BROPHO and CITY OF JOONDALUP
[2014] WASAT 13
•29 JANUARY 2014
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: DOG ACT 1976 (WA)
CITATION: BROPHO and CITY OF JOONDALUP [2014] WASAT 13
MEMBER: MS L WARD (MEMBER)
HEARD: 14 JANUARY 2014
DELIVERED : 15 JANUARY 2014
PUBLISHED : 29 JANUARY 2014
FILE NO/S: CC 1471 of 2013
BETWEEN: NAOMI BROPHO
Applicant
AND
CITY OF JOONDALUP
Respondent
Catchwords:
Notice of seizure and destruction - Declared dangerous dog - Reasonable grounds - Attack - Exercise of discretion
Legislation:
Dog Act 1976 (WA), s 3, s 3(1), s 3(1)(a), s 3(1)(b), s 29(3), s 33E, s 33F, s 33G, s 33G(1), s 33G(2)(d)(ii), s 33H, s 33H(1)(b), s 55 to s 60, Pt XI
Dog Amendment Act 2013 (WA)
Evidence Act 1906 (WA)
State Administrative Tribunal Act 2004 (WA), s 17, s 27, s 27(2), s 32, s 35, s 66
Result:
Application dismissed
Summary of Tribunal's decision:
Ms Naomi Bropho owns a dog by the name of 'Rocco'. Rocco is a brown and white Staffordshire bull terrier cross.
On 18 September 2012, the City of Joondalup notified Ms Bropho that it had commenced proceedings to declare Rocco to be a dangerous dog within the meaning of s 33E of the Dog Act 1976 (WA). Ms Bropho did not object to the Dangerous Dog Declaration. As a result of the Dangerous Dog Declaration, Ms Bropho was required to comply with certain requirements. These requirements included that Rocco be muzzled when in public.
Between 18 September 2012 and 14 October 2013, Rocco was reported to the City of Joondalup or found by its officers to be wandering in public without a muzzle on three occasions. Then on 14 October 2013, Rocco was involved in an 'attack' as defined under the Dog Act 1976 (WA). The attack involved Rocco barking, showing his gums and teeth, growling aggressively, and running towards a woman who was returning from a run and was near Ms Bropho's home. Rocco did not have a muzzle on and was not under any effective control.
As a result of the 'attack', on 21 October 2013, Ms Bropho was given a Notice of Seizure and Destruction of Rocco under s 33G of the Dog Act 1976 (WA). Rocco was seized. Ms Bropho sought a review of the Notice of Seizure and Destruction.
Based on the evidence before the Tribunal, particularly the victim's detailed written description of the attack on 14 October 2013, the Tribunal affirmed the decision to issue the Notice of Seizure and Destruction. The Tribunal was satisfied that an attack by a dangerous dog had occurred. Further, given the history of breaches by Ms Bropho of the dangerous dog requirements, and in the interests of public safety, the Tribunal decided that it should exercise its discretion and affirm the Notice of Seizure and Destruction.
Accordingly, the application for review was dismissed.
This decision was delivered orally on 15 January 2014. These reasons have been edited and citations added.
Category: B
Representation:
Counsel:
Applicant: In person
Respondent: Mr P Hrovatin (Acting as Agent)
Solicitors:
Applicant: In person
Respondent: City of Joondalup
Case(s) referred to in decision(s):
Frost and Shire of Kalamunda [2007] WASC 322
Gorry and Commissioner of Police [2013] WASAT 131
Jones v Dunkel (1959) 101 CLR 298
Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; 26 ALR 247
Rodriguez v Telstra Corporation Ltd [2002] FCA 30
Sammut v AVM Holdings Pty Ltd [No 2] [2012] WASC 27
Wignall and Commissioner of Police [2006] WASAT 206
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The applicant, Ms Naomi Bropho, owns a dog by the name of 'Rocco'. Rocco is a brown and white Staffordshire bull terrier cross. Ms Bropho describes Rocco as a big dog.
Ms Bropho, her three children and Rocco all live in Quesnel Place in the City of Joondalup (City). Rocco is registered under the Dog Act 1976(WA) (Dog Act) at the family's home address.
On 18 September 2012, the City notified Ms Bropho that it had commenced proceedings to declare Rocco to be a dangerous dog within the meaning of s 33E of the Dog Act. The notice was given under s 33F of the Dog Act. As a result of the Dangerous Dog Declaration (DD Declaration), Rocco was required to wear a particular collar and be muzzled when in public, and Ms Bropho was required to install a sign at her home stating 'warning' 'dangerous dog', and her fences were to meet certain requirements.
