BOLGER and SHIRE OF BROOME - [2019] WASAT 74

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: DOG ACT 1976 (WA)
CITATION:   BOLGER and SHIRE OF BROOME [2019] WASAT 74
MEMBER:   MS N OWEN-CONWAY, MEMBER
HEARD:   9 AUGUST 2019
DELIVERED          :   30 AUGUST 2019
PUBLISHED           :   23 SEPTEMBER 2019
FILE NO/S:   CC 928 of 2019
BETWEEN:   NADINE MARIE BOLGER
First Applicant
JACOB WILLIAM FELLOWS
Second Applicant
AND
SHIRE OF BROOME
Respondent

Catchwords:

Declaration of dangerous dog (declared) - Attack - Provocation - Reasonable excuse - Declaration - Seizure - Detention - Intention to cause destruction of dog - Turns on own facts

Legislation:

Dog Act 1976 (WA), s 3(1), s 3(1)(a), s 3(1)(c), s 3(2), s 29, s 29(3), s 29(6), s 33D(2)(a), s 33E, s 33E(1), s 33E(1)(b), s 33F, s 33G, s 33G(1), s 33G(2), s 33G(5), s 33I
Evidence Act 1906 (WA)
State Administrative Tribunal Act 2004 (WA), s 9, s 13(1), s 17, s 27, s 29, s 29(1), s 29(3), s 32(1)(2)(a), s 32(1)(2)(b)

Result:

Upon review, notices to declare dog a dangerous dog, seize, detain and cause destruction of the dog set aside

Representation:

Counsel:

First Applicant	:	In Person
Second Applicant	:	In Person
Respondent	:	Mr Stuyt, Chief Executive Officer of Shire of Broom

Solicitors:

First Applicant	:	N/A
Second Applicant	:	N/A
Respondent	:	N/A

Case(s) referred to in decision(s):

Frost v Shire of Kalamunda [2007] WASC 322

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The reasons for decision in this matter were delivered orally on 30 August 2019. The written reasons have been taken from the transcript of the hearing and have been edited to make necessary corrections or annotations for the purposes of grammar or syntax.

The application

On 20 June 2019 Ms Bolger and Mr Fellows, the applicants, lodged in the Tribunal an application for a review of the decisions made by a person authorised by the Shire of Broome (the relevant local government, the respondent) to declare that Ms Bolger's dog (otherwise known as 'the dog' or 'Crazy') a dangerous dog (declaration decision) and to cause the dog to be destroyed (destruction decision).
The application is, expressly, an application for a review of the respondent's dismissal of the applicants' 'objection to the declaration of dangerous dog status'. The application is made pursuant to s 33F(6)(a) and s 33F(2)(b)(i) of the Dog Act 1976 (WA) (Dog Act) and, invokes the review jurisdiction conferred on the Tribunal by s 33I(1)(a)(i) of the Dog Act.
The Tribunal was informed by the respondent's representative during the hearing that the Ms Bolger did lodge an objection pursuant to s 33F(2)(b)(i) of the Dog Act. There is no documentary evidence before the Tribunal about the outcome of that objection but it was agreed that the objection was not upheld.
If the Tribunal is wrong in that view and that is not the case, this proceeding for a review of the declaration decision was, in substance, one commenced pursuant to s 33I(1)(b) of the Dog Act, which permits an application to be made to the Tribunal for a review of the declaration decision.
As noted above, the applicant also seeks to review the destruction decision (which is dependent upon the declaration decision in any event). The notice of the destruction decision is also dated 20 June 2019 and purports, in its terms, to be made pursuant to s 33G(2) of the Dog Act. Section 33I(1)(a) of the Dog Act confers jurisdiction upon the Tribunal to review a decision made pursuant to s 33G(2) of the Dog Act.
Both the declaration decision and the destruction decision are the reviewable decisions for the purposes of s 17 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).

The outcome of the Tribunal's review

For the reasons referred to below, upon the review by the Tribunal, each of the declaration decision and the destruction decision is set aside and Ms Bolger's dog is to be released to her by the respondent.

The Tribunal's jurisdiction

Section 13(1) of the SAT Act provides that:
A provision of an enabling Act that enables an application to be made to the Tribunal gives the Tribunal jurisdiction to deal with the matter concerned.
Section 17 of the SAT Act identifies the jurisdiction conferred by an enabling Act as 'review jurisdiction' where the enabling Act expressly or implicitly identifies a review by the Tribunal.
Sections 33F(2)(b)(ii) and 33I of the Dog Act confer jurisdiction on the Tribunal to review the declaration decision in this proceeding. Sections 33G and 33I of the Dog Act confer jurisdiction on the Tribunal to review the destruction decision in this proceeding.
By reason of s 17 of the SAT Act, the application to review the declaration and destruction decisions falls within the Tribunal's review jurisdiction.
In conducting the review, the Tribunal is to undertake a hearing de novo so as to arrive at the correct and preferable decision (s 27 of the SAT Act) and the Tribunal is not limited to the material before the respondent, as the original decision-maker. By reason of s 29(1) of the SAT Act all of the functions and discretions conferred by the enabling Act on the original decision-maker are conferred on the Tribunal. Section 29(3) of the SAT Act confers specific power on the Tribunal to, amongst other orders, set aside the original decision, affirm that decision or vary that decision.
In exercising its powers the Tribunal is not bound by the Evidence Act 1906 (WA) or the practices and procedures of courts of record but is bound by the rules of natural justice and is directed to act according to equity, good conscience and the substantial merits of the proceeding without regard to technicalities and legal forms (s 32(1)(2)(a) and (b) of the SAT Act). However the Tribunal must consider the probative value of the information put before it when undertaking its consideration. Further the Tribunal is bound to conduct the proceeding of the review fairly and according to the substantial merits of the proceeding (s 9 of the SAT Act).

