Hickey v Moreton Bay Regional Council

[2015] QCAT 421

CITATION:	Hickey v Moreton Bay Regional Council [2015] QCAT 421
PARTIES:	Alyssa-Ann Brigitte Hickey (Applicant)
v
Moreton Bay Regional Council (Respondent)

APPLICATION NUMBER: GAR040-15

MATTER TYPE:	General administrative review matters
HEARING DATE:	26 June 2015

HEARD AT: Caboolture

DECISION OF: Member Ann Fitzpatrick

DELIVERED ON: 28 October 2015

DELIVERED AT: Brisbane

ORDERS MADE:

[1]    The decision of the Moreton Bay Regional Council to make the destruction order dated 18 December, 2014 for the declared dangerous dog Calissee is confirmed.

[2]    The decision of the Moreton Bay Regional Council to make the destruction order dated 18 December, 2014 for the declared dangerous dog Drogo is confirmed.

[3]    The application is dismissed.

CATCHWORDS:

Dangerous dogs – review of decisions for destruction orders – s 59(2)(f), s127 Animal Management (Cats and Dogs) Act 2008 (Qld)

APPEARANCES:

APPLICANT: No appearance

RESPONDENT: Moreton Bay Regional Council

REPRESENTATIVES:

APPLICANT: No appearance

RESPONDENT: Moreton Bay Regional Council represented by Mr Angus Conaghan, Solicitor employed by the Moreton Bay Regional Council

REASONS FOR DECISION

1. On 18 December, 2014, the respondent Moreton Bay Regional Council kept 2 seized dogs in custody because of their attack on two people on 17 January, 2014 and because of the applicant, Ms Hickey’s failure to comply with certain conditions contained in Schedule 1 to the Animal Management (Cats & Dogs) Act 2008 (the Act).  The Council made destruction orders in accordance with the Act.  The Council’s decision to make destruction orders is the subject of the applicant’s application for review.

2. Ms Hickey failed to appear at the hearing of the review application. Ms Hickey failed to file and serve any statement of evidence in the matter, despite the Direction to this effect made on 20 April, 2015.

3. At the hearing a Mr Russell Mathews sought to appear on behalf of Ms Hickey as her agent.  He had no means of communicating with Ms Hickey and is not a practising lawyer. Leave was refused for Mr Matthews to appear.

4. Before commencing the hearing an attempt was made by the Tribunal to contact Ms Hickey by telephone, however, she did not respond. Upon perusing the Tribunal file, I am satisfied that the applicant was notified of the hearing. The matter proceeded in the absence of the applicant pursuant to section 93 of the Queensland Civil and Administrative Tribunal Act 2009.

5. I have relied upon the Council’s Statement of Reasons together with attachments, filed 12 May, 2015, being Exhibit 1 in the proceedings; the evidence of Ms Luanna Vitale, Ms Aitasi Vitale and Mr Stuart Duck (Program Leader for the Council Investigation Team).

6. Ms Luanna and Ms Aitasi Vitale gave evidence that they were attacked and bitten by two dogs on 17 January, 2014 between 11.20 am and 11.45 am at the corner of Kylie and Travis Street, Caboolture South. The dogs were wandering at large.  Ms Aitasi Vitale gave evidence that she had previously observed the dogs at 30 Kylie Street, Caboolture, when delivering “junk” mail. I accept their evidence and find that they were attacked and suffered injuries as a result of attacks by 2 dogs which are ordinarily kept at 30 Kylie Street, Caboolture.

7. 30 Kylie Street, Caboolture is the address at which the dogs in question were seized.  Mr Duck gave evidence that he was confident the animals described by both women were the animals seized from 30 Kylie Street. I accept his evidence and find that the dogs seized were the dogs which attached Ms Aitasi and Ms Luanna Vitale.

8. The two dogs are known as Drogo and Calissee.   They were declared Dangerous Dogs on 19 March, 2013 by the Mackay Regional Council as a result of an attack and a number of incidents and complaints.  On 29 May, 2013 Ms Hickey registered Drogo and Calissee with Moreton Bay Regional Council.

9. I accept the evidence of Mr Duck and the reasons given by the Moreton Bay Regional Council for deciding to make destruction orders in relation to the dogs.  In particular I find that:

   (a)Mackay Regional Council made dangerous dog declarations on 19 March, 2013, because Drogo and Calissee were involved in an attack and had been the subject of a number of complaints;

   (b)Drogo and Calissee  attacked Ms Luanna and Ms Aitasi Vitale in January, 2014;

   (c)Ms Hickey did not comply with her obligations under Schedule 1 of the Act to:

   (i)    notify either local government of the changed residential address associated with the dogs;

   (ii)    advise Moreton Bay Regional Council about the dangerous dog declaration when registering the animals;

   (iii)     maintain a proper enclosure capable of confining the animals to her property;

   (iv)     place a sign at or near each entrance to her property notifying the public relevant dogs are kept at the place.

10. I find that the Council has complied with the procedural requirements of the Act in issuing the destruction orders. I consider the dogs are likely to constitute a threat to safety of the community from damage or injury.  A purpose of the Act is to protect the community from that risk.  Section 59(2) of the Act confirms this purpose is to be achieved primarily by allowing authorised persons to seize or destroy dogs in particular circumstances.

11. Ms Hickey has not filed any evidence to support the assertion in her application that the dogs are assistance dogs. In any event, I note that pursuant to s38(e) of the Guide, Hearing and Assistance Dogs Act 2009 a dog may only be certified as an assistance dog if it has not been declared a dangerous dog under a local law.

12. Ms Hickey also asserts in her application that the Council had no power to make the destruction orders or for that decision to be confirmed upon internal review.  She relies on arguments raised by her in Magistrates Court proceedings against the Queensland Police associated with seizure of the dogs. As Ms Hickey was not in attendance at the hearing to make submissions on these issues and has not filed any supporting evidence in this regard, I am unable to give further consideration to the issues.

13. The decision of the Council to make the destruction order dated 18 December, 2014 for the declared dangerous dog Calissee is confirmed.

14. The decision of the Council to make the destruction order dated 18 December, 2014 for the declared dangerous dog Drogo is confirmed.

15. The application is dismissed.