Ms Bropho did not object to the DD Declaration, nor did she seek its review by the Tribunal. The City gave Ms Bropho about five months to comply with the conditions of the DD Declaration relating to fencing and signage.
The reviewable decision
On or about 21 October 2013, Ms Bropho was given a Notice of Seizure and Destruction (Notice) in regards to her dog, Rocco. The Notice was issued under s 33G of the Dog Act. The Notice stated, insofar as is relevant, that:
… Rocco … has been seized … under the Dog Act …. and is now detained at the RSPCA Animal Shelter[.]
…
Reasons for the seizure are as follows:
Your dog has recently been involved in an attack on a member of the public and has displayed aggressive behaviour towards that person.
Your dog has shown to be unduly mischievous and has been responsible for previous reported attacks on members of the public.
You have failed to adhere to the conditions on the keeping and confinement of your dog which had been declared dangerous on 18 September 2012.
You have previously been convicted of various offences under this Act[.]
The Notice is signed by Mr Paul Hrovatin, Senior Ranger of the City.
Application for review
On 30 October 2013, Ms Bropho applied to the Tribunal for a review of the decision to issue the Notice under s 33G(2)(d)(ii) of the Dog Act. No grounds of review were provided in the application.
Jurisdiction
8Section 33G(2)(d)(ii) of the Dog Act confers jurisdiction on the Tribunal to review the Notice and the City's proposal to destroy Rocco. Accordingly, the Tribunal is satisfied that it has jurisdiction to hear and determine Ms Bropho's application for review.
The application to review the decision to issue the Notice is within the Tribunal's review jurisdiction (s 17 of the State Administrative Tribunal Act 2004 (WA) (SAT Act)).
Review jurisdiction of the Tribunal
The Tribunal's powers on review are well established. In summary, the review of a reviewable decision is to be by way of a hearing de novo (s 27 of the SAT Act). Accordingly, the Tribunal is not confined to the matters that were before the original decision‑maker, and it may consider additional material.
According to s 27(2) of the SAT Act, the purpose of the review is to produce the correct and preferable decision at the time of the Tribunal's decision.
As to the practice and procedures of the Tribunal conducting the review, the Tribunal is bound by the rules of natural justice (s 32(1) of the SAT Act), and the Evidence Act 1906(WA) does not apply to the Tribunal's proceedings (s 32(2) of the SAT Act).
The Tribunal is required to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms (s 32(2)(b) of the SAT Act). The SAT Act also provides that the Tribunal may inform itself on any matter as it sees fit (s 32(4) of the SAT Act).
The Tribunal will now consider the relevant statutory framework under the Dog Act.
The statutory framework
At the time of the seizure on 18 October 2013, s 33G(1) of the Dog Act relevantly provided:
Seizure and destruction
(1)Where an authorised person or a police officer has reasonable grounds to believe that an attack by a dangerous dog has occurred, whether or not a warrant has been applied for under section 29(5a), that authorised person or police officer may, if he has reasonable grounds to believe it is necessary to do so, enter onto or into any premises and there seize the dog and thereafter the dog may be detained under section 29(3). (Tribunal's emphasis)
The word 'attack' is defined in s 3(1) of the Dog Act as:
… 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[.]
Dog Amendment Act 2013 (WA)
On 1 November 2013, the Dog Act was amended by the Dog Amendment Act 2013 (WA) (Dog Amendment Act). The Dog Amendment Act explanatory memorandum relevantly states that:
The key amendments provide for:
•Improving community safety through stricter control of dangerous dogs: covering restricted breeds, individuals [sic] dogs that have been declared dangerous and commercial security dogs[.]
The Dog Amendment Act did not alter the definition of 'attack' in the Dog Act.
The Dog Amendment Act did alter the definition of 'dangerous dog' to differentiate between:
a) a dangerous dog (declared); or
b)a dangerous dog (restricted breed); or
c)a commercial security dog.
However, the change to the 'dangerous dog' definition does not apply to this case. Also, a Staffordshire bull terrier cross is not one of the restricted breeds under the Dog Amendment Act.
A new Pt XI was inserted into the Dog Act to provide for the transitional provisions by inserting new s 55 to s 60 of the Dog Act.
