IOPPOLO and CITY OF WANNEROO - [2013] WASAT 172

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: DOG ACT 1976 (WA)

CITATION: IOPPOLO and CITY OF WANNEROO [2013] WASAT 172

MEMBER: MS N OWEN-CONWAY (MEMBER)

HEARD: 31 JULY 2013

DELIVERED : 16 OCTOBER 2013

FILE NO/S: CC 641 of 2013

BETWEEN: JASON LOU IOPPOLO
Applicant
AND
CITY OF WANNEROO
Respondent

Catchwords:

Dangerous dog declaration - Notice - Authorised person - Attack - Rushing - Harassing - Injury - Turns on own facts

Legislation:

Dog Act 1976 (WA), s 3(1), s 33E, s 33E(1)(a), s 33E(2), s 33F(2)(b)(ii), s 33I(b)
Dog Regulations 1976 (WA), reg 3, Sch 1
Evidence Act 1966 (WA)
Local Government Act 1995 (WA), s 9.10
State Administrative Tribunal Act 2004 (WA), s 9(a), s 17, s 24, s 27, s 27(1), s 29(1), s 29(3), s 32

Result:

Respondent's decision affirmed

Summary of Tribunal's decision:

The applicant's two dogs had no history of aggressive behaviour. However, on 16 May 2013, the applicant's dogs aggressively rushed at, harassed and chased two other dogs and caused injury to one of those dogs. The applicant's dogs also aggressively rushed at and harassed a neighbour and a child but no injury or damage resulted therefrom. The Tribunal affirmed the respondent's decision to declare both of the applicant's dogs as dangerous dogs, pursuant to s 33E of the Dog Act 1976 (WA).

Category: B

Representation:

Counsel:

Applicant: Self represented
Respondent: Self represented

Solicitors:

Applicant: N/A
Respondent: N/A

Case(s) referred to in decision(s):

Sammut v AVM Holdings Pty Ltd [No 2] [2012] WASC 27

REASONS FOR DECISION OF THE TRIBUNAL:

The application

On 27 May 2013, the applicant filed two applications in the Tribunal for review of the respondent's decision to issue two notices declaring that each of the applicant's dogs (Jack and Jet) are 'dangerous dogs' (declarations) pursuant to s 33E of the Dog Act 1976 (WA) (Dog Act). However, only one of the applications was recorded by the Tribunal as having been lodged. The other application was overlooked. On 6 June 2013, at the initial directions hearing of the application for review of the decision to issue the declaration concerning his dog, 'Jet', the applicant brought to the Tribunal's attention that he had made a second application for review of the decision to issue the declaration concerning his dog, 'Jack'. Without objection from the respondent, the Tribunal ordered that this proceeding be amended to additionally refer to, and seek review of, the respondent's decision to issue the notice of declaration concerning Jack and made pursuant to s 33E of the Dog Act.

The reviewable decision

On 19 May 2013, the respondent issued the notices. The notices are identical, save for the name of the dogs. The notices described Jack and Jet as Rhodesian Ridgeback cross Bull Mastiffs. Each notice records that it is made pursuant to s 33E of the Dog Act, and the justification for the declarations in each notice is identical, save for the name of the dog. Relevantly, each notice provides:
1. Your dog [Jet/Jack] attacked two dogs while they were being walked on a leash by their owner on Bayport Circuit, Mindarie on Thursday 16 May 2013 causing injury to one of the dogs.
2. That your dog [Jet/Jack] soon after the above mentioned incident, continued to display aggressive behaviour towards several other residents that reside in Bayport Circuit, Mindarie.
Each notice records the applicant's right of review and the requirements that follow from the declaration, and each is signed by Mr Ian McDowell 'Authorised Person City of Wanneroo', the applicant, the Ranger who served each of the notices and a witness to the serving Ranger's signature (another Ranger).
Sections 33F(2)(b)(ii) and 33I(b) of the Dog Act confer jurisdiction on the Tribunal to review the 'declaration'. Implicitly, a review of the 'declaration' involves a review of the decision to declare Jet and Jack 'dangerous' dogs. By reason of s 17 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the application to review the decisions to make the declarations falls within the Tribunal's review jurisdiction.

