Burke v Brisbane City Council - [2020] QCAT 505

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Burke v Brisbane City Council [2020] QCAT 505

PARTIES: ANTHONY BURKE

(applicant)

v

BRISBANE CITY COUNCIL

(respondent)

APPLICATION NO/S:

GAR 438-18

MATTER TYPE:

General administrative review matters

DELIVERED ON:

18 December 2020

HEARING DATE:

29 October 2020

HEARD AT:

Brisbane

DECISION OF:

Member Bridgman

ORDERS:

1. The declaration by the Brisbane City Council that the dog Maddie is a declared menacing dog is set aside.

CATCHWORDS:
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where dog declared menacing dog

Animal Management (Cats and Dogs) Act 2008 (Qld), s3, s89, s127

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s19, s20, s21, s24

APPEARANCES & REPRESENTATION:

Applicant:

CNG Law

Respondent:

Brisbane City Council Legal Office

REASONS FOR DECISION

Mr Anthony Burke applies for a review of the decision by the Brisbane City Council to declare Maddie, a female Maremma dog, to be a declared a menacing dog. Maddie was about 4 months old at the time of the events leading to the declaration. By the time of hearing Maddie had been desexed and microchipped.
Maddie was one of two dogs alleged to have escaped Mr Burke’s properly in Pullenvale about dawn 11 June 2018 and menaced Ms Katherine Martin who was exercising along the road in front of the Burke property. Ms Martin suffered bruising and other injury from one or both dogs involved in the incident and was traumatised by the incident.
The other dog, Oscar, was also declared to be menacing but died before this review and the application for Oscar was withdrawn. The order declaring the dogs to be menacing was stayed by the Tribunal pending this review.
The effect of the declaration, if confirmed, is that Maddie must be kept in accordance with conditions for keeping menacing dogs including, for practical purposes, that she:
·     wear a regulated dog collar and identification tag
·     be usually kept in an appropriate enclosure at Mr Burke’s residence with appropriate dog signage displayed at each entrance to the property
·     be under the effective control of someone who has the control of no more than 1 dog at the same time.
Mr Burke sought an internal review of the menacing dog declaration. On 13 November 2018 the Council confirmed its original decision that the two dogs should be declared to be menacing dogs.
Mr Burke applied to this Tribunal for external review of the declaration decisions. As noted above the older dog passed away and that application was withdrawn on 26 June 2020. This review is solely about the decision affecting Maddie.
Mr Burke’s major argument amounts to one of mistaken identity. His case is that the incident involved two other large white dogs that frequented the street, and not his dogs that were at all relevant time secured in an enclosure behind his house.
In preliminary steps, a Senior Member of the Tribunal invited the Council to reconsider its decision in accordance with s. 23 of the QCAT Act. The Council confirmed at hearing that it had duly reconsidered the decision and confirmed it.
QCAT is independent of the Council and makes its decision based on a fresh hearing. The Tribunal is charged to make “the correct and preferable decision”. The outcome can be that QCAT confirms or amends the decision, sets aside the decision and substitutes its own decision; or sets aside the decision and returns the matter for reconsideration to the decision-maker, with directions the tribunal considers appropriate.[1]
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), ss 19, 20, 21, 24.
Mr Burke gave evidence on his own behalf as did his partner, Ms Noonan. Evidence was also provided by Mr Donald MacPherson, a neighbour, and Mr Neville Greaves who had minded the dogs. All gave oral evidence and were cross examined.
Council appeared and relied upon the material filed by it in the Tribunal. Witnesses included the complainant, Ms Martin, and council officers Messrs Thomas, Talbot, Tucker, Casey and Langguth. There was also a certificate of the Council chief executive Mr Jensen.
Final submissions were filed after the hearing for the Applicant and Respondent and for the Applicant in reply. All evidence and the submissions have been taken into account in this review.

