Hastwell v The City of Holdfast Bay - [2014] SADC 132

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master's Decision)
HASTWELL v THE CITY OF HOLDFAST BAY
[2014] SADC 132
Judgment of His Honour Judge Slattery
24 July 2014
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL
Appeal against decision of a Master –appeal made pursuant to s 42E District Court Act 1991 (SA) – whether the learned Master erred in dismissing the appeal by the appellant against a Destruction Order made by the respondent council pursuant to the Dog and Cat Management Act 1995 (SA) in respect of the appellant’s dog on the basis that the dog was unduly dangerous.
Held:
1. No error identified in the approach or decision of the learned Master.
2. Appeal dismissed.
Dog and Cat Management Act 1995 (SA) ss 44(2), 50, 50(1)(a), 50(2)-(6), 51, 51(1), 51(2), 52; District Court Act 1991 (SA) s 42E; District Court Civil Rules 2006 (SA) r 286, referred to.
Moore v The Registrar of the Medical Board of South Australia (2001) 215 LSJS 133; McLean v DID Piling Pty Ltd [2010] SASC 33; Beare v Light Regional Council (2008) 256 LSJS 59; George v Dowling (1992) 57 SASR 579; Mac Audio Acoustical Consultants Pty Ltd (in Liquidation) v Eddy [1999] SASC 443; Clare & Gilbert Valleys Council v Crawford (2005) 242 LSJS 257, considered.

HASTWELL v THE CITY OF HOLDFAST BAY
[2014] SADC 132

This is an Appeal against a decision of a Master of the District Court in which the learned Master dismissed an appeal by the appellant against a Destruction Order made by the respondent in respect of the appellant’s dog because it was unduly dangerous.
The case concerns the application of the Dog and Cat Management Act 1995 (SA) (‘the Act’) by the respondent to a dog called Stomper. That dog is owned by the appellant.
In the ex tempore reasons for decision of the learned Master delivered on 13 June 2014 the learned Master disclosed his reasons for dismissing the appeal from a Destruction Order issued by the respondent, the council, under its notice directed to the appellant, Oliver Alexander Hastwell on 16 April 2014 (‘Mr Hastwell’).
As the learned Master identifies within his reasons, Mr Hastwell was unrepresented at the appeal and it appears from the reasons that the material before the learned Master constituted two bundles of material. The first is what is described as a ‘Book of Documents, Exhibit R1’. According to the index that bundle consists of 18 documents. That book of documents was prepared and delivered to the learned Master by the respondent.
Also before the learned Master was another bundle of documents entitled ‘Plaintiff’s Documents’. This consisted of the following:
1.a report by ABT, which is an acronym for Advanced Behavioural Training;
2.a letter from Mrs Maxine Hastwell dated 22 May 2014, Mrs Hastwell is the mother of Mr Hastwell;
3.a letter from Mr Hastwell dated 5 June 2014;
4.a medical report from Dr Mark Purvis, a general practitioner, dated 3 June 2014 and that letter indicates that the dog (‘Stomper’), the subject of this matter, is an important part of Mr Hastwell’s ability to cope with his serious medical illness, which is called Reiter’s disease;
5.a statement of dog management staff handler Alan Sandler; and
6.an unidentified series of photographs, firstly of four persons and Stomper; a second photograph apparently of Mr Hastwell with Stomper; a photograph of two dogs and a final photograph of what I assume to be Stomper.
I have read and taken into account all of that material.
The grounds of the appeal are set out on the notice of appeal (FDN 7) and are as follows:
1. I believe that there is other ways of dealing with this matter as oppose[d] to a destruction order, eg, rehab at a farm;
2. Losing my friend at this time of my life would be very detrimental to my health and medical condition;
3. [I] also believe that people have stirred my dog causing him to respond this way.[1]
[1] There was no evidence before the Master relevant to this ground of appeal and none was put before me during the appeal. In the end, this became a matter of conjecture by the appellant. I am not prepared to give any weight to that conjecture.
This is an appeal against the decision of a Master and it is brought pursuant to s 42E of the District Court Act 1991 (SA) (‘District Court Act’). Under that section the Court, on an appeal, must examine the decision of the original decision-maker on the evidence or material before the original decision-maker and may allow further evidence or material to be presented to it. The Court is not bound by the rules of evidence but may inform itself as it thinks fit and must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms. The Court must give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons.
