Frost v Shire of Kalamunda

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: FROST -v- SHIRE OF KALAMUNDA [2007] WASC 322

CORAM: MURRAY J

HEARD: 24 OCTOBER 2007 & 20 NOVEMBER 2007

DELIVERED : 24 DECEMBER 2007

FILE NO/S: GDA 5 of 2007

BETWEEN: JASMINE FROST
Appellant
AND
SHIRE OF KALAMUNDA
Respondent

Catchwords:

Animals - Declared dangerous dog - Powers of seizure and destruction by local government - Application to State Administrative Tribunal for review - Jurisdiction - Nature of appeal to Supreme Court - Question of law

Legislation:

Dog Act 1976 (WA), s 3, s 29, s 33G

Result:

Appeal dismissed
Decision and order of State Administrative Tribunal affirmed

Category: B

Representation:

Counsel:

Appellant: Mr P G Fisher
Respondent: Mr D P Gillett

Solicitors:

Appellant: Bruce Havilah & Associates
Respondent: McLeods

Case(s) referred to in judgment(s):

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Re Minister for Resources; Ex p. Cazaly Iron Pty Ltd [2007] WASCA 175
Secretary, Department of Premier and Cabinet v Hulls [1999] 3 VR 331; [1999] VSCA 117

MURRAY J:

The Facts

The appellant owns a dog. Its name is 'Cousin'. It is a blue heeler cross.
On 17 May 2006, the respondent Shire notified the appellant that it had declared Cousin to be a dangerous dog within the meaning of the Dog Act 1976 (WA), s 33E. The Shire was responding to complaints it had received which led it to form the opinion that the dog had caused injury or damage by an attack on, or chasing, a person, animal or vehicle, and that the dog had repeatedly shown a tendency to engage in that behaviour and to threaten to attack.
The notice was given under s 33F. It advised the appellant that she had the right to object to the council of the Shire against the declaration, or to seek a review of the decision in the State Administrative Tribunal (SAT). Conditions were imposed. They were control requirements within the meaning of the Act. The dog was to be kept in the rear yard of the appellant's home. That yard was to be fenced so that the dog could not escape. When out in public, the dog was to be kept on a leash and was to be muzzled. A special collar was required to be worn, and a sign displayed on the premises to warn people that Cousin was dangerous. The appellant did not, I think, object to the declaration, nor did she seek its review by SAT.
About a year later, on 17 April 2007, the Shire received complaints from four people that two dogs were chasing people in Keats Road, Gooseberry Hill. One was established to be Cousin. Statements obtained by the Shire from the complainants show that the dogs' behaviour was aggressive and threatening towards adults and children. Some of the complainants were cyclists who had been chased by the dogs. It was obvious that the complainants were concerned for their safety. Rangers employed by the Shire seized the dog in Keats Road, and detained it in the Shire's pound.
The power exercised is asserted to be that provided by s 29(3)(a) and (d), which provides that if it appears to an authorised person (and there is no issue raised as to that) that an attack by a dog has occurred, the authorised person may seize and detain the dog. By s 3(1) the word 'attack':
… in relation to the behaviour of a dog, does not include behaviour which was an immediate response to, and was induced by, provocation, but includes -
(a)aggressively rushing at or harassing any person or animal; or
(b)…
(c)…
(d)…
unless the owner establishes that the behaviour was justified by a reasonable cause.
That action was followed by a notice by the Shire to the appellant which advised the seizure and detention under s 29 and the grounds for so doing. The notice relied upon s 33G, a provision in Div 2 of Pt VI of the Act, concerned with the control of dangerous dogs. Section 33G is in the following terms:
33G. Seizure and destruction
(1)Where an authorised person or a police officer has reasonable grounds to believe that an attack by a dangerous dog has occurred, whether or not a warrant has been applied for under section 29(5a), that authorised person or police officer may, if he has reasonable grounds to believe it is necessary to do so, enter onto or into any premises and there seize the dog and thereafter the dog may be detained under section 29(3).
(2) On the dog being so detained pursuant to subsection (1) the local government or an authorised person must give notice in writing, in addition to any notice required by section 29, to the owner of the dog -
(a)informing the owner of the seizure and of the place where the dog is detained;
(b)giving reasons for the seizure;
(c)stating that, whether or not the dog is claimed, the local government proposes to cause the dog to be destroyed, at a time specified not earlier, unless the owner otherwise consents, than 10 days after the giving of the notice; and
(d)specifying that the owner has a right under this Division, to be exercised within not more than 7 days after the giving of the notice, either -
(i)to lodge a written objection with the local government, with a subsequent right to apply to the State Administrative Tribunal for a review of the decision made by the local government on the objection; or
(ii)to apply directly to the State Administrative Tribunal for a review,
where, and as soon as, that is practicable.
(3)The local government shall cause a dog seized under this section to be detained until any objection which is received has been considered, the time for making an application to the State Administrative Tribunal for a review has passed, and if an application is made that application has been determined.
(4)Where an objection is lodged with a local government in accordance with subsection (2)(d)(i) the local government shall consider it and -
(a)if the local government dismisses the objection, the owner may, within 7 days after the giving of a notice by the local government as to the dismissal of the objection, apply to the State Administrative Tribunal for a review of the decision; or
(b)if the local government has not given notice to the owner stating that the objection has been considered, and setting out its determination on the objection, within 35 days after the giving under subsection (2) of the notice of the seizure of the dog, the owner may, within 42 days after the giving of that notice under subsection (2), apply to the State Administrative Tribunal for a review of the decision to which the owner objected.
(5)Where a local government gives notice of the dismissal of an objection under this section, that notice must set out the reason for the dismissal of the objection.
(6)Where -
(a)an objection lodged with a local government in accordance with subsection (2)(d)(i) is dismissed and -
(i)no application for review is made to the Local Court;
(ii)an application for review is made but the applicant discontinues the application; or
(iii)the State Administrative Tribunal makes an order dismissing the application for want of prosecution;
or
(b)an application is made under this section to the State Administrative Tribunal for a review and the State Administrative Tribunal affirms the proposal to cause the dog to be destroyed,
an authorised person, or a person specifically authorised by the State Administrative Tribunal, may destroy the dog concerned.
By a notice dated 19 April 2007, the Shire advised that it proposed to cause the dog to be destroyed. The notice referred to the appellant's power to lodge a written objection or apply to the SAT for a review of that decision. The appellant lodged a written objection dated 23 April 2007, but that was unsuccessful. The Shire dismissed the objection by a notice dated 30 April 2007. On 3 May 2007, the appellant applied to the SAT for a review of the decision. Under s 33G(3), the Shire was therefore obliged to continue to detain the dog until the determination of that application for review.
The application was heard on 30 July and 22 August 2007 by a member of the SAT. The appellant appeared in person, assisted by a friend and her partner. The Shire was represented by two officers of the Shire. I may need to refer later in more detail to the course of the hearing, but it is pertinent to note now that, broadly put, the application before the SAT to review the decision of the Shire was based upon the proposition that what had occurred did not merit the destruction of the dog, particularly as the appellant proposed improved arrangements to secure the dog on her premises and prevent its escape. She proposed to enrol the dog in an obedience and general training school and she took steps to organise the provision of a report to the SAT by an animal behaviourist, Dr Garth Jennens.
Dr Jennens was unable to attend the hearing on 30 July 2007, but he wrote to the Tribunal member hearing the case, asking that the appellant be given the opportunity to have the dog assessed by him so that he might provide a report to the Tribunal, making recommendations including, if appropriate, the implementation of a behaviour modification program for the dog. Dr Jennens' report, dated 16 August 2007, was ultimately before the SAT before the application for a review was finally heard and determined on 22 August 2007. On that date, the SAT gave its reasons for the orders then made, dismissing the application for review and affirming the proposal to cause the dog to be destroyed by an authorised person pursuant to s 33G(6)(b).

