Hesketh v Cairns Regional Council
[2018] QCAT 48
•26 February 2018
CITATION: | Hesketh v Cairns Regional Council [2018] QCAT 48 |
PARTIES: | Louise Hesketh |
| v | |
| Cairns Regional Council | |
APPLICATION NUMBER: | GAR234-17 |
MATTER TYPE: | General administrative review matters |
HEARING DATE: | 12 December 2017 |
HEARD AT: | Cairns |
DECISION OF: | Member Johnston |
DELIVERED ON: | 26 February 2018 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | The Tribunal dismisses the Application for Review by Louise Hesketh and finds that the Destruction Order dated 12 June 2017 should stand. |
CATCHWORDS: | ANIMAL MANAGEMENT - DANGEROUS DOG - DISPUTE BETWEEN COUNCIL AND DOG OWNER - whether the evidence established that the dog seized was the animal subject to the Destruction Order - with conflicting evidence about the identity of the dog in the pound. Animal Management (Cats and Dogs) Act 2008 (Qld) |
APPEARANCES: | |
APPLICANT: | Louise Hesketh – self represented |
RESPONDENT: | Cairns Regional Authority represented by Rowan Wilson, Solicitor, Miller Harris Lawyers |
REASONS FOR DECISION
The Applicant in this matter is Ms Louise Hesketh who is the owner of a dog known as ‘Wolf’.
Ms Hesketh applies for a Review of a Destruction Order made by the Respondent under section 127 of the Animal Management (Cats and Dogs) Act 2008 (“the Act”).
Ms Hesketh asserts that the dog which was seized by the Council from her property at 1 Wilcox Close Manoora on 12 June 2017 and taken to the pound is in fact not the dog ‘Wolf’, but another dog known as ‘Dexter’ which is not her dog, but a dog owned by Hayden Lowe, which was being kept at her property.
The parties to the hearing told the Tribunal that the only issue in dispute in this case to be determined is the identity of the dog currently impounded. The matter proceeded on this basis.
The relevant legislation is the Animal Management (Cats and Dogs) Act 2008 (Qld) (“the Act”) at chapters 4 and 5.
The Cairns Regional Council’s position
The Respondent maintains that the dog currently impounded is in fact ‘Wolf’ and submits that the evidence overwhelmingly supports the conclusion that the dog seized on 12 June 2017 from 1 Wilcox Close Manoora is in fact ‘Wolf’.
The Respondent submits that the Destruction Order made 12 June 2017 should stand.
The Respondent agreed to present its evidence first.
Mr Al Courtis – Rapid Response Officer
Mr Courtis gave the following evidence:
a)Part of his role is to respond to and investigate reports of dog attacks. He was the investigating officer from the Council both in May 2016 (when the dog at the residence was Wolf) and again in March 2017 and May 2017 when the dog found at the residence was asserted to be ‘Dexter’;
b)He worked for the Police for five years collecting evidence and had been employed by the Council in his current role for seven years;
c)He had seen the dog ‘Wolf’ on a number of occasions and was satisfied that the dog in the pound was Wolf;
d)He determined that the animal in the pound was the same animal on the basis of the following comparison points:
i)same breed
ii)size of the animal
iii)structure of the animals muscle
iv)white patch on its chest
v)white patch on its toe
vi)Long dripping tongue; and
vii)folded right toe
e)He made a comparison of the features of dog from the photographs taken on 27 March 2017 at 1 Wilcox Close with the photographs taken on 4 May 2016 at the pound and his evidence was that the features described in paragraph d are unique to the dog ‘Wolf”;
f)He stated that the Registration Notice for the dog ‘Dexter’ stated that the breed of the dog was Rhodesian Ridgeback crossbreed. The dog impounded is not a Rhodesian Ridgeback crossbreed. The Registration Notice for the dog ‘Wolf’ shows it as an “Irish Wolfhound/staff Bull Terrier. This is the type of dog in the pound.
g)When he visited the residence, Hayden Lowe did not say that the dog was his nor call the dog by the name of ‘Dexter’.
h)On 17 August 2017, Dakota Hesketh attended the pound to visit the impounded dog. During the visit, she used words to the effect “there you go Wolfie”.
