued with the Internal Review Application Form is whether the respondent did, in fact and at law, issue the requisite ‘information notice’ to the applicants so as to enliven the process requiring, as the first step, an internal review application should the dog owners wish to challenge the decision.
  6. [49]
    In addressing that question, the first point to note is the difference between the manner in which the Proposed Regulated Dog Notices were required to be issued in contrast to the manner required for issuing the Dangerous Dog Declaration Notices. The former merely requires the giving of ‘a notice’,[23] whereas the latter requires the giving of an ‘information notice’.[24] For the purposes of Chapter 4 of the Animal Act, such being the chapter under which the provisions dealing with regulated dogs fall, it is only an ‘information notice’ for which there is content prescribed in the legislation.
  7. [50]
    Given the Regulated Dog Declaration Information Notices are expressed as being for dangerous dogs, s 95(6) of the Animal Act sets out that which the requisite information notice must include. There is nothing therein that speaks to the requirements for information about making an internal review application.[25] However, the definition of ‘information notice’ given in the Animal Act, as I have extracted it in paragraph [28] herein, does express relevant requirements. This includes that the person to whom the notice is given is to be notified that they may apply for an internal review of the decision within 14 days after they receive the notice, and it must also include information on how to apply for the internal review.
  8. [51]
    It is this which the applicants assert they were never informed of. If that was found to be correct, then the outcome of this proceeding is that the Dangerous Dog Declarations were not at law information notices and so would be invalid and thus properly set aside. However, that is not an argument being run by the applicants, but rather they are saying, at least as I understand it, because they were never informed about internal review they should not now be prejudiced as a result of not having made the requisite internal review application. If my understanding is correct that this is their argument, for the reasons that follow here they fail on it.
  9. [52]
    The respondent’s letter of 12 March 2021, which together with all the accompanying documents I have referred to earlier in these reasons as the Dangerous Dog Declarations, contained this statement in the second last paragraph therein:

Please find enclosed the Regulated Dog Declaration Information Notices, … an information package and your appeal rights.

  1. [53]
    There is not a document included with the letter that sets out any such appeal rights. Nor can it be found anywhere within the documents that are attached to the letter. Thus, I infer that the bare reference to ‘appeal rights’ in this sentence is intended to be a reference to the requirements for an information notice under the Act which prescribe that the person must be informed that they may apply for an internal review of the decision within 14 days, and describe how to apply for the internal review, such which must be found within, or otherwise forming part of, the information notice itself. In my opinion it would have been helpful to any recipient of such a letter to have the appeal rights very clearly identified and explained. However, the absence of such clarity does not invalidate a document as the requisite information notice if it is still compliant with the requirements of the legislation.
  2. [54]
    I note that the two Regulated Dog Declaration Information Notices included as part of the bundle of documents I have labelled in these reasons as the Dangerous Dog Declarations contain the following statement at the very end of each notice after the signature, name, and position of the respondent’s relevant officer, namely Bradley Hahn, together with the date of the notice.

A request for review of this Regulated Dog Declaration must be made to Council within 14 days of the date of this notice in the approved form (Application for review of local government decision form attached).[26]

