Chaplin v Sunshine Coast Regional Council

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QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Chaplin v Sunshine Coast Regional Council [2019] QCAT 371

PARTIES:

KARA ROSE CHAPLIN
(applicant)
v

SUNSHINE COAST REGIONAL COUNCIL

(respondent)

APPLICATION NO/S:

GAR226-19

MATTER TYPE:

General administrative review matters

DELIVERED ON:

29 November 2019

HEARING DATE:

18 November 2019

HEARD AT:

Maroochydore

DECISION OF:

Member Dr Collier

ORDERS:

The decision of the Respondent is confirmed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – regulated dogs – declared dangerous dog – dog destruction order – where one animal was killed and another two injured as a result of three separate attacks by a dog

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20(1), s 20(2), s 24

Animal Management (Cats and Dogs) Act 2008 (Qld),
s 3, s 3(d), s 4, s 59(1), s 59(2),s 89(1), s 89(2)(a),
s 89(2)(b), s 89(7), s 104, s 127, s 127(4), Chapter 4, Schedule 1 – s 4, Schedule 2

Balens v Moreton Bay Regional Council [2018] QCAT 297
Bradshaw v Moreton Bay Regional Council [2017] QCATA 139
Briginshaw v Briginshaw (1938) 60 CLR 336
Lee v Brisbane City Council (No 2) [2012] QCATA 64
Nguyen v Gold Coast City Council Animal Management [2017] QCATA 121

Thomas v Ipswich City Council [2015] QCATA 97

APPEARANCES & REPRESENTATION:

Applicant:

N Edridge, of counsel

Respondent:

G Lalor, Supervisor, Prosecutions and Reviews

REASONS FOR DECISION

  1. Kara Chaplin owns a 7-year old neutered male dog, ‘Sarge’. Sarge is a 27kg American Staffordshire (or Pit Bull) Terrier cross. Ms Chaplin also owns other animals, including an older female dog, ‘Nala’. But this decision involves only Sarge.

  2. Ms Chaplin has a partner, Eli Madigan, and, together, they care for three children: one aged 8, and two infants.

  3. Unfortunately, Sarge attacked, inflicted injury to, or caused the death of, other dogs on three occasions: in 2016, 2018, and 2019.

  4. In 2016 Ms Chaplin and her family, along with dogs Nala and Sarge, lived in a rental property in Cooroy. On 18 August 2016 Nala and Sarge escaped from the property through a faulty gate that was not properly closed, and Sarge attacked and killed a small dog being walked on a leash in front of the property.

  5. Ms Chaplin was distressed by this incident and consoled and compensated the owners of the small dog for the incident.

  6. As a result of this incident Sarge was declared by the local authority, in this case Noosa Shire Council, as a Regulated Dangerous Dog (‘RDD’). Ms Chaplin also took Sarge for some obedience lessons, but the dog did not complete the course of training.

  7. Ms Chaplin and her family subsequently moved to Peregian Springs on the Sunshine Coast and informed the local authority about her ownership of Sarge and his RDD classification.

  8. Owning a RDD imposes a number of particular obligations on the owner of the dog. These include:

    (a)Housing the dog at a nominated and approved residential address;

    (b)Confining the dog to an approved enclosure;

    (c)Ensuring that the dog…

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Details
Case
[2019] QCAT 371
Decision Date

CaseChat Overview and Summary

In the case of Chaplin v Sunshine Coast Regional Council, the central issue was the destruction of a dog named Sarge, a registered dangerous dog (RDD) owned by Ms Chaplin. Sarge was involved in three separate incidents where he killed one dog and injured two others. The Sunshine Coast Regional Council issued a dog destruction order for Sarge, which was subsequently challenged by Ms Chaplin in the Queensland Civil and Administrative Tribunal. The Tribunal was required to determine whether the Council's decision to order the destruction of Sarge was justified.

The primary legal issue revolved around whether the Tribunal should intervene in the decision of the Council, which had determined that Sarge posed an unacceptable risk to public safety. The Tribunal needed to assess the evidence presented by the Council and Ms Chaplin to determine if the Council's decision was made within its statutory powers and was a reasonable exercise of those powers. Specifically, the Tribunal considered whether Ms Chaplin had complied with the mandatory conditions for keeping a RDD, particularly the requirement to confine Sarge in a suitable enclosure.