The Appeal

It is from that decision that the appeal is brought to this Court under s 105 of the State Administrative Tribunal Act 2004. Under that section, leave to appeal is required and, by s 105(2), 'The appeal can only be brought on a question of law.'
In Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 at 372 ‑ 373 [16] ‑ [18] Buss JA, with whom Wheeler and Pullin JJA agreed, cited guidelines adopted by the Vic Court of Appeal in Secretary, Department of Premier and Cabinet v Hulls [1999] 3 VR 331; [1999] VSCA 117 at 337 [16] in relation to the grant of leave.
There, Phillips JA, with whom Tadgell and Batt JJA agreed, referring to s 148 of the Civil and Administrative Tribunal Act 1998 (Vic), a section in equivalent terms to s 105(1) and (2) of the State Administrative Tribunal Act 2004 (WA), said:
There is an obvious danger in seeking to summarise the considerations which bear upon the granting of leave to appeal. Ultimately what must govern is the justice of the case as it appears to the court from which leave to appeal is sought, and that means justice to all parties, not just the applicant. As I said at the outset, it is not appropriate for us to do any more than lay down guidelines and any guidelines will sometimes be found inadequate; but with that rider, the foregoing might be summarised along the following lines. When leave is sought to appeal under s. 148, it will be necessary for the applicant to identify a question of law which is relevant to the granting of the relief sought on appeal. The importance of the question, either generally or to the would-be appellant in the particular case, will probably be relevant. The applicant must show that there is a real or significant argument to be put on that question of law at least to this extent: that there is sufficient doubt about it to justify the grant of leave. Moreover, it may have to be shown that to allow the error to go uncorrected would impose substantial injustice, although, where the order below is final, that injustice will often be more readily discernible.
In Paridis, Buss JA expressed the view that those guidelines should be taken into account in considering the grant of leave under s 105(1) of the State Administrative Tribunal Act, but at 373 [18] he added:
It must be emphasised, however, that those guidelines are not rigid or exhaustive, and leave should be granted if, in all the circumstances, a grant of leave is in the interests of justice.
In this case, the application for leave was heard with the argument presented on appeal. In my view, that would ordinarily be the procedure followed under s 105(1) because such an application for leave and appeal is only concerned with questions of law. Further, this appeal is against a decision of the SAT which is final and not interlocutory. The decision affirmed the proposal to destroy the dog. Unless under s 105(9) that decision is set aside and this court makes a decision within the power of the SAT in the proceedings before it or returns the matter to the SAT for reconsideration, then the authorised person, an officer of the Shire, is empowered to destroy the dog.
It seems to me then that in a case such as this, the obligation of the appellant will be to demonstrate that leave to appeal should be granted and the appeal allowed because the decision of the SAT has been produced or at least contributed to by an error of law which might lead to the decision being varied or set aside. Therefore the error of law affecting the decision of the SAT must be one which would lead to the grant of the relief sought on the appeal.
Involved in that decision will be the question whether it is in the interests of justice that the error be corrected or whether, despite its occurrence, the interests of justice would dictate that the decision below be allowed to stand. In the case of an appeal from a final order, as in this case, the interests of justice from the points of view of both parties (and, where appropriate, affected third parties) will be more readily identified with the final decision of the SAT. By that I mean that such a decision, produced at least in part by an error of law, will generally be set aside because it will be unjust that the legally incorrect order should continue to bind the party adversely affected by it.
When the appeal first came on for hearing on 24 October, I adjourned the hearing, made programming orders, including granting leave to amend the grounds of appeal, and I ordered that the dog, Cousin, should not be destroyed pending the final determination of the appeal, but in the meantime that it should be held in the respondent's dog pound at the cost of the appellant, a cost I fixed at $5 per day.

