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[2023] ACTSC 247
Supreme Court of the ACT
2023-09-07
Curtin AJ
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Authorised report: 20 ACTLR 220
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: Pye v Registrar, Domestic Animals Act 2000 Citation: [2023] ACTSC 247 Hearing Date: 14 August 2023 Decision Date: 7 September 2023 Before: Curtin AJ (1) Order 1 of the Appeal Tribunal made on 30 November 2022 Decision: is set aside. (2) Order 2 of the Appeal Tribunal made on 30 November 2022 is set aside. (3) In lieu of Order 2 of the Appeal Tribunal made on 30 November 2022 I order that Order 1 made by the Tribunal in AT 7/2022 and AT 8/2022 on 10 May 2022 is confirmed. (4) The proceedings are remitted to the Appeal Tribunal for a rehearing limited to the question whether the dog “Buddha” should be euthanised or whether some other orders should be made. (5) The appellant is granted leave to adduce further evidence on that rehearing.
Catchwords: APPEAL – ACT CIVIL AND ADMINISTRATIVE TRIBUNAL – Appeal Division – Domestic Animals Act 2000 – decision to destroy dangerous dog confirmed by original and appeal tribunal – whether appeal tribunal erred in deciding to hear appeal as a review – whether there was jurisdictional error – procedural unfairness – whether the procedural unfairness was material – appeal upheld in part Legislation Cited: ACT Civil and Administrative Tribunal Act 2008 (ACT), ss 7, 82, 86 Court Procedures Rules 2006 (ACT), r 5052 Domestic Animals Act 2000 (ACT), ss 36, 53C, 68A, 74 BVD17 v Minister for Immigration and Border Protection [2019] Cases Cited: HCA 34; 268 CLR 29 Dranichnikov v Minister for Multicultural & Indigenous Affairs [2003] HCA 26; 77 ALJR 1088 EB & Ors v Guardianship Tribunal & Ors [2011] NSWSC 767 Goodwin v Amelie Housing ACN 103 181 700 (Appeal) [2023] ACAT 10 Mansour v Dangar [2017] ACAT 49 MZAPC v Minister for Immigration and Border Protection & Anor [2019] FCA 2024 Nathanson v Minister for Home Affairs [2022] HCA 26; 96 ALJR 737 Pye v Registrar, Domestic Animals Act 2000 (Appeal) [2022] ACAT 102 Stead v State Government Insurance Commission (1986) 161 CLR 141 Parties: Lisa Jane Pye (Appellant) Registrar, Domestic Animals Act 2000 (Respondent) Representation: Counsel B Nolan (Appellant) A Costin (Respondent) Solicitors Animal Defender’s Office (Appellant) ACT Government Solicitor (Respondent) File Number: SCA 3 of 2023 Decision Under Appeal: Court/Tribunal: ACT Civil and Administrative Tribunal Before: President Neate AM; Member Delahunt Date of Decision: 30 November 2022 Case Title: Pye v Registrar, Domestic Animals Act 2000 (Appeal) Citation: [2022] ACAT 102 Court File Number: AA 12/2022
CURTIN AJ: Introduction
This is an appeal from a decision of the ACT Civil and Administrative Tribunal (ACAT), Appeal Tribunal (the Appeal Tribunal) dismissing an appeal from a decision of the Tribunal (the Original Tribunal) that the appellant’s dog named Buddha be euthanised and that the appellant’s special licences which allowed her to keep two declared dangerous dogs be cancelled.
In its simplest terms, the appellant says she was denied procedural fairness at the initial hearing before the Original Tribunal and that the denial of procedural fairness was not cured on appeal to the Appeal Tribunal.
In my opinion the appellant was denied procedural fairness before the Original Tribunal as submitted, and this denial of procedural fairness was not (and should have been) cured before the Appeal Tribunal.
As the denial of procedural fairness only related to the order to euthanise Buddha (what was called Order 3) and did not go to the issue of cancelling the appellant’s special licence allowing her to keep a dangerous dog (what was called Order 1), the appeal is upheld only in relation to Order 3.
My reasons are as follows.
Background
The appellant, Ms Pye, was the owner of two male Pitbull cross-breed dogs called “Buddha” and “Tonner”. Tonner has since been rehomed and no further reference needs to be made to him other than to explain some historical facts.
The respondent is the Registrar appointed under the Domestic Animals Act 2000 (ACT) (the DA Act).
On 3 and 4 March 2020, the appellant took Tonner and Buddha to the RSPCA for treatment for various injuries resulting from a fight between them. The dogs were not de-sexed but were required to be so under s 74 of the DA Act.
On 6 March 2020, the RSPCA reported the incident to Domestic Animals Services ACT (DAS).
