HUNTER -v- CITY OF JOONDALUP [2024] WASC 148 (26 April 2024)

1. An appeal to this Court against a decision of the Tribunal may only be brought on a question of law and requires the leave of the court.[1]
2. The principles in relation to leave are well settled. As the Court of Appeal said in SH v Chief Executive Officer of the Department of Communities:[2]

As this court recognised in Paridis v Settlement Agents Supervisory Board, the power to grant leave is conferred in general terms and leave should be granted if, in all of the circumstances, it is in the interests of justice that there should be a grant of leave.

While the ultimate issue is whether the grant of leave is in the interests of justice, Buss JA in Paridis stated that, in considering whether to grant leave, regard should be had to the guidelines articulated by the court in Secretary to the Department of Premier and Cabinet v Hulls. In Hulls, Phillips JA said:

When leave is sought to appeal ... it will be necessary for the applicant to identify a question of law which is relevant to the granting of the relief sought on appeal. The importance of the question, either generally or to the would-be appellant in the particular case, will probably be relevant. The applicant must show that there is a real or significant argument to be put on that question of law at least to this extent: that there is sufficient doubt about it to justify the grant of leave. Moreover, it may have to be shown that to allow the error to go uncorrected would impose substantial injustice, although, where the order below is final, that injustice will often be more readily discernible.

These guidelines are relevant. They are not, as Buss JA emphasised in Paridis, determinative. Whether leave is granted must depend upon the circumstances of each particular case. In this regard, the grant of leave should not be regarded as a perfunctory exercise. The legislative purpose in requiring the grant of leave is to reduce unnecessary appeals from decisions of the Tribunal. (footnotes omitted)

1. The appeal notice was filed on 3 October 2023.
2. After the City filed a notice of intention to take part in the appeal, I held a directions hearing on 21 November 2023. At that hearing, it became apparent that there were related proceedings pending in the Magistrates Court. The appellants also advised that they had applied (or proposed to apply) to the City (and the City of Wanneroo, in the case of Hunter and Chaz), seeking to have the dangerous dog declarations revoked pursuant to s 33H of the Dog Act. In this last respect, it was common ground that Hunter and Chaz are now kept with Ms Hunter at a new address within the City of Wanneroo.
3. I adjourned the hearing on 21 November 2023 to 22 January 2024 to enable the appellants to obtain copies of the documentation before the Tribunal, and to explore the potential to have the declarations revoked. By 19 January 2024 the appellants had obtained legal representation and the parties requested that the directions hearing be further adjourned until after 18 March 2024. The directions hearing was adjourned, on the papers, to 21 March 2024.
4. Unfortunately, by the time of the directions hearing on 21 March 2024, the appellants were again unrepresented. At that hearing, as the proposed grounds of appeal were then inadequate, I made orders to the following effect:

1. On or before 12 April 2024, the appellants file and serve a 'Concise Statement of Grounds of Appeal', setting out:

(a) the specific error of the Tribunal alleged by the ground by reference to the Tribunal documents and transcript; and
>
> (b) a concise statement of the reason for the error.

1. The appeal be listed for consideration of leave to appeal on 23 April 2024.
2. The appellants complied with order 1, and filed a statement of grounds of appeal. That document contained seven grounds of appeal. The appellants also provided a copy of the documents referred to in the grounds.
3. On 23 April 2024, I heard further submissions from the appellants clarifying the nature of the error alleged by each ground, to determine whether, in relation to each ground, there was a real or significant argument to be put on a question of law, such that there is sufficient doubt about it to justify the grant of leave.

1. With the benefit of the clarification provided at the hearing on 23 April 2024, the complaints made by the appellants in each ground of appeal were sufficiently clear. I will address each of the grounds of appeal separately before addressing the interests of justice generally.

Respondent requested Kya Hunter be added as appellant. Decision made 28/04/2023 by SAT, Kya Hunter was not residing in the City of Joondalup since November 2022, therefore not in the City of Joondalup's jurisdiction and any outcome would be irrelevant to Kya Hunter's situation.

