Dudas v Monash City Council; Tarawa-Shearer v Darebin City Council

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

No. SCI 2012 02301

IN THE MATTER OF Section 148 of the Victorian Civil and Administrative Act 1998

BETWEEN

DAVID DUDAS	Plaintiff
and
MONASH CITY COUNCIL	Defendant

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Nugent	Melke Legal
For the Defendant	Mr P Connor	Hoeys Lawyers

AND IN THE MATTER OF Section 148 of the Victorian Civil and Administrative Act 1998

No SCI 2012 04270

BETWEEN

JASMAINE TARAWA-SHEARER	Appellant
and
DAREBIN CITY COUNCIL	Respondent

APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms E Ruddle	Attorneys for Animals
For the Respondent	Ms E Peppler	Macquarie Local Government Lawyers

---

JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	19, 20 November 2012
DATE OF JUDGMENT:	29 November 2012
CASE MAY BE CITED AS:	Dudas v Monash City Council; Tarawa-Shearer v Darebin City Council
MEDIUM NEUTRAL CITATION:	[2012] VSC 578

ADMINISTRATIVE LAW – Statutory construction – Appeal from decisions of Victorian Civil and Administrative Tribunal – Decisions that plaintiff’s dog a “restricted breed dog” pursuant to s 3(1) of the Domestic Animals Act 1994 – Test to be applied in determining whether dog “falls within” the approved Standard for Restricted Breed Dogs – Whether dog must conform with each criterion specified in Standard – Whether Tribunal applied correct test.

HIS HONOUR:

In each of these two proceedings, the plaintiff, by originating motion, appeals from a decision of a Senior Member of the Victorian Civil and Administrative Tribunal (“the Tribunal”). A number of the questions of law, which arise in each of the two proceedings, are the same. Accordingly, I heard argument in the second matter, Tarawa-Shearer v Darebin City Council, immediately after hearing argument in the first matter, Dudas v Monash City Council. In each matter, counsel adopted and relied on submissions which were made in the other proceeding. In determining the questions of law which are common to both proceedings, I shall be referring to the arguments which were advanced by counsel in both proceedings. Accordingly, it is convenient to write the one set of reasons in respect of the two proceedings.

In Dudas v Monash City Council, the plaintiff appeals from a decision of a Senior Member of the Tribunal dated 23 March 2012. By that decision, the Tribunal affirmed the decision by an authorised officer of the defendant, by declaration dated 17 November 2011, pursuant to s 98A of the Domestic Animals Act 1994 (“the Act”), that the plaintiff’s female dog, “Rapta” is a restricted breed dog.

In Tarawa-Shearer v Darebin City Council, the appellant (to whom I shall refer as “the plaintiff”) appeals from a decision of the same Senior Member of the Tribunal dated 20 June 2012. By that decision, the Tribunal affirmed the decision of an authorised officer of the defendant, by declaration dated 4 November 2011, pursuant to s 98A of the Act, that the plaintiff’s female dog “Tia” is a restricted breed dog.

The legislation

In order to understand the issues in the case, it is helpful, first, to set out the legislative scheme of the Act.

Section 98A(1) of the Act empowers an authorised officer, of a Council, to make a declaration to the effect that a particular dog is a “restricted breed dog”. It provides:

“If an authorised officer is of the opinion that a dog is a restricted breed dog, the authorised officer may make a declaration to the effect that the dog is a restricted breed dog.”

Section 3(1) defines “restricted breed dog” to mean a dog, which is of any one of the five breeds specified, the fifth of which is:

“(e) American Pit Bull Terrier (or pit bull terrier).”

Section 3(3) of the Act provides for the determination whether a dog is a specified breed dog. It states:

“(3)A dog that falls within an approved standard for a breed of dog specified in a paragraph of the definition of restricted breed dog is taken to be a dog of that breed.”

Section 3(4) provides that for the purposes of subsection (3), an approved standard is a standard that has been approved by the Minister and published in the Government Gazette. On 1 September 2011, the Victorian Government published in the Government Gazette a “Standard for Restricted Breed Dogs in Victoria”, Part 1 of which was entitled “American pit bull terrier” (“the Standard”).

Section 41EA(1) of the Act provides that a person must not keep a restricted breed dog. Section 41EA(2) provides that subsection (1) does not apply to a person who keeps a restricted breed dog that (a) was in Victoria immediately before the commencement of the Domestic Animals Amendment (Dangerous Dogs) Act 2010 and (b) was registered (whether as a restricted breed or another breed) immediately before the commencement of the Domestic Animals Amendment (Restricted Breeds) Act 2011.

Section 80 of the Act empowers an authorised officer of a Council to seize a dog in the municipal district of the Council, if the authorised officer reasonably believes the dog is a restricted breed dog. Division 4 of Part 7A of the Act specifies the steps which are to be taken after the seizure of a dog. In particular, the owner is to be notified, and the Council may retain custody of the dog. Section 84K provides that if an authorised Council officer has seized a dog under s 80, and the authorised officer reasonably believes that the dog is a restricted breed dog, the authorised officer must serve a declaration under s 98A on the owner of the dog within seven days of seizure.

Section 84P of the Act provides that the Council may destroy a dog which has been seized under Part 7A, if the dog is a restricted breed dog that is not able to be registered, or have its registration renewed, by the Council, if the dog was seized by an authorised officer in their reasonable belief that it was a restricted breed dog.

The Standard

The Standard, which was published in the Victorian Government Gazette on 1 September 2011, is entitled “Standard for Restricted Breed Dogs in Victoria”. Part 1 is entitled “American Pit Bull Terrier”. It commences by stating that a dog “that meets the description of a dog in this part” is an American pit bull terrier, except for a dog in respect of which the owner has an appropriate pedigree certificate stating that it is an American Staffordshire Terrier, or a certificate to that effect signed by a veterinary practitioner.

Under the heading “General Appearance and Characteristics”, it is stated:

“The American Pit Bull Terrier is a medium size dog and is strongly built with well defined muscles. The breed is noted for its climbing ability and subsequent strength in its hind quarters. The overall outline of the breed indicates it to be slightly longer in length (point of shoulder to buttocks) than height (withers to ground). Bitches may be slightly longer than males. The distance from withers to the elbow and the elbow to the ground is generally equal.”

The Standard then sets out the various characteristics of the American pit bull terrier in detail by reference to the various aspects of its anatomy. The Standard contains, in respect of each part of the anatomy, a number of photographs, and diagrams. Under the title “head”, it provides descriptions, in detail, for the muzzle, head profile, skull, lips, teeth, nose, eyes and ears. It then provides details relating to the neck, forequarters, body (forechest, back and loin), hind quarters, feet, tail, coat, colours, and height and weight.

In each case, the Senior Member found that the dog complied with some, but not all, of the criteria prescribed by the Standard. He held, in each case, that the dog sufficiently conformed with the criteria prescribed by the Standard to bring it within the Standard. Accordingly, in each case the Senior Member affirmed the decision of the authorised officer of the respective Council that the dog was a restricted breed dog.

Common Questions in the Appeals

In each appeal, the principal question, which I must determine, is whether it is necessary for a dog to conform with each of the criteria specified in the Standard, in order for it to “fall within” the Standard for the purposes of s 3(3) of the Act. Further, if, contrary to the arguments of the plaintiffs in each case, it is not necessary for a dog to conform with each of the criteria of the approved Standard, a second question arises as to the correct test which must be applied to determine whether a dog falls within an approved Standard, and whether, in the particular case, the Senior Member of the Tribunal applied that test.

In Dudas v Monash City Council, the Senior Member commenced by identifying the test, which he considered he was to apply in determining whether the relevant dog, Rapta, fell within the Standard. He stated:

“5.The standards that I have referred to sets (sic) out a number of dog features that should be examined. Before turning to those standards, in my view, it is clear that not every feature of a dog needs to be in conformity with the standards or the dog to comply with the Standard, ie to comply with the Standard of American Pit Bull Terrier.
6.What I believe that I have to do is to examine each of the criteria therein referred to and after having examined that criteria, and looked at the particular dog in relation to that criteria taking into account the evidence that is before me, I then need to assess the whole of the criteria whether the particular dog in this instance Rapta fits that criteria. I will adopt that course. I also make the preliminary comment that my task is made slightly difficult because, while I have no doubt that Mr Wisdom (the authorised officer of the defendant) is an expert in this matter, there are people such as veterinarians who would indeed be more qualified as experts.”

