Gillam and City Of Fremantle - [2010] WASAT 141

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: DOG ACT 1976 (WA)

CITATION: GILLAM and CITY OF FREMANTLE [2010] WASAT 141

MEMBER: MR C RAYMOND (SENIOR MEMBER)

HEARD: 24 MAY 2010 AND 2 JULY 2010

DELIVERED : 1 OCTOBER 2010

FILE NO/S: CC 1880 of 2009

BETWEEN: ALEXANDER GILLAM
Applicant
AND
CITY OF FREMANTLE
Respondent

Catchwords:

Dog Act 1976 (WA) Application for review of decision declaring dog dangerous Whether evidence in support of declaration reliable Exercise of discretion Whether dog can be kept without the likelihood of any contravention

Legislation:

Dog Act 1976 (WA), s 3, s 3(1), s 33E, s 33E(1), s 33E(1)(b), s 33F(2)(b)(i), s 33F(6), s 33F(6)(a)
State Administrative Tribunal Act 2004 (WA), s 27

Result:

Decision to declare dog dangerous set aside

Category: B

Representation:

Counsel:

Applicant: Self-represented
Respondent: Mr DP Gillett

Solicitors:

Applicant: N/A
Respondent: McLeods Barristers & Solicitors

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

City of Armadale v Kiraly [2009] WASC 199

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicant applied for the review of a decision made by the respondent declaring the applicant's dog to be a dangerous dog.
The Tribunal examined the evidence in relation to a number of incidents relied upon by the respondent to satisfy the criteria for the making of the declaration. Two of the incidents involved rangers employed by the respondent. All the other incidents either involved three persons who stand in a close relationship, or concerned incidents involving other persons but reported by one or other of the same three persons.
The Tribunal identified a number of concerns with the evidence of the three persons and the respondent's rangers. There was also a great deal of evidence from a number of sources attesting to the general good nature of the applicant's dog. Weighing all the evidence, the Tribunal was unable to find that the dog had acted aggressively, although for the period involving all of the incidents, the dog had not been properly contained within the applicant's property, had frequently roamed the nearby streets and made a nuisance of itself by barking. Those issues have since been addressed.
The Tribunal concluded that although the respondent was justified in declaring the dog dangerous on the information then available to it, the correct and preferable decision as at the date of review was to set the respondent's decision aside.

The application

The applicant applies under s 33F(6)(a) of the Dog Act 1976 (WA) (Dog Act) for the review of a decision dismissing an objection to the declaration by the respondent that the applicant's dog, a male staghound kelpie crossbreed named 'Ubu' (Ubu) is a dangerous dog. In substance what is sought is a review of the decision to make that declaration.
In these reasons for decision, all references to provisions of legislation are references to the Dog Act unless expressly stated to the contrary.

