Victorian Civil and Administrative Tribunal|2012-08-23

This matter comes before the Tribunal as a review of a decision by the Brimbank City Council (the respondent) that the dog Mylo owned by Ms Gray (the applicant) at a particular time is a restricted breed of dog.
However today, I am first called upon to deal with an application by the respondent in relation to the matter. It is useful to set out the chronology of events which give rise to this matter.
On 7 May 2012, a dog was found wandering at large and was seized by Mr Christie, an authorised officer of the respondent. The dog was found to be unregistered and was conveyed to the Lost Dogs Home.
On 10 May 2012, information was received by the respondent from the Lost Dogs Home indicating that the applicant intended to reclaim Mylo.
On 11 May 2012, an interview took place between Mr Christie and Ms Gray and, apart from the respective versions of the discussions, it is clear that a document headed "Animal Surrender Authorisation" was executed by the applicant. By this document, the applicant stated that she was the owner or owner agent of the animal and that no other person has any proprietary interest in the animal and that she relinquished all claims to the animal. There were several other items but those are the key ones to which I refer.
On 15 May 2012, a letter was received by the respondent from the applicant seeking to revoke the surrender of Mylo.
On 17 May 2012, the respondent declared Mylo a restricted breed and this declaration was served on the applicant. Counsel for the respondent submitted that as the council was by then the owner of Mylo, that declaration was not required. However, it was made.
On 12 June 2012, a review application was made to this Tribunal by the applicant.
Both parties have today been represented by counsel and submissions have been received.

The first provision to which reference is made is s 33A of the Domestic Animals Act 1994 (the Act). Section 33A states as follows :

33A Council animal shelters and pounds must accept surrendered animals

(1) A Council of a municipal district must accept any dog or cat kept in that municipal district which is given to the Council by the owner of the animal because the owner is no longer willing or able to care for that animal.

(2) On the Council taking possession of a dog or cat under subsection (1) -

(a) ownership in the dog or cat passes from the owner to the Council; and

(b) the Council must deal with the dog or cat in accordance with this Act, the regulations and any relevant Code of Practice made under section 59.

Counsel for the respondent submitted that as of the surrender of the animal to the council, the council became the owner. On the face of it, that is an unassailable position.
Counsel for the applicant submitted that the signature of Ms Gray was obtained improperly in as much as she asserts that the dog Mylo is not of a restricted breed and therefore was surrendered on false premise. Without having heard any evidence as such, I have the statements of Ms Gray and Mr Christie and I have taken note of the contents of those statements.
Whilst the question of whether Mylo is of a restricted breed is still undetermined by this Tribunal, the threshold question is whether the Tribunal has the jurisdiction to entertain the review. There has been a declaration made on 17 May and, in the normal course of events, an owner of an animal has a statutory period within which to make an application to this Tribunal for a review of that decision. So the question is whether at the time the review was applied for by Ms Gray, was she the owner of the animal? This may be answered by reference to section 33A. The statutory provision is clearly that the council is the owner of the animal. It is sought effectively for this Tribunal to find that the surrender of the animal can be revoked. In surrendering Mylo to the council, one might say that the parties are of a common mind, that is, they agreed that Mylo be surrendered. I am unable to find any statutory provision which allows the council to give the animal back by effectively allowing the revocation of the surrender.
Section 33A(2)(b) states that the council must deal with the dog or cat in accordance with this Act. Having made the declaration on 17 May that the dog is a restricted breed, that is where the matter goes. It must act in accordance with that declaration. I am not satisfied that there is a statutory ability on the part of the council to revoke the surrender nor, on the basis of material before the Tribunal, am I satisfied that the Tribunal indeed has jurisdiction to declare the surrender invalid or revoked. The Tribunal's statutory powers are set out in the Act and they do not include that power.
Counsel on behalf of the respondent made reference to the provision of s 98A, being the section under which a declaration is made, and said that a declaration cannot be revoked, amended or otherwise altered. That does not assist the Tribunal so much as making reference to the fact that there is no cooling off period set out in the Act.
If it had been the intention of Parliament to allow the revocation of a surrender then, in my view, the Act would have contained a cooling off period. No such provision exists. In any case, the purpose of this hearing following the application made by the Brimbank City Council is to determine whether the Tribunal has jurisdiction to carry out a review of the declaration made by the council on 17 May 2012.
The provisions of the Act are quite clear. Section 98(2AA) states that the owner may apply to VCAT. Section 3 of the Act defines "owner" as an inclusive definition -

... includes a person who keeps or harbours the animal or has the animal in his or her care for the time being whether the animal is at large or in confinement.

I am satisfied that as at 12 June 2012, when the application was made by Ms Gray, she was not the owner of the dog. Ownership devolved to the Brimbank City Council on the date on which the surrender authorisation was signed by Ms Gray. The only conclusion I can therefore come to is that Ms Gray was unable to instigate this review as a matter of law. Accordingly, the Tribunal has no jurisdiction to entertain the review. The order of the Tribunal is that the application is dismissed due to lack of jurisdiction.

Gray v Brimbank CC (General) [2012] VCAT 1304 (23 August 2012)

Gray v Brimbank CC

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Judgment (10 paragraphs)

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Cases Cited (1)

Gray v Brimbank CC (General) [2012] VCAT 1304 (23 August 2012)