The Tribunal's review jurisdiction

In exercising the Tribunal's review jurisdiction, the Tribunal is to review the decision in question by way of a hearing de novo for the purposes of producing the correct and preferable decision on the basis of the information and evidence before the Tribunal at the time of the review (s 27 of the SAT Act). In the exercise of its review jurisdiction, the Tribunal is not limited in its considerations to the material that was before the original decisionmaker, nor to a consideration of the original decisionmaker's reasoning alone (s 27 of the SAT Act). Section 29(1) of the SAT Act provides that all of the functions and discretions conferred on the original decisionmaker are conferred on the Tribunal, in addition to the powers conferred on the Tribunal by the SAT Act. Section 29(3) of the SAT Act confers specific powers on the Tribunal in the disposition of the review application (affirmation or variation of the reviewable decision; setting aside the reviewable decision and instead substituting its own decision; or setting aside the reviewable decision and remitting the 'matter' back to the decisionmaker with directions or recommendations).
The Tribunal is not bound to apply the Evidence Act 1966 (WA), the rules of evidence or the practices and procedures of any courts of record (s 32(2)(a) of the SAT Act), but is bound by the rules of natural justice (s 32(1) of the SAT Act) and 'is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities' (s 32(2)(b) of the SAT Act). The more flexible procedure provided for by s 32 of the SAT Act, however, does require that Tribunal decisions are made on the basis of evidence that has prohibited force: see Sammut v AVM Holdings Pty Ltd [No 2] [2012] WASC 27 and cases referred to therein. Further, the Tribunal is bound to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in a proceeding (s 32(7)(a) of the SAT Act). In conducting the proceeding, the Tribunal is to review decisions fairly and according to the substantial merits of the case (s 9(a) of the SAT Act).

Proceedings in the Tribunal

At the initial directions hearing, the Tribunal made orders pursuant to s 24 and s 32 of the SAT Act to facilitate the filing of statements of issues, facts and contentions by each party; documents in support of the applicant's case; summaries of both parties' witness evidence and, in the respondent's case, documents relevant to the Tribunal's review of the reviewable decisions to issue the declarations. In compliance with those orders, on 26 June 2013, the respondent provided to the Tribunal and the applicant with the following documents:
1) a statement of issues, facts and contentions dated 26 June 2013;
2) a s 21 statement of reasons for decision dated 26 June 2013;
3) a s 24 bundle of documents which included:
a)City of Wanneroo After Hours Call Log extract dated 16 May 2013;
b)an email from the responding Ranger to the investigating officer - dated 16 May 2013;
c)Customer Request Form - dated 16 May 2013;
d)pictures of applicant's dogs - dated 16 May 2013;
e)witness statement of Mr Phillip Adams - dated 17 May 2013;
f)Ranger report, Balcatta Vet Hospital - dated 17 May 2013;
g)pictures of injured dog - dated 17 May 2013;
h)witness statement of Mr Ben Hubbard - dated 18 May 2013;
i)witness statement of Ms Nicki McEwan - dated 18 May 2013;
j)witness statement of Ms Kerri McEwan - dated 18 May 2013;
k)witness statement of Ms Marilyn McEwan - dated 18 May 2013;
l)Dangerous Dog Declaration, Jack - dated 19 May 2013;
m)Dangerous Dog Declaration, Jet - dated 19 May 2013;
n)copy of Jet's registration details from City of Stirling - dated 30 May 2013
o)copies of infringements issued to applicant - dated 30 May 2013;
p)copies of cautions issued to applicant - dated 30 May 2013;
q)copy of dog attack investigation checklist - dated 16 May 2013;
r)investigating Ranger's statement - dated 26 June 2013;
s)pictures of applicant's dogs witness' identifications - undated;
t)copy of registration details for Jack, from City of Wanneroo; and
u)registration details of the complainant's dog - undated.
On 11 July 2013, the applicant provided the following documents to the Tribunal and the respondent with:
1)the applicant's statement of issues, facts and contentions; and
2)a copy of a report by Dr Garth Jennens, an animal behavioural consultant, dated 9 July 2013.
Prior to the commencement of the hearing, the respondent issued summonses to Mr Philip Adams, Mr Benjamin Hubbard, Ms Nikki McEwan, Ms Kerri McEwan and Ms Marilyn McEwan, each of whom were called to give evidence in the proceedings.

