Till v Logan City Council[2018] QCATA 150

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The Logan City Council declared Saleshni Till’s two dogs, ‘Indi’ and ‘Cooper’ as dangerous dogs and issued a destruction notice for each.^[2]  In making its decisions, the Logan City Council had not complied with the procedural requirements specified in the Animal Management (Cats and Dogs) Act 2008 (Qld) (Animal Management Act). The Council confirmed its decision upon internal review. Ms Till then applied to the Tribunal for external review.
2. [2]
   The Tribunal’s review was listed for hearing on 1 March 2016. Immediately before the commencement of the hearing Ms Till provided the Council with her submissions, articulating five alleged procedural errors made by the Council in making the reviewable decisions. The hearing did not proceed to a conclusion. Instead the Tribunal adjourned the final hearing to a date to be fixed; made directions for the parties to file and serve submissions ‘on jurisdiction and statutory construction’; and for determination of those matters on the papers after submissions had been received.
3. [3]
   Shortly afterwards, the Council accepted Ms Till’s submissions about its procedural non-compliance in the making of decisions concerning Indi and Cooper and the effect of that non-compliance. It proposed that the proceedings be discontinued with no order as to costs. Ms Till did not accept this proposal and continued with the proceeding.
4. [4]
   Over the subsequent months, several miscellaneous applications were filed by the parties; further directions made; and a directions hearing on 11 May 2016, as well as a Compulsory Conference, later held. 
5. [5]
   The Tribunal made orders and published written reasons for decision on 10 October 2016, dismissing a miscellaneous application made by Ms Till and the review application, as well as Ms Till’s application for costs.
6. [6]
   Ms Till appeals the Tribunal’s decision.   
7. [7]
   For the reasons explained in the following paragraphs, the appeal is allowed.

The grounds of appeal

8. [8]
   Ms Till’s grounds of appeal are:

1. The Tribunal erred in concluding that it had no jurisdiction to review the Council’s decision;
2. The Tribunal erred in failing to make a declaration for each dangerous dog declaration notice; and
3. The Tribunal erred in failing to order the Council to pay Ms Till’s costs of her application.

9. [9]
   We address each ground of appeal in the following paragraphs. As a preliminary matter we observe that the Tribunal’s decision to dismiss Ms Till’s miscellaneous application does not appear to be addressed in the appeal submissions, and nor is it of consequence in the disposition of the appeal. We have proceeded on the basis that it is not the subject of the application for leave to appeal.

The Tribunal’s decision

10. [10]
    First, it is useful to consider the Tribunal’s decision.
11. [11]
    The Tribunal observes that the purpose of the review is to produce the correct and preferable decision by way of fresh hearing on the merits.^[3] The learned Member summarises the five procedural errors identified by Ms Till as made in the Council’s decision-making procedure and Council’s correspondence in response to the effect that it acknowledged its decisions are of no effect. Further, the Tribunal refers to the Council’s proposal that the proceeding be discontinued with no order as to costs.
12. [12]
    The learned Member then recites four issues identified by Ms Till’s submissions for determination and proceeds to decide them. They are:^[4]

Issue 1: Can the Tribunal exercise a power (pursuant to s 23 of the QCAT Act) to invite the Council to reconsider its decision?

Issue 2: How should the Tribunal decide the application for review presently before it, and what power does it have to make that decision?

Issue 3: What is the effect of the exercise of the power to grant declaratory relief?

Issue 4: Who should pay the costs of the application, and what should the sum of the costs order be?

13. [13]
    The Tribunal states that the first issue for it to decide was whether there was a ‘decision to review’.^[5]
14. [14]
    The Tribunal discusses the parties’ submissions as follows. Both parties submitted that the Council’s decisions had no effect. Council submitted that the Tribunal ought therefore to decide that the proceeding was lacking in substance and strike it out pursuant to s 47(2)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). Ms Till submitted that as she had pointed out the errors and invited the Council to desist from its prosecution of the matter, it was reasonable for her to resist the setting aside of the purported decision and that the Tribunal should declare that the notices were not lawfully issued under the Act to ‘quell the controversy between the parties’.^[6]
15. [15]
    The Tribunal concludes that there was no decision to review:^[7]

18. [18]Section 17 of the QCAT Act states that the tribunal’s review jurisdiction is the jurisdiction conferred on the tribunal by an enabling Act to review a decision made or taken to have been made by another entity under the Act.
19. [19]It follows then, that the first requisite is a decision. On this point, both parties agree - there is no decision. The logical conclusion then is that there is no review jurisdiction enlivened.