This resulted in DAS carrying out a compliance check on the dogs, which established that both dogs were sexually entire. It is unlawful to keep a dog that has not been de-sexed without a permit and the applicant did not hold such a permit.
On 6 March 2020, the Registrar issued the applicant with a Notice to Comply regarding Tonner and Buddha being sexually entire. That is, the dogs were required to be desexed. The appellant did not comply.
On 19 October 2020, the Registrar issued the appellant with a second Notice to Comply regarding Buddha being sexually entire. The appellant did not comply.
On 19 January 2021, the Registrar issued the appellant with a third Notice to Comply regarding Buddha and a further Notice to Comply regarding Tonner. The appellant again did not comply.
On 4 February 2021, the dogs were seized and impounded by DAS.
Whilst seized, the Registrar had Buddha’s temperament assessed by Mr Bruna Grutzner of the Balanced Dog Academy. Mr Grutzner opined that Buddha was a confident dog with no environmental issues. Mr Grutzner said that he observed no behaviours at that time that indicated stress, lack of confidence or avoidance. Nevertheless, Mr Grutzner opined that Buddha was unsuitable to be out in public, and unstable, and should be euthanised.
On 21 April 2021, and after an investigation into a series of documented complaints of aggressive, roaming and harassing behaviour by the dogs, the Registrar made decisions under s 68A of the DA Act for both dogs to be euthanised.
The applicant applied to ACAT for a merits review of the Registrar’s decision.
On 20 August 2021, ACAT set aside the Registrar’s decision to euthanise both dogs and declared them to be dangerous dogs under the DA Act.
On 23 August 2021, the dogs were de-sexed.
On 9 September 2021, Ms Pye was issued with dangerous dog licences for Buddha and Tonner. The dogs were released to her that day.
The conditions of the licence included that the dogs had to be kept at the appellant’s then premises at Bonner (with certain requirements to ensure the dogs could not escape from those premises) and when out in public the dogs were required to be muzzled, kept on a leash, wear a dangerous dog collar and be under the effective control of the appellant or an adult. The licenses said that: Failure to comply with any of these conditions may result in the cancellation of the Dangerous Dog Licence, seizure of the declared dangerous dog, the issuing of infringement notices and/or possible prosecution action.
On 30 September 2021, the appellant received an eviction notice. The result was that she ceased living at the Bonner address specified in her special licences, but she did not inform the Registrar. The failure to keep the dogs at the address specified in the licenses was a breach of the licenses. This led to much vexed correspondence between the Registrar and the appellant, but which does not require exploration here.
On 24 November 2021, at about 4:40pm, Ms Pye, with Buddha, walked into the underground carpark of the apartment block where she was staying in Cape Street, Dickson.
Buddha was on a lead attached to a chest harness. The dog was not muzzled and was not wearing a dangerous dog collar.
As Ms Pye approached her car, she let go of the lead while she unlocked the vehicle and unloaded what she was carrying.
At that time, Mr Yipu Li had just parked his car on the same level and was walking from the car. He was accompanied by a female companion and was walking slightly ahead of her.
Buddha ran at Mr Li from behind and bit him on the back of his right thigh. The bite left three puncture wounds. The attack was unprovoked.
Buddha then turned and ran back to Ms Pye.
On 24 November 2021, at about 6:52pm, Mr Li called DAS and reported the incident.
On 26 November 2021, DAS rangers seized Buddha.
On 2 December 2021, DAS arranged for another behavioural assessment to be undertaken by Mr Grutzner on Buddha. Mr Grutzner terminated the assessment after Buddha bit his forearm two or three times. Mr Grutzner assessed Buddha as being stressed, fearful and lacking in confidence. Mr Grutzner said that these attributes made Buddha’s behaviour unpredictable and therefore more dangerous. He concluded that Buddha was unsuitable to be returned home or to be rehomed to another person.
On 6 January 2022, the Registrar decided to cancel the appellant’s dangerous dog licences and to euthanise Buddha. The Registrar sent a Notice of Decision to Destroy dated 6 January 2022 to Ms Pye. In that Notice, the Registrar advised that having considered the incident on 24 November 2021 when Buddha attacked a person even though unprovoked, and the attack caused injury, he had decided under s 53C of the DA Act to euthanise Buddha.
On 14 January 2022, Ms Pye applied to ACAT for a merits review of the Registrar’s decision to cancel the appellant’s special licences and to euthanise Buddha.
On 21 February 2022, Ms Eleni Butler, a professional dog trainer assessed Buddha at Ms Pye’s request. The assessment was conducted at DAS premises.