  1. [55]
    That statement is readily conspicuous.
  2. [56]
    Consistent with that statement, within the bundle of documents provided to this Tribunal as being that which was sent out under cover of the 12 March 2021 letter there is also a blank copy of an Internal Review Application Form. The provision of that form and the reference to it within this statement, together with the remainder of that statement, is in my opinion sufficient to have satisfied the requirements of the legislation in terms of the requisite content of an information notice.
  3. [57]
    But the issue still remained live on the applicants’ case because, in contrast to the documentation provided by the respondent, whilst the applicant included with the Review Application document as filed a complete copy of the Proposed Regulated Dog Notices,[27] the Applicants’ Representations,[28] and a copy of the Dangerous Dog Declarations including the respondent’s covering letter of 12 March 2021, there was one notable exception to the documents said to have accompanied that letter. The applicants did not include a copy of the Internal Review Application Form.[29]
  4. [58]
    In my opinion whilst it may be the case that on occasion there could be an oversight and a document is not included within a bundle of material sent out, in this instance I do not accept the applicants’ argument that they did not receive this Form. It is expressly referred to in the conspicuous statement at the end of the documents entitled Regulated Dog Information Notice and thus sufficient to have been brought to the applicants attention that there should be an accompanying form, which if they did not receive it one would expect that they would have contacted the respondent to obtain same should they have wished to request a review of the Regulated Dog Notices. Moreover, the respondent did include it as being part of the 12 March 2021 letter within the bundle of documents it filed in satisfaction of this Tribunal’s directions for the giving of same issued on 28 April 2021, such bundle being indexed and page numbered as directed. That particular document is recorded in the index as having been produced on 12 March 2021 by B. Hahn, the same as the remainder of the documents which start with the respondent’s letter of 12 March 2021 and to which I referred earlier in these reasons as the Dangerous Dog Declarations.[30]
  5. [59]
    Thus, I find as a fact that the respondent did provide the applicants with the Internal Review Application Form and thus properly notified the applicants of the requirement for an internal review application should they have wished to challenge the decision to declare their dogs as dangerous. I can also readily conclude that the respondent has complied with the law having accordingly met the requirements of the Animal Act in that regard. Thus, the applicants were properly and correctly led to Chapter 8 of the legislation, albeit not be way of a detail explanation, such being something the respondent was not under any statutory obligation to have given.
  6. [60]
    However, notwithstanding the respondent having notified the applicants as to their entitlement to request a review of the Dangerous Dog Declarations, and the process to undertake, the applicants did not avail themselves of that step as mandated by s 180 of the Animal Act and seek internal review, such which would have required a general review application as that term is defined in s 181(2) of the Act, the requirements for which are set out in s 183 of the Act.
  7. [61]
    Accordingly, in the absence of the applicants ever having made a general review application, there could never have been, and relevantly for this proceeding there was not, an internal review decision made by the respondent under s 186 of the Act, nor a review notice under s 187 of the Act given or the applicants becoming entitled to have been given a review notice. Accordingly, there was no basis upon which the applicants could have lawfully proceeded to external review given the requirements of s 180 and s 188 of the Animal Act. As such the jurisdiction of this Tribunal to proceed and determine the Review Application is brought into question.
  8. [62]
    Addressing that question has been complicated by the manner in which this proceeding has unfolded.
  9. [63]
    Firstly, it cannot be overlooked that the late notice of this jurisdictional issue by the respondent is simply unacceptable. It is the respondent’s role, effectively as the decision-maker, to use its best-endeavours to help this Tribunal so as it can make its decision on the review.[31] In order to do so, jurisdiction must first exist. In my opinion it should have been readily apparent to the respondent in that role that the applicants had not proceeded to internal review and thus the requisite process mandated by Chapter 8 of the Animal Act had not been complied with. Thus the respondent should have raised the issue with this Tribunal promptly on it having been served with the Application for Review.
  10. [64]
    It is even more concerning, and evidence of continuing unacceptable conduct in that role by the respondent, when I note, on my review of the file, that the respondent had complied with directions given by this Tribunal for the filing and service of documents as relevant to the Tribunal’s review,  filed submissions in response to the application by Ms Reich to stay the original decision,  participated in the compulsory conference having first applied to this Tribunal to be legally represented therein and having been granted such leave, and given the Compulsory Conference Outcome participated therein in a manner which at the very least suggested that jurisdiction had been enlivened, and then subsequently participated in a directions hearing following the Compulsory Conference Outcome when the alternative decision was not accepted by the applicants and in which directions for the conduct of the matter up to hearing were addressed and determined.  Such processes afforded the respondent every opportunity to have raised this issue much earlier, yet it did not. Had it done so, not only would the applicants have been alerted to the error of their ways much earlier but this Tribunal’s also already overstretched resources could have been put to a meaningful use and not left to be used in the conduct of a proceeding that is for all intent and purpose an entirely wasted one.
  11. [65]
    It has also been complicated and confused by the Stay Order, such having been determined by this Tribunal in a circumstance which seems to suggest that at that time it considered it had jurisdiction.
  12. [66]
    In that regard, I particularly the Stay Order was expressed in terms of that required under s 189(2) which falls within Chapter 8 Part 2. It is apparent that the learned Member determining the application to stay the decision was either not referred to or otherwise did not consider s 184 of the Animal Act, such falling within Chapter 8 Part 1 of the Animal Act which is expressed in terms of the stay being applied to “secure the effectiveness of the internal review and a later application to QCAT for external review”.[32] Confusingly and, I say respectfully, in what appears to have been an error made at the time, it appears the learned Member determining the application for a stay dealt with it as an application under s 189 of the Animal Act read in conjunction with s 22 of the QCAT Act. I infer that to be so because the Stay Order contains the condition prescribed in s 189 of the Animal Act.
  13. [67]
    However, the Stay Order also expressly refers to the respondent’s decision of 12 March 2021, such being the original decision, not an internal review decision which leads to a review notice and in turn the external review decision process. If the application was expressed as seeking a stay of the original decision of 12 March 2021, it should have been one made and considered as part of this Tribunal’s original jurisdiction to stay a decision made under the Animal Act whilst the decision was being reviewed under that Act by an entity other than this Tribunal,[33] such being the stay permissible under s 184 of the Animal Act. This confusion and errors have complicated the matter for the applicants.
  14. [68]
    In my opinion, whilst it would appear now that the Tribunal proceeded in the manner it did at that time in the absence of the respondent having raised the issue of jurisdiction either prior to or at the very latest at the time the application for a stay of the original decision was being considered, in my opinion the making of the Stay Order and in particular its content should have prompted the respondent to raise the issue with this Tribunal at the very latest by that time. But yet, once again it did not.
  15. [69]
    The unfortunate circumstance for the applicants is that the provisions of the Animal Act as relevant are cast in mandatory language. They are more than merely directory. Thus, the outcome of the jurisdictional issue must be one that is adverse to them and result in the decision I have reached in this proceeding. To assist the applicants in understanding the reasons for that, I offer the following comments on the relevant legal premise upon which the decision falls.
  16. [70]
    The starting point is the following observations of the High Court on issues concerning statutory interpretation and the exercise of a statutory power, something the applicants asked this Tribunal to do by way of their External Review Application.
  17. [71]
    In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355,  Brennan CJ expressed the following observations speaking in terms of the order of steps to be taken in the exercise of a statutory power.