The Senior Member then set out, in his decision, his findings in relation to each of the criteria specified by the Standard. In doing, so he noted that Mr Wisdom (the authorised officer of the defendant) conceded that some of the aspects of the dog’s anatomy did not meet with the Standard. In short, the Senior Member found that he was satisfied that the dog’s head, teeth, eyes, ears, forequarters, body, forechest, hind quarters, colours, height and weight, and neck, each conformed with the criteria. He found (or accepted the concession) that the dog’s withers, muzzle, skull, lips, nose, back, loin, feet, tail and coat did not conform with the Standard. He agreed with the submission made by the representative of the plaintiff (Mr C Muir, the President of the American Pit Bull Terriers Association) that certain aspects of the dog’s anatomy should be given greater weight than others, and in particular he agreed that matters such as the teeth and muscles of the dog should be given greater weight than other criteria. He then concluded his decision as follows:

[42] … I must be satisfied of the matters which I need to be satisfied with on a Briginshaw type of test of exactness and while certainly there are parts of the dog which do not fit the standards, basically by and large, I am satisfied that this particular dog – Rapta – does in fact fit the standards.
[43] Given those circumstances, I am satisfied that the declaration was properly made. It was properly made because looking at Rapta overall, which is the way I believe should be looked at, it does comply with the standards and I will affirm the respondent’s decision.”

In Tarawa-Shearer v Darebin City Council, the Senior Member referred to his previous decision in Dudas v Monash City Council, and stated that that decision made it clear “… that not all of the features of the standards need to be in conformity in order for a dog to be declared a restricted breed dog”. The Senior Member noted that the solicitor for the plaintiff and counsel for the defendant, who were before him, each agreed that that was the proper test to be applied.

The Senior Member then considered each of the particular criteria specified in the Standard. He noted that the parties had agreed that Tia did not conform with some of the specified criteria contained in the Standard. The effect of the Senior Member’s decision (and the concessions made before him) was that Tia’s skull, nose, ears, neck, forequarters, coat, colour and height and weight did conform with the criteria specified in the Standards; but that Tia’s head, muzzle, head profile, lips, teeth, eyes, body, forechest, back loin, hind quarters, feet and tail did not conform with the criteria specified in the Standard. The Senior Member concluded that “basically” Tia did fit within the Standard, and he affirmed the authorised officer’s decision to that effect.

The notices of appeal in each of the two cases specify four questions of law, upon which the appeal is brought. The first two questions, which are the principal questions, are identical in each case, namely:

“1.Whether it is necessary, in order for a decision maker properly to declare that a dog is a restricted breed dog, that such dog to satisfy each of the criteria specified in the relevant approved Standard?
2.If no to question 1, whether it is necessary that any, and if so which, criteria specified in the relevant approved standard must be satisfied in order for a decision maker properly to declare that a dog is a restricted breed dog?”

Preliminary question

In each case, the defendant submitted that the plaintiff should not be permitted to argue, on appeal, the first question stated in the questions of law in the notice of appeal. It was submitted that, in each case, the representative for the particular plaintiff before the Tribunal had conceded that the correct test which should be applied, for determining whether the dog fell within the prescribed Standard, was that applied by the Senior Member. In particular, it was not argued on behalf of either plaintiff that, in order that the dog fall within the Standard, it must conform with each of the criteria in it. In each case, the defendant submitted, before me, that if the plaintiff had not made that concession to the Senior Member, the defendant, in that case, might have called evidence relating to that issue. Accordingly, it was submitted that if the plaintiff were permitted to raise question 1 on the appeal, the defendant in each case would suffer prejudice.

In the matter of Dudas v Monash City Council, Mr P Nugent, who appeared for the plaintiff, submitted that, on a proper reading of the transcript, the plaintiff had not made a concession to the effect contended for on behalf of the defendant. Further, he submitted that the point raised by the plaintiff, in the first question, is a matter of public importance. He also contended that the defendant did not suffer any prejudice by reason of the plaintiff not raising the point before the Senior Member.

In the matter of Tarawa-Shearer v Darebin City Council, Ms E Ruddle, who appeared on behalf of the plaintiff, accepted that the plaintiff had conceded, before the Tribunal, that the test which should be applied was that stated by the Senior Member in Dudas. However, she submitted that the plaintiff, in that case, had little alternative, given that the same member of the Tribunal had decided the Dudas case. She further submitted that the defendant had not demonstrated that it would suffer any prejudice if the plaintiff were permitted to raise question 1 on this appeal. In addition, she submitted that it would be an affront to the due administration of justice if the plaintiff, in Dudas’s case, was permitted to raise the point, but that the plaintiff, in the Tarawa-Shearer case, was shut out from doing so.

Ordinarily, a party is bound by the conduct of its case at first instance.[1] However, that principle is not absolute in its application, and it admits of exceptions. The ultimate test is whether it is in the interests of justice that the parties be entitled to agitate, on appeal, an issue which was either not argued, or conceded, at first instance.[2] The interests of justice include the public interest in the finality of litigation, and in the proper and orderly administration of justice, by which, ordinarily, the issues between parties are settled at first instance.[3] On the other hand, it is recognised that where all the facts have been properly established at first instance, and where the point, sought to be agitated for the first time on appeal, is one of construction or of law, it may be in the interests of justice for the appellate court to entertain the point.[4] In that respect, it is recognised that it may be in the public interest to permit the agitation, on appeal, of a point not taken at first instance, if the point involves a question of law about the interpretation of legislative provisions which are of public or general importance.[5]
[1]Coulton v Holcombe (1986) 162 CLR 1, 7 (Gibbs CJ, Wilson, Brennan and Dawson JJ); University of Wollongong v Metwally (No 2) (1985) 58 ALJR 481, 483.
[2]Masters v McCubbery [1996] 1 VR 635, 648-9 (Winneke P).
[3]Coulton v Holcombe (above), 8.
[4]Medical Practitioners Board v Lal (2009) 23 VR 702, 713 [41] (Maxwell P, Weinberg JA and Kyrou AJA).
[5]Medical Practitioners Board v Lal (above), 713-714 [42].

In Dudas v Monash City Council, I accept the submission by Mr Nugent that the apparent concession, made by the representative of the plaintiff, as to the applicable test to be applied by the Senior Member, was made in circumstances which qualified its effect and status as a concession. In the proceedings before the Tribunal, the plaintiff was not represented by a legal practitioner. At the outset of the proceeding, Mr C Muir, the President of the American Pit Bull Terrier Club of Australia, sought to represent the plaintiff. The defendant objected. In considering whether Mr Muir ought to be permitted to represent the plaintiff, the Senior Member questioned his competence. At the outset the Senior Member stated that he considered that the appropriate test was not “ticking every box” to ascertain whether the dog came within a restrictive breed or not. When the Senior Member asked Mr Muir how he would be putting the case on behalf of the plaintiff, Mr Muir reflected that approach, by stating that the dog did not need to meet all of the elements. He stated however that there was no guidance on the construction of the Standard. In response, the Senior Member stated “Well that’s the law and the way things are done”.

Subsequently, in final submissions, Mr Muir noted that the Senior Member had expressed the view that the dog did not have to meet every element, and stated “… we say that the Act in no place nor that Standard actually says that. There is no guidance or there doesn’t appear to be any guidance in this”. The Senior Member took issue with that approach, to which Mr Muir responded that he considered that there had to be substantial conformity with the Standard in order for a dog to fall within it.

In those circumstances, I agree with Mr Nugent’s submission that, to the extent that Mr Muir made any concession on behalf of the plaintiff, it was made by a non-legally qualified representative, and in circumstances in which Mr Muir would have been hard pressed to controvert the assertion by the Senior Member that the test, which he intended to apply, was “the law”.

An important consideration, in determining this question, is whether, if the plaintiff were permitted to raise the new point on appeal, or to resile from the concession made at first instance, the defendant would suffer prejudice. Mr P Connor, who appeared in this appeal for the defendant, suggested that, if the plaintiff’s representative had not made the concession at first instance, the defendant might have sought to adduce evidence that a dog rarely, if ever, could match each and every criterion contained in the Standard. The difficulty with that argument is that the defendant has not, in this appeal, provided an affidavit setting out the type of evidence which it would have led, if Mr Muir had not made the concession at first instance, to which I have referred. The onus lies on the plaintiff to satisfy me that it would be in the interests of justice to permit him to agitate the new point on appeal. However, in the absence of any evidence introduced by the defendant on this appeal, it would be a matter of speculation for me to act on the basis that the defendant might suffer any such prejudice, if the plaintiff were permitted to argue the first question stated in the notice of appeal.