The basis of the decision under review

The decision under review is based upon six separate incidents involving Ubu which, taken together, are said to satisfy the criteria for the making of a declaration that a dog is a dangerous dog pursuant to s 33E. By way of a late amendment to the respondent's statement of issues, facts and contentions, the respondent also relies on an incident involving a ranger of the respondent as evidencing the aggressive nature of Ubu, but the incident is not relied upon to support a finding of any attack having occurred, as defined under s 3(1). By dealing with this last mentioned incident in this manner, the respondent seeks to avoid raising the issue of whether or not a defence of provocation, as defined under s 3, could be raised. Counsel for the respondent made that clear during the course of the hearing.
Section 33E(1) provides as follows:
33E. A dog may be declared to be a dangerous dog
(1)A local government, or on behalf of the local government an authorised person or person specifically authorised by the local government for the purposes of this section either generally or in a particular case, may, by a notice in writing given in accordance with section 33F, declare a dog to be a dangerous dog if, in the opinion of the local government or that person
(a)the dog has caused injury or damage by an attack on, or chasing, a person, animal or vehicle;
(b)the dog has, repeatedly, shown a tendency
(i)to attack, or chase, a person, animal or vehicle even though no injury has been caused by that behaviour; or
(ii)to threaten to attack;
or
(c)the behaviour of the dog meets other criteria prescribed for the purpose of this section.
An attack under s 3(1) is defined as follows:
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)biting, or otherwise causing physical injury to, a person or an animal; or
(c)tearing clothing on, or otherwise causing damage to the property of, the person attacked; or
(d)attempting to attack, or behaving in such a manner toward a person as would cause a reasonable person to fear physical injury,
unless the owner establishes that the behaviour was justified by a reasonable cause;
The incidents relied upon are set out in the respondent's statement of issues, facts and contentions in the following terms:
[1.]At approximately 5.30pm on 5 May 2009, the Applicant's Dog attacked a male person delivering pamphlets in Hope Street, White Gum Valley, by aggressively charging at him and chasing him along the street.
[2.]In the morning of 10 May 2009, the Applicant's Dog attacked 2 women in front of the property at 51 Hope Street, White Gum Valley, by charging at the women while barking and growling aggressively.
[3.]At approximately 4.30pm on 14 May 2009, the Applicant's dog attacked a man and his daughter walking their small dog along Hope Street, White Gum Valley, by charging off the property at 55 Hope Street and charging at the man and his daughter while barking and growling aggressively.
[4.]At approximately 11.30am on 9 June 2009, the Applicant's Dog attacked a man and woman in Hope Street, White Gum Valley, by growling aggressively at them.
[5.]At approximately 10.40am on 1 August 2009, the Applicant's Dog attacked a woman walking her Corgi dog on a lead along Hope Street, White Gum Valley, by barking aggressively at the woman.
[6.]At approximately 11.00am on 12 August 2009, the Applicant's Dog attacked a man in Hope Street, White Gum Valley, by charging aggressively at him while snarling and barking.
The incident relied upon for the limited purpose of demonstrating the alleged aggressive nature of Ubu is expressed as follows in the respondent's statement of issues, facts and contentions:
At approximately 5.40pm on 22 July 2009 the applicant's dog behaved in an aggressive manner towards a ranger in the driveway of the applicant's property at 55 Hope Street, White Gum Valley.
On 5 October 2009, the respondent declared Ubu a dangerous dog by notice of that date. The Notice set out the reasons for the decision in the First Schedule of the Notice which referred to the incidents numbered 1, 2, 3, 5 and 6 above. For some unexplained reason, no reference was made to incident No 4 alleged to have occurred on 9 June 2009, although the respondent's records show that a complaint had been made in respect of that incident. The applicant objected to the declaration as he was entitled to do under s 33F(2)(b)(i). That objection was dismissed by the respondent on 30 November 2009, resulting in the application for review being made to the Tribunal.