The concept of what constitutes cogent reasons in my opinion is not completely settled and will, by the nature of things, vary from case to case. I am aware of the decision of Judge Smith of this Court in Moore v The Registrar of The Medical Board of South Australia[2] wherein his Honour considered the issue of cogent reasons and the onus of proof under s 42E and where his Honour said:
So it can be seen that the appeal is no longer by way of rehearing and, rather than undertake a complete re-evaluation of the decision, the Court must accord significant weight to the original decision. Put another way, there should be no departure from it save for “cogent reasons”. This is a little at odds with the decision maker bearing the burden of justifying the decision.[3]
[2] (2001) 215 LSJS 133.
[3] Ibid [17].
The learned Master interpreted that decision to mean that the respondent (before him, and before me today) bears the onus of establishing that the original decision was justified and that there, as here, this was done through Exhibit R1. It is then that the burden falls upon the appellant to show that there are cogent reasons for varying the order.
The learned Master was also of the view that it was only necessary for the respondent to justify its original decision because the context in which s 42E appears in the District Court Act is in respect of administrative decisions and thus a different test under s 42E will then apply.
In the District Court Civil Rules 2006 (‘DCR 6R’), rule 286 provides as follows:
286—Hearing of appeal
(1) An appeal is to be by way of rehearing (unless the law under which the appeal is brought provides to the contrary).
(2) Subject to any limitation on its powers arising apart from these rules, the Court may determine an appeal as the justice of the case requires despite the failure of parties to the appeal to raise relevant grounds of appeal, or to state grounds of appeal appropriately, in the notice of appeal.
(3) Subject to any limitation on its powers arising apart from these rules, the Court may—
(a) draw inferences of fact from evidence taken at the original hearing and, in its discretion, hear further evidence on a question of fact;
(b) amend or set aside the judgment subject to the appeal and give any judgment that the justice of the case requires;
(c) remit the case or part of the case for rehearing or reconsideration;
(d) make orders for the costs of the appeal.
This appeal is to be by way of rehearing. The Court may determine the appeal as the justice of the case requires despite the failure of parties to the appeal to raise relevant grounds of appeal or to state grounds of appeal appropriately in the notice of appeal, and the Court may draw inferences of fact from evidence taken at the original hearing and hear further evidence.
In my opinion s 42E, when read with DCR 6R 286, sets out the legislative scheme in which this appeal must be decided. It is necessary to first identify the basis upon which I may proceed in relation to the question of whether an appellable error has been made by the learned Master.
In my opinion, the question of the relevant approach that I should take in this appeal is now well settled and has been applied by this Court on a number of occasions. The relevant authority is that of the decision of her Honour Layton J in McLean v DID Piling Pty Ltd.[4] This case concerned an appeal from the decision of a Master of the Supreme Court and it was conducted under rule 286 of the Supreme Court Civil Rules 2006 which is the equivalent of the DCR 6R 286 that I have referred to above. The relevant discussion commences at paragraph [16] of her Honour’s judgment.
[4] [2010] SASC 33.
Her Honour disagreed with the judgment of Judge Tilmouth in Beare v Light Regional Council[5] on the basis that the judgment of his Honour in that case may be seen to be inconsistent with other decisions of Justices of the Supreme Court, in particular Mullighan J in George v Dowling[6] and by Wicks J in Mac Audio Acoustical Consultants Pty Ltd (In Liquidation) v Eddy.[7]
[5] (2008) 256 LSJS 59.
[6] (1992) 57 SASR 579, 582.
[7] [1999] SASC 443, [6].
Her Honour summarised the position at paragraph [22] of her Honour’s decision:
In addition, several recent decisions of the Full Court of this court have required a court to find error before exercising the discretion afresh. Accordingly, counsel’s submission should not be accepted. Instead it is appropriate to follow the well known rules in House v The King, which case sets out the circumstances in which an appellate court would disturb an exercise of discretion. In that case the High Court said (at 504-5):
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.[8]
[8] McLean v DID Piling Pty Ltd [2010] SASC 33, [22] (citations omitted).
At paragraph [23] of her Honour’s decision she said: ‘Accordingly it is necessary that the appellant identify an error by the Master of the kind described in House v The King before any appeal should be allowed’. [9] In my opinion that is my task in this matter.
[9] Ibid [23] (citations omitted).
The relevant facts of this matter are that the respondent issued a Destruction Order on 29 April 2014 in respect of Stomper which is a dog classified as an American Bulldog. That order was issued pursuant to s 50(1)(a) of the Act. That section reads as follows:-
50—Destruction and control orders
(1)A council may, in accordance with this Division, make an order of any of the following classes in relation to a specified dog:
(a)a Destruction Order;
(b)a Control (Dangerous Dog) Order;
(c)a Control (Menacing Dog) Order;
(d)a Control (Nuisance Dog) Order;
(e)a Control (Barking Dog) Order.