On the other hand, there are two important factors which weigh in favour of permitting the plaintiff to argue the first question in the notice of appeal. First, if the Tribunal’s decision stands, the plaintiff would be deprived permanently of his dog, which will be destroyed. In legal analysis, the dog is the plaintiff’s property. However, it is more than that; it is also his pet. The plaintiff should not be deprived of the opportunity to argue the point, raised in question 1, in the absence of any evidence of prejudice to the defendant. Secondly, the question sought to be argued on appeal raises an issue of general public importance, namely, the correct construction of s 3(3) of the Act and the Standard. I was told, in the course of the appeal, that there have been some fourteen cases before the Tribunal, since the introduction of the Standard, involving the issue whether the dog in question falls within the particular Standard. It is clearly in the public interest that I resolve, as best I can, the correct construction of s 3(3) of the Act and the Standard.

In those circumstances, the plaintiff should be entitled to raise question 1, in the notice of appeal, on this appeal.

The position in the Tarawa-Shearer case is not quite as clear cut. In that case, as Ms Ruddle properly accepts, the plaintiff was represented by a solicitor at the hearing before the Tribunal, and the solicitor made a clear concession that the approach, adopted by the Senior Member in the Dudas case, should also apply in the instant case. However, as Ms Ruddle has contended, it would have been unrealistic to expect the solicitor to have contended to the contrary. Further, again, the defendant, on this appeal, has not adduced any evidence as to potential prejudice which it might suffer, should the plaintiff be permitted to agitate the issue raised in question 1 in the notice of appeal. Once again, the appeal involves the fate of the plaintiff’s pet dog. It is in the public interest that the issue of law raised in question 1 be determined by this Court. Further, I agree with Ms Ruddle that it would be an affront to justice if, in the Dudas case, the plaintiff were permitted to argue question 1, while, in the Tarawa-Shearer case, the plaintiff were not permitted to do so. In those circumstances, I consider that it is appropriate to permit the plaintiff to raise the issue contained in question 1 of the notice of appeal.

The Common Questions in the Appeals - Submissions

In the Dudas case, Mr Nugent submitted that in order that a dog “fall within” a Standard for the purposes of s 3(3) of the Act, the dog must conform with each of the criteria specified in the Standard. Indeed, he submitted that where a particular criterion contains a number of elements, the dog must conform with each and every one of those elements.

Mr Nugent made four principal submissions in support of that proposition. First, he submitted that s 3(3) should be characterised as a “deeming” provision. He submitted that, in effect, it creates a “statutory fiction”. In particular, unlike the provisions in the Act which relate to “dangerous dogs” (Part 3 Division 3) and to “menacing dogs” (Part 3 Division 3A), restrictive breed dogs are not defined by reference to the temperament of the particular dog in question, or by reference to its previous (mis)deeds. In particular, he pointed out that where a particular dog is found to “fall within” a prescribed Standard, a declaration by an authorised officer to that effect will result in the destruction of a family pet, which might have no history of dangerous or menacing conduct. Mr Nugent also pointed out that the effect of a declaration of a dog, as a “restrictive breed dog”, is to result in the appropriation of the property of a pet owner, without compensation. In that context, Mr Nugent referred to the principle that such legislative measures should be construed strictly and with caution.[6]
[6]Federal Commissioner of Taxation v Citibank Ltd (1989) 20 FCR 403, 433 (French J); Collector of Customs (NSW) v Traders Financial Corporation Ltd (1971) 126 CLR 429, 437 (Menzies J), 447 (Gibbs J); Springhall v Kirner & Ors [1988] 1 VR 159, 165.

Secondly, Mr Nugent noted that s 3(3) was introduced into the Act by the Domestic Animals Amendment (Dangerous Dogs) Act 2010 (“the 2010 amendment”). He submitted that the purpose of the introduction of s 3(3) was to produce some certainty in the identification of “restrictive breed dogs”, and he referred to the Parliamentary Debates to support that submission.

Thirdly, Mr Nugent submitted that, in ordinary everyday usage, in order that an object “fall within” a particular category, it must fit totally within that category. He relied on the twelfth meaning of “within” in the Macquarie Dictionary, namely “inside the limits fixed or required by; not transgressing … “.

Finally, Mr Nugent submitted that any alternative construction, of the phrase “falls within” in s 3(3), would involve judicial re-writing of the plain words of s 3(3) and of the Standard. In particular, if it is not necessary for a dog to conform with each of the criteria specified in the Standard, the question would arise as to how many of the criteria the dog should comply with, and which, if any, criteria should be given greater weight than others. He submitted that any endeavour to articulate an alternative test, other than the one requiring total compliance by a dog with each criterion in the Standard, would thus involve judicial re-drafting of the legislative provision.

In the Tarawa-Shearer case, Ms Ruddle adopted the submissions made by Mr Nugent, which I have just summarised. She made further submissions in support of the proposition that, in order that a dog “fall within” the prescribed statute for a restrictive breed dog, it must comply with each of the criteria specified in the Standard.

In particular, Ms Ruddle submitted that, under the Act, there are two methods of establishing that a particular dog is a restrictive breed dog. First, a dog may be demonstrated to be a “restrictive breed dog”, of any of the categories defined in s 3(1) of the Act, by appropriate expert evidence to that effect. Secondly, or alternatively, a dog could be demonstrated to be a “restricted breed dog” by “falling within” a prescribed Standard under s 3(3). She submitted that, in that context, s 3(3) is a “deeming” provision, which is an alternative to an authorised officer proving that, in fact, that particular dog is a restricted breed dog. As such, the section, she submitted, should be given a strict and narrow construction.

Ms Ruddle further submitted that the circumstance that the provisions in the Act, relating to restricted breed dogs, were intended to protect the public, should not, logically, lead to a broad construction of the phrase “falls within” in s 3(3). She submitted that that public purpose would only be served where the relevant statutory provisions apply to a dog, which actually is a “restricted breed dog”; for, the protection of the public is not served by extending the definition of “restricted breed dogs” to cover dogs which, in reality, do not belong to the particular prescribed breed.

Ms Ruddle further pointed out that a number of the criteria, contained in the Standard, are broad in their application in any event. She pointed to the Parliamentary Debates, and, in particular, to the Second Reading Speech, in relation to the 2010 amendment, which made it clear that the legislation was intended to apply to crossbreeds as well as to pure breed American pit bull terriers. Thus, she submitted that the Standard, introduced pursuant to s 3(4) of the Act, was designed to describe a crossbreed in any event.

Ms Ruddle also submitted that any alternative construction of the phrase “falls within” would deprive the approved Standards of their intended purpose of providing certainty in the identification by an authorised officer of a restrictive breed dog. She further submitted that such a construction would involve judicial re-drafting of the legislative provision.

In response, in Dudas v Monash City Council, Mr Connor submitted that, on the proper construction of s 3(3) of the Act and the Standard, it is not necessary that a dog comply with each of the criteria, specified in the Standard, for it “fall within” the Standard for the purpose of s 3(3) of the Act.

Mr Connor noted that the condition precedent, to the operation of s 98A of the Act, is the formation, by an authorised officer of a Council, of the “opinion” that a dog is a restricted breed dog. He submitted that such an opinion could only be impugned if no reasonable person could have reached such an opinion.[7]
[7]East Melbourne Group Inc v Minister for Planning & Anor (2008) 23 VR 605, 647-8 [181]-[184] (Ashley and Redlich JJA).

Mr Connor noted that the provisions in the Act, relating to restricted breed dogs (which are contained in Part 3 Division 3B of the Act) are in the same part of the Act as the provisions relating to dangerous dogs (Part 3 Division 3) and relating to menacing dogs (Part 3 Division 3A). He submitted that the “discretion”, reposed in an authorised officer by s 98A(1) of the Act, was directed to the protection of the community and the environment, and the control and identification of restricted breed dogs. He supported that contention by referring to the Parliamentary Debates relating to the 2010 amendment which introduced s 3(3) (in a different form) into the Act.

Mr Connor further submitted that, as a matter of its ordinary English usage, the phrase “fall within” did not require that the dog comply with each and every criterion specified in the Standard. He referred to the definition of the phrase “fall within” in the Oxford Dictionary, namely “to come within the influence, operation, or scope of; to be included in”.