The review

Pursuant to s 27 of the State Administrative Tribunal Act 2004 (WA) the review of a reviewable decision is to be by way of a hearing de novo, and is not confined to matters that were before the decisionmaker but may involve the consideration of new material, whether or not it existed at the time the decision was made. The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.
I have come to the conclusion that as at the date of the making of this decision, the correct and preferable decision is that the decision, and therefore the declaration, that Ubu is a dangerous dog should be set aside. In my view, the respondent was justified in making the declaration at the time which it did, based on the complaints which had been made in relation to the incidents referred to in the Notice dated 5 October 2009, with the exception of the incident which is alleged to have occurred on 1 August 2009. I will explain below more fully why that decision no longer remains the correct and preferable decision.
A remarkable feature of this case is that notwithstanding the number of incidents which involved other parties, all complaints from the members of the public have come from only three people who stand in a close relationship. Phyllis Litza Duncan (often referred to as Litza) is one of those persons. She resides at 51 Hope Street, White Gum Valley, which is on the opposite side of the street from the applicant's property at which Ubu is kept, being 55 Hope Street.
One of the other complainants is Mr Bradley Duncan, the former husband of Mrs Duncan, who resides on a property at the rear of 51 Hope Street, but having a postal address of 22 Trusting Lane, White Gum Valley. It is understood that Mr and Mrs Duncan each reside in one of the lots of a two lot strata scheme. It appears from a note in evidence from Mrs Duncan (attached to the witness statement of a Mrs Sharon Segler) that Mr and Mrs Duncan were involved together in construction work 'in our yard' - presumably construction of the dwelling on the rear lot.
The other complainant is Mr Michael Lane who describes himself as Phyllis Duncan's partner. He gives a different residential address, but it is common cause that he often stays at Phyllis Duncan's home.
These complainants described the various incidents to which they were witness in terms which reflect that Ubu on those occasions was engaged in aggressively rushing at, or harassing a person, or chasing a person, in some instances themselves, and in other instances the person or persons described in the above incidents. Their evidence on its face is sufficient to justify the making of a declaration that Ubu is a dangerous dog, given the defined meaning of an attack which includes aggressively rushing at or harassing a person.
There are, however, aspects of the case and of the evidence of the complainants which are cause for concern. That concern would not have been evident on the information which was available to the respondent at the time when the dangerous dog declaration was made on 5 October 2009. The concerns arise because of the more comprehensive evidence which was provided to the Tribunal.
In her witness statement, Mrs Duncan described the incident No 1 of 5 May 2009 as no more than one involving a young man being chased along the footpath by Ubu. She described that the boy tripped and fell and hurt his knee. There is no reference to Ubu aggressively charging at the young man and then chasing him along the street. Based on the applicant's evidence, Ubu was then less than one year of age and was described by the applicant as a playful puppy. Reference will be made to a considerable body of evidence suggesting that Ubu is not aggressive by nature. Mrs Duncan's evidence is insufficient to establish incident 1 as described in the respondent's statement of issues, facts and contentions without more to indicate the circumstances of the chase. It is evident that the young man was shaken by the experience, but that in itself is insufficient to establish that there was any reasonable fear of physical injury: see the discussion by his Honour, Justice Heenan in City of Armadale v Kiraly [2009] WASC 199 at [14] and following.
There is, at the very least, confusion in the evidence provided on behalf of the respondent in relation to incident 2 alleged to have occurred on 10 May 2009. As alleged, this involved an attack on two women in front of Mrs Duncan's property at 51 Hope Street. Mrs Duncan, in her statement of evidence, refers to an occasion on this date when she and her partner, Michael Lane, were allegedly charged by Ubu 'barking and snarling'. Mr Lane makes no reference to this incident, although he describes a strikingly similar incident which he says occurred on 9 June 2009. Mrs Duncan makes no reference to that event and, as already noted, the respondent's Notice of 5 October 2009 did not refer to any incident occurring on 9 June 2009. Mr Lane's statement was prepared only shortly prior to the hearing, and he signed it while giving evidence on 24 May 2010. The respondent's statement of issues, facts and contentions was prepared on 18 February 2010 and referred to the incident on 9 June 2009.
This disparity is not easily reconciled. An incident form, prepared by the respondent on 25 May 2010, records an incident reported by Mrs Duncan said to have occurred on 10 May 2009 when she was 'standing at her gate talking to her friend when the dog ran at them barking and growling viciously'. Whether the friend was male or female is not apparent - perhaps it was Mr Lane. But that then does not explain that the incident form, which is in the nature of a continuing running sheet, records that Mr Lane reported an incident on 9 June 2009 when Ubu 'was out today at 11.30 am and growled at him and his partner'. That description is not entirely consistent with what Mr Lane stated in his witness statement to the effect that Ubu 'charged at us growling and snarling'.
