Appellant v Respondent

Supreme Court of Victoria|2013-09-06|Before: CROUCHER J

ADMINISTRATIVE LAW - Declaration by Council that appellant's dog a "restricted breed dog" pursuant to s 3(1) of the Domestic Animals Act 1994 (Vic) - Declaration affirmed by Victorian and Administrative Tribunal on review - Application for leave to appeal from Tribunal's decision refused by Associate Judge - Appeal from Associate Judge - Nature of appeal under Rule 77.06 of Supreme Court (General Civil Procedure) Rules 2005 (Vic) - Rehearing or appeal in strict sense - Whether arguable error in Tribunal relying on an "overall impression" of compliance with - Whether arguable error in Tribunal failing to take into account evidence that the distances from withers to the elbow and the elbow to the ground were not equal - Whether arguable error in Tribunal relying on own "overall impression" that those distances were "generally equal" - Meaning of "generally equal" - Appeal allowed - Leave to appeal against Tribunal decision granted - Whether appeal against Tribunal decision should be heard and determined or dealt with at separate hearing - Separate appeal hearing directed.

Mr E N Magee QC with Mr A E Klotz and Ms S C Bailey

1 Jade Applebee owns a dog named Kerser. When Kerser was about ten months old, he was seized and impounded by Monash City Council ("the Council"). The Council declared Kerser to be an American Pit Bull Terrier, and therefore a "restricted breed dog", within the meaning of s 3(1) of the Domestic Animals Act 1994 (Vic) ("the DA Act"). This means that Kerser will be destroyed unless the declaration is set aside. Kerser has been impounded for nine months. Ms Applebee wants Kerser home, alive. She tried, but failed, to persuade the Victorian Civil and Administrative Tribunal ("the Tribunal") that the declaration was wrong. An Associate Judge of this Court refused an application for leave to appeal against the Tribunal's decision. Ms Applebee now appeals to a Judge of the Trial Division.

2 For reasons that follow, I would allow the appeal against the order of the Associate Judge refusing leave to appeal; set aside that order; grant leave to appeal against the order of the Tribunal; and set the matter down for appeal.**

**3 On 4 December 2012, the Council seized and impounded Kerser. On 11 December 2012, the Council gave notice to Ms Applebee, pursuant to s 98A of the DA Act, that Kerser had been declared to be a restricted breed dog - in particular, an American Pit Bull Terrier.

4 As indicated above, the result of such a declaration is that Kerser will be destroyed. Section 84P(b) of the DA Act provides that the Council may destroy a dog at any time after its seizure if the dog is a restricted breed dog that is not able to be registered. Under s 41EA, there is a prohibition on keeping a restricted breed dog that was not registered in Victoria before 30 September 2011. Under s 17(1AA), the Council is not permitted to register such a dog. Kerser could not be registered before 30 September 2011 because he was not born until 1 February 2012.

5 Ms Applebee's application for review of the Council's decision was heard at the Tribunal over two days, on 20 February and 18 March 2013. The Deputy President heard competing evidence as to whether Kerser fell within Part 1 of the Standard for Restricted Breed Dogs in Victoria ("the Standard"), which concerns American Pit Bull Terriers. On the second day of the hearing, the Deputy President viewed Kerser in the company of the respective expert witnesses and counsel for the parties.

6 On 3 April 2013, the Deputy President affirmed the Council's declaration and published reasons for her decision.[1]

7 On 16 May 2013, the Associate Judge heard Ms Applebee's application for leave to appeal, on a question of law, pursuant to s 148(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ("the VCAT Act").

8 On 29 May 2013, the Associate Judge refused the application and published reasons for her decision.[2]**

C. The nature of an appeal from an Associate Judge to a Judge of the Trial Division

**9 A preliminary issue raised in argument concerned the nature of an appeal from an Associate Judge to a Judge of the Trial Division.

10 Previously, such appeals were by way of rehearing de novo. The old Rule 77.06(7) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) expressly provided that "[t]he appeal shall be by rehearing de novo of the application to the Associate Judge".

11 From 1 January 2013, that regime was replaced by a new Rule 77.06,[3] which applies to the present case. It is said that "[u]nder the amendments [such] appeals ... are to be by way of re-hearing rather than by re-hearing de novo". [4]

12 The new Rule 77.06 does not speak of either a "rehearing de novo" or a "rehearing". Rather, the rule simply employs the word "appeal". Without more, that choice of words might suggest the nature of the appeal under the new Rule 77.06 is an appeal in the strict sense. In Neely v Southern Cross Feeds Pty Ltd (No 2) [2013] VSC 238 at [5], Hargrave J opined that the new Rule 77.06 provides for "appeals in the strict sense, requiring error to be demonstrated". However, his Honour appeared to be contrasting the old form of appeal by way of rehearing de novo with the new form of appeal requiring proof of error, rather than determining whether the new form of appeal was by way of an appeal in the strict sense or by way of rehearing.

13 A good deal has been written on the importance of identifying the character of an appeal and the duties and powers of the court conducting it. In Turnbull v NSW Medical Board [1976] 2 NSWLR 281 at 297-298, Glass JA identified various forms of appeal and graded them in ascending order in accordance with the width of corrective power exercised by the appeal court. As for appeals in the strict sense and appeals by way of rehearing, his Honour said this:[5]**

(d) Appeals from a judge in the strict sense, e.g. appeals to the High Court. If the judge has fallen into error of law, or has made a finding of fact which is clearly wrong, the appellate court will substitute its own judgment. Only such judgment can be given as ought to have been given at the original hearing. Later changes in the law are disregarded and additions to the evidence are not allowed: Victorian Stevedoring and General Contracting Co. Pty Ltd and Meakes v Dignan.

