Fox v Ipswich City Council - [2019] QCAT 131

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Fox v Ipswich City Council [2019] QCAT 131

PARTIES:

COREY WILLIAM FOX
(applicant)

v

IPSWICH CITY COUNCIL

(respondent)

APPLICATION NO/S:

GAR050-19

MATTER TYPE:

General administrative review matters

DELIVERED ON:

14 May 2019

HEARING DATE:

11 April 2019

HEARD AT:

Ipswich

DECISION OF:

Member Ann Fitzpatrick

ORDERS:

The decision of the Ipswich City Council to issue a destruction order for the dog Hendricks is confirmed.

CATCHWORDS:

ADMINISRATIVE REVIEW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – whether destruction order of a dangerous dog ought to be set aside or confirmed.

Animal Management (Cats and Dogs) Act 2008 (Qld), s 3, s 4, s 59, s 60, s 61, s 89, s 94, s 127
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24, s 28

Bradshaw v Moreton Bay Regional Council [2017] QCATA 139

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Mr John Pukallus, Principal Officer (Investigations, Prosecutions and Training), Ipswich City Council

REASONS FOR DECISION

Mr Fox seeks review of a decision made on 7 February 2019 by Ms Goodwin, Manager – Animal Management Operations, Health, Security and Regulatory Services, Ipswich City Council. The decision was an internal review of a decision dated 8 January 2019 to destroy a dog named ‘Hendricks’, a regulated dangerous dog.
The decision following the internal review was to confirm the original decision to destroy Hendricks.
In this review the Tribunal has power to confirm or amend the 7 February 2019 decision, set aside the decision and substitute its own or set aside the decision and return it to the Council for reconsideration.[1] The Tribunal’s function is to reach the correct and preferable decision after a fresh hearing on the merits. The Tribunal must act fairly and according to the substantial merits of the case.[2]
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 24.
[2]Ibid s 20 and s 28(2).
Prior to the hearing on 11 April 2019, Mr Fox applied for an adjournment on the basis that on 8 April 2019 Hendricks had been stolen from the compound where he was being kept and that a police investigation was underway.
The application for an adjournment was refused.
The parties relied upon the material filed in the proceeding. No witnesses were called by either party. Mr Fox gave oral evidence and was cross-examined.
Factual Background
The following are uncontested facts:
(a)Hendricks is a male, tan and white Great Dane crossbreed implanted with microchip 900079000084654.
(b)Mr Fox is the owner of Hendricks.
(c)Hendricks was regulated as a dangerous dog by Moreton Bay Regional Council on 5 January 2018 as a result of a serious attack on another dog.
(d)On 20 March 2018 the Moreton Bay Regional Council advised the Ipswich City Council of the transfer of Hendricks to the Ipswich City Council area.
(e)Mr Fox failed to notify the Council when the dog was transferred to the Barellan Point property so that the Council could check its enclosure and compliance with the…

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: [2019] QCAT 131
Decision Date: 14 May 2019

CaseChat Overview and Summary

In the matter of Fox v Ipswich City Council, the Queensland Civil and Administrative Tribunal was tasked with reviewing a decision made by the Ipswich City Council regarding the destruction of a dangerous dog, Hendricks. The central issue before the Tribunal was whether the destruction order should be set aside or confirmed. The facts of the case were largely uncontested, with the key events including the regulation of the dog as dangerous by the Moreton Bay Regional Council, the subsequent transfer of the dog to the Ipswich City Council area, an attack on another dog, and the issuance of a destruction order by the Ipswich City Council. The owner, Mr Fox, contested the destruction order, arguing that the dog had been safely housed and that there was no further risk posed by the dog.

The Tribunal considered the arguments presented by Mr Fox, including the claim that the enclosure for the dog was adequate at the time of the attack and that the dog had not posed a risk since the attack. However, the Tribunal found that the evidence did not support the argument that the dog had been safely housed and that there was a continued risk posed by the dog. The Tribunal also noted that Mr Fox had failed to comply with the regulations regarding the housing and control of a dangerous dog and had removed the dog from a veterinary clinic before it could be euthanised as per the destruction order.

The Tribunal concluded that the Ipswich City Council was justified in issuing the destruction order and confirmed the decision. The Tribunal found that the risk posed by the dog warranted the destruction order and that Mr Fox had not provided sufficient evidence to demonstrate that the dog could be safely housed without posing a risk to the community. The Tribunal emphasised the importance of adhering to regulations designed to protect the community from dangerous dogs and found that the Ipswich City Council had acted reasonably in issuing the destruction order.