Mrs Duncan's evidence is sufficient to support incident 3, alleged to have occurred on 14 May 2009. Mr Lane's evidence, taken on its own, is sufficient to support incident 4 alleged to have occurred on 9 June 2009, but it is notable that Mrs Duncan makes no reference to an incident on that date.
Taking a benevolent view of the evidence before the Tribunal, there might be a sufficient basis on which to conclude that incident 3 occurred on 14 May 2009, and that an incident involving Phyllis Duncan and Michael Lane occurred either on 10 May 2009 or on 9 June 2009, in which Ubu charged at them growing and snarling.
The next incident involving one of the three complainants is incident 6, alleged to have occurred on 12 August 2009. Mr Duncan describes this incident and states that Ubu 'rushed off the Applicant's property and charged at me snarling and barking. The dog stopped approximately 2 to 3 feet from me and continued to bark and snarl while baring its teeth.' Mr Duncan also described in his witness statement and in his oral evidence how on many other occasions Ubu had charged at him barking and snarling aggressively when he parked his vehicle at the front of 51 Hope Street to attend his property at the rear of 51 Hope Street. He also described how his daughter would not get out of the car while Ubu was near the vehicle as she was afraid the dog would charge at her and bite her. He stated in his oral evidence that he was also afraid of the dog. However, it emerged in his evidence that his daughter is fearful of all dogs, and that he had previously suffered a bad dog attack in which he had been severely bitten. In these circumstances, it is difficult to rely on Mr Duncan's evidence relating to his and his daughter's fears as a basis for any finding that a reasonable person might fear physical injury within the meaning of para (d) of the definition of 'attack' under s 3. That, however, does not detract from his description of the dog having charged aggressively at him, growling and snarling. A dog which growls and snarls must, on any basis, be regarded as acting aggressively, and would satisfy para (a) of the definition of 'attack'.
On the basis of the three complainants' evidence, there is, therefore, a sufficient basis, if that evidence is to be accepted, to find that Ubu has, repeatedly, shown a tendency to attack within the meaning of s 33E(1)(b) and the definition of attack set out in s 3(1). However, I do not consider that there is, on any basis, sufficient evidence to show that Ubu has a tendency to chase a person, animal or vehicle because there has been only one incident established involving the chasing of a person.
It is then necessary to take into account allegations made by a neighbour of the applicant concerning Mr and Mrs Duncan and Mr Lane. The neighbour is Sharon Segler, who resides at 57 Hope Street, White Gum Valley. She refers in her witness statement to several occasions when they, independently of each other, approached her fence and growled at her two dogs and who would then run away when confronted by her. She expanded on this during her oral evidence. There was an occasion when she found her dogs had been let out of her property and it was reported to her that Mr Lane had been seen 'hanging around your property.' As a result of this incident, Mrs Segler installed a lock on her gate.
The applicant also gave evidence that the three complainants had attempted to intimidate Ubu by coming to the gate that secures him within the applicant's property. This was put to Mr Lane somewhat obliquely in crossexamination when it was suggested that he had regularly come to the front of the applicant's house and stood there until the dog started barking. Mr Lane denied doing so.
Added to this mix of unusual aspects of the case is an occasion when some unidentified person left in Mrs Segler's letterbox a photocopy of an article, apparently printed in a newspaper, with a bold statement on the back of the document 'BARKING DOGS'. The article dealt with a successful prosecution which had occurred of a dog owner who had allowed his dogs to bark for extended periods. It was interpreted by Mrs Segler, and on the face of it, reasonably so, as a threat that she might be prosecuted if her dogs were allowed to bark excessively.
Mrs Segler gave evidence that as no other neighbour in the vicinity had ever complained to her about her dogs, 'plus the history of cowardice on the part of the complainants in respect of discussing my dogs with me' she concluded the note must have originated from one of the complainants. Consequently, she prepared a note which she delivered to 51 Hope Street. The note is attached to her witness statement, and is not addressed to any of the complainants in particular, she recorded:
I have seen you lean over my front fence and menace my animals only to scurry away when I approached you to discuss the matter in a civil and neighbourly way …
It is most unfortunate that instead of approaching me to discuss your concerns, you have instead chosen a course of action that can only be described as provocative and cowardly.
…
In the meantime please note that if you menace my animals again I will seek a Misconduct Restraining Order against you.
Mrs Segler stated that the continual menacing of her animals ceased for several months after delivery of her note, although it had resumed in recent times. Mrs Duncan, in turn, delivered a reply denying she had left the article for Mrs Segler but nothing was stated on behalf of either Mr Duncan or Mr Lane. Nor was any denial made about menacing Mrs Segler's dogs.
Mrs Segler described in some detail three occasions on which she had witnessed Mr Lane pacing up and down along the front boundary of her house, which caused her dogs to run outside and bark at him. The most recent occasion when this was stated to have occurred was at 7 am 'approximately two months ago'. Mrs Segler's witness statement is not dated, but it was prepared some time between the first day of the hearing of this matter on 24 May 2010 and the resumed hearing on 2 July 2010.

