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 on or near his property.
On the evidence before the Tribunal, I am satisfied that Mr Bartels and Mr Brache got involved in a physical altercation which resulted in the dogs Boston and Lola attacking Mr Bartels causing bodily injuries which are depicted in the photographs which were before the Tribunal.
The Tribunal heard evidence via telephone from Mr Bartels, and from Mr Michael Keene, Ms Hardwicke and Mr Brache in person and from several council officers. The council officers were not present at the incident and there were no independent witnesses who saw what happened on that day.
The Tribunal is not required to determine who or if anyone is guilty of a criminal offence, suffice to say that on the evidence, the Tribunal is satisfied that Mr Brache and Mr Bartels engaged in a fist fight on or near Mr Brache’s property and that during the course of the fight, Mr Bartels armed himself with a baseball bat which he used to strike Mr Brache and the three dogs in question. On all accounts this was a violent confrontation with both Mr Bartels and Mr Brache striking each other during the course of the conflict.
The Tribunal has before it photographs taken of the injuries suffered by Mr Bartels and a short video which was taken on a mobile phone by Mr Keene which also shows the injuries. On the video it can be heard that Mr Bartel saying “Fuckin’ dogs attacked me – at the back. Look at that?”
Mr Brache in his evidence suggests that Mr Bartels received these injuries when he was knocked down and struck the star picket fence near the gate of the property. Having viewed the photographs and the video I am satisfied that the injuries on Mr Bartels, namely to his back left shoulder were inflicted by Boston and those to his right ear and throat area were inflicted by Lola. There were no physical injuries inflicted by Rascal. I am also satisfied on the evidence that the dogs Boston and Lola only stopped attacking Mr Bartels when all three dogs began to attack each other after Rascal had most likely struck one of the other dogs. The three dogs are clearly shown fighting each other in the video taken by Mr Keene.
The following day the 2 September 2013, all three dogs were seized by the council with Regulated Dog Declaration and Destruction Orders issued for all three dogs on 26 September 2013 with Mr Brache seeking an internal review of this decision on 5 November 2013.
The council conducted an internal review of this decision which was carried out by Mr Graham Boyd on behalf of the council on 22 November 2013, and his decision was to confirm the Regulated Dog Declaration Orders for all three dogs and confirm the Destruction Orders for the dogs Boston and Lola only, cancelling the Destruction Order for Rascal.
Mr Brache appealed this decision to QCAT on 2 December 2013.
In determining this matter, I have considered the evidence presented to the Tribunal to decide if the council’s decision is the correct and preferable decision taking into account the circumstances of this case.
One issue of concern to me is the fact that in this case it seems that the dogs were acting in defence of their owner when they attacked Mr Bartels. This occurred on or near their property with Mr Bartels in a physical confrontation with their owner with Mr Bartels at some stage arming himself with a baseball bat. This is a completely different situation where a dog attacks a person without provocation on a public street or area. It was said in evidence by Mr Bartels that Mr Brache has set the dogs onto him. Mr Brache has denied this and the Tribunal is unable to decide if this is the case or not since there is conflicting accounts from the various witnesses on this issue. If it were the case, Mr Brache could face prosecution under section 195 of the Animal Management Act in encouraging a dog to attack or cause fear. There was no evidence that Mr Brache was indeed prosecuted for this offence.
Section 196 of the Animal Management Act provides for a defence for offences against section 194 and 195. Relevantly in this case, section 196 (1) (a) (ii) provides that it is a defence if the dog attacked to protect its owner.
Even though this defence is for a prosecution under sections 194 and 195 of the Animal Management Act, I find that this should be taken into consideration when considering making the Destruction Order. Dogs, like other animals act on instinct, and do not have the capacity to make reasoned decisions in deciding to intervene or not when their owner is perceived to be in danger.
In these circumstances, I find that the dogs were acting in defence of their owner hence it is the decision of the tribunal to cancel the destruction order for the dogs Boston and Lola.
As for the Dangerous Dog Declarations, the Tribunal is satisfied that the criteria under section 89(2)(a) is met and it is a question of whether the council’s decision is the correct and preferable decision taking into account the circumstances of this case.
The injuries inflicted on Mr Bartels by Boston and Lola are quite serious. In the evidence it appears that the dogs involved only stopped their attack when Rascal intervened and the dogs then engaged in fighting each other and let go of Mr Bartels. Had this not occurred there is a strong possibility that the injuries suffered by Mr Bartels would have been far more serious. The capabilities of American Bulldogs to inflict severe even fatal injuries are set out in the materials provided to the Tribunal by Mr Brache. In the circumstances, I uphold the decision of the council in making dangerous dog declarations for Boston, Lola and Rascal.