Gala v Fraser Coast Regional Council - [2010] QCAT 576

CITATION:

Gala v Fraser Coast Regional Council [2010] QCAT 576

PARTIES:	Mrs Frances Gala
v
Fraser Coast Regional Council

APPLICATION NUMBER:

GAR153-10

MATTER TYPE:

Animal Care and Protection matter

HEARING DATE:

11 March 2010

HEARD AT:

Hervey Bay

DECISION OF:

S Bothmann, Member

DELIVERED ON:

15 November 2010

DELIVERED AT:

Brisbane

ORDERS MADE:

1. That the respondent is authorised to destroy the seized regulated dog, Molly pursuant to Section 127 of the Animal Management (Cats and Dogs) Act 2008.

2. That the applicant is ordered to pay the respondent's costs for sustenance charges for the dog Molly in the sum of $1000.00.

CATCHWORDS :

Declaration Dangerous Dog – S127 Animal Management (Cats & Dogs) Act 2008 – Cost for sustenance of dog

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Frances Gala was legally represented by Sarah Laikind from Aboriginal and Torres Strait Islander Service.
RESPONDENT:	Fraser Coast Regional Council was legally represented by Joel Blane of Bell Dixon Butler Lawyers.

REASONS FOR DECISION

Background

Mrs Gala (the applicant) has sought review by the Queensland Civil and Administrative Tribunal (QCAT or the Tribunal) of a decision made by an officer of Fraser Coast Regional Council (the respondent or the council) that the Great Dane cross dog, Molly (Molly) belonging to the applicant, be the subject of a Destruction Notice issued by the council on 18 March 2010.
Each party appeared and gave evidence and made submissions to the Tribunal. A number of witnesses provided written statements and gave oral evidence.
QCAT has jurisdiction to review the substantive decision, arising principally under section 188 of the Animal Management (Cats and Dogs) Act 2008 (the Act) and sections 17-20 of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act). On review, the Tribunal must hear and decide the matter by way of fresh hearing on the merits,[1] and the review is by way of rehearing. The purpose of the review is to produce the correct and preferable decision.[2] The decision-maker must use his or her best endeavours to assist the Tribunal so that it can make its decision on the review.[3]
[1] QCAT Act s20(2).
[2] QCAT Act s20(1).
[3] QCAT Act s21(1).
Under section 62(1) of the QCAT Act, the Tribunal may give directions at any time in a proceeding as necessary for the speedy and fair conduct of the proceeding. Under section 28(1) of the QCAT Act, the procedure for a proceeding is at the discretion of the Tribunal, subject to that Act, an enabling Act and the rules. Under section 90 the Tribunal may determine that the proceedings of the hearing are to be closed to the public in certain circumstances. Under Division 6 the Tribunal may make orders as to costs.