Legal framework and findings

The Animal Management Act allows for regulation of dogs to protect the community where the dog presents a risk. A menacing dog declaration may be made under s. 89 if the dog:
· has attacked or acted in a way that caused fear to a person or another animal if the attack was not serious; or
· may, in the opinion of an authorised person having regard to the way the dog has behaved towards a person or another animal, seriously attack, or act in a way that causes fear to, the person or animal.

The menacing dogs

On 11 June 2018, Ms Martin was taking exercise in her street in semi-rural Pullenvale at around dawn. She had only a few days before moved into a temporary residence with her family as her own, nearby property was being renovated. This was her first (and only) time exercising on that road while resident there. It was not full light, but light enough for her to walk without a torch. A few minutes’ walk down the road, as she approached Mr Burke’s property, she noticed dogs. She says she moved further out into the road. Her evidence was that she saw two large white dogs jumping at a gate at the Western edge of the property. The dogs managed to cause the gates to open and they circled her menacingly. She suffered injury from one or both of the dogs. Photographs and a report in evidence revealed her injuries. She says the two dogs ran back into the property through the same gate. One her evidence the gate was definitely the Western double gate, the one closest to her temporary home. The dogs were not wearing coats. Soon after the incident, a complaint was made to Council about the menacing behaviour of the dogs.
On that day, Mr Burke and Ms Noonan, having both worked late shifts at their shared workplace, returned home at 1 am or later. They attended to their animals: horses and pigs as well as the two dogs. They dined and went to bed about 2.30 or 3 am. On their evidence the dogs were locked in the enclosure, dressed in their coats for the night. They did not rise until about 9 am, well after the incident, when their normal morning routine took place, the dogs being still enclosed and (probably) dressed. On the evidence Ms Noonan arose first, released the dogs who accompanied her as she tended to the horses and pigs before returning to the enclosure to be fed. Later, maybe about noon, they went shopping, leaving the dogs in the yard, as was their habit for short absences. They were unaware of anything untoward until Council officers greeted them on return from shopping and told them the purpose of their visit.
The Council officers attended the property having received the complaint about the dawn incident. No-one was present when they arrived but two Maremma dogs were roaming in the yard and jumping at the fence. They inspected the fence and the secured gates, keeping clear of the dogs on the other side until, shortly after their arrival, Mr Burke and Ms Noonan returned and Council officers informed them of the incident.
The property has three gates on its long road frontage. To the West, where Ms Martin was menaced and harmed by two large white dogs, is a double gate for vehicle access down a gravel drive. That gate is primarily used for farm-like activities, delivery of horse and pig food for example. It is kept chained and locked when not in use. A second, concrete driveway accessing a garage is served by double gates on the East but kept chained and locked. The residents do not use the garage but park their vehicle on the verge between the road and the fence. The third, middle gate is a pedestrian gate offering access to the yard, kept secure by a large chain that is knotted to keep it in place when the gate is not in use. Mr Burke and Ms Noonan told the Tribunal they are very particular about keeping the gates closed and secured. The present fence was constructed some 5 years ago to keep dogs out from their animals, before they had dogs themselves. The property slopes down from the road, and the evidence was the driveway gates could not physically open out because of the rising land.
Mr Burke accepts Ms Martin was menaced and harmed by dogs, but he is certain it was not his dogs. His evidence, corroborated by another, independent witness, was that there were other similarly sized and coloured dogs (identified as white coloured Golden Retrievers) that freely roamed in the area, and easily mistaken, at least to a casual observer, for his dogs. Some photographs were in evidence said to be those other dogs.
Ms Martin’s opinion was that she could tell the dogs were not Golden Retrievers as she had family members who kept that breed. There was no other evidence as to breed of the two dogs involved in the incident. On Ms Martin’s evidence she could not identify the breed of the dog, understandable given how distressing the incident must have been. Her evidence was that the two dogs were similar in size to each other.
The evidence from Mr Burke and Ms Noonan, supported (at least in part) by Council officers, was that the gates were secured and not able to be opened by the Maremma dogs. Both Mr Burke and Ms Noonan told the Tribunal they were particular about securing the gates, ensuring they were chained and locked. Neither could recall when the Western gate had been last been used before the incident, and they did differ considerably in their estimates.
One Council witness was clear that while the dogs were standing at the fence and barking during his visit, they did not jump the fence or gates and were unlikely to do so as they had not, seemingly, learned how. The uncontested evidence was that the Western gate was infrequently used and was secured by a chain and padlock by the time Council officers attended.
Mr Burke and Ms Noonan also told the Tribunal that the dogs were kept in an enclosure attached to the house at appropriate times, including while they slept and when they were away for more than a couple of hours. On their evidence, the enclosure was secure and the dogs could not escape from it to the yard, and in any case, the gates were all secured.
The incident took place in winter, and Mr Burke and Ms Noonan both told the Tribunal their habit was to dress the dogs in coats against the winter cold, particularly at night. There was some divergence about whether the dogs might remove their coats, but it was clear the usual habit was to dress the dogs and not remove their coats until the day had warmed. Ms Noonan would rise first and attend to the other animals on the property in the company of the dogs before returning them to the enclosure to be fed, still wearing coats.
Council evidence included other reports of two large white dogs in the street at two other times. The evidence before the Tribunal was that Mr Burke’s dogs were kennelled at a distant location on one of those dates while he and Ms Noonan were interstate.
The Tribunal does not doubt Ms Martin’s sincerity. However, her evidence cannot be reconciled with other evidence that Mr Burke’s dogs were unlikely to have escaped that morning, being either locked in the small enclosure, or behind a fence and gate from which they could not readily escape if the gates were secured. Further there was evidence that other similarly dogs, readily mistaken for Mr Burke’s animals, roamed free in the area.
Council officers told the Tribunal they were unaware of the other dogs from a search of the register. That is, no Golden Retrievers were registered in that vicinity. No other action to locate other dogs was reported to the Tribunal.

