Bradshaw v Moreton Bay Regional Council (No 2)
[2017] QCAT 455
•22 December 2017
CITATION: | Bradshaw v Moreton Bay Regional Council (No 2) [2017] QCAT 455 |
PARTIES: | Tammy Bradshaw |
| v | |
| Moreton Bay Regional Council (Respondent) | |
APPLICATION NUMBER: | GAR136-17 |
MATTER TYPE: | General administrative review matters |
HEARING DATE: | 21 December 2017 |
HEARD AT: | Brisbane |
DECISION OF: | Member Cranwell |
DELIVERED ON: | 22 December 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The decision of the Moreton Bay Regional Council to make a destruction order in respect of Hank is confirmed. 2. Publication of photographs or copies of photographs of a child entered into evidence in this matter, showing an injury to her face, is prohibited. |
CATCHWORDS: | ADMINISTRATIVE REVIEW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – destruction order in respect of dangerous dog – where further risk of non-compliance identified |
APPEARANCES: | |
APPLICANT: | Ms B McMillan of Counsel |
RESPONDENT: | Ms D Whitehouse of Council |
REASONS FOR DECISION
Ms Bradshaw is the owner of Hank.
This is an application for review of a decision made by Moreton Bay Regional Council (the Council) to make a destruction order in respect of Hank pursuant to the Animal Management (Cats and Dogs) Act 2008 (Qld) (the Animal Management Act).
The application for review was determined by a differently constituted Tribunal on 15 August 2017. That decision was set aside on appeal on
11 December 2017. The application for review has been returned to me for reconsideration. It is trite to state that, in reconsidering the matter, I am required to make my own findings of fact and am not bound by the findings made by the previous Tribunal.
The incident
The destruction order arose out of an incident on 21 October 2016. The details of the incident, as recorded by the Council, were as follows:
Customer advised that she was at a neighbours property with other members of the street. Customer advised that her daughter was patting the dog with the owner present. Customer advised that she was approx. 2 meters from her daughter and initially thought the dog had initially ‘nudged’ the child. The dog has however bitten her daughter on the face, with grazing above and below eye socket (no injury sustained to eye) and a chunk missing from cheek. An ambulance was called and took child to Lady Cilento Childrens hospital where she received plastic surgery on the 22/10/2016, Customer advised there was no indication that the dog was going to attack, no bark, growls etc. Customer believed the dog was taken straight back to its property after the attack took place. Customer advised that the neighbourhood is hurting regarding the incident and wants the investigating officer to bear in mind that dogs owner is also struggling regarding the incident.
The hospital medical report noted that the child presented “distressed and in pain” with “blood periorally – large bite over right check – irregular border – opening communicating with oral cavity and vermillion border of lip”. The child was admitted to hospital and the wound was treated with plastic/constructive surgery.
The description of the incident set out above has not been disputed in any material details by Ms Bradshaw. She accepts that Hank caused the injury to the child.
What happened next?
On 8 December 2016, the Council declared Hank to be a dangerous dog. The Council sent Ms Bradshaw a “Regulated Dog Declaration Information Notice” under cover of a letter of the same date. The information notice set out the obligations of Ms Bradshaw, the first of which was:
Desexing
Owner must ensure the relevant dog is desexed within 3 months of the date of the dog is declared a dangerous dog. This is in reference to Section 70 of the Animal Management (Cats and Dogs) Act 2008.
Section 70 of the Animal Management Act relevantly provides:
(1) The owner of a declared dangerous dog or a restricted dog must ensure that it is desexed –
(a)If the dog is a declared dangerous dog – within 3 months after the dog is declared as a dangerous dog unless desexing is likely to be a serious risk to the dog’s health …
The information notice also extracted a number of provisions of the Animal Management Act. These provisions included s 184, which relevantly provides:
Stay of operation of original decision
(1) A designated review application or general review application does not stay the original decision the subject of the application.
(2) However the applicant may, immediately after being given the information notice for the original decision, apply, as provided under the QCAT Act, to QCAT for a stay of the original decision.
(3) QCAT may stay the original decision to secure the effectiveness of the internal review and a later application to QCAT for external review.
(4) A stay may be granted on conditions QCAT considers appropriate.
(5) However, if the original decision relates to a regulated dog declaration a condition must be imposed that each owner of, and responsible person for, the dog must, until the internal review and any external review and appeal are decided, ensure the requirements under schedule 1, section 3 , are complied with for the dog the subject of the declaration …
[Underlining added]
It is not in dispute that Hank has not been desexed.
Ms Bradshaw gave evidence that a former council officer, Jamie Fry, told her on 28 February 2017 that it was not necessary to do so until “all proceedings have been finished”. The statement was made in response to Ms Bradshaw advising Mr Fry that she would be applying to the Tribunal for a review of the decision. I note that by this stage 82 days had elapsed since the date of the dangerous dog declaration. Ms Bradshaw indicated that the reason Hank had not been desexed in the period immediately following the declaration was that she was low on funds.