At that time the appellant was refused entry to the DAS premises because of her previous unsatisfactory behaviour towards DAS staff and Covid restrictions.
At the time of that assessment, and because of the exclusion of Ms Pye, Ms Butler could not conduct the full the assessment she desired to conduct. The part of the assessment Ms Butler could not conduct was to observe Ms Pye and Buddha together so that she could assess Ms Pye’s relationship with Buddha and her capability to “handle a dog of that calibre”. According to Ms Pye’s evidence, Ms Butler would have attempted to see whether Buddha would “intensify” more with Ms Pye than with a handler at DAS.
One fact in issue in the proceedings was Buddha’s temperament. A second was whether it would be possible to rehabilitate, retrain or rehome Buddha on the assumption his temperament was found wanting. Both were relevant to the discretionary decision whether to make an order to euthanise Buddha, or whether there were reasonable steps that could be taken to mitigate the risk Buddha posed to the public or another animal (see Pye v Registrar, Domestic Animals Act 2000 (Appeal) [2022] ACAT 102 (the Reasons) at [166]-[168]).
Mr Grutzner, for the respondent, was given the opportunity to complete the assessment he desired, to reach opinions and to give evidence in relation to both of those issues. He opined that Buddha was “unsuitable and unstable to be in public” and should be euthanised. He said that Buddha was not a suitable dog to be returned home or rehomed. He gave oral evidence that whilst every dog is trainable, the real question was how far a dog is trainable (the inference being that Buddha could not be trained enough).
The appellant was not given the same opportunity to present the expert evidence that she desired to present, namely a full behavioural assessment by Ms Butler.
That a full behavioural assessment (meaning including an assessment in the presence of the appellant) was relevant expert evidence to the two issues referred to above was apparent from the following evidence of Ms Butler which was before the Original and Appeal Tribunals.
In Ms Butler’s report Ms Butler said: … a full behaviour profile could not be completed due to the owner of Buddah, Lisa Pye, not being allowed to partake in the second part of the assessment. Conclusion: As a full assessment was unable to be completed due to the dismissal of Buddahs [sic] owner, Lisa, not being able to attend a session, we attempted to do both offsite and onsite but both were rejected, I feel that the full spectrum of the assessment was unable to be obtained. … Buddha is food motivated which is an important part of training, desensitisation and counter conditioning. …. It is of [sic] my opinion that Buddha has the ability to be inducted into a behaviour modification program and under the right guidance with a strong handler he can be retrained to behave in a more acceptable [manner] and to be safe out in public.
Ms Butler gave the following oral evidence-in-chief on that issue to the Original Tribunal: … Unfortunately, because the second part of the assessment wasn't able to be done, i.e., with you (the appellant) and Buddha, to see how his relationship is with you and your abilities to be able to do it, I can't say that it's going to be a quick turnaround time where he will be obviously better because I wasn't able to assess that.
In cross-examination Ms Butler said: So this is why I needed the second part of the assessment to be done to actually see his relationship with her (the appellant). Does he intensify more with her than what he does with handler at Domestic Animal Services?
The following exchange also took place in the cross-examination of Ms Butler: And what I suggest to you, Ms Butler, is that it is recommended for assessments such as this one not to have the owners present, isn't it? --- No, it is to have the owners present. If I need to make a full assessment on a dog I need to know whether that owner has got the relationship and the capability to handle a dog of that calibre. All right. We know that you didn't have the opportunity? --- That's correct.
In her assessment, Ms Butler found that Buddha appeared to be a relatively comfortable and confident dog and observed that the dog may be more comfortable in the presence of a female and may behave differently when assessed by male. She considered that Buddha could be retrained to behave in a more acceptable manner and to be safe out in public.
It is appropriate at this point to divert briefly to discuss procedural fairness.
Procedural Fairness
It was the refusal of DAS to allow Ms Pye access to the DAS premises when Ms Butler was conducting her assessment, and therefore prevented Ms Butler from performing the full assessment she desired, that founds the allegation of denial of procedural fairness.
That is, Ms Pye was denied the opportunity to obtain and then tender all of the evidence she wished to obtain and tender before the Original Tribunal.
At common law, the rules as to procedural fairness broadly include three rules: the hearing rule; the bias rule and the ‘no evidence’ rule.
The hearing rule is basically that a decision-maker must give to a person whose interests may be adversely affected by a decision an opportunity to present his or her case. In the ACAT that common law requirement for procedural fairness is given statutory force by s 7 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) which says: 7 Tribunal Principles In exercising its functions under this Act, the tribunal must— (a) … (b) observe natural justice and procedural fairness. (emphasis added)
As was said by McCarthy PM in Goodwin v Amelie Housing ACN 103 181 700 (Appeal) [2023] ACAT 10 at [70], correctly with respect: The alleged error raised for consideration what is sometimes described as the hearing rule, meaning what is required to conduct a hearing in a procedurally fair manner. Generally speaking, the hearing rule entails three minimum requirements: (a) … (b) … (c) an opportunity to comment on that information and present the individual’s own case.
