Bates v Registrar, Domestic Animals Act 2000 (Administrative Review)

[2020] ACAT 97

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

BATES v REGISTRAR, DOMESTIC ANIMALS ACT 2000 (Administrative Review) [2020] ACAT 97

AT 34/2020

Catchwords:               ADMINISTRATIVE REVIEW – review of decision to destroy a dog after attack causing death to another animal – requirements of section 53B of the Domestic Animals Act 2000 – factors in considering whether the dog is not likely to be a danger to the public or another animal – dangerous dog declarations

Legislation cited:        Domestic Animals Act 2000 ss 22, 24, 25, 53B, 61, 74, 118, 120

Subordinate

Legislation cited:        Domestic Animals Regulation 2001 sch 1

Cases cited:Bugter v Moorabool Shire Council [2011] VCAT 1833

Robertson v Domestic Animal Services (unreported, ACAT, 20 August 2009)
Sarlija v Registrar, Domestic Animal Services [2012] ACAT 57
XY v Registrar, Domestic Animals Act 2000 [2019] ACAT 93

Tribunal:  Senior Member M Brennan

Date of Orders:  27 November 2020

Date of Reasons for Decision:         27 November 2020

AUSTRALIAN CAPITAL TERRITORY          

CIVIL & ADMINISTRATIVE TRIBUNAL  AT 34/2020

BETWEEN:

LUCINDA BATES

Applicant

AND:

REGISTRAR, DOMESTIC ANIMALS ACT 2000

Respondent

TRIBUNAL:     Senior Member M Brennan

DATE:27 November 2020

ORDER

The Tribunal orders that:

1.The decision of the respondent to destroy the dog Booka pursuant to section 53B of the Domestic Animals Act 2000 is confirmed.

………………………………..

Senior Member M Brennan

REASONS FOR DECISION

Introduction

1.In this case the applicant owner of Booka, an American Staffordshire terrier, has asked the Tribunal to review the Deputy Registrar of Domestic Animal Services’ (respondent) decision to destroy the dog. The respondent made this decision on 28 May 2020 after an investigation found that Booka and another American Staffordshire terrier, named Princess, who was Booka’s daughter and also kept at the applicant’s premises, entered a bedroom of a house in Melba and attacked the residents’ cat. This resulted in the death of that animal.

2.The respondent also found that prior to this incident Booka and Princess had attacked a dog being walked by its owners and that this dog suffered an injury to her front right paw after being chased. Later in the afternoon Booka and Princess were found in the backyard of the owners of the chased dog and one of their chickens was in Booka’s mouth.

3.In making a decision under section 53B of the Domestic Animals Act 2000 (the Act) the respondent advised the applicant that his reasons were:

(a)Booka attacked a cat and two other animals and the attack resulted in death to the cat and injury to a dog and chicken;

(b)Booka was not de-sexed at the time of the incident showing non-compliance with the Act;

(c)the applicant has an adverse history with Domestic Animal Services (DAS) in regard to dogs she has owned;

(d)a dog behavioural assessment undertaken by Luca Campanella on 16 April 2020 stated that Booka needed significant modification of her behaviour towards other dogs,

accordingly, he was not satisfied that there were reasonable steps that could be taken to mitigate the risk Booka posed to the public or another animal and so she would be destroyed.

4.The respondent also issued the applicant with three penalty infringements due to Booka: being in a public place without a carer; attacking or harassing a person or animal; and not being de-sexed in circumstances where the applicant did not hold a permit. Two warning infringements due to Booka: being in a private place without a carer or without the occupant’s consent x 2; and attacking or harassing a person or animal x 2 were also issued.

5.The ACT Civil and Administrative Tribunal is empowered to review the respondent’s decision due to section 120 of the Act and the review is conducted in accordance with the provisions of the ACT Civil and Administrative Tribunal Act 2008.

6.The applicant’s reasons for seeking review in the application for a review of a decision include that Booka had never been aggressive before and if Housing and Community Services had repaired her damaged fence when she asked Booka and Princess would not have escaped from her backyard. The applicant also referred to the impact the decision has had on her health and wellbeing. She asked that Booka not be destroyed and if necessary, that she be registered as a dangerous dog under the terms of the Act and she be granted a dangerous dog licence.

