Graham v Graham v Lockyer Valley Regional Council
[2011] QCAT 151
•7 April 2011
| CITATION: | Graham & Graham v Lockyer Valley Regional Council [2011] QCAT 151 |
| PARTIES: | Darren Graham and Rhian Graham |
| v | |
| Lockyer Valley Regional Council |
| APPLICATION NUMBER: | GAR291-10 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 31 January 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Ms Julie Cowdroy, Member |
| DELIVERED ON: | 7 April 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | The Tribunal sets aside the decision under review and substitutes its decision that the grounds upon which a declaration of dangerous dog was made in respect to the applicants’ three dogs are not met. |
| CATCHWORDS: | Declaration – dangerous dog – whether dogs attacked and killed sheep Animal Management (Cats and Dogs) Act 2008, ss 61, 89, 94 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Darren Graham and Rhian Graham represented themselves |
| RESPONDENT: | Lockyer Valley Regional Council represented by Mr D Simpson |
REASONS FOR DECISION
Background
Mr and Mrs Graham seek review of a decision made by the Lockyer Valley Regional Council to declare their three dogs “dangerous dogs” under the Animal Management (Cats and Dogs) Act 2008 (“the Act”). The respondent made the declaration following an investigation into an incident that took place on 21 December 2009.
Each party appeared, gave evidence and made submissions to the Tribunal. A number of witnesses provided written statements and gave oral evidence.
QCAT has jurisdiction to review the decision, arising primarily under section 188 of the Act and sections of the Queensland Civil andAdministrative Tribunal Act 2009 (“the QCAT Act”). On review, the Tribunal must hear and decide the matter by way of fresh hearing on the merits and the review is by way of rehearing. The purpose of the review is to produce the correct and preferable decision. The standard of proof is on the balance of probabilities.
The Evidence
Some of the facts in the matter are non-contentious. In relation to the matters in dispute, they are outlined specifically below. On the morning of 21 December 2009, Lockyer Valley Regional Council received a complaint that a number of sheep owned and kept at 5a Brendan Court, Hattonvale had been attacked and killed by dogs.
The applicants reside at 23 Fairway Drive, Hattonvale. The rear of their property, consisting of ½ acre, faces on to the golf course. The applicants are the registered owners of three dogs. There is dispute about the colouring and the markings on these dogs and also the colours and markings of the dogs that were involved in the attack on the sheep. According to the animal registration notice issued by the Council, Mallee is a female black and blue cattle dog/mixed, Buddy is a male border black collie/mixed and Tyrone is a male tan and white cattle dog/mixed breed.
An investigation occurred into the incident and statements were taken from a number of local residents, most of whom gave oral evidence. Mr Brendan Ross Jordan resides at 5 Brendan Court, Hattonvale with his wife, Clementine Jordan. They live near door to Mr and Mrs Vincent and Katarina Fazzari, Mrs Jordan’s parents. The two residences are constructed on four acres of undulating unfenced land. There are paddocks at the back of both houses.
Mr Jordan made the initial report to Council. His mother in law alerted him swearing and yelling. She said that dogs were on the property and trying to kill the sheep. He saw one black dog. His wife had been down to the paddock before him. His wife pointed out to him the areas where the dogs had run and he then went to Fairway Drive and formed the view that the dogs had run into the rear of 23 Fairway Drive. He agreed that the family members discussed what they had seen, however he had no memory of his wife telling him that she saw the dogs attacking a sheep.
His wife told him she had gone to the paddock after her mother said that dogs were attacking the sheep. The dog he observed did not attack any sheep and he lost sight of that dog completely.
Mrs Clementine Jordan said she was alerted by her mother who told her that a neighbour had told her that three dogs were chasing her sheep. Her mother has artificial hips and has difficulty mobilising, consequently Mrs Jordan went down to the paddock. She picked up a stick. In the paddock, she observed a dead sheep, which had been dead for “an hour or two” and at a distance of about five metres she observed three dogs lunge at another sheep. She walked within two metres of the dogs, at which time they ran off. Later she told her husband that she had observed the dogs lunge at the sheep. Her evidence was that she was not surprised if he did not recall it because he had a poor memory.
There was blood on the dead sheep, some of which was a “bit fresh” and some “dried”. There were two dogs, mostly black in colour and a third dog of a lighter colour grey. She thought they were cattle/cross and blue heeler respectively.