Of higher authority is Edelman J in BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; 268 CLR 29 wherein his Honour said at 47; [45] (footnotes omitted): When a decision-maker exercises a statutory power that would affect the rights or liabilities of another person, questions arise as to how that power should be exercised. The “hearing rule” is an expression, or more commonly an implication, in a statute of a requirement of procedural fairness in the exercise of that statutory power. The implication will always depend upon the legislative intention; although where a power is conferred without express qualification, it will usually involve an implication that the power be exercised by respecting those requirements of justice that natural reason would require having regard to all of the circumstances. At a high level of generality, one of the requirements that will inform the terms of any implication, subject to the terms and context of the statutory power, will often be the principle based upon conventional assumptions to which the common law gives effect that a person should have a “reasonable opportunity of presenting [their] case”. (emphasis added)
The reasonable opportunity to present one’s case includes, almost self-evidently, the reasonable opportunity to gather the evidence one wishes to present. In EB & Ors v Guardianship Tribunal & Ors [2011] NSWSC 767 Hallen AsJ (as his Honour then was) said at [303]: Similarly, the review of the guardianship order in February 2010, without having given the first and second plaintiffs a reasonable opportunity to obtain such evidence in opposition to the application as well as a reasonable opportunity to consider, and respond to, all of the evidence that was to be relied upon in the review application is also an error of law on the part of the Tribunal and demonstrates a denial of procedural fairness.
Ms Pye was denied that opportunity.
It should immediately be noted that Ms Pye was a difficult person to deal with for the staff of DAS and unnecessarily increased the difficulty for those people to comply with their obligations under the DA Act. The Original Tribunal noted that she nursed deep-seated feelings of anger and resentment towards DAS.
At the same time, Ms Pye suffered difficulties not of her making. As the Appeal Tribunal noted, Ms Pye had suffered personal difficulties, including eviction and mental health challenges.
Self-evidently, Ms Pye felt deep affection for her dogs and feared losing them.
Notwithstanding those difficulties, Ms Pye should not have treated DAS staff as she did.
DAS, however, was not blameless.
The Appeal Tribunal noted at [40] of its Reasons: The Appeal Tribunal accepts that the DAS has difficult work to perform to ensure compliance with the DA Act and Dangerous Dog Licences, and that it was not easy to deal with the persistent and numerous requests from Ms Pye. However, although the volume of Ms Pye’s email and voice call requests to DAS could be viewed as excessive, the delayed or lack of response by DAS to some of those requests, and the occasional erroneous response, are instances of administrative failure.
Historically, the Registrar had failed to comply with directions made by the Tribunal. The Appeal Tribunal noted this and said at [87]-[89]: 87. On 21 May 2021, a Senior Member of the tribunal ordered that: The respondent [the Registrar] shall provide access by a vet and/or an animal behaviour assessor, either together or separately, to the dog “Buddha” for the purpose of assessment of the dog’s health and behaviour. Such access shall be provided on or before 31 May 2021, and the applicant shall give the respondent 24 hours’ notice of the time and date for access by email to dogcontrol@act.gov.au. 88. Ms Pye arranged for a vet to attend, and the booking was confirmed for Tuesday, 25 May 2021 at 9:15am. However, when the vet arrived he was turned away, apparently on the basis that DAS would not allow him to enter because they wanted their vet to be present and because the visiting vet was not wearing appropriate footwear. They offered to re-book the appointment for Friday, 28 May 2021. 89. The matter returned to the Senior Member on 27 May 2021. Ms Pye advised that she was having difficulty obtaining the services of a vet who would attend DAS premises by the relevant date or, perhaps, at all. The Senior Member said that she was “appalled” at the behaviour of DAS, and observed that it was never a condition of the tribunal’s order that a DAS vet be present. Accordingly, that was not a reasonable excuse to fail to comply with the tribunal’s order. Instead, the tribunal’s orders were “subverted” and “frustrated.” The inability of the vet to attend as scheduled appeared to have the consequence that Ms Pye was prevented from obtaining evidence to present to the tribunal to ensure that she had a fair hearing, by being able to put her case and to test the evidence put by the Registrar. The Senior Member also criticised the behaviour of DAS as being inconsistent with a government entity’s obligation to be a model litigant. (emphasis added) A Return to the Background
On 10 May 2022, the ACAT (Original Tribunal) handed down its decision (the Original Tribunal Decision) and confirmed the Registrar’s decision.