Background

7.On 29 February 2020 at approximately 4:20pm two residents of Melba were walking their border collie, Lucy, along Henslowe Place near the local school when they came into contact with two American Staffordshire terriers. They observed that one dog was much taller than the other and the smaller dog had a red collar. After initially deterring Princess from coming closer to them by kicking gravel, yelling and waving, Booka and Princess started to chase Lucy, who was unleashed, towards Lucy’s residence. The female resident reported seeing the larger of the two dogs nipping Lucy’s back before they lost sight of the three running dogs. When the male resident caught up with the dogs, Lucy was on her own and she appeared unable to put her front foot down when she walked. He observed the two American Staffordshire terriers were separated and appeared to be taking no notice of his dog.

8.At approximately 4:45pm on the same day another Melba resident was walking with her young son along Kingsford Smith Drive, Melba when she saw two American Staffordshire terriers without an owner. A short time after, as she approached her home, she heard dogs growling and a cat screeching inside her property and noticed that her front door was open.

9.After picking up her son she entered the house and saw two American Staffordshire terriers in her bedroom. After shooing the dogs from her room, the resident found her 20-year old cat, Tuesday, deceased. The cat’s neck was contorted in an unusual position and her eyes and mouth were open. She had blood around her head and there were blood splatters on the walls.

10.At approximately 5:05pm the two first two Melba residents returned to their home with Lucy limping beside them. Shortly after their arrival the female resident saw Booka and Princess enter her backyard via an open gate. As she went into her rear garden, she saw Booka with a chicken in her mouth. The chicken escaped when her son ran out with a broom yelling at the dog. The chicken was retrieved after a few hours, missing tail feathers.

11.When ranger, Alicia Robb, attended the resident’s property after being called for assistance, she heard growling and saw the chicken feathers on the back lawn. Her colleague secured Booka and Princess by leashing them. Booka had feathers in her mouth. Photos were taken of the dogs and the back area of the property. Ms Robb and her colleague examined Lucy. Ms Robb observed that she showed lameness when walking. She could not find any puncture wounds on the animal. Ms Robb took a statement from the female resident and her colleague from the male.

12.While still at this residence the rangers received a call from owner of Tuesday, the cat. They left immediately to attend this property. When they entered the property’s main bedroom, they noticed evidence of where the cat appeared to have slept on the bed and observed the floor was scratched, the bed’s sheets and other clothing in the room were disheveled and there was blood on the wall.

13.Ms Robb’s colleague asked the female resident of the property to describe the two dogs she had seen and she described “dark coloured dogs like Staffies but one had more white on it and one dog definitely had a red collar.”[1]

[1] Exhibit R5 at [29]

14.As was the case at the earlier call out, Ms Robb took a statement from one of the adult occupants and her colleague from the other.

15.The rangers took the two dogs and identified them as Booka and Princess owned by the applicant. While being held by the respondent, Princess died due to a serious medical condition.

The hearing

16.The application was heard on 22 and 23 October 2020. The applicant was represented by Ms T Ward from the Animal Defenders Office. Ms A Costin appeared for the respondent instructed by the ACT Government Solicitor.

17.The applicant asked the Tribunal to revoke the registrar’s decision and find that a control order should be issued under section 53B(6) of the Act or alternatively, that Booka be a declared dangerous dog under section 22 of the Act.

18.The applicant tendered a statement that she had signed on 8 October. It details her: history of owning dogs; purchase of and relationship with Booka; the condition of her backyard fence since 22 February 2020; the circumstances of Booka’s escape from her yard; attempts to see Booka while she has been held by the respondent; efforts to obtain representation; recent surgery and recovery; and attempts to have Booka’s behaviour assessed by an expert. Attachments to the applicant’s statement include: a pedigree certificate for a Staffordshire terrier; photos and videos of Booka with a child and her and photos and a report about her property. Numerous objections were made to the tender of the applicant’s statement and the attachments were not allowed. The applicant was cross-examined on much of her evidence.

19.The respondent opposed the alternate orders sought by the applicant and tendered statements from two employees, a dog behaviour assessor, one of the deceased cat’s owners and one of the owners of the border collie and chicken. Ranger, Ms Robb gave evidence in person and was cross-examined. The dog behaviour assessor, Mr Campanella, gave evidence by telephone and was cross-examined. The cat’s owner gave evidence by telephone. The border collie’s owner attended in person and was cross examined.