The proceedings in the Tribunal

The applicants' lodgement of the formal application in the Tribunal was preceded by a series of emails from Ms Bolger to the Tribunal on 21 June 2019. The subject reference for the first email is:
Review decision application Dangerous Dog!
Ms Bolger set out the basis for the review and why she asserts that the declaration and destruction decisions should be set aside. At that time, Ms Bolger also sent three photographs of a man she described as her 'partner' and which the Tribunal finds is Mr Fellows, the co-applicant. The photographs of Mr Fellows depict his damaged left ear which appears to have been sutured both in the ear and around the ear. Ms Bolger briefly explained in the emails and the application that Mr Fellows was the subject of a physical altercation resulting in a significant injury to his left ear. Ms Bolger claimed that the dog intervened in that altercation and but for that intervention Mr Fellows would have suffered further physical injury.
The email application was formalised when on 26 June 2019, the Tribunal received a formal application that was made by Ms Bolger and Mr Fellows as applicants. The emails, photos, declaration and destruction decision notices are all referred to as Exhibit 1.
Also on 26 June 2019, the applicants made an interim application for an urgent review of the reviewable decisions.
On 28 June 2019, a representative of the respondent wrote to the Tribunal by email requesting that 'this matter be expedited with an early direction hearing because of the seriousness of the attack and the cost to the Shire in impounding the dog'.
At the directions hearing the respondent's representative informed the Tribunal that there was no need for the Tribunal to make an interim order for a stay because the respondent agreed to take no further action until the Tribunal's final determination and in the meantime the dog would be securely accommodated at a dog management facility in Broome.
On 3 July 2019 the Tribunal issued to the parties a notice of directions hearing to be held on 8 July 2019. The application form issued by the applicants states that neither applicant has a fixed address and each has identified a mobile telephone number and an email address. The Tribunal's records indicate that the notice of directions hearing listed for 8 July 2018 was sent by email to each applicant. The Tribunal notes that Ms Bolger stated during the hearing that her phone and the services did not permit her to open and read emails.
At that directions hearing the respondent's representative attended by telephone. Ms Bolger also attended the directions hearing by telephone on behalf of both applicants.
The senior member made the following orders:
1.The matter is listed for a final hearing to commence at 11 am on 9 August 2019 for the duration of 4 hours in Court 2 at Broome Court House, Hamersley Street Broome.
2.Parties are responsible to have all witnesses in attendance at the hearing.
3.If the applicants fail to attend the hearing, the matter may proceed in their absence.
No other orders were made. The Tribunal's records indicate that the order made on 8 July 2019 was sent to both applicants at their respective email addresses. However the Tribunal's electronic records indicate that neither applicant opened those emails. Ms Bolger explained during the hearing that her service did not permit her to open and read emails.
The Tribunal records note that on 24 July 2019, a Tribunal case officer telephoned Ms Bolger and informed her of the substance of the order made 8 July 2019 - that is, that the Tribunal had listed this proceeding for a hearing in Broome; the details of the time, date and place of the hearing; that the witnesses must be in attendance at the hearing and that the matter may proceed if the applicants did not attend. Ms Bolger informed the case officer she would inform Mr Fellows. The Tribunal records note that Ms Bolger informed the case officer that she may not have any witnesses. The case officer suggested that she should consider whether she may wish to have witnesses attend the hearing on 9 August 2019.

Documents filed in the Tribunal

No documents save for the emails, the formal application and photographs of Mr Fellows were filed by the applicants in the Tribunal and the applicants did not produce any further documents during the hearing.
On 2 July 2019 the respondent filed the following documents:
•a statement of Constable Perry dated 1 July 2019 (Exhibit 6);
•a statement of Mr Martin Fox dated 27 June 2019 (Exhibit 2);
•Broome Health Campus Emergency Department notes concerning James Edward Arrow dated 19 June 2019 (Exhibit 3);
•Broome Health Campus Emergency Department notes concerning Mr Perry Norman Collard dated 19 June 2019 (Exhibit 4);
•a statement of Mr Arrow dated 26 June 2019 (Exhibit 3);
•notice of seizure and detention of a declared dangerous dog dated 20 June 2019 (Exhibit 1);
•dangerous dog declaration document dated 20 June 2019 (Exhibit 1);
•a statement of Mr Collard dated 26 June 2019 (Exhibit 4); and
•a number of photographs of Mr Collard (5) and Mr Arrow (3) (Exhibit 5).
During the course of the hearing the respondent filed the following documents:
•a delegation to Mr Fox which was not relevant; and
•an authority to the Chief Executive Officer of the respondent authorising him to make decisions pursuant to s 33E and G of the Dog Act (Exhibit 7).
On 1 August 2019 the respondent applied for the Tribunal to issue three summonses to three witnesses to give evidence:
1.Mr Collard;
2.Constable Perry; and
3.Mr Arrow.
The summonses were issued and emailed (and sent by express post) to the respondent for it to affect service of the same on those individuals.

