Goldstraw v Registrar, Domestic Animals Services & Ors (Administrative Review)

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

GOLDSTRAW v REGISTRAR, DOMESTIC ANIMALS SERVICES AND ORS (Administrative Review) [2016] ACAT 86

AT 7/2016 and AT 12/2016
Catchwords: ADMINISTRATIVE REVIEW – dangerous dog licence – whether the premises are secure, adequate and appropriate

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 68

Domestic Animals Act 2000 ss 14, 22, 25, 26, 49, 49A, 50, 62, 64, 65, 83, 119, 120

Subordinate
Legislation: Domestic Animals Regulations 2001 s 7, 23, sch 1

Cases cited:Clare and Gilbert Valleys Council v Crawford [2005] SADC 135
Drake v Minister for Immigration and Ethic Affairs (1979) 46 FLR 409
Re Greenham and Minister for Capital Territory (1979) 2 ALD 137
Robertson v Domestic Animal Services [unreported, 20 August 2009]
Sarlija v Registrar, Domestic Animal Services [2012] ACAT 57
Shi v Migration Agents Registration Authority (2008) 248 ALR 390

Tribunal: Senior Member W Corby

Date of Orders:  2 August 2016
Date of Reasons for Decision:         2 August 2016
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL       )  AT 7/2016

BETWEEN:
BRENDA GOLDSTRAW
Applicant

AND:
REGISTRAR, DOMESTIC ANIMAL SERVICES
Respondent

AND:
BRUCE JNANI
First Party Joined
AND:
AMANDA MITCHENER
Second Party Joined

TRIBUNAL: Senior Member W Corby

DATE:2 August 2016
ORDER

The Tribunal Orders that:

The respondent’s reviewable decision dated 24 December 2015 to issue a dangerous dog licence is set aside and a decision to refuse to approve the issue of a licence is substituted pursuant to section 68 of the ACT Civil and Administrative Tribunal Act 2008.

………………………………..
General President L Crebbin
for and on behalf of
Senior Member W Corby

AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 12/2016

BETWEEN:
BRENDA GOLDSTRAW
Applicant

AND:
REGISTRAR, DOMESTIC ANIMAL SERVICES
Respondent

AND:
AMANDA MITCHENER
First Party Joined
AND:
BRUCE JNANI
Second Party Joined

TRIBUNAL: Senior Member W Corby

DATE:2 August 2016
ORDER

The Tribunal Orders that:

The respondent’s reviewable decision dated 24 December 2015 to issue a dangerous dog licence is set aside and a decision to refuse to approve the issue of a licence is substituted pursuant to section 68 of the ACT Civil and Administrative Tribunal Act 2008.

………………………………..
General President L Crebbin
for and on behalf of
Senior Member W Corby

REASONS FOR DECISION

Brenda Goldstraw (applicant) and Amanda Mitchener, the 2^nd Party Joined (2PJ), have applied to the ACT Civil and Administrative Tribunal (ACAT) for review of the Registrar of Domestic Animal Services’ (respondent) decisions on 24 December 2015 (the reviewable decisions) to approve two dangerous dog licences pursuant to section 25(1)(a) of the Domestic Animals Act 2000 (DA Act). The licences were issued to Bruce Jnani, the 1^st Party Joined (1PJ) for his dogs ‘Ruby’ and ‘Max’ (the dogs).[1] The licences were issued with conditions.[2]
[1] There were two applications jointly heard. In AT 7/2016 Bruce Jnani is the first party joined and Amanda Mitchener is the second party joined. In AT 12/2016 the positions are reversed. For ease of reference in this decision Bruce Jnani is referred to as the 1st Party Joined and Amanda Mitchener as the 2nd Party Joined
[2] Section 26 of the DA Act
The decisions to approve the licences are reviewable by ACAT (section 118 of the DA Act and regulation 23 and schedule 1 item 6 of the Domestic Animals Regulations 2001 (DA Regs)).[3] There is no dispute that Ms Goldstraw and Ms Mitchener have the right to apply to ACAT for review of the decisions pursuant to section 120(b) of the DA Act.
[3] The Tribunal notes that Item 6 Column 3 of the DA Regs describes the reviewable decision as the decision to ‘issue dangerous dog licence on conditions’. Columns 2 refers to section 25(2) of the DA Act. Section 25(2) sets out the considerations relating to the decision to approve a dangerous dog licence. The issue of a licence on condition/s and the kind of conditions that may be included is dealt with in section 26 of the DA Act. In the Tribunal’s view the reference to section 25(2) in Schedule 1 of the DA Regs is incorrect. It should be a reference to section 25(1)(a) (and section 26) of the DA Act as it is these sections of the DA Act which relate to approval and issue of a dangerous dog licence on condition/s. Column 4 of Schedule 1 identifies the entity which must be sent a copy of the reviewable decision notice (section 119 of the DA Act) and who then has the right to apply to ACAT for review (section 120(a)). Section 120(b) of the DA Act gives the right to apply for review to ‘any other person whose interests are affected by the decision’
Ms Goldstraw’s and Ms Mitchener’s applications are in substance the same. Consequently in these reasons for decision, unless referring to some matter relating specifically to either Ms Goldstraw or Ms Mitchener, the term ‘applicants’ will be used to refer to them both. When referring to the ACAT member deciding the matter the term ‘Tribunal’ will be used.
The applicants seek orders that the reviewable decisions be set aside, and that the Tribunal substitutes the decision that Mr Jnani’s applications for dangerous dog licences be refused.[4]

Hearing

[4] Pursuant to section 68(3)(c)(i) of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) and the DA Act section 25(b)

The matter was heard on 9 and 10 June 2016. Ms Goldstraw and Ms Mitchener were self-represented. Mr Jnani attended the hearing and was represented by Ms Ward from the Animal Defender’s Office. Ms Katavic of counsel appeared for the respondent, instructed by Ms Storey from the ACT Government Solicitor’s Office and Ms Perks from the respondent’s office.
On the morning of 9 June 2016 and before the hearing commenced at ACAT, a view was conducted at the premises where the dogs are kept and where Mr Jnani, his partner and Mr Jnani’s 20 year old son, reside (the premises). The Tribunal and all parties and/or, their representative attended. Mr Jnani and the dogs were not present initially to enable those present to inspect the enclosure the dogs are kept in, the backyard of and inside the premises. Mr Jnani and the dogs returned to the premises for the last part of the view. Those present at the view, except for Mr Jnani, also viewed the driveway and side fence area of Ms Mitchener’s property which is across the road from the premises. Those present, except for Mr Jnani, also attended at and viewed from the outside, the backyard area and front door area of Ms Goldstraw’s residence.
In its consideration of this matter the Tribunal has taken into account the documents tendered as exhibits and the tribunal documents filed by the respondent, which are the documents that the respondent has identified as being relevant to the reviewable decision. These will be referred to by page number (e.g. T1). The Tribunal also took into account the observations made at the view, the documents filed in ACAT since the application was made and the submissions made by the parties at the hearing.
Ms Goldstraw, Ms Mitchener and Mr Jnani gave evidence. Other witness statements were tendered as exhibits and relied on by the parties, however only Mr Bullivant gave oral evidence. Mr Bullivant is a dog behavior specialist and gave evidence on behalf of the respondent.
Mr Bullivant inspected the premises on 6 May 2016 and provided a written statement. He also attended at the premises on 20 May 2016 to observe and provide some guidance to Mr Jnani in relation to his interaction with his dogs.

Background

Mr Jnani has two dogs, ‘Ruby’ and ‘Max’. Ruby and Max are Staffordshire Bull Terriers. Mr Jnani has been Ruby’s keeper since February 2014 when she was about five months old. Ruby is now about two years and nine months old. He got Max in June 2015 when Max was a pup. Max is now about thirteen months old. These are the first dogs Mr Jnani has owned.
Ruby was micro-chipped shortly after Mr Jnani bought her[5] and de-sexed on 6 November 2015.[6] On 19 November 2015 Max was neither micro-chipped nor de-sexed. Neither dog was registered as at 19 November 2015 because Mr Jnani was not aware of this requirement.[7]
[5] T76
[6] Exhibit 1PJ1 Attachment J
[7] Section 14 of the DA Act
Following incidents on 19 and 20 November 2015 Max and Ruby were seized by the respondent and impounded. Max was micro-chipped after he was seized and before being released to Mr Jnani on 24 December 2015. Max is scheduled to be de-sexed on 5 August 2016.[8] Mr Jnani gave evidence that he had planned to have Max de-sexed and micro-chipped before Christmas 2015, but the events that followed 19 November 2015 meant this did not occur.
[8] Exhibit 1PJ1 Attachment K
Shortly after he got Max in June 2015 Mr Jnani took him to ‘puppy training’. Ruby did not have training after she came into his care. He said she was ‘house trained’ when he got her. Neither the dogs nor Mr Jnani had attended any other dog training courses before 19 November 2015 and none since other than when Mr Bullivant attended on 20 May 2016.
Ruby and, from June 2015, Max resided together at the premises. In about August 2015 Mr Jnani constructed a purpose built steel framed and wire mesh dog enclosure (dog enclosure) that was attached to the back of the house at the premises. The dog enclosure had 1.8m high fences and a gate with a closing device. The dogs were kept in this dog enclosure when they were alone at the premises. The dog enclosure was intended to prevent the dogs from having access to, and digging up, the back yard.

