Fogarty v Turville on behalf of the Brisbane City Council
[2010] QCAT 394
•12 August 2010
| CITATION: | Fogarty v Turville on behalf of the Brisbane City Council [2010] QCAT 394 |
| PARTIES: | Terence Fogarty |
| v | |
| Brett Turville on behalf of the Brisbane City Council |
| APPLICATION NUMBER: | GAR015-10 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 22 June 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | Nathan Jarro, Member |
| DELIVERED ON: | 12 August 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | The Tribunal reaffirms the decision of the respondent in relation to the declaration of “Shep” as a regulated menacing dog pursuant to section 89 of the Animal Management (Cats and Dogs) Act 2008 |
| CATCHWORDS : | Animal Management (Cats and Dogs) Act 2008; sections 89 and 188; declaration; regulated dog; menacing dog; Animals Local Law 2003; effective control |
APPEARANCES and REPRESENTATION:
| APPLICANT: | Self represented |
| RESPONDENT: | Ms S Singh, Brisbane City Legal Practice |
REASONS FOR DECISION
Mr Terence Fogarty seeks an external review of a decision made by the Brisbane City Council which declared that his four year old pet German Shepherd is a regulated menacing dog under the Animal Management (Cats and Dogs) Act 2008. The respondent made the declaration following an investigation into an incident that took place on 3 September 2009 at an off-leash area at Northgate Reserve, Cambage Road, Nudgee which involved the applicant’s German Shepherd, known as “Shep”, and a female fox terrier named “Daniela”.
Jurisdiction of the Tribunal
In accordance with s.17 of the Queensland Civil and Administrative Tribunal Act 2009 (“the QCAT Act”), the Tribunal’s review jurisdiction is the jurisdiction conferred on it by the Animal Management (Cats and Dogs) Act 2008 (“the Act”). In exercising its review jurisdiction, the Tribunal is required under s.19 of the QCAT Act to decide the review in accordance with the Act and the QCAT Act. The Tribunal has, inter alia, all the functions of the decision-maker for the reviewable decision being reviewed. In accordance with s.20 of the QCAT Act, the purpose of the external review is to produce the correct and preferable decision. The Tribunal must hear and decide the review by way of a fresh hearing on the merits. As such, this matter proceeded by way of a fresh hearing on the merits on 22 June 2010 with the receiving of evidence from both parties as well as submissions.
The hearing
At the commencement of the hearing, the applicant tendered a number of statements from various individuals (including Mr Brian Fogarty, Mr Tom Telfer, Mr Brice Kaddatz, Dr F Feeney (veterinarian surgeon), Mr Trevor Thomason and Ms Glenda Preece) who attested to Shep’s good character. The applicant indicated that the individuals and others were available for cross-examination however the respondent did not seek to cross-examine and accordingly the statements were accepted as unchallenged. The statements all demonstrate, amongst other things, that Shep is a good natured, well meaning and playful German Shepherd, and one not normally predisposed to violence or aggression.
The applicant also provided evidence at the hearing and was cross-examined by the respondent. The parties agreed, and the Tribunal allowed, the respondent’s witnesses (six in total) to provide evidence first, and to allow the applicant the opportunity to cross-examine the respondent’s witnesses. At the conclusion of the respondent’s case, the applicant then provided his evidence.
The relevant issue for determination is whether the declaration of Shep as a regulated menacing dog pursuant to s.89 of the Animal Management (Cats and Dogs) Act 2008 is the correct and preferable decision. Relevantly, s.89 of the Act enables any local government to declare a particular dog to be a declared menacing dog if the dog:
a.has attacked, or acted in a way that caused fear to a person or another animal; or,
b.may in the opinion of an authorised person having regard to the way the dog has behaved towards a person or another animal, attacked, or acted in a way that causes fear to, the person or animal.
The evidence
The respondent commenced an investigation after it received a complaint from Mr Eric Wildermuth (Daniela’s owner) on 7 September 2009. Mr Wildermuth gave evidence before the Tribunal as well as a statement dated 18 March 2010.
