Peterson v Rockhampton Regional Council
[2023] QCATA 50
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- Unreported Judgment
- Peterson v Rockhampton Regional Council[2023] QCATA 50
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Peterson v Rockhampton Regional Council[2023] QCATA 50
Peterson v Rockhampton Regional Council[2023] QCATA 50
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Peterson & Anor v Rockhampton Regional Council [2023] QCATA 50 |
PARTIES: | CIMEROND PETERSON SAMANTHA LISTER (applicants/appellants) v ROCKHAMPTON REGIONAL COUNCIL (respondent) |
APPLICATION NO: | APL044-22 |
ORIGINATING APPLICATION NO/S: | GAR346-19 GAR395-19 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 28 April 2023 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Aughterson |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – RIGHT OF APPEAL – WHEN APPEAL LIES – OTHER CASES – appeal on question of law or fact or mixed law and fact – where dangerous dog declaration – where decision upheld by Tribunal – where applicants seek to appeal that decision – whether leave to appeal should be granted – whether error of law established Animal Management (Cats and Dogs) Act 2008 (Qld), s 89 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142, s 147 Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39 Harrison and Anor v Meehan [2016] QCATA 197 Lee v Lee; Hsu v RACQ Insurance Limited; Lee v RACQ Insurance Limited [2018] QCA 104 Peterson v Rockhampton Regional Council; Lister v Rockhampton Regional Council [2022] QCAT 43 Piric & Anor v Claudia Tiller Holdings Pty Ltd [2012] QCATA 152 Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22 Seirlis & Ors v Queensland Building and Construction Commission [2020] QCATA 37 |
APPEARANCES & REPRESENTATION: | This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). |
REASONS FOR DECISION
- [1]On 9 February 2022, the Tribunal confirmed the decision of the respondent to declare ‘Chocolate’, ‘Panic’ and ‘Karma’ dangerous dogs pursuant to s 89 of the Animal Management (Cats and Dogs) Act 2008 (Qld). The first two named dogs were owned by the first applicant, the mother of the second applicant. The third named dog was owned by the second applicant. The two separate applications for review (GAR346-19 and GAR395-19) were heard and determined together.
- [2]The two applications concerned a single attack by the three named dogs on a dog named Brutus. While there was no dispute that the attack occurred or that Brutus sustained significant injury, the applicants denied that their dogs were involved in the attack. The attack occurred on the roadway outside the residence of the owner of Brutus, Ms Flowers, and opposite the residence of the second applicant. It was the applicants’ case that at the time of the attack their dogs were chained at the residence of the first applicant, the applicants were not present at the time of the attack and that they did not go to the residence of the second applicant until sometime after the attack.[1]
- [3]In confirming the decision of the respondent, the Tribunal at first instance found that the three named dogs were the attacking dogs.
- [4]The grounds of appeal are stated in the written submissions of the applicants, which may be summarised as follows:
- (1)The Tribunal’s decision was not the correct and preferable decision.
- (2)The Tribunal failed to consider the prejudice caused to the applicants by failures in the respondent’s decision-making processes; including a denial of natural justice and the factual inaccuracies relied upon in the decision to issue the dangerous dog declaration.
- (3)The Tribunal Member wrongly refused to accept into evidence a police report, on the basis of lack of relevance.
- (4)The Tribunal failed to give weight to eyewitness accounts in relation to the description of the dogs involved in the attack.
- (5)The Tribunal failed to give weight to the differing witness identifications of the alleged owners of the attacking dogs.
- [5]While, arguably, grounds 2 and 3 raise questions of law (failure to accord procedural fairness and failure to take account of a relevant consideration), grounds 1, 4 and 5 raise questions of fact. By s 142(3)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), an appeal on a question of fact requires leave of the Tribunal. By s 147(2) of the QCAT Act, if leave is given, the appeal must be decided by way of rehearing, with or without the hearing of evidence additional to that before the Tribunal at first instance.