The hearing

The final hearing was conducted in Broome. The proceeding was originally listed to commence at 11.00 am. As a consequence of the Tribunal member's plane from Perth being delayed the hearing commenced just after 12.00 pm.
Ordinarily, in a review matter, the Tribunal would allow the respondent to lead its case first. However, as the applicants were most anxious to put forward their position, the Tribunal judged that the applicants perceived it unfair for them not to be immediately heard. In the interests of the final hearing being conducted in an orderly fashion with limited interruption and in circumstances that an adjournment was not in either party's interest, the Tribunal allowed the applicants to present their case first and the respondent to proceed last. The hearing was concluded at about 4.45 pm with a short adjournment at 2.45 pm. The parties were permitted to identify any case law that they considered relevant to their positions by 14 August 2019 and thereafter the proceeding was reserved.

The evidence and information before the Tribunal

All relevant documents produced to the Tribunal prior to the hearing were exhibited during the course of the final hearing as identified above. The additional documents referred to above were canvassed and, where necessary, exhibited during the hearing.
At the hearing the following individuals gave evidenceinchief, were cross-examined and were given the opportunity for re-examination.

Mr Fellows

Mr Fellows gave evidence following his affirmation. The Tribunal finds that Mr Fellows is a truthful witness of the facts in this proceeding. He gave general evidence that he is Ms Bolger's partner and that he cares for her dog. He acknowledged that the dog was owned and controlled by Ms Bolger but he said he also cared for the dog and the dog was protective of him and Ms Bolger in the town. He regularly fed the dog and although the applicants were homeless, the dog was always secured and held by Ms Bolger (mainly) and by him (occasionally) by a tether, or when they were asleep the dog was tethered to a pole and could not escape. There was no evidence that the dog had ever escaped. Mr Fellows stated generally that Ms Bolger, he and their dog were not well received in the township. He stated that they had newly travelled to the township and that there had been a number of incidents where people had deliberately aggravated the dog by shouting at Mr Fellows, Ms Bolger or the dog. He said on 19 June 2019 he and Ms Bolger and the dog were sitting on a bench near the beach trying to enjoy their lunch when a man, a lady and a small dog walked toward the beach. As the man approached the path to the beach he shouted at the applicants to shut their dog up. Ms Bolger was holding the lead to the dog and he was not barking. The man was carrying a spear and a bucket. The man repeated the demand for the dog to stop barking. The dog was not barking, according to Mr Fellows. Mr Fellows moved to approach the man. Mr Bolger said the man responded by warning Mr Fellows not to come further or he would put a spear through his and Ms Bolger's throats and kill the dog. Mr Fellows asked the man why he was holding a spear and the man told him to 'piss off' and the man continued walking to the beach yelling back at the couple. After a few hours two other men appeared. The older man was carrying a spear over the handlebars of a bicycle. He travelled towards Ms Bolger and Mr Fellows. Mr Fellows said he moved toward that man to avoid Ms Bolger being involved in any fight and he felt that these men were approaching them for some kind of fight. That approaching man was accompanied by another man. Mr Fellows asked what that older man wanted. The older man told him he did not like Ms Bolger and Mr Fellows in his town. Mr Fellows said the older man attempted to spear him in his left ear while the older man was on his bike. He said the spear struck his ear, cut his ear and ricocheted off to his left shoulder. Mr Fellows said as this occurred he grabbed the spear and broke it in two. He used the end of the spear to fight off the older man. He gave evidence that the other man, whom he described as a 'skinny fella' hit the top of his head with a 'Bluetooth' speaker. He said the older man and the 'skinny fella' were both attacking him and he was on the ground. He referred to another 'bigger fella' as well. The dog arrived and he bit one or other of the men attacking Mr Fellows. One of those men, the older man, is Mr Collard. One of those other men, the 'bigger fella' was Mr Arrow. According to Mr Arrow there was a third man, his nephew Kenny. This man, the Tribunal believes, is the man that Mr Fellows described as the 'skinny fella'. There is no evidence from Kenny at all.
Mr Fellows said the dog was agitated if people yelled at the dog, Ms Bolger or himself. He had observed people in the town kick the dog and Ms Bolger would not leave the dog tethered alone and even brought the dog into a court room in Broome during an unrelated hearing, for fear the dog would be provoked.
Mr Fellows said he went to the emergency department after the fray and had a number of stitches in his left ear and behind his left ear. Ms Bolger gave evidence that she took photographs of Mr Fellows the next day on 20 June 2019, and the Tribunal finds that Mr Fellows is the person in those photographs and they accurately depict the state of his stitched ear on 20 June 2019. Mr Fellows gave evidence that he believed that he would have been killed if the dog had not arrived and bitten the men.
In cross-examination, Mr Fellows agreed that he, Ms Bolger and the dog were homeless, and although he had been looking for a home, had not found one. He said one female ranger had played with the dog and was happy to pat and play with the dog.