On the afternoon of 3 September 2009, Mr Wildermuth took Daniela for a walk. He usually walks Daniela around the neighbouring areas of his home at Nundah but not in the off-leash area where owners of dogs are allowed to exercise their dogs without restraining devices. During the walk, Mr Wildermuth placed some of Daniela’s droppings into a bag and carried the bag with him until he arrived at the off-leash area. He intended to place the bag into the rubbish bin located within the off-leash area. As Mr Wildermuth walked along the fence line, he became aware of a black and gold coloured German Shepherd (being Shep) within the off-leash area. There was a male person seated at a table located within the off-leash area. As Mr Wildermuth walked along the fence line, the male person (being the applicant in this matter) asked Mr Wildermuth whether he was intending to go into the off-leash area. Mr Wildermuth indicated that he was not but that his intention was to place Daniela’s droppings into the rubbish bin located inside the off-leash area. As Mr Wildermuth walked along the outside of the fence, Shep followed from the inside.
The particular off-leash area has an access gate with a rubbish bin located just inside the off-leash area. The gate is a single gate.
Mr Wildermuth did not take Daniela inside the off-leash area. Instead, he left her outside of the fenced area but still on an extendable lead. As he entered the off-leash area with the bag of droppings, Mr Wildermuth held onto the lead. He could not specifically recall if he held the gate open, but did recall holding onto the gate with his left hand while he placed the droppings into the bin. In evidence, he stated that if the gate was open, there would have only been a small gap while he placed the droppings into the bin. He recalled that as he entered the off-leash area, Shep came down towards the gate. At first, Shep stayed back from the gate and Mr Wildermuth believed behind the rubbish bin, but as he turned back towards the gate after dropping the rubbish into the bin, Shep rushed towards the open gate and out of the off-leash area. Mr Wildermuth then saw Shep run towards Daniela. He stated that Shep lunged at Daniela and he saw Shep bite Daniela on the back. Daniela started to yelp and rolled onto her side. Shep then lunged at Daniela again, biting her around the belly area. Shep picked Daniela up and according to Mr Wildermuth, “shook her like a rag doll”. Throughout this, Daniela was yelping loudly in fear. Mr Wildermuth grabbed hold of Shep’s collar and pulled Shep backwards. As he did, Daniela ran off. Mr Wildermuth could see the blood. He let go of Shep and Shep ran towards the applicant within the off-leash area. Mr Wildermuth then ran after Daniela.
In his evidence, Mr Wildermuth stated that the incident to Daniela by Shep lasted for around 10 to 20 seconds. Mr Wildermuth said that at no time did Mr Fogarty call out to Shep to stop or offer any assistance. Instead the applicant suggested that it was Mr Wildermuth’s fault for leaving the gate open.
Mr Wildermuth presented Daniela to the Northgate Veterinary Surgery the day after the incident for treatment to wounds to the stomach. Daniela took some time to recover from the injuries. Mr Wildermuth, in his evidence, stated that at no time did he or Daniela do anything which might have caused the incident. He said that he was simply walking through the park but there was no control over Shep when he entered the off-leash area. He said Daniela offered no resistance when attacked by Shep.
It was a couple of days after the incident before the respondent council received a complaint from Mr Wildermuth. On 8 September 2009, Community Regulations Officer, Mr Troy Casey, interviewed Mr Wildermuth in relation to the incident. Mr Casey also had the opportunity to take a series of photographs of Daniela which formed part of the evidence before the Tribunal.
As part of Mr Casey’s investigation, Mr Casey spoke to a number of persons around the general area where the alleged attack occurred. He was unable, as a result of those enquiries, to locate any witnesses to the alleged attack. While the identities of the applicant and Shep were unknown to both Mr Casey and Mr Wildermuth at the time, Mr Casey conducted periodic patrols of the Northgate Reserve off-leash area in order to determine if the dog and the owner were regular visitors to the area.
Later in the month, on or about 25 September 2009, Mr Casey observed the applicant and Shep within the off-leash area which matched the description given by Mr Wildermuth. Mr Casey interviewed the applicant about the alleged incident and was told by the applicant that he did not actually see Shep bite Daniela. The applicant also indicated to Mr Casey that he did not see any blood on Daniela.