(2)A Destruction Order requires—
(a)the dog to be destroyed within the period specified in the order (but not less than one month after the date the order takes effect); and
(b)the dog, until destroyed, to be kept or detained at a place specified in the order (or at some other place subsequently approved by the council).
(3)A Control (Dangerous Dog) Order requires—
(a)the dog to be desexed within the period specified in the order; and
(b)the dog to be identified by means of an implanted microchip; and
(c)the dog, while on premises of which the person who is responsible for the control of the dog is the occupier, to be kept indoors or in an enclosure that is constructed so as to prevent the dog escaping from it; and
(d)the dog, at all times, to wear a collar that complies with the requirements of the Board (except while the dog is suffering from injury, disease or sickness to the extent that the wearing of a collar would be injurious to the health of the dog); and
(e)the dog, except while confined to premises of which the person who is responsible for the control of the dog is the occupier—
(i)to have a muzzle securely fixed on its mouth so as to prevent it from biting any person or animal; and
(ii)to be under the effective control of a person by means of physical restraint; and
(f)warning signs (complying with the requirements of the Board) to be prominently displayed at all entrances to premises where the dog is usually kept warning people that a dangerous dog is kept on the premises; and
(g)the dog and the person who is responsible for the control of the dog to successfully complete an approved training course specified in the order; and
(h)all reasonable steps to be taken to prevent the dog repeating the behaviour that gave rise to the order.
(4)A Control (Menacing Dog) Order requires—
(a)the dog to be identified by means of an implanted microchip; and
(b)the dog, while on premises of which the person who is responsible for the control of the dog is the occupier, to be kept indoors or for the premises to be fenced so as to prevent the dog escaping from the premises; and
(c)the dog, at all times, to wear a collar that complies with the requirements of the Board (except while the dog is suffering from injury, disease or sickness to the extent that the wearing of a collar would be injurious to the health of the dog); and
(d)the dog, except while confined to premises of which the person who is responsible for the control of the dog is the occupier—
(i)to have a muzzle securely fixed on its mouth so as to prevent it from biting any person or animal; and
(ii)to be under the effective control of a person by means of physical restraint; and
(e)all reasonable steps to be taken to prevent the dog repeating the behaviour that gave rise to the order.
(5)A Control (Nuisance Dog) Order requires—
(a)the dog, while on premises of which the person who is responsible for the control of the dog is the occupier, to be kept indoors or in an enclosure that is constructed so as to prevent the dog escaping from it; and
(b)the dog, except while confined to premises of which the person who is responsible for the control of the dog is the occupier, to be under the effective control of a person by means of physical restraint; and
(c)all reasonable steps to be taken to prevent the dog repeating the behaviour that gave rise to the order.
(6)A Control (Barking Dog) Order requires all reasonable steps to be taken to prevent the dog repeating the behaviour that gave rise to the order.
(7)In this section—
approved training course means a training course approved for the time being by the Board for the purposes of subsection (3).
Section 51 of the Act sets out in what may be described as a ‘sliding scale’, the steps that a council may take in relation to a specified dog. For this purpose it may be seen that Stomper is a specified dog. The orders the council may make range from a Destruction Order through to a Control (Barking Dog) Order. That section reads as follows:-
51—Grounds on which orders may be made
(1)A council may, on its own initiative or on application, make a Destruction Order in relation to a dog if satisfied that—
(a)the dog is unduly dangerous; and
(b)the dog has attacked, harassed or chased a person or an animal or bird owned by or in the charge of a person in circumstances that would constitute an offence against this Act.
(2)A council may, on its own initiative or on application, make a Control (Dangerous Dog) Order, a Control (Menacing Dog) Order or a Control (Nuisance Dog) Order in relation to a dog if satisfied that—
(a)the dog is dangerous, menacing or a nuisance; and
(b)the dog has attacked, harassed or chased a person or an animal or bird owned by or in the charge of a person in circumstances that would constitute an offence against this Act.
(3)A council may, on its own initiative or on application, make a Control (Barking Dog) Order in relation to a dog if satisfied that—
(a)the dog is a nuisance; and
(b)the dog has created noise by barking or otherwise in circumstances that would constitute an offence against this Act.
I am concerned here with a Destruction Order. Under s 50(2) of the Act a Destruction Order requires the dog to be destroyed within the period of time specified in the Order and until the dog is destroyed it must be kept at a place specified in the Order.
By notice of appeal dated 13 May 2014 the appellant appealed against the imposition of the Destruction Order by the respondent and sought revocation of the Order.
Under s 51 of the Act ‘[a] council may, on its own initiative or on application, make a Destruction Order in relation to a dog if it is satisfied that the dog is unduly dangerous and the dog has attacked a person or an animal [...] in circumstances that would constitute an offence against this Act’.