[37] A provision which directs the manner of the exercise of a power is quite different from a provision which prescribes an act or the occurrence of an event as a condition on the power - that is, a provision which denies the availability of the power unless the prescribed act is done or the prescribed event occurs. In one case, power is available for exercise by the repository but the power available is no wider than the direction as to the manner of its exercise permits; in the other case, no power is available for exercise by the repository unless the condition is satisfied. A provision which prescribes such a condition has traditionally been described as mandatory because non-compliance is attended with invalidity. A purported exercise of a power when a condition has not been satisfied is not a valid exercise of the power.[34]

[38] The terms of the statute show whether a provision governs the manner of exercise of a general power, or is a condition on a power, or merely directs the doing or refraining from doing an act before a power is exercised. The distinction between conditions on a power and provisions which are not conditions on a power is sometimes difficult to draw, especially if the provision makes substantial compliance with its terms a condition. Then an insubstantial non-compliance with the same provision seems to give the provision a directory quality, although in truth such a provision would have a dual application: substantial non-compliance is a condition; insubstantial non-compliance is not.[35]

  1. [72]
    Before then addressing the specific statutory provisions under consideration in that matter, Brennan CJ concluded with the following observation:

[41]  The purpose of construing the text of a statute is to ascertain therefrom the intention of the enacting Parliament. When the validity of a purported exercise of a statutory power is in question, the intention of the Parliament determines the scope of a power as well as the consequences of non-compliance with a provision prescribing what must be done or what must occur before a power may be exercised. If the purported exercise of the power is outside the ambit of the power or if the power has been purportedly exercised without compliance with a condition on which the power depends, the purported exercise is invalid. If there has been non-compliance with a provision which does not affect the ambit or existence of the power, the purported exercise of the power is valid. To say that a purported exercise of a power is valid is to say that it has the legal effect which the Parliament intended an exercise of the power to have.[36]

  1. [73]
    Separately in that matter, McHugh, Gummow, Kirby and Hayne JJ expressed these observations, such bearing similarity to the reasoning of Brennan CJ:

[91] An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.

[92]  Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority. Cases falling within the first category are regarded as going to the jurisdiction of the person or body exercising the power or authority. Compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition. Cases falling within the second category are traditionally classified as directory rather than mandatory. In Pearse v Morrice, Taunton J said' 'a clause is directory where the provisions contain mere matter of direction and nothing more". In R v Loxdale, Lord Mansfield CJ said "[t]here is a known distinction between circumstances which are of the essence of a thing required to be done by an Act of Parliament, and clauses merely directory". As a result, if the statutory condition is regarded as directory, an act done in breach of it does not result in invalidity. However, statements can be found in the cases to support the proposition that, even if the condition is classified as directory, invalidity will result from non-compliance unless there has been "substantial compliance" with the provisions governing the exercise of the power. But it is impossible to reconcile these statements with the many cases which have held an act valid where there has been no substantial compliance with the provision authorising the act in question. Indeed in many of these cases, substantial compliance was not an issue simply because, as Dawson J pointed out in Hunter Resources Ltd v Melville when discussing the statutory provision in that case: "substantial compliance with the relevant statutory requirement was not possible. Either there was compliance or there was not."