Louise Hesketh’s position
The Applicant’s position is that the dog seized is an animal by the name of ‘Dexter’, which is a Rhodesian ridgeback crossbreed and is a different animal, to the dog called ‘Wolf’.
Louise Hesketh
Louise Hesketh gave evidence that:
a)the animals ‘Wolf’ and ‘Dexter’ were quite similar;
b)that the animal ‘Wolf’ had been bitten by a tick and died and was buried in her backyard in November 2016;
c)that the dog ‘Dexter’ was owned by her daughter’s ex-boyfriend Hayden Lowe;
d)acknowledged that she had not notified the Council of Wolf’s death;
e)admitted that she had called the dog at the pound ‘Wolfie” when she attended the council pound on 15 June 2017.
The evidence before Ms Miller the primary decision maker
On 13 July 2017 Kylee Miller, Coordinator Local Laws Compliance of Cairns Regional Council made a decision pursuant to section 186(1) (b) (i) of the Animal Management (Cats & Dogs) Act 2008. The Tribunal looked at that decision, and can see no error in the approach of Ms Miller adopted in relation to the review application before her. The Tribunal notes the information contained in paragraphs 57, 59 and 60 of those reasons:
57. Although you have asserted that the dog ‘Wolf’ is deceased and that the Council has seized and impounded another dog (registered as ‘Dexter’, as outlined in paragraph 34 above), that the dog that was seized and impounded was in fact ‘Wolf’ and that the dog is not in fact deceased. The evidence that I rely upon in this respect is:-
a. The owner of the victim dog in relation to the attack on 19 March 2017, was certain that the attacking dog was the same dog that attacked his dog and wife on 3 May 2016 (which lead to your dog ‘Wolf’ being regulated as a Dangerous Dog);
b. The same Council Officer investigated a number of incidents involving the dog ‘Wolf’, being those that occurred 3 May 2016, 19 March 2017 and 10 May 2017 and being therefore familiar with the dog, has identified it as being the same dog;
c. The dog was located at your address at 1 Wilcox Close, Manoora on each occasion, not at the registered address of the dog ‘Dexter’ namely, 64 Hayward Street Mooroobool;
d. When Council Officers attended your address on 27 March 2017 you asserted that the dog in question was owned by friends in Cooktown, however would not provide their names. This is at odds with your subsequent assertion that the dog is owned by Hayden Lowe at 64 Hayward Street, Mooroobool. Hayden Lowe is or was the partner of your daughter Dakota Hesketh;
e. Although you asserted the dog is owned by Hayden Lowe, you have lodged the Application for Review in your name, have contracted Council and a number of occasions in relation to the dog and attended the pound on number of occasions to visit the dog, indicating you are the responsible person for the dog;
f. I have viewed photographs taken of the dog during the time of investigation of the attack which led to the dog being regulated as a dangerous dog, and during further investigation of the attacks that have occurred after you have asserted dog was deceased in December 2016 and I am of the view that the dog in the photographs is the same in appearance.
59. The grounds you submitted in your (first) Application for Review in relation to the Regulated Dog Declaration Notice (set out in paragraph 24 above), were the amount of the registration fee for regulated dogs, the requirements of containment, and that Wolf was not a vicious dog and had not been involved in an attack before.
60. I am of the view that the evidence suggest you sought to avoid the high registration fee and the permit conditions associated with keeping a Regulated Dog, by asserting that the dog Wolf was deceased and arranging for another person to register the dog on 27 March 2017 under another name, as another breed and on the basis that it was owned by another person, namely your daughter’s partner Hayden Lowe. Alternatively, or in addition, I am of the view that the evidence suggest you arranged this registration, as your dog Wolf was involved in another attack reported to Council on 19 March 2017, in an attempt to avoid the consequences of that attack.
The Tribunal is satisfied that Ms Miller correctly weighed up the evidence before her in making a decision. The basis of the decision is set out in paragraph 57 above. The decision-making seems to be well balanced. The Tribunal also notes the concerns expressed in paragraph 60 of the reasons.
