Daly v Noosa Council - [2023] QCAT 150

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Daly v Noosa Council [2023] QCAT 150

PARTIES: MATHEW DALY

(applicant)

V

NOOSA COUNCIL

(respondent)

APPLICATION NO/S:

GAR414-22

MATTER TYPE:

General administrative review matters

DELIVERED ON:

4 May 2023

HEARING DATE:

4 May 2023

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

The decision of the Noosa Council to make a destruction order in respect of Red Dog is confirmed.

CATCHWORDS:
ANIMALS – VARIOUS STATUTORY PROVISIONS – REGULATION OF COMPANION ANIMALS – OTHER MATTERS – destruction order in respect of dangerous dog – where further risk of non-compliance identified

Animal Management (Cats and Dogs) Act 2008 (Qld), s 127

Bradshaw v Moreton Bay Regional Council [2018] QCATA 140
Cutbush v Scenic Rim Regional Council [2019] QCAT 80
Mitchell v Gympie Regional Council [2020] QCATA 19
Thomas v Ipswich City Council [2015] QCATA 97

REPRESENTATION:

Applicant:

Self-represented

Respondent:

J Voges

REASONS FOR DECISION

This is an application for review of a decision made by the Noosa Council (the Council) to destroy Red Dog pursuant to section 127 of the Animal Management (Cats and Dogs) Act 2008 (Qld) (the Animal Management Act).
Mr Daly is the owner of Red Dog.

History

Mr Daly does not dispute the history set out by the Council in the decision under review. In summary:
(a)On 7 July 2016, Red Dog escaped the property where he was kept through a hole in the fence, and attacked a Maltese X breed of dog.
(b)On 26 May 2020, Red Dog again escaped the property where she was kept and attacked a Dachshund breed of dog. The victim dog required emergency surgery.
(c)On 16 June 2020, a woman contacted the Council and advised that Red Dog had attacked her Lhasa Apso breed of dog about eight weeks earlier. The dog received puncture wounds that had to be treated by a vet. The woman also received a bite to her ankle during the incident. Mr Daly arranged for payment of the vet treatment.
(d)On 10 July 2020, Red Dog was declared dangerous by the Council.
(e)On 18 August 2020, an inspection was conducted the property where Red Dog was kept, and the Council found that the mandatory requirements for enclosing the dog were not met.
(f)On 9 September 2020, a further inspection was conducted the property where Red Dog was kept, and the Council again found that the mandatory requirements for enclosing the dog were not met.
(g)On 21 April 2022, Red Dog was observed by Council officers to be roaming off the property and not secured in her enclosure.
(h)On 20 May 2022, Red Dog escaped a parked vehicle owned by Mr Daly. Red Dog attacked a Cavoodle breed of dog. The attack caused no injuries to the victim dog but caused fear to the dog owner.
(i)On 11 September 2022, Red Dog escaped the property where she was kept and attacked a Miniature Poodle breed of dog. The attack caused minor injuries to the victim dog and fear to the dog owner.
(j)On…

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: [2023] QCAT 150
Decision Date

CaseChat Overview and Summary

In the Queensland Civil and Administrative Tribunal, the applicant, Mathew Daly, sought a review of the Noosa Council’s decision to destroy his dog, Red Dog, pursuant to section 127 of the Animal Management (Cats and Dogs) Act 2008 (Qld). The primary issue before the Tribunal was whether the destruction order made by the Council should be confirmed or set aside. The Tribunal considered whether the destruction of the dog was a proportionate response to the repeated incidents of Red Dog attacking other dogs and causing harm to humans, despite being declared dangerous.

The Tribunal examined the extensive history of Red Dog's attacks and escapes, which had occurred despite multiple warnings from the Council. The incidents highlighted a clear pattern of non-compliance with the mandatory requirements for enclosing the dog, despite several opportunities for the owner to rectify the situation. The Tribunal noted that while the destruction of a dog should not be a first resort, it could be a necessary measure to ensure community safety when other regulatory measures have failed. The Tribunal was particularly influenced by the fact that many of the incidents occurred after Red Dog was declared dangerous, indicating that the regulation had not been sufficient to prevent further attacks.

After considering the evidence and submissions from both parties, the Tribunal concluded that the destruction order was the appropriate decision given the significant risk that Red Dog posed to the community. The Tribunal accepted that Mr Daly had taken steps to improve Red Dog's enclosure and management, but found that the history of non-compliance and the repeated incidents of harm were strong indicators that Red Dog would likely pose a risk in the future. Consequently, the Tribunal confirmed the decision of the Noosa Council to make a destruction order in respect of Red Dog.

Orders