Issue for determination

20.The issue for determination by the Tribunal is whether it should confirm the respondent’s decision to destroy the applicant’s dog, not being reasonably satisfied that Booka is unlikely to be a danger to the public or another animal.

Governing legislation

21.Division 2 of the Act deals with attacking, harassing and menacing dogs. Section 53B details the action the registrar must take if he or she is satisfied that:

…

(a)a dog attacked a person or an animal; and

(b)the attack caused—

(i)the death of the person; or

(ii)serious injury to the person; or

(iii)the death of the animal.

(2)     The registrar must destroy the dog.

(3)     However, subsection (2) does not apply if, and only if, the registrar is reasonably satisfied the dog is not likely to be a danger to the public or another animal.

(4)     For subsection (3), the registrar may consider—

(a)   the circumstances of the attack including whether—

(i)the person or animal provoked the dog; or

(ii)the person or animal was attacked because the dog came to the aid of a person or animal the dog could be expected to protect; or

(iii)if the attack was on premises occupied by the keeper of the dog—the person or animal was on the premises without lawful excuse; and

(b)whether reasonable steps can be taken to reduce the risk of the dog endangering the public and other animals; and

(c)any other relevant matter

…

(6)     If the registrar decides not to destroy the dog, the registrar—

(a)may issue a control order for the dog to the dog’s keeper or carer; and

(b)if the registrar issues a control order to a carer of the dog—must give a copy of the order to the dog’s keeper.

Note 1      The registrar may declare a dog to be a dangerous dog if the dog attacked a person or animal—see s 22 (2).

Note 2      The registrar must give a reviewable decision notice for s (2) and s (6) to the keeper or carer and must also take reasonable steps to give a reviewable decision notice to any other person whose interests are affected by the decision (see s 119 and ACT Civil and Administrative Tribunal Act 2008, s 67A).

22.The starting point of sub-section 53B(2) is that the registrar must destroy a dog whose attack of another animal has resulted in that animal’s death. In this case the applicant has not disputed that the cat, Tuesday, was killed by Booka and Princess. Sub-section 53B(3) contains a proviso to this requirement if the registrar is reasonably satisfied the dog is not likely to be a danger to the public or another animal. In considering the issue of the danger the dog presents, the Act details a number of factors which may be relevant to this consideration including the circumstances of the attack, whether reasonable steps can be taken to reduce the future risk and any other relevant matter.

Evidence considered

23.The applicant gave evidence that Booka had regularly had interaction with other dogs off her leash at a dog park in McKellar during the six years in which she had owned her. She said that Booka had not attacked another dog before but had been attacked. The applicant said that Booka only responds to being called by her or a member of her family. The dog will not respond to anyone else saying her name. She also explained that Princess was her son’s dog and was fenced in a separate area of her backyard.

24.The applicant told the Tribunal that Booka had not jumped a fence or dug out of her property before. She admitted that Booka had not been desexed as at 20 February 2020 but noted that this was scheduled for March 2020. The applicant said that the delay in taking this action in contravention of section 74 of the Act, which requires that a dog be desexed by the time it is six months unless the owner has a permit for the dog, was due to the cost of the procedure.

25.In cross-examination, the applicant was asked if she was aware of section 74’s requirements. She admitted that she was but was unaware of the option of a payment plan for this procedure. Later in her evidence, when the fact of Princess being Booka’s offspring was raised, she conceded that she had bred without a licence, as required by the Act.

26.In terms of the circumstances of the two dogs escaping her backyard, the applicant agreed that she was aware this was possible due to the damage to her fence when she released them from her house into the backyard to urinate. She advised the Tribunal that she left the dogs unattended for a very short time. While she initially denied that the dogs had escaped in the past, when the respondent took her to the T-documents[2] which included an email the applicant had sent to an employee of the respondent referring to the February 2020 incidents being “only the 2^nd time Booka has and first time Princess has” been out of her “yard without her.”

[2] Exhibit R2 page 47

27.The respondent’s counsel also questioned the applicant’s evidence about regularly taking Booka to a dog park and asked her when she had last done so. She admitted that it was two years ago due to her physical incapacity prior to and after having undergone hip replacement surgery.

