Isbester v Knox City Council [2015] HCA 20: Decision Making Bias in Destruction of Dogs
Wednesday 10 June 2015 @ 11.32 a.m. | Legal Research
Today (10 June 2015), the High Court has delivered judgment in the case of Isbester v Knox City Council [2015] HCA 20, a legal battle to save four-year Staffordshire terrier Izzy from death row.
Background to the Case
The appellant had been convicted in the Ringwood Magistrates' Court of an offence under s 29(4) of the Domestic Animals Act 1994 (Vic) (The Act).
The respondent council in Melbourne ordered that Izzy should be destroyed after the dog escaped from its backyard home and bit a stranger on the finger in 2012, causing a half-inch laceration. The dog was reportedly also involved in two other attacks in June 2013. Tania Isbester, the dog owner and appellant, pleaded guilty to charges over the original incident in a local court and the council subsequently decided that Izzy should be killed. The dog was seized by the respondent in June 2013 and has been kept in a cage at an animal shelter.
Following a hearing before a panel, a delegate of the respondent who had been a member of that panel made a decision under s 84P(e) of the Act that the appellant's dog be destroyed. Another member of the panel, who had participated fully in the panel's decision-making process following the hearing and drafted the reasons for the decision, was an employee of the respondent whose duties involved the regulation of domestic animals under the Act. She had been substantially involved in the prosecution of the charge in the Magistrates' Court.
The Supreme Court of Victoria
The appellant, unsuccessfully, sought judicial review of the respondent's decision in the Supreme Court of Victoria. The appellant's appeal to the Court of Appeal of the Supreme Court of Victoria was limited to the ground of apprehended bias. The Court of Appeal found that the ground was not made out and dismissed the appeal. By grant of special leave, the appellant appealed to the High Court.
Decision of High Court
In what is believed to be the first case of a dog execution to go before the nation's highest court, the High Court unanimously allowed the appeal.
The Court found that a fair-minded observer might reasonably apprehend that the respondent's employee might not have brought an impartial mind to the decision to destroy the appellant's dog, because her role in the Magistrates' Court proceedings gave her an interest that was incompatible with her involvement in the decision?making process of the panel. The Court found that, although another member of the panel was responsible for making the decision to order the destruction of the dog, there was still an apprehension that the involvement of the respondent's employee in the Magistrates' Court prosecution might affect not only her own decision-making, but also that of the other members of the panel. The Court found that natural justice required that she not participate in making the decision, and that the decision of the respondent's delegate must therefore be quashed.
Barrister Graeme McEwen, founder of the Barristers Animal Welfare Panel and one of the lawyers working pro bono to help Ms Isbester, described the case as a "David and Goliath" contest.
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