- [6]
The relevant principles to be applied in determining whether to grant leave to appeal are well established: Is there a reasonably arguable case of error in the primary decision; Is there a reasonable prospect that the applicant will obtain substantive relief; Is leave necessary to correct a substantial injustice to the applicant caused by some error; Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage.
- [7]Leave will not be granted where a party simply desires to reargue the case on existing or additional evidence.[4] A clear purpose of the requirement for leave is to prevent any attempt to simply conduct a retrial on the merits of the case.[5] Also, the Appeal Tribunal will not readily interfere with findings of fact of the tribunal at first instance, unless they are demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’, or they are ‘glaringly improbable’ or ‘contrary to compelling inferences.[6]
Leave to appeal (Grounds 1, 4 and 5)
- [8]Leave to appeal is required for grounds 1, 4 and 5 of the appeal. Ground 1 of the appeal appears to be a catch-all ground, it being submitted that it could not be established with reasonable certainty that the applicants’ dogs were involved in the attack, while grounds 4 and 5 maintain that the Tribunal at first instance failed to give sufficient weight to witness accounts as to the description of the dogs involved in the attack and as to the identification of the alleged owners of the attacking dogs.
- [9]In the written submissions of the applicants it is submitted that:
- (a)Much of the evidence of the applicants was not considered.
- (b)The witness Ms Nelson stated that the three attacking dogs were of the same colour, all ginger. The witness Mr Kaigey referred to a pitbull and three other dogs and identified a Jack Russell, while Ms Flowers referred to a ‘fluffy chocolate dog’. A fourth witness said two of the dogs were tan and the third was red/tan. On the other hand, it is submitted that not one of the dogs is a Jack Russell and they are all short-coated dogs with no long or fluffy hair. Further, Chocolate is brown with white on her chest, while Panic and Karma are tan with white on their chests.
- (c)Two witnesses referred to a young man and a young blonde woman who grabbed the attacking dogs. However, the second applicant is an Aboriginal female with dark hair and dark skin.
- [10]The applicants do not particularise the evidence that is said not to have been considered by the Tribunal at first instance. From the materials and the reasons for the Tribunal’s decision it is not evident what relevant material was not considered. In the reasons there is a lengthy discussion of the evidence of the applicants, though it was stated by the Member at first instance that much of it was irrelevant. That is because it was directed at the respondent’s reasons for its decision, which was said to be based on ‘lies, a biased investigation, and inconsistent, incomplete and inaccurate information’ and, also, directed at issues that existed as between the applicants and Ms Flowers.[7] As to the latter, the second applicant expressed the view that Ms Flowers has a personal vendetta against her and her family. This allegation was noted and taken into account by the Tribunal Member and detailed reasons were given as to why, nevertheless, the evidence of Ms Flowers was accepted.[8]
- [11]The alleged failures of the respondent’s decision-making process are discussed separately, below, in relation to ground 2 of the appeal.
- [12]The applicants submit that the witness Ms Nelson stated that the attacking dogs were ginger. In fact the witness statement refers to the dogs as ginger/light tan. Ms Nelson also specifically identified the second applicant as one of the people trying to separate the dogs at the time of the attack.[9]
- [13]The statement of one witness to the attack, Ms Hardy, was tendered by consent.[10] She said that she resided in the unit next to the second applicant.[11] She was not required for cross-examination by the applicants. She identified two of the attacking dogs as tan and the other as red/tan and said that she had seen them at the unit ‘next door’.[12] She also referred to the couple ‘next door’ as returning the dogs to their unit after the attack.