1. As noted above, when the review application was initially filed on 17 January 2023, Mr Hunter was the named applicant, although on that day, Mr Hunter also advised the Tribunal that 'this application is related to both myself and my Daughter Kya Jordan Hunter'.[3] Ms Hunter was joined by order of the Tribunal on 28 April 2023. While the issue of joinder was raised by counsel for the City on that day, it is clear that the order to join Ms Hunter was made with her express consent.[4] It was also clearly within the power of the Tribunal to add Ms Hunter as an applicant.[5] Indeed, on one view, such an order was necessary in order for the Tribunal to entertain the review application in relation to her dogs. Without Ms Hunter being joined a real question would have arisen as to whether she had been afforded natural justice.
2. For these reasons, the joinder of Ms Hunter was not attended by any arguable error of law. Nor, in my view, was it capable of working any practical injustice to Ms Hunter. Indeed, quite the contrary: it ensured that Ms Hunter was entitled to be heard in relation to proceedings that affected her interests.
3. In submissions before me, Ms Hunter submitted, in relation to this ground, that if she had not been added as an applicant to the review application she could have had the declaration revoked by the City of Wanneroo earlier because 'the City of Wanneroo is not wanting to review the declaration and possibly lift it until the matter is kind of [finished]'.[6] In this regard, s 33H(4) of the Dog Act provides:

A person who was the owner of a dog at the time the relevant notice was given shall not be entitled to make an application [to revoke a notice] until -

(a) any objection or application for review in respect of the notice sought to be revoked has been determined; or

(b) one year has elapsed since the giving of that notice, or since any preceding application [to revoke the notice] was determined.

1. Precisely what attitude the City of Wanneroo has to any application under s 33H is not clear to me (including whether it was awaiting the completion of the review application as per s 33H(4)(a)) or completion of the related proceedings before the Magistrates Court). The City of Wanneroo was not represented before me.
2. Nevertheless, what is clear to me is that the joinder of Ms Hunter to the review application did not prejudice Ms Hunter's ability to apply for a revocation of the notice in relation to Hunter and Chaz. That is because the review application was finally concluded on 2 June 2023, long before one year had elapsed since the giving of the notice on 9 November 2023.
3. Ground 1 is therefore without merit.

Ground 2 - failure to comply with the Tribunal's procedural orders

(a) Respondent failed to comply with SAT's specific orders by supplying documents by a certain date. Respondent sent documents in question to other party without our request or permission. ...

(b) Respondent added evidence on 02/06/2023, refer page 256, regarding previous case, SAT clearly stated all evidence to be used must be submitted by certain dates.

1. Ground 2(a) relates to a delay in the City serving certain documents. In accordance with the procedural orders of the Tribunal, the City was required to file and serve a statement of issues, facts and contentions and the documents referred to in s 24 of the SAT Act by 20 March 2023. While the documents were all filed on that date, they were not served on the appellants until 23 March 2023 (or 25 March 2023 at the latest). That delay appears to have arisen from a misapprehension on the part of the City as to whether the appellants were represented at that time.
2. Be that as it may, it is clear that the appellants had all of the documents well before the hearing on 22 May 2023. The delay of three to five days could not, in the circumstances, have resulted in any prejudice to the appellants in the review application. The learned Tribunal Member concluded as much when the issue was raised with her at the hearing.[7] She was correct to so conclude. Procedural fairness is directed to avoiding practical injustice, and what is necessary to avoid practical injustice will depend upon the circumstances.[8] The appellants did not point to any injustice resulting from the delay in receipt of the documents.
3. Ground (b) relates to the fact that counsel for the City, in closing submissions, referred to a previous decision of the Tribunal (Ioppolo v City of Wanneroo).[9] In that case, the Tribunal concluded that if a number of dogs are involved in an attack (within the meaning of the Dog Act) that causes an injury, it is not necessary to show which particular dog actually inflicted the injury (in the sense of having bitten another dog). That is plainly correct, as a matter of the construction of the Dog Act.
4. As the learned Tribunal Member found in this case:

The aggressive rushing, chasing and harassing behaviour of the four dogs permitted one or more of the dogs to bite the dog. And that is the case which the City ran. And, as I said, the Tribunal does not have to find that one of the particular four dogs inflicted the wounds, but just that one of them did so, and that the attack or chase by the other three caused the injuries. And in both cases, the Tribunal does so find.