16. [16]
    The Tribunal considers Ms Till’s submissions that declarations ought be made pursuant to s 60 of the QCAT Act to the effect that the decisions issued by the Logan City Council were not lawfully issued under the Animal Management Act. The learned Member states that Ms Till’s intent appeared to be to estop the Council from observing due process and making the same decisions again. The learned Member observes that the declarations sought by Ms Till would not bind the Council, as the Tribunal was deciding the review of the existing decision, not a decision yet to be made.^[8]
17. [17]
    The learned Member states that the decisions it can make are set out in s 24 of the QCAT Act. The Tribunal says, standing in the shoes of the original decision-maker, that ‘The only evidence before me is an agreement that there was no valid decision.’^[9] Further:  ‘I am not satisfied that my review jurisdiction extends any further.’ The learned Member then dismissed the application for miscellaneous matters filed by Ms Till and continued, saying that the ‘answer’ to Ms Till’s issues, other than costs, ‘flows from the decision about the first issue.’^[10] Later, in considering the costs application, but relevant here, the Tribunal states:^[11]

It is accepted that the notices were of no effect and I have determined that as there is no decision to be reviewed, the review jurisdiction is not enlivened and the application must be dismissed.

18. [18]
    It is sufficiently clear that the Tribunal concludes as a consequence (addressing issues 1 to 3 set out by it), that it could not exercise the power in s 23 of the QCAT Act to invite the Council to reconsider a decision that does not exist in law, and that issues 2 and 3 were answered by dismissing the review application and that the Tribunal had no power to make the declarations sought.^[12]
19. [19]
    In respect of Ms Till’s application for costs on an indemnity basis, the learned Member sets out the parties’ submissions at some length. Essentially, Ms Till submitted that a costs order was in the interests of justice because the Council’s actions had necessitated the need for the proceedings and because it did not accept her compromise proposals. The Council opposed the application, contending that as soon as Ms Till's argument was presented to it, it accepted that the decisions had no effect, abandoned its position and sought to bring a quick end to the proceedings. Although offers to settle were made, agreement was not reached.
20. [20]
    Observing that the starting point provided for in the QCAT Act is that each party bears their own costs, the Tribunal considered both parties had behaved with ‘a disregard by either party to assist’ the Tribunal ‘to make the correct and preferable decision’ and that ‘emotions ran high on both sides...’^[13] The learned Member considered that Ms Till’s attempts to ‘bind the Council from taking any action against these dogs into the future’ had further complicated an ‘otherwise straightforward review application.’^[14] The learned Member observes that the review could have been finalised by consent on 22 March 2016; that Ms Till was granted leave for legal representation only on 1 March 2016; and that the outstanding issue necessitating a hearing concerned the ‘issue of estoppel raised by Ms Till which ultimately failed.’^[15]
21. [21]
    The Tribunal concludes that Ms Till had not overcome the strong contra-indication in the QCAT Act that each party should bear its own costs.^[16] The learned Member considered that Ms Till elected to ‘‘litigate’ an issue she considered may advantage her in the future.’^[17] Therefore, the Tribunal was not satisfied that the interests of justice required that a costs order should be made in Ms Till’s favour.^[18]

Did the Tribunal err in concluding that it had no jurisdiction to review the Council’s decision?

22. [22]
    Section 17 of the QCAT Act provides:

17  Generally

1. (1)
   The tribunal’s review jurisdiction is the jurisdiction conferred on the tribunal by an enabling Act to review a decision made or taken to have been made by another entity under that Act.
2. (2)
   For this Act, a decision mentioned in subsection (1) is a reviewable decision and the entity that made or is taken to have made the decision is the decision-maker for the reviewable decision.