Under s 44(2) of the Act a person who owns or is responsible for the control of a dog is guilty of an offence if the dog attacks a person. The maximum penalty is $2,500 which may be expiated and the expiation fee is $210.
Under s 52 of the Act, before making an order under sections 50 and 51 of the Act the council must make reasonable steps to ascertain all persons who own or are responsible for the control of the dog and to give each of the persons so ascertained at least seven days written notice identifying the dog in relation to which it is proposed that the Order will be made. The notice must set out the terms of the proposed Order and invite the owner to make submissions to the council with respect to the matter. There are other requirements of section 52 of the Act that need not be set out here.
There is no suggestion on the evidence, either before me today or before the learned Master that the respondent has failed to comply with the requirements of ss 51 and 52 of the Act. I have formed the view that the respondent has satisfied the requirements of those two provisions and I need not consider them further here.
This matter concerns two events relating to Stomper. As best as I can make out from the evidence, the dog is about six years of age and is of the species called American bulldog. It is obvious from the photographic material before the Court that Stomper is a large animal. It is also apparent from the evidential material that an objective assessment may be made that he is a quite powerful dog and the learned Master was satisfied he weighs between 45-50 kg. No contest has been offered in respect of that assessment of the weight of the dog.

Mr Hastwell has owned the dog since it was a pup and it appears to have lived with him in various living arrangements that he has had since that time. It may be understood that Mr Hastwell is extremely attached to Stomper. He is a companion to him and has been important to him, particularly in relation to his recent serious medical conditions.
No further evidentiary material was put before me today and so the material evidence in this appeal to be determined by me is the same material that was before the learned Master and upon which the learned Master made his decision.
The relevant material discloses (and it appears not to be in contention) that on Christmas Day 2013, whilst at Mr Hastwell’s home, a Mr Attiwill, Mr Hastwell’s cousin, was present in the home and was attacked without any warning or provocation by Stomper. I have seen the photographs of Mr Attiwill following the attack. He received scratches on his back and buttocks. He also suffered a puncture wound (from a bite) on the back of his leg.
The learned Master summarised the factual background of this attack at paragraphs [25]-[35] of the learned Master’s reasons. Again there is no challenge to the learned Master’s recitation of these factual matters.
The factual background is that Mr Attiwill and others were in the home, they were introduced to the dog and very shortly thereafter the dog attacked. There is no explanation as to why the dog attacked at the time.
Of particular importance in the factual background is the material before the Master that disclosed that even when, on the day of the attack, Stomper was grabbed by his owner Mr Hastwell so as to restrain him as best he could, Stomper continued to act aggressively towards Mr Attiwill and tried to lunge at him again. The material discloses that the dog was barking and lunging at Mr Attiwill and had to be controlled. The attack was sudden and without warning. Nothing Mr Attiwill did was out of the ordinary or provoked or prompted the attack.
I have heard submissions today from Ms Burke, on behalf of the respondent, that as a result of the attack and the report of the matter the respondent attempted to work with Mr Hastwell to review Stomper and to seek some response from him in relation to the management of Stomper. There was no proper response from Mr Hastwell and eventually, on 13 March 2014, the respondent issued a Control (Nuisance Dog) Order (cf s 50(1) of the Act). I accept the matters put to me by Ms Burke. There was no challenge to the factual basis put in support of those submissions made by the appellant, Mr Hastwell.
I accept that at the relevant time Mr Hastwell was debilitated because of his medical conditions. Unfortunately it appears that it was in the context of the existence of that medical condition (and the disability suffered by Mr Hastwell from it) that the second attack occurred.
The learned Master deals with the factual material concerning the second attack at paragraphs [36] and following of the learned master’s decision. It is only necessary that I summarise the position.
On 4 April 2014 Ms Meaney, who is a neighbour of Mr Hastwell, attended his home to offer him help having regard to his medical condition. Also attending with Ms Meaney was her friend Taylin. On that occasion Taylin allowed Stomper inside the house. When she did, Ms Meaney was sitting on the floor of the premises and Mr Hastwell was positioned on the floor as well. The evidence suggests that Mr Hastwell was lying or sitting on a mattress on the floor and that Ms Meaney was sitting on the floor near to the end of that mattress.
When the dog entered the house it appeared that it was not in an excited, stimulated or agitated condition. But then without warning the dog attacked Ms Meaney, while she was sitting on the floor. It clamped down on her head with its jaws. Ms Meaney put up her hand to protect herself and Stomper then bit Ms Meaney on the fingers of her right hand.