The Grounds of Appeal

The amended grounds of appeal are very lengthy and make it enormously difficult to discern what are the real issues which the appellant seeks to ventilate in the appeal. So far as I can tell, guided, I must say, by the submissions of counsel for the appellant rather than by the grounds of appeal, the issues seem to be as follows:
(1)There is a complaint about the Tribunal's interpretation of, and consequent decision about the correct application of, potentially relevant sections of the Dog Act which led the SAT to the conclusion that it had jurisdiction to hear the application for a review and that the Shire's procedures and determinations were appropriate and correct, and under the Act were capable of resulting in the conclusion that the dog was to be destroyed. Grounds 3, 4, 5, 7, 8, 10, 12 and 13 appear to raise various aspects of the argument, and the question raised in this regard is clearly a question of law.
(2)There is a complaint of breach by the SAT of its duty to afford natural justice to the appellant in its conduct of the review of the Shire's decision. Grounds 1(a), 2 and possibly 9 seem to raise matters of this kind. The content of the duty of procedural fairness, which for present purposes may be taken to be attendant upon the conduct of the review proceedings, will be a question of law. As to that content, it is convenient to refer to the recent decision of the Court of Appeal in Re Minister for Resources; Ex p. Cazaly Iron Pty Ltd [2007] WASCA 175 and the comprehensive discussion of the general principles by Buss JA, Wheeler and Pullin JJA agreeing, at [266] ‑ [282]. At [352], relevantly for present purposes, Buss JA cited the decision of the full Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 in relation to the application of the rules of natural justice in respect of the entitlement of a party, likely to be affected by the exercise of a statutory power, to put information before the decision‑maker and to make submissions. At 591 ‑ 592 the Full Court said:
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision‑maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information and comment by way of submission, upon adverse material from other sources which is put before the decision‑maker. It also extends to require the decision‑maker to identify to the person affected any issue, critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision‑maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications, however, a decision‑maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.
(3)A somewhat related contention, although different in kind, is the matter concerning the procedure of the SAT on the review which cites a failure to comply with the State Administrative Tribunal Act, s 27, requiring a hearing de novo, not confined to matters that were before the decision‑maker but, if the occasion requires, involving the consideration of new material for purpose of producing what is described in the section as 'the correct and preferable decision' at the time of the decision upon the review. That is the subject of ground 6.
(4)Again, a related ground is ground 11 which alleges baldly that, 'There was a reasonable apprehension of bias on the part of SAT'. No argument was addressed to this ground which I think has no more content than the allegation that the appellant was denied procedural fairness. In those circumstances, I propose to say no more about this ground or the issue which it purports to raise, in light of the total lack of relevant particularisation. Reading the transcript of the hearings on the review by the SAT I can, in any event, detect nothing which would be capable of raising an reasonable apprehension of bias.
(5)Grounds 1(b) ‑ (g) and 14 complain about the SAT's approach to issues of fact. Generally speaking, the complaint is that the SAT should not have come to the conclusion that it did, which led to the decision to affirm the order made by the respondent for the destruction of the dog. Much of the complaint concerns the weight and consideration given by the SAT to the evidence before it, including the expert opinion of Dr Jennens. There are obvious matters of fact, but the relevant grounds may be regarded as giving rise to a question of law if they are interpreted as an assertion that the decision of the SAT is vitiated upon the ground of unreasonableness in the sense of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223: see generally the discussion in Cazaly at [252] ‑ [257]. But it must be remembered in this regard that the court is here concerned to consider whether the decision reached below was so unreasonable, so absurd, that no reasonable person could possibly regard it as a decision within power or open to be made.

The review by the SAT was not concerned with the earlier declaration that Cousin was a dangerous dog, or with the regime which was put in place for his control. The documents make it perfectly clear, as I have already indicated, that the application to review was concerned with the notice of 19 April 2007, advising that the dog was to be destroyed, and the Shire's dismissal of the appellant's objection, by its notice dated 30 April 2007. The decision under review was that to which the appellant had objected, the decision to destroy the dog. The decision which, in terms the SAT purported to make upon that review, was that provided for in the Dog Act, s 33G(6)(b), the decision to affirm the proposal to cause the dog to be destroyed. As I have said, it is from that decision that the appeal is brought. It is too late, in this appeal, to debate the legal efficacy of the earlier notice declaring Cousin to be a dangerous dog and although, before me, argument was directed to that earlier proceeding, I propose to say no more about it.

The Review by the SAT

The first issue identified above is the question of the lawfulness of the procedures adopted by the Shire in April and May 2007 and, in particular, the reliance upon s 33G. The matter concerned the Tribunal member, who raised it with the officer who principally spoke for the Shire when the review commenced on 30 July 2007. He described it as a jurisdictional argument and invited submissions on the point, particularly from the solicitors for the Shire. The matter was adjourned to 22 August. In the meantime, the opportunity would be there for Dr Jennens to complete his investigations and report his view as to whether the dog should or should not be destroyed. As I have said, that report became available and was before the Tribunal member when the hearing resumed on 22 August.
The hearing then commenced by the member confirming with the appellant that she had no other evidence to call, and she advised that she had, on the previous night, received an offer from friends to take the dog. They lived on a rural property in Cardup. That was discussed, but it seemed that there was very little information concerning that proposal. The member concluded the proceedings, which had been conducted with a degree of informality, by formally taking into evidence two reports of Dr Jennens, dated 30 July and 16 August 2007, a submission and bundle of attachments tendered by the appellant, and a submission and attachments tendered by the respondent. In addition, the member had, as I have indicated, received submissions as to 'jurisdiction' from the solicitors instructed by the respondent, and they were actually recorded as an exhibit.
The Tribunal member then gave reasons for decision orally. He commenced by reviewing the submissions which had been made in relation to the question whether, under the provisions of the Dog Act, the SAT had jurisdiction. He found that it did. He then turned to the facts, about which he said there was 'no real dispute'. Specifically, in relation to the seizure of the dog and the complaints about incidents on 17 April 2007, the member observed that the appellant did not challenge the facts contained in the statements which had been received in evidence, but she pointed out that no person was bitten. The member found that there was clear authority, on good grounds, for the seizure of the dog, in respect of which there had been a clear breach of the conditions imposed by way of control requirements upon the earlier declaration that Cousin was a dangerous dog. As to the proposal to relocate the dog on a country property, the member noted that the reports of the animal behaviourist suggested that to adopt such a course would not resolve the problem as the dog would remain untreated and possibly present a risk to livestock. Further, the Tribunal member found that even upon a condition that the dog received treatment and training as recommended by the behaviourist, 'there would be a considerable risk in returning the dog to the owner'.
The member concluded his reasons by observing that, having regard to the evidence concerned with the original declaration that the dog was dangerous, and having regard to the evidence about the subsequent events, 'the Tribunal is left in no position other than to confirm the destruction order, with regret in these circumstances, as the Shire has proved its case and there is no other alternative, under these circumstances, under the Dog Act. So it is my melancholy duty to dismiss the application and confirm the decision under review'.
The appellant had a friend with her on 22 August, as she did on 30 July, to assist her in pursuing the application for a review. When the Tribunal member concluded his remarks, this lady engaged him in debate about the reasons. That led to the member making some further observations about his view of the case. He said that he was not satisfied that the public would not be at risk of a further escape. Despite the proposals to improve the security for the dog on the owner's premises, he said that he was not satisfied that the appellant could contain the dog. He said the view to which he had come was that, 'there is a greater public interest in the matter, and that is protecting the public from a dog which is likely, it seems to me, to escape again, and if it does escape it might injure somebody, and we just can't have that'.

