General Manager of Break O'Day Council (Respondent)

The appeal (Tribunal reference AS/2025/13) by Jamie McKay against a purported decision of the General Manager of the Break O'Day Council in respect of a licence under the Dog Control Act 2000 is dismissed under s 89 of the Tasmanian civil and Administrative Tribunal Act, on the basis that it is misconceived and lacking in substance.

Administrative appeal - Purported decision by General Manager of Council in relation to a licence - Licence had already expired - Whether power to make decision - Whether 1holder of expired licence had standing to appeal purported decision - Application by respondent to dismiss

Dog Control Act 2000;

Tasmanian Civil and Administrative Tribunal (Additional Jurisdictions) Act 2025;

Tasmanian Civil and Administrative Tribunal Act 2020

E Allan v Strata Corporation No. 180683 [2022] TASCAT 29;

Neilsen v George Town Council [2025] TASCAT 76; Langley v Niland [1981] 2 NSWLR 104;

A_lcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue_ [2009] HCA 41;

Project Blue Sky Inc. v Australian Broadcasting Authority [1998] HCA 28;

SZTAL v Minister for Immigration and Border Protection [2017] HCA 34

1. This decision arises from an appeal of a decision by the General Manager of the Break O'Day Council under the Dog Control Act 2000 (the DCA) regarding a kennel licence. For brevity, I will refer to the respondent to the proceedings as 'the Council'.
2. The appeal for review of a decision was filed by Mr Jamie McKay in the Magistrates Court in Launceston on 30 June 2025. In accordance with the Tasmanian Civil and Administrative Tribunal (Additional Jurisdictions) Act 2025, jurisdiction to hear the appeal was transferred from the Magistrates Court to this Tribunal on 1 July 2025.
3. The specific application that I now need to determine is an application by the Council for the appeal to be dismissed pursuant to s 89 of the Tasmanian Civil and Administrative Tribunal Act 2020 (the TASCAT Act). The Council says the Tribunal does not have jurisdiction to hear this matter, and, in the alternative, the proceedings are misconceived and/or lacking in substance.
4. Before I deal with the Council's application to dismiss the proceedings I will set out the relevant statutory framework and the ground to the appeal.

1. The DCA governs control and management of dogs in Tasmania. Division 7 of Part 3 the DCA regulates licences for keeping on premises more than the prescribed number of dogs[1]. Section 51 provides that a person may apply to the General Manager of a council for a licence.
2. Sections 54 and 55 of the DCA provide for refusal or granting of an application for a licence relevantly as follows:

54. Refusing application > > (1) A general manager may refuse to grant an application for a licence if of the opinion that - > > (a) the premises to which the licence relates are unfit for the purpose for which they are to be used; or > > (b) it is in the public interest that the licence not be issued. > > (2) A general manager is to refuse to grant an application for a licence if not satisfied that the requirements of section 55(1) are likely to be met. > > 55. Granting application > > (1) A general manager may grant an application for a licence if satisfied that - > > (a) adequate provisions for the health, welfare and adequate control of all dogs on the premises are provided or are likely to be provided; and > > (b) nuisance to any other persons is unlikely to occur; and > > (c) requirements under laws relating to public health and environmental protection are likely to be satisfied. > > (2) A general manager is to issue a licence specifying - > > (a) the maximum number of dogs that may be kept on the premises; and > > (b) . . . . . . . . > > (c) any conditions as the general manager may determine; and > > (d) the expiry date of the licence. > > ........................

56. Period of licence > > Unless it is earlier cancelled, a licence expires on the date specified in the licence.

57. Renewal of licence > > (1) A licence is renewable on payment of the appropriate fee. > > (2) A general manager may refuse to renew a licence if of the opinion that - > > (a) the provisions of this Act or any other relevant Act are not being complied with; or > > (b) the situation or condition of the premises is creating a nuisance; or > > (c) it is in the public interest that the licence not be renewed.

58. Cancellation of licence > > (1) A general manager may cancel a licence if satisfied that - > > (a) the provisions of this Act or any other relevant Act are not being complied with; or > > (b) any condition of the licence is not being complied with; or > > (c) the situation or condition of the premises is creating a nuisance; or > > (d) it is in the public interest that the licence be cancelled. > > (2) Before cancelling a licence, the general manager is to - > > (a) give to the holder of the licence one month's notice in writing to show cause why the licence should not be cancelled; and > > (b) give consideration to any representations which the holder may make in that respect. > > (3) The cancellation of a licence is to be effected by the service of a notice on the holder of the licence notifying that the licence expires at the end of a period, not less than one month, specified in the notice, unless the normal expiry is first reached.