The final orders of the Tribunal confirmed the decision of the Ipswich City Council to issue a destruction order for the dog Hendricks. The Tribunal found that the risk posed by the dog warranted the destruction order and that Mr Fox had not provided sufficient evidence to demonstrate that the dog could be safely housed without posing a risk to the community. The Tribunal emphasised the importance of adhering to regulations designed to protect the community from dangerous dogs and found that the Ipswich City Council had acted reasonably in issuing the destruction order.

Orders

Orders of the court

The decision of the Ipswich City Council to issue a destruction order for the dog Hendricks is confirmed.

Background

Background to the litigation

The parties relied upon the material filed in the proceeding. No witnesses were called by either party. Mr Fox gave oral evidence and was cross-examined.Factual Background The following are uncontested facts:(a)Hendricks is a male, tan and white Great Dane crossbreed implanted with microchip 900079000084654.(b)Mr Fox is the owner of Hendricks.(c)Hendricks was regulated as a dangerous dog by Moreton Bay Regional Council on 5 January 2018 as a result of a serious attack on another dog.(d)On 20 March 2018 the Moreton Bay Regional Council advised the Ipswich City Council of the transfer of Hendricks to the Ipswich City Council area.(e)Mr Fox failed to notify the Council when the dog was transferred to the Barellan Point property so that the Council could check its enclosure and compliance with the regulations applying to the dog as a dangerous regulated dog.(f)On 18 April 2018, Hendricks was wandering in the street when he attacked a female dachshund named ‘Maisey’. As a result of the attack on her, Maisey received a tear/rip to the back of her neck and was also bitten on the side of the face and eye. Extensive surgery was required. Mr Fox paid the vet bill in the sum of $2,600.00.(g)Maisey’s owner Ms Schumann sustained a cut to the finger when separating the dogs.(h)A destruction order was made by the Ipswich City Council on 4 May 2018.(i)On 28 May 2018, Council officers delivered Hendricks to the Karalee Vet and received a copy of the ‘Euthanasia Consent Form’ signed by Mr Fox. Without the knowledge of the Council officers, Mr Fox removed Hendricks from the Karalee Vet and returned him to Mr Fox’s property at 171 Riverside Avenue, Barellan Point where he continued to keep the dog in breach of regulated dog conditions until seizure on 6 January 2019.(j)Neither Mr Fox, nor the Karalee Vet informed Council that Hendricks had not been euthanised in accordance with the destruction order. (k)On 6 January 2019, the Queensland Ambulance Service attended at Mr Fox’s property but would not enter the house because of an unknown threat from Hendricks. An animal management officer from the Ipswich City Council attended at the house and took Hendricks away. That was Council’s first knowledge the dog had not been euthanised.(l)On 8 January 2019, a new and updated destruction order was issued, the subject of the internal review.Evidence of Mr Fox Mr Fox relies on the material set out in his application to review the internal review decision. He also gave evidence consistent with the application. His evidence is that:(a)the Ipswich City Council assumed that there was no proper enclosure for Hendricks, however, at the time of the attack there was a proper enclosure and use of a dangerous dog sign issued by the Moreton Bay Regional Council.(b)His neighbour has given a statement about the appropriateness of the enclosure used at the time of the attack on Maisey.(c)a Council officer, Mr Manning, took advantage of Mr Fox’s mental instability to obtain a surrender form on 19 May 2018.(d)all vet bills were paid in full for the victim dogs.(e)the owner of Maisey agreed that Hendricks had no intention of harming any human and her injury was accidental.(f)Hendricks has been successfully and safely housed within the guidelines of the Ipswich City Council, with the exception of Ipswich City Council signage.(g)After seven months of no incident, Hendricks does not pose a risk.(h)The Ipswich City Council never followed up Hendricks having been taken from the Karalee Vet.(i)Hendricks was secured on 18 April 2018 and it appears that someone let him out. The Council did not conduct an investigation into how he may have escaped.(j)Hendricks has posed no further risk in the period 28 May 2018 to 6 January 2019. (k)He has trained Hendricks and has not allowed him to be at large. He is not a problem if he is kept as he is currently kept.(l)He pleads for the life of Hendricks and refers to his own mental health.