Ms Bolger

Ms Bolger gave affirmed evidence. The Tribunal finds that she gave evidence truthfully. She gave evidence that she, the dog and Mr Fellows had been poorly received in the town of Broome. The dog was owned by her and she allowed Mr Fellows to attend to the dog and said the dog was protective of them both but the dog was hers. She tethered him with a lead that was less than 2 meters long, on any view of the evidence, and she said she would not leave the dog alone for fear people in the town would provoke him. She stated that she had been threatened by a man, carrying a broken glass bottle, who did not like her dog. She gave evidence that Mr Fox, the respondent's ranger, had approached her once when the dog was on a lead under her control, and the dog barked at Mr Fox who alleged that the dog had engaged in an 'attack'. She said also that Mr Fox had brought a 'pit bull' up to her dog that barked aggressively at her dog to try and make her dog react. When her dog did react, the ranger told her to 'muzzle' her dog. She claimed Mr Fox had provoked her dog on a number of occasions.
Ms Bolger gave evidence broadly consistent with that of Mr Fellows although she was away from the fray and she, of course, had not been injured in the fray. She said, however, that she recognised Mr Arrow a younger man, a girl and a dog who had walked past them earlier. She said Mr Collard came back later with the younger man, Mr Arrow and the woman. She said she could not hear what was said between Mr Fellows and Mr Collard. Mr Collard was on a bike and up a hill facing down towards Mr Fellows about 10 meters away from Mr Fellows. She watched from a distance of about 20 metres away from Mr Fellows as Mr Collard rode down the hill towards Mr Fellows and speared him in the side between his head and shoulder. She said she watched as Mr Fellows grabbed the spear. She said the dog began to bark 'hysterically', as she put it. She said until Mr Fellows was 'speared' the dog was calm. She could not hear shouting before the spearing. She said Mr Collard fell off his bike as he struck Mr Fellows, and Mr Fellows hit Mr Collard with the spear that he had broken. Another man (not Mr Arrow) came and hit Mr Fellows in the head with the 'Bluetooth' speaker and did so repeatedly. Ms Bolger said all three men were fighting with Mr Fellows, including Mr Arrow. Mr Fellows was being hit while he was on the ground. She said she was approximately 20 metres away and could see blood from Mr Fellows' ear and face and Mr Collard (whom she described as the 'older dude') was bleeding from the neck. The younger man was not bleeding, so far as she could see. She said then she saw Mr Arrow punch Mr Fellows on the ground. She had hold of her dog at this stage but he was barking and, as she described, 'hysterical'. She said all she could see was blood and that she had tried calling the police.

She said she thought that when Mr Fellows was pinned to the ground by the men and being hit in the head repeatedly with the 'Bluetooth' speaker and Mr Arrow, Mr Fellows might be killed. She said she believed that Mr Fellows might be killed and because of that she released the dog collar and the lead. That is, she released her hand from the ring in the dog collar and she released her other hand from the lead. She said she saw the dog bite 'a couple' of the men. She walked to the scene. The men stopped fighting. She regained control of the dog by picking up his lead. The police arrived along with an ambulance.
She gave evidence that Constable Perry told her he would shoot the dog if it came anywhere near him. This was so notwithstanding that she held the dog by the tether. He also said he would use pepper spray and reached for the same. Ms Bolger said that at that stage the dog was not barking but as voices got raised and Constable Perry reached for the pepper spray, the dog began to bark.
In cross-examination, she agreed she and Mr Fellows were homeless and that they carried their belongings in a shopping trolley around Broome.

Mr Arrow

Mr Arrow gave affirmed evidence. He gave evidence that he had made the statement and it was true. He gave evidence of the wounds he received from the dog biting and scratching him. The medical records establish he suffered a deep laceration to his left cheek, three very deep lacerations to his left forearm and several superficial lacerations to his face, both arms and scratches to his left trunk. He was treated with antibiotic injections, local anaesthetic and stitching and otherwise cleaning and dressing of the wounds. The local anaesthetic was, as usual, very painful. That is not uncommon. He claimed the dog was barking 'ferociously' when he, Kenny and Kenny's girlfriend passed Ms Bolger and Mr Fellows earlier in the day. Mr Arrow's version of events is that Mr Fellows was the instigator of the fight that ensued. He said that Ms Bolger released the dog before he joined the fray and he said she 'set' the dog onto Mr Collard and Kenny by pointing the dog to them. He said the dog bit Mr Collard and was shaking his head savagely. He said Kenny pulled the dog off and the dog turned on Kenny and Kenny was bitten on the hand. There is no information concerning Kenny.
Mr Arrow said the dog then returned to Mr Collard and bit him on his neck while Mr Fellows was punching and hitting Mr Collard with the broken spear. Mr Arrow came to Mr Collard's 'aid' as he put it by charging Mr Fellows and then the dog bit Mr Arrow. He said the dog 'seemed to stop attacking' and Mr Fellows was stopped from attacking Mr Collard by the police.