Mr Connor submitted that it is evident from the Parliamentary Debates that it was intended that the Standard, referred to in s 3(3) of the Act, would apply to crossbreed dogs, as well as to “pure breed” dogs, in the category specified in the definition of “restricted breed dog” in s 3(1) of the Act. He submitted that an interpretation of s 3(3), requiring compliance by a dog with each and every criterion specified in the Standard, would render the legislative provision unworkable in its application to crossbreed dogs.

Ultimately, Mr Connor submitted that, for the purposes of s 98A, it is sufficient that an authorised officer, with due regard to the relevant Standard, reasonably holds the opinion that the dog in question is a restricted breed dog. When pressed by me, Mr Connor submitted that, in reaching such an opinion, the authorised officer must reasonably be of the opinion that the dog substantially or significantly complies with the criteria contained in the standard.

In Tarawa-Shearer v Darebin City Council, Ms Peppler adopted the submissions made by Mr Connor.

Ms Peppler, in her written submissions, contended that, on their proper construction, the effect of s 3(3) and s 98A of the Act enables an authorised officer (and, on review, the Tribunal) to conclude that a dog is a restricted breed dog by two different pathways. The first pathway, she submitted, is by concluding (no doubt based on appropriate evidence) that the dog is it itself an American pit bull terrier (or other restricted breed dog). The second pathway is by concluding that the particular dog “falls within” the prescribed Standard for the purposes of s 3(3) of the Act. Ms Peppler, in her written outline, submitted that, in this case, it is not enough for the appellant to contend that the particular dog did not fall within the Standard, because, in any event, the Tribunal was of the opinion that Tia is a restricted breed dog.

Pausing there, Ms Peppler did not press that submission in oral argument. It is clear, from the transcript of the hearing before the Tribunal, and from the Tribunal member’s decision, that the case proceeded solely on the basis that the question, whether Tia is a restricted breed dog, would depend upon whether Tia “fell within” the relevant standard for the purposes of s 3(3) of the Act.

Ms Peppler submitted that, on a proper construction, s 3(3), s 98A and the Standard, working together, did not require the authorised officer (and, on review, the Tribunal) to form the opinion that the dog conformed with each of the criteria specified in the Standard, in order to conclude that the dog is a restricted breed dog. She submitted that if s 3(3) was intended to have that effect, it would have been differently worded by stating, expressly, that a dog that meets “each criterion within the approved standard” for a specified breed of dog is taken to be a restricted breed dog. Ms Peppler submitted that, instead, by using the phrase “falls within” in s 3(3), the legislature did not intend that a dog comply with each and every part of a Standard, in order that it be considered to be a restricted breed dog. She submitted that, in ordinary usage, the phrase “falls within” does not require, or contemplate, that the dog in question comply with each and every specified criterion. Rather, she submitted that the question for the decision maker, under s 98A, is whether the decision maker is satisfied that the dog “sufficiently” fits within the Standard.

Ms Peppler further submitted that that construction is supported by consideration of the Standard itself. She noted that the Standard was designed to be a tool to assist decision makers in the course of making administrative decisions. Further, the criteria contained in the Standard are, in large part, descriptive in nature, and thus may be susceptible of different opinions regarding whether they are met or not.

Ms Peppler submitted that the evident purpose of s 3(3), and of the restricted breed dog provisions contained in the Act, is to protect community safety. She submitted that that purpose is evident, not only from the text of the legislation, but also from the debates in relation to the 2010 amending Act and the 2011 amending Act. In particular, she submitted that it is clear from the debates that the intention of Parliament was to include dogs, which are crossbreeds, within the concept of “restricted breed dogs”.

In that respect Ms Peppler submitted that a construction, requiring 100 percent compliance with the criteria contained in a prescribed Standard, would produce absurd results, which could not have been intended by Parliament. For example, she submitted that Parliament could not have intended that a crossbreed dog, which complied with 98 percent, but not all, of the criteria contained in a Standard, be excluded from the operation of the Act.

In respect of the second question raised in each of the appeals, Ms Peppler submitted that that question does not involve the determination, by this Court, of which particular criteria must be satisfied for a decision maker to properly declare that a dog is a restricted breed dog. She further submitted that it is not necessary, or indeed appropriate, for this Court to determine the appropriate level of satisfaction, which must be reached by the decision maker in order for the decision maker to make such a declaration. Rather, she submitted that, in each case, s 98A requires the decision maker to form the opinion that the dog in question “falls within” the Standard, and thus, in respect of an American pit bull terrier, “meets the description” of such a dog contained within the standard. She submitted that such a conclusion must be reasonable in the “Wednesbury Corporation” sense.[8] Thus, she submitted that the appropriate test, in each case, is whether the decision maker, acting reasonably (in that sense) could form the conclusion that, by reference to the Standard, the dog in question “meets the description” of an American pit bull terrier contained in the Standard.
[8]Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 QB 223.

Legal principles – construction

The first and second questions, contained in each of the notices of appeal, raise, principally, questions of the correct construction of s 3(3) of the Act and of the Standard.

The basic principles of statutory construction are well settled and not in dispute. In essence, in construing a statutory instrument, the appropriate starting point is the words of the instrument itself. Where the text of the legislation is clear and unambiguous, historical considerations and extrinsic materials cannot displace that meaning.[9]
[9]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, 46-47 [47] (Hayne, Heydon, Crennan and Keifel JJ).

In this case, the phrases which primarily require consideration are, first, the words “falls within”, in s 3(3), and, secondly, the words “meets the description” at the beginning of the Standard. Self-evidently, the application of those words admits of some debate as to whether, for a dog to “fall within” the Standard, by “meeting the description” of an American pit bull terrier in the Standard, the dog must answer each of the criteria specified in the Standard. In those circumstances, the proper construction of both the legislation, and the Standard (as delegated legislation), is that which is consistent with the language and the purpose of the provisions of the statute. In particular, the language, contained in the statutory provision, must be construed in the context of the whole of the legislation, including its general purpose, and the mischief which it is intended to remedy, or the object which it is seeking to achieve.[10]
[10]Ibid; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381 [69] (McHugh, Gummow, Kirby and Hayne JJ); Lacey v Attorney-General of Queensland [2011] HCA 10, [44].

In this respect, s 35(a) of the Interpretation of Legislation Act 1984 (Vic) provides that a construction, that would promote the purpose or object underlying the Act or subordinate instrument, is to be preferred to a construction, that would not promote that purpose or object. Section 35(b) provides that, in determining the purpose or object of the Act, consideration may be given, inter alia, to reports of proceedings of Parliament, and to explanatory memoranda or other documents laid before or presented to Parliament.

The Standard in this case has the force of law as delegated legislation. In general, and subject to issues of uncertainty (which do not arise here), the same principles of construction apply to delegated legislation as are applicable to construing Acts of Parliament.[11] The delegated legislation is construed in light of, and harmoniously with, the objectives of the enabling Act.[12]
[11]King Gee Clothing Pty Ltd v The Commonwealth (1945) 71 CLR 184, 195-6 (Dixon J); Whittaker v Comcare (1998) 86 FCR 532, 543; Parry v Osborn [1955] VLR 152, 154 (Scholl J).
[12]Whittaker v Comcare (above), 545; Levingston v President Etc of the Shire of Heidelberg [1917] VLR 263, 269 (Madden CJ); Macfisheries (Wholesale and Retail) Ltd v Coventry Corporation [1957] 1 WLR 1066, 1072 (Lord Goddard CJ).

In the course of submissions, counsel for the plaintiff in each case relied on the fact that the effect of a declaration by an authorised officer, under s 98A of the Act, that a dog is a restricted breed dog, is to deprive the plaintiff of his or her property without compensation. Counsel on behalf of each plaintiff referred to the principle of statutory construction that provisions, which have such an effect, are to be construed strictly.[13]
[13]Springhall v Kirner & Ors [1988] 1 VR 159, 165.

On the other hand, counsel for the defendant in each case emphasised that the purpose of the provisions of the Act which relate to restricted breed dogs – including s 3(3), s 98A and the Standard – is to enhance and protect the safety of the community. Accordingly, counsel for the defendants each contended that those provisions should be given a beneficial construction, which would be consistent with their intended purpose.