1. Section 59 of the DCA governs appeal of decisions under Division 7 of the DCA as follows:

59. Appeals in respect of licence > > (1) The applicant or the holder of a licence may apply to the Tasmanian Civil and Administrative Tribunal within 14 days after being notified of a refusal, cancellation or decision for a review of - > > (a) the refusal of a general manager to grant an application for a licence; or > > (b) the refusal of a general manager to renew a licence; or > > (c) the cancellation of a licence; or > > (d) the decision of the general manager to cancel the licence. > > (2) . . . . . . . . > > (3) . . . . . . . . > > (4) A council is to comply with any directions given by the Tasmanian Civil and Administrative Tribunal. > > (5) . . . . . . . .

1. Section 89 of the TASCAT Act relevantly provides:

89. Frivolous or vexatious proceedings > > (1) This section applies if the Tribunal believes that a proceeding or a part of a proceeding - > > (a) is frivolous, vexatious, misconceived or lacking in substance; or > > (b) is otherwise an abuse of process. > > (2) If this section applies, the Tribunal may order that the proceedings, or the part of a proceeding, be dismissed or struck out and may make any related or ancillary order.

The Council issued a licence to Mr McKay on 11 December 2023 pursuant to s 55 of the DCA. The licence permitted Mr McKay to keep a maximum of 15 dogs at his property at St Marys in Tasmania and stated:

This licence is valid until 30 June 2024 subject to the provisions of the Dog Control Act 2000 and the Regulation under that Act.

1. This licence may be reviewed in the event of a breach of the Dog Control Act 2000.
2. To exceed the number of dogs held under this licence will require re-application.
3. In a letter of 25 July 2024 the Council sent an invoice to Mr McKay for the renewal of the licence. He was asked to advise the Council if any changes needed to be made to the licence and was advised:

Payment of this invoice will be accepted as your verification that all details are true and correct and a licence for the 2024/2025 financial year will be issued to you.

4. Mr McKay paid the renewal fee to the Council within the time indicated in the invoice.
5. On 12 June 2025 the Council wrote to Mr McKay, advising him of the that there had been a decision that Mr McKay's licence would be cancelled. The correspondence advised:

After considering all the information available to me including the relevant legislation and noting the assessment by the RSPCA, I am satisfied that you are not meeting your obligations to hold a kennel licence. > > Relevant Legislation > > Dog Control Act 2000 > > Section 58. Cancellation of Licence > > A general manager may cancel a licence if satisfied that-

(a) The provisions of this Act or any other relevant Act are not being complied with; or

(b) Any condition of the licence is not being complied with; or

(c) The situation or condition of the premises is creating a nuisance.

My decision is based on these facts:

• Adequate provisions for the health and welfare of all dogs on your premises are not being met.
• Nuisance caused by barking is reported.
• Environmental, health and hygiene levels are not being satisfied.
• Designated and approved enclosures are not being used for primary housing.
• Continued noncompliance of RSPCA requirements.

Considering your current dog numbers, I will allow a period of 8 weeks from the date of you receiving this notice, for your operation to cease. At which time council will contact you to arrange an inspection of your property. > > 59. Appeals in respect of licence > > (1) The applicant or holder of a licence may apply to the Magistrates Court (Administrative Appeals Division) within 14 days after being notified of a refusal, cancellation or decision for a review of-

(a) the refusal of a general manager to grant an application for a licence; or

(b) the refusal of a general manager to renew a licence; or

(c) the cancellation of a licence; or

(d) the decision of the general manager to cancel the licence.

If you have any questions please contact the Break O' Day Council office on (03) 6376 7900.

1. The Council acknowledges that its actions in purporting to cancel what it now says was a non-existent licence and advising Mr McKay that he had the right to appeal the decision have likely figured highly in influencing the appeal being made.
2. The Council's argument in support of its application to dismiss the appeal is essentially that at the time of the purported cancellation of the licence on 12 June 2025 there was in fact no licence to cancel, because it had expired on 30 June 2024.
3. The Council says this raises two issues.
4. Firstly, the Council says the standing of Mr McKay to bring the appeal is in question, because Mr McKay is neither an applicant for a licence, nor the holder of a licence for the purposes of s 59 of the DCA. The Council says he therefore does not have standing to bring the appeal.
5. Secondly, the Council says that, irrespective of the question of standing, the appeal is misconceived or lacking, and ought to be dismissed in accordance with s 89 of the TASCAT Act.
6. The Council refers to E Allan v Strata Corporation No. 180683 [2022] TASCAT 29 where Deputy President Grueber observed at [12]:

Section 89 of the TASCAT Act provides that the Tribunal may order that proceedings be dismissed where it believes that they are frivolous, vexatious, misconceived or lacking in substance or are otherwise an abuse of process. What might be frivolous, vexatious, misconceived, lacking in substance or an abuse of process can be protean, and the natural meaning of those words has somewhat contumelious overtones. However, their broad meaning in law is that the proceeding lacks a legal foundation to provide relief.