(e) Appeals from a judge by way of rehearing, e.g. appeals under s 75A of the Supreme Court Act, 1970. Judicial opinion differs on whether a power to receive fresh evidence is implied: Ex parte Currie; Re Dempsey. Almost invariably, however, it is expressly conferred. If errors of law or wrong findings of fact have occurred below, the appellate court will try the case again on the evidence used in the court below, together with such additional evidence as it thinks fit to receive. Since it will decide the appeal in the light of the circumstances which then exist, changes in the law will be regarded: Ex parte Currie; Re Dempsey [and] Edwards v Noble.

**14 Rules 77.06.9(2) and (3) give broad powers to a Judge of the Trial Division when hearing an appeal, including power to draw inferences of fact, give any judgment and make any order which ought to have been given or made, make any further or other order as the case may require and receive further evidence on questions of fact, whether by oral examination in court, by affidavit, or by deposition taken before an examiner.

15 Given the power in Rule 77.06.9(3) to receive further evidence on questions of fact, it is likely that an appeal under Rule 77.06 is to be characterised as a form of appeal by way of rehearing rather than an appeal in the strict sense. As it happens, in the present case, no party has adduced any further evidence on the appeal against the Associate Judge's refusal of leave. Nor has there been any change to the law in the interim that might affect the result of this appeal. Thus, in the present case, the differences between an appeal in the strict sense and an appeal by way of rehearing are inapplicable but their main commonality - the need to establish error - remains.

16 In submissions before me, neither party sought to distinguish between an appeal by way of a rehearing and an appeal in the strict sense. Instead, the submissions proceeded on the assumption that the appeal was by way of rehearing rather than by way of rehearing de novo. Mr Connor (who appeared for the Council) submitted, and Mr Magee QC (who appeared with Mr Klotz and Ms Bailey for Ms Applebee) agreed, that, in the present case, "appellate interference may occur only where legal, factual or discretionary error is demonstrated".[6] In this regard, Mr Connor referred to the judgment of Gaudron, McHugh, Gummow and Hayne JJ in Allesch v Maunz (2000) 203 CLR 172 at 180[23], where their Honours said that:

the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error. ...

17 Whether Rule 77.06 provides for an appeal by way of rehearing or an appeal in the strict sense, I accept the joint submission of the parties that "appellate interference may occur only where legal, factual or discretionary error is demonstrated".

18 Given that the Associate Judge, in considering whether or not to grant leave to appeal, had to determine whether there was a real or significant argument to be put that the Tribunal erred in law,[7] my primary task is to determine whether the Associate Judge erred in determining that there was no real or significant argument to be put that the Tribunal erred in law.

19 New judges are advised by some (only partly in jest) that, during the first twelve months, or perhaps twelve years, they should resist the temptation to write definitive judgments in areas of law with which they are not familiar. Wise words. That temptation should be resisted all the more when the parties are agreed on the test to be applied, that test is consistent with the provisions creating the right of appeal and with the remarks of another Judge of this Court, and resolution of a nice point about the precise nature of the appeal cannot affect the result in the present case, but could well do so in other cases.

20 Accordingly, whilst I incline to the view that the nature of an appeal under Rule 77.06 is a form of appeal by way of a rehearing rather than an appeal in the strict sense, I decline to resolve that issue. However, I will proceed on the basis that the appeal cannot be allowed unless there is legal, factual or discretionary error in the order of the Associate Judge.[8]**

D. Grounds 3(a) & (f): An "overall impression" of compliance with the Standard

21 The amended draft notice of appeal before the Associate Judge contained five grounds of appeal (and four questions of law). However, only one of those grounds remains relevant to the present appeal. Ground (e) read as follows:

In basing her decision on an "overall impression" she gained from observing the dog, the Deputy President has misapplied the law. This is not the approach contemplated under the Domestic Animals Act, the Standard, and the principles enunciated by Kaye J in Dudas ....

Ground 7 of the original notice of appeal from the Associate Judge

22 Ground 7 of the original notice of appeal against the order of the Associate Judge is in effect a complaint that her Honour erred failing to uphold the complaint that there was a real or significant argument to be put under Ground (e). Ground 7 reads:

Her Honour erred in failing to conclude that there is a real and significant argument as to the question of law concerning whether the Tribunal member misapplied the law by forming an "overall impression" from her own observation of the dog at a view rather than by adopting the approach contemplated under the Domestic Animals Act, the Standard, and the principles enunciated by Kaye J in Dudas ...

Grounds 3(a) & (f) of the amended notice of appeal from the Associate Judge

23 During the hearing of the appeal, the argument on behalf of Ms Applebee developed somewhat. Counsel for Ms Applebee were directed to file and serve an amended notice of appeal against the order of the Associate Judge to reflect the grounds and issues of law raised in oral argument. After the hearing, counsel filed and served a marked up version of the amended notice of appeal indicating which grounds were pursued and those which were not pursued. The way in which the argument developed on Ground 7 of the original notice of appeal was ultimately meant to be reflected in Grounds 3(a) and (f) of the marked up version of the amended notice of appeal. Grounds 3(a) and (f) read as follows:

3. Her Honour erred in not concluding that there was a real and significant argument on the question whether the Deputy President had not properly applied the Standard in determining whether the dog, Kerser, was a restricted breed dog in that:

(a) The Deputy President erred in law in determining that the dog, Kerser, was a restricted breed dog under the Domestic Animals Act, by reference to an overall impression she gained from observing the dog and without regard to the Standard for Restricted Breed Dogs in Victoria and whether there was in totality a high or substantial degree of correspondence between the dog in question and the restricted breed dog described in the Standard.

(f) The Deputy President erred in finding that the Standard for Restricted Breed Dogs in Victoria had alternate ways of determining whether or not a dog was a restricted breed being:

by forming an overall impression that the dog answered the general description set out in the Standard without regard to any criteria in the Standard;
by considering each of the criteria set out in the Standard to determine whether or not the dog meets the description of a restricted breed dog.

Should the application to add Grounds 3(a) & (f) be granted?

**24 Mr Connor opposed the application to amend the grounds of appeal so as to add grounds that raised points not agitated before the Associate Judge. However, he made submissions on all grounds agitated before me as if the application to amend had been granted.