23. [23]
    In making its decision, the Tribunal relied upon and accepted the parties’ agreement that the decisions had no legal effect. It treated this, it says, as ‘evidence’ that there was no valid decision.^[19]  Accepting as a matter of evidence that the decisions had no legal effect, the learned Member determined that there was no reviewable decision, the Tribunal’s review jurisdiction was not enlivened, and that therefore, the review application must be dismissed.
24. [24]
    The Tribunal’s key finding that ‘the only evidence’ before it was to the effect that there was no valid decision. As a consequence, the Tribunal considered there was no decision to review, its review jurisdiction was not enlivened and the application must be dismissed. It appears the learned Member considered that because the parties agreed that the decisions made by the Council had no legal effect, they could not be reviewable decisions for the purposes of s 17 of the QCAT Act. With due respect to the learned Member, the parties’ agreement about the effect of the decisions did not mean that there was no decision for the purposes of enlivening the Tribunal’s review jurisdiction.
25. [25]
    The Tribunal was obliged to resolve jurisdictional facts and determine whether it had jurisdiction.^[20] To determine whether it had jurisdiction the Tribunal’s task required a statutory construction exercise.  The proper construction of a statutory provision is a question of law.  Although the Tribunal adverted briefly to s 17 of the QCAT Act, it did not consider the proper construction of that provision.
26. [26]
    In considering the merits review jurisdiction of the Administrative Appeals Tribunal, the Federal Court has said:^[21] 

It is to be noted that the subjects of the review are decisions. If an administrator makes a particular decision in the course of government administration, then whether or not he is authorised to do so, there is in fact a decision made. The fact that that decision cannot affect legal rights or liabilities is irrelevant to that fact.

27. [27]
    Further, the then Deputy President of QCAT in discussing the construction of s 17 of the QCAT Act, relevantly said:^[22]

28. [28]
    We respectfully agree with and adopt the reasoning of the then Deputy President as to the construction of s 17 of the QCAT Act.
29. [29]
    Returning to the facts of Ms Till’s review, the Council had made decisions to declare each dog dangerous and issue a destruction notice in each case. Council had confirmed those decisions on internal review and review had been sought in QCAT. 
30. [30]
    Whether the decisions (or either of them) were reviewable decisions was the first question to be answered. The Tribunal posed the question whether there was a decision to review, but in considering it did not perform the necessary task of statutory construction to determine what fell within the meaning of a reviewable decision.
31. [31]
    It follows that on a proper construction the decisions of the Council are reviewable decisions for the purposes of enlivening the Tribunal’s review jurisdiction. Accordingly, the Tribunal had the power to review the decisions to declare each of the dogs dangerous and issue a destruction notice.^[23]
32. [32]
    The validity of the decisions was not relevant to deciding whether they were reviewable decisions (and if so, that the Tribunal had jurisdiction for the review). The learned Member fell into error in conflating the question whether it had jurisdiction with the separate issue of the validity of the decisions, and further, the effect of the parties’ acceptance that the decisions were not valid and had no effect.
33. [33]
    We make the observation that to the extent that validity of the decisions was relevant to the Tribunal’s review of the decisions more broadly, validity is a matter to be determined by the Tribunal. Validity of the exercise of a decision-maker’s power cannot be determined by agreement, only by the application of the relevant law to the facts as found by the Tribunal. That said, it is not necessary on appeal for us to determine validity of the Council’s decisions.

Did the Tribunal err in failing to make a declaration pursuant to s 60 of the QCAT Act for each dangerous dog declaration?