Incidents on 19 and 20 November 2015

On 19 November 2015 and again on 20 November 2015 when Mr Jnani arrived home from work at about 3:30pm, he found both dogs outside at the front of the premises. On both occasions Mr Jnani returned the dogs inside. He could not work out how they got out of the dog enclosure or the premises. He concluded they had climbed the 1.8m wire fence and then somehow got out of the back yard.
When he found the dogs out the front again on 20 November 2015, he modified the dog enclosure by adding a slanted partial roof of metal mesh in an effort to prevent further escapes.
The Tribunal accepts that the dogs have not ‘escaped’ from the premises since 20 November 2015. When Mr Jnani found the dogs outside on 19 and 20 November 2015, he was not aware of any incident having occurred involving his dogs.

Incident on 19 November 2015 at Ms Mitchener’s property

There is considerable evidence to suggest that Ruby and Max entered and were in the back yard of Ms Mitchener’s property on 19 November 2015. Ms Mitchener’s house is across the road from the premises. Two dogs matching the description of Ruby and Max were seen by a woman and her daughter in the back yard of Ms Mitchener’s property at around 3:30 pm.[9] The dogs were behind a white picket fence and gate which runs between the house and the side fence. The gate and fence block access to the back yard of the Mitchener’s property. It is not clear how the dogs entered the back yard, but it seemed that they could not get out. Ms Spurr let the dogs out of the yard and her daughter took photos of the dogs.[10] The photo was included in a Canberra Times online article on 25 November 2015.[11] Mr Jnani gave evidence that the dogs in the picture appeared to be his dogs.
[9] Signed statement of Golanie Spurr, Exhibit 2PJ4
[10] Exhibit 2PJ3
[11] T71
Ms Mitchener’s dog, ‘Saphie’, a Pomeranian Chihuahua crossbreed, was found dead in the Mitchener’s back yard by Ms Spurr’s daughter shortly after the two dogs were released by Ms Spurr. Ms Spurr and her daughter had been caring for Saphie while Ms Mitchener and her family were away from Canberra.
After Saphie’s body was discovered, Ms Spurr sought assistance from another neighbour, Mr Hawke. Mr Hawke reported the incident to the respondent. Ms Spurr’s daughter took photos of Saphie’s body. Although Mr Hawke did not see the dogs that had been in the back yard, he did see Saphie’s body and helped bury her. Mr Hawke and Ms Spurr in their written statements both observed that there was blood around Saphie’s neck.[12]
[12] Exhibit 2PJ5 and Exhibit 2PJ6
The report about the incident[13] was investigated by the respondent’s officers, but no specific finding or action was taken. It seems that the respondent’s officers took the view that no positive identification could be made of the dogs which had been in the Mitchener’s back yard, and it was not possible to confirm that those dogs had attacked or injured/killed Saphie. The Tribunal accepts that both Ms Spurr and her daughter saw two dogs in the Mitchener’s back yard where, a short time later, Saphie was found dead. At the time Ms Spurr’s daughter took photos of the dogs that were in the back yard.[14] Neither Ms Spurr nor her daughter was asked to attend the pound whilst Max and Ruby were there to see if they could identify them as the dogs seen on 19 November.

Incident on 20 November 2015 at Ms Goldstraw’s property

[13] Respondent’s report No.57161

[14] Exhibit 2PJ3

Ms Goldstraw and her family live in a property about 1.1 km from the premises. On 20 November 2015 the applicant’s 20 year old daughter, Isabelle, was home. The front door was open but the wire mesh screen door was closed and locked. Isabelle heard barking in the back yard. When she investigated she could see two dogs in a communal driveway on the other side of the paling fence that encloses the Goldstraw’s back yard. Isabelle moved the family’s two Chihuahua dogs ‘Jiminy’ and ‘Flea’ from the back yard into the house. She locked their dog door so they could not get out of the house into the back yard.
It was a hot day so Isabelle took water to the two dogs she’d seen. The dogs were still outside in the communal driveway. Isabelle said that when she gave the dogs water they were a little wary but not aggressive towards her. Isabelle took photos with the intention of posting the photos on a ‘lost dog’ website.[15] She left the dogs in the communal driveway and went back inside. Her dogs were still inside. Isabelle then heard the dogs she had seen in the driveway (later confirmed to be Ruby and Max) force entry to the lounge room of the home by breaking through the screen mesh of the locked screen front door. Ruby grabbed Jiminy in her mouth. Isabelle tried to remove Jiminy but was bitten and sustained an injury to her hand. Ruby would not release Jiminy. Isabelle was then worried about Flea because Max was wandering around the lounge room. Isabelle secured Flea in another room. Ruby then left, with Jiminy still in her mouth, through the damaged front screen door. Max followed and both dogs ran off.
[15] T95
Isabelle made distressed telephone calls to the applicant and her partner about these events. The partner came home and found Jiminy’s body in a grassed area near the home. Isabelle required medical treatment, including surgery, for the injury to her hand. These events were very distressing for Isabelle, the applicant and her partner. The incident was immediately reported to the respondent and an investigation was commenced.

Events after 20 November 2015 & the reviewable decisions made 24 December 2015

On 24 November 2015 Mr Jnani saw dogs, which he believed to be his dogs, Ruby and Max, in photos and information appearing in social and online media reports about the incidents of 19 and 20 November 2015. He contacted the respondent. An officer from the respondent’s office spoke to Mr Jnani. Based on the information provided, Mr Jnani surrendered Ruby and Max to the respondent’s officer on 24 November 2015. At the same time the respondent’s officer served a seizure notice[16] for Ruby and Max and they were impounded.[17] The seizure notice did not specify which incident or incidents it related to.
[16] T48
[17] Sections 59 and 60 of the DA Act
In an internal email dated 24 November 2015 entitled ‘Dog attacks in Dunlop – UPDATE’, written before Ruby and Max were seized, the respondent noted that both incidents on 19 and 20 November 2015 would need to be fully investigated to determine whether the same dogs were involved and whether, in relation to either or both incidents, the dogs should be declared ‘dangerous dogs’ pursuant to section 22(2) of the DA Act. The need for the owners (in the case of ‘Saphie’ it would have needed to be the ‘carer’ as Ms Mitchener was not present on 19 November 2015) to identify the dogs involved was also noted. The need for identification was repeated after the dogs were seized on 26 November 2015[18] but as indicated above, neither Ms Spurr nor her daughter were asked to attend the pound to see if they recognized the dogs.
[18] T118
After Ruby and Max were seized, Mr Jnani made enquiries to establish where Ms Mitchener and Ms Goldstraw lived. He attended Ms Mitchener’s home and spoke to her and her husband on the evening of 24 November 2015. He attended the applicant’s home on 25 November 2015. He said he wanted to express his sympathy and apologise to them for what had happened to their dogs.
On 23 December 2015 Ruby and Max were declared dangerous dogs in relation to the incident on 20 November 2015.[19] The respondent found that the dogs had harassed or attacked a human and an animal. One of the respondent’s officers carried out an assessment of Mr Jnani’s premises on 23 December 2015.[20] On 24 December 2015 Mr Jnani applied for dangerous dog licences for Ruby and Max. The respondent approved the application[21] and issued two licences with conditions on 24 December 2015. Ruby and Max were released to Mr Jnani on 24 December 2015.
[19] Section 22(2) of the DA Act
[20] T103-107
[21] Under section 25
Before the dogs were released, Mr Jnani built a further ‘roofed enclosure’ (the roofed enclosure) constructed of metal tubing and wire mesh. It has wire mesh sides, ‘roof’ and floor. It has a spring loaded self closing (but not self latching) gate and a closing device that can be secured and has a chain and bolt so that the gate can be locked closed. The dimension of the roofed enclosure is 3m x 3m and it sits on a concrete/tiled area outside the back of the premises. This roofed enclosure sits inside an outer wire mesh enclosure (the outer wire enclosure) which is attached to the house and encloses the area and precludes access to the back and front yards of the premises. The wire mesh fence, which blocks the outer wire enclosure from the back and front yard, is roof height. This outer wire mesh enclosure is accessed, as is then the roofed enclosure, through the laundry door of the house.
In a letter to Ms Mitchener dated 13 January 2016[22] the respondent wrote that on 23 December 2015 the respondent had decided to declare the dogs “believed to have been involved in the attack at your premises”, namely Ruby and Max, as ‘dangerous’ and to release them to Mr Jnani.
[22] Exhibit 2PJ7
On 17 February 2016 the respondent issued two infringement notices to Mr Jnani pursuant to section 49A(2) of the DA Act in relation to the incident on 20 November 2015.[23] The infringement notices were for the strict liability offence of being the keeper of a dog that had attacked or harassed a human or animal.[24]

