Dalgliesh v Brisbane City Council - [2025] QCAT 34

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Dalgliesh v Brisbane City Council [2025] QCAT 34

PARTIES:

LISA DALGLIESH

(applicant)

v

BRISBANE CITY COUNCIL

(respondent)

APPLICATION NO:

GAR562-23

MATTER TYPE:

General administrative review matters

DELIVERED ON:

8 January 2025

HEARING DATE:

3 September 2024

HEARD AT:

Brisbane

DECISION OF:

Member Scott-Mackenzie

ORDERS:

1. The decision of the respondent made 21 August 2023 confirming the decision of the respondent made 7 June 2023 declaring the dog microchip number 956000006812996 and tag number 659710 owned by the applicant and named Budd a declared dangerous dog is confirmed.

2. The directions given by the Tribunal on 10 October 2023 are vacated.

CATCHWORDS:

ADMINISTRATIVE TRIBUNAL – animals – dangerous dog – where a dog killed a cat – where the dog killed a second cat – where the dog declared a dangerous dog – where asserted the second cat attacked or provoked the dog – whether a finding the second cat attacked or provoked the dog precludes a finding the dog seriously attacked the cat – whether decision to make a dangerous dog declaration is discretionary – whether the Tribunal has power to vary the conditions for a dangerous dog

Animal Management (Dogs and Cats) Act 2008 (Qld), s 3, s 4, s 89, s 90, s 92, s 94
Companion Animals Act 1998 (NSW), s 16

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 19, s 20

Brache v Douglas Shire Council [2014] QCAT 60
Brisbane City Council v Roy [2020] QCATA 147
Imbrogno & Anor v Brisbane City Council [2017] QCATA 148
Lake Macquarie City Council v Morris (2005) 63 NSWLR 263; [2005] NSWSC 387
Lee v Brisbane City Council [2012] QCA 284
Lee v Brisbane City Council(No 2) [2012] QCATA 64
O’Donnell v Brisbane City Council [2024] QCAT 112
Roy v Brisbane City Council [2019] QCAT 311

Thomas v Ipswich City Council [2015] QCATA 97

APPEARANCES & REPRESENTATION:

Applicant:

Mr G H Gore

Respondent:

Ms A Fairbairn, City Legal

REASONS FOR DECISION

Application

On 18 August 2023 the applicant (‘Ms Dalgliesh’) made application to the Tribunal to review a decision of the respondent (‘Council’) made 2 August 2023 (‘internal review decision’) confirming a decision of the Council made 7 June 2023 (‘original decision’) declaring Ms Dalgliesh’s dog named Budd a dangerous dog under the Animal Management (Cats and Dogs) Act 2008 (Qld) (‘AM Act’) (‘application’).
Brief background
Budd is a former racing greyhound. On 15 September 2021 Ms Dalgliesh took Budd into her care from the Broken Hill pound, initially as a foster dog. Subsequently, on 4 October 2021, Ms Dalgliesh adopted Budd. At the time, he was about two and a half years old.
On 15 August 2022 the Council received a report Budd had attacked a cat named Coco on Old Cleveland Road, Stones Corner (‘first incident’). Coco was taken to a local animal emergency centre for treatment and pronounced dead at the centre.
Subsequently, on 13 April 2023, the Council received a second report that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] QCAT 34
Decision Date: 8 January 2025

CaseChat Overview and Summary

The case of Dalgliesh v Brisbane City Council involves Ms Dalgliesh, who challenges a decision by the Brisbane City Council to declare her dog, Budd, a dangerous dog under the Animal Management (Cats and Dogs) Act 2008 (Qld). The dispute arose after Budd, a former racing greyhound, attacked two cats, resulting in the death of one and serious injury to the other. The Council made the original decision on 7 June 2023, and Ms Dalgliesh sought a review of this decision, which was confirmed on 2 August 2023 after internal review. The Tribunal's role was to assess the legality and appropriateness of the Council's decision.

The primary legal issues before the court were whether the Council's decision to declare Budd a dangerous dog was discretionary and whether the Tribunal had the authority to modify the conditions attached to such a declaration. Additionally, the court had to consider whether the assertion that the second cat attacked or provoked Budd precluded a finding that Budd seriously attacked the cat. Ms Dalgliesh argued that the incidents were provoked and not unprovoked attacks, and she sought to overturn the declaration.

The court examined the evidence and found that the Council's decision to declare Budd a dangerous dog was not discretionary but rather mandatory under the statutory provisions. The court also determined that the Tribunal did not have the power to vary the conditions of a dangerous dog declaration. The court accepted the evidence that Budd had attacked the second cat, Mickey, despite Ms Dalgliesh's claims of provocation. The court concluded that the findings of serious attack were not precluded by the possibility of provocation.

The Tribunal confirmed the Council's decision to declare Budd a dangerous dog, rejecting Ms Dalgliesh's application for review. The court found that the Council's decision was supported by the evidence and that the statutory requirements for a dangerous dog declaration had been met. The court also vacated the directions previously given by the Tribunal on 10 October 2023.

Orders

Orders of the court

1. The decision of the respondent made 21 August 2023 confirming the decision of the respondent made 7 June 2023 declaring the dog microchip number 956000006812996 and tag number 659710 owned by the applicant and named Budd a declared dangerous dog is confirmed.