Constable Perry

Constable Perry gave affirmed evidence. He did not say he prevented Mr Fellows from further 'attacking' Mr Collard. He said nothing about the fight. He does not appear to have witnessed a fight. He stated that when he arrived there were three people with dog bites to their arms and torso and they were bleeding when he arrived at the scene but does not say how he determined the wounds were all dog bites, given the fact that there was a spear involved and the broken ends of a bamboo spear could cause scratching. The Tribunal assumes that the men Constable Perry saw were Mr Collard, Mr Arrow and Kenny. He said he received information suggesting Mr Fellows was the assailant and arrested him. That statement is rather vague as what information was provided to him is not known. The Tribunal does not know whether any proceedings were commenced against Mr Fellows for breach of the peace, assault or anything of that nature.
Constable Perry said the dog held by Ms Bolger was 'highly aggressive' and foaming from the mouth and he was fearful she would release the dog. It is implicit that Ms Bolger was in control of the dog at that point by holding the tether. He said Ms Bolger was not in 'proper' control of the dog and let the dog get further away from her, although she remained in control of the dog by holding the tether. Constable Perry did not explain what he meant by 'proper control'. Constable Perry conceded the lead Ms Bolger held the dog with was about 2 meters long which is the prescribed length of a dog lead. He said she was trying to record him approaching her and the dog. Ms Bolger agreed she was trying to record him on her phone.

Mr Fox

Mr Fox gave evidence that he is a ranger engaged by the respondent. His evidence was unsatisfactory. He holds no qualifications and his evidence was intended to support the contention in the declaration decision notice that the dog had been 'assessed' to have exhibited 'aggressive behaviour'. His evidence on that issue was wholly unsatisfactory. The evidence he gave was that the dog held by Ms Bolger on 28 March 2019 became aggressive towards him and another ranger when Mr Fellows began yelling at Mr Fox. The other ranger was not called to give evidence. This is the incident that Ms Bolger says Mr Fox provoked the dog by coming towards her and then alleged that the dog had engaged in an 'attack'. The Tribunal finds that Mr Fox's evidence of the incident on 28 March 2019 was very vague and when he gave oral evidence that vagueness was not dispelled.

Mr Collard

Mr Collard had signed a statement. The Tribunal places no weight upon his statements concerning the incident save that he suffered injuries as a result of the dog biting him. His injuries referred to in Exhibit 4, being the medical records, are inconsistent with Mr Arrow's description of the dog savagely shaking Mr Collard and biting Mr Collard repeatedly. Mr Collard had some 'scattered wounds', a superficial wound to the left side of his neck and some puncture wounds to his left arm which were fairly superficial, as noted in those records. There are photographs of these wounds. The medical records state that Mr Collard was 'very intoxicated' and was 'unwilling to give any sort of story as to what happened'. As Mr Collard gave no account for his wounds at the time; was very intoxicated at the time and failed to attend the hearing to give evidence and undergo cross-examination (in circumstances in which the respondent had caused the Tribunal to issue a summons but did not press for Mr Collard to attend pursuant to that summons), the Tribunal places no weight on his evidence about the fray. Mr Collard had his wounds cleaned and dressed, required no stitching and refused antibiotics. The Tribunal finds that Mr Collard's wounds are not consistent with Mr Arrow's version of the events
The Tribunal notes that the dog had not been declared a dangerous dog until 20 June 2019.