On this last occasion, Mrs Segler stated that she succeeded in having a discussion with Mr Lane. Her evidence is that he falsely suggested that the barking of the dogs had woken him from his sleep. She stated that this 'was a patently false accusation as the dogs only went outside in response to his stalking, not in spite of it. Until that time, the dogs had been inside the house with me, having only recently woken from their sleep. When I argued that point with Michael Lane he scurried back to his girlfriend's house.'
A further strange incident is alleged to have occurred after the applicant had incurred the expense of having a large gate installed across his driveway in order to keep Ubu within his property. Because of the design of the gate, there was a small area near one of the gateposts through which Ubu was capable of escaping. The applicant stated that he used galvanised wire secured in a crisscross pattern forming a mesh to prevent that occurring. Ubu was later found out in the street and it appeared that someone had interfered with the mesh by cutting the galvanised wire.
The applicant was only able to directly challenge one of the alleged incidents, the subject of complaints about Ubu, because neither he nor any of his witnesses were present. That incident is incident 6 which is alleged to have occurred on 12 August 2009 at approximately 11 am. The applicant testified that Ubu had been with him at his fruit and vegetable shop for the whole of that morning. His evidence was that Ubu was still there when a ranger telephoned him to inform him that there had been a complaint that Ubu was out on the street and that the respondent intended to issue an infringement notice. As it transpired, based on the complaints to that stage, the respondent decided to issue a dangerous dog declaration which it did on 21 August 2009. That Notice of Declaration was subsequently revoked because of a technical difficulty and was replaced with the Notice, the subject of these proceedings.
As already indicated, the applicant produced a substantial body of evidence all pointing towards Ubu being a dog with a friendly disposition. This was attested to by the applicant, his wife Peta Lois Gillam, Sharon Segler, David George Anthony, Andrew Eldin Noskea, James Robert Kerr and Joshua Patterson, all of whom provided witness statements and which save for that of Mrs Segler were tendered by consent. Letters of support in similar vein were provided by Megan Jessup and the Mayor of the City of Fremantle, Dr Pettitt (although the letter was not signed). Dr Pettitt had previously written a letter in support of an application for the proceedings to be adjourned because it was his view that the City should hold an internal review of the matter and that the proceedings were not justified. That letter dated 24 May 2010 is signed (Exhibit 2). In addition, a petition signed by 150 customers of the applicant's shop was also filed. The evidence was that until the applicant's wife had their second child, Ubu was often left at home on his own. It was during this period that most of the incidents occurred. The applicant would take Ubu to the shop with him when he could. The evidence was that there were hitching rings attached to the wall near the entry to the shop. Ubu and other visiting dogs would be tied to these rings and there had never been any difficulty with that arrangement. The petitioners had always found Ubu to be welcoming and friendly and they had never seen Ubu behave in a threatening or aggressive way.
The Tribunal is, of course, not bound by the rules of evidence and therefore some weight can be given to the petition. All petitioners have given their name and address, and although some may have signed the petition with little or no knowledge of the statements which they were adopting, that is unlikely to be so in relation to the majority of petitioners.
Taking all evidence into account, I am left with a real concern about the reliability of the complainants' evidence, at least insofar as they allege that Ubu acted in an aggressive manner. When regard is had to the incident forms kept by the respondent, an impression is given that the principal concern was about Ubu being free to roam the street during the day. The applicant does not dispute that until he took steps to secure his property, there was a real problem with Ubu wandering. This also appears to be at the heart of Mrs Duncan's concern about Ubu. Mrs Duncan stated under crossexamination as follows:
What do you do when Ubu has approached you? … I growl back.
What effect does that have it? … And I go to chase him and he goes home.
What effect does that have on Ubu? … He turns around and goes back because I chase him.
So he's not that scary? … What did I say? I didn’t feel that he was going to bite me, put it that way.
So you don't think he's aggressive? … Because he has been allowed to develop this behaviour because he didn’t have his territory marked for him, I feel that there could be stages where he could develop further if it was allowed to continue.