25 The application to add Grounds 3(a) and (f) should be granted. Those grounds, as argued, are little different from Ground 7 in the original notice, which in turn raises the same issue as Ground (e) raised before the Associate Judge. I do not consider that the Council was prejudiced in its ability to meet the points raised on behalf of Ms Applebee on this issue.

26 Rule 77.06(4)(b) provides that the powers of a Judge of the Court under Rule 77.06 may be exercised notwithstanding "that any ground for allowing the appeal ... is not specified in the notice of appeal". Thus, to the extent that the oral submissions may have gone beyond the scope of the original Ground 7 or, for that matter, the new Grounds 3(a) and (f), there is power to grant leave to appeal on such a broader ground.**

**27 Mr Connor submitted that, for the purposes of an appeal on a question of law pursuant to s 148(1) of the VCAT Act, it is important to identify with precision the question or questions of law said to arise. In this regard, he referred to Osland v Secretary, Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320 ("Osland (No 2)") at 333[21] and Hoe v Mannighham City Council [2011] VSC 37 at [3]- [4]. As I understood Mr Connor, his submission was that it followed that I should be astute to identify such questions of law in considering whether leave to appeal should be granted.

28 The amended draft notice of appeal before the Associate Judge identified four questions of law. However, none of those questions of law related to Ground (e).

29 During the hearing before me, counsel for Ms Applebee filed and served a further amended draft notice of appeal against the order of the Tribunal, which listed ten grounds of appeal and three questions of law. That document was replaced by a marked up further amended draft notice of appeal against the order of the Tribunal, which was filed and served after the hearing. The marked up document contained, in substance, the same ten grounds of appeal and the same three questions of law as the earlier version. The first and third questions of law ("Questions 1 and 3") in that document relate, to a greater or lesser degree, to proposed Grounds 1, 6, 7 and 8 in the same document, which in turn cover similar territory to the new Grounds 3(a) and (f) before me.

1. Does the Standard provide alternate ways of determining whether or not a dog was a restricted breed dog?

by forming an overall impression that the dog answers the general description set out in the Standard without regard to any criteria in the Standard; or
by considering each of the criteria set out in the Standard to determine whether or not the dog meets the description of a restricted breed dog.

3. Whether a person forming an opinion under s 98A of the Domestic Animals Act 1994 or that a dog is a restricted breed dog within the Standard is entitled to form such an opinion without first conducting an assessment to determine whether the material characteristics of the dog correspond to a high or substantial level with the criteria in the Standard?

**31 In Osland (No 2) at 333[21], French CJ, Gummow and Bell JJ remarked that the questions of law are not to be distilled from the grounds of appeal. Whilst Questions 1 and 3 are in very similar terms to the proposed grounds of appeal to which they relate, they do nevertheless identify questions of law. They are also very similar to the questions of law raised in argument. After considering Grounds 3(a) and (f), I shall set out simplified versions of those questions of law below.

32 Before turning to those issues, I shall also set out some of the relevant law in this matter:**

**33 Section 98A(1) of the DA Act provides that, "[i]f an authorised officer is of the opinion that a dog is a restricted breed dog, the authorised officer may make a declaration to the effect that the dog is a restricted breed dog".

34 Section 3(1) defines "restricted breed dog" to mean a dog which is any one of five breeds specified, the fifth of which is the "American Pit Pull Terrier (or Pit Bull Terrier)".

35 Section 3(3) provides that "[a] dog that falls within an approved standard for a breed of dog specified in a paragraph of the definition of restricted breed dog is taken to be a dog of that breed".

36 Section 3(4) provides that, for the purposes of s 3(3), an approved standard is a standard that has been approved by the Minister and published in the Government Gazette. On 1 September 2011, the Victorian Government published in the Government Gazette the Standard for Restricted Breed Dogs in Victoria, Part 1 of which is entitled "American Pit Bull Terrier (APBT, Pit Bull Terrier)" ("the Standard").[9]**

**37 The relevant part of the Standard commences by stating that "[a] dog that meets the description of a dog in this Part is an American Pit Bull Terrier" (except in certain circumstances that are inapplicable in the present case).

38 Next, under the heading "General Appearance and Characteristics", the following is stated:**

The American Pit Bull Terrier is a medium sized dog and is strongly built with well defined muscles. The breed is noted for its climbing ability and subsequent strength in its hindquarters.

The overall outline of the breed indicates it to be slightly longer in length (point of shoulder to buttocks) than height (withers to ground). Bitches may be slightly longer than males.

The distance from withers to the elbow and the elbow to the ground is generally equal.

39 The Standard then sets out the various characteristics of the American Pit Bull Terrier by reference to aspects of its anatomy. Photographs and diagrams are also used. Under the title "head", there are descriptions for the muzzle, head profile, skull, lips, teeth, nose, eyes and ears. A similar approach is taken under the subsequent headings relating to the neck, forequarters, body (forechest, back and loin), hindquarters, feet, tail, coat, colours, and height and weight.

Dudas v Monash City Council; Tarawa-Shearer v Darebin City Council

**40 Dudas v Monash City Council; Tarawa-Shearer v Darebin City Council [2012] VSC 578 ("Dudas") is the leading decision on the test to be applied in determining whether a dog falls within the Standard.

41 In Dudas, Kaye J rejected an argument that, in order for a dog to "fall within" a standard for the purposes of s 3(3) of the DA Act, the dog must conform with each of the individual characteristics specified in the Standard.[10]

42 Instead, Kaye J held that, in order for a dog to "meet the description" of an American Pit Bull Terrier, there must be "a substantial, or high, level of correspondence between the characteristics of the particular dog in question, and the description of those characteristics in the Standard".[11] His Honour added the following: [12]**

100 Obviously, in an individual case, the question whether there is the requisite high or substantial level of correspondence between the dog, and the Standard, will ultimately be one of appropriate judgment in the particular case. That judgment may depend on the expert opinion (if any) available to the authorised officer or, on review, to the Tribunal, as to whether any particular characteristics or criteria, specified in the Standard, are of particular importance in determining whether there is a high or substantial level of correspondence between the characteristics in the Standard and the particular dog in question, so that it can be properly concluded that the dog "meets the description" of the dog in the Standard. However, in the end, as a matter of proper construction, the relevant characteristics of the dog in question must be assessed, in quantitative and qualitative terms, to have a substantial or high level of correspondence with the criteria specified in the Standard, in order that it "meet the description" of a dog in that part of the Standard.