The issues

As questions of fact, the Tribunal must determine:
1)Did Jack and/or Jet aggressively rush at Billy and/or Teddy on 16 May 2013?
2)Did Jack and/or Jet harass Billy and/or Teddy on 16 May 2013?
3)Did Jack and/or Jet chase Billy and/or Teddy on 16 May 2013?
4)Was an injury or any damage caused by 1), 2) or 3) above?
5)Whether the discretion to make a dangerous dog declaration pursuant to s 33E(1)(a) of the Dog Act should be exercised in all of the circumstances.
The Tribunal considers that each of the facts referred to in 1), 2), 3) and 4) are proved, and so finds and concludes that the declarations were properly made.

The statutory framework

Relevantly, s 33E of the Dog Act provides:
(1)A local government, or on behalf of the local government an authorised person or person specifically authorised by the local government for the purposes of this section either generally or in a particular case, may, by a notice in writing given in accordance with section 33F, declare a dog to be a dangerous dog if, in the opinion of the local government or that person
(a)the dog has caused injury or damage by an attack on, or chasing, a person, animal or vehicle;
(b)the dog has, repeatedly, shown a tendency
(i)to attack, or chase, a person, animal or vehicle even though no injury has been caused by that behaviour; or
(ii)to threaten to attack;
or
(c)the behaviour of the dog meets other criteria prescribed for the purpose of this section.
(2)For the purpose of subsection (1)(b), a dog to which section 30(3) applies shall not be taken to show a tendency to attack, or chase, in carrying out the activities referred to in section 30(3) in relation to a dog of that kind.
…
In this proceeding, the respondent does not rely upon any behaviour that meets the criteria prescribed for the purposes of s 33E of the Dog Act, and the Tribunal was not referred to any such prescribed criteria. Further, the exemption referred to in s 33E(2) of the Dog Act has no application in this proceeding.
The term 'attack' in s 3(1) of the Dog Act (unless the context otherwise requires) is defined:
… in relation to the behaviour of a dog, does not include behaviour which was an immediate response to, and was induced by, provocation, but includes
(a)aggressively rushing at or harassing any person or animal; or
(b)biting, or otherwise causing physical injury to, a person or an animal; or
(c)tearing clothing on, or otherwise causing damage to the property of, the person attacked; or
(d)attempting to attack, or behaving in such a manner toward a person as would cause a reasonable person to fear physical injury,
unless the owner establishes that the behaviour was justified by a reasonable cause[.]
In this proceeding, the definition of 'attack', as referred to in subparagraph (c) of the definition of 'attack', has no application. Further, there is no claim by the applicant of reasonable cause for the behaviour of Jet and/or Jack. The obvious purpose of s 33E of the Dog Act is to warn the public of the dangerous or fearsome behaviour of a dog so the public can be alerted to the behaviour so as to avoid injury, damage and fear to the public.
