Plaintiff v First Defendant

2 The Council's ranger believes that the dog is an American Pit Bull Terrier and therefore a restricted breed dog, and made a declaration under the Act to that effect. The plaintiff appealed, but two out of three members of the review panel ("the panel"), the second, third and fourth defendants, also thought that he was an American Pit Bull Terrier.

3 The plaintiff knows the parentage of the dog and insists that he is not an American Pit Bull Terrier. A veterinarian supports her view.

4 The plaintiff seeks judicial review of the decisions of the ranger and the panel. Although there is a considerable body of law surrounding the complaints made by the plaintiff, the issues are relatively simply distilled.

5 Against the Council, the original complaint was whether the ranger was obliged to accord the plaintiff procedural fairness; if so, to what extent and whether it was so afforded. Against the panel, the issues are twofold; firstly, whether the review carried out by the panel complied with the provisions of the Act and, secondly, to what extent the members of the panel were obliged to comply with the principles of natural justice/procedural fairness in carrying out the review.

6 The plaintiff, as the owner of the dog, clearly has rights which would be infringed if the dog was destroyed.

7 The Council and/or its employees are responsible under the Act for administering and enforcing a number of its provisions. Ryan Smith ("Smith"), the Council ranger, is the authorised officer of the Council for the purposes of the Act.

8 Dr Graham Robert Smith ("Dr Smith"), Peter Luijten ("Luijten") and Kevin Apostolides ("Apostolides") were the members of the panel appointed under s 98E of the Act to review the decision of Smith to decide that the dog was an American Pit Bull Terrier.

9 On 16 May 2007, Smith received a complaint about a dog roaming in Exford Drive, Mornington. The dog had not attacked or menaced anyone, but was causing concern to at least one resident.[1]

10 Smith believed that the dog had come from the plaintiff's premises at 59 Exford Drive.[2] The plaintiff was working and not at home. Aided by a male passer-by, Smith apprehended the dog.[3]

11 The dog was taken to the Council's pound, also known as the animal shelter. He was observed by Smith to not be desexed. He had a collar on him which had the address of the plaintiff and her mobile phone number. Smith's immediate suspicion was that the dog was an American Pit Bull Terrier. When he examined the dog at the shelter, he "formed the view that he met all the criteria for a pit bull".[4]

12 The plaintiff made contact with Smith on the day and expressed her concern as to what had happened to the dog. She described the dog as a Mastiff, not an American Pit Bull Terrier, and was advised by him of the procedures that would take place under the Act.[5]

13 On 17 May, Smith examined the dog having regard to the "restricted breed dogs guidelines for identification". According to Smith, the examination confirmed his view that the dog was an American Pit Bull Terrier.[6]

14 On 18 May 2007, the plaintiff attended the Council's offices for an interview with Smith and Council employee Colin McLean ("McLean"). The plaintiff maintained that the dog was an American Staffordshire Terrier cross Bull Mastiff. She produced photographs of the animals she alleged were the sire and the dam of the dog.[7]

15 Subsequent to the interview, Smith and McLean endeavoured to make further inquiries as to the parentage of the dog, but little information was obtained.[8]

16 On 31 May 2007, Smith declared the dog a restricted dog pursuant to s 98A of the Act.[9] A notice accompanied by a letter was forwarded to the plaintiff on 31 May 2007 pursuant to s 98A. In that notice, the plaintiff was advised of her rights to make an application for review. In particular, it said as follows:

"Under the legislation, you have the opportunity to appeal the decision to declare your dog a Restricted Breed Dog. An application for review must be made to the Minister (see attached form) within 30 days of service of this notice, and be accompanied by a non refundable fee of (20 fee units).

Appeals will be heard by a review panel consisting of three people appointed by the Minister because of their knowledge of or experience in the identification of dog breeds. The decision of the review panel to affirm or set aside a declaration must be determined by majority rule (i.e. at least two of the three members must agree)."