1. In any event, a previous decision of the Tribunal, relied upon for its precedential value, is not 'evidence' within the meaning of procedural orders of the Tribunal. For the City to have referred to such a decision was not a breach of the Tribunal's orders.
2. Nor did the City's reference to the decision work any practical injustice or manifest legal error. In submissions before me, Mr Hunter said that, there were cases 'we could have brought up' but didn't because they had not submitted them to the Tribunal before the date for evidence. While he could not recall the names of those cases, Mr Hunter said that they were examples where a case was dismissed because it could not be said which of two dogs caused an injury. Such an example would not, however, be inconsistent with the facts as the learned Tribunal Member found them to be, which was that all of the appellants' dogs were involved in the attack.
3. Ground 2 is without merit.

SAT Procedures, p 52, Heard respondent first, this had huge impact on our appeal process. We also believe there was contradictions in what was required of us, ie; SAT accepted we were appealing The City of Joondalups decision to Declare 4 dogs Dangerous on 09/11/2022, Our argument was The City was acting biased towards us, taking into account that the Cities investigation into the first incident was not complete, in fact had only just started approximately 5 days before and The City had only hearsay evidence, from someone not witness to second incident, received at 1143 am 09/11/2022, See Page 22, The City Rangers (x 5) plus Police (x 2) arrived at my house at 1400 hrs to Declare dogs dangerous, I was given the option to surrender the dogs for destruction or face substantial fines. The City of Joondalup did not get a statement from the other party until Ms Kellie Bryson visited Mr Fraser 2 days after incident. These points (and others) are what I had intended to appeal. SAT then added, on day of the hearing, that this was a fresh case, which we were in any way made aware of prior to hearing and were not prepared. See pages 54 ‑ 57 These procedures vastly differ to previous SAT requests regarding issues to appeal etc.

1. Ground 3, in essence, relates to a misapprehension by the appellants as to the nature of the Tribunal's review jurisdiction. In that regard, it is apparent that the appellants' focus in challenging the declarations made by the City was, and to an extent still is, focussed on what they contended were failures by the City in the process it adopted prior to making the declarations on 9 November 2022: for example, that the City had acted on the basis of hearsay or an incomplete investigation or that the City was biased.
2. Such a conception of review proceedings before the Tribunal, however, does not reflect the provisions of the SAT Act in relation to the nature of such proceedings. The SAT Act provides that review proceedings are conducted as a hearing de novo, and their purpose is to produce the correct and preferable decision.[10]
3. It is clear that the learned Tribunal Member went to some lengths to explain to the appellants the nature of the review application and the usual practice of requiring the respondent in such a case to present its case first, thereby providing the applicant with a clear picture of the case that it is required to meet. The appellants evidently understood the explanation given by the learned Tribunal Member and the procedure to be adopted at the hearing.[11]
4. Mr Hunter submitted to me that he found the hearing dumbfounding and overwhelming. That may be true; as may well be the case with many people representing themselves before the Tribunal. Nevertheless, it is clear that the appellants called all of the evidence that they wished to call and cross-examined all of the City's witnesses. Having considered the entirety of the transcript of the hearing, I am satisfied that the appellants were able to properly present their case, and indeed that they did so competently and thoughtfully.
5. The process adopted by the Tribunal in the conduct of the review application did not involve any error of law, nor did it arguably involve any denial of procedural fairness.
6. Ground 3 is without merit.

