Homan v Moreton Bay Regional Council

[2020] QCAT 455

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Homan v Moreton Bay Regional Council [2020] QCAT 455

PARTIES:

TREVOR HOMAN

(applicant)

v

MORETON BAY REGIONAL COUNCIL

(respondent)

APPLICATION NO/S:

GAR265-19

MATTER TYPE:

General administrative review matters

DELIVERED ON:

5 November 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

The decisions under review are confirmed.

CATCHWORDS:

ANIMALS – VARIOUS STATUTORY PROVISIONS – REGULATION OF COMPANION ANIMALS – OTHER MATTERS – dangerous dog declarations – where dogs caused death of three chickens

Animal Management (Cats and Dogs) Act 2008 (Qld), s 3, s 59, s 60, s 70, s 89, s 90, s 94, Schedule 1
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20

REPRESENTATION:
Applicant:	Self-represented
Respondent:	Self-represented
APPEARANCES:	This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

Introduction

1. This is an application for review of decisions made by the Moreton Bay Regional Council on 28 May 2019, to declare Harley and Roxy to be dangerous dogs pursuant to the Animal Management (Cats and Dogs) Act 2008 (Qld) (the Animal Management Act).

2. Mr Homan is the owner of Harley and Roxy.

3. The dangerous dog declarations relate to an incident on 4 April 2019.  It is not in dispute that Harley and Roxy caused the death of three chickens in this incident.  In his statement to the Tribunal dated 17 June 2020, Mr Homan stated:

   I am not disputing that my animals did cause an incident last year which resulted in 3 chickens passing away.  The dogs did not savage them in any way they chased them and caught them.  Due to chickens being of a fragile build unfortunately the passed away.  This was not aggressive behaviour in any way.

The legislative regime for regulated dogs

1. The regime for regulated dogs is contained in Chapter 4 of the Animal Management Act. A dog may be declared to be dangerous if grounds for that declaration exist under s 89(2), which provides that a dog may only be declared dangerous if:

   (a)the dog has ‘seriously attacked’, or acted in a way that caused fear to, a person or another animal; or

   (b)the dog may, in the opinion of an authorised person having regard to the way the dog has behaved towards a person or another animal, seriously attack, or act in a way that causes fear to, the person or animal.

2. Section 89 in the Animal Management Act also contains a definition of ‘seriously attack’, which provides that a dog attack constitutes a ‘serious’ attack if it results in either bodily harm, grievous bodily harm, or death.[1]

   [1]Animal Management Act, s 89(7).

3. The evidence before me is that Harley and Roxy escaped from Mr Homan’s yard, and travelled to a neighbouring yard where they killed three chickens.  Despite Mr Homan’s submissions, I am not able to characterise this course of conduct, where the dogs sought out the chickens, as anything other than an attack.  As the chickens died, the attack was therefore a serious attack.

4. In circumstances where it is proposed to make a regulated dog declaration, notice must first be given to the owner,[2] and the owner may then make written representations as to why that proposed declaration ought not be made. The local government must then consider any written representations that are made by the owner before a regulated dog declaration is in fact made.[3]  Needless to say, all of these antecedent things have happened in this case.

   [2]Animal Management Act, s 90.

   [3]Animal Management Act, s 94(1).

5. It is important to note that if the local government is satisfied the relevant ground under s 89 still exists, it must make the regulated dog declaration.[4]  There is no discretion.

   [4]Animal Management Act, s 94(2).

6. In a review proceeding it is the responsibility of the Tribunal to arrive at ‘the correct and preferable decision’ by way of a fresh hearing on the merits.[5] The review must be conducted in accordance with the enabling Act, in this case the Animal Management (Cats and Dogs) Act 2008 (Qld). This means the Tribunal has no powers greater than the original decision maker.

   [5]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20.

Conclusion

1. For the reasons given above, I find that the ground in s 89(2)(a) of the Animal Management Act has been established for Harley and Roxy in respect of the 2 April 2019 incident. Accordingly, I have no discretion to do anything other than confirm the decisions by the Moreton Bay Regional Council to declare Harley and Roxy to be dangerous dogs.