Conclusion on identity of the dogs

The Tribunal is not satisfied, to the relevant standard, the balance of probabilities, that the evidence establishes the identity of the dogs as Mr Burke’s dogs. There is evidence from the Applicant and an independent witness that other dogs were roaming that area and mistaken for his animals. At least once when two large white dogs were reported to be loose, Mr Burke’s dogs were kennelled while he and Ms Noonan were away. Other relevant evidence included the habit of securing the gates; the facts that the dogs did not escape by jumping or opening the gates while agitated in the presence of the Council officers; the habit of securing the dogs at night in the enclosure and dressing them in coats in winter; that on the day of the incident Mr Burke and Ms Noonan had secured the animals and not released them until about 9am, well after the dawn.
It follows that the evidence does not support the conclusion that Maddie was one of the dogs that menaced Ms Martin. Accordingly, the declaration of Maddie will be set aside.
Even if the evidence was sufficiently strong, I would not make the declaration.
The decision to declare a dog to be menacing under s. 89 is discretionary. The evidence is not such that the Tribunal can satisfactorily conclude it was the dog Maddie that caused fear and harm to Ms Martin; and there is no evidence that Maddie has since acted in such a way.
The circumstances before the Tribunal differ materially from those at the time, June 2018, and since the declaration decision. First, the older male dog, Oscar, has died and Maddie is the only dog in Mr Burke’s and Ms Noonan’s care. Second based on their evidence to the Tribunal, they are now very aware of the importance of keeping their dog secure and the consequences should she menace or cause harm to a person. Third, the Tribunal also heard that Mr Burke engaged with Ms Martin before hearing to express his concerns that the dogs might be destroyed. He asked Ms Martin to reconsider her complaint on that basis. That points to Mr Burke’s heightened awareness of his responsibility to keep the dog Maddie secure, even if the engagement was less than prudent.
In all those circumstances, even if it was established that Maddie was involved in the menacing incident, I would not have made the menacing dog declaration.
For the reasons outlined above the Tribunal’s decision is that the Respondent’s declaration of Maddie as a declared menacing dog, under s 89 of the Animal Management (Cats and Dogs) Act 2008 is set aside.

Orders

The declaration by the Brisbane City Council that the dog Maddie is a declared menacing dog is set aside.