As part of his duties in finalising any investigation, Mr Casey is required to report to his direct supervisor of the finding of his investigation and any recommendations he might have for administrative and criminal proceedings. On completion of the investigation, Mr Casey formed the view that Council should not declare Shep as either menacing or dangerous but recommended that an infringement notice be issued against the applicant because he failed, in My Casey’s view, to have effective control over Shep. Mr Casey, in his evidence, indicated that the final decision with regard to administrative and criminal proceedings rest with the operational supervisor and team leader.
Accordingly Mr Casey’s operational supervisor, Mr Brad Kelso, gave evidence before the Tribunal. Mr Kelso is the Operations Coordinator, Compliance and Regulatory Services, North Region. He is required to supervise his team of community regulation officers (including Mr Casey) and review their investigations. Mr Kelso and his team (including Mr Casey) use what is referred to as a Dog Attack (Animal) Risk Assessment Tool whose purpose is to provide a numeric weighting against specific criteria. The total score of the numeric weighting then provides a suggested response in relation to what (if any) administrative action should be taken. The total score for this investigation was a 33 which is a “medium risk” which recommends “declare menacing (unless mitigating/aggravating circumstances exist)”.
When reviewing decisions by his team of community regulation officers, Mr Kelso stated that where the investigation involves declaring a regulated dog, he ensures that there is sufficient evidence to warrant doing so.
In early October 2009, Mr Kelso reviewed Mr Casey’s investigation. After a complete review of the investigation, Mr Kelso determined in essence that Shep attacked a small dog outside the off-leash area. The smaller dog had been taken to a Veterinary Surgeon due to the injuries sustained in the incident.
Mr Kelso did not agree with Mr Casey’s recommendation and recommended that Shep be declared a regulated dog under the Act but that an infringement notice should not be issued on this occasion. In making his decision, Mr Kelso stated that he took into consideration the location of the alleged attack, being outside the off-leash area, an area directly accessible to the public and designated to permit members of the public to exercise their dogs without leash. He also stated that he considered the applicant’s dog was off-leash, outside of the off-leash area, and not under effective control.
Mr Kelso formed the opinion that the alleged attack had caused significant injury to another animal. In Mr Kelso’s view, given that the applicant was some distance from his dog at the time of the attack, and that the applicant was unable to stop his dog from leaving the off-leash area, Mr Kelso determined that the applicant did not have effective control of his dog. In recommending that an infringement notice not be issued, Mr Kelso took into consideration the fact that the applicant was a pensioner and, according to Mr Kelso, the added cost of an infringement notice (together with the costs associated with his dog being declared regulated) could be prohibitive. As standard procedure, Mr Kelso subsequently forwarded the file with his recommendations to his Team Leader, Mr Owen Benvenuti, Compliance and Regulatory Services, North Region, for further review.
The decision of Mr Benvenuti differed from that of Mr Kelso and Mr Casey. Mr Benvenuti not only determined that a declaration should be made, but also that an infringement notice be issued. Mr Benvenuti gave evidence before the Tribunal.
Mr Benvenuti has held his appointment as Team Leader, Compliance and Regulatory Services, North Region, since 2004. As Team Leader, Mr Benvenuti is responsible for the supervision, control and tasking of community relation officers working within and on behalf of the Community Regulation Section at the North Region. In considering the recommendations made by the community relations officer, Mr Benvenuti stated that it is his responsibility to ensure that whatever administrative action is taken, that it is appropriate both in the interests of the dog owner and, more importantly, the interests of the public. He indicated that that where an animal might pose a risk to the public, the interests of the public outweigh the interests of the dog owner. Therefore, when receiving and reviewing decisions with regard to declaring a dog, Mr Benvenuti’s practice is to err on the side of caution and declare the animal if he believes the circumstances of the attack warrant doing so.
