Acaroglu v Moreton Bay Regional Council

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QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Acaroglu v Moreton Bay Regional Council [2020] QCAT 76

PARTIES:

HALIL ACAROGLU

(applicant)

v

MORETON BAY REGIONAL COUNCIL

(respondent)

APPLICATION NO/S:

GAR 246-19

MATTER TYPE:

General administrative review matters

DELIVERED ON:

17 March 2020

HEARING DATE:

21 February 2020

HEARD AT:

Brisbane

DECISION OF:

Member Dr Collier

ORDERS:

1.   The decision of Moreton Bay Regional Council declaring the dog Missy a menacing dog is set aside.

2.   The decision of Moreton Bay Regional Council ordering the destruction of the dog Missy is set aside.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – regulated dogs – declared menacing dog – dog destruction order – where a person was fearful of a dog – where the dog has ‘attacked’ a person – tests to determine whether a dog is menacing or dangerous

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20(1), s 20(2), s 24

Animal Management (Cats and Dogs) Act 2008 (Qld),
s 3(d), s 59(1), s 59(2), s 89, s 89(1), s 89(2)(a),
s 89(2)(b), s 89(7), s 90, s 94, s 95, s 104, s 127, s 127(4), Schedule 1 – s 1, s 2, s 3, s 4, s 5, s 6, Chapter 4

Bradshaw v Moreton Bay Regional Council [2017] QCATA 139
Briginshaw v Briginshaw (1938) 60 CLR 336

Chaplin v Sunshine Coast Regional Council [2019] QCAT 371

Lee v Brisbane City Council [2012] QCA 284
Lee v Brisbane City Council (No 2) [2012] QCATA 64
Nguyen v Gold Coast City Council Animal Management [2017] QCATA 121
Thomas v Ipswich City Council [2015] QCATA 97
Willis v Hume CC (Review and Regulation) [2013] VCAT 1033

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

M Jackson, of counsel

REASONS FOR DECISION

  1. Halil Acaroglu, who lives at 35 Alfred St Woody Point, owns a five-year-old entire 40kg brindle and white Bull Arab female dog, ‘Missy’. Mr Acaroglu owns a second dog which is also homed at the same address, ‘Max’; Max plays no part in these events.

  2. Moreton Bay Regional Council (‘Council’) made two decisions in respect of Missy as a result of a complaint made to the Council by one person (‘complainant’). The first was to declare Missy a menacing dog, and the second was to order the destruction of Missy. Mr Acaroglu seeks to have the Tribunal set aside both the menacing dog declaration and the destruction order.

  3. There have been two occasions when Missy has interacted with the complainant.

  4. The complainant was a young man aged 23 years when the relevant events described in this decision occurred.

  5. The first occasion occurred on the footpath at or near the front of Mr Acaroglu’s residence in early 2019, although the parties do not recall the precise date. The complainant details the event in his witness statement dated 26 August 2019, the relevant portion of which is recited later in this decision.

  6. On this occasion Missy inflicted a scratch, apparently from the dog’s nails, and a shallow…

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Details
Case
[2020] QCAT 76
Decision Date

CaseChat Overview and Summary

The case of Acaroglu v Moreton Bay Regional Council involved a dispute over whether a dog named Missy should be declared a menacing dog and subsequently ordered to be destroyed. The matter was heard by the Queensland Civil and Administrative Tribunal (QCAT), which had to determine if the Council's decision to declare Missy a menacing dog and order her destruction was justified. The primary issue for the Tribunal was whether the Council's decision was legally sound based on the evidence presented, specifically whether Missy posed a greater risk to people and animals than an ordinary dog.

The Tribunal examined the tests for determining whether a dog is menacing or dangerous, focusing on the dog's behaviour and whether it posed a greater risk compared to a normal, well-socialised dog. The evidence presented detailed two incidents involving the complainant and Missy, including one where Missy bit the complainant and another where she chased him aggressively. However, the Tribunal found that these incidents, while concerning, did not demonstrate that Missy posed a greater risk than an ordinary dog. The complainant's heightened fear of dogs, while genuine, did not alone satisfy the test for a menacing dog declaration.

Based on its findings, the Tribunal concluded that Missy did not pose a greater risk to people and animals than an ordinary dog. Therefore, the decision to declare Missy a menacing dog and to order her destruction was set aside. The Tribunal also noted that the destruction of a dog should be a last resort, and there was no clear reason to destroy Missy as there were feasible alternatives available. The Tribunal ultimately ordered that the Council's decisions regarding Missy be overturned.