17 The plaintiff filed an application for review pursuant to s 98D of the Act.

18 On 18 June 2007, Stephen Moore ("Moore"), an officer of the Department of Primary Industries ("DPI") and the Executive Officer of the Restricted Breed Dog Review Panel of the Bureau of Animal Welfare ("the Bureau"), wrote to Smith acknowledging receipt of the application for review. He advised Smith that he had been instructed to convene the ministerially appointed review panel. On the same day he wrote to the plaintiff advising her of receipt of the application requesting a review.[10]

19 It was arranged that the review panel would meet at the pound's offices on 10 July 2007.

20 In early July 2007, Luijten, Smith and Apostolides were appointed by the Minister to form the panel to review the dog. Each of the three had considerable expertise in canine matters. Each had participated in previous review panel meetings. Luijten, a licensed all breeds dog judge with 30 years' experience and a consultant to DPI and the Australian Quarantine Service, was appointed the chairperson.[11]

21 It is convenient, at this point, to say something about the provisions of the Act.

22 The Act was introduced in 1994. Amongst its relevant purposes are the following: to protect the community from feral and nuisance dogs and to provide a registration scheme which promotes responsible ownership: s 1.

23 Since 3 November 2005, it has been illegal to keep a restricted breed dog unless it was acquired prior to that date: s 41E(A). A council cannot register a restricted breed dog born after 3 November 2005: s 17(1A).

24 A council may appoint a specified employee as an authorised officer: s 72. An authorised officer is then entitled to exercise powers of enforcement and the like under the Act: s 74. It was not in issue that Smith was an authorised officer.

25 An authorised officer may seize a dog within the municipality on a number of grounds, including if the dog is a restricted breed dog: s 77(1)(b) and (ca). In this case, Smith, as the authorised officer, was, on 16 May 2007, exercising his power under s 77 when the dog was seized and taken to the Mornington pound.

26 The Council has the power to destroy a dog seized under s 77(1)(b) and/or (ca): s 80(2).

The identification of restricted breed dogs - statutory provisions

27 The Act sets out a two tier process by which restricted breed dogs are identified. At the first level, the authorised officer is entitled to make a declaration if of the opinion that the dog is a restricted breed dog "to the effect that the dog is a restricted breed dog": s 98A(1). Such a declaration was made by Smith on 31 May 2007. Once the declaration had been made, absent an application for review, the Council was obliged to destroy the dog: s 80(1)(b).

28 The right to review of a declaration is provided for by s 98D, s 98E and s 98F.

"98D. Right to apply for review of decision to make declaration

(1) The owner of a dog in respect of which a declaration has been made under this Division may apply for that decision to be reviewed by a review panel.

(b) be made within 30 days of the service of the notice; and

(c) be accompanied by the fee prescribed by the regulations."

(1) A review of a declaration made under this Division must be heard by a review panel consisting of a chairperson and 2 other persons appointed by the Minister for the purposes of that review.

(2) A review panel must be constituted from a pool of persons appointed by the Minister because of their knowledge of or experience in the identification of dog breeds."

(a) must consider the application for review of the declaration which is before it; and

(2) A decision of a review panel must be determined by a majority of the members of the panel.

(3) Subject to subsection (2), a review panel may regulate its own procedure."

32 The "review" was conducted on 10 July 2007 by the panel.

33 On 10 July 2007, prior to the review commencing, Moore handed to each of the panel members a folder containing an expert report form ("the report") [12] to be completed, as well as a copy of the "Restricted Breed Dog Guidelines for Identification" ("the guidelines"). The guidelines are published by DPI under the auspices of the Bureau.

34 The panel then convened in a small office at the pound. At least ten people were present. The process followed was set out by Dr Gordon Watt ("Watt"), veterinarian, who had been asked by the plaintiff to attend:

"The meeting was held in a small office with ten people crammed in. Those present included two Council Rangers, three members of the review panel, a member of Council, Stephen Moore from the Department of Primary Industries, the kennel lady, the Plaintiff and myself. The location was unsuitable and the number of qualifications of those in attendance was questionable.

The Plaintiff presented her case and showed photographs of "Pony" as a pup and gave evidence as to why her dog is not a purebred American Pit Bull Terrier.

I attempted to put forward evidence regarding the Restricted Breed Dog check list and tried to point out differences between many purebred American Pit Bull Terriers and why it was very hard for anyone to conclusively say that any particular dog is an American Pit Bull Terrier without DNA evidence. I was told by Stephen Moore that the review panel would not take this into consideration as it was not the forum to discuss this evidence.