Review by the Tribunal

[23] T45

[24] Ruby – infringement No.12492 and Max – infringement No.14291

The Tribunal may confirm, set aside or vary the reviewable decisions.[25] The reviewable decisions are the decisions to issue two dangerous dog licences to Mr Jnani on conditions. The relevant sections of the DA Act say:
[25] Section 68 of the ACAT Act
25 Dangerous dog licences—approval or refusal
(1)     If an application for a dangerous dog licence is made under section 24, the registrar must, by written notice to the applicant—
(a)     approve the issue of a licence; or
(b)     refuse to approve the issue of a licence.
(2)   In making a decision under this section, the registrar must consider the following:
(a)       the size and nature of the premises where the applicant intends to keep the dog;
(b)       the security of the premises;
(c)       the suitability of facilities for keeping the dog on the premises;
(d)       the potential impact on the occupiers of neighbouring premises;
(e)       any conviction or finding of guilty of the applicant within the last 10 years for an offence against a law of a Territory or State relating to the welfare, keeping or control of an animal;
(f)       the likelihood of harm being caused to any member of the public or an animal.
(3)   The registrar may approve the application only if the dog has been identified by implanted microchip.
(4)           Also, if the application is made after the dog was seized under division 2.7 (Seizing dogs and dealing with them) and the dog is declared to be a dangerous dog after it was seized, the registrar may approve the application only if section 62 (3), section 63 (3) or section 64 (3) applies to the offence for which the dog was seized.
(5) Subsection (2) does not limit the matters the registrar may consider.
26 Dangerous dog licences—conditions
(1) The registrar may issue a dangerous dog licence on conditions stated in the licence.
(2) The conditions may include the following:
(a)     the confining of the dog to the premises where the dog is kept under the licence;
(b)     the dog leaving the premises;
(c)     requiring the keeper and dog to complete an approved course in behavioural or socialisation training for the dog.

The Tribunal may exercise any function given to the respondent for making the reviewable decisions. The Tribunal must consider all of the matters identified in section 25(2) of the DA Act and may take other relevant matters into account. The Tribunal must consider whether the dogs are micro-chipped[26] and whether section 25(4) applies. The Tribunal is not limited to the information that was available to the original decision maker and can take into account additional information. The Tribunal must decide whether the correct or preferable decision is to approve or to refuse Mr Jnani’s applications for dangerous dog licences[27], and if to approve then on what, if any, conditions.[28]
[26] Section 25(3)
[27] Section 25(1)
[28] Section 26
The Tribunal’s role is to review the decisions made, not the reasons given for the decisions, nor the manner in which the decisions were made. The Tribunal must come to its own decision based on the information before it.[29] In the context of the current applications, except insofar as they relate to the reviewable decisions, the Tribunal is not concerned with the respondent’s decisions to declare Ruby and Max to be dangerous dogs, nor the respondent’s decisions to issue infringement notices.

Applicant’s submission

[29] The principles are well established in relation to the Commonwealth AAT and apply equally to this tribunal. They are described in many cases including Re Greenham and Minister for Capital Territory (1979) 2 ALD 137; Drake v Minister for Immigration and Ethic Affairs (1979) 46 FLR 409, Shi v Migration Agents Registration Authority (2008) 248 ALR 390

The applicants’ submissions are summarised in the submissions of the applicant and 2PJ.[30] The applicants assert that the premises are not secure and that the premises and facilities are not adequate or appropriate to accommodate the dogs. The applicants assert that the inspection of the fences by the respondent on 23 December 2015 confirmed that the perimeter and side fences in the back yard need to be replaced and are not ‘escape proof’. The fences have not been replaced and there is no evidence that either the permission of Mr Jnani’s lessor, or agreement with the adjoining neighbours, has been obtained for this work to start.[31]
[30] Exhibit 2PJ2
[31] Exhibit 2PJ2 at [11]
The applicants submit that because Mr Jnani is a tenant, he may move and take the dogs with him. The applicants submit that any approved and secure method of keeping the dogs in the current premises may not be guaranteed to be adopted if Mr Jnani moved and consequently other neighbourhoods and other members of the public and animals may then be at risk of attack or harassment.
Ms Mitchener submits that the knowledge that the dogs live across the road and that she has heard them barking when she has arrived home with her three year old child has caused her to feel fearful. Ms Goldstraw submits that the knowledge that the dogs are kept at premises in the same suburb causes her family, and in particular her daughter, anxiety - they worry that they may come across the dogs or see the dogs when they are being walked in the area near their home.
The applicants submit that the size of the roofed enclosure is too small for two dogs and that the conditions attached to the licences require that an enclosure should be 8m²in relation to each licence and therefore each dog.[32] The current ‘roofed enclosure’ is 9m²and therefore too small. In relation to the area where the dogs are kept and the provision of bedding, the applicants submit that it is neither hygienic nor appropriate to ensure the dogs’ well being.
[32] T109 and T111
The applicants assert that the issue of the infringement notices on 17 February 2016 is relevant to the consideration of section 25(2)(e) of the DA Act. The applicants also assert that it is relevant that, before 19 November 2015, Mr Jnani failed to meet other obligations of a dog owner under the DA Act, including failing to register the dogs[33], have Max desexed[34]; being without a carer in public[35]; keeping dogs without prescribed identification.[36]
[33] Section 14(1)(a)
[34] Section 74(2)
[35] Section 44(3) and on private premises, section 45(5)
[36] Section 83(1)
The applicants submit that Mr Jnani’s reason for failing to pay the infringement notices issued by the respondent on 17 February 2016 until the outcome of the review by the Tribunal is relevant to section 25(4) of the DA Act.
The applicants alert the Tribunal to factual errors which the applicants say were referred to or relied on by the respondent. Given the emotional impact, for all involved, of the incidents on 19 and 20 November 2015, the Tribunal can understand that the applicants feel frustrated and dissatisfied with the process of the investigation undertaken by the respondent. However, the Tribunal must now consider the relevant information available to it, make findings of fact based on that information and make a decision based on those findings. Any irregularity or inadequacy in the process adopted by the original decision-maker is not directly relevant to that task.
The applicants assert that the Tribunal should not give weight to Mr Bullivant’s statement[37] or evidence for the following reasons. Mr Bullivant did not adequately assess nor investigate the dogs’ behaviour or capacity; for example their capacity to jump/climb. Mr Bullivant misstated the size of the roofed enclosure as 6m x 6m instead of the actual 3m x 3m. Mr Bullivant is an experienced dog trainer and his demeanour and experience would have had a modifying effect on Ruby’s and Max’s behavior in his presence so that he could not make an assessment of what they would do in other circumstances. Also, he did not assess Ruby and Max together, so could not make an assessment of them as a ‘pack’. Further, Mr Bullivant’s assessment is made in May 2016, some time after the respondent’s decision to approve the dangerous dog licences on 24 December 2015, and merely supports without adequately considering whether that was the correct decision.
[37] Exhibit R1
The applicant’s assert that section 25 of the DA Act refers to ‘an’ application for ‘a’ dangerous dog licence, therefore Mr Jnani cannot apply for, and the respondent cannot approve the issue of more than one licence for him.

Respondent’s submissions

The respondent submits[38] that the reviewable decisions to approve the licences should be confirmed, but with the variation that the following additional conditions should be included:
(a)a self closing/locking latch be attached to the gate of the roofed enclosure where Ruby and Max are kept;
(b)a latch be attached to the dog door between the house and the outer wire enclosure where the dogs are kept so that the dog door can be secured shut restricting the dogs’ access between the outer wire enclosure and the house; and
(c)the ‘Warning – Dangerous Dog’ sign (currently attached at a position on the Colorbond fence at the top of the driveway at the front of the premises) be relocated to a higher position on the Colorbond fence and in a position to the right of the Colorbond gate at the front of the premises.
[38] Exhibit R3 - The respondent’s facts and contentions dated 24 May 2016 were amended at the time they were tendered to substitute the name ‘Gascoyne’ with the name ‘Mitchell’ in paragraph 24(a) and to delete paragraph 28 which asserts the infringement notices issued to Mr Jnani were paid
The respondent submits that in relation to the size, suitability and security of the premises and facilities for the dogs[39] the following facts are relevant.[40] The roofed enclosure is secure; the outer wire enclosure adds to this security; security cameras installed by Mr Jnani enable him to view and monitor the dogs in the roofed and outer enclosure remotely; the perimeter fences meet security requirements. The roofed enclosure, facilities and the premises are adequate and appropriate to accommodate the dogs.
[39] Considerations section 25(2)(a)-(c) of the DA Act
[40] Exhibit R3 at [24]
In relation to the impact on neighbours and the likelihood of harm to a person or animal[41] the respondent submits that the following facts are relevant. The security of the premises and requirements of the conditions, and additional proposed conditions, of the licences; the fact that there was no incident involving Max or Ruby before 19 November 2015 and no further incident since 20 November 2015 and in particular since their release on 24 December 2015. There is no history of Ruby or Max behaving aggressively towards people before the incident on 20 November 2015. Isabelle Goldstraw observed that neither Max nor Ruby acted aggressively towards her when she approached them in the driveway near her house and before they entered her property on 20 November 2015. Mr Bullivant, the respondent’s expert, concluded that both dogs behaved reasonably well, although they would benefit from obedience training and did not really listen to Mr Jnani.[42]
[41] Considerations section 25(2)(d) and (f)
[42] Exhibit R1
The respondent submits that section 25(2)(e) of the DA Act does not apply. Ruby and Max are now both micro-chipped as required by section 25(3) of the DA Act.
The respondent submits that section 25(4) of the DA Act does not apply because more than 28 days elapsed after Max and Ruby were seized on 24 November 2015 and before any infringement notices were issued on 17 February 2016. However, the respondent does not dispute that the infringement notices dated 17 February 2016[43] were issued to Mr Jnani pursuant to section 49(2) of the DA Act in relation to the incidents on 20 November 2015 involving Ruby and Max and that these have not been paid. The respondent did not dispute that this is a factor that may be relevant to the Tribunal’s consideration of this matter pursuant to section 25(5) of the DA Act.
[43] T45
The respondent submits that the reference in section 25(1) to ‘a’ dog licence does not prevent an applicant from applying for more than one licence. Other parts of the DA Act (Division 2.2) deal with keeping more than three dogs. The DA Act does not specifically exclude a person being approved for more than one licence and for a person with an appropriate licence for each dog, to keep more than one dangerous dog.