Reading the definition of 'attack' in s 3(1) of the Dog Act with s 33E of the Dog Act, an 'attack' may involve injury or damage caused by an attack on a person, animal or vehicle. For example, where a dog aggressively rushes at or harasses a person, animal or vehicle, but causes no injury or damage, the act of aggressive rushing or harassment is an 'attack' for the purposes of the definition (subparagraph (a) of the definition of 'attack'). Such an attack alone, however, does not constitute a ground or basis to declare the dog a dangerous dog as provided for by s 33E of the Dog Act. If the dog aggressively rushes at or harasses a person, animal or vehicle and the dog causes injury or damage, that attack does constitute grounds or a basis to declare the dog a dangerous dog as provided for by s 33E(1)(a) of the Dog Act. It is not necessary, for s 33E(1)(a) of the Dog Act, for the 'physical injury' to be the consequence of a dog bite (as in subparagraph (b) of the definition of 'attack') or for the offending dog to tear clothing or otherwise cause damage to the 'person attacked' (as in subparagraph (c) of the definition of 'attack').
An attempt by a dog to aggressively rush at or harass any person, animal or vehicle constitutes an attack (as referred to in subparagraph (d) of the definition of 'attack') and, if by reason of that attempt, the dog causes injury or damage, grounds exist to declare the dog a 'dangerous' dog pursuant to s 33E of the Dog Act. In such an example, there may be no contact at all between the offending dog and the person, animal or vehicle to which the attempt is directed. The same applies to a situation in which the dog behaves 'in such a manner towards a person as would cause a reasonable person to fear physical injury' (as referred to in subparagraph (d) of the definition of 'attack'). For the purposes of s 33E(1)(a) of the Dog Act, there must be injury or damage caused by the offending dog's 'attack' on a person, animal or vehicle, even if there is no contact between the offending dog and the person, animal or vehicle that was the subject of the attempt or other behaviour referred to in subparagraph (d) of the definition of 'attack'.
There is no extended definition of 'chasing' in the Dog Act which carries its plain and ordinary meaning, but the offending dog's chasing of a person, animal or vehicle must cause injury or damage in order for there to be grounds to declare the dog a dangerous dog pursuant to s 33E of the Dog Act. In the Tribunal's view, there need not be injury or damage to the person, animal or vehicle that was the subject of the attack or chase, as the express words of s 33E(1)(a) of the Dog Act do not provide for coincidence between the target of the attack or chase and the subject of the injury or damage. There must be, however, injury or damage caused by the attack or chase.
There was no issue between the parties that each of the notices comply with s 33F of the Dog Act. Further, and for the reasons referred to above, the Tribunal is satisfied that the notices both comply with s 33F of the Dog Act.
As to Mr McDowall's authority to issue the notices, there was no dispute between the parties that the notices were validly issued by Mr McDowall, the Coordinator Community Safety for the City of Wanneroo, as an authorised person. However, the Tribunal notes that:
a)Form 1 of Sch 1 of the Dog Regulations 1976 (WA) (Regulations) and reg 3 of the Regulations provide that a certificate (in the form of Form 1 Sch 1 of the Regulations) 'shall' be issued to a person who is authorised to exercise any power under the Dog Act; and
b)section 9.10 of the Local Government Act 1995 (WA) provides that the local government 'shall' issue to each person authorised to perform particular functions 'a certificate stating that the person is so authorised, and the person is to produce the certificate whenever required to do so by a person who has been or is about to be affected by any exercise of authority by the authorised person'; but
c)the respondent did not provide the Tribunal with a copy of any certificate evidencing the authority of Mr McDowell to issue the notices pursuant to the Dog Act.