The statutory framework

There is no issue that the relevant provisions of the Dog Act have application to the circumstances of this proceeding and that the events all took place in the district of the Shire of Broome.
It is not in issue that Ms Bolger is the registered owner of the dog (registration number 0941RD19) as noted in both notices; that she is the person who has the dog in her possession or under her control and did at the relevant time and is the person by whom the dog is ordinarily kept. The Tribunal was not provided with a copy of the record of registration of the dog but the fact that the dog was registered to Ms Bolger, as the owner, was not challenged.
On a number of occasions during the course of the hearing, both as a statement from the party table and in the witness box, Ms Bolger restated her emphatic position that she owned the dog and she principally controlled the dog, although the dog was protective of Mr Fellows who also cared for the dog. These statements were not challenged by the respondent. Ms Bolger is, for the purposes of the Dog Act, the 'owner' of the dog (s 3(1) of the Dog Act definition (a) of 'owner'); the deemed 'owner' of the dog (s 3(2) of the Dog Act) and she falls within the definition of 'the person liable for the control of the dog' (s 3(1) of the Dog Act).
It is common cause that the applicants have no fixed address, are homeless and occupy various areas of public access land in and around the Broome Township from time to time. The dog therefore is not 'ordinarily kept' or 'ordinarily permitted to live' at any 'premises' as defined by s 3(1) of the Dog Act ('land intended to be occupied as a separate residence'; also see: s 3(1) of the Dog Act definition (c) of 'owner').
There is no mention of how it came to be that the dog was registered to Ms Bolger of no fixed address when the application for registration required identification of the 'premises' where 'the dog would ordinarily be kept' or 'ordinarily permitted to live'. However, that is an aside.
As the respondent asserts a dog attack by the dog on 19 June 2019 the following definitions are relevant.
Section 3(1) of the Dog Act provides that:
… unless the context otherwise requires
attack, in relation to the behaviour of a dog, does not include behaviour which was an immediate response to, and was induced by, provocation, but includes
(a)aggressively rushing at or harassing any person or animal; or
(b)biting, or otherwise causing physical injury to, a person or an animal; or
(c)tearing clothing on, or otherwise causing damage to the property of, the person attacked; or
(d)attempting to attack, or behaving in such a manner toward a person as would cause a reasonable person to fear physical injury,
unless the owner establishes that the behaviour was justified by a reasonable cause;
…
provocation, in relation to the behaviour of a dog, includes
(a)on the part of a person, other than a person liable for the control of the dog —
(i)any teasing, tormenting, or abuse of the dog; or
(ii)any assault on, or act of cruelty towards, the dog; or
(iii)entry without lawful excuse on any land or premises of which the owner of the dog is an occupier or where the dog is ordinarily kept; or
(iv)any intrusion into or upon any vehicle in or on which the dog is present; or
(v)any threat to, or attack upon, another person or animal towards whom the dog could reasonably be expected to be protective[.]
As the respondent asserts that it was entitled and did properly declare the dog to be a dangerous dog (declared) on 20 June 2019 and did properly issue the declaration notice on that day, the following provisions of the Dog Act are relevant.
Section 33E(1) of the Dog Act provides, relevantly:
… on behalf of the local government an authorised person or person specifically authorised by the local government for the purposes of this section either generally or in a particular case, may, by a notice in writing given in accordance with section 33F, declare an individual dog to be a dangerous dog (declared) if, in the opinion of the local government or that person
(a)the dog has caused injury or damage by an attack on, or chasing, a person, animal or vehicle; or
(b)the dog has, repeatedly, shown a tendency
(i)to attack, or chase, a person, animal or vehicle even though no injury has been caused by that behaviour; or
(ii)to threaten to attack[.]
The Dog Act in s 3(1) provides:
authorised person means
(a)a person who is appointed by a local government, to exercise powers on behalf of the local government, under section 29(1); or
(b)a person designated as an authorised officer under the Public Health Act 2016 section 24(1) for the purposes of this Act[.]
As the respondent asserts that the respondent did properly decide to issue and did issue a notice pursuant to s 33G(2) of the Dog Act, and then seized and detained the dog, the following provisions of the Dog Act apply.
Section 33G of the Dog Act provides:
(1)Where an authorised person … has reasonable grounds to believe that an attack by a dangerous dog has occurred, … that authorised person … may, if he has reasonable grounds to believe it is necessary to do so, … seize the dog and thereafter the dog may be detained under section 29(3).
…
(2)On the dog being detained as mentioned in subsection (1) … the local government or an authorised person must give notice in writing, in addition to any notice required by section 29, to the owner of the dog [specifying the matters referred to in sub-paragraphs (a) to (d) of s 33G(2)][.]
The Tribunal notes that no notice required by s 29 of the Dog Act (which must be in a prescribed form) was issued by the respondent. The Tribunal also notes that the notice purporting to be a notice pursuant to s 33G(2) of the Dog Act (that is, the notice of the destruction decision), does not conform with the requirements of s 33G (2)(a)-(d) of the Dog Act. Section 29 of the Dog Act is a lengthy provision and generally refers to the power to seize dogs. Section 29(3) of the Dog Act empowers the seizure and detention of dogs by those nominated and s 29(6) of the Dog Act identifies that a seized dog shall be detained in a 'dog management facility' or in any other suitable premises.
For the purposes of s 33G(1) of the Dog Act, s 3(1) of the Dog Act provides that the term 'dangerous dog' means:
(a)a dangerous dog (declared); or
(b)a dangerous dog (restricted breed); or
(c)a commercial security dog[.]
In this proceeding, the only relevant type of defined 'dangerous dog' is a 'dangerous dog (declared)', which term is itself defined to mean:
… an individual dog that under section 33E(1) is declared to be a dangerous dog (declared)[.]
There is no evidence before the Tribunal that the respondent was required to enter upon any 'premises' as defined by the Dog Act to affect the seizure of the dog or more particularly to enter upon a 'dwelling' in order to affect a seizure of the dog. However, notwithstanding that, the respondent elected to utilise the power conferred on it, and its authorised officer, by s 33G to seize the dog and thereafter to detain the dog purportedly 'pursuant to s 29(3) of the Dog Act'.
There are therefore two statutory powers enabling a dog to be seized and then detained (Frost v Shire of Kalamunda [2007] WASC 322 (24 December 2007)) and the respondent has elected to utilize s 33G to seize and detain the dog. Having elected to seize the dog pursuant to the power conferred by s 33G of the Dog Act, notwithstanding that the seizure involved no 'dwelling' or 'premises', that is the provision by which the respondent's conduct must be judged. As a consequence the respondent must show that it's authorised person was entitled to do so, whether it has complied with the provisions of s 33G and given the notices to the owner called for by s 33G, which includes any notice that must be given to the owner pursuant to s 29 of the Dog Act.