The Legislation

The DA Act contains many provisions concerned with the important purpose of protection of the public and animals. A dog may be declared to be dangerous dog if it has attacked or harassed a person or animal. The DA Act affords a person the right to apply for a licence to keep a dangerous dog. The licence applicant has the right to have the application fairly considered pursuant to the terms of the legislation. However the DA Act does not provide a right to have a licence application approved. If approved, a licence imposes responsibilities and obligations on the licensee that address the circumstances in which a dangerous dog may be kept. Only if the decision maker is satisfied that an applicant has the capacity, competence and willingness to meet those responsibilities and obligations, and can keep the dog in an environment that is both sufficiently secure and is appropriate for the health and wellbeing of the dog, should the decision maker be satisfied that it is appropriate to approve the issue of a licence.
The Tribunal accepts that, before he knew about the incidents on 19 and 20 November 2015, Mr Jnani took prompt action to address what he thought was a ‘security’ issue by adding a partial ‘wire roof’ extension to the dog enclosure.
When Mr Jnani became aware on 24 November 2015 that Ruby and Max might have been responsible for the incidents on 19 and 20 November 2015, he immediately contacted the respondent and surrendered the dogs.
Mr Jnani sought out and spoke to Ms Mitchener and Ms Goldstraw to apologise and express sympathy for their loss. He co-operated with the respondent’s officers and expressed a willingness to comply with any requirement placed on him in relation to the release of the dogs.
Mr Jnani has not paid the infringement notices dated 17 February 2016[44] issued pursuant to section 49(2) of the DA Act for the incidents on 20 November 2015. In the Tribunal’s view, notwithstanding that section 25(4) of the DA Act does not apply, this is a relevant consideration pursuant to section 25(5) of the DA Act. The incident on 20 November 2015 resulted in Ruby and Max being seized initially[45] and later declared dangerous dogs.[46] When the reviewable decision was made and the dogs released on 24 December 2015, the investigation of the 20 November 2015 incident was, apparently, not finished. That investigation lead to the issue of the infringement notices. Section 49(2) of the DA Act is a strict liability offence.
[44] T45 - however a better copy of these is at Exhibit 1PJ1 Attachment E
[45] Section 59 of the DA Act
[46] Section 22(2) of the DA Act
At the hearing Mr Jnani seemed to suggest that he had some doubts about whether the infringement notice should have been issued in relation to Max and said that he was waiting on the outcome of this application before considering his options in relation to the infringement notices. The Tribunal does not accept this explanation. Neither infringement notice has been paid.
If a dangerous dog licence is issued and a dangerous dog is released to the holder of the licence, the Tribunal is not aware of any provision of the DA Act that operates so that the subsequent issue of an infringement notice has any immediate impact on the ongoing validity of the dangerous dog licence. However where the Tribunal is undertaking a ‘de novo’ review of the decision to approve a dangerous dog licence, the Tribunal can consider the information before it. Notwithstanding that section 25(4) does not now operate[47], and did not operate when the reviewable decision was made, to preclude approval of the dangerous dog licence, the fact that the infringement notices relating to the incidents on 20 November 2015 were issued and remain unpaid is, in the Tribunal’s view, a relevant matter.[48] Had the infringement notices been issued within the 28 day period after seizure of the dogs and had they remained unpaid, the reviewable decisions to approve the dangerous dog licences could not have been made by the respondent (or the Tribunal).[49]
[47] Due to the 28 day period in section 64(3)
[48] Section 25(5) of the DA Act
[49] Section 25(4) of the DA Act
Mr Jnani’s appreciation and understanding of his responsibility as a keeper of dangerous dogs is a vital component of his eligibility to hold a dangerous dog licence. Mr Jnani has not challenged the dangerous dog declarations or the infringement notices, nonetheless he appeared to express an ongoing sense that these decisions are in some way inappropriate, at least in relation to Max. In the Tribunal’s view this indicates that Mr Jnani may not fully appreciate or acknowledge the serious nature of the incidents that occurred on 20 November 2015.[50] This may be reflected in his diligence in supervising and controlling his dogs in the future because he does not appreciate the risk that they pose to people and animals.
[50] As the infringement notices do not rely on the incidents on 19 November 2015, which do not appear to have been the subject of any specific further action, beyond initial investigation, by the respondent
On 23 December 2015 the fencing at the premises was inspected by the respondent’s officer.[51] The side and back fencing needs to be replaced to make ‘the whole yard escape proof’. This work has not been done.
[51] T103-104
Ruby and Max were not registered until after they were seized on 24 November 2015. The respondent’s efforts to identify and locate the dogs involved in the incidents on 19 and 20 November 2015 were hampered because the dogs were not registered. Had they been, then they may have been identified on 19 November 2015 and the attack on 20 November 2015 may have been avoided or in any event the dogs may have been identified more quickly.[52] Mr Jnani says he had not understood his obligation to register the dogs. By November 2015 Ruby had lived with Mr Jnani for nearly two years and Max for over five months.
[52] T116 – search of respondent’s database did not identify dogs
At the premises on 24 November 2015 when the dogs were seized, Mr Jnani stated he believed they were his dogs that the respondent was looking for in relation to the attacks on 19 November 2015[53] and 20 November 2015.[54]

Incident on 19 November 2015

[53] Respondent’s incident No. 57161

[54] Respondent’s incident No 15167

Saphie was found dead in the back yard of the premises where she lived on 19 November 2015. Saphie’s body was buried before the respondent’s officer arrived to investigate the incident on the evening of 19 November 2015. The Tribunal accepts that the decision to bury Saphie was made because it was a hot day, there were flies about and, although the matter had been reported to the respondent, it was unclear what time the respondent’s officer would arrive in response to the report. The respondent’s officer did not view Saphie’s body and there was no direct evidence of an attack on her, however three people (Ms Spurr, her daughter and Mr Hawke) saw Saphie’s body. Two people (Ms Spurr and her daughter) saw two dogs matching the description of Ruby and Max in the back yard and provided the respondent’s officer with photos of Saphie’s body and the two dogs that Ms Spurr let out of the Mitchener’s back yard.
Based on the available evidence it seems likely that the fence was intact and gate was shut restricting access to the Mitchener’s back yard prior to the dogs being found there by Ms Spurr and her daughter. Ms Spurr had to open the gate to let the dogs out. The Tribunal finds that it is likely that the dogs entered the back yard by scaling or jumping the fence.
Mr Jnani confirms that his dogs were waiting at the front of his premises when he arrived home from work ‘about 3:30 pm’ on 19 November 2015.[55] Given the timing of the events at Ms Mitchener’s house and based on Mr Jnani’s recollection of when he arrived home on 19 November 2015, it is clear that Ruby and Max were ‘in the area’ and outside the premises at about this time.
[55] Exhibit 1PJ1 at [9]
There is no evidence that either Ms Spurr or her daughter were asked by the respondent to attend the pound when Ruby and Max were being held between 24 November and 24 December 2015.[56] Ms Spurr or her daughter may have been able to confirm whether or not Ruby and Max were the dogs they had seen on 19 November 2015. This may have been relevant to the further investigation of the incident on 19 November 2015. Given the timing and the information available about the events on 19 November 2015, and the incidents on 20 November 2015, it is surprising that the respondent does not appear to have made further detailed inquiries into the incident on 19 November 2015 to determine if Ruby and Max were involved.
[56] In an email between the respondent’s officers on 26 November 2015 (T75) it was suggested that Ms Spurr was reluctant to attend to view the dogs for the purpose of identification, however Ms Mitchener submits that Ms Spurr was not specifically asked to attend nor did she refuse to do so
Mr Jnani gave evidence that it was likely that the dogs depicted in a Canberra Times on-line article photo[57] were his dogs and he agreed that this photo was the same as, or very similar to, the one taken by Ms Spurr’s daughter on 19 November 2015.[58] Mr Jnani agrees that Ruby and Max found their way out of their enclosure and the premises on 19 November 2015.
[57] Exhibit 1PJ3 page 43
[58] Exhibit 2PJ3
The Tribunal finds, on balance, that the dogs released from Ms Mitchener’s backyard on 19 November 2015 were Ruby and Max. It is likely that they attacked Saphie. Whilst the Tribunal accepts that this finding would not necessarily support a prosecution or the issue of an infringement notice, it is relevant to consideration of Mr Jnani’s application for a dangerous dog licence.