28.The applicant was also asked about her prior involvement with other dogs registered to her and was taken to a section of the T-documents which detailed six prior complaints about several dogs,[3] including two named Harley Quinn and Moe. The applicant denied she owned these animals. When the respondent raised her name on the registration of these dogs, the applicant said that she had to register them, but she was not the owner.

[3] Exhibit R2 pages 64-95

29.The material tended by the respondent pertaining to the applicant’s previous dealings with it, also detailed that in February 2018 the applicant was found to have eight dogs registered in her name. In January 2019 the respondent received a complaint about the applicant’s dogs allegedly harming another dog. An inspection revealed that there were four “staffy mixed breed” dogs at the property. In the following month, there is a record of an incident when the applicant advised the respondent that dogs, Harley Quinn and Moe had killed a neighbour’s cat in her yard. The record details the applicant requested that the respondent euthanise the dogs. When she was advised of the cost it is also recorded that the applicant responded that she could not afford this charge and so would shoot the dogs.

30.In a further incident in March 2019, an employee of the respondent attended the applicant’s premises and reported that “there are a number of dogs on the property (more than 3…) That are breeding without control, behaving aggressively, last I checked were not compliant (microchip and registration) and animals are now reported to be dying at the property.”

31.In May 2019 there is a report detailing a “serious dog attack against persons and animal and a fatal dog attack against a cat.” These separate incidents involved Harley Quinn and Moe and resulted in the residents of a property the dogs entered being bitten when they tried to protect their dog. The male resident was taken to hospital and had two surgeries due to the dog bites sustained to both his legs and right hand. After leaving this property the two dogs went to a second residence and attacked and killed a cat sitting on the veranda of the house.

32.In the investigation undertaken by the respondent for the case leading to the registrar’s order in this case, it was noted the applicant had five active dogs registered at her address and no multiple dog licence.

33.The respondent’s counsel asked the applicant how she would ensure that Booka would be secured if she was released to her. The applicant advised that her son was likely to be at her property when she was absent, such as when she resumed part time work in January 2021 and she could erect a secure pen in her backyard with a roof so that Booka could not escape.

34.Dog trainer and assessor, Mr Campanella conducted two assessments of Booka on 16 April and 11 September 2020. In his first assessment[4] he observed Booka and Princess together and opined that Booka had an aggressive reaction towards her. When Mr Campanella brought a smaller dog within sight of Booka and Princess he described both of them having an excited/aggressive response. He also noted that Booka appeared to have poor obedience training and did not recognize her name when called. Mr Campanella recommended against Booka being allowed off lead anywhere, opining that she could not be controlled and did not understand basic commands.

[4] Exhibit R6

35.In his second report,[5] Mr Campanella’s actions with Booka included holding her on a lead while she met a much smaller dog. In being taken near to the first dog, Mr Campanella observed from Booka’s body language that she was about to attack the smaller dog and attempted to do so. He described her reacting in “prey drive”, which involved the dog starting a chase that would result in a bite and “most likely in a kill.” He opined that she could be dangerous for the community. In terms of whether Booka could be trained to counter these concerns, Mr Campanella considered that it was possible for a six year old dog to learn new behaviour and to be re-trained. He recommended that she must be exercised each day and see a trainer/behavioural expert at least twice a week for a minimum of six months, noting “there is a lot of work to do on this dog.”

[5] Exhibit R7

36.In his evidence in chief Mr Campanella was asked for his view on Booka being found at Lucy, the border collie’s premises, approximately 35 minutes after she and Princess had first chased the other dog. He opined that if Lucy was bitten it is likely the two dogs could trace her smell and that normally such behaviour would occur as they had “enjoyed” what they had done. He also noted that because Booka and Princess were together they were akin to a wolf pack and would attack together. He opined that if Princess had attacked first there was a 90% chance Booka would have followed.

37.Ms Robb’s prior experience included working as a vet nurse in private practice where she conducted home consultations involving aggressive dogs. When she attended Lucy’s owners’ residence on 29 February 2020, she observed the border collie limping and that one of her front limbs was swollen and tender. The respondent’s counsel asked for her views on Booka and Princess attending Lucy’s residence sometime after they had first encountered her. She opined that the dogs had tracked Lucy by has scent, which to her was  hunting and pack-like behaviour.

