Ethell v Redland City Council - [2021] QCAT 384

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Ethell v Redland City Council [2021] QCAT 384

PARTIES:

BENJAMIN ETHELL

(applicant)

V

REDLAND CITY COUNCIL

(respondent)

APPLICATION NO/S:

GAR296-20

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

2 November 2021

HEARD ON:

14 October 2021

HEARING DATE:

Brisbane

DECISION OF:

Member Lember

ORDERS:

The decision of the Redland City Council dated 8 June 2020 to issue a Destruction Order in respect of “Bam Bam” is affirmed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where declared dangerous dog – whether grounds for destruction order

ANIMALS – VARIOUS STATUTORY PROVISIONS – REGULATION OF COMPANION ANIMALS – OTHER MATTERS – where declared dangerous dog – where dog bit member of public – whether grounds for destruction order

Animal Management (Cats and Dogs) Act 2008 (Qld), s 3, s 4, s 20, s 59, s 60, s 126, s 127, s 188

Animal Management (Cats and Dogs) Regulation 2009 (Qld)
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b), s 4(b), s 4(c), s 9(1), s 17(1), s 20, s 21, s 23(3), s 32(2), s 62(1), s 95(1)

Gala v Fraser Coast Regional Council [2010] QCAT 576
Naidu v Brisbane City Council [2014] QCAT 420
Nguyen v Gold Coast City Council Animal Management [2017] QCATA 121

Thomas v Ipswich City Council [2015] QCATA 97

APPEARANCES & REPRESENTATION:

Applicant:
Respondent:

Self-represented

Ms Schooth, Solicitor employed by the Respondent

REASONS FOR DECISION

What is the application about?

The circumstances of this case are particularly sad. Mr Ethell is the registered owner of Bam Bam, a five-year old male bandog, and has been since Bam Bam was a pup. The two have a particularly strong bond, having together experienced homelessness and other hardships. Bam Bam is “friend and family”[1] and as a son[2] to Mr Ethell, upon whom the current circumstances involving Bam Bam are taking quite a toll.
[1]Part C of the Application to review a decision filed 25 August 2020.
[2]Exhibit 1, JHS16 Statement of Mr Ethell declared 22 May 2020 at page 6.
Following an incident on 18 February 2020 – when Bam Bam is said to have attacked a meter-reader – Bam Bam was impounded by the respondent Council and declared a dangerous dog pursuant to section 127 of the Animal Management (Cats and Dogs) Act 2008 (Qld) (“the AM Act”).
Mr Ethell did not dispute the dangerous dog declaration. He, instead, undertook the necessary steps to register Bam Bam and to ensure that he would be adequately enclosed at his home according to permit conditions, with the effect that Bam Bam returned to Mr Ethell’s care on 18 March 2020.
On 14 May 2020, there was another incident involving Bam Bam and a delivery driver, following which the Council made a decision on 8 June 2020 to issue a destruction notice in relation to Bam Bam.
Mr Ethell has applied to the tribunal for a review of Council’s decision to issue a destruction order for Bam…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2021] QCAT 384
Decision Date

CaseChat Overview and Summary

In the matter of Ethell v Redland City Council, the Queensland Civil and Administrative Tribunal (QCAT) was required to review the decision of the Redland City Council to issue a destruction order in relation to a dog named Bam Bam. The decision was made following an incident in which Bam Bam bit a delivery driver, Mr Singh. The applicant, Mr Ethell, sought to challenge the decision on the grounds that Bam Bam did not pose a risk to community health or safety and that he should not be destroyed. The tribunal's role was to review the decision afresh and to produce the correct and preferable decision.

The tribunal considered a range of factors in making its decision, including the history of Bam Bam's behaviour, the current behaviour of the dog, the arrangements for the dog at its place of residence, the risk the dog poses to community health or safety, compliance by the owner of the dog with any permit conditions imposed, whether the owner of the dog demonstrates insight into, and understanding of, the dog's behaviour and has acted appropriately to mitigate any risk posed by the dog to people or animals, and the rights of individuals, including the owner of the dog.

The tribunal found that Bam Bam had a history of aggressive behaviour, including attacking a meter-reader and chasing a cat, and that he had bitten Mr Singh, causing him to attend hospital for treatment. The tribunal also found that Mr Ethell had not complied with the permit conditions imposed on him in relation to Bam Bam, and that he did not demonstrate insight into, and understanding of, the risk that Bam Bam posed to others. The tribunal was satisfied that the destruction order was the only reliable alternative to ensuring community safety.

The tribunal affirmed the decision of the Redland City Council to issue a destruction order in respect of Bam Bam.

Orders