Previous behaviour of dogs

The previous behavior of dogs is relevant when considering the likelihood of harm being caused to a member of the public or an animal.[59] The Tribunal has found it is likely that Ruby and Max entered the Mitchener’s back yard and it is not disputed that they forcibly entered the applicant’s home. These matters are relevant to the consideration of section 25(2)(d) and (f) of the DA Act.
[59] DA Act section 25(2)(f)
A pet owner is required to secure their animal; they are not required to do so in a way that excludes the possibility of another person’s animal entering their property.[60] Each keeper/carer is responsible for the animal in their care. Although Mr Jnani does not know how it happened, he does not dispute that Ruby and Max left the premises and were ‘at large’ for some period before he arrived home on 19 and 20 November 2015.
[60] Unless the keeper of a dangerous dog
The undisputed events on 20 November 2015 included Max and Ruby entering the applicant’s home by breaking through a locked screen door; then attacking Jiminy inside the property resulting in his death, harassment of Flea and injury to Isabelle Goldstraw when she attempted to intervene to save Jiminy.
There is no dispute that Ruby and Max found their way out of the premises where they were kept on 19 and 20 November 2015. The Tribunal accepts that prior to 24 November 2015, when he contacted the respondent, Mr Jnani was not aware of any incident involving his dogs being reported to the respondent.
Mr Jnani gave evidence that prior to 20 November 2015 if Ruby and Max were home alone they were kept in the purpose built wire fenced dog enclosure attached to the back of the house. Mr Jnani had installed this enclosure which he believed was secure. It had 1.8m fencing and a gate with a handle that could be secured shut. Mr Jnani gave evidence, and there is no contrary evidence, that Ruby and Max had never left the premises unsupervised before 19 November 2015. There is a dog door into the house from the area where this enclosure was located (and is now the ‘outer wire enclosure’). There is no latch or lock on the dog door. There is no evidence as to when this dog door was installed. It was not mentioned in the respondent’s report of the inspection of the premises on 23 December 2015[61] nor by Mr Bullivant in his report.[62] The dog door was noted at the view on 9 June 2016. The respondent has submitted that if the licences are approved by the Tribunal, the licences should include a condition that a latch/lock be attached to the dog door so that it can be secured shut.
[61] T103-107
[62] Exhibit R1
The Tribunal accepts that when Mr Jnani found Max and Ruby again at the front of the premises on 20 November 2015, he took immediate steps to purchase further fencing materials and built a metal ‘roof-type’ addition to the dog enclosure.[63] Mr Jnani said that he had been unable to determine how the dogs escaped on 19 and 20 November 2015. Having inspected the premises, the Tribunal assumes that either a gate/door from the premises was left open and or Ruby and Max made their way into the back yard from the dog enclosure or through the house and ‘escaped’ through or over one of the rear or side perimeter fences at the premises.
[63] T77-78
The Tribunal is satisfied that:
(a)Max and Ruby were away from the premises and unsupervised for periods on 19 and 20 November 2015;
(b)notwithstanding that Ruby had undergone and was still recovering from surgery (to desex her) on 6 November 2015,[64] she found her way out of the premises. At the applicant’s property, approximately 1.1 km from the premises, Ruby and or Max broke through a screen door, Ruby attacked and killed and ran away with Jiminy in her mouth;
(c)Ruby and Max are a breed that Mr Bullivant described as being ‘determined’ and Mr Bullivant’s evidence suggests the dogs demonstrate this trait;
(d)Max broke through or followed Ruby into the applicant’s home through the broken screen door and did not leave until Ruby left carrying Jiminy;
(e)Max is bigger and younger than Ruby;
(f)Mr Bullivant gave evidence that dogs like Ruby and Max can “run, jump and then climb” over structures, such as fences;
(g)The picket fence that separates the front from the backyard of the Mitchener’s property where Saphie lived is about 108cm high at its lowest point and near to a step.[65] The ground level is higher at the front of the property and slopes down from the front to the back of the property. The Tribunal is satisfied that Ruby and Max could have entered the Mitchener’s back yard even though the picket fence and gate were secure. The Tribunal is satisfied that the dogs that were observed by Ms Spurr and her daughter in the Mitchener’s back yard on 19 November 2015 were Ruby and Max and, although they had probably managed to enter the back yard over the closed gate and fence, because of the slope in the land they may not have been able to leave by scaling the fence. This may explain why they were still in the Mitchener’s back yard when Ms Spurr and her daughter let the dogs out.
(h)Ruby and Max were in the Mitchener’s back yard minutes before Saphie’s body was found with blood around her neck. The Tribunal considers it likely that Ruby and or Max killed Saphie and that these events on 19 November 2015 and the events on 20 November 2015 are relevant to the matters the Tribunal must consider, in particular section 25(b),(d), (f) of the DA Act; and is a relevant matter in relation to section 25(5) of the DA Act.

Consideration of application for dangerous dog licence

[64] Exhibit 1PJ2 Annexure J

[65] This Tribunal measured these heights and distances at the view on 9 June 2016 in the presence of the other people present who agreed with the figures recorded by the Tribunal. There is a gap between the fence and a front step of approximately 100cm and the step is approximately 34 cm high

The Tribunal accepts the respondent’s submission that the matters which the Tribunal must consider pursuant to section 25(2) of the DA Act are not ‘weighted’. Unlike section 25(3) and (4) of the DA Act, section 25(2) of the DA Act does not direct the decision maker as to the action it may take or conclusion it must reach in relation to the those considerations. Assuming section 25(3) and (4) of the DA Act do not prevent the decision maker from approving a licence, the decision maker after considering the matters in section 25(2) and any other relevant matter must determine whether to approve or refuse the application for a licence.
The parties agreed and the Tribunal accepts, that the decision in Sarlijav Registrar, Domestic Animals Services [2012] ACAT 57 (Sarlija) provides a valuable guide to the exercise of the discretion and the decision to be made pursuant to section 25 of the DA Act. Sarlija also provides a useful review of the relevant authorities.
Fundamental to the Tribunal’s consideration must be whether there is an appreciable or substantial risk of harm to people doing reasonable things in ordinary circumstance.[66]

Section 25(2)(a) of the DA Act: the size and nature of premises where the applicant intends to keep the dogs

[66] Sarlija at [55] and [56] and referring to the decision of Clare and Gilbert Valleys Council v Crawford [2005] SADC 135

The Tribunal is satisfied that, despite the applicants’ concerns, the size and nature of the premises are adequate and that the dogs’ comfort, health and well being needs are adequately met.
On 6 May 2016 Mr Bullivant, the respondent’s expert, inspected the premises and the facilities to house and secure Ruby and Max. He concludes that the area to ‘secure’ the dogs is appropriate in size and nature.
Mr Jnani has constructed a tubular metal framed enclosure with heavy mesh wall and roof 3m x 3m. There is a spring loaded gate which can then be secured by a closing device and is chained and padlocked when the dogs are in it. This ‘roofed enclosure’ is inside an outer wire enclosure that is separated from the back yard by a roof height chain wire fence.
The area of the roofed and outer wire enclosures has a cement/tiled floor and is under cover. The roofed enclosure has a sleeping box that is raised off the ground, is enclosed and large enough to accommodate both dogs. It is made of a specialized refrigeration type material that helps to moderates temperature and is weatherproof. Although there is no bedding in the box, the Tribunal accepts that the dogs have quickly destroyed any bedding that has been provided. The dogs get on well and sleep together and are comfortable. The dogs are not confined to the enclosure when either Mr Jnani, his partner or Mr Jnani’s 20 year old son is home. The dogs are then permitted free access to the house. There is a dog door between the outer enclosure area and the house. The dogs sleep in Mr Jnani’s bedroom at night.