This contradicted advice given to me by Colin McLean (Shire Ranger Prosecutions Officer) that 'arguing the breed of dog is the only grounds for appeal at VCAT' and that the grounds for appeal were that 'the Shire is incorrect in deeming this dog to be an American Pit Bull Terrier'. This advice was flawed as:

(a) The Plaintiff was not given the opportunity of going to VCAT; and

(b) I was not allowed to give any evidence relating to the breed of the dog.

I measured a Staffordshire Bull Terrier (not a restricted breed) using the Restricted Breed dog check list and he had over 90% of the criteria used to distinguish an American Pit Bull Terrier.

Stephen Moore informed me that because "Pony" had hazel eyes, a pink nose and a rough coat, he had to be a purebred American Pit Bull Terrier. In 24 years as a registered Veterinary Surgeon, I have come across many dogs with these characteristics who are not purebred American Pit Bull Terriers.

Neither the Plaintiff nor myself were given any opportunity to see "Pony" or to be present when any measurements were made." (My emphasis).[13]

35 Watt's account does not vary to any real extent from that provided by Luijten, Dr Smith and Apostolides in their affidavits. I accept Watt's account of what occurred. No contradictory version has been proffered.

36 After Moore had requested that the plaintiff and Watt leave the room, Moore and Luijten went to where the dog was being kept. Moore carried out measurements of the dog which he gave to Luijten and then left the room. Luijten then examined the dog. The other two members of the panel then independently and separately examined the dog and completed the expert reports which were handed to Moore. Each was provided with the measurements of the dog. None of the experts conferred with the other. No "evidence" was taken by the panel.[14]

37 Luijten then completed a document headed "Decision of Restricted Breed Dog Review Panel". In the description of the dog, it is noted as a "male entire American Staffordshire X" - not an American Pit Bull Terrier. However, the following declaration is then made:

"I declare that the members of the Restricted Breed Dog Review Panel appointed by the Minister of Agriculture under s 98(E)(1) of the Domestic (Feral and Nuisance) Animals Act 1994 named below have determined that the dog referred to in this application is an American Pit Bull Terrier and is a restricted breed dog."[15]

38 It ultimately transpired that two members of the panel, Dr Smith and Apostolides, had determined that the dog was an American Pit Bull Terrier, but Luijten took the same view as Watt: the dog was not an American Pit Bull Terrier.

39 I think that it is tolerably clear that Moore on behalf of DPI controlled the process on 10 July. Watt's affidavit and the affidavits of the panel members demonstrate that Moore regulated the conduct of the meeting at the office, albeit that Luijten was the chairperson of the panel.

40 It is also clear that Moore determined the way in which the examinations were to take place. The guidelines were provided by Moore to the members of the panel. They were used by the members of the panel to identify particular physical characteristics, facial features and body features possessed by American Pit Bull Terriers. The guidelines also identify the risk of confusion with other breeds, such as the American Staffordshire Bull Terrier, the Staffordshire Bull Terrier and identified the major distinguishing features between the breeds.

41 The report given to the panel was a pro-forma document prepared by, I infer, DPI which required the examiner to check the physical characteristics and determine whether certain aspects of the guidelines were met. It required no more.

42 Each of the members of the panel swore an affidavit in respect of the examinations on 10 July 2007.

"12. In this case, I was to determine whether the dog was an American Pit Bull Terrier in accordance with the Guidelines. In accordance with those Guidelines, this is determined by the physical appearance and characteristics of the dog.

13. My role on the review panel is to determine whether the subject dog is a Pit Bull Terrier or not. As such I only consider owners' submissions for the purpose of providing background context for the review. Similarly, the photos presented to the panel are strictly irrelevant to the determination there is no way of knowing who the dog or the dogs in the photographs are." (My emphasis).

"16. My task as a member of review panels is to decide whether a dog which has been the subject of a declaration is [a] restricted breed dog. In this case I was to determine whether the dog was an American Pit Bull Terrier in accordance with the Restricted Breed Dog Guidelines for Identification (Guidelines). In accordance with the Guidelines, this is determined by the physical appearance and characteristics of the dog." (My emphasis).

