Applebee v Monash CC

Applebee v Monash CC - [2014] VCAT 257 - VCAT 2014 case summary — Zoe

[37]

Both the Council and the Minister submitted that Ms Applebee had no accrued right to have the application for review heard and determined under the Old Standard. Both also submitted that there was no utility in the Tribunal assessing Kerser under the Old Standard.
Mr Connor for the Council said that s 28(2) of the Interpretation Act governed Ms Applebee's rights referring to authority concerning that provision.[9] It was critical to consider whether a right had been acquired under the Old Standard. He submitted that s 28(2)(e) and s 28(2)(g) were not applicable as no right arose under the Old Standard. The Old Standard established criteria by which a dog was to be assessed and considered. It did not create rights.
He submitted that it was the Act that limited Ms Applebee's common law right of ownership of Kerser - not the Old Standard. The Old Standard was an approved standard under s 3(3) of the Act, and did no more than outline the basis on which a dog was to be assessed or evaluated to see whether a dog was a restricted breed dog. Insofar as an owner's common law right might be affected, the effect resulted from the operation of the provisions of the Act - not the standard applied under the Act. An owner's rights in relation to a dog were unaffected by a change in the method of evaluation set out in the New Standard.
Mr Connor said that the rights enjoyed by an applicant under the Act are limited. The institution of an application for review gives an applicant no more than a hope or expectation that the declaration will be set aside. By instituting review proceedings, Ms Applebee accrued a right to have the decision reviewed, but not a right to have the application for review heard and determined in accordance with the substantive law or facts which applied when the application for review was commenced unless s 28(2) of the Interpretation Act was engaged.
If the New Standard is applied, Mr Connor said that Ms Applebee will not lose her right to have the Tribunal reconsider and determine whether Kerser is a restricted breed dog. The application of the New Standard is consistent with the Tribunal's function as an administrative decision maker. The Tribunal stands in the shoes of the decision maker, and has the functions conferred on the authorised officer by s 98A of the Act.[10] In exercising its review jurisdiction, the Tribunal acts on the basis of the facts and the law at the time the review decision is made.[11] The Tribunal does not review the propriety or legality of the decision made by the initial decision maker.[12]
Similar submissions were made on behalf of the Minister. The usual rule is that unless the statutory context otherwise requires, in its review jurisdiction, the Tribunal applies the law as it stands at the time of the Tribunal's decision, and not the law as it stands at the time of the original decision.[13] The usual rule is subject to the operation of s 28(2) of the Interpretation Act. Section 28(2) was not engaged in this case, as no right or privilege accrued to Ms Applebee under the Old Standard which was affected by the Old Standard's revocation. Ms Applebee's right under the Act could be described as a right to have her dog assessed under the approved standard operative under s 3(3) and 3(4) of the Act from time to time. In any event, Counsel for the Minister submitted that the terms of the Act, and the Old Standard evinced a 'contrary intention' which excluded the operation of s 28(2). The Tribunal's decisions of Persson v Knox City Council,[14] and Laffan v Moira Shire Council,[15] held that in cases concerning the review jurisdiction conferred on the Tribunal with respect to a declaration by an authorised officer under s 98A of the Act, the Tribunal should ordinarily apply the Act and any relevant subordinate instrument as they stand at the time of making its decision.

[38]

