Ferizovic v Brisbane City Council [2021] QCAT 167

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Ferizovic v Brisbane City Council [2021] QCAT 167 PARTIES: ERNER FERIZOVIC (applicant) v BRISBANE CITY COUNCIL (respondent) APPLICATION NO/S: GAR181-20 MATTER TYPE: General administrative review matters DELIVERED ON: 24 March 2021 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Browne ORDERS: The time for filing the application to review a decision is extended to 4:00pm on 28 May 2020. APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). REASONS FOR DECISION [1] On 28 May 2020, Erner Ferizovic applied to the Tribunal to review a decision made by the Brisbane City Council on 6 March 2020 to declare his dog ‘Chop’ a regulated menacing dog. [2] In the application to review, Mr Ferizovic states that he received Council’s decision on 6 March 2020 and provides the following reason for filing the application to review outside the prescribed time of 28 days from when the reviewable decision was made: The reason for not applying for QCAT to review earlier [sic] due to Council not visiting my house till mid-May – COVID 19 restrictions. [3] The Tribunal issued directions requiring Mr Ferizovic to file an application for an extension of time to file the application to review and amongst other things, directed that a submission be filed explaining in more detail why Mr Ferizovic believes the delay by the Brisbane City Council in visiting his property is relevant to him not filing an application to review in the Tribunal within 28 days of 6 March 2020.1 [4] I am satisfied that it is appropriate to determine the application to extend the time for filing the application to review on the papers. Both parties have filed written 1 Tribunal Directions dated 3 June 2020. -- 1 of 3 -- 2 submissions in compliance with the Tribunal’s Directions dated 1 February 2021 and neither party has requested that the matter be listed for an oral hearing. Should the time for filing the application to review be extended? [5] Compliance with time limits such as the requirement to file an application to review within the prescribed time must be complied with unless there is a compelling reason for the noncompliance. [6] There is power under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) to extend a time limit fixed for the start of a proceeding that involves the exercise of a broad discretion.2 Relevantly, s 61(3) of the QCAT Act provides that the Tribunal cannot extend or shorten a time limit if to do so would cause prejudice or detriment, not able to be remedied by an appropriate order for costs or damages, to a party or potential party to a proceeding. [7] The discretion to extend time should be exercised according to established principles such as the length of the delay; whether the party has provided an adequate explanation for the delay; the merits of the proceeding; prejudice to others; and the interests of justice.3 [8] In the present matter Mr Ferizovic was required to file the application for review by ‘4:00pm on 6 April 2020’ being 28 days from when he received Council’s decision of 6 March 2020. The application to review was filed on 28 May 2020 being 52 days out of time. [9] Although, the delay of 52 days may be considered considerable, I am satisfied that Mr Ferizovic has provided an adequate explanation for the delay. [10] Relevantly, Mr Ferizovic says: (a) He contacted the Council within seven days of receiving the decision to have one of the Council officers assist him with understanding the compliance requirements for keeping a menacing dog.4 (b) He followed up his request with Council in April and was advised that ‘someone will contact you soon’. (c) In early May 2020, Emily Reuter (from the Council) contacted Mr Ferizovic and visited the place where Mr Ferizovic says his dog is located. (d) On 13 May 2020, Ms Reuter provided Mr Ferizovic with an identification tag for the menacing dog and relevant signage to be installed at the property for the menacing dog. The enclosure requirements for the property were also explained. (e) He was not happy (at this stage) with Council’s decision and decided to apply ‘for QCAT to review [sic] decision’. He lodged all documents with QCAT on 28 May 2020 which is only two weeks after the enclosure requirements were confirmed and an ID tag delivered along with all signages. 2 QCAT Act, s 61. 3 Harper Property Builders Pty Ltd v Queensland Building and Construction Commission [2018] QCATA 70, [26]. 4 Applicant’s submissions filed 14 February 2021. -- 2 of 3 -- 3 [11] I do not accept, as submitted by the Council, that Mr Ferizovic has failed to provide a satisfactory reason to explain the delay.5 [12] As discussed above, Mr Ferizovic has, in my view, taken steps to understand the requirements for keeping a regulated menacing dog. It is open for me to find that Mr Ferizovic has not slept on his rights but was taking steps to understand the requirements for keeping a declared menacing dog so that he could make an informed decision about exercising his review rights. [13] Although Mr Ferizovic does not dispute that his dog attacked the complainant, in my view, he does have an arguable case. On 24 February 2021, Council filed in the Tribunal a copy of all relevant documents and material in compliance with s 21 of the QCAT Act. The material includes audio recordings, statements and a number of photographs relevant to the incident giving rise to the reviewable decision to declare the dog a menacing dog. The material includes a statement provided by Mr Ferizovic to the Council about the incident. Mr Ferizovic refers in his statement to his dog being provoked by the complainant, that a female person threw rocks on the dog and states that the dog was on his property at the time of the incident. [14] It is open for me to find that there is no prejudice to the Council by reason of the delay in filing the application to review outside the prescribed time. As discussed above, Council has already prepared and filed in the Tribunal all material relevant to the reviewable decision. Indeed, the Council in responding to Mr Ferizovic’s application to extend time does not contend that there is any prejudice or compelling reason for refusing the extension of time in all of the circumstances. The Council submits that Mr Ferizovic has failed to provide a satisfactory explanation for the delay, that his case lacks merit and the Tribunal cannot be satisfied it is in the interests of justice to grant the extension of time. [15] I am satisfied there is a satisfactory explanation for the delay, there is at least an arguable case and all relevant material has been prepared and filed by the Council. I have decided to exercise my discretion in this matter to grant Mr Ferizovic an extension of time to file the application to review in the Tribunal. [16] I order that the time for filing the application to review a decision is extended to 4:00pm on 28 May 2020. 5 Respondent’s submissions filed 24 February 2021. -- 3 of 3 --