The Associate Judge's reasons for refusing leave on Ground (e)

43 In considering Grounds 3(a) and (f), regard must be had to the Associate Judge's reasons for refusing leave to appeal on Ground (e). It is convenient to set out those reasons in full:[13]

44 In the course of the hearing [counsel for Ms Applebee] formulated a further ground of appeal which was not in the draft notice of the appeal but was subsequently included in the draft amended notice of appeal under Ground (e). [Counsel] submits that the Tribunal member's decision was based on an "overall impression" she gained from observing the dog, and that this approach misapplies the law as it is not the approach contemplated under the Domestic Animals Act, the Standard and the principles enunciated by Kaye J in Dudas .... [Counsel] submits the Tribunal member formed an overall impression of the dog and then went on to assess the criteria in the Standard to determine whether her own overall impression was correct and in doing so, failed to apply the substantial compliance test.

45 [Counsel] submits that the correct application and understanding of the test and how it is to be applied to the Standard is of public importance given the consequences to the dog owner and the dog itself.

46 The Tribunal's use of the term "overall impression" is first found at paragraph 30 of the Reasons. It was in the context of considering the dog's general appearance and characteristics. Specifically, it was in relation to the measurements of the dog which had not been resolved by the parties. Even though the Tribunal member gave her subjective impression of the dog's general appearance and characteristics, this is not an error at law. As Kaye J noted in Dudas ..., some features of the dog in the Standard are non specific and require a subjective assessment.

47 At paragraph 33, when considering the dog's general appearance and characteristics, the Tribunal member considered the relevant criteria in the subsection of the Standard.

48 It is unfortunate that the Tribunal chose to use the word "impression" rather than "assessment", however, when one looks carefully at the Reasons, the Tribunal member provides an analysis of the evidence and its application to the Standard. The assessment made by the Tribunal member is qualitatively and quantitatively sufficient to enable a conclusion that there was substantial or high level of correspondence between the relevant features of the dog and the criteria specified.

49 As noted, the Tribunal member concluded that Kerser met the Standard in the areas of teeth, nose, ears, fore chest, colour, eyes, tail, body, head, skull, neck and hindquarters. This is in contrast to other parts of the dog's anatomy, the lips, loin, feet, forequarters and back, which were found not to meet the Standard.

50 [Counsel] has identified questions of law in the proposed amended notice of appeal. While Ms Applebee is not required on a leave application to demonstrate an error below (which is for the appeal itself), [she] is required to show that there is a real or significant argument to be put that error exists. This requires more than just a cursory examination of the questions raised. In order to determine whether the question of law is attended with sufficient doubt, I [am] required to analyse the issues raised by the questions of law. I accept that the questions of law dealing with the analysis of the Tribunal's application of the test in Dudas ... are of general importance. However, ultimately what must govern the leave application is the justice of the case to all parties, not just [Ms Applebee].

51 Is there a 'real or significant argument', or a prima facie case, that the Tribunal failed to apply the test set out by Kaye J in Dudas ...? In my view there is not.

52 I am not satisfied that [Ms Applebee] has demonstrated that there is a real or significant argument to be put that error exists in relation to the Questions of Law (3) and (4) and the Grounds of Appeal (c ), (d) and (e) in the proposed amended notice of appeal.

53 For the reasons set out, leave to appeal is not granted.

**44 For reasons that follow, I am of the view that the Associate Judge erred in failing to conclude that there is a real or significant argument to be put that the Deputy President erred in basing her decision on an "overall impression" she gained from observing the dog rather than on an opinion that the dog is a restricted breed dog based on an assessment of whether there was a substantial, or high, level of correspondence between the characteristics of the dog and the description of those characteristics in the Standard.

45 First, nowhere in Dudas is it said that it is sufficient to form an "overall impression" that the dog complies with the Standard. In exercising its review jurisdiction pursuant to s 51(1)(a) of the VCAT Act, the Tribunal has all the functions of the decision-maker. Accordingly, the Tribunal must be "of the opinion" (within the meaning of s 98A(1) of the DA Act) that a dog is a restricted breed dog. There is a real or significant argument that an "overall impression" of compliance with the Standard is something short of an opinion based on an assessment of the criteria in the Standard. It is arguably no answer that Kaye J in Dudas "noted [that] some features of the dog in the Standard are non-specific and require a subjective assessment".[14] The passage in Dudas to which the Associate Judge referred[15] for that proposition concerned the use of subjective terms like "moderate" length or "muscular" forelegs rather than a consideration of whether it is permissible or sufficient to rely on an "overall impression" of compliance with the Standard.

46 Secondly, there is a real or significant argument that the Deputy President erred by forming an "overall impression" based on her own observation of the dog and then going on to consider the criteria in the Standard to test whether her overall impression was correct. To make good that submission, Mr Magee relied in particular on the following passage in the Deputy President's reasons:[16]**

34 The Standard provides a mechanism through which it is possible to also fragment a dog to ensure all aspects of the animal have been considered when reaching a conclusion as to whether or not the dog meets the description of a restricted breed dog. I turn now to a consideration of those fragments in order to test my general impression of Kerser.

**47 There appears to be nothing in the DA Act, the Standard or Dudas which authorises such an approach. It is arguable that that approach courts the risk of casting an onus on the dog owner to displace an overall impression that the dog complies with the Standard.