The Powers of the Shire and the Jurisdiction of the SAT

I will deal first with the first issue identified above, that concerned with the proper interpretation of the material sections of the Dog Act and the associated question identified by the SAT as to its jurisdiction to deal with the application for review brought by the appellant, a jurisdiction which is now said by the appellant not to exist, but which is supported by the respondent. I will not here set out the submissions of counsel.
The Dog Act with which we are presently concerned was enacted in 1976. It is not necessary, for present purposes, to examine the history of the manner in which the control and registration of dogs was previously dealt with. Relative to this appeal, extensive amendments were made by the Dog Amendment Act 1996. Worthy of note are the amendments made to the definitions section, s 3, to add a definition of 'attack', 'dangerous dog', and 'provocation'. Section 29 was amended in important respects. A new Div 2 comprising ss 33E ‑ 33M was added to Pt VI. There were then three Divisions in Pt VI. Division 1, ss 29 ‑ 33D, inclusive, deals with the control of dogs generally. Division 2 is devoted specifically to dangerous dogs as so declared. Section 39 dealing with the circumstances in which dogs causing injury or damage may be destroyed, was repealed and re‑enacted. The maximum penalties provided for offences under the Act, in various section, were substantially increased.
It is also pertinent to note that when the SAT Act was enacted in 2004, the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004, Pt II, Div 38, made a number of amendments to the Dog Act generally concerned to replace proceedings, often described as appellate proceedings, in the Local Court against decisions made by local governments with processes of review before the SAT. That is certainly so in respect of the many examples of the capacity to apply for a review of decisions made by local government in respect of dangerous dogs. Section 33I is a general provision in that regard and sets out powers which may be exercised by the SAT on such a review. I will return later in this regard, to the provisions of ss 29, 39 and 40.
Both parties urge upon me a purposive interpretation of the relevant provisions of the Act. Of course that is the approach I shall take. That such should be the case was the common law, and for us s 18 of the Interpretation Act 1984 (WA) provides that in interpreting the provisions of the written law:
… a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object.
By s 19, I am permitted to have regard to extrinsic material in determining the meaning of a provision. Section 19(2)(f) expressly provides that I may refer to a Minister's second reading speech in Parliament.
Both parties urge me to do so, and I was referred to the second reading speech by the Minister for Local Government, Mr Omodei MLA, in relation to the Dog Amendment Bill (Hansard, 2 November 1995, pp 10294‑5). The Minister said the Bill was introduced as a matter of urgency following the death of a lady in Wanneroo when she was attacked and mauled by a pack of large, aggressive dogs. Specifically in relation to the procedure to be followed when a dog has been declared a dangerous dog, the Minister said:
Once a dog is declared dangerous, an authorised officer may enter the premises when the dog is ordinarily kept to ensure that any control requirements are being complied with. No warrant will be needed for such entry. However, a warrant will be required to enter a residential building. Where an authorised person or a police officer has reasonable grounds to believe that an attack has occurred by a dog which has already been declared dangerous, those persons may enter any premises without a warrant to seize and impound the dog. The owner must be advised when this occurs. The intent of this provision is to enable a dangerous dog to be immediately detained so that it cannot attack again.
The starting point is the declaration by the Local Government, acting by an authorised person, under s 33E, that Cousin was a dangerous dog. By s 33E(3) the owner of the dog, the appellant, had the rights 'referred to in this Division to object and to apply for a review'. In aid of those rights, under s 33F, notice was given of the declaration. The notice specified the control requirements imposed. There is no doubt, I think, that the relevant provisions were complied with and that the notice was still operative on 17 April 2007 when the incidents occurred of which complaint was made to the Shire and which cause the dog to be seized in Keats Road and detained in the pound. I have said that what occurred on that date was an attack within the meaning of par (a) of the definition of that word in s 3(1), there being no attempt to establish a reasonable cause to justify the dog's behaviour. The power to seize and detain the dog I have said was provided by s 29(3). Section 29(4)(b) confirms the power of detention.
