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
Queensland Civil and Administrative Act 2009, s 24

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;
·…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Hermanussen v Brisbane City Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] QCAT 710
Decision Date

CaseChat Overview and Summary

The case of Hermanussen v Brisbane City Council concerns the classification of a dog, Zeus, as either dangerous or menacing under the Animal Management (Cats and Dogs) Act 2008. Ferris Frances Hermanussen, the owner of Zeus, sought a review of the Brisbane City Council's decision to declare her dog dangerous, arguing instead for a classification as menacing. The dispute was heard by the Queensland Civil and Administrative Tribunal (QCAT) with Susan Gardiner as the presiding member.

The central legal issue before the Tribunal was whether the dog Zeus had seriously attacked a person, thus warranting a declaration of dangerousness under Section 89 of the Act, or whether a lesser classification as menacing was appropriate. This distinction hinges on whether the attack resulted in bodily harm, grievous bodily harm, or death, as outlined in the Act. The Tribunal had to consider the circumstances surrounding the alleged attack, the dog's behavior, and the evidence provided by both parties.

The Tribunal concluded that while Zeus did bite Mr. Terry Boyle, causing bodily harm, the attack was not of a severity to classify the dog as dangerous. The Tribunal found that Zeus acted in a protective manner towards his owner, Mrs. Hermanussen, during a heated exchange with Mr. Boyle. Furthermore, the Tribunal noted that Zeus had been provoked and was not adequately controlled by Mrs. Hermanussen during the incident. Given the dog's age, medical conditions, and generally placid nature, the Tribunal decided that a declaration of menacing was more appropriate. This classification would ensure that Zeus is controlled in public spaces without necessitating a muzzle, thereby avoiding severe repercussions for another incident.

Accordingly, the Tribunal set aside the Council's decision to declare Zeus a dangerous dog and instead declared him a menacing dog under Section 89 of the Animal Management (Cats and Dogs) Act 2008.

Orders