The issues

Standing in the shoes of the decision-maker and reviewing the declaration and destruction decisions under review, the Tribunal must be satisfied that reasonable grounds exist to believe that:
(i)an 'attack' within the meaning of that term as defined by the Dog Act has occurred;
(ii)that particular 'attack' caused injury to a person; and
(iii)the 'attack' was by a dog that falls within the definition of 'dangerous dog', which in this case means a 'dangerous dog (declared)'.
The Tribunal is not satisfied on the evidence that reasonable grounds did exist to hold those beliefs. There are other issues that arise from the events described in this proceeding but they are not relevant in determining this proceeding, as the Tribunal is not satisfied of the primary issue identified. Those other issues include whether the seizure was 'necessary' and whether all relevant notices were served by the respondent. As noted, it appears that the respondent did not serve all relevant notices.
The Tribunal also notes that it was agreed that an 'objection' was raised after the issue of the notices on 20 June 2019, but the respondent's response to that is wholly unsatisfactory. Having made such an objection it was for the respondent to consider that objection, decide and, in the event that it had decided to dismiss the objection, provide reasons therefore (s 33G(5) of the Dog Act). None of that occurred. What appears to have occurred is that the objection was 'dealt' with by the respondent telling Ms Bolger that she should make an application to the Tribunal. That is not what the respondent should have done. The Tribunal mentions this issue, in passing, because it bolster's the Tribunal's view that, in this proceeding, the respondent had little regard to the express words and meaning of the provisions of the Dog Act and its obligations thereunder.

Tribunal's consideration

Dealing with the destruction decision and notice first, it is obvious from a reading of s 33G(1) of the Dog Act that the 'attack' justifying that decision must be one that was carried out by a 'dangerous dog'. That term is defined as noted by the Tribunal and relevantly means there must be an 'attack' by a dog that had already been declared a dangerous dog for the Dog Act.
Whether or not an objection is taken to the declaration decision, by reason of s 33F(3) of the Dog Act, the effect of that declaration decision does not start until seven days after the relevant notice of the declaration decision is issued by the respondent. In this case, the best case scenario for the respondent is that, having made the decision and declared Crazy to be dangerous dog pursuant to s 33E of the Dog Act and served the notice on 20 June 2019, the dog could not have been a 'dangerous dog (declared)' for the purposes of s 33G(1) until 27 June 2019. There is no evidence of any 'attack' by the dog after 19, 20 or 27 June 2019.
For this reason the Tribunal concludes that there were no reasonable grounds for the authorised officer of the respondent to have held a belief that the dog that had been declared a dangerous dog on 20 June 2019 (but was not a dangerous dog (declared) effectively until 27 June 2019) had again attacked within the meaning of the Dog Act. In this proceeding the dog had been detained from 20 June 2019 and there is no evidence of any activity of the dog after the fray on 19 June 2019.
The evidence of Constable Perry does not in the Tribunal's view constitute an 'attack' and even if it did, the dog had not been declared a dangerous dog at that point. Although Constable Perry was worried the dog would attack him there was no prospect of him actually being attacked because Ms Bolger held the lead in any event.
As there was no evidence of an 'attack' by the dog after he had been declared a dangerous dog pursuant to the Dog Act, the destruction decision is wholly without foundation and it, along with the destruction notice, must be set aside.
Turning to the declaration decision, the Tribunal is not satisfied that the incidents on 19 June 2019 were 'attacks' for the purposes of the Dog Act generally or s 33E of the Dog Act particularly because an 'attack', as defined excludes the conduct identified where the dog behaves that way because it had been provoked by someone other than the 'owner' or 'the person who is liable for the control of the dog'. Provocation is defined to include 'any threat to or attack upon another person towards whom the dog could reasonably be expected to be protective'. Mr Fellows is not a person liable for the control of the dog. Mr Fellows did not have control of the dog. Mr Fellows did not and could not provoke the dog but the dog was provoked by a concern about an attack on him.
Ms Bolger in this proceeding was the person who was liable for the control of the dog at the relevant time and she did not provoke the dog. The Tribunal does not accept Mr Arrow's evidence that Ms Bolger let the dog go and pointed the dog to Mr Collard, Mr Arrow and/or Kenny or 'set' the dog onto them. The Tribunal does not accept that Mr Arrow could see any such gestures. The Tribunal accepts and finds Ms Bolger's evidence that she was genuinely and honestly afraid for Mr Fellows' life. The Tribunal accepts and finds that Ms Bolger had good reason to hold that fear.