7. Specifically in relation to the term 'misconceived' the Council relies upon Neilsen v George Town Council [2025] TASCAT 76 at [29], referring to Langley v Niland [1981] 2 NSWLR 104 (Langley), adopting the meaning of 'misconceived' to be "something which is founded upon a wrong idea as to the facts".
8. Specifically in relation to the term 'lacking in substance' the Council refers again to Langley where the phrase was interpreted to mean "the insufficiency or the absence of merit of the factual basis for the allegations made in the complaint rather than to whether the complaint is one within the provisions of the Act at all". This interpretation has been similarly been adopted in this Tribunal [2].
9. The Council says that the appeal is both 'misconceived' and 'lacking in substance' within the meaning of those terms, as the Council could not have made any decision in relation to a licence that had already expired.

1. In relation to the DCA, Mr McKay submits that a proper construction of the Act is that it is a straightforward regulative statute which anticipates an orderly process where an existing licensee, who has complied with the statutory requirements by paying the renewal fee is entitled to have the renewal considered. He submits that to construe the Act as preventing renewal upon expiry of the licence would be to impose an unnecessary technicality inconsistent with the straightforward operation and practical intent of the legislative scheme. He says there is nothing in the statute that bars the renewal of an expired licence, and that payment of the prescribed fee makes a licence 'renewable'
2. In the context of the facts of this case, Mr MacKay says that when he paid the prescribed fee on 14 August 2024, he triggered the renewal process and it was then a matter for the General Manager of the Council to then decide whether to renew the licence.
3. Mr McKay refers to the letter from the dated 12 June 2025, which purported to cancel his licence. He says:
   • The language of that letter is decisive, and demonstrates that the Council treated the licence as valid and capable of cancellation
   • The letter is consistent with the letter of 25 July 2024 and the invoice he received at that time from the Council, and which he paid as required.
   • The Council is estopped from now asserting that there was no valid licence. Mr McKay relied upon the representation that there was a valid licence that was subject to cancellation.
4. On that basis, Mr McKay says the Council may not now assert that there was no decision to cancel the licence because no licence existed.
5. In the alternative, Mr McKay says that the Council's decision contained in the letter of 12 June 2025, if it was not a cancellation of the licence, was a refusal to renew the licence which is also a decision that is subject to review by this Tribunal.

1. In response to the matters raised by Mr McKay the Council says:

• In the absence of any definition of the word 'expiry' in the DCA, the usual meaning of "expiry' is "a coming to an end; termination; close" and "of or relating to the time at which something terminates"[3]
  • In contrast to other licencing schemes, there is no express provision in the DCA to allow for an extended period after the expiry of a licence within which application for renewal can be made. The Council, by way of example, refers to the Vehicle and Traffic (Driver Licensing and Vehicle Registration) Regulations 2021, s 37(3), which provides

An application for the renewal of a driver licence, other than a learner licence, may be made even though the licence has already expired if the licence has expired less than 5 years before the date of the application.

• Tight legislative oversight and restrictions regarding licences to keep several dogs are consistent with public interest and public policy considerations
• If a licence expires, there is nothing preventing a person from immediately applying for a new licence, but the obligation to apply for renewal rests with the licence holder. An application for a new licence is a course is still open to Mr McKay
• Payment of a renewal fee does not make a licence renewable if there is no valid licence to review.
• The Council cannot be estopped from asserting the decision in question was made ultra vires.
• Although Mr McKay complied with the requirements of the Council, those requirements were outside the Council's powers and not in compliance with the DCA.