Mr Fry’s evidence was that he gave Ms Bradshaw a further three months to have Hank desexed. A further 74 days then elapsed until Hank was seized on 23 May 2017.
I have no reason to doubt Ms Bradshaw’s account of her conversation with the Council officer. However, I do not accept that it was reasonable for her to rely on Mr Fry’s oral advice after having previously received a written information notice which set out in unqualified and unambiguous terms the requirement that Hank be desexed within three months. The information notice also attached an extract from s 184 of the Animal Management Act, which sets out in equally unqualified and unambiguous terms that a review application does not stay the original decision. I do not accept the submission made on behalf of Ms Bradshaw that s 184(5) might appear to qualify s 184(1), as a clear reading of subsection (5) indicates that it relates to the conditions which the Tribunal must impose on the grant of any stay. No stay was sought by Ms Bradshaw.
I note that Ms Bradshaw has made efforts to have Hank desexed following the seizure of Hank and the making of the destruction order, which I will come to below.
Other requirements which Ms Bradshaw was required to comply with include that Hank be kept in an enclosure that is childproof and which stops the dog from leaving the enclosure: see Schedule 1 of the Animal Management Act. This was also set out in the information notice provided to Ms Bradshaw.
Evidence was provided from Mr Fry that he was satisfied with the enclosure when he inspected Ms Bradshaw’s property on 28 February 2017. However, evidence was provided from another Council officer, Patrick Jensen, that he inspected the enclosure in which Hank was kept on
11 April 2017. He identified that the spacing between the front fence palings was such that a child could easily fit their hands through the fence and into the enclosure. This was rectified by the time of a further inspection on
26 April 2017.
For completeness, another requirement which Ms Bradshaw was required to comply with was that Hank be muzzled at all times when in a public place: see Schedule 1 of the Animal Management Act. This was set out in the information notice provided to Ms Bradshaw. I questioned Ms Bradshaw and Ms Wingrove about the former’s compliance with this condition. There is no evidence before me that Ms Bradshaw did not comply with this condition after 4:30 pm on 26 December 2016. I note that this is the deadline for compliance specified in the letter dated 8 December 2016.
The destruction order
On 23 May 2017, the Council seized Hank and issued a destruction order.
The Council entered Ms Bradshaw’s property pursuant to a warrant issued by a Magistrate on 23 May 2017. The warrant was based on information provided by Bradley Foley that Ms Bradshaw was “keeping evidence in relation to an offence at the property, namely a Regulated Dog – Dangerous Dog, named ‘Hank’”. The Magistrate indicated that he was “satisfied that entry to the property is necessary to allow the person to take action under the Animal Management (Cats & Dogs) Act 2008”.
Mr Foley’s evidence was that he was investigating the offence that Ms Bradshaw had failed to desex Hank within the prescribed time frame in accordance with s 70 of the Animal Management Act. He stated that he was also investigating the offence under s 194, which I note states that a “relevant person for a dog must take reasonable steps to ensure the dog does not attack, or act in a way that causes fear to, someone else or another animal”.
I am satisfied that Hank might provide evidence of the offence of failing to have a declared dangerous dog desexed within the require 90 day period, and that the warrant was therefore validly issued under s 118 of the Animal Management Act. It follows that Hank was seized under this warrant.
In the alternative, I am also satisfied that Hank was seized under s 125 of the Animal Management Act. This provision permits seizure if the authorised person reasonably believes the dog “is, or may be, a risk to community health or safety”. I am satisfied on the basis of Mr Foley’s evidence that he reasonably held this belief.
In these circumstances, where Hank as a dangerous dog was seized under s 125 or a warrant, I am satisfied that the Council had a power to make a destruction order under s 127(4).
For completeness, I note that s 127A permits the Council to make a concurrent dangerous dog declaration and destruction order. I do not accept that this provision places any limitation on the power to make a destruction order under s 127(4) subsequent to a dangerous dog declaration having been made.
Should Hank be destroyed?
The purposes of Chapter 4 of the Animal Management Act are set out in
s 59(1) as follows:
The purposes of this chapter are to—
(a) protect the community from damage or injury, or risk of damage or injury, from particular types of dogs called ‘regulated dogs’; and
(b) ensure the dogs are—
(i) not a risk to community health or safety; and
(ii) controlled and kept in a way consistent with community expectations and the rights of individuals.
Section 59(2) then sets out a number of means by which these purposes can be achieved, including by dangerous dog declarations and destruction orders.
The Appeal Tribunal has referred to Thomas v Ipswich City Council [2015] QCATA 097 at [18] as a relevant statement of principle:
It is clear that the AM Act is primarily directed towards the effective management and responsible ownership of dogs and that the destruction of a dog is a ‘last resort.’ It is generally where the mechanisms in the Act for management fail, or are ineffective, that destruction arises. The essential question is whether the dog constitutes, or is likely to constitute, a threat to the safety of other animals or to people, by attacking them or causing fear, to the extent that the threat may only be satisfactorily dealt with by the destruction of the dog.