The Tribunal accepts the evidence of Mr Fellows and Ms Bolger that Mr Arrow was involved in the fight earlier than Mr Arrow says. Mr Fellows' reference to two, rather than three, men may well be because he had been in a substantial fight and his recollection was shaken and it was not clear on that point. Mr Collard did not give evidence, despite the respondent having been issued with a summons for his attendance and the respondent did not press for Mr Collard's attendance. Accordingly, the Tribunal gives Mr Collard's written statement in evidence no weight about what caused or how the fight ensued.
Mr Arrow's recall of the events is also questionable because his version of events is not consistent with the apparent number of times the dog bit Mr Collard and the ferocity of the biting. Mr Arrow said the dog was shaking and savage. That description is not consistent with the superficial injuries sustained by Mr Collard.
The Tribunal generally prefers the evidence of Mr Fellows and Ms Bolger. The Tribunal considers that there was therefore no 'attack' within the meaning of the Dog Act causing injury, upon which it could conclude the dog was and should be declared to be dangerous within the meaning of the Dog Act and s 33E thereof. As to Ms Bolger's conduct in letting the dog go, and whether or not it amounts to 'provocation', the Tribunal finds that her conduct undertaken because of a genuine and honest belief for fear of Mr Fellow's life falls within s 33D(2)(a) of the Dog Act, in that she believed Mr Fellows' life was in danger and she let go of the dog (but did not 'set' the dog onto Mr Collard, Mr Arrow and Kenny) so that he could protect Mr Fellows. The dog's behaviour was provoked by the dog's need to protect a person towards whom he was reasonably likely to feel some loyalty. Ms Bolger however did not provoke the dog's conduct the threat of harm to Mr Fellows did.
It does not matter who started the fight. It does not matter who the aggressor was. The Tribunal accepts that Mr Fellows had three men fighting him on the ground before the dog was let go. That fight is what caused the dog to fear for Mr Fellows and to bite the three men fighting Mr Fellows.
The assertion that the dog had been assessed as 'exhibiting aggressive behaviour' does not assist the Tribunal. The assessment was undertaken by Mr Fox who has no qualifications to assess behaviour of dogs (and does not seem to have been acquainted with the provisions of the Dog Act) to such an extent that he was unable to establish that the dog had a tendency to 'attack' or to threaten to 'attack' or that it occurred repeatedly. As required by s 33E(1)(b) of the Dog Act, there needed to be evidence of either an 'attack' causing injury or evidence of the dog repeatedly showing a tendency to 'attack' or threaten to 'attack'. As stated the term 'attack' is a special term. It is defined. It excludes 'provocation'. 'Tendency' is not defined but there is no evidence thereof and no evidence of repetition of any unprovoked relevant conduct by the dog. The Tribunal notes, in passing that unfortunately neither party had the provisions of the Dog Act at the final hearing. In the applicants' case, the Tribunal considers that failure excusable. It does not consider that failure excusable in the case of the respondent.
As to the incident on 28 March 2019, the Tribunal does not place weight on Mr Fox's description of the dog barking aggressively and that it amounted to an 'attack'. His evidence was vague and lacked particularity in describing his observations, so as to justify an objective conclusion about the behaviour and nature of the dog. Ms Bolger however, gave evidence that Mr Fox's conduct was such that he intended to create a situation with the dog that caused the dog to bark at Mr Fox. The lack of evidence from the accompanying ranger in the form of a contemporaneous record has caused the Tribunal to have less confidence in Mr Fox's version of events and prefers Ms Bolger's evidence. The respondent employs staff who should be familiar with the Dog Act and its intricacies and should be able to produce cogent evidence of events it intends or may intend to rely upon in these kinds of proceedings, particularly where it declared a dog a 'dangerous dog'; proceeded to seize the dog and announce its intention to destroy the dog.
The Tribunal does not consider the events of 28 March 2019, alone, as an 'attack' or as evidence of any tendency to 'attack' or threaten to 'attack' that is unprovoked, or together with the events of 19 June 2019, as evidence of the dog repeatedly showing a tendency to 'attack' or threaten to 'attack'.
For this reason the Tribunal concludes that the declaration decision and the notice thereof should be set aside.

Conclusion

Upon a review of the respondent's declaration and destruction decisions in respect of the dog, made on 20 June 2019 and pursuant to s 29 of the SAT Act and s 33I of the Dog Act, the Tribunal shall set aside the decisions and the relevant notices and further shall order that the dog is released to Ms Bolger forthwith, at no cost to her, such costs having been incurred other than pursuant to s 29, s 33E, s 33F or s 33G of the Dog Act.

Orders

On 2 September 2019, the Tribunal made the following orders:
Pursuant to s 29 of the State Administrative Tribunal Act 2004 (WA) and s 33I of the Dog Act 1976 (WA) and upon review of the decisions made on 20 June 2019, by and on behalf of the respondent to declare the dog, named 'Crazy', owned by and registered to the first named applicant (registration number 0941RD19), a dangerous dog and to detain and cause the destruction of the same, the Tribunal orders that:
1.The decision to declare the first named applicant's dog 'Crazy', a dangerous dog is set aside, as is the notice to that effect issued on 20 June 2019.
2.The decision to detain and cause the destruction of the first named applicant's dog, 'Crazy', is set aside, as is the notice to that effect issued on 20 June 2019
3.The respondent shall release the first named applicant's dog, 'Crazy', from his detention and returned the dog to the first named applicant forthwith at no cost.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS N OWEN-CONWAY, MEMBER
23 SEPTEMBER 2019