Evidence

Evidence Before The Court

The following are uncontested facts:(a)Hendricks is a male, tan and white Great Dane crossbreed implanted with microchip 900079000084654.(b)Mr Fox is the owner of Hendricks.(c)Hendricks was regulated as a dangerous dog by Moreton Bay Regional Council on 5 January 2018 as a result of a serious attack on another dog.(d)On 20 March 2018 the Moreton Bay Regional Council advised the Ipswich City Council of the transfer of Hendricks to the Ipswich City Council area.(e)Mr Fox failed to notify the Council when the dog was transferred to the Barellan Point property so that the Council could check its enclosure and compliance with the regulations applying to the dog as a dangerous regulated dog.(f)On 18 April 2018, Hendricks was wandering in the street when he attacked a female dachshund named ‘Maisey’. As a result of the attack on her, Maisey received a tear/rip to the back of her neck and was also bitten on the side of the face and eye. Extensive surgery was required. Mr Fox paid the vet bill in the sum of $2,600.00.(g)Maisey’s owner Ms Schumann sustained a cut to the finger when separating the dogs.(h)A destruction order was made by the Ipswich City Council on 4 May 2018.(i)On 28 May 2018, Council officers delivered Hendricks to the Karalee Vet and received a copy of the ‘Euthanasia Consent Form’ signed by Mr Fox. Without the knowledge of the Council officers, Mr Fox removed Hendricks from the Karalee Vet and returned him to Mr Fox’s property at 171 Riverside Avenue, Barellan Point where he continued to keep the dog in breach of regulated dog conditions until seizure on 6 January 2019.(j)Neither Mr Fox, nor the Karalee Vet informed Council that Hendricks had not been euthanised in accordance with the destruction order. (k)On 6 January 2019, the Queensland Ambulance Service attended at Mr Fox’s property but would not enter the house because of an unknown threat from Hendricks. An animal management officer from the Ipswich City Council attended at the house and took Hendricks away. That was Council’s first knowledge the dog had not been euthanised.(l)On 8 January 2019, a new and updated destruction order was issued, the subject of the internal review.Evidence of Mr Fox Mr Fox relies on the material set out in his application to review the internal review decision. He also gave evidence consistent with the application. His evidence is that:(a)the Ipswich City Council assumed that there was no proper enclosure for Hendricks, however, at the time of the attack there was a proper enclosure and use of a dangerous dog sign issued by the Moreton Bay Regional Council.(b)His neighbour has given a statement about the appropriateness of the enclosure used at the time of the attack on Maisey.(c)a Council officer, Mr Manning, took advantage of Mr Fox’s mental instability to obtain a surrender form on 19 May 2018.(d)all vet bills were paid in full for the victim dogs.(e)the owner of Maisey agreed that Hendricks had no intention of harming any human and her injury was accidental.(f)Hendricks has been successfully and safely housed within the guidelines of the Ipswich City Council, with the exception of Ipswich City Council signage.(g)After seven months of no incident, Hendricks does not pose a risk.(h)The Ipswich City Council never followed up Hendricks having been taken from the Karalee Vet.(i)Hendricks was secured on 18 April 2018 and it appears that someone let him out. The Council did not conduct an investigation into how he may have escaped.(j)Hendricks has posed no further risk in the period 28 May 2018 to 6 January 2019. (k)He has trained Hendricks and has not allowed him to be at large. He is not a problem if he is kept as he is currently kept.(l)He pleads for the life of Hendricks and refers to his own mental health.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Fox v Ipswich City Council [2019] QCAT 131
PARTIES:	COREY WILLIAM FOX (applicant)
v
IPSWICH CITY COUNCIL (respondent)
APPLICATION NO/S:	GAR050-19
MATTER TYPE:	General administrative review matters
DELIVERED ON:	14 May 2019
HEARING DATE:	11 April 2019
HEARD AT:	Ipswich
DECISION OF:	Member Ann Fitzpatrick
ORDERS:	The decision of the Ipswich City Council to issue a destruction order for the dog Hendricks is confirmed.
CATCHWORDS:	ADMINISRATIVE REVIEW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – whether destruction order of a dangerous dog ought to be set aside or confirmed. Animal Management (Cats and Dogs) Act 2008 (Qld), s 3, s 4, s 59, s 60, s 61, s 89, s 94, s 127 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24, s 28 Bradshaw v Moreton Bay Regional Council [2017] QCATA 139
APPEARANCES & REPRESENTATION:
Applicant:	Self-represented
Respondent:	Mr John Pukallus, Principal Officer (Investigations, Prosecutions and Training), Ipswich City Council