Casey v Department of Environment and Resource Management [2011] QCAT 256

CITATION: Casey v Department of Environment and Resource Management [2011] QCAT 256 PARTIES: Mr John Robert Casey v Department of Environment and Resource Management APPLICATION NUMBER: GAR016-11 MATTER TYPE: General administrative review matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: S Booth, Senior Member DELIVERED ON: 7 June 2011 DELIVERED AT: Brisbane ORDERS MADE: The application to stay a decision is refused. CATCHWORDS: Application for stay Queensland Civil and Administrative Tribunal Act 2009, s 22 APPEARANCES and REPRESENTATION (if any): The matter was heard and determined on the papers under section 32 of the Queensland Civil and Administrative Tribunal Act 2009. Written submissions were received from Whitsunday Law (on behalf of the Applicant) and Respondent, the Department of Environment and Resource Management. REASONS FOR DECISION [1] Mr John Casey and before him his father Mr Alf Casey, have held a permit to keep a crocodile for nearly 50 years. [2] On 8 December 2010 the Department of Environment and Resource Management (the Department) made a decision that certain conditions would attach to the permit to keep the crocodile. [3] On 23 December 2010 Mr Casey lodged an application to review that decision and as well an application to stay the decision. -- 1 of 4 -- 2 [4] The Tribunal may order a stay the operation of a reviewable decision in circumstances set out in section 22(4) of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act) S22 (4) The Tribunal may make an order …only if it considers the order is desirable after having regard to the following— (a) The interests of any person whose interests may be affected by the making of the order or the order not being made; (b) Any submission made to the tribunal by the decision-maker for the reviewable decision; (c) The public interest. [5] The QCAT Registry was directed to provide the Department with a copy of the stay application. The Department then filed and serve its submissions opposing the stay application, on the view 'that the applicant must start to take appropriate steps to implement the conditions immediately.’ Following a Directions Hearing, the Applicant was then directed to provide any further response to the Respondent’s submission. [6] The Respondent notes that while the crocodile has been in the possession of Mr Casey and previously his father for an extended period of time, it is necessary to impose conditions that would ensure the safety of persons who may come in contact with the animal. [7] The Respondent submits that the stay is opposed because while the applicant can make their case as to the reasonableness (or otherwise) of the conditions imposed by the Department, in the meantime, the Department cannot allow public safety to be compromised. [8] Further, it submits that the animal does not need to be moved to comply with the conditions [9] On the question of public safety, the Department submitted that the current fencing was inappropriate as it was possible for a child’s hand to go through the fence. In support, it referred to photographs taken in October 2010. [10] It submits that there is an unacceptable risk of unintended contact with a dangerous animal. [11] The Applicant submits that the person whose interests are adversely effected are those of the Applicant. [12] Further, the Applicant submits that the decision maker failed to refer to the status of the animal being held for private purposes and not for public viewing. The Applicant noted that unintended visitors would need to climb over a barbed wire enclosure to enter the animal enclosure. As for intended visitors; these only enter the enclosure when the animal is secured in a separate part. [13] The Applicant has submitted that there is no evidence that anything has changed in the way the animal has been managed from the last inspection. -- 2 of 4 -- 3 [14] The Applicant submits that the public interest really translates to public safety. In addressing public safety and the Respondent’s concerns about the safety of children, the Applicant submits that he has foreseen the possible, if remote, risk and quite some time ago, erected an additional chicken wire fence around the immediate exterior of the animal’s enclosure. [15] The Applicant concludes that he is well aware of his responsibilities in keeping and maintaining the crocodile. Discussion [16] Prior to a review of a decision of the Respondent to grant the permit with conditions, the Tribunal may stay the operation of a reviewable decision under section 22 (4) of the QCAT Act. [17] It must have regard to the interest of any persons who may be affected, the submission of the decision maker and the public interest. [18] In considering the interest of any person whose interests may be affected the Tribunal agrees that it is the Applicant whose interest is affected by this decision [19] Balancing this private interest, the Tribunal must have regard to the wider community. It does so by considering the respondent’s submissions and the public interest. [20] The submissions of the decision maker are focused mainly on the issue of public safety. [21] The Tribunal considers that the main issue to be decided in this matter is to balance the interest of the applicant against the public interest. [22] The Applicant has had a permit essentially without incident for almost 50 years. While the Respondent notes the longevity of the permit, it submits that a stay would compromise public safety. In support of its submissions on the issue of safety of children it referred to photographs taken by the Respondent in October 2010 which it submits show that a child’s hand could go through the fence. [23] In response to this submission the Applicant stated, and the Tribunal accepts, he erected a chicken wire fence as an extra safety precaution. [24] The photographs were of assistance to the Tribunal. The chicken wire can be seen in the photographs, however what is also clear (in the photograph numbered page 6 and 9 of the Statement of Reasons) is that the chicken wire appears to be in state of disrepair, at least in the part, with holes in the wire where potentially a child’s hand could fit. [25] There are no submissions from the Applicant to suggest that these photographs were inaccurate or out of date. The Applicant merely stated that they erected the chicken wire fence quite some time ago but did not provide any date not any submissions as to the current repair of the fence. [26] The Tribunal has therefore concluded that the photographs are accurate and is persuaded that while the chicken wire fence may have been erected -- 3 of 4 -- 4 to ensure public safety, it has not been repaired or maintained and as result creates a safety risk. [27] While subject to review before this Tribunal, the respondent has serious statutory responsibilities. The public interest is served by ensuring that decisions made by the Respondent, are not affected by a stay that would undermine confidence in the statutory scheme for the protection of the public. This especially important with wild animals held in captivity. [28] The Tribunal therefore considers that it is not in the public interest to make an order staying the decision. Order [29] The application to stay the decision is refused. -- 4 of 4 --