[93]  In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the "elusive distinction between directory and mandatory requirements" and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute".[37]

  1. [74]
    Noting particularly the language of Brennan J’s reasoning, the relevant act or occurrence of an event which is a condition on which the authority of this Tribunal arises for the purposes of external review, is the giving of, or the entitlement to be given, a review notice. As I discussed earlier in these reasons, such can only have arisen after an internal review application. In the absence of that condition having been satisfied, no power is available to this Tribunal to conduct an external review.
  2. [75]
    Yet, the applicants may very well be thinking so what, even if an internal review had been conducted it is possible that the original decision may have been confirmed and thus the external review would be of that decision anyway, such being that which the External Review Application effectively is, and thus the internal review application would have been of no real meaningful affect. That is as I understood a brief submission Ms Reich made to that effect in her oral closing.
  3. [76]
    If that is so, it brings into question the issue of purpose of the statutory requirement for an internal review before external review, such being the focus of the reasoning of McHugh, Gummow, Kirby and Hayne JJ. That is, the question that must be asked and answered is, what is the purpose of s 180 of the Animal Act which mandates an application for internal review in the first instance. As their Honours McHugh, Gummow, Kirby and Hayne JJ noted at the conclusion of the passage of their reasons I have extracted earlier, in determining the question of purpose in terms of a issue of validity regard must be had to the language of the relevant provision and the scope and object of the entire statute.
  4. [77]
    When considering the scope and object of legislation as  a whole, the provisions of s 14A and s 14B of the Acts Interpretation Act 1954 (Qld) must be considered, which for ease of reference I extract here to the extent relevant in this proceeding.

14A  Interpretation best achieving Act’s purpose

  1. (1)
    In the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.
  1. (2)
    …

14B  Use of extrinsic material in interpretation

  1. (1)
    Subject to subsection (2), in the interpretation of a provision of an Act, consideration may be given to extrinsic material capable of assisting in the interpretation—
  1. (a)
    … ; or
  1. (b)
    if the ordinary meaning of the provision leads to a result that is manifestly absurd or is unreasonable—to provide an interpretation that avoids such a result; or
  1. (c)
    In any other case—to confirm the interpretation conveyed by the ordinary meaning of the provision.
  1. (2)
    In determining whether consideration should be given to extrinsic material, and in determining the weight to be given to extrinsic material, regard is to be had to—
  1. (a)
    the desirability of a provision being interpreted as having its ordinary meaning; and
  1. (b)
    the undesirability of prolonging proceedings without compensating advantage; and
  1. (c)
    other relevant matters.
  1. (3)
    In this section—

extrinsic material means relevant material not forming part of the Act concerned, including, for example—

  1. (a)
    …

…

  1. (e)
    an explanatory note or memorandum relating to the Bill that contained the provision, or any other relevant document, that was laid before, or given to the members of, the Legislative Assembly by the member bringing in the Bill before the provision was enacted; and

….

  1. [78]
    The purposes of the Animal Act is expressed as being, amongst other things, to  provide for the effective management of regulated dogs,[38] such to be achieved by imposing obligations on regulated dog owners.[39] That being so, it leads to the question as to what purpose s 180 of the Act serves in that regard. The answer to that question is readily found in the Explanatory Notes to the Animal Management (Cats and Dogs) Bill 2008, being the Bill introduced into Parliament preceding the enactment of the Animal Act, such being a permissible extrinsic material. The following is expressed therein as the purpose of the requirement for internal review ‘in the first instance’.

…

The inclusion of a review process preserves the principles of natural justice and allows for questions of fact to be resolved without instituting legal proceedings. This provision also provides an opportunity for local governments to have far greater control over and awareness of how their officers are enforcing the various provisions of this Act.[40]