Ms Meaney suffered serious head and hand injuries. It was necessary for Ms Meaney to undergo plastic and reconstructive surgery of the ring finger of her right hand and for the wounds in her scalp to be sutured. The sequelae of those injuries have not yet resolved.
At that time Mr Hastwell, was able to jump up and grab Stomper but he was not able initially to pull Stomper from Ms Meaney and it was necessary for Ms Meaney to first poke Stomper in the eye and then to grip him on the jaw before he would release its grip from Ms Meaney who then ran out of the home. The evidence is that there was a trail of blood to the front door of the house and obviously Ms Meaney was bleeding significantly. It was then that police and council inspectors were called.
It is significant that at the time after police and council inspectors arrived to assist in restraining Stomper, it was not possible for Mr Hastwell to muzzle the dog with a muzzle that had been given to him by the council official. It was necessary for Stomper to be muzzled using a pole and lead and using that process Stomper was put into the back of a car and taken to the RSPCA kennels.
There are photographs of the dog in the back of the car and the learned Master had regard to the contents of those photographs and formed the clear view that Stomper was apparently in an agitated state. Nothing was put to me to gainsay this conclusion. On my own viewing of the same material, I respectfully agree with the view expressed by the learned Master.
The Master also had regard to all of the evidence put before him by Mr Hastwell concerning the good nature of Stomper prior to this time. He accepted the evidence of a Mr Martin that the dog Stomper had lived with Mr Martin at his address at which Mr Martin also kept his own eight-year-old dog, a Husky. There was evidence that the two dogs socialised together without difficulty and there was no adverse reaction. I have also read and had regard to the letter from Mrs Hastwell, who has looked after the dog from time to time without any difficulty.
Before me today Mr Hastwell has said that he is now in a different physical condition than he was at the relevant time, which I assume to be between December 2013 and the end of April 2014. He said his medical condition has improved.
He also said to me that he was looking to get another house with a friend. He did not name the friend and he did not identify where the house might be. The focus of his submissions was that it was necessary for him to build some form of enclosure based upon a report which I will deal with later in this judgment. He said his father is an architect and is able to design a proper enclosure and his brother is a builder who he could co-opt to assist in building that enclosure. I will deal with the detail of that enclosure later in this judgment.
Mr Hastwell also informed me that he is not working now and cannot work. He worked previously as a furniture removalist and a car detailer for the same company but because of the maladies that he suffers and particularly the arthritic condition (Reiter’s Syndrome), which is slowly resolving, he is currently unable to work.
He said to me that he thought Stomper had deteriorated since the split from his girlfriend earlier this year and that he was only skittish recently. Prior to that time Stomper had been living in circumstances where there were other dogs and cats present but without any concern.
He also said that he now has support from family and friends. But in the overall scheme of things there is no explanation why he would not have had that support to deal with Stomper in the period between December 2013 and April 2014. He said, and it was not challenged, that Stomper had no prior history of attacks. He also said that he would previously work five to six days per week leaving Stomper at home, and that there were no difficulties. The appellant put his case on the basis that he wanted the opportunity to change Stomper’s behaviour and he thought that with time, care and effort Stomper could be ‘brought around’. In particular he emphasised again that he needed another house and needed permission at the house to build an enclosure.
One of the difficulties facing Mr Hastwell quite obviously is that he will be a tenant of any proposed new house and will need the landlord’s permission to build any form of permanent enclosure. He was not able to indicate whether a house was available, with whom he would go into that house, whether he could afford the rent for the house and so he could not address the issue of whether he could get permission from the landlord to build the relevant enclosure.
There is another feature of those circumstances. I set out hereunder in paragraph [57] et seq of this judgment a description of the type of enclosure under consideration here. It is quite a large and costly undertaking for it to be built and quite predictably there will be a number of difficulties associated with it. These include cost, maintenance, suitability in a domestic environment and then the welfare of the dog inhabiting such a structure over what will be perhaps long periods of time.
He also said that he would have the dog desexed but that is a matter that has been ‘on the table’ now for many months and nothing has been done. This promise has been made before and there was no explanation why this procedure had not already occurred. I am unable to place any weight upon that suggestion.
Ms Burke for the respondent emphasised in her submissions that the nature of the attacks were escalating in nature and occurred without provocation. Therefore it may be seen that the dog is unpredictable and increasingly so: this position is not assisted by his owner’s behaviour because of his lack of reliability in being able to work with the respondent. In particular Ms Burke submitted that the appellant was unable to deliver upon the undertakings that he had made, he was always unreliable and therefore no consideration should be given to any lesser order as I in my discretion may decide.