The Appeal Tribunal added at [50]:
As determined in Thomas’s case, the question, and the exercise of discretion that follows, is to be based on whether the dog constitutes, or is likely to constitute, a threat to the safety of other animals or to people, by attacking them or causing fear, to the extent that the threat may only be satisfactorily dealt with by the destruction of the dog.
I do not consider that the reference to “last resort” in Thomas’ case to have any temporal connotations. There is nothing in the Animal Management Act that requires a series of mechanisms be trialled sequentially before a destruction order can be made. Rather, it emphasises the seriousness of a destruction order and the necessity to consider whether the threat can be satisfactorily addressed by means short of a destruction order.
On this analysis, it is helpful to identify what the threat is in this case. Hank has previously caused a serious injury to a child. He did so without warning and without signs of aggression. Therefore, the threat to be addressed is that of a sudden and unprovoked attack by Hank causing serious injury to members of the community, particularly to vulnerable persons such as children. I note that this includes (but is not limited to) the children of Ms Bradshaw’s partner, who stay with them every other week.
Ms Bradshaw previously provided evidence that:
a)Hank has not injured any person before or since the incident, nor has he displayed behaviours in his usual environment that indicate that he would be likely to do so. This was supported by a number of other statements from persons who know Hank.
b)Hank was being treated for an ear infection at the time of the incident, which may have impacted on his behaviour.
c)Hank had been pestered by some children at his fence at some time prior to the incident.
d)Prior to his seizure, and after the dangerous dog declaration, Ms Bradshaw continued to allow young children in her family circle to play with Hank. Photographs were provided of children having close contact with Hank. She did not view them as being at risk.
e)She has unsuccessfully attempted to have Hank desexed following his seizure.
Ms Bradshaw gave oral evidence at the hearing before me that she has arranged for Hank to be desexed in late January if the destruction order is set aside. She referred to having an email confirming the appointment, but this was not proffered as evidence.
Ms Bradshaw also gave oral evidence that she was willing to take the following further steps in relation to Hank:
a)She has organised behaviour training for Hank.
b)She will house Hank in a second enclosure on their property while her partner’s children were staying with them.
c)She will ensure that Hank wears a muzzle if in contact with children on her property.
Mr Malcolm Bradshaw and Mrs Cheryl Bradshaw offered in their written statement to have Hank reside with them if necessary.
While Ms Bradshaw’s evidence (and that of the other supporting witnesses) is in Hank’s favour, there are a number of other factors which cause me concern:
a)Despite receiving an information notice which clearly required her to have Hank desexed within 90 days, Ms Bradshaw did not do so. For the reasons set out above, I have not accepted that she had a reasonable explanation for not having had Hank desexed.
b)Despite receiving an information notice which clearly required her keep Hank in a childproof enclosure, Ms Bradshaw did not make the enclosure childproof until requested by a Council officer. While she then remedied this in a timely manner, there is nothing before me to suggest that the situation whereby children could fit their hands through the fencing and into the enclosure would not have otherwise continued absent Council intervention.
Additionally, I note that the steps listed at paragraphs [33] and [34] of these reasons all go beyond the conditions set out in Schedule 1 of the Animal Management Act, and thus cannot be enforced by the Council. I also have no power to make orders in relation to them. Ms Bradshaw would be free to change her mind in relation to these steps at any time. In this regard, Ms Bradshaw has previously made a point of continuing to allow children in her family circle close contact with Hank. For these reasons, I place little weight on these additional steps in assessing whether the threat posed by Hank can be addressed by means short of a destruction order.
I also place little weight on the absence of a further attack during the seven month period between the incident and Hank’s seizure, in circumstances where there were no reported attacks for the first two years of Hank’s life prior to the incident.
The factors set out at paragraph [35] of these reasons cause me to conclude that Ms Bradshaw has not been particularly diligent in attempting to comply with the conditions applying to the dangerous dog declaration in respect of Hank in the past, and indeed has not fully complied with those conditions. In particular, her willingness to commit the necessary funds to have Hank desexed appears to have only come about following the making of the destruction order. This history of a lack of diligence in turn leads me to conclude that it is more likely than not that Ms Bradshaw would not be fully compliant with the conditions applying to the dangerous dog declaration in respect of Hank in the future. Notwithstanding the statements relating to his good nature, Hank’s record involving a sudden and unprovoked attack on a child is such that I am not satisfied that anything short of full compliance with the conditions applying to the dangerous dog declaration would be sufficient to address the threat to the community which I have identified above. Further, and in the alternative, I am not satisfied that full compliance with these conditions would in any event be sufficient to address the threat of a sudden and unprovoked attack on the children who stay with Ms Bradshaw, who may continue to have close contact with Hank. In these circumstances, the correct and preferable decision is to confirm the Council’s decision to make a destruction order in respect of Hank.
I order pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) that publication of the photographs and copies of photographs of the child entered in evidence be prohibited.
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