"18. Usually, each review panel member examines the dog separately and reaches their own conclusion as to whether the dog is a Pit Bull Terrier or not. The Bureau of Animal Welfare representative normally enters the examination room with the first review panel member and takes measurements of the dog's muzzle and shoulder height, amongst other dimensions. He or she then provides these details to all three review panel members who each examine the dog individually. Having examined the dog and reached a conclusion, we note this on the form and hand this to the Bureau of Animal Welfare representative. We do not discuss our conclusions with each other."

46 After each of the reports were completed, they were handed to Moore who, according to Luijten, filled out the decision which records the majority decision.[16]

47 At this point it is relevant to note the following:

48 First, there was no consultation between the members of the panel. This was intentional, presumably in an effort to avoid collaboration; although one wonders why this was necessary, given the expertise of the three members of the panel. The panel made no decision as a "panel".

49 Second, presumably dictated by policy, each member of the panel only directed himself as to whether there was conformity with the guidelines laid down by DPI and nothing else.

50 Third, no consideration whatsoever was given to any evidence given at the meeting or the submissions that were made by the plaintiff. Nor was it intended that such evidence or submissions would be considered.

51 On 20 August 2007, Robson J granted an ex parte injunction to the plaintiff against the Council restraining it "from destroying, euthanasing or otherwise harming the dog known as Capone or Pone belonging to Paula Lynn Nicholson".

52 The plaintiff subsequently issued an originating motion on 27 August 2007 against the Council and DPI[17] which came on for hearing on 10 October 2007. The members of the panel were not joined as defendants at that time and the hearing was adjourned to enable them to be joined.

53 The amended originating motion was, by no means, easy to follow. However, Mr Strauch, who appeared for the plaintiff, reduced the claim in oral submissions to the following:

(a) He did not persist in seeking any relief against the Council.[18]

(b) Against the panel he made the following submissions:

(i) Firstly, the panel erred in law in the manner in which it considered the application for review of the declaration. It did not comply with the provisions of s 98E, s 98F or s 98G.[19]

(ii) Secondly, the panel's approach to the application for review of the declaration denied the plaintiff procedural fairness and therefore natural justice. In particular, he identified the following matters:[20]

(1) the failure to conduct a fair or proper hearing;

(2) the failure of the panel to permit evidence to be given by the veterinarian, Watt;

(3) the failure by the panel to decide the issue as a panel, rather than as individuals;

(4) the failure by the panel to allow questioning of any relevant witnesses.

54 Mr Strauch, as I have noted, appeared for the plaintiff (who, for several hearings in this Court, has been unrepresented) and was provided with instructions at very short notice. He is to be thanked for his assistance. I have already noted his two principal contentions. To put it in slightly more detail he argued firstly that the provisions of ss 98D, 98E and 98F require the panel to conduct a hearing and not simply make individual assessments disregarding any evidence that might be placed before them by interested parties. He contended that the whole process was flawed in that the Act required a hearing; it did not require individual assessments but rather a consideration by the panel of the whole of all the evidence in its review of the declaration. In effect, he contended that the conduct of the meeting at the pound was unlawful. His secondary contention was a corollary of his first. The principles of natural justice were not excluded by the legislation and therefore, even allowing for the varying nature of the content of such principles, the plaintiff was at the least entitled to have a proper hearing (as opposed to individual assessments using only the guidelines) and for a decision to be reached by the panel as a whole.[21] Moreover, he said that the plaintiff was entitled to lead evidence as she saw fit and to question relevant witnesses, particularly the ranger who had made the declaration.[22] None of this occurred.