The seizure was validly made by force of the section. There was no occasion to obtain a warrant authorising the seizure, but of course, as soon as the seizure had been made, it would have been clear that the dog was a dangerous dog, by the earlier declaration. What then was the procedure to be followed? As we have seen, the Shire gave notice to the appellant of the seizure and detention, relying upon the provisions of s 33G. The appellant argues that that was fatal and robbed what followed of lawful force and validity because, the appellant points out, s 33G(1) merely gives a power to enter 'onto or into any premises' to seize a dangerous dog which there are reasonable grounds to believe has attacked within the meaning of the Act. Under s 33G(1), thereafter the dog may be detained under s 29(3). It is not necessary to obtain a warrant, under s 29(5a).
The appellant argues that the procedure subsequently provided for in s 33G only applies to the case of a dog where there has been entry into 'premises' to make the seizure. That was not the case here, the appellant points out. She takes that view of the section because the procedure which follows in s 33G is predicated by the wording of s 33G(2) upon, 'the dog being so detained pursuant to subsection (1)', (my emphasis) a qualification which the appellant interprets as meaning that the dog has been detained following its seizure on premises pursuant to s 33G(1).
The appellant argues that this case was entirely governed by s 29. That section contains various procedures requiring notice to be given to the owner, for the return of the dog to the owner, and for its destruction after, or in some special circumstances without, seizure. As to that, I have noted the power in s 29(5a) for a justice of the peace to issue a warrant authorising seizure of a dog if satisfied, on the balance of probabilities, that an attack by the dog has or may have caused injury or damage.
In such a case, where an attack by a dog is shown, on the balance of probabilities, to have caused injury or damage, a court before which any offence arising out of the attack is heard, or the Magistrates Court, on the application of the local government or an authorised person, may order the owner to destroy the dog or cause the dog to be destroyed. That is broadly the effect of s 39 of the Act, and the appellant argues that that was the appropriate form of application for the Shire to make in this case, an application which could not succeed because the attack does not appear to have caused injury or damage. In any event, the appellant argues, the SAT had no jurisdiction because s 33G had no application to the case by reason of the argument to which I have referred above.
I note the provisions of s 40 of the Act which governs the process of destruction, as well as making provision in specific terms of an order for the destruction of a dog. Section 40(1) provides:
(1)In relation to any application made for an order for the destruction of a dog, or where in any proceedings the destruction of a dog may be ordered, the court or the State Administrative Tribunal, according to which of them is dealing with the proceedings, may -
(a)order the destruction;
(b)provide that the order shall be remitted in specified circumstances;
(c)order the seizure and detention of the dog, whether or not an order is made for the destruction of the dog;
(d)make an order requiring that the dog be controlled, or be controlled in a specified manner;
(e)make an order requiring that the dog be disposed of, or be disposed of in a specified manner;
(ea)where the dog has been detained under section 29(5b) or an order is made under paragraph (c), make any order it thinks fit as to the payment of any cost, charge or fee of a kind referred to in section 29(4);
(f)authorise a police officer or a person appointed by the local government to give effect to the order; and
(g)give all necessary directions to make the order effective.
I note that when in 2004, by the Act to which I have referred, jurisdiction was being conferred on the SAT, generally by way of review proceedings under various provisions of the Dog Act, s 29 was not relevantly amended, and nor was s 39. However, s 40(1) was amended by adding, after the word 'court', the words 'or the State Administrative Tribunal, according to which of them is dealing with the proceedings,'.
Without, I hope, doing any injustice to the submissions, for the Shire it is argued that the word 'premises' in s 33G should be interpreted not in any way as assisted by the provisions of the interpretation section, s 3, but to include public places. It is argued that that would be an appropriate purposive interpretation of s 33G which, having regard to the second reading speech and the nature of the amendments made in 1996 to which I have referred above, was clearly designed to give an additional power of seizure and procedure towards destruction, for the better control of a declared dangerous dog which is reasonably believed to have involved in an attack, as defined. In my opinion, there is much merit in this argument, but I would reach the conclusion that the procedure adopted in this case was valid and that the SAT had jurisdiction to hear the appellant's application for a review by a somewhat different route.