Section 25(2)(b): The security of the premises

The Tribunal is not satisfied that the premises are secure.
The upper level, main living area of the house is an open plan kitchen, dining and lounge area. The kitchen dining area is at the back of the house and adjacent to the dog enclosures and is on the same level as the back yard. The dog enclosure consists of an outer, wire mesh enclosure that separates this area from the back yard. Within the outer enclosure is a ‘roofed’ wire mesh enclosure which can be secured. The dog door is between the outer enclosure and the kitchen/dining area. The dogs’ outer enclosure area can also be accessed through the laundry. There are doorways between the open living area, the laundry and the bedrooms of the house. There is then a further door from the laundry to the dog enclosure area.
The main front door of the house opens into the lounge-room off a patio. Stairs from the driveway at the front of the house provide access to the patio. The front yard and driveway are not fenced and provide immediate access to the street. The stairs to the patio open to the street. There are several exits at the front of the house. The main front door has a wire mesh security screen door that can be locked. The property is ‘split level’ and the back yard is much higher than the front yard. At the front of the house there is a lower level which has a rumpus room that faces the street. The rumpus room has an external sliding glass and security door which open to the driveway. There are stairs from the living/kitchen area of the house down to the rumpus room. There is no doorway between the stairs and the rumpus room so it is freely accessed from the upstairs, open plan living area of the house.
There is a door between the rumpus room and the adjacent, double roller-doored garage at the top of the driveway and that also faces the street. Mr Jnani parks his car in the garage. There is only one ‘remote’ for the roller doors, which he has and uses. The door between the garage and the rumpus room is not ‘self closing’. This door is freely accessed via the stairs in the house.
There is a back door between the dining/kitchen area of the house and the back yard. This door has a sliding glass and a wire mesh security screen door. These doors are not self-closing.
There is a sliding window from the lounge room which opens to the patio at the front of the house. There is a lounge chair under the front window. The window is about 73cm above the height of the floor in the lounge-room and about 93cm above the patio floor on the outside of the window. There are several sliding windows at the back of the house which open onto the back yard. All of the windows are about the same height (approx. 73cm) as the loungeroom window above the kitchen floor. All have fixed fly screens, but they are not security screens.
The backyard perimeter fence inspection undertaken by one of the respondent’s officers on 23 December 2015[67] confirmed that the back fences were to be “replaced over time making the whole yard escape proof” and recommending “releasing dogs back to owner”. Clearly the respondent’s officer’s view was that, when inspected, the fences were not secure and needed replacement. At the view undertaken on 9 June 2016 it was apparent the fences have not been replaced. Mr Jnani has provided evidence that he has obtained a quote for the cost to have this work carried out.[68]
[67] T104-105
[68] Exhibit 2PJ1 Annexure G
At the hearing the respondent submitted that if the licence is approved, the Tribunal should include in the conditions pursuant to section 26 of the DA Act that:
(a)the gate to the roofed enclosure be fitted with a ‘self closing latch’ that secures the gate. The current arrangement requires someone to manipulate a ‘rod/closing device’ in order to ‘shut’ the gate. The applicants agreed that this amendment to the conditions should be made if the licence is approved; and
(b)the dog door between the house and the outer enclosure should be fitted with a lock/latch so that it can be secured shut. This would mean that the dogs could then be contained within the outer wire enclosure even if they were not in the more secure roofed enclosure. The applicants submitted that the dog door should be removed to increase control over the dogs’ access to the house.
The Tribunal is not satisfied that the premises are secure. If the dogs were able to enter the back yard, the fences are not secure to prevent the dogs getting out. There are a number of ways in which the dogs could leave the premises through the front doors, via the garage or if an access door or window was not closed. The dogs have demonstrated that they could, if they wanted to, break through a fly screened window.
Mr Jnani gave evidence that when either he, his partner or his son is home, the dogs are allowed free access to the house. In other words, there are times when the dogs will have access to the house (and perhaps back yard) when Mr Jnani is not home. No evidence was given by either Mr Jnani’s partner or Mr Jnani’s son. Even if the Tribunal accepts that when Mr Jnani is present the dogs will be appropriately supervised and proper measures taken to ensure the dogs are secured within the house from the front or back yard, the Tribunal is unable to make this assessment about what happens in his absence.
Mr Jnani has installed a security camera outside the house so that he can monitor the dogs’ enclosures (both outer and roofed enclosures), via his phone. That is of no assistance if the dogs are out of the enclosure, for example if someone else is home. Whilst the installation of the security camera would enable Mr Jnani to take action if the dogs escaped and minimize the time that they are ‘at large’, it does not reduce the risk they pose if they did escape.
Mr Bullivant observed that Ruby and Max did not ‘listen to’ Mr Jnani’s instructions. Mr Bullivant did not express any opinion about the dogs’ interactions with Mr Jnani’s partner, who was apparently present when Mr Bullivant returned to the premises on 20 May 2016. Mr Bullivant did not see the dogs with Mr Jnani’s son.
There is currently no locking device to secure the dog door between the outer wire mesh enclosure and the house so that, when the dogs are not secure in the roofed enclosure, they have free access to the house. The Tribunal accepts that if the licences were approved, a locking device must be added to the dog door to restrict access by the dogs to the house. Based on the available evidence the Tribunal is satisfied that, provided someone is home and the dogs are supervised, the outer wire mesh enclosure is probably adequate to secure the dogs for short periods.
There are a number of points from which the dogs could access the backyard. Once there, Mr Bullivant considers the dogs could exit from the property at points where the perimeter fencing is effectively approximately 1.1m high. He said that these dogs are of a determined breed that, having once ‘escaped’, may endeavor to do so again. At the view on 9 June 2016 it was apparent that there are many places where either the height or condition of fences, or the positioning of pots etc near to fences would provide opportunities for the dogs to escape the back yard at the premises.
Mr Jnani is a tenant at the property and is not able, directly, to take any action in relation to the replacement of the backyard fencing. At the hearing Mr Jnani’s representative advised that the property backs on to four neighbouring properties. Although Mr Jnani has obtained a quote in respect of the cost of perimeter fencing replacement, there is no evidence from the lessor of the premises, nor any of the neighbours of adjoining properties. The Tribunal cannot be satisfied that this fencing work will be done, let alone that it is imminent. If the dogs are in the back yard they are not secured.
The Tribunal is required to make its decision based on the current, not the anticipated condition of the premises.[69] Indeed, the licences issued on 24 December 2015 required that the premises have secure perimeter fencing.[70]
[69] Sarlija at [32]
[70] T109 and T111 Condition 3
In order to ensure that the access points to the front and back yard are secure, every person living at or visiting the premises would need to be vigilant to ensure that the points of exit from the house are secured at all times when the dogs are not in the roofed enclosure, or in the outer enclosure if the dog door is secured. Mr Jnani gave evidence that the dogs are kept in the roofed enclosure unless he, his partner or his son is home. As neither Mr Jnani’s partner nor his son gave evidence, the Tribunal cannot be satisfied that they either appreciate or are willing to exercise the vigilance or supervision required to keep the dogs from entering the front or back yard.
Even if the Tribunal were satisfied that Mr Jnani is capable of exercising this degree of supervision and that a satisfactory response to this concern is to impose a condition that the dogs remain in the roofed enclosure unless Mr Jnani is home, this would be difficult to monitor and may create concerns about the ‘appropriateness of the facilities’ if the dogs had to be kept in the roofed enclosure for extended periods.

Section 25(2)(c): The suitability for facilities for keeping the dog on the premises

The Tribunal accepts Mr Bullivant’s conclusion that the facilities for keeping Ruby and Max are ‘suitable’. However this is only so if the dogs are not restricted to the roofed enclosure for extended periods and they are walked and entertained. If, in order to address the security concerns that have been identified, the dogs need to be restricted for longer periods then Mr Bullivant’s view may not be the same. This was not specifically addressed at the hearing.
The dogs do not, or given the security concerns should not, have access to the back yard because of the need to have the side and back perimeter fencing replaced. The dogs are therefore restricted to the area of the house and outer enclosure even if not the roofed enclosure.
Mr Mitchener expressed concerns about the cleanliness and size of the dogs’ enclosure area, particularly the roofed enclosure. As noted above, the Tribunal is satisfied that the facilities are adequate.

Section 25(2)(d): The potential impact on neighbours of keeping the dogs on the premises

The applicant submits that her family is impacted by the knowledge that the dogs remain living in the neighbourhood. Ms Goldstraw’s daughter is anxious that she may see or come across the dogs. She is undergoing counselling following the traumatic events that she experienced and witnessed. At the hearing Mr Jnani assured the applicant that he does not walk the dogs in the area where the applicant’s family lives.
Ms Mitchener, who has a three year old child, says that knowing the dogs are living across the road, and hearing them bark when they are in the house at the premises, makes her fear for the safety of her child and other children and animals who live nearby. She is not confident that the dogs are kept securely.

The Tribunal accepts that the knowledge that the dogs are being kept at the premises has an emotional impact on the applicant and her family and on Ms Mitchener.
It seems that, other than Ruby’s and Max’s escape from the premises on 19 and 20 November 2015, the dogs had not previously escaped from the premises or been involved in incidents that had caused concern to neighbours. Indeed Mr Hawke, who lives opposite, was not even aware that the dogs resided at the premises.[71]
[71] Exhibit 2PJ6 at [3]
However, on the only occasions when the dogs are known to have escaped they were involved in incidents that resulted in the death of two dogs and injury to a person. One incident in a back yard and the other inside a house. This suggests that the potential impact on neighbours of keeping these dogs in insecure premises is real and negative should they again escape.
Mr Bullivant’s evidence was that, having done so once, it is likely the dogs would again try to escape. Mr Bullivant gave evidence that if Mr Jnani is able to address the imbalance in the ‘power’ relationship between himself and the dogs, by Mr Jnani undergoing appropriate training and adopting methods to adjust his interaction with the dogs, the dogs’ behavior may change. If this happens, the dogs may then feel less inclined or ‘permitted’ to make the decision to ‘escape’. These outcomes and changes in the dogs’ behaviour, like the replacement of perimeter fencing, are possibilities. However in the meantime, there are opportunities for Ruby and Max to escape and they may do so. If they do, the potential impact on neighbours is real and negative.
The Tribunal does not consider that positive evidence from neighbours is required when considering section 25(2)(e) of the DA Act. In some matters this will be available and may be very relevant. However the consideration of matters relevant to section 25(2)(d) is intended to enable the decision maker to consider and determine the potential impact on neighbours if the licence applicant is approved to keep dogs. Whilst the evidence of the impact on the applicant’s and Ms Mitchener’s family is relevant, more relevant and most compelling are the concerns the Tribunal has about security at the premises, the real possibility that the dogs may again escape and the appreciable risk of what might occur if the dogs were to again escape.