55 Mr Golombek, who appeared for the members of the panel, contended that s 98D, s 98E and s 98F of the Act did not require that a hearing be provided nor that the panel consider the matter as a panel, rather than individually. He argued that the Act required individual assessments akin to a referral by a Court to an expert referee.[23] Mr Golombek put it succinctly: "We didn't have to hear anyone or to get submissions".[24] He contended that the provisions of s 98F in relation to the decision being by a majority pointed to this conclusion. He also relied upon the ability of a panel, pursuant to s 98F(3), to regulate its own procedure.[25] In relation to the natural justice issue, he submitted that the only principle of natural justice applicable to the panel was that of absence of bias and otherwise he asserted that there was a clear statutory intent that the principles not apply.[26] There was, he said, no requirement of a fair hearing.[27]

Analysis: s 98D, s 98E, s 98F of the Act - was the panel's review carried out in accordance with the law?

56 The task set for the panel by the legislature is not to conduct independent, separate assessments based solely upon guidelines provided by an officer of DPI. Rather, it is to conduct, to paraphrase the words of s 98D, a review of the decision [by the ranger] to make the declaration. Review does not mean merely individual examinations of the dog by experts. It means, I think, that there must be a proper review or re-examination of that decision, taking into account any matters relevant to the decision by the ranger to declare the dog as a restricted breed.

57 The Act requires that the review "be heard" by a review panel: s 98E. This points, although not conclusively, to the intention of the legislature that the review be determined as a hearing akin, one would think, to hearings conducted day in, day out by administrative decision-makers in this State. Certainly, there is nothing in s 98E which demonstrates that the review is solely to be confined to independent assessments to determine whether the dog does or does not conform with DPI guidelines.

58 The panel, not the individual members, was required to consider the application for review of the declaration: s 98F. This, in my view, required the panel as a whole (not as the individuals identified in s 98E(1)) to consider the application. Such consideration must occur in the context of the hearing required by that section. The consideration required of the panel is that of the application for review of the declaration[28] - not just consideration of the guidelines handed to a member of the panel with a blank report form.

59 The constitution of the panel under the Act also suggests that the panel's decision making process must be more than just that of carrying out individual assessments. If that was the case, there would be no need for a chairperson as required by s 98E. It may well be thought that the purpose of appointing a chairperson was to chair discussions between members of the panel conducting the review. It points squarely against a suggestion of "a double blind test", to use Mr Strauch's expression.[29]

60 If it had been the intention of the legislature to mandate that individual assessments be carried out and no more, then it could easily have said so. What it did, to the contrary, was to require a review of the declaration which needed consideration by the panel after a hearing.

61 Moreover, if the panel's submissions are correct, both the relevant Council and the dog's owner are denied the benefit of the panel "considering" all the evidence in carrying out the review as the Act requires: s 98F(1)(a). This may well be significant.

62 In Tickner v Chapman[30] Kiefel J said:

"To "consider" is a word having a definite meaning in the judicial context. The intellectual process preceding the decision of which s. 10(1)(c) speaks is not different. It requires that the Minister have regard to what is said in the representations, to bring his mind to bear upon the facts stated in them and the arguments or opinions put forward and to appreciate who is making them. From that point the Minister might sift them, attributing whatever weight or persuasive quality is thought appropriate".

63 Each of the members of the panel is an expert in canine matters. Even they could not reach a unanimous decision. Each had different views as to why the dog was or was not a restricted breed dog. The requirement under the Act that the panel review the declaration is frustrated if there is no joint consideration. The consideration extends not only to their own examinations and use of the guidelines, which can be the subject of rational discussion between them, but also to other evidence and submissions which may persuade them one way or another as to the ultimate outcome.

64 In my view, when s 98D, s 98E and s 98F of the Act are read together, the conclusion that must be reached is that the panel was obliged to conduct a hearing and then, after receiving all relevant material, consider as a panel whether the declaration was to be affirmed or set aside.

65 The matters relied upon by Mr Golombek are not in my view persuasive. Whilst it is correct that the panel is entitled to regulate its own procedure (s 98F(3)), this does not entitle it to depart from the terms of the Act. The procedural provisions entitle it to conduct a hearing as it sees fit and would, of course, have entitled each of the members of the panel to carry out an examination of the dog individually. Such a provision cannot, however, cut across the substantive provisions of the Act, nor can it restrict the application of the principles of natural justice[31] unless it does so explicitly.

