Kerser wins leave to appeal: appeal fixed for 11 October 2013

kerser bigCroucher J of the Supreme Court of Victoria at 10am today determined to allow Kerser’s appeal against the Associate Justices’s refusal to grant leave (permission) to appeal, and fixed an early date of 11 October 2013 for hearing the appeal itself. It will be recalled that at the first VCAT hearing Jade Applebee lost her challenge to the City of Monash declaration that Kerser was a restricted breed dog. An Associate Justice of the Supreme Court then refused to grant leave to appeal from the VCAT decision. Without first such leave (or permission), there can be no appeal: an applicant (here Jade Applebee) amongst other things has to show there is a prima facie case for the appeal. The Panel arranged to appeal the decision to refuse to grant leave to appeal , and that was determined in Jade Applebee’s favour today. The appeal itself will now be able to proceed on 11 October 2013.

In brief summary, the history is as follows. On 4 December 2012 the City of Monash seized and impounded Kerser. On 11 December 2012 the Council gave notice to Jade Applebee that Kerser had been declared a restricted breed dog. On 3 April 2013 VCAT affirmed the Council’s declaration. On 29 May 2013 the Associate Justice refused the application for leave (permission) to appeal. In the afternoon of 3 June 2013, the Panel intervened to stop Kerser’s execution (pending filing of appeal papers) and agreed to takeover arranging counsel to conduct the appeal and any later re-hearing at VCAT. The appeal against the refusal to grant leave was heard and argued over two days on 6 and 7 August 2013. Croucher J today found that the Associate Justice had erred “in failing to conclude that there was a real or significant argument to be put” that VCAT had erred in basing its decision on an “overall impression” rather than whether there was a substantial or high level of compliance (the Dudas test) on Kerser’s part with the Standard: para 44 of reasons for judgement. Further, whilst the Court “was quite attracted to the idea” of determining the leave to appeal application and in addition the appeal itself at the same time, it concluded amongst other things that the appeal required a separate hearing to enable further and more detailed argument: para 89. However, Croucher J expedited the appeal by fixing it for hearing on 11 October 2013. Croucher J will hear the appeal.

In summary, the formal orders made were: allow the appeal against the Associate Judge’s order; set aside the order of the Associate Judge; grant leave to appeal against the order of VCAT; and direct the appellant (Jade Applebee) file and serve a notice of appeal against the VCAT order by 13 September 2013.

Panel Counsel Noel Magee QC and Anthony Klotz appeared for Jade Applebee, instructed by Daniel Beecher of Phoenix Legal Solutions. The Panel congratulates Noel Magee QC in particular for his advocacy so far of Jade Applebee’s case. As stated, there are ordinarily two steps to an appeal from a VCAT determination: first, an application for leave (permission) to appeal before an Associate Justice and, if granted, second, the subsequent hearing of the appeal before a Supreme Court judge.

The Panel will arrange counsel to appear for Jade Applebee at the appeal on 11 October 2013. A copy of today’s reasons for judgement can be found here.

kerser with jadeAll of this also points up how vital it is to support the funding of Bill Bruce’s visit to Australia in the second half of October 2013. This revolving door of legal process for dogs can only be ended by change to the law itself. Bill Bruce’s visit will promote the case for change and is a one-off opportunity. No donation is too small .

To help bring Bill Bruce to Australia, click here to donate.