A matter that in my opinion operated upon the mind of the learned Master and to which the learned Master gave significant weight, was the objective Temperament Assessment of Stomper made by an expert, Ms Van Dyk. The report was prepared at the behest of Mr Hastwell. Ms Van Dyk prepared this report after seeking some subjective material from Mr Hastwell. That assessment was carried out on Friday, 30 May 2014 at the RSPCA shelter where Stomper is currently being held.
In her report Ms Van Dyk sets out the details of the incidents and the previous history of Stomper. She records what she has done with Stomper in carrying out her assessment and she then made observations of Stomper in an assessment room as well as in an exercise yard and then back in an assessment room.
Having made all of these observations, she then made an overall assessment of Stomper. Her assessment was that if she pushed the boundaries with Stomper he showed signs of a dog that would switch very quickly if he was not happy. By this I understood to mean that Stomper could quickly change from displaying an equable disposition to one that was unhappy. He did not show signs of being a happy, relaxed dog that was enjoying life and conversely that he also showed signs of lacking understanding of social skills and abilities to communicate much through his body language.
Ms Van Dyk opined that the dog would not be safe around other dogs and around unfamiliar people. She felt that his behaviour and demeanour was unpredictable and concerning, notwithstanding that he had made improvements since being at the RSPCA shelter. She assessed him as being a high risk because his behaviour patterns are not predictable and he is difficult to read.
Ms Van Dyk also expressed concerns about the management and housing for the dog if he was released. In particular she was concerned about the dog’s well-being and quality of life if he was released as he would need to be kept in what she described as a confined space, in the following terms:
... a cement full-proof run including roofing so it is jump proof and (Stomper) would only be able to be out on lead and under effective control until his owner has good control of his behaviour.[10]
[10] Van Dyk, 'ABT Advance Behaviour Training Temperament Assessment' (30 May 2014) ('Overview of Assessment').
She also suggested that rehabilitation for Stomper would take a long time and extreme measures would need to be taken to prevent any further incidents which could have an adverse effect on his wellbeing, both physically and mentally. She could not be sufficiently confident to guarantee that it is possible to prevent these events ever occurring again if he was released and that the only way she thought he could be released on a Dangerous Dog Order would be if the owner committed and booked in for an appointment to go through requirements before his release date. There would need to be restrictions on his housing arrangements before release, including the construction of the fully-enclosed run and roof and for it to be inspected and certified by council, for there to be an identification of extra security in the house and separation from other pets and animals.
In my opinion, on a complete reading of Ms Van Dyk’s report, it may be surmised that she considered that these arrangements, once implemented, introduce what she considered to be a level of treatment of the dog that was unsatisfactory. In short: the treatment could not justify a cure that was by no means assured.
She ended her assessment by saying:
I feel that Stomper is a high risk to other dogs and people that he is unfamiliar with and do not feel confident with his release unless he is contained and managed adequately.[11]
[11] Ibid.
It is quite apparent from the reasons published by the learned Master that the report of Ms Van Dyk had a significant influence upon the learned Master’s reasons and it is again to be recalled that this report was proffered to the Court by Mr Hastwell.
Earlier in these reasons I referred to the contents of ss 50, 51 and 52 of the Act. In developing his reasons for decision the learned Master reviewed the decisions of this Court concerning the operation of the Act in forming a view about whether Stomper was unduly dangerous and whether it was appropriate for the respondent council to make the destruction order.
The learned Master referred to and relied upon a decision of Judge Millsteed of this Court in Clare & Gilbert Valleys Council v Crawford.[12] That case concerned an appeal (successful) against a declaration by the appellant council under ss 50 and 51 of the Act that a dog was dangerous. His Honour did not deal with the question of whether a dog was unduly dangerous but his Honour’s approach is instructive. The relevant passages of his Honour’s judgment commence at paragraph [44] wherein his Honour considered the question of the meaning of the term ‘dangerous’ in the context of the common law and in particular in relation to manslaughter charges at paragraphs [50]-[60] of his Honour’s judgment.
[12] (2005) 242 LSJS 257.
After discussing the matter further his Honour said at paragraph [65] that:
... the differentiation between dangerous dog and menacing dog can be rationalised on the basis that the latter presents some risk of harm to people or animals whereas the former presents an appreciable or substantial risk of such harm.[13]
[13] Ibid [65].
His Honour found that the interpretation accommodates the ordinary meaning of ‘dangerous’ and the muzzling requirements for menacing dogs.
In my opinion that distinction may be sometimes difficult to draw because the risk is that there may be an unconscious mixture in the mind of any decision maker of subjective and objective elements in respect of a test which, in my opinion, is plainly objective. The objective nature of the test was properly conceded by Ms Burke in her submissions to me.