The dogs ran towards the adjoining paddock, belonging to her neighbour, where there was a herd of cattle. Mrs Jordan observed the dogs jump the back neighbour’s fence. She observed the dogs chase the cattle up the back of the golf course and then she lost sight of them for a couple of minutes. When she saw then again, they had crossed to the other side of the dam. She heard her mother yell something out.
She saw a man standing at an opening from one of the houses facing on to the golf course on Fairway Drive. She heard the man yell out something and she observed the dogs run towards him. She was sure that the dogs that reappeared and went to the back of premises at Fairway Drive were the same dogs she had seen minutes earlier.
Mrs Jordan did not think that her mother saw the dogs on her property. Her mother only came to the boundary of the paddock.
David Chicken, of 9 Brendan Court Hattonvale is a neighbour of Mr and Mrs Fazzari. On the morning of 21 December 2009, he heard his neighbour’s dogs barking and went to the paddock at the rear of his house. He saw two dogs running down the fence line between the Fazzari‘s paddock and the golf course. The dogs were at a distance of about 15 metres.
In his statement he recalls them being mostly dark coloured. During oral evidence, he said they looked like Collie-Cross. The dogs then disappeared from view.
On 14 January 2010 he again heard his neighbour’s dogs barking and so he went to the back corner of his block where he saw a mob of sheep standing around Mr Fazzari and three dogs. He saw the two dogs he had seen on 21 December 2009 running up the paddock. He climbed the fence to Mr Fazzari’s property. There were two dark coloured dogs and one dog which was dark with a bit of white.
The dogs ran down towards the bottom of the golf course. He walked after them. He then saw a young fellow standing at the gate of a property facing on to the golf course. He heard Mr Fazzari yelling at the young man. He climbed over the fence to Mr Fazzari’s property. He saw the first two dogs jump the fence and the third dog went underneath. He was sure that the dogs were the same dogs that he had seen on 21 December 2009.
Ms Toni Robinson formerly resided at 84 Shaw Road, Hattonvale and was a neighbour of Mr and Mrs Fazzari. At about 7.15 am she observed three dogs chasing ducks on her dam. She yelled at the dogs and she saw them go through a fence into her neighbour’s paddock. The dogs were cattle/cross breed dogs, one of which was slightly darker than the others and was wearing a red collar.
Ms Robinson did not see the dogs chase sheep. She left her house a few minutes earlier and observed at the front fence a petrified looking sheep and goat. She went to Mrs Fazzari’s house and told her what she had seen. Mrs Fazzari said she would talk to her daughter.
Mr Darryl Simpson, Team Leader – Animal Control, investigated the complaint. He interviewed all witnesses, as well as Mr and Mrs Graham. On the morning of the incident, Mr Simpson attended at the Graham home and took photographs of their dogs. He observed all dogs from a distance of 2-3 feet and did not observe any evidence of blood on any of them. He observed that one of the dogs was wearing a red collar. The dogs were friendly.
After speaking to witnesses and taking statements, he reached the view that the Grahams’ dogs were responsible for the attack.
There was considerable criticism levelled at the Council by the applicants regarding its processes, including the omission of information and incorrect information, the way in which notices from Council were served on the applicants and other issues, all of which were peripheral to the issue under consideration. Mr Simpson acknowledged there had been some typographical errors in the documents from Council.
There was also criticism levelled at Mr Simpson for failing to take statements from all witnesses on the date of the incident, however, Mr Simpson spoke to a number of people by telephone on the day of the incident and obtained written statements at a later date. He acknowledged that he told some of the persons who provided witness statements that no action could be taken unless there was a witness to the attack and the dogs responsible were identified.
He acknowledged that when he interviewed Mrs Fazzari, she did not speak English well.
Other evidence
A statement had been provided from Mrs V Fazzari, who had produced a medical certificate to the effect that she was unwell and could not attend to give evidence, either personally or by telephone. In her statement, she advised that she had heard her daughter, Clementina, screaming, after she had gone down to check the sheep “because I had seen three dogs chasing the sheep and goats in the paddock”. She went to the back gate and “the dogs were still in the paddock chasing the other animals”. She described three dogs. She observed the three dogs run across the golf course and towards a house on Fairway Drive.