The Tribunal concluded that the Council's decision to order the destruction of Sarge was appropriate and well-balanced. It found that Ms Chaplin had not complied with the mandatory condition of confining Sarge to a suitable enclosure, despite multiple warnings and notifications. The Tribunal was comfortably satisfied that Sarge had been the aggressor in all three documented attacks, and that his destruction was necessary to protect public safety. The evidence showed that Ms Chaplin had demonstrated considerable remorse but had not taken sufficient action to prevent Sarge from causing harm.

The Tribunal confirmed the Council's decision to destroy Sarge, finding that the balance struck by the Council was appropriate and that it was the preferable decision given the circumstances. The Tribunal's decision was based on the clear evidence of Sarge's aggressive behaviour and the failure of Ms Chaplin to comply with the mandatory conditions for keeping a RDD. The Tribunal upheld the Council's authority to make such a decision and found that it was within the scope of the Council's statutory powers.

Orders

Orders of the court

The decision of the Respondent is confirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The standard of proof required in findings of fact by the Tribunal is that the Tribunal must be ‘comfortably satisfied’ having regard to the nature and consequence of the facts to be proved.[18][18]Briginshaw v Briginshaw (1938) 60 CLR 336.Evidence for the Council Sarge has been the aggressor in each of three documented instances where he has been involved in an altercation with other dogs. As a result of the attack on 29 March 2019, Sarge was taken into the custody of the Council on 4 April 2019 and has been held at the Council pound since that date. Michael Gilbert, Senior Response Services Officer, an authorised officer of the Council, issued an order on 16 April 2019 for the destruction of Sarge. Mr Gilbert testified that he has been in his position with the Council for five years and this is only the second occasion in that time that he has ordered the destruction of a dog. When asked why he seized Sarge on 4 April 2019 Mr Gilbert replied that Sarge was not in his prescribed enclosure. In his testimony Mr Gilbert agreed that Ms Chaplin had:(a)When she moved into the Council’s region, informed the Council in a timely manner that she possessed a RDD, Sarge;(b)Always paid her animal registration fees on time;(c)Demonstrated considerable remorse at Sarge’s aggression and injury to other dogs; and(d)Appeared to him as an honest person in her comments and dealings. Exhibit 1, a 3-page extract from the Council’s website describing ‘Regulated dogs’ was shown to Mr Gilbert. He was not familiar with the extract. The extract does not mention the obligation on the owner of a RDD to confine their dog to a suitable enclosure.[19][19]As an owner is required to do: Animal Management (Cats and Dogs) Act 2008, Sch 1, s 4. Exhibit 2, a copy of the Regulated Dangerous Dog Registration renewal notice issued for Sarge dated 1 September 2018, was tendered by the Council. It comprised two A4 pages: page 1 dealing with the registration; and page 2 being headed ‘Mandatory conditions for keeping a Regulated Dangerous Dog’. Mr Lalor for the Council stated that the two pages of Exhibit 2 are sent to dog owners on one A4 leaf with the registration details on the front and the mandatory conditions on the back. Ms Chaplin testified that she has no recollection of having seen page 2 of Exhibit 2. Mr Gilbert testified that premises where each RDD known to the Council lives is inspected annually for compliance. The Council tendered Exhibit 3, a copy of a notice sent by post to Ms Chaplin detailing the results of an audit of her premises pertinent to Sarge conducted on 15 November 2018. This notice discloses that, at the date of the audit, Ms Chaplin’s premises were compliant. A portion of the letter containing the notice read:Council has attached an information sheet in relation to the mandatory conditions for keeping a regulated dangerous dog. Please ensure that you are aware of and adhere to the referenced conditions. Exhibit 3 contains eight pages, including two pages headed ‘Mandatory conditions for a Declared Dangerous Dog’, and one page headed ‘Other important laws for keeping a declared dangerous dog’. Ms Chaplin testified that she recalled receiving pages 7 and 8 of the notice disclosed as Exhibit 3, but not the remainder of the document.

Decision

Reasons for decision

The balance struck by the Council in its decision to have Sarge destroyed is appropriate. It is a correct decision, and it is the preferable decision.Decision The decision of Sunshine Coast Regional Council to destroy Sarge is confirmed.

Ratio Decidendi

Legal Principle Established

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