1. The first question I need to consider is the question of whether a licence issued in accordance with s 55 of the DCA that has expired is capable of being renewed. The answer to that question may determine this application.
2. The licence issued to Mr McKay expired on 30 June 2024.
3. The Council says that, irrespective of anything that it may have purported to do after 30 June 2024 in respect of that licence, the proper interpretation of the DCA is that it actually had no power to do anything because the licence had come to an end. If this is so, there is no decision of the Council that is amenable to appeal.
4. Mr McKay says that there is nothing in the DCA that prevents a decision to renew an expired licence after the date of expiration, and that the decision made by the Council purportedly to 'cancel' the licence in June 2025 was, in reality, a decision by the Council not to renew the licence, and is a decision that Mr McKay may appeal.
5. When considering the meaning of legislation (in this case, the DCA), ordinary principles of statutory interpretation apply.
6. The starting point of statutory interpretation is to give legal effect according to the plain and ordinary meaning of the text read in the context of the surrounding provisions and the legislative scheme in order to construe the relevant provision consistently with the language and purpose of the legislation when considered as a whole: See A_lcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue_ [2009] HCA 41 at [4] and Project Blue Sky Inc. v Australian Broadcasting Authority [1998] HCA 28 at [69]. The grammatical meaning of the words of a provision will generally establish the legal meaning of the provision, but context, the purpose of the legislation and a purposive approach to construction may require the provision to be read in a different way: See SZTAL v Minister for Immigration and Boarder Protection [2017] HCA 34 at [14].
7. The ordinary meaning of 'expiry' has been referred to already. To apply that ordinary meaning, when a licence granted in accordance with s 55 of the DCA expires, it comes to an end.
8. In regard to the context and purpose of the legislation, the DCA is expressed to be an Act to provide for the control and management of dogs. Part 2 of the DCA provides for the registration of all dogs over the age of six months. Part 3 of the DCA is concerned with 'Control of Dogs', and includes Division 7 of Part 3 of the Act.
9. Under Division 7, matters that may be relevant to a decision in relation to the granting or refusal of an application for a licence (or, indeed, renewal or cancellation of a licence) are wide ranging, and include the fitness for purpose of the premises, the public interest, provisions for the health, welfare and control of dogs, nuisance to any other persons, public health and environmental protection, and whether the provisions of the DCA and any other relevant Act are being complied with. Failure to comply with the conditions of a licence, or exceeding the number of dogs permitted by the licence attracts a penalty.
10. Whilst part 2 of the DCA makes provision for registration of all dogs over the age of six months, the regulatory scheme in respect of the granting of a licence to keep more than two dogs[4] places significantly higher requirements on both the council, in terms of granting a licence, and a proposed licensee in satisfying the council that the licence should be granted.
11. It is consistent with those significant requirements that Parliament intended the licensing scheme under Division 7 of Part 3 of the Act to include rigorous compliance with the conditions of any licence granted, and the terms of the scheme itself.
12. I accept the Council's submission that, generally, where the Parliament intends there to an extended period for renewal of a licence after expiry, it will explicitly do so. The context and purpose of the legislation suggests that Parliament intended that a licence under Division 7, once granted, to only be on foot until it expired or was cancelled.
13. I find that the licence granted to Mr McKay by the Council under s 51 of the DCA, and which expired on 30 June 2024 was not capable of being renewed after that date.
14. The fact that the Council appeared to have a different view about the effect of the expiry of the licence makes no difference. Once the licence had expired, there were no decisions the Council could have taken in respect of that licence.
15. It is unfortunate that the information provided by the Council to Mr McKay in relation to his licence led him to understand to the contrary. It may well be that the Council will need to reconsider the timing of its renewal notices to licence holders under s 55 of the DCA.
16. It follows that I agree with the Council's contention that there was no decision made by the Council in respect of a licence held by Mr McKay under the DCA, and therefore no decision that was amenable to an appeal to this Tribunal.
17. The appeal will be dismissed.

1. The appeal (Tribunal reference AS/2025/13) by Jamie McKay against a purported decision of the General Manager of the Break O'Day Council in respect of a licence under the Dog Control Act 2000 is dismissed under s 89 of the Tasmanian civil and Administrative Tribunal Act, on the basis that it is misconceived and lacking in substance.
2. If any ancillary orders are sought by either party, they are directed to file submissions identifying the orders sought, and submissions in support, within 21 days.

[1] A licence is required to keep more than two dogs, other than working dogs, over the age of six months; or more than four working dogs over the age of six months.

[2] See, for example, Stuart Rissell v The State of Tasmania (Department of Justice) - Tasmania Prison Service [2024] TASCAT 70

[3] Macquarie Dictionary (3rd ed, 2002). I note that this is also the current definition contained in the Macquarie Dictionary Online.