Pausing there, I accept that a declaration by an authorised officer, under s 98A of the Act, does have the effect contended for by counsel for the plaintiffs. It is true – as Mr Connor submitted – that a declaration under s 98A does not, per se, have that effect. However, the declaration by the authorised officer (and, where appropriate, the decision of a Tribunal on review) is an important step, in the statutory scheme, in the seizure, and, ultimately, the destruction, of a restricted breed dog which cannot be registered under the Act.

On the other hand, it is clear that the objective of the provisions of the Act relating to restrictive breed dogs, and in particular the provisions with which this case is concerned, is to protect the community from dogs which, generically, may constitute a danger to members of the community. Section 1 of the Act specifies eight particular purposes of the Act, two of which are as follows:

“1. Purpose
The purpose of this Act is to promote animal welfare, the responsible ownership of dogs and cats and the protection of the environment by providing for –
(a)a scheme to protect the community and the environment from feral and nuisance dogs and cats; and
…

(c)the identification and control of dangerous dogs, menacing dogs and restricted breed dogs.”

Further, as Mr Connor pointed out, the provisions which relate to the control of restricted breed dogs (in Part 3 Division 3B of the Act) fall within the same part of the Act which contains the provisions relating to dangerous dogs (Part 3 Division 3) and relating to menacing dogs (Part 3 Division 3A). The provisions in Part 3 Division 3B, relating to the control of restricted breed dogs, are clearly directed to ensuring that dogs, which are of a restricted breed, do not pose a risk to the safety of members of the community.

Section 3(3) of the Act was introduced (in a different form) by the Domestic Animals Amendment (Dangerous Dogs) Act 2010. The Second Reading Speech of the Minister, and the debates, relating to that Act, make it clear that the purpose of the provisions, which were then being introduced (including s 3(3)), was to facilitate the statutory objective of protecting the community from dogs which could constitute a danger.

Ordinarily, legislation, which is designed to protect members of the community, is construed “so as to give the fullest relief which the fair meaning of its language will allow”.[14] Further, where such a provision also has a characteristic – such as being a penal provision – which would otherwise require it to be construed narrowly, the latter principle may need to be subordinated to the requirement, of statutory construction, that the provision be interpreted to further the beneficial objective intended by Parliament. In Waugh v Kippen[15], the High Court was concerned with factory legislation which was penal, but which was designed to ensure that an employee be provided with a safe system of work. Gibbs CJ, Mason J, Wilson J and Dawson J, in their joint judgment, stated:[16]

“In the course of argument, the question arose whether the two principles of interpretation to which we have referred come into conflict in the present case and if so, how the conflict is to be resolved. If such a conflict was to arise, the court must proceed with its primary task of extracting the intention of the legislature from the fair meaning of words by which it has expressed that intention, remembering that it is a remedial measure passed for the protection of the worker. It should not be construed so strictly as to deprive the worker of the protection which Parliament intended that he should have … In such a context the strict construction rule is indeed one of last resort.”[17]

[14]Ball v Attorney-General (NSW) (1913) 17 CLR 370, 384 (Isaacs J); Rice v Henley (1914) 19 CLR 19, 22 (Isaacs J); Plumb v Tritton (1915) 20 CLR 408, 412.

[15](1986) 160 CLR 156.

[16]Ibid, 164-5.

[17]See also Newcastle City Council v GIO Insurance Ltd (1997) 191 CLR 85, 109-10 (McHugh J); R v Irvine [2009] VSCA 239, [90]-[91] (Neave JA).

Applying those principles, it is, I consider, necessary to bear in mind, in construing the relevant legislative provisions in this case (including the Standard), that those provisions are designed to protect the community from breeds of dogs which the Parliament considers pose a danger to public safety. In doing so, however, it is also material to take into account that the effect of the legislative scheme, contained in those provisions, may be to deprive a citizen of his or her property and, more importantly, his or her domestic pet.

It was also contended on behalf of the plaintiffs that s 3(3) of the Act is a “deeming provision”, which creates a “statutory fiction” as to which dog may qualify as a restrictive breed dog. Accordingly, it was submitted that such a provision should be construed strictly.[18]
[18]Federal Commissioner of Taxation v Komber (1986) 10 FCR 88, 96 (Fisher J).

It may well be that s 3(3) may be appropriately described as a “deeming provision”, insofar as it provides that a dog is to be categorised as a “restricted breed dog” if it “falls within” the prescribed Standard. However, the description of such a provision as a “deeming” provision adds little to the question of the correct construction of that provision. In particular, I am not persuaded that s 3(3) creates a statutory fiction. Rather, it seems clear, from the text of the Act, that the objective of s 3(3) is to provide for some clarity in the proper identification of a dog as a “restricted breed dog”. Section 3(3) requires that the approved Standard be a Standard “… for a breed of dog specified in a paragraph of the definition of restricted breed dog … “. In order that a Standard comply with s 3(3), it must therefore be directed to defining the distinguishing characteristics of the particular breed of dog defined, in s 3(1), as a restricted breed dog. For example – to take an absurd case – if a Standard were to define the characteristics of another non-restricted breed, such as a poodle, it would be ultra vires s 3(3) of the Act.

That construction of s 3(3) is supported by the Parliamentary debates in relation to the Domestic Animals Amendment (Restricted Breed) Act 2011, which amended s 3(3) and introduced s 3(4). In the Second Reading Speech, the Minister noted that the identification of restricted breed dogs had proven difficult, because those dogs had not been bred in the more traditional style, thus ruling out DNA testing to confirm breed identification. He observed that that created uncertainty in the community on what constitutes a restricted breed. He then stated:

“The published standard will provide clear guidance to Councils’ authorised officers and the general public on what type of dog constitutes a restricted breed. This will make enforcement easier for Council officers and remove doubt on the identification of these dogs so as to allow them to be declared a restricted breed in a speedy manner.”[19]

[19]Victorian Hansard, 30 August 2011, pages 2859-2860.

For those reasons, I do not accept the submissions, made by the plaintiffs, that s 3(3) creates a statutory fiction, and, as such, should be narrowly construed.

The Issue

As I have earlier noted, s 98A(1) of the Act empowers an authorised officer, of a Council, to make a declaration, to the effect that a particular dog is a “restricted breed dog”, where the authorised officer “ … is of the opinion that a dog is a restricted breed dog”. In each of the two cases on appeal before me, the Senior Member of the Tribunal affirmed the decision of the particular authorised officer to make a declaration in relation to the dog in question. Section 51(3) of the Victorian Civil and Administrative Tribunal Act 1998 provides that a decision of a decision maker, as affirmed by the Tribunal, is deemed to be a decision of the decision maker. Thus the critical question is whether the Tribunal (as effective decision maker) erred in law in forming the opinion, in each case, that the dog was a restricted breed dog.

In each case, the plaintiff did not seek to contend that the decision, made by the Tribunal Member (or indeed by the authorised officer of the Council) was unreasonable, in the “Wednesbury Corporation” sense.[20] Rather, in each case, it was submitted that the Tribunal erred in law in construing s 3(3) of the Act, and the Standard. In particular, it was contended, in each case, that the Tribunal erred by applying an erroneous test as to the requisite degree of correspondence between the characteristics of the dog in question and the criteria specified in the applicable Standard.
[20]Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.

Thus, the principal issues which I must decide are:

(1)What is the correct test which must be applied in determining whether a particular dog “falls within” an approved Standard for the purposes of s 3(3) of the Act?
(2)In each case, did the Senior Member apply that test in determining that the particular dog, in question, fell within the approved standard for an American pit bull terrier?

Conclusion on Questions 1 and 2

Before considering s 3(3) and the Standard, it is useful to commence by making some preliminary observations. First, it is common ground that Parliament intended that crossbreed dogs may, in appropriate circumstances, be properly regarded as falling within one of the categories of restricted breed dogs specified in s 3(1) of the Act. The concession made on behalf of the plaintiffs in that respect is appropriate. It is clear from the Parliamentary debates that the intention of the legislation was to bring crossbreed dogs within the “restrictive breed dog” provisions of the Act. Thus, s 3(3) of the Act envisages that the prescribed Standard, for a restricted breed, will cover and apply to crossbreed dogs, which have the appropriate set of characteristics for a restricted breed dog. Obviously, a crossbreed dog will not have all of the characteristics of a dog belonging to one of the categories of the restrictive breed dogs specified in s 3(1). By definition, the characteristics of a crossbreed dog will be a mixture of the characteristics of its two parents, one of which is a restricted breed dog, and the other of which is not a restricted breed dog belonging to the same category.