Relevant to this case, s 58 of the Dog Act provides that where a dog has been seized under s 29(3) of the Dog Act and is being detained by a local government immediately before the Dog Amendment Act came into operation, it is to be dealt with as it would have been under repealed s 29(3) of the Dog Act.
Section 59 of the Dog Act provides that a dog declared as a dangerous dog prior to the commencement of the Dog Amendment Act will remain declared as a dangerous dog. Accordingly, in this case, s 33G(1) of the Dog Act remains unchanged by the Dog Amendment Act.
Proceedings in the Tribunal
At the first directions hearing on 14 November 2013, the Tribunal made its standard orders relating to the filing of:
•a statement of issues, facts and contentions (SIFC) by each party;
•documents in support of the parties' case;
•summaries of both parties' witness evidence; and
•in the City's case, documents relevant to the Tribunal's review of the reviewable decision to issue the Notice.
An order to file witness statements was also made.
At the directions hearing, the City advised that it did not intend to seek the destruction of Rocco; rather, it intended to re‑home Rocco.
The City complied with the order to file and serve the bundle of documents and SIFC (marked as Exhibit A at the final hearing).
Ms Bropho did not file any documents with the Tribunal. Neither party provided the Tribunal with any witness statements.
The final hearing took place in the Tribunal on 14 January 2014. Ms Bropho and Mr Hrovatin both attended in person. No witnesses were called by either party. Ms Bropho and Mr Hrovatin gave a mixture of evidence and submissions to the Tribunal.
At the final hearing, Mr Hrovatin highlighted to the Tribunal an email dated 15 October 2013 sent from Dr Orgeas to Mr Ron Randell of the City. The email concerned an incident involving Dr Orgeas and a dog matching Rocco's description on 14 October 2013. The email was marked as Exhibit B. Upon much closer examination of the documents in Exhibit A, the Tribunal notes that the email did in fact form part of the bundle of documents provided to the Tribunal and to Ms Bropho on 24 November 2013.
At the hearing, Mr Hrovatin advised that the City relied on the incident of 14 October 2013 as the basis for the 'attack'. This incident is also referred to in the Notice issued to Ms Bropho on 21 October 2013, and is referred to in paragraph 7 of the City's SIFC dated 24 November 2013.
Ms Bropho's response to the 14 October 2013 incident and the Notice has not gone beyond the fact that she wants Rocco returned to her family home because he was a family dog and she says that he would not hurt anyone.
Issues for determination by the Tribunal
Firstly, there are a number of matters which are common ground between the parties. For example, Ms Bropho does not challenge the form, or the giving of the Notice or the various formalities relating to the seizure of Rocco on 18 October 2013. It is also common ground that Rocco has been declared a dangerous dog by the City and that the DD Declaration remains in place.
Accordingly, the issues for determination by the Tribunal in terms of s 33G of the Dog Act are:
1)Did an authorised person have reasonable grounds to believe that an 'attack' by Rocco occurred on 14 October 2013?
2)If so, should the Tribunal exercise its discretion and seize and destroy Rocco?
These issues are considered below.
Did an authorised person have reasonable grounds to believe that an 'attack' by Rocco occurred on 14 October 2013?
The Tribunal will consider and make findings in relation to what happened during the incident on 14 October 2013.
Incident on 14 October 2013
On the evening of 14 October 2013, the City received a complaint by telephone from Dr Orgeas who described a dog which had chased and bitten her in Quesnel Place, Joondalup.
The dog in question was described by the Dr Orgeas as being a brown bull terrier bull mastiff with white marks on its chest. The dog was soon thereafter established by the City to be Rocco.
The next day, on 15 October 2013, Dr Orgeas wrote a detailed email to Mr Randell regarding the incident (Exhibit B), stating, relevantly:
Please see the following incident report statement that I have tried to accurately summarise following our conversation last night.
Date: Monday 14th October 2013.
Time: 6.30‑6.45pm.
Location: End of cul‑de‑sac at Quesnel Place, Joondalup, just before the alleyway entrance to the end of Manapouri Meander, Joondalup.
Incident: Approached by a vicious brown bull terrier cross bull mastiff breed, white marks on chest. Dog was not on a leash, unsure if collar was present. Barked at me from the time I entered the end of the cul‑de‑sac of Quesnel Place, ran towards me barking showing gums and teeth and growling aggressively, then to attack my right foot/sneaker as I hurried on. I started running immediately looking back and the dog then ran back home. I was returning from a run on the Yaberoo Budjara Heritage Trail.