The Appeal Tribunal in its reasons at [6]-[7] summarised the Original Tribunal’s decision as follows: 6. In relation to the cancellation of the special licence for Buddha, the Original Tribunal was prepared to accept that Ms Pye’s inability to comply with the condition requiring the dogs to reside and be contained at a particular address was caused by circumstances beyond her control. In those circumstances, she chose not to return the dogs to the Domestic Animal Service (DAS) while she tried to secure suitable alternative accommodation. Nor did she apply to the Registrar for approval to keep the dogs at an appropriate boarding kennel. Consequently, Ms Pye was in breach of that condition of the special licence in relation to Buddha from 30 September 2021 until 26 November 2021 when he was seized. The breach of that condition justified cancellation of the special licence, irrespective of other considerations. The seriousness of Ms Pye’s breaches was compounded by other specified facts. Accordingly, the Original Tribunal was satisfied that Ms Pye “repeatedly breached the conditions of the special licenses and failed to exercise responsible dog management or control giving rise to an unacceptable risk to the safety of the public.” The Original Tribunal was also satisfied that there were grounds under sections 36(1)(b)(ii), 36(1)(b)(iv), and 36(1)(b)(v) of the Domestic Animals Act 2000 (DA Act) to cancel the special licence permitting Ms Pye to keep Buddha. 7. In relation to the decision to destroy Buddha, the Original Tribunal described the circumstances of the attack by Buddha on Mr Yipu Li as bearing out the correctness of Mr Bruno Grutzner’s behavioural assessment of Buddha in February 2021 which led him to conclude that Buddha was dangerous and unsuitable to be rehomed. The evidence in total persuaded the Original Tribunal that Buddha was more dangerous at the time of the hearing than when Mr Grutzner assessed him in February 2021. The Original Tribunal had difficulty accepting Ms Eleni Butler’s evidence that Buddha can be rehabilitated. In the Original Tribunal’s view, a decision not to destroy Buddha would result in an unacceptable risk to the safety of the public and other animals. Consequently, the Original Tribunal was satisfied that the Registrar’s decision to destroy Buddha should be confirmed.
On 9 June 2022, Ms Pye lodged an application in ACAT to appeal the Original Tribunal Decision. She lodged an amended application on 23 June 2022.
The appellant noted that this appeal only concerned Buddha because Tonner had been rehomed and was no longer in the ownership of the appellant.
Before the ACAT appeal hearing took place, Ms Pye sought an interim order for a further full assessment to be conducted by a different dog behaviourist.
On 24 June 2022, at a directions hearing, the Appeal Tribunal made orders including a requirement that Ms Pye give the Registrar and the Appeal Tribunal by 8 July 2022 a description of any proposed further evidence for the hearing of the appeal and how such evidence would be obtained.
On 13 July 2023 Ms Pye sent an email to the Registrar’s legal representatives asking the Registrar to facilitate Ms Susan Turner-Davis, an expert dog behaviourist, conducting a temperament assessment of Buddha at a licenced boarding and training facility in Yass. DAS refused to transport Buddha to Yass.
Ms Pye attempted to arrange for the assessor to come to Canberra from Yass to assess Buddha on Ms Pye’s property or on DAS premises.
On 22 July 2022, the DAS advised Ms Pye that it would not make Buddha available for further assessment in Canberra at either premises.
Accordingly, no assessment was conducted by Ms Turner-Davis.
On 8 August 2022, Ms Pye’s appeal was heard by the Appeal Tribunal.
On 30 November 2022 the Appeal Tribunal made orders dismissing the appeal and confirming the Original Tribunal’s decision to revoke the special licences and to euthanise Buddha (the Appeal Tribunal Decision).
On 22 February 2023, Ms Pye filed an application in this Court seeking leave to appeal the Appeal Tribunal Decision out of time.
On 28 February 2023, McWilliam AJ granted Ms Pye leave to appeal to this Court. The Appeal Tribunal Decision
The Appeal Tribunal noted at [9] that the appellant’s amended application to appeal contained two grounds of appeal.
The first ground was an allegation that the Original Tribunal had not afforded her procedural fairness in that she was denied the opportunity to obtain a full assessment from Ms Butler. The second ground related to the alleged fact that reasonable steps could not have been taken to reduce the risk of Buddha endangering the public and other animals due to Covid lockdown. That second ground is not relevant to this appeal and need not be further mentioned.
Notwithstanding the Appeal Tribunal’s express reference to the denial of procedural fairness ground at [9] of its reasons, the Appeal Tribunal did not decide that ground.