Further, and allied to that point, it is self-evident that the characteristics of a crossbreed dog will greatly vary, depending upon the breed of the parent which is not itself a restricted breed dog. The one Standard, prescribed under s 3(3), could not be universal in its application to all crossbreed dogs, one of the parents of which is a restricted breed dog, and the other of which is not a restricted breed dog. In other words, the Standard could not fit each characteristic of two different crossbreed dogs, where each of those crossbreeds had, as one parent, a restricted breed dog, and, as the other parent, a different kind or breed of non-restricted breed dog. In this respect, it is significant that s 3(3) and s 3(4) envisage the one Standard for a species of restricted breed dog, including crossbreeds, without regard to the species of the non-restricted breed parent of a crossbreed.

With those observations in mind, I turn to the particular legislative provisions in question. In that context, it is important to note that s 3(3) does not, expressly, require that the particular dog comply with each and every criterion, specified in the approved standard, for it to be a restrictive breed dog. Rather, s 3(3) requires that the dog “falls within” the approved Standard of the restrictive breed dog. I accept that that phrase requires a dog to be inside (within) the approved Standard. In other words, it would not be sufficient for a dog to fall only partially within the approved Standard. However, when construing the relevant Standard, it is significant that s 3(3) does not expressly require that the dog correspond with each of the characteristics defined in the Standard for it to come within that Standard.

Thus, the question, whether the dog, to be a restricted breed dog, must comply with each criterion contained in the Standard, must depend upon a proper construction of the Standard itself. As I have already noted, clause 1 of the Standard specifically provides that a dog is an American pit bull terrier if it “meets the description” of a dog in that part of a Standard. Again, it is significant that the Standard itself does not specify that the dog must meet each and every aspect of the description or criteria of an American pit bull terrier contained in the Standard. Further, as Ms Peppler correctly points out, the description of the American pit bull terrier, contained in the Standard, is generic. In other words, it is not a description of one specific pit bull terrier. Rather, it is a description of the characteristics of an American pit bull terrier as a class.

In its ordinary usage, the phrase “meets the description” does not, necessarily, require or connote an exact correspondence with each and every aspect of a particular description. The question as to what that phrase means must depend on the context in which it is used. In particular, in this case, the meaning to be attributed to the phrase “meets the description” is to be properly ascertained by an examination of the Standard as a whole, in the context of the purpose and objective of s 3(3) and the Standard.

The Standard itself is very detailed. It specifies a comprehensive range of aspects of the dog’s anatomy, physical characteristics and appearance. It does not, in its terms, allow for alternative characteristics, depending upon the particular breeding of a crossbreed dog. Rather, it is clear from the text of the Standard that it is directed to defining an American pit bull terrier which, itself, is not a crossbreed. That observation, of itself, militates against the construction relied on by the plaintiffs. For, if, to meet the description contained in the Standard, a dog was required to correspond with each of the characteristics specified in the Standard, it is evident that the Standard would not apply to any crossbreed dogs.

Further and importantly, as I have already stated, the Standard specifies a large number of characteristics or criteria of an American pit bull terrier. A number of those characteristics themselves have a number of subsidiary criteria or elements. For example, the section relating to the “head” commences with a description of its shape, both from above and from the side. It then contains detailed descriptions of various aspects of the head, namely, the muzzle, the head profile, the skull, the lips, the teeth, the nose, the eyes and the ears. A number of the criteria, or the “sub criteria”, of the Standard, themselves contain several parts or elements. For example the “skull” is defined as follows:

“Large, fairly flat, broad and deep, slightly tapering towards the stop. There is a deep median furrow reducing in depth from stop to occiput. Cheek muscles are prominent but free of wrinkles. When the dog is alerted wrinkles will form on the forehead.”

Similarly, the “feet” are described in the following manner:

“The feet are round and in balance with the size of the dog, well arched and tight. The pads are hard and well cushioned. Nails are strong. Dewclaws may be removed.”

In addition, the Standard contains a number of photographs and diagrams. Some of the diagrams are quite detailed, and themselves pictorially describe a number of features of a particular feature of the dog’s appearance.

In those circumstances, if the plaintiffs’ submissions are correct, a dog would only be deemed to be an American pit bull terrier, for the purposes of the Standard, if it completely corresponded with each of the elements, sub-criteria and criteria specified in the text of the Standard, and if also it corresponded with each detail in each of the photographs and diagrams in the Standard. The legislative purpose of the introduction of the Standard – which is clear not only from the Parliamentary debates but from the text of the statute – was to assist authorised officers to form an appropriate conclusion as to whether a dog is a restricted breed dog or not. The construction of the Standard, contended for the plaintiffs, would clearly frustrate that purpose.

That proposition would be underlined in a case in which a particular dog was found to comply with all but one or two aspects of the Standard. If the plaintiffs’ submission is correct, a dog would not fall within the Standard, notwithstanding that its characteristics corresponded with all of the characteristics described in the Standard, except one or two of the “sub criteria”, or elements, of a particular criterion. In my view, Parliament cannot have intended that legislation, which was directed to ensuring the safety of the community, should have such an absurd result.

It was argued on behalf of the plaintiffs that the intention of the introduction of the approved Standards, in the 2011 amendment, was to introduce certainty in the process of the identification by an authorised officer of a restrictive breed dog. It was further submitted that if s 3(3) and the Standard were construed in a manner which did not require total correspondence between the dog’s characteristics and those defined in the Standard, the Standard would thus be deprived of its intended purpose of introducing certainty into the process.

I do not accept that submission. First, it is clear that the Standard, of itself, would not remove all uncertainty from the process, even if, as contended by the plaintiffs, it was necessary for there to be total correspondence between the characteristics of the dog in question and the characteristics of the American pit bull terrier described in the Standard. Some of the features of the dog, specified in the Standard, are described in general or non-specific terms, which require a degree of subjective assessment. For example, the neck must be of “moderate” length; the forelegs must be “muscular”; the chest must be of “moderate” width. It is clear that the assessment of a dog by an authorised officer will often be open to debate, no matter which construction of the Standard, contended for in this case, provides.

Further, a construction, which did not require total correspondence between the Standard and the dog in question, would not deprive the Standard of its utility in adding certainty to the process. By defining, and illustrating, the various characteristics of an American pit bull terrier, the Standard conduces to greater certainty in the identification process, notwithstanding that, on its proper construction, it is not necessary for a dog to conform strictly and totally with all of the criteria contained in the Standard. In other words, rather than being left “at large”, the authorised officer is provided with a detailed specification of the various characteristics of an American pit bull terrier, by which the dog in question is to be appropriately assessed.

For those reasons, I do not consider that, on a proper construction of s 3(3) of the Act and the Standard, it is necessary that a dog conform with each of the individual characteristics specified in the Standard. The use of the phrase “meets the description” at the commencement of the Standard, does not, of itself, require conformity by the dog with each and every criterion specified in the Standard. A construction of that phrase, requiring total correspondence between the characteristics of a dog and the Standard, would frustrate and defeat the legislative intention that the approved Standards apply to crossbreed dogs, and would undermine Parliament’s intention to protect the community from those species of restricted breed dogs. Further, the detailed content of the Standard, the underlying legislative purpose, and the accepted fact that the Standard was intended to apply to crossbreeds, whatever the strain of the non-restricted breed parent of the dog in question, lead, as a matter of proper statutory construction, to the conclusion that, in order that a dog “meet the description” contained in the Standard, it does not need to conform with each and every characteristic specified in the Standard.

That construction gains some support from the last criterion contained in the Standard, relating to “height and weight”. There, the Standard contains the following specification:

“Height at withers: bitches and dogs 43 cm – 53 cm.
Weight: bitches and dogs 14 kgs – 36 kgs.
The disparity between height and weight is considerable and importance should be placed on the overall consideration of the assessment of the dog rather than adhering absolutely to the guidelines on height.” (Emphasis added).

The reference, in that part of the Standard to the “overall consideration of the assessment of the dog”, lends support to the proposition that s 3(3) and the Standard do not require there to be total conformity with each of the elements contained in the Standard. Rather, by considering each of those elements, it is necessary that, on an “overall assessment”, the dog be properly determined to meet the description contained in the Standard.

