Hermanussen v Brisbane City Council
[2012] QCAT 710
| CITATION: | Hermanussen v Brisbane City Council [2012] QCAT 710 |
| PARTIES: | Ferris Frances Hermanussen (Applicant/Appellant) |
| v | |
| Brisbane City Council (Respondent) |
| APPLICATION NUMBER: | GAR138-12 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 24 July 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Susan Gardiner, Member |
| DELIVERED ON: | 24 July 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Tribunal sets aside the decision of the Brisbane Council to issue a notice declaring ‘dangerous’ the dog Zeus, a male Australian Cattle Dog pursuant to s 89 of the Animal Management (Cats and Dogs) Act 2008 and instead, the dog Zeus, a male Australian Cattle Dog, is declared a menacing dog pursuant to s 89 of the Animal Management (Cats and Dogs) Act 2008. |
| CATCHWORDS: | Review of decision of declaration of dog as dangerous dog Animal Management (Cats and Dogs) Act 2008, ss 89, 90, 188 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr D Williams of Counsel |
| RESPONDENT: | Mr P Tasker |
REASONS FOR DECISION
The application from Mrs Hermanussen is to review the decision of the Brisbane City Council to issue a notice to regulate as a dangerous dog, her dog Zeus, a male Australian Cattle Dog.
On 7 October 2011, the Council by notice to Mr and Mrs Hermanussen, invited representations as to why Zeus should not be declared to be a regulated dog. Representations were made by Mr and Mrs Hermanussen through their solicitor on 20 October 2011, but on 4 November 2011 Zeus was regulated and declared dangerous, to take effect from 9 November 2011. This declaration was issued by the Council under s 90 of the Animal Management (Cats and Dogs) Act 2008. That declaration was stayed by this Tribunal, with a condition concerning a muzzle.
On 9 December 2011, material was supplied to Mr and Mrs Hermanussen under a right to information application concerning the declaration. This declaration was internally reviewed and confirmed on 22 March 2012.
It was alleged that on 7 September 2011, Mr Terry Boyle was bitten by Zeus at 157 Mount Ommaney Drive, Jindalee. Mr Boyle is a contractor who was undertaking work at that address. Mrs Hermanussen lives with Zeus next-door at 155 Mount Ommaney Drive.
The jurisdiction for QCAT to review a decision of the Council is provided under s 188 of the Animal Management (Cats and Dogs) Act 2008 and section 24 of the QCAT Act outlines what the Tribunal may do on review. The Tribunal must hear and decide the matter in a way, by way of a fresh hearing on the merits, to produce the correct and preferable decision. It may confirm or amend the decision, set aside the decision, substitute its own decision or set the decision aside and return it to the decision-maker.
The material before the Tribunal, which I have taken into account today, includes statements from:
· Mr Terry Boyle, the complainant and his son, Joseph Boyle, who was a witness to the incident;
· a record of an interview conducted on 25 February 2011 by Mr Les Morrison with Mrs Hermanussen;
· photographs and the Dog Attack Report dated 7 September 2011;
· supporting material including maps, photographs of Mr Boyle’s bites;
· the Council’s Reasons for its Decision outlining the previous history between the Council and the Applicant in respect of another complaint made against the Applicant’s dog in 2008;
· material from that previous complaint by Mr Anthony Mills made on 9 July 2008, including Mr Mills’ statement;
· a statement again from Mrs Hermanussen at the time; and
· a medical certificate.
Mrs Hermanussen has provided:
· her statement dated 11 February 2012;
· a statement of her husband, Mr Anthony Hermanussen;
· a statement from persons supporting the dog owner, attesting to the dog’s friendliness;
· a statement from two of Zeus’s veterinarians attesting to Zeus’s medical condition and nature when treated; and
· the evidence of a dog trainer and behaviourist, Mr Colin Wilson.
Oral evidence was given to the Tribunal today by the following:
· Mr and Mrs Hermanussen;
· Mr Colin Wilson, the dog trainer and behaviourist, who gave evidence on the behaviour of the dog, or of dogs in general, but does not know this dog, Zeus in particular;
· Mr Terry Boyle;
· Mr Chris McCahon, the Council Officer that reviewed the original decision after representations from the Applicants.
Section 89 allows the Brisbane City Council to declare Zeus a dangerous dog, but only if the dog has seriously attacked or acted in a way that causes fear to a person or may do so. A menacing dog is made in circumstances where the attack is not serious. That is s 92. To seriously attack means ‘to attack in a way that causes bodily harm, grievous bodily harm or death’.
It is conceded that Zeus bit Mr Boyle. The attack occurred during an interchange between Mrs Hermanussen and Mr Boyle in the front yard of the property adjoining Mrs Hermanussen’s residence. Zeus was on a lead under the control of Mrs Hermanussen. Mrs Hermanussen alleges that if it were not for Zeus’s presence, she believes Mr Boyle would have hit her with his raised arm.
Mrs Hermanussen says that she did not see the bites on Mr Boyle that were made by Zeus. She was however, on her evidence three to four metres away from Mr Boyle, and not inclined after the interchange between them, to re-engage with him.
Mr Joseph Boyle he also did not see the actual attack alleged by Mr Terry Boyle, but did see the wounds immediately after the event as he walked around the car to see what had happened.