- [14]With regard to the reference by Ms Flowers to a ‘fluffy chocolate dog’, Ms Flowers identified the three dogs by name.[13] She also identified the second applicant as being involved in separating the dogs and returning them to her unit after the attack. The evidence of Ms Flowers was accepted by the Tribunal Member.[14]
- [15]With reference to the identification of a blonde woman, in a record of interview conducted by the Council Mr and Ms English refer to a ‘young bloke and a blonde’ being present at the time of the attack, but Mr English also stated that he ‘didn’t see much’. He was not called as a witness at the hearing. A Mr Kaigey was called as a witness and he also referred to a blonde woman being present. The transcript is not clear as to who is being referred to, but it could be a reference to the second applicant. He also stated: ‘I’m just trying to refresh my memory, because it’s been a long – couple of years back’. In discussing the evidence, the Tribunal Member was of the view that Mr Kaigey could not readily recall what he had observed given the passage of time and noted that this witness was not entirely clear in the first instance as to what he observed.[15] The Tribunal Member also discounted the statement of Mr and Ms English, as they were not called to give evidence.[16]
- [16]The Tribunal Member canvassed the evidence given by the several witnesses and did not accept the evidence of the applicants that they were not present at the time of the attack and that at that time the dogs were chained at the residence of the first applicant.[17] What were said to be inconsistencies in the evidence of the applicants were pointed to.[18] It was also noted that at no time was it put to Ms Flowers in cross-examination that she was mistaken as to the identity of the attacking dogs or as to the identity of the second applicant as being involved in separating the dogs.[19]
- [17]Leave to appeal in relation to grounds 1, 4 and 5 is refused. There is no reasonably arguable case of error nor is leave necessary to correct a substantial injustice to the applicants. There is no question of general importance. The case turns on the single question of whether or not the applicants’ dogs were involved in the attack and, ultimately, that determination depended on the Tribunal Member’s weighing of the evidence, including an assessment of the credibility of witnesses. The Tribunal Member had the advantage of seeing and hearing those witnesses.
Ground 2
- [18]Ground 2 of the appeal concerns the decision-making process of the respondent in issuing the dangerous dog declarations. It is submitted that that failure included a denial of procedural fairness and reliance on factual inaccuracies by the respondent.
- [19]However, as noted by the Member at first instance the review conducted by the Tribunal was a merits review; that is, a fresh hearing on the merits before the Tribunal: see QCAT Act s 20(2). The Tribunal Member stated that he was ‘not concerned with the process by which the Decisions were reached and whether any error was made in any of the steps taken by the decision-maker’. In relation to that process, the Tribunal Member stated that this:[20]
[32] … was an argument that pervaded the presentation of the applicants’ respective cases in the hearing. This occurred despite me informing them, via Ms Laskus [for the applicants], at the start of the hearing and on several occasions during it, that I am not concerned with the process engaged in by the respondent that led to the Decisions. I sought to have them understand that this was a fresh hearing on the merits such that to the extent it may be their opinion that the process was flawed and they were adversely affected by it, to the extent of the matter in issue they had the opportunity to put their cases before me as the decision maker and so satisfy me that the Decisions were not the correct and preferable decisions.
[33] Unfortunately, it appeared to me that Ms Laskus failed to understand this. She consistently sought to lead evidence, or draw evidence via cross-examination, and later make submissions, relevant to what was said to be steps having been taken by the respondent erroneously. This was apparently done in an effort to undermine the correctness of the Decisions. Generally, she failed to simply present the applicants’ cases in a way that showed me with some certainty I could accept as being correct the fact that Karma, Chocolate, and Panic, nor any one of them, was not involved in the Attack.
- [20]The applicants were given an opportunity to present all material to the Tribunal relevant to the question of whether there should be a dangerous dog declaration and there was ample opportunity to examine and cross-examine witnesses. There was no denial of procedural fairness before the Tribunal and there is no evidence or any submission to the effect that any alleged factual inaccuracies by the respondent impacted the factual findings of the Tribunal at first instance.
- [21]This ground of appeal is rejected.
Ground 3
- [22]The third ground of appeal is that the Tribunal Member wrongly refused to accept into evidence a police report, on the basis of lack of relevance. The police report is some 43 pages of various police reports, relating to incidents involving one of the applicants as the complainant. They involve allegations of assault, breaking and entering and property damage. The names of any alleged perpetrators have been redacted, though there is reference to ongoing issues or problems with an unnamed party.