That analysis brings me to the question raised by the plaintiffs in their submissions. In particular, it was submitted on behalf of the plaintiffs that if, properly construed, s 3(3) and the Standard did not require total compliance by a dog with the characteristics of the restricted breed dog specified in the Standard, any articulation of an alternative test, for correspondence between a particular dog and the Standard, would involve impermissible re-writing of both s 3(3) and the Standard.

As I have already noted, the response made on behalf of each of the defendants, to that issue, is that, in forming the requisite opinion under s 98A of the Act, it is sufficient that the authorised officer, by reference to the applicable Standard, form an opinion, which is not unreasonable (in the Wednesbury Corporation sense), that the dog in question is a restricted breed dog.

That approach, while superficially attractive, does not answer, but, rather, begs the question, namely, how and on what basis is the authorised officer to form the requisite opinion for the purposes of s 98(1). Unless there is some requisite level of compliance (whether quantitative or qualitative) with the Standard, the construction contended for by the defendants would leave an authorised officer at large in forming the relevant opinion. Indeed, in such a case, the unreasonableness of such an opinion, formed by an authorised officer, for the purposes of the Wednesbury Corporation principle, could never be the subject of a judicial review. It would only be possible to determine whether such an opinion was unreasonable, in that sense, if it had to be formulated by reference to a particular level of satisfaction by the officer as to the compliance by the dog, in question, with the particular Standard.

The answer to the question, posed by both the plaintiffs and the defendants, is to be determined by reference to a proper construction of the standard, in the context of s 3(3), and the Act as a whole. As I have already stated, in order that a dog “fall within” an approved Standard for the purposes of s 3(3), it must come within the four corners of that Standard. The Standard, for an American pit bull terrier, requires that the dog must “meet the description” of a dog in that part of the Standard. That requirement must, as I stated, be construed in the context of the legislation, which was directed not only to “pure bred” American pit bull terriers, but also to crossbreed dogs.

As a matter of ordinary parlance, in order to conclude that an object (or an animal) “meets” a particular description, there must be substantial compliance between the object or animal and the description. In construing the Standard, it is important to bear in mind that the legislation was directed to particular specified classes of breeds of dogs, as a measure to protect community safety. As such, it was based on the apparent proposition that dogs of a particular breed may, generically, constitute a risk to the safety of members of the community. Thus, the legislation, relating to “restrictive breed dogs”, was not directed to all dogs which might have some features in common with a restricted breed dog, but, rather, to those dogs which, as a matter of substance, could be properly understood to come within the description of such a dog contained in the Standard.

Taken in that context, the requirement that a dog “meet the description” of the American pit bull terrier must contemplate, in my view, a substantial, or high, level of correspondence between the characteristics of the particular dog in question, and the description of those characteristics in the Standard. Indeed, it was conceded by Ms Peppler, in the course of submissions, a low level of correspondence would not be sufficient to satisfy the requirements of the Standard. When pressed, counsel for both defendants accepted that, in order that a particular dog meet the description contained in the Standard, there must be substantial correspondence between the characteristics of the dog and the criteria contained in the Standard. That concession is clearly correct.

Obviously, in an individual case, the question whether there is the requisite high or substantial level of correspondence between the dog, and the Standard, will ultimately be one of appropriate judgment in the particular case. That judgment may depend on the expert opinion (if any) available to the authorised officer or, on review, to the Tribunal, as to whether any particular characteristics or criteria, specified in the Standard, are of particular importance in determining whether there is a high or substantial level of correspondence between the characteristics in the Standard and the particular dog in question, so that it can be properly concluded that the dog “meets the description” of the dog in the Standard. However, in the end, as a matter of proper construction, the relevant characteristics of the dog in question must be assessed, in quantitative and qualitative terms, to have a substantial or high level of correspondence with the criteria specified in the Standard, in order that it “meet the description” of a dog in that part of the Standard.

The conclusion, which I have just expressed, does not, in any way, involve a re-writing of the Act or of the Standard. Rather, that conclusion is based on a proper construction of the phrase “falls within” in s 3(3) of the Act, and the phrase “meets the description” at the beginning of the Standard, in the context of the Act as a whole, and in the context of the intended objective and purpose of the provisions relating to restrictive breed dogs in the legislation.

With those principles in mind, I now turn to the particular grounds of appeal in each of the two cases which are before me.

Dudas v Monash City Council

The notice of appeal in Dudas v Monash City Council contains two grounds of appeal, namely:

“1.The Tribunal erred in law in concluding that Rapta fell within an approved standard and was thereby a restricted breed dog.
2.The Tribunal erred in law in finding that Rapta’s neck fell within the approved standard for an American pit bull terrier.”

The first ground of appeal is better understood in the context of the first two questions of law contained in the notice of appeal, which I have set out earlier.[21] In the context of those questions, Mr Nugent submitted that, if (contrary to his primary submission) it was not necessary for the dog to conform with each of the criteria specified in the Standard, the appropriate test which must be applied is whether there was a high level of correlation between the characteristics of the dog and the criteria specified in the Standard. Mr Nugent submitted that the Senior Member, in the case of Dudas, did not apply that test, but that, rather, the Senior Member required a lesser degree of compliance of the dog with the criteria contained in the Standard.
[21]Paragraph [21] above.

I have already set out the relevant passages from the decision of the Senior Member in relation to “Rapta”[22]. In reaching the conclusion that Rapta came within the Standard, the Senior Member agreed with the proposition (by Mr Muir) that certain aspects of Rapta’s anatomy should be given greater weight than others. In reaching his conclusion, the Senior Member stated that “by and large” he was satisfied that Rapta does fit the Standard.
[22]Paragraphs [17], [18] above.

I appreciate that, when reviewing decisions of Tribunals, a court should not expect the degree of exactitude of language which might be found in the reasons for judgment of a court.[23] Nevertheless, it is important to note that the Tribunal member did not, in express terms, at any stage postulate that he needed to be satisfied that there was a high or substantial degree of compliance between the characteristics of Rapta and the criteria contained in the Standard.
[23]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272.

The question then is whether, in reaching the conclusion “by and large” Rapta did fit the Standard, the Tribunal member did apply the test to which I have referred. While the Senior Member did find that a number of the aspects of the dog’s anatomy and characteristics were consistent with those described in the criteria, at the same time he found that there was a substantial number which did not.[24] In particular, there are a number of parts of the dog’s anatomy which, from the context in which they are contained in the Standard, would not of themselves seem to be inconsequential. The Senior Member found that the tail, feet, loin, back, nose, lips, muzzle and withers of Rapta did not match the criteria specified in the Standard. He found that the skull did fit within the Standard, but, in doing so, he noted that Mr Wisdom had observed that the dog had wrinkles on its cheek. The Standard, in relation to the skull, requires (inter alia) that the cheek muscles “are prominent but free of wrinkles”.
[24]See paragraph [18] above.

Certainly, a number of the features of Rapta, found by the Senior Member to be consistent with those described in the Standard, are individually important features. However, the finding by the Senior Member (or the acceptance by him of the concession) that a number of the features of Rapta did not conform with the Standard, provides a context to the ultimate conclusion by the Senior Member that “by and large” Rapta does fit the Standard. Taking the reasons of the Senior Member as a whole, and in particular taking into account the manner in which the Senior Member postulated the relevant test, and stated his conclusion, I am satisfied on balance that the Senior Member did not apply the correct test in determining whether Rapta “meets the description” of the dog referred to in the Standard. Rather, it would seem that the Senior Member applied a broader, and less stringent, test in making that determination. In that way, I am satisfied that ground 1 of the notice of appeal is made out, namely, that the Senior Member erred in law in concluding that Rapta fell within an approved Standard, and was thereby a restricted breed dog.

In reaching that conclusion, I should emphasise that I am not critical of the approach taken by the Senior Member. On the contrary, it is clear that the Senior Member approached the task, which he had to perform, with particular care. In reaching his decision, the Senior Member was conscious that he was “breaking new ground” in determining the appropriate approach which was required to be adopted in determining whether a particular dog fell within the Standard in question. In reaching his conclusion as to that matter, the Senior Member did not have the benefit of the detailed legal argument which took place before me, and which has significantly assisted me to reach a conclusion as to the appropriate test to be applied in determining whether, for the purposes of the Standard, a particular dog “meets the description” of the restricted breed dog in the Standard.