66 Mr Golombek also relied upon the Act stipulating that a decision must be by a majority: s 98F(2). He contended that this pointed to the necessity for independent reviews. I do not accept this submission. It is in my view by no means illustrative of an intent to limit the process to one involving individual examinations of a dog and no more. All it does is provide an emphatic legislative solution in the event of a split decision.

67 I return again to the point that if the legislature had wished to stipulate that individual assessments only were to be the hallmark of a review, it could easily have said so.

68 I am not persuaded by the "overburdened" argument put by Mr Golombek. It was said that panel hearings would become lengthy, cumbersome and overburdened by expert witnesses. The panel would have to evaluate the evidence and make findings. A similar submission was made to the Court of Appeal in respect of a medical opinion in Masters v McCubbery.[32] In that case, the legislative scheme spoke far more compellingly of a panel simply carrying out a medical examination and providing an opinion. Although the Court in Masters was concerned with the question of whether natural justice was excluded by the legislation, it rejected the proposition that the right to present a case and to obtain a fair hearing was, in some way, to be displaced by the threat of the process being lengthier or involving more material than if it was carried out summarily. Here, I am of the same view. Indeed in a practical sense the facts of this case demonstrate the fallacy of the argument. The relevant witnesses, parties and the panel were all at the pound offices - all that was needed was a hearing in accordance with the Act.

69 There is one other matter that needs to be considered. If the panel's submissions are accepted, then the only criteria for determining whether a dog lives or dies are the guidelines drawn up by DPI. Arguably, the most persuasive evidence as to the parentage of the dog, i.e. evidence from the breeders of the dog, would be ignored. Other expert evidence, such as the veterinarian Watt tried to lead, would also be ignored. DNA evidence which, in this day and age, may well be telling, would also be placed in the same basket.

70 It is therefore my view that the analysis argued for by the panel would lead to both capricious and unjust results. It is not in conformity with either the statutory intent nor the terms of the statute. I am reinforced in this view by my subsequent analysis of whether the plaintiff was afforded natural justice.

71 I should, perhaps, add this comment. It seems clear from the evidence that the procedures adopted were dictated by DPI officer, Moore, who provided the reports and guidelines to the panel members, cut off Watt from giving evidence, then supervised the inspections of the dog, collected the reports and then wrote out the decision. I do not suggest that there was any impropriety on the part of Moore, indeed he may well have been acting out of a sense of misguided altruism. Whatever the case, the provisions of the Act were not complied with.

72 In the result, I am satisfied that the panel did not perform its task in accordance with law and that the decision of the panel should be quashed. I turn now to the second ground argued by the plaintiff:- that there was a denial of natural justice.

73 In Keller v Bayside City Council,[33] Batt J said as follows:

"The law in Australia now is (as indeed the respondents accepted) that there is a strong presumption that an administrative or executive decision-maker, the repository of statutory power, owes a duty to accord procedural fairness, and in particular a 'hearing' in some form or other, to any person affected or likely to be affected by the decision, and not merely in respect of a legal or proprietary interest, even though that person is not directly involved in the decision-maker's proceedings; and a clear contrary legislative intent is required to rebut the presumption."[34]

74 The express terms of the review provisions (s 98D, s 98E and s 98F) make no reference to natural justice and particularly none to its exclusion. Given the state of the authorities and the fact that the panel was a repository of statutory power, Mr Golombek could hardly contend that the panel was not bound to afford the plaintiff some measure of natural justice. He accepted that this was the position. However, he argued that the only necessary ingredient was an absence of bias on the part of the panel, no more.

75 Kioa v West[35] makes it clear that natural justice is a protean concept. Procedural fairness

"depends on the circumstances of the case and they will include, inter alia, the nature of the enquiry, the subject matter, and the rules under which the decision-maker is acting".

76 Contrary to the submission made by Mr Golombek, I think that the structure of Division 7 of the Act points squarely to the fundamental pillars of natural justice being afforded to the plaintiff or persons in her position at the review level. Those twin pillars are:

(a) the right to be heard before a decision adverse to one's interests is made - the audi alteram partem rule; and

(b) the right to be heard by a decision-maker whose mind is open to persuasion - the rule requiring an unbiased hearing (this is not an issue on this application: There is no suggestion of either actual or ostensible bias).