- [23]However, as appears from the transcript of the Tribunal hearing, the information that the second applicant wished to rely upon from the police reports was that, along with her dog Karma, she was living with her mother at a different though nearby address at the time of the attack on Brutus.[21] When the Tribunal Member stated that, subject to any ensuing cross-examination by the respondent that might indicate otherwise, he was satisfied by the oral evidence of the second applicant that at that time she was residing with her mother, the applicants did not press the application to tender the police reports.
- [24]In any event, it is evident from the reasons for the decision that the question of where the second applicant was residing at the time of the attack was not a significant consideration in the making of the decision by the Tribunal Member.
- [25]In the submissions on appeal, the applicants submit that the police reports show the history of the relationship between Ms Flowers and the second applicant. It is further submitted that the level of her hostility against the second applicant was also demonstrated immediately following the Tribunal Hearing.
- [26]As acknowledged by the applicants,[22] it remains that the only contentious question on the review was the identity of the attacking dogs. In relation to that issue, the Tribunal Member considered at length all of the submissions and evidence, including the issue of credibility, in reaching the decision that the applicants’ three dogs were responsible for the attack. The Tribunal Member noted that the applicants’ evidence focused on the conduct of the council, so that, for example, the evidence of Ms Flowers identifying the second applicant as being present at the time the dogs were retrieved from the attack and then taken to the second applicant’s unit across the road ‘was not in any way meaningfully challenged in cross-examination’.[23]
- [27]Further, after referring to the alleged animosity of Ms Flowers towards the applicants, the Tribunal Member considered the evidence of Ms Flowers in the context of earlier statements made by her, including the body cam evidence, and its consistency with the evidence given by another witness.[24] The Tribunal Member accepted her evidence as plausible and correct.
- [28]This ground of appeal also is rejected.
- [29]Leave to appeal in relation to grounds 1, 4 and 5 of the appeal is refused. The appeal in relation to grounds 2 and 3 of the appeal is dismissed.
Footnotes
[1]Peterson v Rockhampton Regional Council; Lister v Rockhampton Regional Council [2022] QCAT 43, [30], [38], [43], [46].
[2][2016] QCATA 197.
[3]Ibid, [8].
[4]Piric & Anor v Claudia Tiller Holdings Pty Ltd [2012] QCATA 152, [12].
[5]Ibid; Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39; Seirlis & Ors v Queensland Building and Construction Commission [2020] QCATA 37.
[6]Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22, [43]. Followed in Lee v Lee; Hsu v RACQ Insurance Limited; Lee v RACQ Insurance Limited [2018] QCA 104.
[7]Peterson v Rockhampton Regional Council; Lister v Rockhampton Regional Council [2022] QCAT 43, [31]-[35].
[8]Ibid, [49], [94]-[101].
[9]Though, the Tribunal Member stated that he did not have regard to the content of her statement, given that she was not called as a witness and there was no opportunity for the applicants to cross-examine her: Peterson v Rockhampton Regional Council; Lister v Rockhampton Regional Council [2022] QCAT 43, [74].
[10]Peterson v Rockhampton Regional Council; Lister v Rockhampton Regional Council [2022] QCAT 43, [69].
[11]Ibid, [70].
[12]Ibid.
[13]Ibid, [72]-[73].
[14]Ibid, [94]-[102]. See also the observations of the Tribunal Member at [109] in relation to identification of the dogs.
[15]Ibid, [71], [103]-[104], [110]-[112].
[16]Ibid, [104], [111]-[112].
[17]Ibid, [105]-[107].
[18]Ibid, [46]-[48], [82]-[93].
[19]Ibid, [73], [94], [106].
[20]Peterson v Rockhampton Regional Council; Lister v Rockhampton Regional Council [2022] QCAT 43, [32]-[33].
[21]Transcript 3 December 2021, 1-37 L 30 to 1-39 L 44; 1-57 L 21 to 1-59 L 40.
[22]Ibid, 1-25 L 17-32.
[23]Peterson v Rockhampton Regional Council; Lister v Rockhampton Regional Council [2022] QCAT 43, [32], [81], [94].
[24]Ibid, [49], [95]-[102].