I was very shaken up by the incident as the dog was roaming freely and unrestrained with no owner present. This is concerning given that my 5 year old daughter plays at the end of the cul‑de‑sac at times as well as a lot of children from Manapouri Meander who regularly ride their bikes up and down this street. This dog has been known to frequent Manapouri Meander on numerous occasions and has never been seen on a leash or being walked by the owner. …
Following on from this incident and the knowledge of the vicious nature and intent of the dog, I would like action to be taken to restrain this dog and issue legal requirements for the owners to comply with restraint requirements imposed by the City of Joondalup. …
I look forward to hearing the outcome of this incident report. I am available and willing to attend a court hearing if deemed necessary to provide a testimony or evidence as requested[.]
Dr Orgeas did not give a sworn statement or oral evidence before the Tribunal. There are no witnesses to the incident. The incident is alleged to have occurred in Ms Bropho's street.
Can the Tribunal rely on the email - is it credible?
The Tribunal notes that Mr Hrovatin stated in the City's SIFC dated 24 November 2013:
I understand that the complainant had declined to provide a statement of the incident.
The Tribunal makes two observations in relation to this aspect of Mr Hrovatin's statement, namely:
•Firstly, once Ms Bropho had received the City's SIFC on or about 24 November 2013, she was on notice that the complainant witness was not being called by the City and it was open to her to summons Dr Orgeas.
•Secondly, Mr Hrovatin's statement dated 24 November 2013 appears to be at odds with Dr Orgeas' email of 15 October 2013 regarding her willingness to assist in the proceedings. No explanation was offered by the City regarding its decision not to call Dr Orgeas as a witness to give evidence in person. Mr Hrovatin stated that the City relied on the contents of her email alone in support of its 'attack' claim.
The email is relevant and significant to the issue of whether or not an attack occurred on 14 October 2013. The real issue for the Tribunal is whether the email is credible and reliable.
Ms Bropho challenged the credibility of Dr Orgeas' email and the weight the Tribunal could place on it. In effect, Ms Bropho submits that the email is hearsay evidence and therefore should be excluded from evidence. Arguably, the email has not been demonstrated by any witness to be accurate and reliable. In Ms Bropho's words, the email could have been written by anyone.
Ms Bropho's submission has some force where the rules of evidence apply. This is especially so in circumstances where the well established principles in Jones v Dunkel (1959) 101 CLR 298 arise. However, there is a need for one party to raise a prima facie case before any adverse inference could be drawn as to the failure of the other party to call a witness.
In this case, Ms Bropho has not raised a prima facie case which challenges Dr Orgeas' version of events, beyond testing her recollection. There were no witnesses to the incident and no alternate scenario or evidence has been provided by Ms Bropho. Ms Bropho did mention at the final hearing that it could have been her neighbour's bull mastiff, Scar, which was involved in the incident. However, she then accepted that Scar does not have 'white marks' on his chest.
As set out above, the rules of evidence do not apply in the Tribunal.
The Tribunal notes that s 32 of the SAT Act does not mean that the rules of evidence are to be ignored. The more flexible procedure provided for in the Tribunal does not justify decisions made without a basis in evidence having probative force (see Sammut v AVM Holdings Pty Ltd [No 2] [2012] WASC 27 (Sammut) at [40] citing Rodriguez v Telstra Corporation Ltd [2002] FCA 30 (Rodriguez) which in turn relied on Re Pochi and Minister for Immigration and Ethnic Affairs[1979] AATA 64; 26 ALR 247 at 256 (Pochi)).
In Wignall and Commissioner of Police [2006] WASAT 206 at [279] and [280] (Wignall), Justice Barker noted that relevant and credible evidence may include hearsay evidence. In these circumstances, the Tribunal considers the email to be relevant evidence.
Also, Ms Bropho submits that if the email is to be admitted into evidence, then the Tribunal should not attach too much importance to it. This is because Dr Orgeas was not called to give evidence by the City. Accordingly, Ms Bropho was not able to cross‑examine Dr Orgeas to test the veracity of the contents of the email.