48 Thirdly, there is a real or significant argument that the Deputy President's "overall impression" of compliance with the Standard was important to her decision. The Associate Judge reasoned that, while the use of the term "overall impression" was "an unfortunate choice of words", that term was first found in the Tribunal's reasons when considering the dog's general appearance and characteristics, and the Deputy President went on to analyse the evidence and its application to the Standard. That "assessment", her Honour said, was "qualitatively and quantitatively sufficient to enable a conclusion that there was substantial or high level of correspondence between the relevant features of the dog and the criteria specified".[17] Whether or not the Deputy President's findings as to the individual criteria may have sustained a conclusion of the requisite degree of compliance with the Standard, there are several reasons why there is a real or significant argument that reliance on an overall impression of compliance infected the Deputy President's decision:

a) First, the Deputy President used the terms "impression", "general impression" or "overall impression" on several occasions in her reasons.[18] The word "assessment" is used once, and only when quoting from the Standard.[19]

b) Secondly, the Deputy President said that, because of the difficulty involved in measuring the dog at the view, she was "left to rely on [her] overall impression of the animal rather than being assisted with precise measurements". [20]

c) Thirdly, the Deputy President used the term "overall impression" not just when considering the dog's general appearance and characteristics but also when stating her conclusions in the penultimate paragraph of her reasons. [21]

d) Fourthly, the Deputy President was not satisfied that several of the criteria in the Standard were met. Thus, if the errors alleged are made out on appeal, there would appear to be a reasonable prospect of the appeal succeeding.**

**49 In short form, the questions of law raised by Grounds 3(a) and (f) include the following:

a) Is an "overall impression" that a dog complies with the Standard a sufficient basis for an opinion, under s 98A of the DA Act, that the dog is a restricted breed dog?

b) Is it permissible to form an "overall impression" that a dog complies with the Standard and then to "test" that impression by reference to the criteria in the Standard?**

50 Accordingly, I conclude that Grounds 3(a) and (f) of the marked up version of the amended notice of appeal against the order of the Associate Judge are made out.

E. Grounds 3(b) & 4: Failure to take into account measurements of experts

Grounds 3(b) & 4 of the amended notice of appeal from the Associate Judge

51 Grounds 3(b) and 4 of the marked up version of the amended notice of appeal against the order of the Associate Judge read as follows:

(ii) that the "philosophy" enabled the determination of whether a dog was a restricted breed dog by forming an overall impression without the assistance of measurement.

4. Her Honour erred in not finding that the Deputy President failed, as required by s 117 of the [VCAT] Act, to give intelligible reasons that disclose a path of reasoning leading to her decision because she did not explain why she did not use the evidence before her of measurements of the height and weight of the dog and how she concluded that the distance between withers to elbow and elbow to ground were equal.

Should the application to add Grounds 3(b) & 4 be granted?

**52 The complaints embodied in these grounds of appeal were not in grounds of appeal taken before the Associate Judge.[22] Nor did these grounds appear in the original notice of appeal against the order of the Associate Judge. On the other hand, the reference in Ground 3(b) to the Deputy President "forming an overall impression" overlaps to some extent with the complaints in Grounds 3(a) and (f).

53 Despite that overlap, I refuse the application to add Grounds 3(b) and 4 in their current form. I would not grant the application to add that part of Ground 4 which complains that the Deputy President failed to give adequate reasons, as it is not a question whether the reasons given were inadequate. Nor would I grant the application to add that part of Ground 3(b) which complains about the reference to "the philosophy of the Standard", as that did not appear to be the nub of Mr Magee's argument before me. As I see it, the reference to "the philosophy of the Standard" goes to the argument under Grounds 3(a) and (f) that the Deputy President wrongly applied an approach which relied on an "overall impression" of compliance.

54 However, for reasons given below, there are aspects of Grounds 3(b) and 4 that were developed at the hearing that do amount to a separate ground for granting leave to appeal against the order of the Tribunal.[23] In particular, I am of the view that there is a real or significant argument to the following effect:**

The Deputy President erred: (a) by failing to take into account a relevant consideration, namely the evidence of the two experts suggesting that the distances from withers to the elbow and the elbow to the ground were not equal; and (b) by substituting her own overall impression that those distances were "generally equal".

55 In order to explain that conclusion, I shall set out some of the evidence before the Tribunal and parts of the Deputy President's reasons.

**56 Rebecca Graley, an Animal Management Officer with the Council, was called as an expert by the Council. In company with other officers, Ms Graley assessed Kerser on 5 December 2012. Kerser measured 22 centimetres ("cm") from withers to elbow and 30 cm from elbow to ground. In her notes made on a document entitled "Restricted Breed Dog Identification and Declaration Process", Ms Graley indicated that the "withers to elbow/elbow to ground" distances were not "generally equal" and noted the "approx[imately] 8 cm difference", but added that the "[d]og is young [and] growing".[24]

57 Lynne Harwood, an International All-breeds Dog Judge, was called as an expert by Ms Applebee. Ms Harwood assessed Kerser on 24 January 2013. Kerser measured 24 cm from withers to elbow and 30 cm from elbow to ground. Ms Harwood commented in her report that Kerser did not comply with the relevant part of the Standard as "[h]e is longer in leg by 6 cm". [25]

58 Ms Graley measured Kerser's height as 52 cm whereas Ms Harwood measured his height as 54 cm.[26] The Standard specified a height range of 43 to 53 cm.**

59 After noting the differences in measurements, and observing that a height of 54 cm "would not comply with the Standard",[27] the Deputy President said the following:[28]

28. Ms Graley and her team used a measuring tape and gave evidence that there was some difficulty in measuring Kerser because he was not being co-operative. Ms Harwood used a metal measuring rod and tape, which she stated was the only accurate method of obtaining measurements. She stated that she had no difficulty measuring Kerser. The applicant asked me to prefer the evidence of Ms Harwood over Ms Graley. The applicant pointed to the difficulties experienced by the respondent when taking measurements from Kerser as evidencing the superior expertise of Ms Harwood.

