Administrative and disciplinary - dog and cat management - review of destruction order -variation of review order by consent - jurisdiction of Tribunal to re-open matter after completed order made - Tribunal may vary mere detail of consequential order where variation sought by all parties

Re OMQ [2017] SACAT 8

1. I made an order in this matter on 26 April 2019 and published reasons for my decision. I affirmed a decision by the respondent Council that the dog Chino be destroyed. I made an ancillary or consequential order that Chino be destroyed between 8am on Tuesday, 21 May 2019 and 5pm on Monday, 27 May 2019.
2. The parties have jointly requested that I make further consequential or ancillary orders by consent and that I vary the detail of my order as to the time of destruction, also by consent. The agreement between the parties has been set out in proposed minutes of order, signed by the solicitors for both parties, and lodged with the Tribunal. The applicants have both also sworn brief affidavits, confirming their request to move forward the time of destruction in order to avoid a further period of detention for Chino.
3. It is clear that my original order did not purport to finalise all issues and the parties are entitled to seek further ancillary or consequential orders. The fact that the original order did not finalise all aspects of the matter may be sufficient basis for me to now recall the order and vary part of it as jointly requested. In any event I consider that it is appropriate to do so, in the particular circumstances of this case, for the reasons that follow.
4. The jurisdiction of the Tribunal to re-open a matter after a completed order has been made and sealed was considered by Parker J in Re OMQ [2017] SACAT 8. I refer in particular to the discussion at paragraphs 25 to 30 of that decision. The authorities cited by Parker J suggest that the application of the functus officio principle to tribunal proceedings will depend, in the end, on the statutory intention. There may be limited (and possibly rare) circumstances where it is permissible to reopen a completed order.
5. In my view, the provisions of the SACAT Act referred to in paragraph 30 of the decision suggest a legislative intention that this Tribunal should have jurisdiction to vary the mere detail of a consequential order where the variation is jointly sought by all parties and the Tribunal considers the variation to be appropriate. The parties should not be forced, due to a legal technicality, to appeal to the Supreme Court to achieve a result that is considered by them and the Tribunal to be appropriate. I find that this Tribunal has implied power in the circumstances of this case to vary the order, consistently with the request of the parties. I will do so.
6. I emphasise that the variation here is as to a mere detail contained in a consequential order and does not in any sense go to the substance of the original decision or the issues litigated between the parties. My comments must be understood in that limited context.
7. The Minutes of Order record that the consent orders are sought on the basis that the applicants unconditionally undertake not to appeal the decision of 26 April 2019 to the Supreme Court. That undertaking is noted.
8. The Tribunal makes the following orders by consent.

1. The order made in paragraph 1 of the "Orders of the Tribunal" dated 26 April 2019 remains unchanged.
2. In lieu of the order made in paragraph 2 of the "Orders of the Tribunal" dated 26 April 2019, the Tribunal now orders that the dog Chino be destroyed as soon as practicable during the period between 8am on Thursday, 9 May 2019 and 5pm on Thursday, 16 May 2019.
3. The applicant, Mr Parker-Benton, is released from the undertakings given by him to the Tribunal on 21 March 2019.
4. The solicitors for the respondent are to return Mr Parker-Benton's old mobile telephone to the office of the applicants' solicitor within 10 working days of this order.
5. The applicants are to pay to the respondent the agreed sum of $4,550.00 towards the cost of impounding fees incurred in respect off the detention of the dog Chino. This amount is to be paid in accordance with a payment plan to be determined by the respondent. In default of payment, the agreed sum may be recovered in the Magistrates Court.
6. Each party will bear their own costs of and incidental to the proceedings before this Tribunal.