At paragraph [68] of his judgment, his Honour said:
For the reasons that I have expressed, I am of the view that a dangerous dog is one that exposes people or animals to an appreciable or substantial risk of harm subject to the following qualifications. First, I do not believe that a dog should be categorised as dangerous if it exposes a person to no more than slight or trivial injury. To my mind, it is unlikely that parliament would have intended to impose the stringent Dangerous Dog Order requirements upon a dog that was disposed to inflict no more than trivial injury.[14]
[14] Ibid [68].
His Honour then went on to say in paragraph [69] of his Honour’s judgment that: ‘...the test of dangerous must be applied having regard to the circumstances in which the dog presents a risk of harm’.[15] In my opinion, when the relevant considerations are limited to an objective assessment of the factual circumstances as they are known (subjectively) then I agree with this view as expressed by his Honour. His Honour then went on to express a view that it would be inappropriate to describe a dog as dangerous if the risk of harm is limited and his Honour gave examples where the risk of harm might arise from mistreatment, provocation or reasonable defence of person or property.
[15] Ibid [69].
However, any judgment of whether a dog would expose a person to no more than slight or trivial injury is usually (but not always) an ex post facto judgment assessed objectively and that is based upon subjectively known factual matters. There are no particular criteria stipulated for the making of this assessment. Notwithstanding the existence under the statute of what may be described as a ‘sliding scale’ of descriptions of the types of orders that may be made under s 50(1) of the Act and what are the consequences of such orders (ss 50(2) – (6) of the Act) the grounds on which such orders may be made are very broad and it appears deliberately so. I am here concerned with s 51(1) but it may be seen that the difference in the two criteria for s 51(1) and (2) is the descriptions in subparagraph (a) in each of these sections. A Destruction Order may be made if the dog is unduly dangerous;[16] and the dog has attacked, harassed or chased a person or an animal or bird owned by or in the charge of a person in circumstances that would constitute an offence against [the] Act (emphasis added).[17]
[16] Dog and Cat Management Act 1995 (SA) s 51(1)(a) (emphasis added).
[17] Ibid s 51(1)(b).
A Control (Dangerous Dog) Order, a Control (Menacing Dog) Order or a Control (Nuisance Dog) order in relation to a dog may be made if (the council is) satisfied that the dog is dangerous, menacing or a nuisance;[18] and the dog has attacked, harassed or chased a person or an animal or bird owned by or in the charge of a person in circumstances that would constitute an offence against [the] Act (emphasis added).[19]
[18] Ibid s 51(2)(a) (emphasis added).
[19] Ibid s 51(2)(b).
Consistent with the approach that I have set out above there is no definition in the Act of a dog that is ‘unduly dangerous’, that is merely ‘dangerous’ or ‘menacing’ or a ‘nuisance’.[20] These are all questions of fact and in my opinion these questions must be assessed in the whole of the background circumstances of the case under consideration. As with all such assessments, particular facts, circumstances or things may attract greater or lesser importance depending upon the factual substratum in which the decision is made. Obviously enough there will be a difference between a dog that is ‘unduly dangerous’ and one that is ‘dangerous’.[21] These are two different categories of dog and so the difference between the categories must have some meaning. However, in my opinion that difference in meaning is not completely informed by subparagraph (b) of each of the subsections, the content of which is identical. The fulfilment of the requirements of each of those subsections is a prerequisite to the making of an order by the council. The factual circumstances arising under a consideration of each of those subparagraphs will, quite obviously, be different (in the usual course) because of the different types of orders that the council may make in the exercise of its discretion. I say ‘in the usual course’ because it being an assessment by the council based upon the whole of the circumstances of the case, there will be cases where in largely similar circumstances, the discretional judgment of the council will be different.
[20] s 51(3) of the Act is in different terms and because it is directed at barking dogs, it is not necessary to discuss that subsection further here.
[21] The same comment applies to the difference between these two assessments of dogs and the assessment that a dog is 'menacing' or a 'nuisance'.

This approach is entirely consistent with the existence of the discretion reposed in a council under the wording of the legislation. As in all such cases, it is not appropriate to attempt to formulate a list of criteria or particular characteristics that must be satisfied or identified before a decision may be made in a particular case. The appropriate approach is to have regard to matters that are properly described as considerations which, in a particular case, may assist to inform the judgment of a decision maker. In my opinion, that is the approach taken by Judge Millsteed in his Honour’s decision in Clare & Gilbert Valleys Council v Crawford.[22] In this case, the question for the decision of the council was the appropriate classification of Stomper under s 50 of the Act, having regard to the operation of s 51 of the Act.