The photographs produced were taken on the night of the incident, and are consistent with the evidence of both Mr Boyles. A medical certificate is also dated 7 September, and reports wounds to Mr Boyle’s right calf consistent with a dog bite.
The issue before me today is whether Zeus seriously attacked Mr Boyle in terms of the provision of s 89 and whether a declaration should be made in relation to Zeus.
The power to regulate a dog is discretionary, as can be seen under the wording of subsections of s 89 of the Act, and even where an attack has occurred, the circumstances of each matter must be considered.
This is not the first time a complaint has been made about Zeus. The Council refers to another complaint made in 2008, alleging a bite or an attempted bite by Zeus against a swimming-pool serviceman at the front door of the Hermanussens’ home.
Mrs Hermanussen alleges that Zeus was provoked by the man kicking her. This is denied by the tradesman. His version of events, given in a statement at the time, was that the dog was angry and when the door opened, the dog rushed out and grabbed the man’s leg.
The Dangerous Dog Assessment tool used by the Council resulted in a score for Zeus of 40 from a possible 100, which on the assessment scale is the tipping point of a rating of menacing to dangerous dogs. This is a guide to Council officers only.
The Council submits basically that Zeus should be regulated as a dangerous dog because in essence the Act’s objects are to foster responsible dog ownership. Zeus bit Mr Doyle while under the control of Mrs Hermanussen and on a lead, and if the dog were muzzled in public this attack would not have occurred.
Mrs Hermanussen submits that Zeus should not be regulated dog, because Zeus was provoked on both occasions he attacked. Mrs Hermanussen submits that the environmental reality for Zeus, that he is an inside dog; he does not go to dog parks and he has physical conditions limiting him because of his age and infirmity. She says these are all reasons why the prospects of Zeus biting again are limited or if Zeus is to be regulated, it should be as a menacing dog, because she says on the balance of the evidence I am unable to make clear findings concerning the circumstances of the argument between the parties.
It is conceded, as I said earlier, that Zeus did bite Mr Boyle, inflicting wounds that are shown in the photographs and as described by the medical certificate. I am satisfied that the bite caused bodily harm to Mr Boyle. That is clear from the evidence of the medical certificate and the photographs. There are puncture wounds to Mr Boyle’s leg consistent with a dog bite.
I am also satisfied that there was an argument occurring at the time between Mr Boyle and Mrs Hermanussen, and that Zeus was acting in a protecting way towards his owner. Mrs Hermanussen went onto the neighbouring property to speak to Mr Boyle about the fence. Accounts of the interchange are widely varying, depending on who gives the evidence. I am satisfied that Mrs Hermanussen was upset when she first approached Mr Boyle, as she thought he was packing up to leave the job, and the agreed fence work was incomplete.
Mr Boyle says that that was not the case, but clearly things escalated between them, and I am satisfied despite Mr Boyle’s evidence that he met fire with fire. Zeus picked up on the anger of his owner and Mr Boyle, and Zeus was not sufficiently controlled by Mrs Hermanussen during the incident, even though he was on a lead, to prevent him from biting Mr Doyle.
On the previous occasion in 2008, I am also satisfied that Zeus was not controlled sufficiently by either Mr or Mrs Hermanussen at the front door of their home, and potentially another person could have been bitten. On that occasion, the swimming pool serviceman’s evidence was that he was very nervous of dogs and his hands were shaking, and that he found himself developing fear.
We know from the evidence from Mr Wilson who, despite not knowing Zeus in particular, was brought in as an expert on dog behaviour, that dogs will pick up on fear or unusual emotions, high emotions from strangers or, in particular, from their owners.
Mrs Hermanussen denies the previous incident, saying Zeus was provoked by the man kicking, but I am satisfied that unless controlled carefully by Mr and Mrs Hermanussen, Zeus will attack when either provoked or trying to defend his owners.
In amelioration of this propensity, the evidence of Zeus’s vets and other parties is that he is an otherwise placid dog with some medical conditions which now restrict his movement.
Mr Wilson’s evidence gave me three behaviour options for dogs when provoked – flight, growling or biting. This dog, when he is provoked or when he considers that he is afraid, bites. On the evidence of the incidents before me today, that is the way Zeus reacts.
On balance, I am satisfied that proper control of Zeus by Mr and Mrs Hermanussen, would substantially lessen the risk of any further attack occurring, but the fact remains that in uncontrolled circumstances, and with the right amount of emotion on behalf of his owners or a stranger, Zeus will bite to cause bodily harm.
I am satisfied in the circumstances that a declaration as a menacing dog would be sufficient to enforce sufficient control of Zeus in the future, considering his age and conditions. I am also sure that after this process, the Hermanussens will take greater care to ensure Zeus is not given an opportunity to attack in the future.
For that reason, I am prepared to allow Zeus as a menacing dog to go into public without a muzzle. Another event of this kind potentially has very grave circumstances for Zeus.
The Tribunal sets aside the decision of the Brisbane City Council to issue a notice declaring ‘dangerous’ the dog Zeus a male Australian Cattle Dog pursuant to s 89 of the Animal Management (Cats and Dogs) Act 2008 and instead, the dog Zeus, a male Australian Cattle Dog, is declared a menacing dog pursuant to s 89 of the Animal Management (Cats and Dogs) Act 2008.
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