The evidence of the complainants should, however, not be weighed in isolation, given that there were other incidents involving rangers employed by the respondent. But, for the reasons which follow, it will be seen that I do not accept the evidence of some of the rangers in crucial respects. Consequently, my concern about the complainants' evidence relating to alleged aggressive conduct by Ubu remains.
The first incident involving one of the rangers was on 22 July 2009. This is the incident which is not relied on as constituting an attack by Ubu, but as evidence of his allegedly aggressive character. The ranger concerned, Mr Cris Browne, stated that following a complaint, he attended at the applicant's property at approximately 1740 hours on 22 July 2009. The complaint was that Ubu had been out in the street and acting in an aggressive manner towards members of the public. The identity of the complainant was not disclosed in Mr Browne's statement, but the relevant incident form records that the complainant was Mr Lane. In any event, Mr Browne stated that an incident occurred while he was standing approximately 1 metre inside the boundary of the applicant's property on the driveway. According to Mr Browne, Ubu charged at him barking and growling but stopped 1 metre from him. Ubu then proceeded to circle Mr Browne in an anticlockwise direction and, while doing so, made short lunges towards him. Based on his experience with dogs, he interpreted this as meaning that the dog was looking for a weak spot to rush in and attack (by which he presumably means bite).
The relevant incident form contains a record of this incident which is set out in full below.
22/7 CB Mr Lane phoned to say that the dog from 55 was able to get out and it harassed him as he was walking by. I called to 55 and spoke to the dog owner, [sic] when I arrived the dog was in the front yard and there was nothing stopping the dog from coming off the property. I told Mr Gillam that he had to make sure that the dog could not get off the property. I had to get fairly firm with Mr Gillam as he appeared to not really grasp the seriousness of the situation. I rang complainant and advised him of the conversation and he will ring if the dog is out again.
It is clear that Mr Browne understood that the complaint was that the dog was acting aggressively because he expressly stated so in his witness statement. In those circumstances, it is a matter for comment that Mr Browne recorded none of the aggressive conduct of the dog which he alleged occurred during his attendance at the property.
The applicant gave evidence relating to Mr Browne's attendance at his property on 22 July 2009. He saw a person who he took to be Mr Lane standing in the dark just within the driveway. He challenged the person he thought was Mr Lane, asking:
What are you doing here? Why do you come and stand in my front yard until Ubu barks at you and then go and call the rangers?
Mr Browne responded, identifying himself as a ranger. The applicant stated that the discussion which followed was not very nice because he thought that Mr Browne was there to try and 'rouse Ubu up'.
Mr Browne's statement reflects that he discussed Ubu's behaviour with the applicant, and in particular that the dog had behaved aggressively towards him. The applicant denied that there was any discussion about the manner in which Ubu had behaved towards Mr Browne. The incident report is consistent with the applicant's version.
The next incident involving a ranger, and which is relied upon to establish a repeated tendency to attack, is the incident identified as No 5 to the effect that on 1 August 2009, Ubu attacked a woman walking her corgi dog on a lead along Hope Street by barking aggressively at the woman.
The woman involved made no complaint. The incident was recorded by Mr Eddie Srblin, a ranger employed by the respondent. In his witness statement, he stated:
As I was driving along, I saw the Applicant's dog charge up to a woman walking her corgi dog on a lead on the corner of Montreal Street and Hope Street.
The applicant's dog charged up to the woman aggressively and was barking at the woman and her dog causing the woman to try and shield her dog and protect herself from the applicant's dog.
Mr Srblin made a note recording the incident which appears to be relatively contemporaneous. That is evident because the respondent issued an infringement notice against the applicant in respect of the incident which has at its foot a place for comments. The comments refer to Mr Srblin sighting Ubu in Hope Street and also refers to attached notes. The attached notes and the infringement notice are incorporated in a single photocopy document which appears in the respondent's book of documents at tab 4. Mr Srblin there states:
I was driving along montreal st [sic] when I witnessed a black dog barking at a lady walking her corgi on a lead. The dog was on the corner of montreal and hope street [sic]. I turned the car around and went up to the dog and told it to go home, it then ran down hope st [sic] and went into 55 hope st [sic] and into the backyard. The gate was open in the carport and the dog was walking between the carport and backyard and barking. This happened at 10.40 am on the 1/8/2009.