  1. [79]
    Thus, it is seen that it expressly provides for a process that does not require the instituting of legal proceedings, such being that which is the Review Application, but moreover, in the absence of the internal review application the respondent has been denied an opportunity it is afforded under the legislation to have control over and become aware of how its officers were enforcing the provisions of the Animal Act.
  2. [80]
    On this point, it is apposite to recall part of the Applicant’s Representations, as I have noted it in paragraph [7] herein, albeit such arise out of only the Proposed Regulated Dog Notices, and the premise of the External Review Application as I have noted it in paragraph [11] herein, the applicants’ complaint was, amongst other things, effectively that the respondent’s officers had not properly exercised their powers under the legislation  and a fair and reasonable application of the law did not exist. That is, these complaints about the process was precisely part of the purpose for which s 180 exists requiring the internal review at first instance.
  3. [81]
    Returning then to the purpose of the Act and how that purpose is to be achieved, both of which I noted in paragraph [78] herein, this provision and its stated purpose are consistent with those requirements. An obligation is imposed on the applicants as regulated dog owners to seek internal review in the first instance, the operation of which provides for effective management of regulated dogs by affording the respondent the occasion to have control over and become aware of the conduct of their relevant officers in that regard in terms of enforcing the provisions of the Animal Act.
  4. [82]
    For completeness, I should also note ss 186 (4) and (5) of the Animal Act which are relevant when considering the statute as a whole. These provisions expressly contemplate that the decision which ultimately may be the subject of an external review may not be the original decision, but rather one which could be an amended decision. In the absence of an internal review proceeding, that would mean such a provision is without utility or purpose. In that regards one needs look only as far as the Compulsory Conference Outcome from which an inference can be drawn that had the matter gone to internal review there could have been an amended decision, and thus the external review may never have arisen.
  5. [83]
    In all respects, the applicants have approached the issue of their dogs being declared dangerous in an erroneous manner inconsistent with the requirements of the legislation. They have done so to their detriment because they have embarked on a process of review in this Tribunal without standing to have done so, and in circumstances where this Tribunal’s power to review a decision under the Animal Act has never been enlivened. To put it simply, this Tribunal is without jurisdiction in this proceeding.
  6. [84]
    For these reasons there will be an order dismissing the External Review Application for want of jurisdiction.
  7. [85]
    That being so, there is no reason for me to consider the substantive issues in this proceeding as there can be no result arising from it. However, in deference to the extent to which the applicants went to present their case and the issues they sought to have been considered, I will make a few short observations on the substantive issues as I identified them earlier.

The Substantive Issues

  1. [86]
    It will be recalled that as I noted in it paragraph [19] herein, at issue was whether the Attack was one which properly fell within the ambit of s 89(2) of the Animal Act, as well as the identification of whether it was Xena or Mini that was the dog said to have bitten Mr Parker.
  2. [87]
    In my opinion, those issues can be readily addressed, and a conclusion quickly reached, solely on the content of Mr Parker’s statement given to the respondent at 1:17 pm on the day of the Attack wherein he described the circumstances of it. It is as I extract it here.

I was screaming at the dogs to try and get them away, but they continued to bark at me.

I was trying to move back towards my vehicle.

Both of the dogs continued to come at me, they were on top of each other trying to get to me first.

One of the dogs then come (sic) back in and bitten (sic) only my same leg, near the same spot.

I stepped back from the dogs and was still yelling at them and trying to get back to my vehicle.

The dogs were not interested in me yelling and just kept trying to get at me.

I heard a man call out from the front of the property. I glanced around and saw a male coming fast paced towards me.

He yelled at the dogs, I don’t know what he said, but they seemed to listen. I think this man was known to them.

The dogs stopped barking and backed off. They retreated to the garage and then turned and watched me.

I straight away kept going around my vehicle to get to the driver’s door.

…

I looked down to my leg to what injuries I had. I could see bleeding and black, blue and red bruising around the bites.

…

I was shaking. …

…

I left the property and continued with some deliveries. I down down [street name] and then pulled over and waited a while to calm down.

I waited until I stopped shaking and looked at my leg again, it was weeping blood and I could tell it was something more than a little thing.

I rang my employer …. He told me to hed to the Hospital and have it checked out.