Evidence and Submissions of the Parties

The facts in the matter are largely non-contentious. In relation to the matters in dispute they are outlined specifically below.
It is agreed that Molly is a six year old bitch who has belonged to the applicant since the dog was a puppy. Mrs Gala is the registered keeper of Molly. Molly is housed at the applicant's home at Scrub Hill Road Dundowran near to a school (the school) located on a larger property known as Glendyne Farm.
On 7 May 2009 the council issued a declaration under section 1084 of the Local Government Act 1993 and Hervey Bay Local Law Number 5 (Keeping and Control of Animals) declaring Molly a dangerous dog. The declaration was not disputed or contested and it arose from an incident on 29 April 2009 when Molly was found in a yard at Nikenbah Dundowran Road where there were a number of deceased animals, namely sheep, also located. The yard or enclosure in which she was found on that occasion was a part of the school environs.
The Destruction Order in question was made by Gaye Ah Quay, Compliance Officer of council on 18 March 2010 following an incident on 16 March 2010. Molly was again found in the fenced enclosure at the school on the morning of 16 March 2010. The enclosure contained a number of dead and dying sheep. There was also another unidentified dog (the other dog) present at the time.
Both dogs were impounded and the other dog was subsequently destroyed. Mrs Gala sought a review of the destruction order in relation to Molly. By letter dated 15 April 2010 Peter Smith, Director Community Services for the council advised the applicant that the destruction order would stand. The applicant, through her counsel, Ms Laikind, applied for a review to QCAT on 12 May 2010.
Following the giving of oral evidence by all witnesses both parties made submissions about the matter.
Witnesses who provided oral evidence in addition to their written statements consisted of the following persons: Mrs Erika Hansen (school cleaner, wife of the school principal and first on the scene of the killing of the sheep (the scene) on 16 March 2010); Ms Gaye Ah Quay (as at March 2010 Compliance Officer with the council and second person on the scene); Mr Mark Macrae (agriculture teacher at the school and third person on the scene); Mr Dale Hansen (school principal and next person to arrive at the scene after Mr Macrae – he gave his evidence by phone); Mr Andy Gaze (Executive Manager of environmental health with the council. He also attended the scene on 16 March 2010). Mrs Francis Gala, the applicant (she had been away from home on the day of the incident and not visited the scene. She gave evidence about the history of her caring for Molly)
In distilling the evidence it became clear that the significant issue in contention in the view of the parties was whether any blood was visible on Molly when she was found. The inference sought to be drawn from that finding on behalf of the respective parties was, that if the Tribunal found there was blood on Molly, her 'guilt' concerning her implication in the deaths of the sheep could be established but otherwise it could not.
Mrs Hansen gave evidence she had seen blood on Molly's snout. In her statement dated 22 October 2010 she also stated she had seen blood on Molly's fur under her chin. Ms Ah Quay said in her statement of 22 October 2010 and in her oral evidence that she had performed a visual inspection but could see no blood on Molly. Mr Hansen said he had inspected both dogs and they each had blood on their muzzles. He had noted the same evidence in his statement made on 22 March 2010. Mr Macrae had made a statement dated 24 March 2010 indicating he found blood around the muzzle and face of both dogs and said in his evidence he had seen blood around the mouth of Molly.
Ms Ah Quay had taken a photograph of Molly on 16 March 2010 and the Tribunal observed an original print in colour of that photograph.
The applicant gave evidence that Molly had come to her as a puppy. She did not know what other blood line than Great Dane she possessed but acknowledged she is a cross breed. She described her as having a placid nature and being a real pet to Mrs Gala's grandchildren. She described situations where Molly had access to and had been gentle to other animals, including chickens. Molly had never bitten anyone or anything to her knowledge. Prior to being declared dangerous Molly had on occasion run with other dogs in the area. There were a lot of strays and dogs running loose near her home. After Molly had been declared dangerous Mrs Gala had seen to the construction of a secure enclosure in her garden. Unfortunately she had been away from home on both occasions when Molly was found with the dead sheep and so she had no knowledge as to how she may have been released. The gates were usually locked but a number of people had access to her home and the yard.
Ms Laikind for the applicant submits that the declaration of Molly as a dangerous dog in May 2009 merely alleged that she had been found in a yard with other deceased animals, not that she was specifically implicated in those sheep's demise. She further submits that in relation to the March 2010 incident the evidence of Ms Ah Quay should be preferred to the exclusion of the other evidence about blood on Molly, particularly because the tendered photograph did not disclose any blood on her coat. The premise submitted by the applicant is, in essence, that Molly came on the scene at some stage because she was curious and that other dogs (including dogs unknown) had been responsible for the killing of the sheep in both instances.
Mr Blane for the respondent submits that the applicant must prove on the balance of probabilities that Molly did not attack, threaten to attack or act in a way that causes fear to, a person or another animal, in accordance with the terms of Section 125(1)(a) of the Act. In the alternative, he submits, the applicant must negative the allegation in the destruction order that Molly was involved in an attack on sheep on 16 March 2010.