77 The two tier stage of the process of identifying a restricted breed dog under the Act is indicative that at the review level natural justice must be afforded. At the primary level, that of the ranger making the declaration under s 98A, there may be no requirement or, a minimal requirement, to afford natural justice to the plaintiff.[36] Courts have regularly recognised that where there are different steps in reaching a final determination, then it is the process viewed in its entirety which is to be examined:

"It is not in doubt that, where a decision-making process involves different steps or stages before a final decision is made, the requirements of natural justice are satisfied if 'the decision-making process, viewed in its entirety, entails procedural fairness'".[37]

78 I think it likely that the only obligation in the statutory scheme upon the ranger was to give the plaintiff "the opportunity to put one's point of view orally or in writing".[38] This he did. It is understandable that the plaintiff did not proceed with the judicial review of the ranger's declaration. Subsequent to that declaration, the plaintiff had an unfettered right of review via s 98D of the Act.

79 It was, however, at the next step - the review process - that the plaintiff was entitled to be afforded procedural fairness. I can see nothing in the terms of the Act or, for that matter, the specific review provisions which lead to an implication that the only requirement of natural justice was that of an absence of bias.

80 There are no plain words of necessary intendment which exclude a general (not limited) obligation to afford procedural fairness to the plaintiff: s 98D, s 98E and s 98F. In Masters Winneke P said:

"It would be surprising, in my view, if the Parliament when investing medical panels with the conclusive power of resolving disputes which affect the rights of the parties to those disputes, also intended to invest them with the power to do so without according fairness to the parties".[39]

81 In my view, it would be equally surprising that Parliament did not intend to afford fairness to the parties in the present case where a panel is set up specifically to review a declaration made by a ranger. It is anything but "unambiguously clear" that the panel exercising powers pursuant to s 98E and s 98F does not have an obligation to comply with the relevant rules of natural justice, not limited merely to an absence of bias.

82 Indeed Mr Golombek's submission that the only aspect of natural justice that required consideration was that of an absence of bias is contrary to settled principle. In Twist v Randwick Municipal Council[40] Barwick CJ stated:

"The common law rule that a statutory authority having power to affect the rights of a person is bound to hear him before exercising the power is both fundamental and universal".

83 In Calvin v Carr[41] Lord Wilberforce delivering the judgment of the Privy Council said:

"Those concerned know that they are entitled to a full hearing with opportunities to bring evidence and have it heard".

84 This was the entitlement which the plaintiff had in this case.

85 The relevant statutory provisions, s 98D, s 98E and s 98F, as I have discussed, also point to this conclusion.

86 Natural justice demanded the affording of a proper hearing[42] in the following respects:

(a) The plaintiff being able to freely adduce evidence for the consideration of the panel;

(b) The plaintiff being given the opportunity to make submissions in relation to the panel's findings;

(c) The proper consideration of all the evidence (including its members' own examinations and opinions) by the panel.[43]

87 It is clear, beyond doubt, that no proper hearing was afforded to the plaintiff. The members of the panel simply examined the dog and then determined whether it did or did not conform with DPI guidelines. Evidence given or submissions by the plaintiff were disregarded and the veterinarian, Watt, was cut off by a non-panel member when giving evidence. Smith, the ranger who made the declaration, did not give evidence although in the room. The hearing and the processes underlying the hearing were not conducted by the chairperson, but rather by a non-member of the review panel, an officer of DPI. The whole process was conducted not as a hearing but as an investigation by DPI aided by three expert witnesses.

88 In my view, the plaintiff was not afforded natural justice as the law required. She should have been afforded a proper hearing in appropriate circumstances. Her evidence should have been taken into account. She should have been able to adduce whatever evidence she desired from the veterinarian which the panel should have considered. He should not have been prevented from giving evidence; particularly when the interdiction was that of someone other than a member of the panel. Given that the ranger was present, it may have been appropriate to permit her to question the ranger. All of this was specifically denied her. The panel then, as a whole, should have considered all the evidence - not just a consideration of whether the guidelines had been adhered to - and then reached a decision. The whole procedure was flawed.