In failing to do so the Appeal Tribunal fell into error because it failed to address and determine a live and substantive issue on the appeal. As Gummow and Callinan JJ said in Dranichnikov v Minister for Multicultural & Indigenous Affairs [2003] HCA 26; 77 ALJR 1088 at 1092; [24]: To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice.
Rather, the Appeal Tribunal considered whether, under s 82 of the ACAT Act, the Appeal Tribunal should deal with the appeal either as a new application or as a review of the Original Tribunal’s decision.
The Appeal Tribunal ultimately determined to hear Ms Pye’s appeal by way of review under s 82(1)(b). On this point, the Appeal Tribunal said the following at [16]-[20] of the Reasons (footnotes omitted): 16. All appeals are creatures of statute and the features (or incidents) of appeals can vary from statute to statute. Section 82(1) of the ACAT Act states: (1) An appeal tribunal may, as the tribunal considers appropriate, deal with an appeal— (a) as a new application; or (b) as a review of all or part of the original decision on the application by the tribunal. 17. The principles to be applied when determining which form of appeal is appropriate were considered by Presidential Member Daniel in Mansour v Dangar as follows: …. For a new hearing, established principles dictate that the hearing starts afresh. Evidence may be given again, and additional evidence may be given. The appeal tribunal’s view on any question of fact or law is determinative of the issue. Any discretion to be exercised by the original tribunal is exercised anew by the appeal tribunal. By contrast, for a rehearing, the appeal tribunal relies upon the evidence given to the original tribunal, supplemented by any additional evidence which the parties are given leave to adduce. The appeal tribunal’s findings on questions of law are determinative. The appeal tribunal will not lightly substitute its own findings of fact for the original tribunal’s primary findings of fact, but may be less constrained in relation to drawing inferences of fact. The appeal tribunal should not interfere with a discretionary decision unless satisfied that there has been an error in the exercise of discretion. … Applications for appeal raising only questions of law or confined questions of fact are most expeditiously dealt with as a rehearing, occasionally with further evidence admitted in relation to areas of factual dispute. By contrast, where there appears to have been a real failure of process at the original hearing, such as a failure to hear both parties, the appeal might be heard as a new application. In such circumstances, this approach is often the simplest, quickest and most inexpensive way to achieve a fair and just outcome. 18. As Presidential Member Robinson pointed out in the subsequent decision in Hamers v South Canberra Holdings Pty Ltd ACN 606 747 602 Trading as Southside Village, the usual approach of an appeal tribunal is to conduct a rehearing or review on the evidence before the original tribunal, plus any fresh evidence that, exceptionally, may be admitted. However, where there has been a failure of process during the first hearing, a new hearing may be the most appropriate means to address that. For example, an appeal tribunal might have to decide whether the circumstances of a particular case lead to the conclusion that the original hearing amounted to a denial of natural justice that is of such magnitude that a de novo hearing is required to address that injustice. It would be for the appellant to demonstrate an actual injustice. 19. On 24 June 2022, the tribunal made orders in relation to the hearing of this appeal. Order 8 included the statement that the appeal hearing would “proceed as a review of the original decision unless the Appeal Tribunal orders otherwise.” 20. There was no application for a hearing as a new application (or hearing de novo). Nor did the circumstances of this case warrant the unusual approach of starting afresh. Consequently, the appeal was conducted as a review (or rehearing) of the original tribunal’s decision. Later in these reasons for decision we consider whether the Appeal Tribunal should grant leave for Ms Pye to provide further evidence to support her appeal against the decision of the Original Tribunal. (emphasis added) Decision
Euthanising Buddha
A number of observations about these passages may be made.
First, the Appeal Tribunal was alive, in a general sense, to the potential issue of a denial of procedural fairness.
Second, the Appeal Tribunal, erroneously in my view, failed to perceive that the denial of procedural fairness I have described earlier in this judgment occurred.
Third, the Appeal Tribunal failed to consider and decide the appellant’s first ground of appeal, namely the denial of procedural fairness.
Fourth, the Appeal Tribunal was in error in saying at [18] of its Reasons that where an appellant established a denial of natural justice (a synonym for procedural fairness) the appellant would need to establish that that denial was of such magnitude that a de novo hearing was required to address that injustice, and that it would be for the appellant to demonstrate an actual injustice. That statement does not represent the law as I understand it.
In Stead v State Government Insurance Commission (1986) 161 CLR 141 a personal injury claim was heard by a judge alone. Evidence was given by a doctor called on behalf of the defendant that there was no connexion between the accident and the plaintiff’s claimed consequential neurotic condition. In submissions the judge told counsel for the plaintiff that he need not address the judge on the doctor’s evidence because his Honour did not accept the doctor’s evidence. Judgment was reserved, but when judgment was given the judge said that he did accept the doctor’s evidence.