The facts

The applicant is the owner of two dogs, Jack and Jet. Jack is the son of Jet. Jack and Jet are both registered in accordance with the Dog Act and the respondent's local laws (No 1502792 and No 14L05976 respectively). Neither dog has a history of breaches of the Dog Act. There was no dispute between the parties concerning the applicant's general care and responsibility for and towards his two dogs. The applicant kept Jack and Jet in his property which is fenced and gated. None of the witnesses who gave evidence and lived in or visited the neighbouring properties had previously been aware of Jack or Jet prior to an incident on 16 May 2013.
On 16 May 2013 at about 7 pm, Mr Philip Adams, who resides at No 44 Bayport Circuit, Mindarie, gave evidence that he took his two dogs (Billy and Teddy) on a dual lead for a walk along Bayport Circuit. Billy was described by Mr Adams as a puppy Beagle cross Cavalier Spaniel and Teddy as an adult American Cocker Spaniel. After about 150 metres from his home, two dogs rushed out of the dark towards Mr Adams. There was no dispute that the two dogs that rushed out of the dark were Jack and Jet. Mr Adams said that he anticipated that Jack and Jet intended to sniff his dogs. Mr Adams gave evidence that 'both dogs' instantly began 'attacking' his two dogs. At some point Mr Adams said 'one dog backed off and the other continued to attack' his dogs. Mr Adams gave evidence that the next '5 to 10 minutes' were a blurred series of struggles and one dog was 'clamped' onto Billy, while Mr Adam's older dog, Teddy, tried to defend Billy. Mr Adams said that he recalled shouting for help and trying to prise apart the jaws of the dog attacking Billy. Mr Adams then said that that dog took a bit of a 'breather' and let go of Billy. Mr Adams held that dog's collar. For the reasons referred to below, the Tribunal finds that the dog that had 'backed off' is Jet, and the dog whose collar Mr Adams held was Jack. According to Mr Adams, both Jack and Jet rushed at and harassed both Billy and Teddy on the walk, albeit that only Jack bit Billy, evidenced by having Billy in his jaws and the injuries sustained by Billy. Given that Jack and Jet 'immediately' began aggressively harassing Billy and Teddy and that Mr Adams saw Billy in Jack's jaws, the Tribunal finds that when Jack and Jet rushed towards Billy and Teddy on the walk, they both did so aggressively.
At that point Mr Adams shouted to Billy and Teddy to go home. He said that he had held Jack by his collar but then Jack managed to slip free of his collar. Mr Adams said that he was left holding Jack's collar and observed Jack chasing after Billy and Teddy who were running towards his home. Mr Adams said that his home is close to a park and a pond and he watched while the offending 'dogs' chased Billy and Teddy into the pond. At some point, Jet joined the chase. Mr Adams said that he watched both Jack and Jet attacking his two dogs in the pond. He said that mainly the attack was perpetrated on Billy. Mr Adams said that he ran to the park, waded into the pond, entered the fray with the four dogs, retrieved Billy from the attack by Jack and Jet, carried out his two dogs and set them on the bank of the pond. Mr Adams then noticed that one dog was standing five to six feet away and he said that he had crouched between his two dogs and that dog. It is not clear whether that dog was Jack or Jet. The Tribunal finds that Jack and Jet chased Billy and Teddy into the pond and both were harassing Billy and Teddy. The Tribunal finds that, given that Mr Adams had to separate Jack and Jet from Billy and Teddy, some of Billy's injuries more probably than not were inflicted at the pond by one or other of the dogs, but more probably than not by Jack, for the reasons referred to below.