  1. [88]
    Mr Parker also gave oral evidence in the hearing. He stated that he had retracted his statement. However, as I observed him, he seemingly held a regret that he had raised the complaint initially suggesting in the hearing that the dogs were just doing their job and he was in the wrong place and the wrong time, but I did not conclude that he retracted his statement because the facts as he had described them were not true.
  2. [89]
    Given his asserted retraction of his written statement, I allowed evidence-in-chief from him to be given orally on questioning by Mr Humphries. During that questioning, he confirmed the details of the Attack, and confirmed photos in evidence of the dog bite wound on his leg and the bite mark on his boot.[41] When asked by Mr Humphries whether the actions of the dogs that day caused him to feel fear, his answer was in words to the effect of “yes – heightened because there were two dogs”.
  3. [90]
    Mr Parker was challenged by the applicants in the hearing under cross-examination by Ms Reich. The extent of questioning was minimal and of little assistance to me. Accordingly, I asked Mr Parker whether the dog bite on his leg affected his health and/or comfort, to which he responded with words to the effect of “no – I have no lasting effects from it”. Ms Reich did not ask anything further arising out of that, but Mr Humphries followed it up in re-examination asking Mr Parker as to whether there was any effect on the day of the Attack, to which Mr Parker replied with words to the effect of “on the day it was a bit sore, but next day I moved on back to business”, and on further follow up questions from Mr Humphries Mr Parker confirmed that the wound was weeping on the day and that there was swelling around it.
  4. [91]
    In my opinion, the evidence from Mr Parker carries great weight. In  the question-and-answer process that ensued during his examination, the oral evidence to which I have just referred together with the entirety of that which was discussed with him during the hearing left me with the opinion that at the very least the part of his written statement which I extracted earlier was accurate. It describes in relatively explicit terms the circumstances of the Attack and the effect it had on him at the time, such description having been given only a few hours after the Attack had occurred. The evidence led for the applicants, albeit extensive, does not leave me discounting its probative value. I accept Mr Parker’s evidence in this regard as being correct, and in my opinion sufficient to enable disposition of the substantive issues.
  5. [92]
    In all respects, both dogs, regardless of which one actually bit Mr Parker on his leg, acted in a way that caused fear to Mr Parker. In my opinion, that is enough to bring the Attack within the ambit of s 89(1) of the Animal Act. The issue of whether Xena, the only surviving dog, was the one which actually bit Mr Parker, and the corresponding issue of whether that bite was sufficient to satisfy the definition of a ‘serious attack’, simply does not arise.
  6. [93]
    For completeness I should also briefly address one other issue that was raised by Ms Reich during her closing submissions that, as I understand it, arises out of something Mr Parker said as a reason for the asserted retraction of his statement to the respondent, such being that he was in the wrong place and the wrong time and the dogs were just doing their job.
  7. [94]
    Ms Reich’s submission was in effect that Mr Parker had previously been told not to enter the yard, and that if he had not done so then the Attack would not have occurred. In making that submission Ms Reich referred me to the decision of the Appeal Tribunal in Thomas v Ipswich City Council [2015] QCATA 97 wherein the following statement appears in the Tribunal’s reasons, such speaking in terms of the person attacked by the dog in that matter, it being quoted by Ms Reich in her submission.

If Mr Johnson had not entered, the attack would not have occurred.[42]

  1. [95]
    Two things can be said about that argument, such being reasons why it is misguided and of no assistance to the applicants.
  2. [96]
    Firstly, there was not any equivocal evidence before me that Mr Parker was informed, prior to the Attack, not to enter the yard where the dogs were kept. At its highest, the applicants rely on a one-line statement in what is said to be an Australia Post safety report document that refers to an asserted safety discussion with Mr Parker about not entering yards where dogs were present.[43] Whilst this seemingly refers to a safety briefing given to Mr Parker prior to the Attack, there is no evidence of the content of that safety briefing and the context in which the discussion on entering a property with dogs present occurred. It is not evidence of any agreement with Mr Parker not to enter the Reich’s property, nor evidence which goes anywhere near the detail of evidence that was before the Tribunal in Thomas.
  3. [97]
    Secondly, the facts of Thomas concern an already declared dangerous dog being within its own yard which was enclosed and had extensive signage readily visible warning of the existence of a dangerous dog, and that Mr Johnson had been previously expressly warned by the owner of the dog and the property where the dog was kept not to enter the enclosed yard when the dog was present. However, as the Appeal Tribunal records it in its reasons:

Mr Johnson ignored the many warning signs about the presence of the dangerous dog (of which he had prior knowledge), as well as Mr Thomas’ prior explicit verbal warning to him not to enter the backyard or Bruce would ‘have him.’ He entered the area in which Bruce was kept. In any situation when a dangerous dog is enclosed in an area, if a person enters it, they are at risk of injury. Without diminishing the significance of Mr Johnson’s very unfortunate experience, this is what happened here.

It is not a situation where the Thomas’ failed to keep Bruce enclosed. He did not leave his enclosure and attack a person in the street. Bruce bit a person who entered the area in which he was enclosed, in disregard of extensive signage, prior warning, and internally fenced areas. Indeed, there is no suggestion since the dangerous dog declaration that Bruce has at any time escaped the area in which he has been enclosed, thereby posing a risk to community health and safety. If Mr Johnson had not entered, the attack would not have occurred. …[44]

  1. [98]
    It is only once these facts are identified is the context of the sentence Ms Reich relied on properly understood. To take it in isolation, as Ms Reich has done, and seek to apply it to the facts of the Attack, is to give it a meaning that cannot be found within the Appeal Tribunal’s reasons.
  2. [99]
    For these reasons alone, had this Tribunal had jurisdiction to decide the External Review Application, I would have found that that Dangerous Dog Declaration in terms of Xena was the correct and preferable decision, and I would have thus given orders confirming it.