Mr & Mrs Graham
Mr and Mrs Graham own a house and land on a ½ acre block. They live at 23 Brendon Court, Hattonvale. The back of the property faces on to the golf course. The dogs escaped on the morning of 21 December 2009 via a hole in the fence that leads to the neighbour’s property. They found that the dogs were missing at about 7.00 am. They assumed that the dogs travelled through the neighbour’s property to the front of the house, and then walked about 50 metres to an easement that goes on to the golf course.
At about 7.40 am, Mrs Graham observed the dogs on the right hand side in the paddock at about one clock on the ridge of the dam, which comprises a pile of exposed dirt. She alerted her husband to the dogs’ location. Mr Graham called out to them whilst standing at the gate. They came in from the direction of the lower dam straight through the paddock. Mr Graham saw an older lady standing in the back yard yelling towards their house. The woman had an accent. Mr Graham thought the lady was calling “polizia, polizia”.
There is a distance of between 300-400 metres from the dam wall to the fence which abuts the golf course. The dogs came down from the hill towards the green of the third hole, and then skirted the bottom dam. Mr Graham considered that the dogs travelled about a kilometre from the time they were first seen until they arrived at the house.
They lost sight of the dogs for 3-5 minutes because they went through grass in the paddock. When they reached the manicured lawn of the golf course, they were easy to see.
Mr Graham described the dogs as two mostly dark coloured dogs and one lighter coloured. Tyrone is a lighter colour, brindle and brown. The photographs do not show Tyrone’s markings well. Buddy is mostly black. Mallee is more than 50 per cent black.
Mrs Graham contended that her dogs could not have killed a number of sheep and travelled back to the house in the time span in which it is alleged the attacks occurred. She was adamant that the dogs had no signs of blood on them when they returned to the house, and if she had any suspicion that they had been engaged in killing sheep, she would have no hesitation in acknowledging that the dogs could be a danger.
Someone had let their dogs out of the yard on 14 January 2010. Mr Graham considered that Council’s decision to declare that their dogs were dangerous dogs was due to a perception that the dogs “had returned to the scene of the crime”.
There were many dogs living in the street, some of which were cattle cross. It was not unusual for people whose houses faced the golf course to let their dogs out their back gates to roam free.
Scott Miller was living with the Grahams at the time. He provided a statement to the effect that he saw their dogs a short while after he attack and he did not observe any traces of blood.
Consideration
Section 89 of the Animal Management (Dogs and Cats) Act 2008 provides as follows:
89 Power to make declaration
(1) Any local government may, by complying with the requirements of this part--
(a) declare a particular dog to be a declared dangerous dog (a dangerous dog declaration); or
(b) declare a particular dog to be a declared menacing dog (a menacing dog declaration); or
(c) declare a particular dog to be a restricted dog (a restricted dog declaration).
Note--
See sections 61 (What is a declared dangerous dog), 62 (What is a declared menacing dog) and 63(2) (What is a restricted dog).
(2) A dangerous dog declaration may be made for a dog only if the dog--
(a) has seriously attacked, or acted in a way that caused fear to, a person or another animal; or
(b) may, in the opinion of an authorised person having regard to the way the dog has behaved towards a person or another animal, seriously attack, or act in a way that causes fear to, the person or animal.
(3) A menacing dog declaration may be made for a dog only if a ground mentioned in subsection (2) exists for the dog, except that the attack was not serious.
(4) A restricted dog declaration may be made for a dog only if the local government is satisfied the dog is of a breed mentioned in section 63(1).
(5) The declaration may be made even if the dog is not in the local government's area.
(6) A declaration under this section is a regulated dog declaration.
(7) In this section--
seriously attack means to attack in a way causing bodily harm, grievous bodily harm or death
Section 61 of the Act states that a declared dangerous dog is a dangerous dog declared under section 94 to be dangerous dog.
Section 94 of the Act states:
(1)The local government must consider any written representations and evidence accompanying them within the period stated in the proposed declaration notice.
(2)If, after complying with subsection (1), the local government is satisfied that the relevant ground under section 89 still exists, it must make the regulated dog declaration for the dog.
The declaration of dangerous dog has been made on the basis that the dogs attacked a number of sheep, and as a result of their injuries, five sheep were killed. The issue to be determined is whether the applicants’ dogs were responsible for the attack, in which case it was open to the Council to make a declaration.