Conflict of interest, I was informed 3 days before the Hearing that Member Eagling had previously met Our expert witness, Dr Kate Lindsey, Kalmpets. We were not informed Ms Eagling had been a customer, had taken her dog to be assessed, obviously with behavior problems, had only visited on one occasion. Therefore it can reasonably be assumed that Ms Eagling had issues with Kalmpets assessment of her dog, or maybe Kalmpets miraculously 'cured' her dog in 1 visit. We believe Ms. Eagling should have excused herself from this case.

1. On 19 May 2023, the Tribunal advised the parties that the learned Tribunal Member, 'realised that she has met the Applicant's expert witness, Dr Kate Lindsey ... on one occasion approximately 7 years ago when she attended her business KalmPets for a one on one introductory puppy training session with her puppy'. The parties were asked to confirm whether they had any objection to the Member hearing the matter.
2. Both parties confirmed that they had no objection to the learned Tribunal Member hearing the review application. The appellants, in particular, advised, in writing, that 'we have no problem with the issue raised regarding the Presiding Member having met Dr Lindsey'.[12]
3. A party to proceedings may waive their right to object to a judge or tribunal member continuing to hear and dispose of a case. In particular, when a party is fully aware of the circumstances from which ostensible bias might be inferred, but does not object, that party cannot be heard later to complain that the decision maker was biased.[13]
4. That is the position in this case. The parties were fully apprised of the Tribunal Member's prior contact with the proposed witness and took no objection. As Mr Hunter readily accepted at the hearing before me, his 'assumption' as to the Member's prior contact with Dr Lindsey was just that: an assumption. It was not new information. Nor did Mr Hunter's concern arise until after the review application was decided unfavourably to the appellants.
5. As Dawson J observed in Vakauta v Kelly:[14]

It cannot be the position that a party can wait to see whether the outcome of a case is favourable to him before raising an objection, the availability of which he was previously aware, on the ground of bias.

1. In any event, there is no reasonable basis to contend that the contact between the learned Tribunal Member and Dr Lindsey was such that a fair-minded lay observer might reasonably apprehend that the Member might not bring an impartial mind to the resolution of the question the Member was required to decide.[15] Dr Lindsey was an expert witness. It was unlikely, as proved to be the case, that Dr Lindsey's credit would be in issue and, in any event, there is nothing to suggest that the learned Tribunal Member might have prejudged the weight to be accorded to Dr Lindsey's evidence.
2. Ground 4 is without merit.

Regarding section 4, we believe his is why Ms Eagling repeatedly 'put limited weight' on Dr Lindseys evidence, page 284 and others. Ms Eagling did not ask The City or the City did not supply any credible / expert witness or assessment of other Parties Dogs, to reasonably argue facts of the incidents, Dr Lindsey gave evidence that there was a reason for any incident between dogs, she gave her opinion that the only reason our dogs would be involved is if they were provoked, The City and SAT provided no other explanation. Dr Lindsey also stated that the injuries were not consistent with the allegations of 4 dogs attacking repeatedly. As in statements by other parties. Page 16 17 19 22 51 52 53. We maintain the only reason these incidents occurred was our dog was provoked and that our dog reacted in a controlled way.

1. Ground 5 is dependent on ground 4 and challenges the weight that the Tribunal Member gave to the evidence of Dr Lindsey.
2. Dr Lindsey gave evidence in relation to her assessment of the appellants' dogs. It is fair to describe her evidence as very favourable to Hunter, Gidge, Troopa and Chaz. She described them as behaviourally safe and said they did not pose a risk. That was, of course, relevant evidence and the Tribunal Member had regard to it. Indeed, the learned Tribunal Member accepted Dr Lindsey's evidence in a number of respects, including that the dogs' behaviour on the two occasions was out of character.
3. Nevertheless, the Tribunal Member concluded that there were limitations on Dr Lindsey's evidence as to what occurred in the two incidents on 15 October 2022 and 8 November 2022, she not being present on either occasion. It was open to the learned Tribunal Member to reach that conclusion. It manifests no bias, apprehended or otherwise.
4. Ground 5 is without merit.