Costs

  1. [100]
    In his written Outline of Argument for the respondent Mr Humphries stated that if the respondent was successful in this proceeding, having been granted leave to be legally represented in it, the respondent seeks it costs of the proceeding reliant on s 102 of the QCAT Act.[45]
  2. [101]
    As is relevant to this proceeding, that provision is as follows:

102  Costs against party in interests of justice

  1. (1)
    The tribunal may make an order requiring a party to a proceeding to pay all or a stated part of the costs of another party to the proceeding if the tribunal considers the interests of justice require it to make the order.
  1. (2)
    ….
  1. (3)
    In deciding whether to award costs under subsection (1) or (2) the tribunal may have regard to the following—
  1. (a)
     

…  

  1. (d)
    for a proceeding for the review of a reviewable decision—
  1. (i)
    whether the applicant was afforded natural justice by the decision-maker for the decision; and
  1. (ii)
    whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits;
  1. (e)
    the financial circumstances of the parties to the proceeding;
  1. (f)
    anything else the tribunal considers relevant.
  1. [102]
    It was not the subject of any meaningful discussion in closing argument. I left it with the parties that I would address the respondent’s claim for costs on a preliminary basis in these reasons and give an indication of my thoughts on the respondent’s entitlement to such, then afford the parties the opportunity to make detailed submissions (if any) should the respondent maintain such a claim. Although it must be emphasised that these comments are to be read as being nothing more than my preliminary thoughts and not construed as being the representation of any definitive finding or other final conclusion I have made on the issue. It is an issue that remains live for discussion and determination only after the parties have provided detailed submissions should they desire. That being said, my comments are as follows.
  2. [103]
    There are two difficulties I have with the concept of the respondent seeking its costs in this proceeding.
  3. [104]
    Firstly, the respondent is, for the purposes of this proceeding, the decision-maker statutorily charged with the obligation to help this Tribunal so that it can make its decision on the review, with certain requirements cast upon it in that role to provide information to the Tribunal.[46] In my opinion, requiring an applicant to meet the respondent’s costs of doing so would be to impose a burden on such an applicant that is not warranted under the legislative scheme for review of decisions, unless there was some reason in the interests of justice that dictated otherwise.
  4. [105]
    That leads to a consideration of that which is provided for under s 102 of the QCAT Act. I am unable to identify anything on the material presently before me that would lead me to a conclusion that these provisions could be satisfied, particularly those which I extracted earlier which expressly reference review of a reviewable decision.
  5. [106]
    Secondly, and in my opinion critically, there is the fact of the jurisdictional issue being raised by the respondent only at the time of the substantive hearing. I have already expressed my thoughts on this earlier in these reasons and I need not repeat them here. All I need to say is that if the issue had been raised promptly by the respondent, the respondent would not have been put to the costs it now seemingly seeks to recover against the applicants.
  6. [107]
    In that regard, whilst I did not understand it to be a submission on the issue of costs, a submission Mr Humphries made briefly in his closing reply on the jurisdictional point is in my opinion related to it and thus I should make a brief comment about it.
  7. [108]
    He argued that the jurisdictional issue is akin to a time limitation argument under the Limitations of Actions Act commonly raised at trial, and thus it should not go against the respondent. Whilst the respondent may wish to press that submission with further explanation, all I will say for present purposes is that I have some difficulty accepting it. An issue arising in terms of limitation of action does not go to the issue of jurisdiction of a determiner of fact and/or law. Moreover, if it is an issue to be relied on in response to an action commenced, it must be raised at the start of that response failing which the respondent is taken to have consented to the determiner of fact and/or law hearing the matter and deciding it. To put it into language of jurisdiction, it is a consent to jurisdiction. But in this proceeding the parties are unable to consent to jurisdiction so as to give this Tribunal jurisdiction. It can only be found within the enabling Animal Act.
  8. [109]
    Notwithstanding these preliminary comments, given it is an issue raised in the respondent’s outline of argument and seemingly an issue it intended to press in this proceeding should the applicants have failed in having the decision set-aside, it remains an issue on which I am yet to receive the necessary submissions upon which a decision on costs should be made. Accordingly, there will be orders given for the filing of submissions on costs or otherwise dealing with the issue.

Conclusion

  1. [110]
    In all respects, the applicants fail in their efforts to have this Tribunal review the respondent’s decision and to set it aside. They have proceeded in a manner that leaves this Tribunal in a position of not having jurisdiction to do so, and as such it can only result in a dismissal of the applicants’ application for want of jurisdiction.
  2. [111]
    There is no reason to disturb the respondent’s decision to declare Xena a dangerous dog. Orders will be made accordingly.