29. The differences between the parties relating to the measurements of Kerser were not resolved when we attended to view him. Kerser proved uncooperative in allowing measurements to be taken. Neither party was able to take any accurate measurements despite ongoing efforts to do so. I was not in these circumstances able to draw the inference against Ms Graley that the applicant had implored me to draw. I was also unable to conclude that the measuring rod preferred by Ms Harwood would have given a more accurate measurement because Ms Harwood did not bring any measuring equipment with her to the view.

30. In these circumstances I was left to rely on my overall impression of the animal rather than being assisted with precise measurements. This is in keeping with the philosophy of the Standard in any event.

" the disparity between height and weight is considerable and importance should be placed on the overall consideration of the assessment of the dog rather than adhering absolutely to the guidelines on height".

32. My impression of the dog was one of broad compliance with the Standard.

33. I observed a medium sized dog who appeared to me to be strongly built with well defined muscles with some strength in the hindquarters. He appeared to me to be slightly longer in length (point of shoulder to buttocks) than height (withers to ground) with the distance from withers to the elbow and elbow to the ground generally equal. (Emphasis added.)

Consideration of proposed ground stemming from the new Grounds 3(b) & 4

**60 The last italicised part of the extract from the Tribunal's reasons reflects the last criterion under the heading "General Appearance and Characteristics" in the Standard.

61 The only meaningful "differences between the parties relating to measurements" were as to the height, as Ms Graley's measurement meant that the dog complied with the Standard in this regard whereas Ms Harwood's measurement meant that the dog did not comply. The other point of difference between the parties relating to measurement (namely, the distance from withers to elbow - 22 cm compared with 24 cm) was not important and did not require resolution. Rather, what appeared to be important was the unchallenged evidence of the two experts that, on either view, the distance from withers to elbow (22 or 24 cm) was less than - and arguably significantly less than - the distance from elbow to ground (which the experts agreed was 30 cm), thereby calling into question the Deputy President's conclusion, apparently based on her own observation of the dog at the view, that "the distance[s] from withers to the elbow and elbow to the ground [are] generally equal".

62 It is apparent from Ms Graley's notes and Ms Harwood's opinion that they took the term "generally equal" to mean something like "nearly or approximately equal" rather than "usually equal". It seems that the Deputy President thought the same. So much is suggested by her use of the term in the passage extracted above and in an earlier part of her reasons when she apparently accepted Ms Harwood's evidence that a length of 55 cm and height of 54 cm "would make the dog generally equal which makes it square". [29]

63 On the other hand, the better view might be that "generally equal" means something like "usually equal" - that is to say, the term admits of occasions on which the measurements need not be equal. If that is so, at least two material questions still remain. First, is a degree of inequality nevertheless to be regarded as a feature inconsistent with the Standard and, if so, what degree? Secondly, is the Deputy President's failure to have regard to the evidence called by the parties on this issue, and the substitution of her own impression, a material error in any event? These are questions that should be answered after full argument on appeal.**

**64 The questions of law raised by this proposed ground include the following:

a) Does the term "generally equal" in the Standard mean something like "nearly or approximately equal" rather than "usually equal"? If the former, is a ratio of withers to elbow/elbow to ground of 22:30 or 24:30 "generally equal"? If the term means the latter, is a degree of inequality nevertheless to be regarded as a feature inconsistent with the Standard and, if so, what degree?

b) Was the Deputy President entitled to ignore the evidence of measurements and substitute her own impression that "the distance[s] from withers to the elbow and elbow to the ground [are] generally equal"?**

Conclusion on the new Grounds 3(b) and 4 and the proposed ground

**65 Accordingly, I refuse the application to add Grounds 3(b) and 4 of the marked up version of the amended notice of appeal against the order of the Associate Judge.

66 However, leave is granted to add the proposed ground of appeal indicated above; and I grant leave to appeal against the order of the Tribunal on that ground.**

F. Grounds 3(c), (d) & (e): Immaturity of dog; No evaluation of bitch and sire

Grounds 3(c), (d) & (e) of the amended notice of appeal from the Associate Judge

67 Grounds 3(c), (d) & (e) of the marked up version of the amended notice of appeal against the order of the Associate Judge are as follows:

(c) The Deputy President erred in determining that the dog was a restricted breed dog without having regard to the fact, required by the Standard, that the dog had not yet achieved body maturity and strength.

(d) The Deputy President erred in determining that the dog was a restricted breed dog without deciding if it was possible for the bitch and the sire to be evaluated.

(e) The Deputy President erred in determining that the dog was a restricted breed dog without evaluating the bitch and sire of the dog when considering the possibility of a dog that had not yet achieved body maturity and strength meeting the Standard.

68 Grounds 3(c), (d) and (e) are reflected in Grounds 3, 4 and 9 of the marked up further amended draft notice of appeal against the order of the Tribunal. The related question of law in that document is Question 2:

2. In determining whether a dog that has not yet achieved body maturity and strength is a restricted breed dog, is the Tribunal required to inquire whether the bitch and sire are available and, if so, evaluate the bitch and sire?

69 On page 2 of the Standard, the following is said:

Note: Whilst this standard is based on a fully mature animal it would be expected that an individual puppy would reach the prescribed height and overall balance desired by the age of approximately 9 months. However body maturity and strength would not be achieved until much later - maybe two or three years plus. If possible the bitch and sire should be evaluated when considering the possibility of a puppy meeting this standard.

**70 In her reasons, the Deputy President noted that Ms Graley "emphasised that a dog's physical attributes change as it ages and although the dog was only 10 months of age that it was already showing the attributes of the breed".[30] Kerser was born on 1 February 2012. Thus, he was aged about ten months when examined by the Council officers (on 5 December 2012); nearly 12 months when examined by Ms Harwood (on 24 January 2013); and between 13 and 14 months when seen by the Deputy President at the view (on 18 March 2013).