89 I should add that there was nothing wrong, in my view, in each of the experts individually examining the dog. Clearly, that was appropriate and, equally as clearly, reference to the guidelines was appropriate. What was patently wrong was to regard that exercise and that exercise alone as the fulfilment of the panel's obligations in reviewing the declaration of the ranger, Smith.

90 A denial of natural justice constitutes an error of law with the consequence that the voidable decision is then deemed to be void ab initio: Forbes v New South Wales Trotting Club. [44]

91 It follows that on this ground also the decision of the panel should be quashed.

(a) That in reaching its decision that the dog was a restricted breed dog, the panel did not comply with the provisions of s 98E and s 98F.

(b) The panel did not afford the plaintiff natural justice or procedural fairness in the manner in which it dealt with the application for review of the declaration.

93 There is no reason to not exercise my discretion to grant the relief sought by the plaintiff. A fresh review should be conducted by a differently constituted panel.

(1) That the plaintiff have leave to amend the grounds of the originating motion to include the following ground: That the application for review of a declaration by the panel and the decision thereof was not made in accordance with the provisions of s 98D, s 98E and s 98F of the Domestic (Feral and Nuisance) Animals Act.

(2) That the decision of the panel be quashed and the application for review of the declaration be remitted to the Minister for the convening of a review panel pursuant to s 98E(1) and determined according to law.

(3) That such application for review be heard by a differently constituted panel.

(4) That the claims for relief against the Mornington Peninsula Shire Council be dismissed.

95 I will consider applications for costs by the parties and the question of whether to maintain the orders of Robson J of 20 August 2007.

I certify that this and the 20 preceding pages are a true copy of the reasons for Judgment of Forrest J of the Supreme Court of Victoria delivered on 14th December 2007.

[1] Affidavit of Ryan James Smith [8] and [9]. See also plaintiff's affidavit [2].

[2] Affidavit of Ryan James Smith [17].

[3] Affidavit of Ryan James Smith [16].

[4] Affidavit of Ryan James Smith [21].

[5] Affidavit of Ryan James Smith [27].

[6] Affidavit of Ryan James Smith [30], [32] and [33].

[7] Affidavit of Ryan James Smith [35], [38], [44].

[8] Affidavit of Ryan James Smith [51}.

[10] Exhibit RJS11 to Smith's affidavit.

[11] Affidavit of Peter Luitjen [3] and [4].

[12] Exhibit PL2 to affidavit of Peter Luijten.

[13] Affidavit of Gordon Watt [3] - [9].

[14] Affidavit of Peter Luijten [14] and [19].

[15] Exhibit PL4 to Luijten's affidavit.

[17] A legal non-entity - it was removed as a party.

[30] [1995] FCA 1726; (1995) 57 FCR 451 at 495.

[31] See BHP Billiton v Schultz [2004] HCA 61; (2004) 221 CLR 400 at [253].

[32] [1995] VICSC 209; (1996) 1 VR 635 at p.640

[33] [1996] VicRp 23; [1996] 1 VR 356. See also Cornall v AB [1995] VICSC 7; [1995] 1 VR 372; Johns v Australian Securities Commission [1993] HCA 56; (1993) 178 CLR 408.

[35] [1985] HCA 81; (1985) 159 CLR 550 at pp. 584 - 585, see also Haoucher v Minister of Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648 at p.672.

[36] In Gubbins v Wyndham City Council [2004] VSC 238; (2004) 9 VR 620, Hansen J found that there was a minimal requirement.

[37] Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 578, see also South Australia v O'Shea [1987] HCA 39; (1987) 163 CLR 378 at p.389.

[38] Masters v McCubbery supra at p.654 per Callaway JA.

[40] [1976] HCA 58; (1976) 136 CLR 106 at pp. 109-110; see also Heatley v Tasmanian Racing & Gaming Commission [1977] HCA 39; (1977) 137 CLR 487 at pp.498-499.

[41] [1979] UKPC 1; [1980] AC 574 at p.597.

[42] Ridge v Baldwin [1963] UKHL 2; [1964] AC 40 at 132; John v Rees (1970) Ch 345.

[43] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 367; General Medical Council v Spackman [1943] AC 627 at 635.

[44] [1979] HCA 27; (1979) 143 CLR 242