The plaintiff appealed on the ground that, by stopping his counsel from addressing on the topic of the doctor’s evidence, the judge had deprived the plaintiff of an opportunity to present argument on a vital issue in the case.
The Full Court of the Supreme Court of South Australia dismissed the appeal on the basis that any further arguments and elaboration of argument which the appellant's counsel would have put could not have made any difference to the result.
Mason, Wilson, Brennan, Deane and Dawson JJ upheld the appeal in the High Court. Their Honours said at 145: The general principle applicable in the present circumstances was well expressed by the English Court of Appeal (Denning, Romer and Parker L.JJ.) in Jones v. National Coal Board, in these terms: There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge.... No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it. That general principle is, however, subject to an important qualification which Bollen J. plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility. (footnotes omitted)
Their Honours said that the general principle quoted above was subject to the important qualification that an appellate court will not order a new trial if it would inevitably result in the making of the same order.
Their Honours said that in those circumstances an appellate court would be very cautious in finding that a new trial would make no difference to the result already reached. Their Honours described the test to be applied at 147 as follows: All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility, it was, as we have said, necessary for the Full Court to find that a properly conducted trial could not possibly have produced a different result.
The issue was revisited in Nathanson v Minister for Home Affairs [2022] HCA 26; 96 ALJR 737 but with no departure from the principles in Stead.
In Nathanson the appellant was denied procedural fairness by the Administrative Appeals Tribunal. The question before the High Court being whether that procedural unfairness involved jurisdictional error.
Kiefel CJ, Keane and Gleeson JJ held at 741; [1] that the Tribunal’s error in failing to afford the appellant procedural fairness would have involved jurisdictional error only if that failure was material to the Tribunal’s decision. Their Honours said that materiality is established if the error deprived the appellant of a realistic possibility of a different outcome. Their Honours held at 741; [2] that the appellant was not required to articulate a specific course of action which could realistically have changed the result.
In a passage worth quoting in full their Honours said at 747-748; [32]-[34] (footnotes omitted): [32] As explained in MZAPC, the materiality of a breach requires consideration of “the basal factual question of how the decision that was in fact made was in fact made”. This question is determined by proof of historical facts on the balance of probabilities. Then, it is necessary to consider whether the decision that was in fact made could have been different had the relevant condition been complied with “as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined”. The burden falls on the plaintiff to prove “on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition”. [33] There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration. The standard of “reasonable conjecture” is undemanding. It recognises that a fundamental purpose of affording procedural fairness is to afford an opportunity to raise relevant matters which are not already obvious, or not liable to be advanced by the apparently persuasive “story” of the opposing party. Where a Tribunal errs by denying a party a reasonable opportunity to present their case, “reasonable conjecture” does not require demonstration of how that party might have taken advantage of that lost opportunity. Nothing said in MZAPC denies this. To the contrary, the standard of “reasonable conjecture”, correctly applied, proceeds on assumptions that are derived from the rationale for procedural fairness, namely that, if given a fair opportunity to present their case, a party will take advantage of that opportunity and that, by doing so, the party could achieve a favourable outcome. Proof of materiality in this case [34] This case is analogous to Stead v State Government Insurance Commission. There, the record before the intermediate appellate court showed that the plaintiff’s counsel was stopped by the trial judge from submitting that a witness’s evidence should be disbelieved. The witness had given evidence that there was no causal link between the plaintiff’s personal injury and a motor vehicle accident. In his judgment, the trial judge accepted the witness’s evidence and rejected the plaintiff’s case on causation. The realistic possibility of a different outcome was demonstrated on the face of those elements of the appellate record of the trial, without any evidence as to what counsel could have said if he had been allowed to complete his submission. Similarly, in this case the only historical facts that the appellant was required to prove appeared from the Tribunal’s reasons for decision.
As was said at [33], the test of reasonable conjecture is undemanding. As further explained at 749; [39], the appellant only needs to show that the additional evidence and submissions which could have been given could realistically have affected the Tribunal’s evaluative fact finding and ultimately the conclusion reached. Their Honours said that: …There was no need for the appellant to establish the nature of any additional evidence or submissions that might have been presented at the Tribunal hearing, had that hearing been procedurally fair. As a matter of reasonable conjecture, and as Wigney J reasoned, the appellant may have been able to present evidence on his own behalf or from his wife, and to make submissions that could have led to a different characterisation by the Tribunal of the nature of the appellant’s offending. That evidence and those submissions may have provided more detail about the domestic violence incidents, placing them in the relevant context or providing relevant detail. The possibility that the appellant could have presented more to the Tribunal about how the incidents were to be evaluated could not be foreclosed by what was already before the Tribunal. (emphasis added)
In other words, and with respect as more succinctly put in Stead, all that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility, it is necessary for the respondent to establish that a properly conducted trial could not possibly have produced a different result.