34. [34]
    The Tribunal decided that issues 2 and 3 raised by Ms Till were ‘answered by the making of an order dismissing the original application.’^[24] It is sufficiently clear that the Tribunal determined that it had no power to make the declarations sought as a consequence of its finding that (because the parties agreed that the decisions had no legal effect, there was no decision, and therefore,) it had no jurisdiction for the review.  
35. [35]
    Without determining whether the Tribunal may make a declaration pursuant to s 60 of the QCAT Act in a review proceeding,^[25] we observe that the Tribunal’s power to grant a declaration is discretionary.^[26] Here, the Tribunal’s decision was that because it did not have jurisdiction for the review, the proceeding must be dismissed. For the reasons explained earlier, the Tribunal had jurisdiction for the review and it erred in concluding that it did not. Therefore, the Tribunal did not consider whether it could make the declarations sought pursuant to s 60 of the QCAT Act, and if so, whether or not it should exercise its discretion to do so. The error made is the same error identified in the first ground of appeal.
36. [36]
    We do not need to decide whether the declarations sought by Ms Till would have the effect desired by Ms Till in establishing an estoppel. That said, we observe that there is no apparent merit in Ms Till’s argument. If the reviewable decisions were ultimately found by the Tribunal to be of no legal effect (whether or not a declaration was made to that effect) and set aside, there would not appear to be any basis upon which the Council is precluded from then proceeding to make fresh decisions. 

Did the Tribunal err in failing to order the Council to pay Ms Till’s costs?

37. [37]
    As discussed, leave to appeal is required in relation to costs orders.^[27]
38. [38]
    The Tribunal’s power to award costs is discretionary.^[28] The Appeal Tribunal will only interfere with the exercise of a discretion if the Tribunal acted on a wrong principle, or made mistakes of fact affecting the decision, or was influenced by irrelevant matters.^[29] Here, the Tribunal, at least in part, based its decision to dismiss the application for costs on its erroneous finding that it had no jurisdiction for the review the Council’s decisions.^[30] The exercise of its discretion in deciding the application for costs was affected by its error concerning the proper construction of s 17 in determining jurisdiction. 
39. [39]
    Further, we observe that it is sufficiently clear that the Tribunal also erred in considering it relevant that Ms Till displayed a ‘disregard’ for assisting it ‘to make the correct and preferable decision.’^[31] QCAT Act s 20(1) provides that the purpose of the Tribunal’s review is to reach the correct and preferable decision and 21(1) imposes a duty on the decision-maker to use its best endeavours to assist the Tribunal to make its decision in the review. Pursuant to s 21 of the QCAT Act, the duty to assist the Tribunal in the review is imposed on the decision-maker,^[32]  here, the Council. Again, the Tribunal’s error is an error in statutory construction of the relevant provisions of the QCAT Act, here concerning the operation its review jurisdiction.
40. [40]
    In view of the Tribunal’s error, leave to appeal should be granted to Ms Till to appeal the costs decision.

Conclusions on the appeal

41. [41]
    The Tribunal’s fundamental error in construction of s 17 of the QCAT Act resulting in its conclusion that it did not have jurisdiction affected its orders in dismissing the review application (order 2) and the costs application (order 3). The appeal should be allowed on the basis of this error of law. As discussed, we observe that the Tribunal also erred in deciding the costs application in its construction of the QCAT Act provisions concerning the duty to assist the Tribunal, imposed upon a decision-maker, in making the correct and preferable decision in review proceedings.
42. [42]
    As the appeal is decided on a question of law only, the Appeal Tribunal must proceed under s 146 of the QCAT Act. The Appeal Tribunal may make orders confirming or amending the decision,^[33] setting aside the decision and substituting its own decision,^[34] or return the matter to the Tribunal for reconsideration.^[35]  That said, there is no element of rehearing in an appeal decided on a question of law only.
43. [43]
    The Tribunal’s decision as set out in orders 2 and 3 should be set aside. Having regard to the parties’ submissions about the invalidity of the decisions, the appropriate course is to invite the decision-maker to reconsider the decisions pursuant to s 23 of the QCAT Act. It is also appropriate to remit the proceeding to the Tribunal for further determination in the event that a full merits review proceeds following the reconsideration. Pursuant to s 23(4) of the QCAT Act, the review would then be a review of the decisions made upon reconsideration, unless withdrawn by Ms Till.

Orders

44. [44]
    For the reasons explained, we make orders granting leave to appeal the costs decision. We allow the appeal. We set aside the Tribunal’s decision in respect of orders 2 and 3. We substitute orders pursuant to s 23 of the QCAT Act inviting the Council to reconsider the reviewable decisions, as well as remitting the review proceeding (including the application for costs) to the Tribunal. After the reconsideration, the review proceedings will continue unless Ms Till decides to withdraw the review.