SAT did not take into account conflicting Vet reports, undated photos, allegations inconsistent with injuries, No expert witness to injuries alleged, therefore unable to establish or question facts. Other parties animal behavior assessments were not supplied or requested. Cities failure to follow Procedures as outlined in Local council Procedures manual, Page 199. Confirms The City acted in a biased way towards me/us.

1. Ground 6 contends that the Tribunal did not take into account inconsistencies in the veterinarian reports and other evidence in relation to the injuries sustained by Wesley and Coco.
2. The Tribunal's reasons demonstrate that not to be the case. Indeed, the learned Tribunal Member accepted that there were errors and inconsistencies in the veterinarians' reports but, nevertheless, accepted that those reports were reliable in documenting the injuries to Wesley and Coco. Indeed, in that context, the learned Tribunal Member accepted the evidence of Dr Lindsey to the effect that the medical reports are legal documents and that veterinarians have to fill them out carefully.
3. The learned Tribunal Member was entitled to reach these conclusions of fact. When the Tribunal determines the facts in favour of one party, and not in favour of another party, a complaint that the Tribunal ought not to have accepted the evidence of the other party is, generally speaking, a complaint as to an error of fact, not an error of law.[16]
4. That is the position in this case. Ground 6, at its highest, challenges findings of fact. It does not allege legal error.
5. Ground 6 is without merit.

Taking into account the reasons I have given for the Appeal I believe the circumstances, procedures and actions by SAT and The City of Joondalup should be taken into account and be found to be bias, prejudice and vexatious.

1. As the appellants accepted at the hearing before me, ground 7 was, in essence, a recapitulation of the other grounds. Those other grounds being without merit, it follows that ground 7 must also fail.

1. In accordance with my conclusions in relation to the grounds of appeal, I am not satisfied that there is any reasonable argument on a question of law, or error of law, such as to justify the grant of leave. In those circumstances, in my view, it is not in the interests of justice to grant leave to appeal.
2. Moreover, there is an additional matter relevant to the interests of justice.
3. It is now almost 17 months since the City declared that the appellants' dogs were dangerous dogs. In accordance with s 33H of the Dog Act, it is open to the City (or, in the case of Hunter and Chaz, the City of Wanneroo) to consider afresh whether the declarations remain necessary. That is an assessment that can, and should, be made on the most up-to-date material. A local government may do this, of its own motion, at any time.
4. It is clear that the appellants genuinely consider that their dogs are not dangerous, and they have expressed a willingness to engage with the relevant local government authorities to address the future management of their dogs. Such engagement has much to recommend it. Indeed, given the limitations on appeals from the Tribunal inherent in the SAT Act, it is to be hoped that such engagement would be likely to produce a more timely and acceptable resolution to all concerned than further litigation.

1. For the above reasons, I was satisfied that it was not in the interests of justice to grant leave to appeal.
2. In relation to the costs of the appeal, the City sought an order that the appellants pay the City's costs fixed in the sum of $1,500.00. I was satisfied that costs should follow the event. In addition, given that there were three hearings before this Court, including a substantive hearing as to the question of leave, the quantum of costs sought by the City was eminently reasonable.
3. For these reasons, I ordered that:

(a) leave to appeal is refused; and

(b) the appellants pay the respondent's costs to be fixed at the sum of $1,500.00.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.

[2] SH v Chief Executive Officer of the Department of Communities [2019] WASCA 31 [51] ‑ [53].

[8] Davie v Manuel [2024] WASCA 21 [88] (Buss P, Vaughan JA & Seaward J).

[9] Ioppolo v City of Wanneroo [2013] WASAT 172.

[11] Tribunal transcript bundle 54 ‑ 57.

[13] Goldsmith v Legal Services and Complaints Committee [2023] WASCA 136 (Goldsmith) [36] ‑ [40] (Mazza, Mitchell & Vaughan JJA).

[14] Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568, 577 (Dawson J).

[15] Goldsmith [17] (Mazza, Mitchaell & Vaughan JJA).

[16] Carden v Vallelonga [2019] WASC 289 [102] (Quinlan CJ).