Chaplin v Sunshine Coast Regional City Council [2020] QCA 258

SUPREME COURT OF QUEENSLAND CITATION: Chaplin v Sunshine Coast Regional City Council [2020] QCA 258 PARTIES: KARA ROSE CHAPLIN (applicant) v SUNSHINE COAST REGIONAL CITY COUNCIL (respondent) FILE NO/S: Appeal No 8275 of 2020 QCATA No 357 of 2019 DIVISION: Court of Appeal PROCEEDING: Application for Leave Queensland Civil and Administrative Tribunal Act ORIGINATING COURT: Queensland Civil and Administrative Tribunal – [2020] QCATA 83 (Senior Member Aughterson and Member Kanowski) DELIVERED EX TEMPORE ON: 20 November 2020 DELIVERED AT: Brisbane HEARING DATE: 20 November 2020 JUDGES: Morrison and Philippides JJA and Boddice J ORDERS: 1. Extend the time to make an application for leave to appeal to 10 August 2020. 2. Leave to appeal refused. 3. The applicant is to pay the respondent’s costs of an incidental to the application on the standard basis. CATCHWORDS: APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – OTHER MATTERS – where the applicant seeks to appeal a decision of the appeal tribunal of the Queensland Civil and Administrative Tribunal – where the appeal may only be brought on a question of law and with leave – whether leave should be granted ANIMALS – VARIOUS STATUTORY PROVISIONS – OTHER MATTERS – whether evidence supports finding that dog is a danger to children or infirm Animal Management (Cats and Dogs) Act 2008 (Qld), s 127(4) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(2), s 150(3) -- 1 of 7 -- 2 COUNSEL: T Crispin for the applicant M Plunkett for the respondent SOLICITORS: Lawyers for Companion Animals for the applicant Sunshine Coast Regional Council for the respondent [1] MORRISON JA: On 4 April 2019 the Sunshine Coast Regional Council seized Ms Chaplin’s dog, an American Staffordshire bull terrier cross. On 16 April the Council issued a notice for the destruction of the dog. [2] Ms Chaplin asked the Council to undertake an internal review of that decision. That was done and on 23 May 2019 the Council confirmed the decision. [3] Ms Chaplin commenced proceedings in the Queensland Civil and Administrative Tribunal (QCAT), seeking to have to the decision set aside. On 29 November 2019 a single member of QCAT confirmed the decision.1 [4] Ms Chaplin lodged an appeal to the QCAT Appeal Tribunal. That was heard on 28 May 2020. On 3 June 2020 the Appeal Tribunal confirmed the decision of the tribunal at first instance.2 [5] Ms Chaplin now seeks leave to appeal from the decision of QCAT’s Appeal Tribunal. A notice of appeal was filed on 31 July 2020, about four weeks beyond the time limited for any application for leave to appeal. An application for leave to appeal was belatedly filed on 10 August 2020. [6] The Council does not oppose an extension of time. Rather, it opposes the grant of leave to appeal on the basis that no error of law is made out. [7] Under s 150(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld),3 an appeal from the Appeal Tribunal to this Court can only be on a question of law, and then only with leave. The issues raised on a question of leave to appeal are whether:4 (a) an appeal is necessary to correct a substantial injustice; (b) there is a reasonable argument that there is an error to be corrected; and (c) on the question of whether leave to appeal might be given, the Court will have high regard for the applicant’s prospects of success of making out an error of law on the part of the QCAT Appeal Tribunal; there must be reasonable prospects of success to warrant a grant of leave. Background [8] On 18 August 2016 the Noosa Shire Council regulated Ms Chaplin’s dog as a dangerous dog. That was because it had escaped from Ms Chaplin’s property through a faulty gate, and attacked and killed a dog which was then being walked on a leash. 1 Chaplin v Sunshine Coast Regional Council [2019] QCAT 371. 2 Chaplin v Sunshine Coast Regional Council [2020] QCATA 83. 3 To which I shall refer as “the QCAT Act”. 4 Queensland Building & Construction Commission v Meredith [2014] QCA 62 at [23]; Terera & Anor v Clifford [2017] QCA 181 at [10]. -- 2 of 7 -- 3 [9] Ms Chaplin moved to the Sunshine Coast. There, on 13 March 2018, her dog was being exercised by Ms Chaplin’s partner who was riding a bike while holding the dog’s leash. Contrary to the requirements imposed on a regulated dangerous dog, it was not wearing a muzzle at the time. It broke free and attacked another dog. It is unclear whether either dog sustained any injury. [10] A year later, on 29 March 2019, the dog escaped from Ms Chaplin’s property again. It attacked and savaged a dog then being walked on a leash by its owner, causing serious injuries to that dog. [11] Following the 2019 incident Ms Chaplin’s dog was seized on 4 April 2019 by Mr Gilbert, the Senior Response Services Officer for the Council. [12] On 16 April 2019 the Council issued a notice for the destruction of the dog. Since that time the dog has remained in the Council’s custody and has, at all times, remained subject to an order for its destruction. Proposed grounds of appeal [13] Ms Chaplin relies upon three grounds of appeal, each contending that there was a denial of procedural fairness on the part of the Appeal Tribunal. The three reasons advanced are that the Appeal Tribunal should have found that: (a) there was an error at first instance by relying on irrelevant matters, being the attitude and history of Mr Gilbert regarding the destruction of dogs; (b) the