71 In her notes of 5 December 2012, Ms Graley described the dog as one to one-and-a-half years of age.[31] As indicated above, after noting the difference of "approx[imately] 8 cm" between the withers to elbow and elbow to ground, Ms Graley added that the "[d]og is young [and] growing".[32]**

72 The Deputy President said she "observed a medium sized dog who appeared ... to be strongly built with well defined muscles with some strength in the hindquarters".[33] Later, she said that Kerser's "hindquarters were strong and muscular" [34] and that, "[e]ven in the areas where he does not meet the Standard to a substantial degree, he meets the Standard to some degree and importantly in the areas of musculature and strength".[35]

Should the application to add Grounds 3(c), (d) & (e) be granted?

**73 The complaints embodied in these grounds of appeal were not in grounds taken before the Associate Judge. Nor did these grounds appear in the original notice of appeal against the order of the Associate Judge, although there are references to muscularity and strength in Grounds 4(b) and 8 of the original notice.

74 I refuse the application to add these grounds. For reasons that follow, I am of the view that they do not raise any real or significant argument to be put that the Tribunal erred in the ways alleged.

75 First, by noting that Ms Graley "emphasised that a dog's physical attributes change as it ages and although the dog was only 10 months of age that it was already showing the attributes of the breed",[36] the Deputy President, contrary to Ground 3(c), does appear to have had regard to the fact that the dog may not have achieved body maturity and strength.

76 Secondly, despite the dog being only 13 or 14 months old when observed by her, the Deputy President was able to find that Kerser "was strongly built with well defined muscles with some strength in the hindquarters".

77 Thirdly, whilst the note on page 2 of the Standard says that "[i]f possible the bitch and sire should be evaluated when considering the possibility of a puppy meeting this standard", there is nothing before me that indicates Kerser was properly characterised as a "puppy" at the relevant time. True it is that Ms Graley described the dog as "young [and] growing", but he is not described as a puppy. Further, the Standard seems to imply that a puppy is approximately nine months of age or younger, not one of 10, 12 or 13 to 14 months. Similarly, there is nothing before me to indicate whether or not it was possible in this case to evaluate the bitch and sire. It cannot be the case that a failure to inquire as to whether the bitch and sire are available to be evaluated is an error if, as it turns out, they were not, and are still not, available. Accordingly, there is no factual basis on which to consider the questions of law sought to be raised.

78 If it becomes apparent at the appeal against the order of the Tribunal that there is material which might enliven these questions, it may become necessary to revisit whether a ground or grounds might be added.**

Conclusion on the new Grounds 3(c), (d) and (e)

79 Accordingly, I refuse the application to add Grounds 3(c), (d) or (e).

G. Ground 5: "Justice of the case to all parties, not just Ms Applebee"

Ground 5 of the amended notice of appeal from the Associate Judge

80 Ground 9 of the original notice of appeal against the order of the Associate Judge was reflected in Ground 5 of the marked up version of the notice. Ground 5 reads:

5. Her Honour, in stating that "ultimately what must govern the leave application is the justice of the case to all the parties, not just [Ms Applebee]," failed to:

(a) provide any reasons or any adequate reasons that show a path of reasoning that led to her Honour's apparent conclusion that the justice of the case did not favour [Ms Applebee]; and

(b) explain in any way what her Honour meant by the expression "justice of the case to all the parties" and how that was material to her judgment despite identifying this matter as being of ultimate importance to her Honour's decision.

81 Towards the end of her reasons, the Associate Judge accepted that the questions of law raised dealing with the analysis of the Tribunal's application of the test in Dudas are of general importance and then said that "ultimately what must govern the leave application is the justice of the case to all parties, not just [Ms Applebee]".[37]

82 The impugned remarks are almost identical to those of Phillips JA in Secretary, Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331 at 337[16], where his Honour said that "[u]ltimately what must govern is the justice of the case as it appears to the court from which leave to appeal is sought, and that means justice to all parties, not just the applicant". The Associate Judge was doing no more than making the same point in fewer words. There is no error in that. By definition, a court strives to deliver justice to all parties.

H. Grounds 1 & 2: Complaints not particularised

Ground 1 & 2 of the amended notice of appeal from the Associate Judge

84 Grounds 1 and 3 of the original notice of appeal from the order of the Associate Judge were reflected in substance in Grounds 1 and 2 of the marked up version of the amended notice of appeal. Both are generalised grounds complaining that the Associate Judge erred in finding that there was no real or significant argument to be put that the Deputy President had erred. They add nothing to the particularised grounds that were pursued.

I. Should the appeal be determined instanter?

**86 During the hearing of the appeal, I raised the question whether, if I were disposed to allow the appeal against the Associate Judge's order, set that order aside and grant leave to appeal against the order of the Tribunal, it would be possible and desirable to treat the argument and material before me as if it were argument and material on the ultimate appeal and to determine that appeal instanter. Mr Magee submitted that I should adopt that approach. Mr Connor opposed that course. Counsel for each party filed helpful written submissions on the issue.

87 Mr Connor submitted that, under Rule 4.14(1) of Chapter II of the Rules, the Court has the power to combine the two hearings in this way. Rule 4.14(1) provides:**

Where it is satisfied that the justice of the case requires, the Court may order that, subject to any order otherwise, an application for leave to appeal be heard and determined by the Court, which, if leave is granted, is to hear and determine the appeal and may give directions accordingly.

**88 Initially, I was quite attracted to the idea of combining the two hearings, for at least three reasons. First, it seemed that the parties' submissions before me were adequate to do justice to their respective cases and that no additional material need be put before me to determine the matter. Secondly, the case had already run into a second day, and it seemed to me to be a better use of scarce judicial and other resources to determine the matter finally rather than have a separate appeal hearing. Thirdly, I was concerned about delay in having a separate hearing, particularly when Kerser is away from Ms Applebee and has been so since 4 December 2012.