Footnotes

[1]  These descriptions are as they appear in Mr Parker’s statement given to the respondent’s investigating officers on the day of the Attack. This became Ex 11 in the proceeding.

[2]  Ex 3 – pg’s 23 to 27.

[3]  Ex 3 – pg’s 40 to 49.

[4]  Ex 3 – pg’s 52 to 76.

[5]  By order of this Tribunal given 16 November 2021, Mr Reich was later joined as an application to this proceeding.

[6]  A copy of the document lodged appears in Ex 3 – pg’s 91 to 148.

[7]  The respondent also provided a written Outline of Argument which became Ex 1 in the proceeding.

[8]  That which follows under this heading has been in part adopted from the reasoning of the Appeal Tribunal in Brisbane City Council v Roy [2020] QCATA 147, [20] to [23].

[9] Animal Act s 89(3).

[10]  Ibid s 89(7).

[11]  Ibid Schedule 2.

[12]  Ibid.

[13]  Under s 181(1) of the Act the other form of internal review is a ‘designated review application’ such being the type of application for review of an original decision made under certain specified provisions of the Act, none of which are applicable in this proceeding.

[14]  QCAT Act s 20(2).

[15]  QCAT Act s 21.

[16]  QCAT Practice Direction No. 3 of 2013 – para 5(d).

[17]  QCAT Act s 24(1).

[18]  QCAT Act s 17 (1).

[19]  Ex 1 para’s 11 to 16.

[20]  Ex 3 pg 76.

[21] Animal Act s 188.

[22]  My emphasis.

[23]  See s 90(1) of the Animal Act.

[24]  See s 95(1) and as relevant in this proceeding s 95(4) of the Animal Act.

[25]  There is a provision in s 95(6)(g) that provides for “any other information prescribed under a regulation”, however there is no such information prescribed that requires the provision of information about making an internal review application.

[26]  Ex 3 – pg 60 and 63.

[27]  Application document Appendix 2.

[28]  Ibid Appendix 3.

[29]  Ibid Appendix 4.

[30]  See ‘Index to Brief’ pg 4 within Ex 3.

[31]  QCAT Act s 21.

[32] Animal Act s 184(3).

[33]  See QCAT Act s 6(5) read in conjunction with s 33(1) therein and the Animal Act s 184(2).

[34] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 373.

[35]  Ibid, 374.

[36]  Ibid at 374-375, [41].

[37] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 388-391, [91]-[93]. Footnotes omitted.

[38] Animal Act s 3(c).

[39] Animal Act s 4(g).

[40] Animal Management (Cats and Dogs) Bill 2008 – Chapter 8 Part 1 Clause 180.

[41]  Ex 3 pg’s 153 to 155, and Ex 5.

[42] Thomas v Ipswich City Council [2015] QCATA 97, [46].

[43]  This is as raised by Mr Reich in her closing submissions referring to Ex 5 – pg 3.

[44] Thomas v Ipswich City Council [2015] QCATA 97, [45] and [46].

[45]  Ex 1 – para 45.

[46]  QCAT Act s 21.

Close

Editorial Notes

  • Published Case Name:

    Reich & Anor v Toowoomba Regional Council

  • Shortened Case Name:

    Reich v Toowoomba Regional Council

  • MNC:

    [2023] QCAT 47

  • Court:

    QCAT

  • Judge(s):

    Member Taylor

  • Date:

    07 Feb 2023

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
Brisbane City Council v Roy [2020] QCATA 147
2 citations
Jump To
Cite 1 - [2020] QCATA 147
Cite 2 - [2020] QCATA 147
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
6 citations
Jump To
Cite 1 - (1998) 194 C.L.R 355
Cite 2 - (1998) 194 C.L.R 355
Cite 3 - (1998) 194 C.L.R 355
Cite 4 - (1998) 194 C.L.R 355
Cite 5 - (1998) 194 C.L.R 355
Cite 6 - (1998) 194 C.L.R 355
Thomas v Ipswich City Council [2015] QCATA 97
4 citations
Jump To
Cite 1 - [2015] QCATA 97
Cite 2 - [2015] QCATA 97
Cite 3 - [2015] QCATA 97
Cite 4 - [2015] QCATA 97

Cases Citing

Case NameFull CitationFrequency
Harper v Sunshine Coast Regional Council [2023] QCAT 1252 citations
Lawson v Tablelands Regional Council [2025] QCAT 643 citations
1

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