Brache v Douglas Shire Council - [2014] QCAT 60

CITATION:

Brache v Douglas Shire Council [2014] QCAT 60

PARTIES:	Zane Rene Brache (Applicant)
V
Douglas Shire Council (Respondent)

APPLICATION NUMBER:

GAR392-13

MATTER TYPE:

General administrative review matters

HEARING DATE:

On the papers

HEARD AT:

Cairns

DECISION OF:

Member Krebs

DELIVERED ON:

29 January 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Destruction Orders for Boston and Lola are set aside.

2. Dangerous Dog Declarations for Boston, Lola and Rascal are confirmed.

CATCHWORDS:

Regulated Dog Declarations - Dog Destruction Orders - Dogs acting in defence of owner

Animal Management (Cats and Dogs) Act 2008 Ss 59, 60, 61, 89, 90, 94, 111, 125, 127, 194, 195 and 195.

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Zane Rene Brache represented by self
RESPONDENT:	Douglas Shire Council represented by Donna Graham as agent

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

This matter is an application to review the decision of the Douglas Shire Council (the council) to issue Destruction Orders and Regulated Dog Declarations Notices under the Animal Management (Cats and dogs) Act 2008 (Qld) (Animal Management Act) for three dogs owned by Mr Zane Brache who are named ‘Boston’, ‘Lola’, and ‘Rascal’.
All three dogs are described in the proceedings as being of the American Bulldog breed.
No issue was taken with this description during the hearing and the Tribunal is satisfied that the dogs Boston, Lola and Rascal are American Bulldogs.
The events which lead to the council making the decision to issue the Destruction Orders and the Regulated Dog Declaration Notices occurred on Sunday 1 September 2013 in or near the property of the dog’s owner Mr Brache at 700 Stewart Creek Road, Daintree. There was no evidence before the Tribunal of any other prior incident or behaviour involving the dogs Boston, Lola and Rascal which could give rise to similar action being taken under the Animal Management Act.
From photographs and evidence given during the hearing, Mr Brache’s property at 700 Stewart Creek Road, Daintree can be described as a rural property. Access to the residence is via a dirt road which leads approximately 400 metres from Stewart Creek Road. Mr Brache was living at the property with his partner Danielle Hardwicke and their three young children along with the three American Bulldogs, Boston a male aged 4 years, Lola a female aged 6 years and Rascal a female aged 6 years.
On Sunday 1 September 2013 at around 2pm, there was an incident, which all parties agreed became quite violent. Around this time, a vehicle containing Mr Anthony Bartels, Mr Michael Keene, and a female backpacker/tourist drove on or near the driveway of Mr Brache’s property. From the evidence it was clear that there was a history of animosity between Mr Bartels and Mr Brache for reasons which were not clear, however what was clear is that Mr Bartels went there on that day to confront Mr Brache…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Brache v Douglas Shire Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] QCAT 60
Decision Date

CaseChat Overview and Summary

Zane Rene Brache filed an application against Douglas Shire Council to review a decision to issue Destruction Orders and Regulated Dog Declaration Notices for his three American Bulldog dogs, Boston, Lola, and Rascal. The events leading to the council's decision occurred on 1 September 2013 when Anthony Bartels, accompanied by Michael Keene and a female tourist, drove to Brache's property to confront him. A physical altercation ensued, during which Bartels armed himself with a baseball bat and struck Brache and the dogs. Boston and Lola attacked Bartels, causing injuries, before the dogs began to fight among themselves. The council seized the dogs the next day and issued Regulated Dog Declarations and Destruction Orders for all three dogs on 26 September 2013. Brache sought an internal review, which was upheld with the exception of the Destruction Order for Rascal, which was cancelled. Brache appealed the decision to QCAT.

The court had to determine whether the council's decision to issue Regulated Dog Declarations and Destruction Orders was correct and preferable, considering the circumstances of the case. Notably, the dogs appeared to be acting in defence of their owner during the altercation. Although the court could not conclusively determine whether Brache had incited the dogs to attack, it acknowledged that dogs act on instinct and do not make reasoned decisions. The court found that the dogs were acting in defence of their owner, hence it set aside the destruction orders for Boston and Lola. The court upheld the council's decision to make dangerous dog declarations for Boston, Lola, and Rascal, noting the seriousness of the injuries inflicted on Bartels and the potential for more severe injuries had Rascal not intervened.

The court cancelled the destruction orders for Boston and Lola and confirmed the dangerous dog declarations for Boston, Lola, and Rascal. The court did not find it necessary to determine whether Brache was guilty of a criminal offence of inciting a dog to attack or cause fear, as this was not directly relevant to the tribunal's decision. The court's focus was on whether the council's decision was correct and preferable, taking into account the circumstances of the case. The court acknowledged the potential for American Bulldogs to inflict severe injuries and the need to ensure public safety while considering the dogs' instinctual behaviour in defending their owner. The final orders reflected the tribunal's findings and balanced the need for public safety with the protection of the dogs.

Orders