2. The directions given by the Tribunal on 10 October 2023 are vacated.

Background

Background to the litigation

On 18 August 2023 the applicant (‘Ms Dalgliesh’) made application to the Tribunal to review a decision of the respondent (‘Council’) made 2 August 2023 (‘internal review decision’) confirming a decision of the Council made 7 June 2023 (‘original decision’) declaring Ms Dalgliesh’s dog named Budd a dangerous dog under the Animal Management (Cats and Dogs) Act 2008 (Qld) (‘AM Act’) (‘application’).Brief background Budd is a former racing greyhound. On 15 September 2021 Ms Dalgliesh took Budd into her care from the Broken Hill pound, initially as a foster dog. Subsequently, on 4 October 2021, Ms Dalgliesh adopted Budd. At the time, he was about two and a half years old. On 15 August 2022 the Council received a report Budd had attacked a cat named Coco on Old Cleveland Road, Stones Corner (‘first incident’). Coco was taken to a local animal emergency centre for treatment and pronounced dead at the centre. Subsequently, on 13 April 2023, the Council received a second report that on 11 April 2023 Budd attacked another cat named Mickey on Bardsley Avenue, Greenslopes (‘second incident’). Mickey suffered serious injuries and was euthanised at a veterinary clinic.Internal review decision The internal review decision recites the Council receiving reports of the first and second incidents. On 26 April 2023 Council officers interviewed the owner of Mickey who confirmed the report. The details of the injuries suffered by Mickey were obtained from the veterinary clinic. On 16 May 2023 Council officers interviewed Ms Dalgliesh. She confirmed Budd picked Mickey up by the face. She further confirmed Budd is a former racing dog and stated he does not like cats. On 17 May 2023 the Council gave to Ms Dalgliesh a proposed declaration notice under section 90 of the AM Act. On 7 June 2023 the Council made the original decision. In reaching the internal review decision, the decision-maker took into consideration audio recordings of the interviews of Ms Dalgliesh on 16 and 18 May 2023, statements by the owners of Coco and Mickey, medical records, and admissions made by Ms Dalgliesh. He acknowledges the further training provided to Budd and commitment to placing him on a lead and wearing a muzzle while outside Ms Dalgliesh’s home. Notwithstanding, the decision-maker concludes, ‘… it does not displace the grounds previously relied upon by the Authorised Person to issue a declared declaration notice.’ The decision-maker then continues:22. According to section 94(2) of the Act, as I am satisfied that the grounds as detailed above have not been displaced, I must confirm the regulated dangerous dog declaration.23. I am satisfied that the injuries sustained by the victim cat are serious and meet the definition of ‘bodily harm’ under the Criminal Code Act 1899. As such the requisite level according to the Act for making a declaration in this matter must be a Dangerous Dog Declaration.24. I am satisfied that Council’s material evidence has been gathered in accordance with the requirements set out in the Evidence Act 1977, and that the evidence establishes these findings to the requisite standard, that standard being the balance of probabilities.25. I do not consider that any other submissions by the applicant displaces the requirement on Council to make a regulated dog declaration. Accordingly, I confirm the original decision and the Dangerous Dog Keeping Conditions attached to this Notice and Marked “Appendix 1” are in force and must be complied with.Ms Dalgliesh’s material

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Subsequently, on 13 April 2023, the Council received a second report that on 11 April 2023 Budd attacked another cat named Mickey on Bardsley Avenue, Greenslopes (‘second incident’). Mickey suffered serious injuries and was euthanised at a veterinary clinic.Internal review decision The internal review decision recites the Council receiving reports of the first and second incidents. On 26 April 2023 Council officers interviewed the owner of Mickey who confirmed the report. The details of the injuries suffered by Mickey were obtained from the veterinary clinic. On 16 May 2023 Council officers interviewed Ms Dalgliesh. She confirmed Budd picked Mickey up by the face. She further confirmed Budd is a former racing dog and stated he does not like cats. On 17 May 2023 the Council gave to Ms Dalgliesh a proposed declaration notice under section 90 of the AM Act. On 7 June 2023 the Council made the original decision. In reaching the internal review decision, the decision-maker took into consideration audio recordings of the interviews of Ms Dalgliesh on 16 and 18 May 2023, statements by the owners of Coco and Mickey, medical records, and admissions made by Ms Dalgliesh. He acknowledges the further training provided to Budd and commitment to placing him on a lead and wearing a muzzle while outside Ms Dalgliesh’s home. Notwithstanding, the decision-maker concludes, ‘… it does not displace the grounds previously relied upon by the Authorised Person to issue a declared declaration notice.’ The decision-maker then continues:22. According to section 94(2) of the Act, as I am satisfied that the grounds as detailed above have not been displaced, I must confirm the regulated dangerous dog declaration.23. I am satisfied that the injuries sustained by the victim cat are serious and meet the definition of ‘bodily harm’ under the Criminal Code Act 1899. As such the requisite level according to the Act for making a declaration in this matter must be a Dangerous Dog Declaration.24. I am satisfied that Council’s material evidence has been gathered in accordance with the requirements set out in the Evidence Act 1977, and that the evidence establishes these findings to the requisite standard, that standard being the balance of probabilities.25. I do not consider that any other submissions by the applicant displaces the requirement on Council to make a regulated dog declaration. Accordingly, I confirm the original decision and the Dangerous Dog Keeping Conditions attached to this Notice and Marked “Appendix 1” are in force and must be complied with.Ms Dalgliesh’s material Ms Dalgliesh filed two affidavits:(a)affidavit of Ms Dalgliesh sworn 8 March 2024; and(b)affidavit of Jesikah Pawa sworn 12 April 2024.Ms Dalgliesh Ms Dalgliesh deposes to her acquisition and adoption, and training, of Budd and asserts, ‘... Budd is no longer a savage greyhound racer, he is a domesticated and cultivated, family pet.’ She walks Budd every day and avoids cats. The first incident involving a cat named Coco and the second incident involving a cat named Mickey, she swears, ‘… are a tragic outcome of provocation or ambush, not attack …’ On both occasions, Ms Dalgliesh continues, ‘... Budd was the first “provoked” or attacked.’

Ratio Decidendi

Legal Principle Established

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