In Sammut at [41], Commissioner Sleight referred to Brennan J stating at 493 in Pochi that:
… a Tribunal which is not bound by rules of evidence is entitled to have regard to evidence which is logically probative whether it is legally admissible or not. Further, this would appear to be so even though a party has not been given an opportunity to cross-examine on the material.
The right to cross‑examination is viewed as an important feature of procedural fairness, although s 32(6)(c)(ii) of the SAT Act qualifies that right (see Commissioner Sleight in Sammut at [45] and [48]).
In this case, Ms Bropho has not challenged or offered any credible evidence which contradicts the City's case. She did not file any documents in response to the City's bundle of documents or SIFC (Exhibit A). She has been afforded every reasonable opportunity to place evidence before the Tribunal and to make submissions.
Rather, Ms Bropho's submissions focused on whether the discretion should be exercised by the Tribunal in her favour. As of 24 November 2013, Ms Bropho was aware that the City was not calling Dr Orgeas as a witness. Ms Bropho could have sought to summons Dr Orgeas herself (s 66 of the SAT Act) or requested that the Tribunal do so (s 35 of the SAT Act).
In the Tribunal's view, the following factors tend to indicate to the Tribunal that the email (Exhibit B) in itself is credible and reliable, namely:
•The email is written almost contemporaneously with the events which it describes. In this case, the incident occurred on the evening of 14 October 2013 and the email describing the incident is dated 15 October 2013.
•The email contains very clear and detailed information regarding the incident of 14 October 2013. The level of detail tends to indicate that the events occurred. The email is internally consistent and logical.
•The email refers to a conversation the author had with an officer from the City. This offers some corroborative evidence which is capable of verification.
•There is no indication from the City that the telephone complaint of 14 October 2013 differed in any material way to the contents of the email dated 15 October 2013 and, accordingly, the email appears to be consistent with what Dr Orgeas said on another occasion.
•Further, there is no indication that Dr Orgeas had any reason or motivation to falsify or fabricate the fact of the incident and the details.
Having considered all of the above factors, in particular the fact that the email is a contemporaneous and detailed note of the incident, in the Tribunal's view, the email produced to the Tribunal by the City is a relevant and credible document which the Tribunal relies on and attaches great weight to.
Accordingly, the Tribunal will consider if the facts set out in the email amount to an attack under s 3 of the Dog Act. Based on the evidence before the Tribunal it appears that s 3(1)(a) and s 3(1)(b) of the 'attack' definition are the most applicable.
There is no evidence before the Tribunal from Ms Bropho that 'the behaviour was justified by a reasonable cause', as set out in s 3 of the Dog Act.
In the Tribunal's view, a large dog rushing towards a person baring its teeth and growling may be viewed as 'aggressively rushing' under s 3(1)(a) of the Dog Act.
Further, Dr Orgeas claims that, as she ran off, her shoe was bitten by Rocco. In response, Ms Bropho submits that a dog as big and as strong as Rocco would take a shoe off the person if he had bitten it. There is no evidence of Dr Orgeas losing her shoe. Further, there is no medical evidence supporting the claim that Rocco bit Dr Orgeas.
In any case, the Tribunal need only be satisfied of one of the subparagraphs in the 'attack' definition in order for it to conclude that an attack had occurred.
Whether or not there had been an attack within the meaning of s 3(1)(a) or s 3(1)(b) of the Dog Act are different and distinct matters which require separate consideration. Accordingly, the same incident may give rise to two separate 'attacks' as defined.
In this case, the Tribunal is satisfied that an attack occurred in terms of s 3(1)(a) of the Dog Act. For the purposes of s 33G of the Dog Act, one attack by a dangerous dog is sufficient. There is no evidence of Rocco being provoked or of Ms Bropho establishing that Rocco's behaviour was justified by a reasonable cause. Ms Bropho has not challenged the fact of the attack at any time or provided any evidence to the contrary. Accordingly, there is no need for the Tribunal to make any finding in relation to whether or not a second attack occurred under s 3(1)(b) of the Dog Act.
The severity or otherwise of the attack is not relevant to whether or not an attack occurred. The severity of the attack is a factor relevant to the exercise of the City's discretion to seize and detain a dog, and is dealt with below.
In the Tribunal's view, the evidence shows that Rocco aggressively rushed at or harassed Dr Orgeas. Accordingly, such an event is an 'attack' within s 3(1)(a) of the Dog Act.
As a result of the Tribunal placing a great deal of weight and reliance on the email, it is satisfied that an 'attack' occurred as defined in the Dog Act.