My Interpretation of the Act

The Act confers many powers in relation to places. Sometimes it uses the word 'place' in a purely general sense. On other occasions, it uses the word in a context which gives it a more specific content. An example is s 33G(2)(a) - 'the place where the dog is detained'. I conclude that the reference to a place in the Act, without more, may include any location, whether confined within boundaries or open, whether a public area, or whether privately owned and occupied.
Where the Act uses the word 'place' in a more confined sense, it says so. A good example is to be found in s 29. Section 29(13) provides a power to destroy a dog without seizing it where a seizure might lawfully be made. but it is, in the opinion of the authorised person, dangerous or impracticable to seize the dog. Section 29(13a) provides:
(13a)A dog may be destroyed under subsection (13) only -
(a)in a public place; or
(b)on premises that are not a public place if the occupier of those premises consents to the destruction.
By the interpretation section, s 3(1), unless the context within the Act otherwise requires, the term 'public place' is defined to mean, 'any place to which the public has access'. Again, that does not necessarily at all connote a confined area, although clearly it may do so. A public place in accordance with that definition would include a street or other thoroughfare to which the public has access, a park, simply open ground to which the public has access, as well as a public area which is fenced or otherwise has its area defined, and a building or part of a building to which the public is permitted to have access.
Keats Road, where the dog was seized, is clearly a public place, although I note that the power of seizure exercised under s 29(3) is not generally limited as to place. That subsection is as follows:
(3)If it appears to an authorised person that -
(a)an attack by a dog has occurred;
(b)a dog is, or is deemed under section 17(6) to have been found, in a place in apparent contravention of section 31, 32 or 33A; or
(c)a dog is a dangerous dog -
(i)in relation to which moneys are due to the local government in respect of a charge determined under section 33M; or
(ii)which is not registered under this Act,
the authorised person may -
(d)seize and detain the dog; and
(e)if he is in pursuit of the dog for the purpose of seizing it and he has reasonable grounds to believe that it is necessary to do so for that purpose, enter any premises, other (unless section 33G(1) applies) than a building or part of a building that is used for residential purposes.
It will be noted that there is a limited power of entry into premises under s 29(3)(e). The word 'premises' is also used often throughout the Act and, in my view, consistently refers to a place, the boundaries of which are defined in some way, whether a building or not. I have noted that under s 29(5a) and (5b), in relation to an attack which has or may have caused injury or damage, a justice of the peace may issue a warrant authorising the seizure of the dog and, for that purpose, an authorised person may, 'enter any premises if he has reasonable grounds to believe that it is necessary to do so for the purpose of seizing the dog'.
Consistently, the word 'premises' is defined in s 3(1), unless the context otherwise requires, for the purpose of determining who is the occupier (to whom a notice may be required to be given). In that context the word means, 'any land or building, or part of any land or building, that is or is intended to be occupied as a separate residence from any adjacent tenement'. Of course, that definition applies for the limited purpose mentioned and, in the context of the statutory provisions, it refers to residential premises. The point I make for present purposes is that the word clearly refers to land, or a building, or a part of land or a building which has defined boundaries.