Discussion

In reaching its decision the Tribunal took into account the following:

The Facts

Molly was declared a dangerous dog on 7 May 2009. The circumstances surrounding that declaration were quite similar to the details of the events of March 2010. Several sheep were mauled and killed in a fenced enclosure of the school. Molly was found on the scene in both cases. School personnel who were present during both incidents (Mr Hansen and Mr Macrae) both attest that there have been no other attacks like these in the period they have been connected with the school, being more than five years in Mr Hansen's case.
Molly is a large, strong, mature, dark coloured bitch. Mrs Gala was away from home for a period of time on both occasions when several sheep were attacked. The enclosure in which the sheep were found in both cases has a reasonably high wire fence (part of which was shown in a photograph tendered to the Tribunal which had been taken by Ms Ah Quay). Evidence of Mr Macrae and Ms Ah Quay who inspected the enclosure before and immediately after the incident, that there were no breaches in the fence other than the two noted to the Tribunal, was accepted by the Tribunal. The undisputed evidence was that the only ram in the enclosure in the latest attack had secreted itself before subsequently dying, in a hole at the bottom of the fence near the dam in the enclosure. The evidence suggested by Mr Macrae was that this hole was where the dogs had entered the enclosure, because it showed digging marks and the soil was softest there. Once the dead ram filled this hole the dogs were unable to escape that way. He also observed that the two dogs appeared nervous and keen to escape when he attempted to restrain them. The Tribunal accepted his evidence on these points and further notes that for the distressed ram to have attempted its escape through that hole in the fence where it died, the hole must have been visible to it and probably would have been of a significant size. The applicant sought to suggest that an area of the fence which had been compromised at the top by being pulled down, might be the location for the real offending dogs to have entered and in due course exited the enclosure. The Tribunal did not find this proposition persuasive. If the other dog was one of the offenders it could just as easily have escaped through that section of fence. There was no explanation for how Molly entered the enclosure. The evidence indicated there were no dog hairs attached to that part of the fence and Mr Macrae indicated in his evidence that even at its lowest point the pushed down section was about five feet from the ground. The Tribunal accepts that it is far more likely that the offending dogs entered the enclosure through the hole under the fence.
Two witnesses (Mr Macrae and Ms Ah Quay) had had some involvement in the first incident. The undisputed evidence showed that the first flock of sheep, 6 or 7 ewes and a ram, were all killed or so badly injured they needed to be euthanased. Similarly the second flock of 9 ewes and the ram were also all killed one way or another. The evidence of the injuries sustained in the second attack suggested to the Tribunal (large parts of the cheeks and faces of some sheep removed or torn out) that a large animal was likely to be responsible. The evidence consistently suggested the other dog was considerably smaller than Molly. Mr Macrae described it as quite different from Molly, being shorter and thicker set with a black coat. While the bulk of the evidence confirmed that no one saw Molly molest any of the sheep, in her written statement Ms Ah Quay stated 'both dogs were circling an injured sheep' but in her next paragraph she states one of the teachers was able to secure one of the dogs before she got there. The Tribunal is satisfied that by the time witnesses arrived on the scene no one saw either dog directly physically harass any of the sheep.
The events occurred in the morning of 16 March before pupils had begun to arrive for school and the evidence suggests the ground and growth in the enclosure was wet and muddy. Witnesses indicate that the two dogs were also to some degree wet and had mud on their coats. The Tribunal cannot dismiss the evidence of the witnesses who say they saw blood on Molly. Having viewed the photograph taken by Ms Au Quay the Tribunal accepts that there is no sign of blood on Molly in the picture but that does not exclude the possibility that some blood was or had been present.
The Tribunal is concerned that the two incidents occurred when Mrs Gala was away. It is not unusual, in the Tribunal’s view, for a pet dog to fret or roam when it is missing its owner. Mrs Gala gave evidence that due to personal and professional reasons she anticipates being away from home for various periods into the future. While the Tribunal can readily accept her evidence that she maintains control of Molly when she is home she also acknowledged that Molly has roamed since being declared dangerous, when she is not herself at home and clearly that is so in relation to the March 16 incident.