Along the embankment, Mr Adams saw people and shouted at them to take their dogs away. These people said that the dogs were not theirs. He shouted at them 'to do something'. At this stage, Mr Adams was more concerned with his two dogs than he was with Jack and Jet. Mr Adams said that his dogs were both 'screaming' and they had defecated in fear. He took both Billy and Teddy to his neighbour who is a vet. Mr Adams' neighbouring vet examined Billy and described his condition as having been 'severely' bitten. Teddy was not bitten but was shaken by the episode and had bruising to one of his ears. Mr Adams' neighbouring vet told him to attend the Balcatta Veterinary Hospital, which he later attended.
In describing the incident, Mr Adams said that there was no warning that Jack and Jet were going to attack Billy and Teddy. He said that Jack and Jet 'rushed' out of the darkness from the location of the applicant's property and were extremely fast. Mr Adams agreed that he could have been mistaken about the time that it took for this incident to occur but he said it seemed like a very long time to him at the time. Mr Adams stated that it was not a sustained attack, but two or three breathers in between the attacks of both Jack and Jet on Billy and Teddy.
As to Jack's attack on the walk, Mr Adams commented that after he grabbed Jack's collar, Jack did appear to stop momentarily and had an opportunity to cease the attack, but instead shook himself free of his collar and chased after Billy and Teddy to continue the attack. Mr Adams was unable to say how long he had held Jack by the collar before Jack slipped free.
Ms Nikki McEwan (Nikki) also gave evidence for the respondent. Nikki was visiting her mother at No 62 Bayport Circuit, Mindarie. At about 7 pm on the evening in question, Nikki heard a man yelling. She went to the front of the house and then to the pond in the direction of the source of the yelling. Nikki noticed two dogs running towards her and then past her. There is no dispute that the two dogs she saw at this point were Jack and Jet. At the pond, Nikki observed a man she described as Mr Adams, who was very upset, with two dogs who were wet, but out of the pond. Nikki said that she did see all four dogs in the pond, although it was dark. Nikki said that Mr Adams asked if she could get his wife to assist, which she did. Nikki helped Mr and Mrs Adams and then went back to her mother's house. She said that she called triple zero and was put through to the respondent's Ranger. She noticed that after they had rushed past her, Jack and Jet seemed to stop around the applicant's home. Under crossexamination, Nikki agreed with the applicant that after seeing the dogs in the applicant's home, she was not afraid of the dogs. Nikki denied that anyone was aggravating the dogs after the incident at the pond. Nikki also gave evidence that after the attack, her sister's boyfriend, Mr Hubbard, drove his car with the lights on, up and down Bayport Circuit following Jack and Jet, and kept the lights of the car trained on them. Eventually, Jack and Jet came to rest around the applicant's home. Nikki said that the person on the telephone whom she had called had indicated that car lights should be trained on the dogs. Nikki's evidence in contrast to her sister, Ms Kerri McEwan (Kerri) was not entirely clear as to who telephoned and spoke with the Ranger. However, Mr Hubbard, Nikki and Kerri all stated that one or the other of the girls spoke with the Ranger and they conveyed to Mr Hubbard the Ranger's advice to keep the car lights trained on Jack and Jet, which is what Mr Hubbard did.
Mr Hubbard gave evidence that between about 7 pm and 8 pm he was doing the dishes in the kitchen at his girlfriend's (Kerri) mother's house (Ms Marilyn McEwan) at No 62 Bayport Circuit, Mindarie, when he saw a dog in the garage sniffing around. Approximately 10 minutes later, Mr Hubbard said he heard a man screaming and went to investigate the noise. Mr Hubbard picked up a golf club that was laying about the garage or house and went down to the pond. Mr Hubbard saw a man with two dogs on leashes, and two other dogs attacking the man's dogs. Mr Hubbard said that he could hear splashing in the pond and could see that the 'big dog' had the 'little dog' in its mouth and appeared to be 'savage' with the little dog. Mr Hubbard got closer to the pond and banged his golf club on the ground to scare the offending dogs away. The offending dogs ran off past him. There was no dispute that these dogs were Jack and Jet.
Mr Hubbard went to see the man who had the small dogs on the leashes, and then he ran back towards No 62 Bayport Circuit. Mr Hubbard then saw two dogs pacing up and down the street. Mr Hubbard said there were a few people who had come out to investigate the commotion. He said there was a boy standing at the front of No 62 Bayport Circuit. Mr Hubbard said he saw the two dogs and that they 'galloped' towards him and the boy. He and the boy ran inside the front garden of the property and shut the gate. Mr Hubbard said that the dogs were jumping up at him and the boy at the gate. Mr Hubbard said that he was fearful because the latch on the gate was broken and he had to hold the gate shut with the help of the golf club. Mr Hubbard described the dogs, when they were jumping up at the gate, as 'angry' and 'spitting'.
Mr Hubbard agreed with the applicant that the dogs appeared to be 'scared'. Mr Hubbard denied that he was chasing the dogs and said that he was running back to No 62 Bayport Circuit. Mr Hubbard gave evidence that either Nikki or Kerri told him that the Ranger had advised to follow the dogs in the car with the headlights trained on them, which he did, and the dogs came to rest at the applicant's home.
Kerri also gave evidence that she was at No 62 Bayport Circuit that night and saw two large dogs run down to the pond. At the pond, Kerri said she could see that a man was leaning over the two big dogs, which were over, she later realised, two smaller dogs. Kerri said that she, Nikki and Mr Hubbard had followed the noise down to the pond. Kerri said that she had never seen the two large dogs before. There is no dispute that the two large dogs were Jack and Jet.