My Conclusion as to Power and Jurisdiction

I return then, against that background, to s 33G(1). I agree that it is a provision designed to give an additional power of seizure and, if necessary, entry onto or into premises to seize a dangerous dog which there are reasonable grounds to believe has been involved in an attack within the meaning of the Act. It is a power additional to those generally conferred, with or without warrant, by s 29, and it immediately calls upon the assistance of s 29(3) for the power to detain the dog seized. In this case, as we have seen, there was no need to use this additional power. The dog was seized and detained under s 29(3), and so far as the detention of the dog was concerned, that power was reinforced in s 29(4).
Thereupon, s 33G(2) came into operation. It applies where a dog has been detained 'pursuant to subsection (1)', ie, pursuant to s 29(3), because otherwise s 33G(1) is concerned only to provide an additional power of seizure and entry onto or into premises. The notice required by s 33G(2) was given in proper form and the dog was thereafter detained, as required. As has been seen, the notice advised the proposal to cause the dog to be destroyed. It informed the appellant of her right of objection. She exercised that right and the objection was considered, pursuant to s 33G(4). It was dismissed, and the appellant was notified accordingly, advising the appellant of the right conferred by s 33G(4)(a) to apply to the SAT for a review of that decision. That was the application which was before the SAT on 30 July and 22 August 2007. The proper procedure was followed, and the Tribunal had jurisdiction to deal with the application.

Procedural Fairness

As to the second issue raised by the grounds of appeal, the alleged breach of the duty to afford the appellant procedural fairness in the hearing of the review, I have discussed the way in which the review proceeded. Some of the argument raised in this regard confuses the question of law which concerns the content of the duty of procedural fairness, with assertions about what weight the SAT should have put on the reports by Dr Jennens. These are clearly matters of fact.
As to procedural fairness, the SAT received in evidence everything provided by the appellant. It received in evidence what was put before it by the respondent Shire. It considered the recommendations made by Dr Jennens. It offered the appellant the opportunity, when the proceedings were adjourned after the first day of hearing, to place evidence before it of firm arrangements for the alternative management and/or placement of the dog. The appellant's response by way of evidence was clearly inadequate. The SAT was not obliged, in my view, to offer the appellant a further adjournment. It was entitled, in the circumstances, to deal with the issue, which it did by rejecting the proposal for the dog to be relocated to the property in Cardup.
I can detect no failure to afford the appellant every reasonable opportunity to place evidence before the SAT, to make submissions and to deal with issues as they arose during the course of the hearing. None of the complaints in this regard are, to my mind, made out.

The Review Hearing was Lawfully Conducted

As to the third issue raised above, the subject of ground 6 of the appeals, it is clear, as s 27 of the State Administrative Tribunal Act provides, that the hearing of the review was de novo, putting the SAT in the position of the original decision‑maker to consider the matter at issue anew. I have quoted the relevant parts of the reasons for decision given by the Tribunal member. It seems to me to be clear that the SAT did not confine itself to the material before the Shire when it made its proposal that the dog should be destroyed. It considered, as I have said, all the material placed before it, including that which was new, particularly the reports of Dr Jennens.
The SAT considered the merits of that decision before deciding that, on the merits, the decision of the Shire proposing the destruction of the dog should be confirmed. The SAT therefore made the order for the destruction of the dog pursuant to the Dog Act, s 40(1)(a). I can see nothing in relation to the decision of the SAT which is persuasive of the proposition that it was so unreasonable or absurd that no reasonable person exercising the powers of the SAT on the review could arrive at the decision that the proposal to destroy the dog should be affirmed and that that should proceed.

My Conclusion on the Appeal

The order made by the SAT in terms complied with s 33G(6)(b), but it is clear that, in affirming the decision of the Shire, the SAT considered that, upon the evidence before it, the grounds for the proposal to destroy the dog were made out. I can see no basis upon which, on appeal, I may make a different decision than that to which the Tribunal came. Acting pursuant to s 105(9) of the State Administrative Tribunal Act, I must affirm the decision of the SAT. The appeal will be dismissed.
It follows that it would now be within the power of the respondent to destroy the dog, pursuant to s 33G(6)(b), but I should say this. Section 33H(1)(b) provides that a local government may, on the application of the owner of the dog, revoke the notice proposing to cause a dog to be destroyed, 'if the local government is satisfied that the dog can be kept without the likelihood of any contravention of this Act'. By s 33H(4), the application for review of the notice proposing the destruction of the dog having now been finally determined, an application under this section may now be made.
As I read the Act, such an application would provide a further and perhaps final avenue to challenge the proposal to destroy the dog. The Shire would be obliged, upon that application, to consider whether it should be granted, and relevant to that decision would the question whether remedial action could be taken, by training to amend the behaviour of the dog, or whether otherwise the owner may demonstrate a change in the behaviour of the dog: s 33H(2). It is not for me hearing this appeal to make any observation about how powerful or lacking in merit such an application might be. I merely advert to the existence of the procedure provided in s 33H.

[2007] WASC 322

24 December 2007