The law

The nature of a rehearing requires the Tribunal to make its own decision on the available evidence, rather than to determine the correctness of the original decision.[4] The duty of the Tribunal is to make up its own mind as to the facts that are proved by the evidence and the inferences that should be drawn from those facts, giving appropriate weight to the opinion of the original decision-maker[5]. The Tribunal must apply the operative legislative provisions appropriately.
[4] [2000] QCA 501, [41].
[5] [2000] QCA 501, [45].
Molly was declared dangerous in May 2009 and therefore is a regulated dog pursuant to sections 60 and 61 of the Act. Section 125 of the Act provides that if an authorised person enters a place and the person reasonably suspects a dog is there the person may seize the dog where the person reasonably believes the dog has attacked, threatened to attack or act in a way that causes fear to a person or another animal. There is no issue that Ms Ah Quay is authorised and that she seized Molly at the school on 16 March 2010 believing she had attacked at least one and possibly as many as nine sheep. This section authorising the seizure of a dog is not dependent upon the dog being a regulated dog. However the consequences flowing from seizure are so dependent. Section 130 of the Act provides that where a dog was seized and the authorised person becomes satisfied the dog is not regulated the dog must be returned to its owner.
However, as submitted by the respondent, section 127 of the Act governs how a local government may deal with a seized regulated dog. Subsection (2) provides for immediate destruction in certain circumstances. Subsection (2)(a) requires that the person cannot control the dog. It is likely the respondent did not invoke this provision because there is no evidence that Ms Ah Quay could not 'control' Molly. To the contrary the evidence suggests Molly was easily restrained and removed. Some evidence about her behaviour on the day, after she was discovered, such as growling and pulling towards the dead sheep was not convincing in the Tribunal's view and does not alter the fact that she was readily 'controlled'.
Subsection (3) of section 127 of the Act does not apply in this case.
Therefore it was appropriate, in the Tribunal's view, and it was the respondent’s course, to apply subsection (4) as a consequence of the lawful seizure of Molly, which subsection provides for the making of a destruction order. The provision states that the person may make an order advising of the intention to destroy the dog. The implication is that in appropriate circumstances no such order need be made but that proper consideration be given to the grounds that might justify a destruction order.
Ms Laikind submitted that there was only a 'circumstantial case' against Molly. The Tribunal may accept that proposition in the absence of direct evidence of the attack but that does not assist the applicant. Many a defendant has been convicted beyond reasonable doubt in a circumstantial case.
Mr Blane for the respondent submitted, correctly in the Tribunal's view, that there is no direction in the Act as to the test to be applied when exercising power under 127(4) in making a destruction order. He did suggest that the test in 125(1)(a) would operate. The Tribunal accepts that submission. Any dog may be seized when the requirements of section 125 of the Act are fulfilled. However, having lawfully seized Molly who is a regulated dog, the decision maker (and therefore the Tribunal in this appeal) may (or may not) make a destruction order. On what basis should the order be made? If there is evidence that the regulated dog has attacked, threatened to attack, or acted in a way that causes fear, to another animal, seizure and in turn a destruction order may be activated. If these components are the ambit of the factors to be considered then it is necessary to weigh them against the consequences of the order. By inference the consequences are that if the destruction order is carried out there is no danger that any other ‘attack’ can take place by that dog. In this case, unfortunately for the applicant, who very clearly is devoted to her dog, that exercise results in a poor result for Molly.
Molly is seriously implicated in the direct attack and death of approximately 18 sheep (including the two rams). Even if she did not attack any of the sheep, which for the reasons outlined above the Tribunal finds extremely unlikely, she was present in the vicinity when those animals were caused to be subjected to great fear and ultimately, death. It is simply illogical for the Tribunal to accept that Molly happened upon the destruction of the sheep by another, or other dogs, by coincidence, on not one but two separate occasions and yet took no part in seriously distressing these animals. The consequences of so finding mean that in the absence of a destruction order she may be similarly implicated on one of the next occasions when Mrs Gala is required to be away from home again. In those circumstances the Tribunal considers that the destruction order was properly made.