It is a matter for comment that the note does not record that Ubu 'charged up to the woman aggressively' as Mr Srblin stated in his statement.
The above inconsistencies between the respondent's records and the evidence of Mr Browne and Mr Srblin takes on an even greater significance when regard is had to evidence that Mrs Segler gave concerning her interaction with the respondent's rangers, and in particular in relation to a ranger who identified himself as Seb.
Mrs Segler observed that a ranger had arrived at the applicant's property. She stated that she went out and spoke to him and asked if she could be of assistance. During the course of the discussion, Mrs Segler states that Seb told her that it was his intention to 'teach Alex [the applicant] a lesson'.
During this period, as already mentioned, Ubu was creating a problem, in that he was roaming the streets and barking. The respondent's incident forms, which were tendered in evidence, reflect that the rangers were patrolling the area with some frequency following the complaints which had been made by Mrs Duncan and Mr Lane at this point. It is understandable that the ranger, Seb, may have thought it necessary to take action against the applicant, but when Seb's statement of intention is taken into account, together with the above inconsistencies between the respondent's records and the evidence of Mr Browne and Mr Srblin, it raises a concern about whether their evidence was deliberately exaggerated to support the dangerous dog declaration.
Having regard to the above concerns expressed in relation to the evidence of Mr and Mrs Duncan, Mr Lane and Messrs Brown and Srblin, weighed against the otherwise wealth of evidence attesting to Ubu's friendly character, I am not able to find that Ubu acted in an aggressive manner in any of the incidents relied upon by the respondent. But, even if I were to be wrong in that conclusion, there are additional grounds for concluding that the correct and preferable decision is to set aside the decision under review and consequently the Notice declaring Ubu dangerous.
It is now more than a year since any of the incidents relied on by the respondent. All of those incidents occurred during a period when Ubu was not properly contained within the applicant's property. There has been evidence of one sighting of Ubu out of the property after the applicant installed a gate across the driveway. That coincided with evidence from the applicant that Ubu had escaped through a gap which had been blocked off with galvanised wire when it appeared that someone had interfered with the wire mesh. The dog was approximately one year of age when the incidents occurred and is now older, more mature and settled because the applicant's wife is at home during the day. The evidence provided by the applicant, his witnesses and all those who signed the petition shows that there is no likelihood of Ubu engaging in an attack, within the defined meaning of that term, or otherwise acting in a manner which might justify the making of a declaration that Ubu is a dangerous dog.
The respondent, through the evidence of another of the respondent's rangers, Mr Mark Liddington, endeavoured to demonstrate that the applicant's gate and fencing is inadequate to contain Ubu within the applicant's property. Photographic evidence, and the evidence of the applicant, establishes that the fence and gate are effective for that purpose. Mr Liddington was concerned that the fence was inadequate because it comprises of wire approximately 20 centimetres apart above what he described as a low retaining wall and also because bush screening had been installed behind only part of the fence to the right of the gate. The applicant explained that the bush screening had been installed by him only to prevent a smaller visiting dog from escaping from the property. It is no longer serving any useful purpose. The applicant testified that Ubu cannot fit between the wire strands. Further, the applicant's property is sunken below street level which would make it very difficult to try and jump through the wire fencing. The applicant stated that he had never seen Ubu attempt to do so. The fact that Ubu has not been sighted out in the street, except on the one occasion discussed above, supports a conclusion that the gate and fencing are more than adequate to contain Ubu within the applicant's property. But, even if it were possible for Ubu to escape from the property, taking into account the totality of the evidence, I do not consider that Ubu constitutes any risk to any person for the reasons given.

Conclusion and order

For the above reasons, the decision under review and the notice declaring Ubu a dangerous dog should be set aside and an order will issue in the following terms:
1.The decision of the respondent to declare the dog owned by the applicant, being a male staghound kelpie crossbreed named 'Ubu', City of Fremantle registration No 110008, to be a dangerous dog and the Notice making that declaration dated 5 October 2009 are set aside.

I certify that this and the preceding [56] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR C RAYMOND, SENIOR MEMBER