Mr Simpson spent a considerable amount of time interviewing various witnesses. Although he was criticised by the applicants for the manner in which he carried out those interviews and for failing to investigate reports of other dogs in the area, I consider that Mr Simpson conducted a competent investigation and acted appropriately at all times. He gave his evidence in an objective and reasonable manner. He reached a view, which was in the circumstances fairly open to him – that the dogs owned by the applicants were responsible for the attack on the sheep. Whether this view was reinforced by the fact that the dogs were found in the area of the attack on 14 January 2010 is of little consequence.
I reject the submission of the applicants that the witnesses tailored their evidence because of the statement of Mr Simpson that no action could be taken unless the dogs were identified. If this were the case, I would have expected their statements to have been more consistent. However, there are other discrepancies in their evidence and statements which need to be considered.
On close scrutiny of all the evidence, I am satisfied that only one person actually witnessed the attack and that is Mrs Jordan. Although Mrs Jordan stated that her mother told her that her neighbour advised that three dogs were attacking and chasing her sheep, this directly contradicts the evidence of Ms Robinson, who stated that she did not witness any dog attack sheep. Neither did Mrs Fazzari.
Mrs Fazzari said that she observed three dogs chasing the sheep and goats and that Katarina had gone to the paddock to check on the animals (presumably at her request). She heard Katarina screaming from the back paddock. Further, Mrs Jordan’s evidence was that her mother had not gone down to the paddock because of mobility problems and asked her (Mrs Jordan) to go the paddock and ascertain whether the sheep were safe.
Given that Mrs Fazzari could not be questioned on this aspect or other aspects of her statement, I give more weight to the evidence of Mrs Robinson. Consequently, I prefer Ms Robinson’s version of events on that issue. It follows that I am not persuaded that Mrs Fazzari witnessed any attack.
In so finding, it is not suggested that Mrs Fazzari or Mrs Jordan are untruthful, however, I am mindful of the fact that it is not uncommon for any group of witnesses who have an opportunity to discuss their observations with others who witnessed part of the same event, to recount that event in a comprehensive manner, encompassing what they observed first hand and what they were told that others observed.
I am also mindful that Mrs Fazzari does not speak English well and was excitable at the time she gave her statement. Without the opportunity to speak to her and ascertain the nature of her observations, as opposed to what she was told by others and what she understood to be the case, I am not persuaded that I should give it any weight.
Mrs Jordan described an attack on a sheep by three dogs, the descriptions of which fit the dogs belonging to the Grahams. Ms Robinson’s evidence was that the dogs entered on the Fazzari property a short while before she alerted Mrs Fazzari to their presence.
One of the dogs had a red collar and one of the Graham’s dogs had a red collar. At first glance, it would seem that the descriptions of the dogs and their presence on the Fazzari property places the Grahams’ dogs at the scene of the crime.
However, it seems inconceivable that the dogs could have travelled into the Fazzari's paddock and injured five sheep from the time Ms Robinson alerted Ms Fazzari to the dog’s presence, and Mrs Jordan’s discovery of the injured sheep. Also significantly, in my view is the evidence of Mrs Jordan that not all the blood on the sheep was fresh, and that some of it was dried. She used the words that it was there for an hour or two.
Further, although the dogs were observed to leave the Fazzari property, the evidence is that the dogs disappeared from view for a number of minutes and re-appeared at a considerable distance. Although the witnesses were sure it was the same dogs that re-appeared and entered the Grahams property, it would have been expected that some blood would have been evident on at least one of the dogs.
Whilst Mrs Graham’s evidence that there was no blood is self-serving, in the sense it is to her benefit to say this, I found Mrs Graham to be a credible witness and I accept her evidence that if she had observed blood on her dogs, she would most likely not have challenged the decision of Council. Scott Miller’s statement also corroborates the evidence about the absence of blood.
I also bear in mind that there are a number of cattle type breeds in the immediate vicinity.
Ultimately, whilst there is a reasonable amount of evidence implicating the Grahams' dogs in the attack, there is also a body of evidence that casts doubt as to whether they were responsible for the attack. When I considered the evidence in totality, I was not convinced that there was sufficient evidence to enable me to be reasonably satisfied that the dogs owned by the applicants were responsible for the attack.
Accordingly, the decision under review is set aside and the decision of the Tribunal is substituted that the grounds upon which a declaration of dangerous dog was made in respect to the applicants’ three dogs are not met.
0
0
2