As is his normal practice, Mr Benvenuti receives and reviews files by his Operations Coordinator, Mr Kelso. In Shep’s case, Mr Benvenuti noticed Mr Casey’s initial recommendation (namely that the applicant’s dog not be declared and that an infringement notice be issued) and he further noted that Mr Kelso disagreed with Mr Casey’s recommendations. Mr Benvenuti stated that he then conducted a thorough review of the matter. Not only did Mr Benvenuti determine that Shep be declared, but that an infringement notice should be issued to the applicant.
In reaching the decision, Mr Benvenuti stated that he considered the fact that the alleged attack took place outside the off-leash area. Shep was allowed to escape from the off-leash area when a gate was opened to permit access to a member of the public. Mr Benvenuti stated that given that dog owners are allowed to exercise their dogs within the off-leash area without a requirement for restraint, the onus remains on the dog owner to ensure their animal:
a.does not prevent access by members of the public into the off-leash area;
b.does not escape from the enclosure; and,
c.does not cause harm or fear to another person or animal.
Mr Benvenuti indicated that signs are placed at the entrances to off-leash areas which remind animal owners of these responsibilities. He said that in considering the relevant sections of the Act, he viewed the attack allegedly involving Shep had caused fear and injury to another animal. He determined that the applicant did not have effective control of his German Shepherd, and as a result, determined that an infringement notice be issued. He subsequently directed that his decision be carried out and Shep was declared menacing in accordance with the Act. Accordingly Mr Benvenuti’s decision was communicated to the applicant by letter dated 3 November 2009.
On 17 November 2009, the respondent received an application for an Internal Review of Council’s decision to declare Shep as a regulated menacing dog. The Internal Review was conducted by Mr Brett Turville, the respondent in these proceedings. Mr Turville provided evidence in relation to his decision of 24 December 2009 to uphold the decision made by Mr Benvenuti.
Mr Turville has delegated authority to review the decision and, as part of his decision, he looked at the initial recommendation as well as the entire case file which arrived to him on or about 15 December 2009.
Mr Turville stated in evidence that he takes decisions seriously because owners have an emotional attachment to their animals. His decision to reaffirm Mr Benvenuti’s earlier decision was on the grounds that he was satisfied Shep:
a.did leave an off-leash area whilst not under effective control as defined under Council’s Animals Local Law 2003; and,
b.did attack and injure another animal.
In Mr Turville’s view, whilst he accepted that Shep escaped the off-leash area partly as a result of another person entering the area, he indicated that it remained the applicant’s responsibility to control and direct his dog to ensure that his dog does not attack a person, animal or thing in accordance with the definition of “effective control” under the Animals Local Law 2003.
The respondent also relied upon the evidence of Mr Richard Thorn. Mr Thorn’s evidence was that he essentially took some measurements of the off-leash area and was involved with the recording of the statements for the purposes of the Tribunal hearing. Mr Thorn was not a decision-maker and his involvement essentially commenced after the applicant made an application to the Tribunal.
The applicant gave evidence before the Tribunal. He provided details of the incident that took place in September 2009. He and Shep were the only ones in the off-leash area. He indicated that it is his usual practice that Shep is placed on a lead if people come into the off-leash area. He stated that Mr Wildermuth pushed the gate out completely and that Shep went outside the area and nipped Daniela. The applicant was unable to restrain or call Shep because the incident happened too quickly. There were no children and no other witnesses to the incident.
The applicant submitted that the principal issue for determination was the accuracy of Mr Wildermuth’s evidence. In his view, because there were no witnesses to the incident, and if there is a conflict of evidence, then according to the applicant, “it’s a dead heat”. The applicant also submitted (and in my view properly) that his application rested upon the interpretation of s.89 of the Act as being “may” or “must” – that is that a declaration is discretionary if the circumstances of the matter met the provisions of ss.89(2) and (3) of the Act. He submitted that s.89 had been wrongfully interpreted by all of the decision-makers who reviewed the original decision of Mr Casey. Not unsurprisingly, the applicant did not dispute Mr Casey’s original determination. He submitted that Mr Wildermuth was “negligent” and in doing so, relied upon the High Court decision of Sutherland Shire Council v Heyman [1985] HCA 41. The applicant also submitted that ss.194 and 196 provide a defence by way of provocation in that the actions of Mr Wildermuth were provoking or teasing. I find the last submission irrelevant to the present application because those sections deal with offences for which the applicant has not been charged but as noted, the issue for determination relates to the discretion to impose a declaration.