Section 25(2)(e): Any conviction or finding of guilty of the applicant within the last 10 years of an offence against a law of a Territory or State relating to the welfare, keeping or control of an animal

The Tribunal was not advised of any relevant matter in relation to this consideration. The infringement notices issued on 17 February 2016 are not covered by section 25(2)(e) of the DA Act.

Section 25(2)(f): The likelihood of harm being caused to any member of the public or an animal

The incidents on 19 and 20 November 2015 demonstrate that in the event that Ruby and Max are not adequately secured or supervised that they are capable of causing injury to an animal or member of the public.
The Tribunal accepts that the conditions imposed and requirements of the dangerous dog licences issued to Mr Jnani are adequate when the dogs are in public and supervised. However there is a likelihood of harm being caused to a member of the public or an animal if the dogs were to escape or be unsupervised.
Even if the Tribunal were to accept that the injury to the applicant’s daughter was a consequence, rather than the focus, of the attack on Jiminy:
(a)the Tribunal is satisfied that the dogs are capable of causing harm to a small animal;
(b)the incidents on 19 and 20 November 2015 suggest the dogs are likely to harm a small animal;
(c)the Tribunal cannot be confident that the dogs would not cause harm to a child or adult;
(d)the Tribunal considers that it is likely that a person would be harmed if they tried to intervene if the dogs were attacking an animal or another person; and
(e)the dogs are a breed described by Mr Bullivant as being ‘determined’ and they demonstrate that ‘determination’. The circumstances of the incidents on 19 and 20 November 2015 suggest that Ruby and Max have the strength and agility, and are prepared, to enter the yards and to forcibly enter the houses of neighbours, even when an adult is present.
Mr Jnani asserts that the dogs regularly interact with children and other people and no incident other than those on 19 and 20 November 2015 has ever occurred in which an animal or person was injured. He was shocked and surprised when he became aware of these events. It is precisely this uncertainty that, for the Tribunal, adds to the concern about what is likely to happen in other situations. Whilst there is no specific evidence about Max having attacked or harmed an animal or person on 20 November 2015, these incidents must be considered as having involved both dogs.
As far as Mr Jnani is aware, the dogs have only escaped from the premises on two occasions, being 19 and 20 November 2015. On 20 November 2015 they were involved in an attack on an animal which was killed and a person injured. The Tribunal is satisfied that the dogs were responsible for the death of Saphie on 19 November 2015. Both incidents occurred inside neighbour’s properties. Most worryingly on 20 November 2015 the dogs forced their way inside a house. The presence of a person was not effective in preventing or interrupting the ensuing attack on an animal. Indeed the person was injured. The incident on 20 November 2015 occurred some distance from the premises.
These circumstances support a conclusion that if the dogs were to escape there is a real likelihood of them attacking an animal; they may attack a person; and there is a real risk that anyone who endeavored to intervene would be injured. Efforts to intervene may not succeed in preventing or ending an attack. Given that the dogs were prepared and able to break through a screen door, and probably scale a picket fence, then not only would people and animals on the street or other outside areas be at risk, but also animals or people in their backyard or inside houses or other buildings.

Section 25(3): Has the dog been identified by implanted microchip

Both dogs have now been identified by implanted microchip. Ruby was already microchipped, although not registered in the ACT, when she was seized on 24 November 2015. Max was neither registered nor microchipped although this was undertaken, and Mr Jnani paid for it, prior to Max’s release on 24 December 2015.

Infringement notices issued 17 February 2016 – operation section 25(4) and section 25(5) of the DA Act

If the application for a dangerous dog licence is made after the dog is seized pursuant to division 2.7 and the dog was declared a dangerous dog after it was seized, then the Registrar may approve the licence only if section 62(3), section 64(3) or section 65(3) of the DA Act applies to the offence for which the dog was seized.
Max and Ruby were seized pursuant to section 59 of the DA Act because of suspected offences by Mr Jnani pursuant to either section 49A(2) or section 50(2) of the DA Act. Because the dogs were declared dangerous dogs subsequent to their seizure, the dogs could only be released to Mr Jnani pursuant to section 65[72] of the DA Act if Mr Jnani was approved for and issued with dangerous dog licences.
[72] Section 64 of the DA Act did not apply to the release of the dogs as they had been declared dangerous dogs after seizure
Section 25(4) of the DA Act operates so that it effectively ‘imports’ into section 25(4) the terms of whichever of sections 62(3), 63(3) or 64(3) of the DA Act are applicable – this will depend on the suspected offence which resulted in the seizure of the dogs. In the current matter, section 64(3) – where a dog is suspected of ‘harrassment or attack’ of a person or animal – is relevant if section 25(4) of the DA Act operated. The dogs were seized on 24 November 2015, no prosecution began and no infringement notice was issued within 28 days of that date. Mr Jnani’s application was approved (pursuant to section 25 DA Act) and issued on 24 December 2015 (with conditions pursuant to section 26 of the DA Act). The infringement notices were not issued until 17 February 2016. The respondent was not precluded, by section 25(4), from approving the licences. The Tribunal accepts that section 25(4) of the DA Act does not operate in the current matter because of the 28 day period referred to in section 64(3) of the DA Act.

Section 25(5): Other matters

Section 25(2) does not limit the matters that the Tribunal can consider.

Relevance of the infringement notices issued to Mr Jnani 17 February 2016

Mr Jnani was issued with infringement notices on 17 February 2016. .Had they been issued within 28 days of 24 November 2015, and remained unpaid as at 24 December 2015, then section 25(4) and section 64(3) would have operated to prevent the respondent making the decision to approve the licences.
The infringement notices have not been paid. Notwithstanding that section 25(4) of the DA Act does not operate, the fact that the infringement notices have not been paid is a relevant consideration. As noted above, it may demonstrate a lack of understanding by Mr Jnani about the serious nature of this matter and his responsibilities and obligations as a dog owner.

Other factors

The fact that Mr Jnani had not registered either dog before they were seized on 24 November 2015 demonstrates a failure to appreciate his responsibility as a dog owner. However both dogs are now registered and micro-chipped.
Mr Jnani is now aware of the requirement for him to keep the respondent informed about where, and the circumstances in which, Ruby and Max are kept and that approval must be obtained from the respondent if he intends to move. The Tribunal accepts that because Mr Jnani is a tenant this may mean that it is more likely that he will move premises and this presents a challenge. However the Tribunal does not consider that to be a factor relevant to whether or not the licences should be approved. The DA Act and the licences provide guidance as to what Mr Jnani would need to do and how the respondent should respond in that situation.
There are a number of comments in the respondent’s documents to the effect that Mr Jnani demonstrated a positive and co-operative attitude during the investigations undertaken by the respondent. Mr Jnani’s actions indicate that the Tribunal can have a degree of confidence about his willingness to comply with conditions and obligations associated with the ongoing care of and responsibility for Ruby and Max. Mr Jnani’s positive engagement with the respondent; his actions in promptly contacting the respondent when he became aware of the incidents on 19 and 20 November 2015; contacting Ms Goldstraw and Ms Mitchener to express regret and sympathy about those incidents; his payment of compensation to the applicant in relation to the incidents on 20 November 2015; and the efforts made on 20 November 2015 and subsequently to modify and increase security at the premises, all support that conclusion.
Consideration of these matters and the requirement to afford Mr Jnani ‘procedural fairness’ in relation to this application for dangerous dog licences does not however amount to a ‘balancing’ of community and dog owner rights. Rather, where aspects of the decisions are not legislatively mandated, the Tribunal must ensure that it is guided by the overriding concern for public safety.
The injury to Ms Goldstraw’s daughter occurred after the dogs had forcibly entered her home. Although the injury was sustained when she attempted to intervene in the attack on Jiminy, it is relevant that not only did her presence not prevent or interrupt the attack, but indeed she was injured during the attack although she may not have been the focus of it.
Although Ruby and Max have not, apparently, otherwise shown aggression towards people or children, the Tribunal can have no confidence that they would not be aggressive towards a person, including a child/toddler/baby, or that attempts by a person would be effective to prevent or intervene if an incident did occur. Indeed, based on Mr Bullivant’s evidence, the Tribunal is not confident that Mr Jnani could control the dogs if an incident occurred.
On 6 May 2016 at the respondent’s request, Mr Bullivant assessed Mr Jnani’s interactions with Ruby and Max and their interaction with other dogs. In short his conclusions were that Mr Jnani needs guidance on measures he can take and strategies that he can employ so that he can establish a leadership role. Mr Bullivant concluded that Ruby and Max were excitable but not aggressive towards him or his dogs. It was a controlled situation; Ruby and Max were muzzled and separately assessed. Mr Bullivant conceded when giving evidence that as an experienced dog handler, dogs are usually compliant when he is present.
Mr Bullivant attended at the premises again on 20 May 2016, at Mr Jnani’s request, to start working with Mr Jnani on developing the necessary skills and strategies to start making the changes to his behavior that may result in changes in the dogs’ behaviour. If this is achieved, it may reduce the possibility of future escape by or incident involving Ruby and Max. Mr Bullivant’s conclusion was that this is a possible outcome; it would depend on Mr Jnani making the necessary changes. Mr Bullivant believed that Mr Jnani was keen and willing to do so and believed that with time these changes could be achieved.

