Do v Brisbane City Council - [2020] QCAT 238

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Do v Brisbane City Council [2020] QCAT 238

PARTIES: MARIA-HUONG DO

(applicant)

v

BRISBANE CITY COUNCIL

(respondent)

APPLICATION NO/S:

GAR321-19

MATTER TYPE:

General administrative review matters

DELIVERED ON:

25 May 2020

HEARING DATE:

25 March 2020

HEARD AT:

Brisbane

DECISION OF:

Member Paratz AM

ORDERS:

The decision of the Brisbane City Council, made on 7 August 2019, to declare the dog ‘Jay-Jay’ to be a regulated (dangerous) dog, is confirmed.

CATCHWORDS:
ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – animals – where a decision to make a dangerous dog declaration was made - where the dog-owner alleged that the dog was provoked to attack by ongoing dispute between neighbours – whether provocation for the dog to attack was shown

Animal Management (Cats and Dogs) Act 2008 (Qld),
s 89(1)(a), s 89(2), s 89(7)

Criminal CodeAct 1899 (Qld), Schedule 1 s 1

Hermanussen v Brisbane City Council [2012] QCAT 710

Lee v Brisbane City Council [2012] QCA 284

Roy v Brisbane City Council [2019] QCAT 311

APPEARANCES & REPRESENTATION:

Applicant:

Respondent:

Self-represented

A. Swindley, Brisbane City Council Solicitor

REASONS FOR DECISION

The Brisbane City Council (‘the Council’) made an internal review decision on 7 August 2019 confirming a prior decision to declare the dog ‘Jay-Jay’ a regulated (dangerous) dog under section 95 of the Animal Management (Cats and Dogs) Act 2008 (Qld) (‘the Act’).
Ms Maria Huong Do, the owner of the dog Jay-Jay, filed an application on 15 August 2019 to review the decision of the Council.
The facts relating to the incident in question are not in dispute:
(a)Jay-Jay is a large brown Rhodesian Ridgeback dog. The owner says he weighs 59 kg.
(b)The dog that was attacked is called ‘Fudge’. It is a white toy poodle. At the hearing it was accepted by the parties that it weighed 2.3 kg.
(c)On 26 November 2018, Fudge was being walked on a leash by its owner, along the footpath in front of Jay-Jay’s owner’s house.
(d)Jay-Jay rushed out of the open gate of its owner’s house and seized Fudge by the neck and shook it. Jay-Jay released Fudge and then repeated the action.
(e)Fudge suffered serious injuries as a result of the attack, and required extensive veterinary attention, and surgery under general anaesthesia. The total cost of the veterinary bills was $9,600.00
(f)Fudge made a full physical recovery from its injuries.
(g)Jay-Jay’s owner has paid $2,500 to Fudge’s owner towards the veterinary costs.
(h)There are four dogs kept at Jay-Jay’s owner’s house.
The decision of the Council to issue a regulated dog declaration for Jay-Jay was stayed by order of the Tribunal on 13 September 2019, until determination of the review application.
No witnesses were required for cross examination, apart from Ms Do, the owner.
At the conclusion of the hearing I reserved my decision. This is the decision as to the review application.

Evidence and submissions of Ms Do

The owner of the dog, Fudge, was a woman…

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.

Continue reading Do v Brisbane City Council

Details

AGLC: Do v Brisbane City Council [2020] QCAT 238
Case: [2020] QCAT 238
Decision Date: 25 May 2020

CaseChat Overview and Summary

In the matter of Do v Brisbane City Council, the applicant sought to challenge the decision of the Brisbane City Council to declare their dog, Jay-Jay, a regulated (dangerous) dog. The dispute arose following an incident in which Jay-Jay attacked a neighbour's dog, resulting in severe injuries. The applicant argued that Jay-Jay was provoked to attack by the ongoing dispute between the neighbours, which included aggressive behaviour and threats towards the applicant and their family. The case was heard by the Queensland Civil and Administrative Tribunal (QCAT), which was tasked with determining the validity of the Council's decision and whether the applicant's argument of provocation was sufficient to overturn the declaration.

The primary legal issue before the Tribunal was whether the applicant had demonstrated that the attack was provoked by the neighbour's ongoing dispute, thereby absolving Jay-Jay of being a dangerous dog. The Tribunal was required to consider the evidence presented by both parties, including witness statements, video footage, and expert opinions on canine behaviour. Additionally, the Tribunal needed to assess whether the Council's decision to declare Jay-Jay a dangerous dog was made in accordance with the relevant legislation and whether it was supported by the evidence.

The Tribunal found that the applicant had not provided sufficient evidence to demonstrate that the attack was provoked by the neighbour's actions. The Tribunal held that the evidence presented did not establish a direct link between the neighbour's dispute and the attack, nor did it show that Jay-Jay was acting in self-defence. The Tribunal concluded that the Council's decision to declare Jay-Jay a dangerous dog was valid and in accordance with the relevant legislation. Consequently, the Tribunal confirmed the decision of the Brisbane City Council, made on 7 August 2019, to declare the dog ‘Jay-Jay’ to be a regulated (dangerous) dog.

The Tribunal's decision upheld the declaration, and no further orders were made. The applicant's challenge to the dangerous dog declaration was dismissed, leaving the Council's decision intact. The Tribunal's ruling emphasised the importance of providing clear and compelling evidence when contesting administrative decisions related to animal control and public safety.

Orders

Orders of the court

The decision of the Brisbane City Council, made on 7 August 2019, to declare the dog ‘Jay-Jay’ to be a regulated (dangerous) dog, is confirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Do v Brisbane City Council [2020] QCAT 238
PARTIES:	MARIA-HUONG DO
(applicant)
v
BRISBANE CITY COUNCIL
(respondent)
APPLICATION NO/S:	GAR321-19
MATTER TYPE:	General administrative review matters
DELIVERED ON:	25 May 2020
HEARING DATE:	25 March 2020
HEARD AT:	Brisbane
DECISION OF:	Member Paratz AM
ORDERS:	The decision of the Brisbane City Council, made on 7 August 2019, to declare the dog ‘Jay-Jay’ to be a regulated (dangerous) dog, is confirmed.
CATCHWORDS:	ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – animals – where a decision to make a dangerous dog declaration was made - where the dog-owner alleged that the dog was provoked to attack by ongoing dispute between neighbours – whether provocation for the dog to attack was shown Animal Management (Cats and Dogs) Act 2008 (Qld), s 89(1)(a), s 89(2), s 89(7) Criminal CodeAct 1899 (Qld), Schedule 1 s 1 Hermanussen v Brisbane City Council [2012] QCAT 710 Lee v Brisbane City Council [2012] QCA 284 Roy v Brisbane City Council [2019] QCAT 311
APPEARANCES & REPRESENTATION: Applicant: Respondent:	Self-represented A. Swindley, Brisbane City Council Solicitor