Ms Singh on behalf of the respondent submitted that the applicant did not deny the incident took place. Ms Singh also submitted on behalf of the respondent that considerable injury was caused to the dog Daniela. Attention was given to the interpretation of ss.89(2) and (3) of the Act. The issue that the gate was left ajar was not the issue. The issue was one of “effective control”. Ms Singh submitted that the Tribunal should uphold the decision of the respondent.
Findings
The Tribunal is not empowered to deal with the decision concerning the infringement notice. The Tribunal, by virtue of s.188 of the Act, has jurisdiction to deal with the respondent’s decision concerning the declaration pertaining to Shep.
The standard of proof required to be met is on balance of probabilities.
Section 89 of the Act provides as follows:
89 Power to make declaration
(1) Any local government may, by complying with the requirements of this part-
(a) declare a particular dog to be a declared dangerous dog (a dangerous dog declaration); or
(b) declare a particular dog to be a declared menacing dog (a menacing dog declaration); or
(c) declare a particular dog to be a restricted dog (a restricted dog declaration).
Note-
See sections 61 (What is a declared dangerous dog), 62 (What is a declared menacing dog) and 63(2) (What is a restricted dog).(2) A dangerous dog declaration may be made for a dog only if the dog-
(a) has seriously attacked, or acted in a way that caused fear to, a person or another animal; or
(b) may, in the opinion of an authorised person having regard to the way the dog has behaved towards a person or another animal, seriously attack, or act in a way that causes fear to, the person or animal.
(3) A menacing dog declaration may be made for a dog only if a ground mentioned in subsection (2) exists for the dog, except that the attack was not serious.
(4) A restricted dog declaration may be made for a dog only if the local government is satisfied the dog is of a breed mentioned in section 63(1).
(5) The declaration may be made even if the dog is not in the local government's area.
(6) A declaration under this section is a regulated dog declaration.
(7) In this section-seriously attack means to attack in a way causing bodily harm, grievous bodily harm or death.
I accept, as the applicant has submitted, that the power to make a declaration is a discretionary one having regard to the wording of ss. 89(2) and (3). A declaration does not have to be made even in circumstances where the subject dog has attacked or acted in a way that caused fear to a person or another animal. In my view it ultimately depends upon the circumstances of each matter as to whether a declaration is made.
In the present matter, I find that the evidence does not reveal that Shep attacked or caused fear to Daniela’s owner, Mr Wildermuth. However, I do find that the evidence demonstrates that Shep attacked, or at least acted in a way that caused fear to Daniela. Such a finding then triggers the potential for a declaration under s.89 of the Act.
In my view the circumstances of the present matter are finely balanced. It is clear the attack occurred in an unfortunate manner in that Shep, an otherwise good natured dog, escaped from the off-leash area when Mr Wildermuth opened the gate in order to place Daniela’s droppings into the rubbish bin located just inside the off-leash area. Nonetheless the situation presented itself for Shep, who was not effectively controlled, to escape the off-leash area and inflict multiple injuries upon Daniela. In making the determination that a menacing dog declaration should be made, I have no reason to doubt the veracity of the evidence given by Mr Wildermuth. In this regard Mr Wildermuth stated that he saw Shep run towards Daniela more than once and that Shep bit Daniela on the back and stomach area in circumstances where Daniela did not provoke the attack. This attack took place outside the off-leash area. In addition, I place significant weight upon the photographic evidence of Daniela’s injuries.
Accordingly I determine that the correct and preferable decision is to declare Shep as a regulated menacing dog pursuant to s.89 of the Animal Management (Cats and Dogs) Act 2008 and otherwise reaffirm the earlier decision of the respondent dated 24 December 2009.