The Tribunal believes that it would be unwise to accept the sworn evidence of witnesses who were not available for cross-examination. The Tribunal places no weight on the statements of witnesses not available to give evidence at hearing.
The Tribunal believes the preferential view of the evidence is to accept the evidence of Mr Courtis who has set out the basis for his identification of the dog in the pound as ‘Wolf’. Ms Miller conducting the review accepted his evidence. The Tribunal has also convinced to accept his evidence.
The Tribunal also notes that Mr Courtis received the accounts of independent witnesses who gave evidence supporting his investigation. These witnesses identified the dog as ‘Wolf”.
The Tribunal would also like to highlight the absence of Hayden Lowe the purported owner of the animal ‘Dexter’. Ms Miller in her decision came to the view that the Applicant was the responsible person because she attended the pound and lodged the application. The Tribunal is of the view that if the dog was a different animal and Mr Lowe was the owner he would have been the responsible person. He would have lodged the application and visited the animal in the pound. The clear inference from his absence is that there is no animal called ‘Dexter’. The Tribunal is of the view that Ms Miller rightly identified the Applicant as the responsible person.
If the animal was owned by Hayden Lowe and was a different animal, then as owner he would be the correct applicant. The fact is that the applicant was the applicant for review at first instance. The only inference that can be drawn from this is that the dog in the pound is ‘Wolf’.
When the officer attended the residence and saw the dog Hayden Lowe was present and had the opportunity to say that the dog was his and that its name was Dexter. This did not happen because the dog was actually Wolf. The Tribunal is of the view that the registration of the dog as Dexter was a ruse to get around the Destruction Order. The Tribunal is of the view that the use of the name ‘Dexter’ was concocted and the evidence of the applicant and her witnesses is fabricated.
The account of Mr Courtis and the account of Louise Hesketh and her witnesses are not reconcilable. The Tribunal has accordingly done an assessment of the evidence which it sees as most reliable.
Louise Hesketh as a witness did not impress the Tribunal. She admitted in paragraph 12 of her affidavit that she had given “the Council false information”. Her oral evidence was that the dogs were very similar. The Registration Notices for Dexter and Wolf are quite different. The only basis for saying they were very similar was that they are the same dog that Dexter is a fiction or concoction.
The evidence of applicant’s witnesses who gave evidence that ‘Wolf’ had been buried after suffering a fatal tick attack can only be viewed as having been fabricated. This is supported in relation to Dakota Hesketh for example with her visiting the pound and calling the dog “Wolfie”. There is evidence of both Louise Hesketh and Dakota Hesketh referring to the animal in the pound as ‘Wolf’ and not ‘Dexter’. If the Tribunal accepts this evidence which it does this raises a cloud in relation to all the witnesses who gave an account of the dog being buried after dive tick attack.
The Tribunal for these reasons was not impressed by the applicant’s witnesses and did not place weight on their evidence.
The Tribunal
The issue in dispute is the identity of the dog in the pound.
The Tribunal having listened to the evidence of the witnesses and looked at material accepts the evidence of Mr Courtis.
The Tribunal accepts this evidence for the following reasons:
a)he has correctly identified the points of comparison that uniquely identify the animal in the pound as ‘Wolf’
b)the Applicant concedes that the animals are very similar - this is because they are actually the same dog
c)the Applicant called the animal “Wolfie” when she attended the pound because the animal was her dog
d)the Applicant’s daughter Dakota call the animal “Wolfie” when she attended the pound
e)the Applicant has been going to the pound because it is her dog
f)the Applicant has brought the Application for the Review of the Destruction Order because the animal is her dog
g)the animal registered as ‘Dexter’ is stated to be a Rhodesian Ridgeback crossbreed. The Tribunal accepts the evidence of the Respondent that the animal in the pound is not a Rhodesian ridgeback cross.
h)the applicant under cross-examination contradicted her affidavit evidence in several points
The Tribunal having looked carefully at the photographs concurs with Ms Miller and Mr Courtis that the dog in the pound is ‘Wolf’.
The Tribunal dismisses the application.
The Tribunal finds that the Destruction Order dated 12 June 2017 should stand.
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