tribunal at first instance showed undue deference to the evidence of Mr Michael Gilbert; and (c) the tribunal at first instance made findings without evidence, specifically that the dog in question was a danger to children or the infirm. Proposed grounds 1 and 2: reliance on the evidence of Mr Gilbert [14] The tribunal at first instance conducted a fresh hearing on the merits pursuant to s 20(2) of the QCAT Act. For that purpose it heard evidence from: (i) Mr Gilbert; (ii) Ms Chaplin; (iii) Mr Madigan, the partner of Ms Chaplin; (iv) Ms Chaplin’s mother; (v) Ms Brumby, the Council’s Supervisor, Business Operations; (vi) Mr Busby, a veterinarian; (vii) Mr Haywood, a professional dog trainer and dog behaviour specialist; and (viii) Ms Quinn, a veterinarian specialising in animal behaviour. [15] Mr Gilbert gave evidence that he had been in his position as the relevant authorised officer of the Council for five years. He explained why he had ordered the destruction of the dog. As to his evidence the QCAT member recorded that “Mr Gilbert testified he has been in his position with the council for five years and this is only the second occasion in that time that he has ordered the destruction of a dog”.5 Later, when giving reasons as to the member’s assessment of all the evidence, this was said:6 “I was impressed by the evidence and conduct of Mr Michael Gilbert of the Council, who not only had to seize [the dog] but issue the destruction notice. The audio recording of Mr Gilbert with Ms Chaplin and [the dog] after the third incident, when [the dog] was 5 Reasons at first instance [31]. 6 Reasons at first instance [73]. -- 3 of 7 -- 4 seized by Mr Gilbert, demonstrated his kindness, empathy, and sympathy with Ms Chaplin and the dog. Mr Gilbert would not lightly issue a destruction notice on a dog – indeed [this dog] is only the second notice in his work for the Council over the course of five years. His decisions and actions should not be lightly overturned.” [16] Proposed grounds 1 and 2 relate to those findings. The contention sought to be advanced is that the reasons at first instance placed reliance on Mr Gilbert’s judgment and expertise, when there was no evidence of that expertise, or that Mr Gilbert was “especially qualified, nor experienced in assessing the behaviour of dogs”. [17] These criticisms were raised before the QCAT Appeal Tribunal. In dealing with them, the Appeal Tribunal said:7 “[25] It is true that there is little information about Mr Gilbert’s experience and record, but we do not consider that the learned member placed a heavy or undue reliance on his evidence. [26] The learned member’s reasons ran to 84 paragraphs. He noted that a fresh review on the merits was to be conducted. He also noted that the Tribunal was ‘required to undertake extensive enquiry before exercising its discretion under 127(4) of the [Animal Management Act]’. Section 127(4) is the provision which enables a dog destruction decision to be made. It is noteworthy that reference was made to the tribunal itself exercising the discretion. [27] The reasons show that the learned member carefully considered the history of the matter, the risks posed by [the dog], the steps Ms Chaplin has taken to further mitigate the risks, Ms Chaplin’s strong desire to avoid any further incidents, and the submissions of both parties. The evidence was discussed in detail, including the substantial amount of evidence gathered since Mr Gilbert made his decision. [28] The risks were also assessed in some detail, in terms of probability and consequence. It was concluded that there was a high probability of a further attack by [the dog], involving serious consequences. The section in the reasons ‘Applying the law in evidence’ was concluded as follows: Assessing the risks, and being cognisant of the intention of the [Animal Management Act], I am satisfied that the threat posed can only be dealt with satisfactorily by the destruction of [the dog]. The balance struck by the Council in its decision to have [the dog] destroyed is appropriate. It is a correct decision, and it is the preferable decision. [29] It is clear that despite placing some reliance on Mr Gilbert’s views, the learned member engaged in his own process of reasoning: weighing up the risks, the other evidence, and the 7 Reasons of the appeal tribunal [25]-[30]; internal references omitted. -- 4 of 7 -- 5 purposes of the legislation. It was not a case of simply adopting some analysis articulated by Council staff. [30] It is apparent from the reasons as a whole that the role of the Tribunal was properly understood, including the need to independently exercise the discretion in s 127(4) of the Animal Management Act. The learned member performed that task. The comment about not likely overturning Mr Gilbert’s decisions and actions, read in isolation, could suggest undue deference and a failure to grasp the required task. However, we are satisfied that this concern is removed by a consideration of the reasons as a whole.” [18] In my view there is no error in the approach of the Appeal Tribunal. The characterisation of the reasons of the single member at first instance was, respectfully, correct. The single member spent some time examining the legal framework in which the review was to be held,8 and then spent considerable time assessing the evidence of all witnesses, on all the points raised by them.9 In the course of that exercise, the evidence of Mr Gilbert was but one