Accordingly, an authorised person did have reasonable grounds to believe that an 'attack' by Rocco occurred on 14 October 2013.
If so, should the Tribunal exercise its discretion under s 33G(1) of the Dog Act and seize and destroy Rocco?
The discretion conferred under s 33G(1) of the Dog Act is wide, subject to the confines of the purpose of the Dog Act and s 33G itself (see Gorry and Commissioner of Police [2013] WASAT 131 at [54]). The long title of the Dog Act states that it is to 'consolidate the law relating to the control … of dogs … '.
In the Tribunal's view, the matters relevant to the exercise of the discretion under s 33G of the Dog Act include those events which have occurred since Rocco was declared a dangerous dog. This is because a requirement of s 33G of the Dog Act is the fact that a DD Declaration is already in place.
Accordingly, the matters relevant to the exercise of the discretion to seize and detain Rocco are those events occurring after 18 September 2012, when he was declared a dangerous dog.
Based on the relevant documents in Exhibit A, these events include Rocco being reported to the City as being observed in public without a muzzle, and not under anyone's effective control on at least three occasions between 18 September 2012 and 14 October 2013. For example:
•31 October 2012
Report of Rocco being in the park next to Joondalup Primary School ‑ not with his owner. Rocco was returned to Ms Bropho by City officers. Ms Bropho told the City officers that her children had let Rocco out.
•5 November 2012
Photographs taken by a City ranger of Rocco wandering in a public place. Photographs show that he is not muzzled or under any person's control.
•6 November 2012
Rocco seized (under s 33G of the Dog Act) ‑ subsequently returned to Ms Bropho.
•20 April 2013
City received complaints regarding Rocco wandering in a public place ‑ Rocco was observed jumping the fence and freely roaming Quesnel Place and Burns Beach Road.
Balanced against the evidence of these incidents is the fact that the 'attack' may be considered to be at a medium level. However, based on Dr Orgeas' email, she certainly felt 'very shaken' by the unprovoked attack ‑ so much so that she ran away from Rocco, a large dog, as he ran towards her barking, growling aggressively and showing his gums and teeth.
The Tribunal notes that there is no medical evidence of any injury, or photographs of any injury to Dr Orgeas. The lack of any evidence of any visible injury does not detract from the gravity of the attack. Clearly, Dr Orgeas felt threatened and feared physical injury. Dr Orgeas was still affected by the incident, such that, within 24 hours, she confirmed in writing the details of the incident to the City.
Dr Orgeas and all members of the public are entitled to go about their daily business, including exercise routines, in public places without fearing an unprovoked attack from a dog which has been declared dangerous. Public safety through the effective control of dogs is a priority under the Dog Act.
The Tribunal accepts that Rocco is a loved family pet and that he is, and will be, missed by Ms Bropho and her children. However, the right to dog ownership is accompanied with certain responsibilities, including ensuring that the dog is kept under effective control at all times.
In the Tribunal's view, the weight of evidence before it is such that the City had reasonable grounds to exercise the discretion under s 33G of the Dog Act by seizing and detaining Rocco, and the Tribunal affirms that decision.
Availability of s 33H of the Dog Act ‑ revocation of declaration or proposal to destroy
The Tribunal notes that Justice Murray in Frost and Shire of Kalamunda [2007] WASC 322 stated that s 33H of the Dog Act may be applicable in some cases:
It follows that it would now be within the power of the respondent to destroy the dog, pursuant to s 33G(6)(b), but I should say this. Section 33H(1)(b) provides that a local government may, on the application of the owner of the dog, revoke the notice proposing to cause a dog to be destroyed, 'if the local government is satisfied that the dog can be kept without the likelihood of any contravention of this Act'. By s 33H(4), the application for review of the notice proposing the destruction of the dog having now been finally determined, an application under this section may now be made.
An application under s 33H(1)(b) of the Dog Act may be made by the City or the dog owner.
Conclusion
In the Tribunal's view, the City's decision to issue the Notice under s 33G of the Dog Act was the correct and preferable decision. Accordingly, the Tribunal affirms the City's decision.
Orders
1.The application for review is dismissed.
2.The decision made by the City of Joondalup to issue a notice under s 33G of the Dog Act 1976 (WA) on 21 October 2013 is affirmed.
I certify that this and the preceding [75] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS L WARD, MEMBER
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