Costs order

The respondent submitted that pursuant to section 102 of the Act costs for the sustenance charges for Molly from 16 March 2010 (her date of seizure) until the date of hearing in the sum of $3821.00 should be awarded by the Tribunal against the applicant. Ms Laikind acknowledged she had received the respondent's submissions and formal invoice but she did not address the Tribunal on the issue of costs.
The claim is for 106 days at $16.00 per day and from 1 July 2010 125 days at $17.00 per day. The provision in the Act applies if a local government has incurred costs in taking possession of, moving, providing accommodation, food, water and other living conditions, paying veterinarian or treatment fees, and fees associated with destruction in relation to a seized dog. The respondent may recover such costs from the applicant where the incurring of the costs was necessary and reasonable. Section 131 of the Act required the impounding of Molly until the review processes were exhausted. The QCAT Act makes provision for the awarding of costs but costs orders are usually in relation to costs arising in relation to the proceedings. That is not the nature of the application here. The Tribunal accepts that some costs will have been necessary and reasonable in caring for Molly whilst she has been in the custody of the council. Had she been in the applicant’s care that would have involved some cost for her up-keep. The claim only itemises 'sustenance' charges based on daily rates of $16 and $17 per day. These would appear to be in keeping with rates charged at commercial catteries and kennels. There is no body of precedent in these matters. The Tribunal accepts that within the nature of the council’s facilities, Molly has been given appropriate care. However the Tribunal considers the total claim to be excessive. It is somewhat unfortunate that matters of this type can take as long as this case has, but there is no basis for finding there has been any undue delay by either of the parties. The Tribunal will allow costs of $1,000.00.

The Hearing

The Tribunal acknowledges that it did not give proper attention to Section 90 of QCAT Act which provides that a hearing of a proceeding must be held in public except in special circumstances. The Act is not an enabling Act which provides otherwise. Some other types of hearings by the Tribunal must be held in private and other provisions allow the Tribunal to make directions about persons who may attend a hearing, but they are not applicable to matters of this kind.
The hearing in this matter was heard on 3 November 2010 and the Tribunal, of its own initiative directed that certain persons be precluded from the proceedings.
While the Tribunal has broad powers to make directions as necessary and has the discretion to control its procedure at hearing to achieve, in effect, a fair hearing for the parties, section 90, having set the ‘default’ position, provides further guidance.
At commencement of the hearing the Tribunal was of the understanding on the basis of material presented in the papers before it that the applicant is an elderly Aboriginal lady who is hard of hearing and who was permitted to be legally represented because the matter was one where she was experiencing a high degree of stress. She had advised through counsel that the destruction of Molly would impact significantly upon her. Equally the parties responsible for the sheep were to be considered. The Tribunal was mindful that it was important for the evidence to be provided in as uncharged an environment as possible. Given the potential for high levels of emotion to be displayed the Tribunal determined that it would be in the best interests of Mrs Gala's well being and in the interests of justice to direct the hearing be conducted as it was. These are the considerations that the Tribunal would have addressed in fully applying section 90 had it done so at the relevant time. Nevertheless the Tribunal acknowledges that there is an important competing public interest, and that there is a general public right to have proceedings be as transparent as possible.
The Tribunal has considered the interests in the matter and the complexity of some of the issues, and therefore has attempted to remedy any perceived lack of transparency by providing a detailed written decision (rather than an oral decision) as an appropriate means for explaining the basis for its findings, and outlining the evidence presented at the hearing which it considered pertinent.

Decision

For the reasons outlined above it is the decision of the Tribunal that the respondent be authorised to destroy the seized regulated dog, Molly pursuant to Section 127 of the Animal Management (Cats and Dogs) Act 2008 and that the applicant is ordered to pay the respondent's costs for sustenance charges for the dog Molly in the sum of $1,000.00.