George v Brisbane City Council - [2013] QCAT 537

CITATION:

George v Brisbane City Council [2013] QCAT 537

PARTIES:

Michael George
(Applicant)
v

Brisbane City Council
(Respondent)

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…

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: [2013] QCAT 537
Decision Date

CaseChat Overview and Summary

Michael George sought a review of a decision by the Brisbane City Council to issue a destruction notice for his male Staffordshire Bull Terrier, Drako. Drako had previously been declared a dangerous dog in 2011 following an attack on another dog, which resulted in the death of that dog. In July 2013, Drako and another of George's Staffordshire Bull Terriers, Kit Kat, were involved in an attack on a Maltese X named Macey. Both dogs were unregistered and were roaming the streets without adult supervision at the time of the attack. George sought a review of the Council's decision to issue a destruction notice for Drako, arguing that the decision was made without sufficient evidence and that Drako should be given a second chance.

The primary legal issue was whether the Brisbane City Council's decision to issue a destruction notice for Drako was justified under the Animal Management (Cats and Dogs) Act 2008. The Tribunal needed to consider whether Drako posed a danger to the community and whether George had complied with Council regulations regarding the management of dangerous dogs. The Tribunal also had to assess whether there was sufficient evidence to support the Council's decision and whether George's arguments for a second chance for Drako were valid.

The Tribunal found that the Council's decision to issue a destruction notice for Drako was justified. The evidence showed that Drako had previously been declared a dangerous dog in 2011 and had again exhibited dangerous behaviour in 2013. George had failed to comply with Council regulations by not ensuring his dogs were properly contained and registered. The Tribunal noted that George had not provided any evidence to challenge the Council's findings and had not taken appropriate action when notified of the potential declaration of Drako as a dangerous dog in 2011. The Tribunal concluded that the risk of Drako causing further harm to animals and potentially persons was too great to allow him to remain alive. Therefore, the Tribunal confirmed the Council's decision to issue the destruction notice for Drako.

Orders