[22] (2005) 242 LSJS 257.
Matters that the council may have identified as considerations that may inform its decision about any dog in the position of Stomper may include: the particular breed and species of the dog; whether following a particular event there has been intervention in relation to the dog and if so the response (including the failure to respond) to the intervention; the health of the dog and its environment; the measure (if any) that may be made of the dog’s predictability or unpredictability; the dog’s antecedent history or, conversely, the absence of any knowledge of its antecedent history; the level of aggression displayed by the dog; the ‘sociability’ of the dog; the lability (if any) of any attitude or mood of the dog; whether and if so to what extent there has been any escalation of the aggression displayed by the dog; the nature of the harm caused by the dog in any incident brought to the attention of the council; whether there has been any escalation in the type of conduct that caused the harm including a repetition of the conduct; the hardship that may be suffered by the dog following the implementation of orders for the housing of the dog following any orders that may be made by council; and any other relevant matter.
It is necessary to again emphasise that what I have set out above are only to be described as considerations that may be taken into account. They are not matters of prescription nor may it be said that only those considerations must be satisfied because to so state the position would put an unstated limitation upon the discretion established under the Act.
Just as there is no measure of decrescendo of barking dogs nor may it be said that there is a measure of the declinatio of the seriousness of behaviour, such as biting, sufficient to measure a dog as either dangerous or unduly dangerous. In the whole of the circumstances of the case, an assessment based upon objective facts must be made by the council in the fulfilment of its obligations and in the knowledge that such behaviour identified in each of the assessments will be different. The measure or indicia of differences is impossible to state nor is it appropriate to attempt to do so because of the breadth of features and considerations that may be taken into account. This includes the assessment by a council of similar behaviours of two dogs of the same breed but with quite different results.
In my opinion, there will be those (perhaps rare) occasions when a dog has done no more than expose a person or another animal to slight or trivial injury but where that dog may properly be categorised as a dangerous dog. It is quite foreseeable that a council would be in a position to form that view notwithstanding that at first glance it might be thought that the behaviour of the dog exposed a person or another animal to no more than slight or trivial injury.
In my opinion, it is the objective assessment of the disposition of the dog that is the key to the operation of the Act. That assessment must be made in the whole of the circumstances of the case and the background of the dog as it is known and the assessment of the dog on the day. This will include the assistance obtained from any expert evidence.
At paragraph [70] of his judgment his Honour Judge Millsteed said:
In my view, a dog is dangerous if it presents an appreciable risk of injury to any person acting in a way in which a person may be reasonably expected to act in circumstances which may be reasonably expected to occur.[23]
[23] Clare & Gilbert Valleys Council v Crawford (2005) 242 LSJS 257, [70].
This enunciation of the position relies upon an objective assessment of the behaviour of the dog that is not limited by some check list of factors and indicia. This description may also be adopted for use by a council in assessing whether a dog is unduly dangerous. This case is an example: Stomper bit and scratched Mr Attiwill without warning or cause and so also and more seriously did the dog bite the head and hand of Ms Meaney. Both occasions were domestic and unremarkable and both persons were acting reasonably and normally. Both were quite violently attacked without provocation, reason or cause. In my opinion, the nature of this conduct, assessed objectively carries it outside of conduct that may be described as dangerous. The behaviour was worse than that and met the description of unduly dangerous in the background of the escalating seriousness of the known conduct of this dog. My approach is consistent, for example, with the difference that must exist between the behaviour of a dog assessed as dangerous and one that is assessed as unduly dangerous. That is the way in which the Master approached his task, as is evident from paragraphs [70]-[72] of his reasons and the way in which the learned Master reached his conclusions at paragraphs [73]-[77] of his reasons.
In my opinion, no error is disclosed on the face of the reasoning of the learned Master. I am unable to identify any error in the approach of the learned Master.
The decision of the Master was made in circumstances that were open to him on all of the evidence before him. In this matter the learned Master had before him all of the relevant evidence and in his considerations in relation to the dog Stomper he took all of that evidence into account. He dealt with those matters in his reasons for decision and he was of the view that the appellant had not established good or cogent reasons for him to depart from the respondent’s decision in making the Destruction Order.
In my opinion, it is plainly evident on any objective view obtained from a proper understanding of the background facts and assisted by the expert evidence that the dog Stomper is unpredictable around people, aggressive and is labile in mood and attitude and that there is an escalation of the seriousness of those traits. Because of that variable nature, his aggression, his size and his power, the assessment by the council was open to it on the objectively known facts and no error in that approach was identified by the learned Master. In turn, I am unable to detect any error in the approach of the learned Master or in his decision.
The formal order is:
1. The appeal is dismissed.