38.In being asked about the attack on Tuesday the cat, Ms Robb observed that in her experience it was it was again rare for dogs like Booka and Princess to enter a confined space as they did and considered it again showed very predatory and hunting behaviour.

Application of governing legislation

39.In this matter Booka and Princess entered the bedroom of a private residence several streets away from the applicant’s home. The evidence that the dogs found Tuesday whilst she was lying on her owner’s bed and that their attack resulted in her death is undisputed. The role of each dog in Tuesday’s death cannot be determined as no one was present during the attack.

40.Pursuant to section 53B, Booka must be destroyed unless the Tribunal is reasonably satisfied that the dog is not likely to be a danger to the public or another animal. In considering this likelihood of danger, the Act provides that the Tribunal may consider the circumstances of the attack, including whether the dog was provoked or came to the aid of a person or animal that she was protecting.

41.Tuesday was a 20 year old cat, last seen by her owners alive, sleeping on their bed. Clearly, there is no evidence that she provoked the applicant’s dog and this seems highly improbable given that she was an elderly cat resting inside a private residence. In addition to the fate befalling Tuesday, Booka also frightened the border collie’s owners, when she chased Lucy away from them and while not, it appears, seriously harmed, Lucy did suffer some injury to one of her front paws and there was evidence of saliva on her back which appears to be from Booka and/or Princess attempting to bite her.

42.Further, Booka entered Lucy’s owners’ back yard after this chase, subsequent to Tuesday’s attack and was found with a chicken in her mouth. The chicken was released when one of the residents shouted and approached her with a broom in his hand. Mr Campanella opined that if this intervention had not occurred Booka would have killed the chicken.

43.Ms Robb described Booka’s behaviour in attending the backyard of Lucy’s owners with Princess as predatory and hunting. In considering this evidence the Tribunal considered that Ms Robb’s prior experience working with aggressive dogs at a veterinary practice should be given some weight. Similarly, Mr Campanella, an expert in dog training and assessments, opined Booka and Princess’ behaviour was akin to a wolf pack leading to them attacking together.

44.While Princess has died, so there is no risk of her and Booka endangering the public or another animal together, the applicant has given evidence that if released, Booka will not be the only dog kept at her premises. The Tribunal also notes the applicant’s history of dog registration and that as at May 2020, five dogs were registered in her name. Hence, the possibility of Booka escaping with another dog held at the applicant’s property is not a remote risk.

45.Additionally, the expert assessment tendered is that for Booka to be re-trained to refrain from attacking other dogs and/or animals in the future,[6] she would need twice weekly training for a minimum of six months. It should be noted in discussing the expert’s assessment that the applicant was critical of the respondent instructing Mr Campanella to undertake Booka’s behaviour assessment without the applicant being present. Mr Campanella specifically mentioned in both his reports[7] that he recommends an assessed dog’s owner attend if possible. The respondent offered for the applicant to attend Mr Campanella’s second assessment on 4 September 2020. It was not until 14 September that the applicant advised that she was interested in being present. Unfortunately, the assessment had been conducted on 11 September.

[6] Exhibit R7

[7] Exhibits R6 & R7

46.The T-documents detail the applicant’s history with other dogs and incidents involving neighbouring animals and people. This, coupled with her evidence about financial hardship, an example of which was being unable to afford Booka’s desexing for 5 ½ years after the Act required, leads the Tribunal to not being satisfied that the applicant will undertake the extensive training Mr Campanella recommended.

47.When all of these factors are considered, the Tribunal is not reasonably satisfied that Booka is unlikely to be a danger to the public or another animal. The circumstances of Booka entering a property she had never previously attended and being involved in an attack on Tuesday while the cat was sleeping on her owners’ bed leads to the Tribunal’s heightened concern of the danger the dog may pose. As noted by Senior Member Orr in XY v Registrar, Domestic Animals Act 2000:[8]

…the safety of the public… is the principle purpose behind the Act. Recent amendments and the explanatory statements for these confirm this. And this purpose should be given the greater weight in decision-making under the Act.

