George v Brisbane City Council
[2013] QCAT 537
| CITATION: | George v Brisbane City Council [2013] QCAT 537 |
| PARTIES: | Michael George Brisbane City Council |
| APPLICATION NUMBER: | GAR285-13 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 9 October 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Professor A Ashman, Member |
| DELIVERED ON: | 9 October 2013 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The Tribunal finds that Brisbane City Council’s decision to issue a destruction notice in regard to the male Staffordshire Bull Terrier known as Drako is confirmed. |
| CATCHWORDS : | REVIEW MATTER - Destruction of a dog already declared to be dangerous; Staffordshire Bull Terrier, Animal Management (Cats and Dogs) Act 2008, ss 59, 89(2),127 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Michael George |
| RESPONDENT: | Simon Butterworth representing the respondent Mark Higgin representing the respondent |
REASONS FOR DECISION
Three dogs reside at a property in Belnoel Street Wavell Heights and are owned by Mr George. They are Staffordshire Bull Terriers. One male is about 4 years old and named Drako, the female is about 1 year old and named Kit Kat, and the third that is not implicated in this hearing is known as Bella. Drako and Kit Kat were involved in an attack on another dog, a Maltese X named Macey, while that dog was being walked on a leash by its owner in the vicinity of Main Avenue and Newman Road, Wavell Heights. The attack took place on the morning of 6 July 2013.
There are witness statements that are generally in agreement as to the events surrounding the incident, although only one of these from Macey’s owner reports the events leading up to the interchange between the dogs. Macey sustained serious injuries and a witness was also bitten while attempting to separate the dogs.
Brisbane City Council undertook an investigation, identified Drako and Kit Kat from the witness statements. Mr George admits ownership of both dogs and in his statement of 29 July 2013, and accepts that the dogs were involved in the incident.
An appropriate Council delegate decided to make a regulated dog declaration for Kit Kat on 1 August 2013, and a destruction order for Drako on 8 July 2013 on the basis that Drako was already subject to a declaration as a dangerous dog by virtue of Council actions taken in 2011.
Mr George sought a Council review of the 2013 declaration to issue a destruction notice for Drako but did not seek a review of the declaration to regulate Kit Kat as a dangerous dog.
Mr George, however, sought a review of both decisions at the Tribunal on 26 August 2013. The decision in regard to Kit Kat was dismissed by the Tribunal at an on-the-papers hearing on 10 September 2013.
When questioned during the present hearing, Mr George stated that he was not contesting the Council decision in regard to Kit Kat.
In his application concerning Drako, Mr George sought the non-destruction of his dog, the dog’s return to its home, that the dog be tested for behaviour. Mr George writes that the first decision was made without sufficient evidence but it is unclear as to which decision being challenged as he refers to an attack by a third party and threats. During the hearing, however, this matter was clarified and refers to Council’s 2011 decision only. He continues that the first regulated dog notice was not adequately investigated, shortly after the incident he was wrongly evicted from his place of residence, that his dogs have been socialised with other dogs, and have never exhibited aggressive behaviour toward persons or other animals.
Mr George accepts responsibility for the dogs escaping prior to the July 2013 incident from what he describes as a secure property and seeks a second chance for Drako.
The Tribunal issued directions on 27 August 2013 requiring Mr George and the Council to file statements of evidence, witness statements, any other supporting documentation and allowing time for each party to respond to the others submissions. The Council filed its documents on 11 September 2013 but Mr George did not comply with the direction and filed no submissions in advance of the hearing.
In summary, the Council’s submission drew attention to the fact that Drako was subject to a dangerous dog notice issued in 2011. That notification was served on Mr George at the time but at about that time, Mr George left the Council area but did not notify the Council of his departure. Council asserts that at the time of the July 2013 incident, both dogs were unregistered, were wandering the streets without the presence of an adult in control, and were not wearing collars with tags.
Council asserts that Mr George was aware of impending action resulting from Drako’s attack on another dog in 2011 (the dog died as a result of the attack) and that he has not complied with the conditions required for the keeping a dangerous dog.
During the hearing, Mr George described the circumstances surrounding the 2011 attack. He argues that there was no evidence that Drako caused the death of the neighbours’ dog; there were two dogs living on his property at that time, Drako and Bella; there was no witness and, consequently, Drako could not be positively identified as the culprit.
In reviewing the decision of the Council, the Tribunal must consider s 59, the purposes of the Act, and the protection of the community from damage or injury. There is no doubt as to the identity of the attacking dogs in the July 2013 incident. Indeed, Mr George has accepts his dogs’ involvement. He asserts, however, that Macey was aggressive and his dogs were simply defending themselves. The evidence does not support this position. Macey was under his owner control on a leash.
Section 89(2) of the Act states that a dangerous dog may be declared only if the dog has seriously attacked, or acted in a way that caused fear to a person or another animal or may have done so in the opinion of an authorised person. Council representatives stated that there was a witness report to the 2011 attack and that Drako was identified as the attacker.
Mr George presented no evidence to challenge this claim.
In coming to its decision, the Tribunal is satisfied by Council evidence that both dogs acted in a dangerous manner by attacking Macey.
In regard to the destruction order, Council asserts that Drako was implicated in a previous incident that led to the death of another dog. While Mr George is unconvinced that Drako was responsible, at the time he did not challenge Council’s notice proposing Drako’s declaration as dangerous. During the hearing, he admitted that he had received the proposal but did not act on it.
The Tribunal is not in a position to question the 2011 decision of Council. Mr George might have sought a review, but he did not. Council has, therefore, acted on the basis of evidence that Drako qualified for the declaration as a dangerous dog.
The attack in 2013 would seem to support the argument that Drako is a danger to the community, at least to other animals.
Of considerable concern to the Tribunal in this matter is Mr George’s failure to ensure that his dogs are unable to leave the property where they are kept. His failure to register the dogs is similarly concerning as it is common knowledge within the community that dogs and cats require registration and he failed to comply with this Council regulation. Furthermore, he is aware of the allegations of Drako’s attack in 2011, and while he might not concede his dog’s implication, it is incumbent upon a dog owner to be aware of Council requirement and any conditions that might be imposed subsequent to Council action in regard to a declaration notice.
Mr George suggests that the property where the dogs are kept is now secure. Evidence would suggest that this was not the case at the time of the incident. The dogs were roaming the street unaccompanied.
Mr George accepts responsibility for the incident but provides no evidence about how he would ensure the isolation of his dogs as required by Council regulations. The likelihood of a similar or more serious incident occurring is not an unrealistic expectation thereby posing a serious risk to animals and persons.
The Tribunal finds that the Council’s decision in issuing the destruction notice for Drako is confirmed.
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