In relation to the latter point, the respondent submitted that the strength of the evidence against Buddha was such that the evidence not adduced from Ms Butler could not possibly have produced a different result.
The difficulty with that submission, of course, is that it is simply not possible to make that assessment in the absence (before me) of the evidence which the appellant desired to call from Ms Butler but which was not called due to the denial of procedural fairness.
That unfairness could have been cured on the appeal to the Appeal Tribunal. The Appeal Tribunal did turn its mind to the possible effect of an additional behavioural assessment in the context of allowing further evidence on the appeal. At [106]-[107] of its Reasons, the Appeal Tribunal said: 106. It is not possible to say whether any additional behavioural assessment would have led to a different outcome. As Ms Pye stated, the new evidence might have assisted the Appeal Tribunal to make a fair and proper decision. It might have confirmed the other evidence before the Original Tribunal. It might have been an “unfavourable” report. As no such evidence was produced before or at the time of the hearing of the appeal, neither the parties nor the Appeal Tribunal can say with certainty whether it could have affected the outcome of the appeal. 107. It is not for the Appeal Tribunal to speculate on such matters. No such evidence was available at the time of the hearing of the appeal. Even if it had been, there was no guarantee that it would have been received into evidence. The Appeal Tribunal cannot make a ruling in relation to evidence that does not exist.
In my view those statements were possibly correct in the sense that the Appeal Tribunal was considering whether further evidence should be allowed on the appeal, not whether the appellant had been denied procedural fairness before the Original Tribunal. Even so, I only say possibly because the appellant had taken further steps to attempt to obtain another behavioural assessment and had been unable to obtain one.
Therefore, at the end of the day, the Original Tribunal denied Ms Pye procedural fairness in relation to the order to euthanise Buddha. That matter was raised before the Appeal Tribunal which erroneously did not decide it. The unfairness resulting from the original procedural unfairness could have been cured on the appeal but was not.
The evidence identified by the appellant was material and could possibly have altered the result. Accordingly, there should be a new hearing on that issue with Ms Pye being given a reasonable opportunity to obtain and present the evidence she wishes to adduce on the discretionary decision whether Buddha should be euthanised. Cancelling the appellant’s special licence
As mentioned earlier, the appellant also appealed from the Appeal Tribunal’s dismissal of her appeal from the order made by the Original Tribunal cancelling the appellant’s special licence allowing her to keep a dangerous dog.
No complaint was made by the appellant in relation to that part of the Appeal Tribunal’s decision.
An appeal from the Tribunal under s 86 of the ACAT Act to this Court is governed by r 5052 of the Court Procedures Rules 2006 (ACT). That rule says: 5052 Appeals to Supreme Court—general powers (1) For an appeal to the Supreme Court, the court— (a) has all the powers and duties of the court or tribunal that made the order appealed from; and (b) may draw inferences of fact; and (c) may, on special grounds, receive further evidence about questions of fact, either orally in court, by affidavit or in another way; and (d) may make any of the following orders: (i) an order confirming, amending or setting aside the order of the court or tribunal appealed from; (ii) an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the court or tribunal in accordance with any direction the court considers appropriate; and (e) may make any other order that it considers appropriate.
No error has been asserted or demonstrated in relation to the dismissal of the appellant’s appeal regarding the cancellation of her special licence to keep Buddha.
There were good grounds for that cancellation. The appellant had failed to comply with the DA Act to obtain a permit to keep dogs which had not been de-sexed. She failed to comply with three notices to have Buddha de-sexed. She left the premises specified in her special licence and refused to inform DAS of her new address or where she was keeping Buddha, a declared dangerous dog. At the time Buddha attacked Mr Li the appellant was in breach of her licence as Buddha was not muzzled and the appellant let go of the leash in an area where other members of the public would frequent. In my view the appellant showed a wanton disregard of her obligations to other members of the public to keep them safe from a declared dangerous dog.
In all of those circumstances there is no warrant to provide the appellant with a second hearing on the cancellation of her special licence. She had one hearing and no error has been alleged in relation to it. Why then, I ask rhetorically, should she be given a second hearing especially in light of her conduct as summarised in [109] above?
Costs
Orders
I certify that the preceding one hundred and twelve [112] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Curtin. Associate: Date:
Pye
Registrar, Domestic Animals Act 2000 [2023] ACTSC 247
(1986) 161 CLR 141