‘Dangerous Dog’ sign – needs to be relocated

The applicants and the respondent agree that the ‘Dangerous Dog’ sign should be relocated from its current position and secured to a position towards the top of the fence and to the right of the access gate on the colour bond fence which is located on the right hand side at the front of the property.
If the Tribunal approves the issue of the licences, this amended condition would be included in the approval pursuant to section 26 of the DA Act.

Conclusions

The Tribunal adopts the approach of General President Crebbin in the decision of Robertson v Domestic Animal Services [unreported, 20 August 2009] which was quoted and relied on in the decision of Sarlija v Registrar, Domestic Animal Services [2012] ACAT 56 [at 45]:
… the overarching purpose of the legislation is to secure the safety of the public and that this is the lens through which I must look when considering and evaluating the evidence that the Tribunal has received.
The Tribunal considers that the Mr Jnani’s actions as a dog owner prior to the seizure of the dogs on 24 November 2015 is relevant to assessing his ability to undertake the role of responsible dog owner and his application for dangerous dog licences:
(a)Neither dog was registered – which constitutes a breach of section 14 of the DA Act. The Tribunal considers that Mr Jnani’s explanation that he was not aware of his responsibility to register the dogs, particularly Max who was neither micro-chipped nor registered, does not reflect positively on his capacity as a responsible pet owner, although the Tribunal does accept that he had become aware of this requirement when he had discussions with the dogs’ vet before 19 November 2015 and had intended to arrange for the dogs’ registration.
(b)Max was not, and has still not been, desexed – which constitutes a breach of section 74 of the DA Act. Although this is a strict liability offence, the Tribunal accepts that Max was only about six months old on 24 November 2015, that Ruby had been de-sexed on 6 November 2015 and Mr Jnani intended to have Max de-sexed once Ruby had recovered from that surgery. Mr Jnani said he’d intended to have Max de-sexed before Christmas 2015 but the events after 19 November 2015 intervened. Mr Jnani says that he has not yet had Max de-sexed because both dogs were greatly impacted by the time they were impounded and he felt that the surgery would have a further negative impact. Mr Jnani also suggested he is waiting on the outcome of this review. Max is scheduled to be de-sexed on 5 August 2016;[73]
(c)The dogs did not have the requisite identification (re: registration tag and, for Max, microchip) which constitutes a breach of section 83 of the DA Act and regulation 7 of the DA Regulations. The dogs now have the required identification.
[73] Undated letter from Brudline Veterinary Hopsital advising that Max had been a patient of the practice since 7 July 2015 and advising he is scheduled for surgery on 5 August 2016 Exhibit 2PJ1 Annexure K
These are matters that suggest Mr Jnani was not diligent in ensuring that he met his obligations as a dog owner prior to 19 November 2016.
Mr Jnani is aware of and the Tribunal considers he is genuine when expressed an intention to meet his ongoing responsibilities and obligations, including the additional requirements should the dangerous dog licences for Ruby and Max be approved by the Tribunal.
Prior to 19 November 2015 Mr Jnani did take action to secure the dogs, by constructing a wire mesh dog enclosure where the dogs were kept when they were home alone. The purpose of this structure was to stop the dogs digging in the back yard. Mr Jnani took immediate action on 20 November 2015 after he found the dogs had escaped, for the second time in as many days, to further secure the dogs in the enclosure. He was not aware of the incidents on 19 and 20 November 2015 and took this action to ensure the dogs were safe and secured. This demonstrates a desire to care for and protect his dogs and to ensure that they were confined to the premises.
The issue of the infringement notices on 17 February 2016 does not amount to a ‘conviction or finding of guilty’ for the purpose of section 25(2)(e) of the DA Act. Nor is the fact that the respondent did not issue infringement notices or take action to prosecute Mr Jnani in relation to other offences relevant to consideration of section 25(2)(e) of the DA Act. However these are matters that can be considered pursuant to section 25(5) of the DA Act. There is no dispute that the events on 20 November 2015 occurred. The infringement notices were issued in relation to those events. Mr Jnani’s explanation for not having paid the notices casts doubt on whether he fully accepts or appreciates his responsibility as dog owner, or whether he fully appreciates the serious nature of the incidents on 20 November 2016.
The Tribunal was impressed by Mr Bullivant as a witness. He provided a considered and balanced assessment. He concluded that the dogs and Mr Jnani would benefit from training. He gave evidence that the fact that the dogs escaped, and his observation of the interaction between Mr Jnani and the dogs suggested that the dogs do not see Mr Jnani as ‘pack leader’. Consequently Mr Jnani is not able to exert effective control over the dogs when they are excited, as they do not appear to listen to him. Mr Bullivant said this is manifest in the fact that they ‘made the decision’ to ‘escape’. Mr Bullivant says that where there is an appropriate power relationship between dog and keeper, the dog does not feel permitted to make a decision to ‘go’ and waits for permission and direction from the pack leader. Mr Bullivant said that Ruby’s and Max’s escape on 19 and 20 November 2015 was indicative of this power dynamic. Mr Bullivant believes that this power imbalance could be corrected, but it would require effort by Mr Jnani as it is he that needs to change and the dogs will respond to those changes. Although Mr Bullivant did not observe any changes between his visit at the premises, at the request of the respondent, on 6 May 2016 and his next visit, at Mr Jnani’s request, on 20 May 2016, he concluded that with the requisite training and instruction those changes could be achieved. Mr Bullivant’s attendance on 6 May 2016 was solely for the purpose of assessment. He has only attended to provide ‘training’ on one occasion (on 20 May 2016). He believes the desired changes could be achieved, but did not provide any specific timeframe. At the hearing he advised that he was to again attend at to provide further training, and on that occasion would assess what changes had occurred and what further would be required. The Tribunal cannot be confident the desired outcome will be achieved.

The Tribunal is not satisfied that the licences should be approved for the following reasons which are considered in detail above:
(a)Suitability of premises for keeping dogs – The Tribunal is satisfied that the size and nature of the premises and the facilities for keeping the dogs on the premises are adequate[74] given the current arrangements for their care. If the dogs were restricted to the roofed enclosure for extended periods, the Tribunal is not satisfied that the size of the current enclosure is adequate.
(b)Security – The Tribunal is not satisfied that the premises are secure (per section 25(2)(b) of the DA Act). The Tribunal is not satisfied that the dogs are secure at the premises unless they are kept in the roofed enclosure, except that the roofed enclosure is not fully secure unless a self-closing latch is attached to the gate. The dog door to the house needs to have a locking device attached so that it can be secured. The Tribunal is not satisfied that the outer wire enclosure is secure. The back yard is not secure. When the dogs are in the house there are a number of exit points to the front and back yard of the premises. Neither the front nor back yard of the premises is secure.
(c)Impact on neighbours and likelihood of harm – There is a potential negative impact on neighbours who know, or come to know, of the incidents on 19 and 20 November 2015 and who are aware that the dogs are kept at the premises. For the applicants this impacts on, and in relation to others has the potential to impact on, how they undertake normal daily activities, and on their sense of safety and security when they or their animals are using outside living areas or, perhaps, are inside their homes. If the dogs escaped there is a likelihood of harm being caused to an animal or person.
(d)Mr Jnani’s relationship with his dogs as assessed by Mr Bullivant, his failure to pay the infringement notices issued on 17 February 2016, the circumstances of the events on 19 and in particular on 20 November 2015, are matters that are also relevant to the conclusion that the Tribunal has reached.
[74] Per the requirements of section 25(2)(a) and (c) of the DA Act
The respondent’s decisions to approve the issue of both licences is set aside and decisions to refuse to approve the issue of the licences are substituted.
It goes without saying that this is a difficult decision. Whilst acknowledging the terrible outcome for the applicants of the incidents on 19 and 20 November 2015, the Tribunal accepts that Ruby and Max are cherished pets. Their actions on 19 and 20 November 2015 were the actions of dogs. The Tribunal attributes no malice or sinister intent to those actions. However the circumstances of those events are such that the Tribunal, after considering the current state of the premises, the evidence and from the perspective of community safety, has come to this sad conclusion.

………………………………..
General President L Crebbin
for and on behalf of Senior Member W Corby

HEARING DETAILS

FILE NUMBER:	AT 7/2016 & AT 12/2016
PARTIES, APPLICANT:	Brenda Goldstraw
PARTIES, RESPONDENT:	Registrar, Domestic Animal Services
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	Ms Katavic
SOLICITORS FOR APPLICANT	N/A
SOLICITORS FOR RESPONDENT	ACT Government Solicitor
TRIBUNAL MEMBERS:	Senior Member W Corby
DATES OF HEARING:	9 & 10 June 2016

[2016] ACAT 86

2 August 2016

Key Legal Topics

Areas of Law

Administrative Law

Legal Concepts

Administrative Review

Judicial Review

Standing