[8] [2019] ACAT 93 at [120]

48.The Tribunal has no doubt about the applicant’s sincerity in bringing this application and her genuine wish that Booka be returned to her. She co-operated with the respondent in its investigation, was open about Booka’s escape and had given thought to the actions she could take to try and ensure that the dog is not a risk to the public or another animal in future. When the totality of the evidence is considered however, the Tribunal is not satisfied that the risk of Booka being a danger to the public or another animal is removed.

49.In Robertson v Domestic Animal Services (unreported, ACAT, 20 August 2009) General President Crebbin reasoned:

When making a decision about something that is likely to happen in the future, ideally we’d have crystal balls, but we don’t. What we need to do is look at what has happened in the past. That criterion requires an examination of the circumstances of the incidents that led to us being here today. Thus, ACAT must examine and must take into account the past conduct and behavior of the dogs as a major factor [emphasis added] in predicting the likelihood of harm being caused to any member of the public or an animal.

50.While the applicant said that she will not leave Booka unattended when she returns to employment in January 2021 and suggested she erect a secure pen in her backyard with a roof, such statements are not sufficient to assuage the Tribunal’s concerns. In Bugter v Moorabool Shire Council [2011] VCAT 1833 the applicant tendered evidence that she had spent approximately $20,000 improving the gates of her property and pens where her dogs were then kept. She also gave an undertaking to the Tribunal that her dogs would be kept in the secure locked pen or inside her home at all times when they were at the applicant’s property and on leash when outside of it.

51.Senior Member Davis noted that:

…if an undertaking was given and the dogs were sold or move to another council area, there would be no way of enforcing the undertaking. Put a different way if an undertaking is broken it is the respondent who would have to ask the Tribunal to find the applicant guilty of contempt in breach of the undertaking. There is no other practical way of enforcing the undertaking.[9]

[9] Bugter v Moorabool Shire Council [2011] VCAT 1833 at [10]

52.Further, in the case of Sarlija v Registrar, Domestic Animal Services [2012] ACAT 57, the Tribunal said that “Accepting undertakings would be inappropriate when there is already an Act in place for the regulation and the control of dangerous dogs.”[10]

Dangerous dog declaration

[10] Sarlija v Registrar, Domestic Animal Services [2012] ACAT 57 at [46]

53.The applicant asked the Tribunal to consider making a declaration that the dogs are ‘dangerous’ within the terms of the Act or alternatively to remit the matter to the registrar for such consideration. Looking firstly at the Act, when making such an order, subsection 22(1) provides: “The registrar must declare a dog to be a dangerous dog if… (b) the dog has attacked and caused the death of or serious injury to a person.”

54.Section 24(1) of the Act provides: An adult may apply to the registrar for a licence to keep a dangerous dog. Section 25 then specifies that the registrar must approve or refuse the issue of a licence.

55.The Tribunal is empowered under section 118 of the Act to review decisions prescribed by regulation. It is not in the same position as the registrar who exercises powers given under provisions such as sections 22 and 25 of the Act. Further, even if the Tribunal was empowered to make decisions under the Act rather than review those detailed in Schedule 1 of the Domestic Animals Regulation 2001, it notes that subsection 25(2)(b) provides that the registrar may refuse to approve the issue of a licence if s/he reasonably believes –“(i) there would be an unacceptable risk to the safety of the public or other animals if the licence were issued.” Given the Tribunal is not reasonably satisfied that Booka poses no danger to the public or another animal it would not find a licence should be issued even if it had the power.

56.The Tribunal also does not consider that it is appropriate to remit the matter to the registrar for reconsideration given its consideration of section 53B’s requirements.

57.Finally, the applicant asked the Tribunal to consider the imposition of a control order. This is provided in subsection 53B(6) in circumstances where the registrar decides not to destroy the dog after serious injury or death of a person or the death of an animal, as is the case here. As the earlier discussion shows, given the Tribunal is not reasonably satisfied that the dog is unlikely to be a danger to the public or another animal, as set out in subsection 53B(3), this option is not available.

58.It follows that having regard to the requirements of the Act in this case, the Tribunal confirms the registrar’s decision.

………………………………..

Senior Member M Brennan

Date(s) of hearing	22 & 23 October 2020
Solicitors for the Applicant:	Ms T Ward, Animal Defenders Office
Solicitors for the Respondent:	Ms S Lane, ACT Government Solicitor