89 Having reflected on the matter, however, I am now persuaded by Mr Connor that the just and preferable course is to have a separate appeal hearing. There are several reasons. First, at least one of the grounds on which I propose to grant leave to appeal (the proposed ground arising out of Grounds 3(b) and 4) was raised for the first time during the running of the hearing, so that the Council did not have a great deal of time to respond to it. It is an important point. The Council will have additional time to address that matter more carefully on appeal. Secondly, Mr Connor indicated that the Council would seek to put transcript of the hearing at the Tribunal before the Court on an appeal. Such transcript may be material to the determination of the appeal. Thirdly, having considered the substance of the proposed grounds and questions of law more carefully, I have come to the view that I would be assisted by further submissions from the parties. Fourthly, whilst a separate appeal hearing will entail additional delay, that delay can be minimised by expediting the hearing of the matter, which I propose to do. Finally, whilst additional judicial and other resources will be used in taking this course, I consider that is necessary in order to do justice to the parties.**

**90 Accordingly, and subject to hearing from the parties, I propose making the following orders:

a) grant leave to file and serve the marked up version of the amended notice of appeal against the order of the Associate Judge;

b) allow the appeal against the order of the Associate Judge;

d) grant leave to appeal against the order of the Tribunal; and

e) direct that the appellant file and serve a notice of appeal against the order of the Tribunal, containing grounds and questions of law in accordance with these reasons, by 13 September 2013.

91 I shall hear the parties on directions as to the hearing of the appeal and on the question of costs.**

[1] Applebee v Monash CC (Review and Regulation) [2013] VCAT 394.

[2] Appleby v Monash City Council [2013] VSC 282. The applicant was incorrectly described in the proceedings before the Associate Judge as "Jane Appleby". The order refusing leave to appeal was not authenticated until 14 June 2013, at which time an order was also made that Ms Applebee pay the Council's costs of the application.

[3] The amendments were effected by Rule 4 of the Supreme Court (Associate Judges Appeals Amendment) Rules 2012 (Vic).

[4] See Practice Note No 4 of 2012: Appeals from Associate Judges to a Judge of the Trial Division at [2].

[5] Turnbull v NSW Medical Board [1976] 2 NSWLR 281 at 297 (citations omitted).

[6] Respondent's Outline of Submissions (dated 5 August 2013) at [20]-[22], which, on this issue, were adopted by counsel for the appellant.

[7] See, e.g., Secretary, Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331 at 335[8]-337[17].

[8] The parties did not argue that the appeal from the Associate Judge is subject to a grant of leave. Nor does Rule 77.06 specify any such requirement. On the other hand, Rules 77.06.2(1)(b), (2)(b), (3), (4) and (5) all contemplate that leave to appeal may be necessary in some cases. An order refusing leave to appeal might be thought to be interlocutory in nature or at least an order in an interlocutory application. However, the refusal of leave in the present case would determine Ms Applebee's rights finally. Further, in Rule 77.06, there is no equivalent of the old Rule 77.06(2.1), nor of ss 17A(1), (2), (3A) or (4)(b) of the Supreme Court Act 1986 (Vic), which respectively specified or specify a requirement of leave in certain circumstances. Absent similar express words in Rule 77.06 or necessary implication, I would be disinclined to hold that leave to appeal is required. However, again, it is unnecessary to determine this issue in the present case because I am of the view that, even if leave to appeal against the Associate Judge's order is required, leave should be granted and the appeal against that order should be allowed.

[9] Parts 2 to 5 of the Standard relate to other breeds of dog.

[10] Dudas v Monash City Council; Tarawa-Shearer v Darebin City Council [2012] VSC 578 at [91].

[11] Dudas v Monash City Council; Tarawa-Shearer v Darebin City Council [2012] VSC 578 at [99].

[12] Dudas v Monash City Council; Tarawa-Shearer v Darebin City Council [2012] VSC 578 at [100].

[13] Appleby v Monash City Council [2013] VSC 282 at [44]- [53] (footnotes omitted).

[14] Appleby v Monash City Council [2013] VSC 282 at [46].

[15] See Dudas v Monash City Council; Tarawa-Shearer v Darebin City Council [2012] VSC 578 at [89].

[16] Applebee v Monash CC (Review and Regulation) [2013] VCAT 394 at [34].

[17] Appleby v Monash City Council [2013] VSC 282 at [48].

[18] Applebee v Monash CC (Review and Regulation) [2013] VCAT 394 at [30], [32], [34], [68], [99], [100], [101] & [105].

[19] Applebee v Monash CC (Review and Regulation) [2013] VCAT 394 at [31].

[20] Applebee v Monash CC (Review and Regulation) [2013] VCAT 394 at [30].

[21] Applebee v Monash CC (Review and Regulation) [2013] VCAT 394 at [105].

[22] On the application before the Associate Judge, counsel for Ms Applebee, when making submissions in support of Ground (e), did refer in passing to the Deputy President's remark about the "philosophy of the Standard", but these remarks did not form part of any ground of appeal before her Honour. (See pp 19-20 of the transcript of the hearing before the Associate Judge, which are at pp 174-175 of the Appeal Book.)

[23] Mr Connor accepted that, if the appeal against the order of the Associate Judge were to be allowed on a ground taken before her Honour and leave to appeal against the order of the Tribunal were to be granted in consequence, then a ground not taken before the Associate Judge could be added.

[24] See Ms Graley's statement and her notes in the Appeal Book at pp 65 & 68.

[25] See Ms Harwood's report in the Appeal Book at p 60.

[27] Applebee v Monash CC (Review and Regulation) [2013] VCAT 394 at [22]- [27].

[28] Applebee v Monash CC (Review and Regulation) [2013] VCAT 394 at [28]- [33].

[29] Applebee v Monash CC (Review and Regulation) [2013] VCAT 394 at [24]- [25].

[30] Applebee v Monash CC (Review and Regulation) [2013] VCAT 394 at [19].

[32] See Ms Graley's statement and her notes in the Appeal Book at pp 65 & 68.

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