Ms Applebee is the owner of Kerser. Under the common law, her ownership of Kerser would give her the right to keep her dog free from impoundment, interference or the risk of being put down. However, in the case of a restricted breed dog, an owner's common law rights have been removed or modified by the Act. In terms of the evaluation of whether or not a dog is a restricted breed dog, s 3(3) and 3(4) provide for the dog to be assessed under the standard approved by the Minister in force at the time of evaluation whether by an authorised officer under s 98A(1) or the Tribunal under s 98(2AA).
In my opinion, section 28(2)(e) and (g) of the Interpretation Act do not require the Tribunal to conduct a review under s 98(2AA) on the facts or under the standard operative at the time when the authorised officer made the declaration under s 98A(1). This is because the Old Standard confers no right or privilege on a dog owner.
Like the New Standard, the Old Standard simply sets out criteria. It is an evaluation or assessment instrument. It does not, and does not purport to confer rights or privileges. It does not affect Ms Applebee's rights as owner of a dog. It is the Act itself that modifies her common law right of ownership. For s 28(2)(e) and (g) of the Interpretation Act to be engaged, it is necessary that the right or privilege be accrued or incurred under the subordinate instrument. Here the right of ownership that Ms Applebee seeks to protect was conferred by the common law - not by the Old Standard. Section 28(2)(e) and (g) do not affect the ordinary operation of the New Standard on and from its approval and publication in the Government Gazette.
Section 98A(3) does not take effect so as to deny the New Standard efficacy if the declaration made under s 98A(1) was made under the Old Standard. Section 98A(3) gives a declaration made under s 98A(1) by an authorised officer effect throughout Victoria. As individual Councils may and do appoint authorised officers,[16] in the absence of a provision such as s 98A(3)(b), the legal effect of a decision of an authorised officer might be confined to a single municipal district. Clearly, this would be unsatisfactory as different consequences might result if a dog was removed from one municipality to another.
Section 98A(3)(b) of the Act has the effect that an authorised officer cannot revoke, amend or alter a declaration previously made. It also has the effect that an authorised officer cannot revoke, amend or alter a declaration made by another authorised officer whether from the same or a different municipality. In this way, decisions of authorised officers are final and binding throughout the State, subject to the Tribunal's powers of review under s 98(2AA).
In my view, s 98A(3) is not germane to the issue under consideration viz whether the Tribunal exercising its review jurisdiction under s 98(2AA) should apply the New Standard or the Old Standard.

[53]

Section 3(1) of the Act defines the expression 'restricted breed dog' to include five different breeds including the 'American Pit Bull Terrier (or Pit Bull Terrier)'. Section 3(3) and 3(4) provides for dogs to be assessed under standards approved by the Minister and published in the Victorian Government Gazette.
The Act also provides for a registration system for dogs and cats. It is an offence for an owner not to apply to register a dog with the Council of the municipal district in which the dog is kept if the animal is over 3 months old.[21] Section 10(2) of the Act requires the owner of a dog to apply for renewal of the registration of the dog to the Council before the expiration of the current registration. Section 10(3) requires an applicant to make a declaration as to whether or not the dog in respect of which the application is made is a restricted breed dog.
Section 11 of the Act provides for an annual system of registration with the registration or renewal of registration of a dog or cat remaining in force until 10 April of each year.
Sections 14 and 15 of the Act deal with the procedures and fees payable on the registration or renewal of registration of a dog or cat. Sections 16 and 17 prohibit a Council from registering or renewing the registration of a dog that is a restricted breed dog (subject to an exception not here relevant).
The effect of the statutory registration scheme is that the Council must annually renew the registration of dogs, but cannot register a restricted breed dog (again subject to an exception not here relevant).
The result is that under the Act the question whether a dog is a restricted breed dog is required to be considered by the Council on an annual basis, and may in cases of doubt involve the reassessment of the dog under the approved standard applicable at the time of registration. The need for the exercise of the council's powers to be considered afresh at the time of each registration on the basis of the then approved standard suggests that it is unlikely that the legislature intended an owner to have an accrued right to have a dog assessed under a previous standard. In the present case, the annual renewal date of 10 April 2014 will pass before the present proceeding is heard or concluded. It would be inappropriate to apply the facts or standard applicable in 2012 to a dog that was then only 10 months old and is now significantly older and much more mature.[22]

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Judgment (84 paragraphs)

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Legislation Cited (5)

Cases Cited (8)

Applebee v Monash CC (Review and Regulation) [2014] VCAT 257 (26 March 2014)