In light of that conclusion, I shall deal only briefly with the other matters raised in the appellant’s grounds of appeal. The second ground relates to the finding by the Tribunal in relation to Rapta’s neck. The description of the neck in the Standard contains a number of elements, including: that it be of moderate length and great strength, that it taper from the head to the shoulders, that there be a slight arch over the crest, and that the neck must be free from loose skin or dewlap. Mr Wisdom stated that Rapta was not free from loose skin. The Senior Member accepted that evidence, but he found that otherwise the neck conformed with the criteria.

As stated by the Senior Member, the comparison, which is required to be undertaken, for the purposes of the Standard, does not simply involve ticking particular boxes. Rather, it involves an assessment of each aspect of the anatomy specified in the Standard, and of each of the individual parts of the description of that aspect of the dog’s anatomy. It would therefore be appropriate for an authorised officer (and thus the Tribunal) to note the aspects of a particular part of the anatomy (for example the neck) which complied with the Standard, and those which did not. That analysis would be taken into account in the overall assessment as to whether there was, in totality, a high or substantial degree of correspondence between the dog in question and the restricted breed dog described in the Standard. For that reason, I do not consider that the Senior Member did make an error of law (or otherwise) in expressing his conclusions in relation to the neck.

However, in light of my conclusion in relation to the first ground of appeal, it follows that the order and decision of the Tribunal should be set aside. I do not consider that, based on the findings made by the Senior Member, I am in a position to assess, for myself, whether or not, on a proper construction of the Standard, Rapta does or does not meet the description of an American pit bull terrier under the Standard. Indeed, it was not submitted that I should carry out such an assessment myself. It is therefore appropriate that I remit the proceeding to the Tribunal to be heard by a differently constituted Tribunal.

Tarawa-Shearer v Darebin City Council

The second ground of appeal in Tarawa-Shearer v Darebin City Council is in similar terms to the first ground of appeal in Dudas. Again in light of the questions of law stated in the notice of appeal, that ground of appeal is sufficiently wide to include the proposition that the Senior Member did not apply the correct test in determining, on the facts found by him, that Tia fell within the approved Standard.

In the course of submissions, Ms Ruddle advanced a similar contention to that put by Mr Nugent, namely, that if the dog was not required to conform with each of the criteria contained in the Standard, it was necessary that there be a high or substantial level of compliance between the dog and the Standard, in order that the dog “fall within” the Standard. As I stated, I consider that, on the proper construction of s 3(3) and the Standard, that is the correct test to apply in determining whether the dog in question “meets the description” of the restricted breed dog specified in the Standard.

As I have already stated, in reaching his conclusion, the Senior Member applied the same test as he enunciated in the Dudas decision, which he had decided three months earlier. Having considered whether Tia conformed with the particular criteria specified in the Standard, the Senior Member, set out the test which he postulated in Dudas, and concluded as follows:

“[56]The question is whether I am satisfied on that test which I have referred to that this particular dog Tia does fit within that Standard. I must weigh up all the criteria to which I have referred and come to a conclusion of whether it does fit within that Standard or not. Having made the findings that I have made of the way this dog fits within the Standard and the way it does not fit within the Standard, I have come to the conclusion that it basically does fit within the Standard. … Clearly, not every feature of the dog does come within the Standard. In my view, there are sufficient features of this dog to bring it within the Standard.”

Again, the language used by the Senior Member does not suggest that he applied a test requiring satisfaction that there was a high or substantial level of correlation between the relevant features of Tia on the one hand with the criteria specified in the Standard. Rather, it would seem, from the passage of the decision I have just quoted, that he did not apply that test. That conclusion is reinforced by the number, and nature, of the features of Tia, which the Senior Member found (or which it was conceded) did not comply with the criteria contained in the Standard. In particular, as I have earlier stated, the Senior Member found (or it was conceded) that Tia’s head, muzzle, head profile, lips, teeth, eyes, forechest, back, loin, hindquarters, feet and tail did not correspond with the Standard. In light of the number and nature of those features, the finding by the Senior Member, that there were “sufficient” characteristics of the dog to bring it within the Standard, satisfies me that the Senior Member did not apply the appropriate test in determining whether the dog fell within the Standard.

Accordingly, I am satisfied that the appellant has made out the second ground of appeal contained in the notice of appeal. As in the case of Dudas, I am not in a position – nor did Ms Ruddle suggest that I would be – to determine whether, based on the factual findings made by the Senior Member, Tia does fall within the approved Standard. It is therefore appropriate that I set aside the decision and order of the Tribunal, and remit the matter to the Tribunal for hearing by a differently constituted Tribunal.

That conclusion makes it unnecessary for me to deal with the third ground of appeal, namely that the Tribunal erred in treating “pasterns” as a separate criteria to be satisfied under the approved Standard. I would not consider that the third ground of appeal is of consequence in the case. That ground of appeal would only be relevant, if a strictly arithmetical approach is applicable in determining whether there is sufficient compliance between the dog and the Standard. For, as I have stated, the critical question is whether, taking into account all of the findings of fact in relation to the particular criteria – and the elements of the criteria – specified in the Standard, the authorised officer (and on review the Tribunal) is satisfied that there is a substantial or high level of correspondence between the relevant features of the dog and the Standard. That conclusion is not simply a product of how many “boxes”, contained in the Standard, are “ticked”. Rather, as I have indicated, the exercise, which must be performed, is whether both qualitatively and quantitatively the common aspects between the dog and the criteria contained in the Standard are sufficient to enable a conclusion to be made that there was a substantial or high level of correspondence between the relevant features of the dog and the criteria specified in the Standard. Indeed, the Senior Member himself has made it clear that he did not regard the exercise to be performed by him as merely an “arithmetic” exercise. Accordingly, I do not consider that ground 3 has been made out by the appellant.

The Briginshaw test

In each of the two proceedings, the plaintiffs, in their notices of appeal, stated as a question whether it is necessary, to properly declare that a dog is a restricted breed dog, for the decision to be made on the “Briginshaw v Briginshaw”[25] standard. In each case, the defendant accepted that the “Briginshaw” approach is the applicable standard of proof which should be adopted by the Tribunal. However, in each case, counsel for the plaintiff conceded that, in making factual findings in respect of each of the particular criteria specified in the Standard, the Senior Member had applied the Briginshaw standard. Indeed, in his decision in each case, the Senior Member stated that he considered that, given the consequences of the findings made by him, it was appropriate that he reach his conclusions guided by the principle stated by the High Court in Briginshaw v Briginshaw. Thus, as Mr Nugent and Ms Ruddle conceded, the point raised by the ground of appeal is “moot”.
[25](1938) 60 CLR 336.

Summary of conclusions

For the foregoing reasons, in each of the two proceedings, I have reached the following conclusions, which I summarise as follows:

(1)It is not necessary, for a dog to fall within the approved Standard under s 3(3) of the Domestic Animals Act 1994, that the dog conform with each of the criteria specified in the Standard.
(2)In order that a dog fall within that Standard, there must be a substantial, or high, level of correspondence between the material characteristics of the dog and the criteria specified in the Standard.
(3)In each case, I am satisfied that the Senior Member of the Tribunal did not apply the correct test in determining whether the dog fell within the Standard. Accordingly, the Senior Member of the Tribunal erred in law, in each case, in determining that the dog fell within the Standard.
(4)Accordingly, in Dudas v Monash City Council, the plaintiff has made out ground number one contained in the notice of appeal dated 27 June 2012. In Tarawa-Shearer v Darebin City Council, the plaintiff has made out ground number two in the notice of appeal dated 6 September 2012.
(5)In each proceeding, I shall make an order that the decision and order of the Senior Member of the Tribunal be set aside, and that the matter be remitted to the Tribunal, differently constituted, for hearing and determination in accordance with the law.

Orders

Subject to hearing from counsel, I shall therefore make the following orders.

In Dudas v Monash City Council I shall order:

(1)That the decision and orders of the Victorian Civil and Administrative Tribunal dated 23 March 2012 be set aside.
(2)That the matter be remitted to the Tribunal, differently constituted, for rehearing and determination in accordance with the law.

In the matter of Tarawa-Shearer v Darebin City Council I shall make the following orders:

(1)The decision and orders of the Victorian Civil and Administrative Tribunal dated 20 June 2012 be set aside.
(2)The matter be remitted to the Tribunal, differently constituted, for hearing and determination in accordance with law.

I shall hear counsel on the question of costs.

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Dudas v Monash City Council; Tarawa-Shearer v Darebin City Council [2012] VSC 578

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29 November 2012