aspect. That evidence established that Mr Gilbert had been in his position for five years as the relevant authorised officer dealing with regulated dogs. The statements attacked under these grounds were based upon an assessment of Mr Gilbert’s response to Ms Chaplin and the dog after the third incident, with the member finding that Mr Gilbert’s conduct demonstrated “kindness, empathy, and sympathy with Ms Chaplin and the dog”. That led to the conclusion that Mr Gilbert would not lightly issue a destruction notice, and his decisions and actions should not be lightly overturned. There is nothing objectionable in that conclusion, nor does it display improper reliance upon Mr Gilbert’s judgment and expertise. It was but one factor weighed in the balance, along with the evidence adduced from Mr Busby, Mr Haywood and Ms Quinn, all dealing with the risks attendant upon dealing with the dog, and the likelihood of a further attack. The single member’s approach does not demonstrate an error in the approach to the evidence of Mr Gilbert. More specifically, the passages quoted above in the reasons of the Appeal Tribunal demonstrate that the Appeal Tribunal did not commit any error in their approach to the matter. Proposed ground 3 – the finding that the dog was a danger to children or the infirm [19] In the reasons at first instance, the QCAT member said this:10 “In none of the three incidents involving him so far has [the dog] acted in protection of his family or their property but, on each occasion, escaped from the property or adult control and attacked another dog with the evident intention of causing injury or death to that other dog. There can be no confidence that, once set upon a course of aggressive behaviour [the dog] would not do the same thing again if the opportunity was presented, with the risk that, on a future occasion, it could involve other animals or a child.” [20] Then, the single member of QCAT said:11 8 Reasons at first instance [18]-[28]. 9 Reasons at first instance [29]-[83]. 10 Reasons at first instance [71]. 11 Reasons at first instance [80]; internal reference omitted. -- 5 of 7 -- 6 “The consequences of an attack by [the dog] remain unchanged from what has happened on three earlier occasions: [The dog] will attack with an intention to seriously injure or kill. If a dog being attacked by [Ms Chaplin’s dog] was under the control of a child or infirmed person there is a risk that such child or person could also be attacked. This is a different scenario to that where a wandering RDD12 has no obvious propensity to violence.” [21] The contention sought to be advanced is that there is no evidentiary support for those findings. Particularly, it is said that there is no evidence to substantiate the assertion that the dog may attack a child or infirm person. [22] This finding was the subject of reasons given by the Appeal Tribunal. Referring to the last sentence in the passage set out at paragraph [19] above, it was said:13 “The first passage quoted in paragraph 32 above, read alone, does appear to embody a finding that [Ms Chaplin’s dog] poses a risk of attacking a child independently of attacking a dog. However, when the second, more detailed, passage is taken into account, it is evidence that the learned member identified the risk as an attack by [the dog] on a dog, with the risk to a child or infirmed person being a collateral risk. It is easy to imagine situations where a person trying to protect their pet dog from an attack by [the dog] could themselves be injured by him, intentionally or otherwise. We consider that the finding made by the learned member of a collateral risk to humans was open as a matter of inference. It did not have to be supported by specific evidence.” [23] In my respectful view the Appeal Tribunal was plainly correct in its assessment of the findings at first instance. It is self-evident that if a dangerous dog has a propensity to attack other dogs which are then being walked on a leash by their owners, there is a risk that the attack will involve the owners of the other dogs. Equally, it is self- evident that such people might include children or infirm adults. As the Appeal Tribunal said, that conclusion was open as a matter of inference and did not require specific evidence. [24] There is no error of law demonstrated in the approach of the Appeal Tribunal. Application to adduce further evidence [25] Ms Chaplin sought to adduce further evidence before this Court of events since the matter was dealt with by the Appeal Tribunal. This relates to further fencing which has been erected with the intention that it will prevent further escapes by the dog. [26] Ultimately, Mr Crispin, who appeared for Ms Chaplin before this Court, accepted that the evidence was irrelevant to any question of error of law on the part of the Appeal Tribunal. That application should be refused Conclusion and disposition of the application [27] There is no error of law to be corrected. Consequently, an appeal is bound to fail. Leave to appeal should be refused. 12 This refers to a regulated dangerous dog. 13 Reasons of the appellate tribunal [35]. -- 6 of 7 -- 7 [28] I propose the following orders: 1. Extend the time to make an application for leave to appeal, to 10 August 2020. 2. Leave to appeal refused. 3. The applicant is to pay the respondent’s costs of and incidental to the application on the standard basis. [29] PHILIPPIDES JA: I agree. [30] BODDICE J: I agree. -- 7 of 7 --