Orders

Orders of the court

1. The decision of Moreton Bay Regional Council declaring the dog Missy a menacing dog is set aside.

2. The decision of Moreton Bay Regional Council ordering the destruction of the dog Missy is set aside.

Background

Background to the litigation

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Evidence

Evidence Before The Court

After a review of animal cases I have been unable to find any Australian case involving circumstances similar to those here: where a dog has chased a person, had the opportunity to inflict injury on that person, but has not, itself, inflicted an injury on that person.Evidence for the Council The complainant detailed the events of his first interaction with Missy in his witness statement dated 26 August 2019. I recite the relevant portions of the complainant’s version of events from his statement, as follows:[35][35]Complainant’s Witness Statement taken by Fleur Holyland of Moreton Bay Regional Council dated 26 August 2019.7. Around the start of 2019, the owners of the dogs were arriving home in their car.8. The car, a truck type vehicle was parked in front of their house and I was walking on the grass past their house.9. They opened the boot of the truck and the dog ran to me, jumped up on two legs and jumped on me. The dog had its paws on my thigh.10. I wanted to get the dog away from me.11. The dog scratched and bit my leg. It then stopped and was standing next to me.12. The male owner called the dog and the dog stopped and went over to him.13. The dog owner did not say anything to me.14. I was shocked and went home. When I got home I saw the marks on my leg. There was a reddy purple mark on my leg, and there was a scratch and bite mark. The bite was not very deep but had broken the skin. It wasn’t bleeding. I was wearing jeans at the time, otherwise I think it would have been worse.15. I called the police, however I was informed that it was not a police matter. I did not report this first incident to the Council as I didn’t know that Council were the ones to deal with this type of incident. The second interaction involving the complainant and Missy occurred on 7 March 2019. The relevant portions of the complainant’s statement dated 26 August 2019 are recited as follows:[36][36]Ibid.16. On 7 March 2019, I was coming home from work at approximately 6:20pm.17. I got off the bus on Oxley Avenue, and was walking up the street to my home…18. I was walking on the road and not on the nature strip in front of the house [25 Alfred St] ……23. The dog was following me along the fence line and was barking aggressively at me. It was snarling, I had taken my headphones out because the dog was getting closer to me and I was starting to get worried.24. The dog then climbed up onto the low brick wall and was on its stomach. It then pushed itself over.25. At that point I began to panic and I started running. I was feeling very scared and terrified. I thought the dog was going to kill me or severely injure me.26. I was still on the road that that time. I was running past the next property to get to my house. I was running faster than I thought I could. I felt like I was running faster than I could normally. I was so scared.27. I could hear the dog running toward me.28. The dog was chasing me and I tripped onto the road.29. I fell onto my left shoulder.30. At that time, I felt the pain of falling down and I could not move my arm.31. I became even more afraid that the dog would get me while I was on the ground.32. I didn’t know what was going to happen to me. The only chance was for me to get away from the dog and run home.33. I turned around and could see the dog coming for me. Even though I could not move my arm, I got up and ran to my house.34. I didn’t see the dog after that.35. I came into my house.

Decision

Reasons for decision

I am comfortably satisfied that the complainant exhibits a fear of dogs, perhaps just Missy, greater than that of an ordinary person and that, in this case, his fear alone is not sufficient to satisfy the test that Missy be declared a menacing dog.Conclusions I refer to the test proposed in paragraph [46], above: the question to answer when exercising the discretion of whether to make a declaration concerning a dog, is whether the dog poses a greater risk to people and animals, compared to other dogs. This formulation invites an objective test of a dog’s behaviour. The objective behaviour has to be that of a normal, well socialised dog with no unusual aggressive tendencies – a dog on the Clapham omnibus. The evidence disclosed during the hearing satisfied me that, on this test, Missy poses no greater risk to people and animals, compared to other dogs. On this test, therefore, there is insufficient ground to declare Missy a menacing dog. Because Missy is not a menacing dog she should be released into the custody of Mr Acaroglu without delay. The order for the destruction of Missy must, as a necessary result, be set aside. I am also cognizant, in respect of the destruction order on Missy, of the Appeal Tribunal’s comments in Thomas v Ipswich City Council:[42]It is clear that the AM Act is primarily directed towards the effective management and responsible ownership of dogs and that the destruction of a dog is a ‘last resort’. It is generally where the mechanisms in the Act from management fail, or are ineffective that destruction arises. The essential question is whether the dog constitutes, or is likely to constitute, a threat to the safety of other animals or to people, by attacking them or causing fear, to the extent that the threat may only be satisfactorily dealt with by the destruction of the dog.[42][2015] QCATA 97, [18]. In this context ‘last resort’ does not mean that all other possible avenues of conduct must have been exhausted, but that a dog should not be destroyed unless there is clear reason to do so and there remains no feasible alternative. This is not the case with Missy.Orders1. The decision of Moreton Bay Regional Council declaring the dog Missy a menacing dog is set aside.2. The decision of Moreton Bay Regional Council ordering the destruction of the dog Missy is set aside.

Ratio Decidendi

Legal Principle Established

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