Ms Marilyn McEwan (Marilyn), at No 62 Bayport Circuit, also gave evidence. She said that she was in the kitchen with her eldest daughter and noticed an 'ugly dog' in the garage. Marilyn instructed someone to shut the door and then she heard someone screaming for help. She said she went outside onto the porch and noticed the dogs running from the pond, and she described them as 'angry', but not growling. Marilyn felt afraid and she went inside. Marilyn noticed that a woman, a boy and Mr Hubbard were behind the gate and that Mr Hubbard was holding the gate shut with a golf club to keep it shut and to stop the dogs from getting in. Marilyn recalls the boy hitting the gate with a stick and also recalls being told that a person on the telephone had suggested keeping car lights trained on the dogs. There was no dispute that the two dogs were Jack and Jet.
Under crossexamination, Marilyn said the dogs were not angry at anyone in particular, that she could observe. Marilyn did not see the attack on the smaller dogs on the walk or at the pond, and was inside her home soon after the dogs came back from the pond.
The applicant gave evidence that his dogs had never caused any trouble and had not attacked anyone or anything. He said that he had a 19monthold son and felt that neither Jack nor Jet posed a safety risk to his young son. The applicant was most upset that the Ranger who attended would not give him sufficient detail about the incident, and said that he applied for a review of the decision to the Tribunal because no one would tell him what happened. The applicant stated that he believed Jack is the dog who attacked and caused the injury to Billy, and he believed that Jet is the dog who stood or sat metres away and observed what was going on. The Tribunal notes that this had only occurred momentarily in Mr Adam's version of events and there is nothing in the evidence to suggest that Jet was merely an observer at all times. The applicant said that when he came home, Jet was in the backyard and Jack was out the front guarding the house. He said that Jet was very well socialised, and suggested that he may have neglected Jack's socialisation in the past. The applicant said that Jet is five to six years old.
The applicant stated that, in effect, Jack did not intend to harm Billy because, if he had so intended to harm Billy, he would have caused much more harm than he did. Intention to cause damage is not a fact that is relevant to determining whether a dog should be declared dangerous, pursuant to s 33E of the Dog Act.
Mr Eyres is a Ranger. Mr Eyres had no involvement in the event, but he contacted Mr Adams and other witnesses to obtain statements. Mr Eyres said that he did give the applicant a verbal account of what he believed had occurred and agreed that he did not provide any statements to the applicant because he had not, at that time, taken any statements. He said, in effect, that he gave the applicant the account he had received from witnesses. He said that he informed the applicant that his dogs had been involved in an attack on the street and at the pond; that there were a number of witnesses; and that he attacks had resulted in injuries to another dog. Mr Eyres observed Jack and Jet, and he took photographs which are included in the respondent's bundle of documents. Mr Eyres said Jack and Jet were not aggressive when he visited. Mr Eyres said that the applicant stated that he had observed Jet display 'dominant behaviour' in the past. The applicant said that this was an overstatement and he had mentioned to Mr Eyres that once he observed Jet walk towards a dog at the beach and the other dog took up a submissive pose. Mr Eyres also gave evidence that he served the notices and confirmed that compliance had not been achieved by agreement, pending the outcome of the review. Most of the crossexamination of Mr Eyres centred on the manner in which Mr Eyres had informed the applicant of the incident and what was not provided to the applicant by Mr Eyres, none of which, has any relevance to the decision the Tribunal must make.
The applicant called Mr Jennens, an animal behaviourist, whose report was provided to the Tribunal and the respondent. Mr Jennens gave evidence that he examined Jack and Jet at the applicant's property and observed their behaviour after giving various commands. Mr Jennens arranged for the applicant to bring Jack and Jet to classes held in Joondalup and observed them walking close to other dogs. Mr Jennens gave evidence that, in his opinion, neither dog showed any aggressive tendencies. Mr Jennens agreed that the dogs were Ridgeback crosses but he did not know what they were crossed with. Mr Jennens said that Jet showed no fear of examination, could be approached, and displayed no growling or barking. Mr Jennens said that Jack was a more 'anxious' dog but showed no aggression. Mr Jennens observed that the dogs allow strangers to pat them and there were no difficulties with strangers patting the dogs. Mr Jennens did observe some 'separation anxiety' and explained that 'separation anxiety' occurs in dogs when they form a strong attachment to an owner and when the dog is separated from the owner. Mr Jennens also stated that dogs generally are not confident outside their own property, unless they are used to walking outside the property.
As to the incident on 16 May 2013, Mr Jennens said that he formed the opinion that the dogs were likely not as confident once they had left the confines of the applicant's property, and the dogs had likely become less confident with other people and were unsettled. Mr Jennens did not observe any danger in either of the dogs, but formed the opinion that once dogs became more anxious, they tended to become more defensive. Under crossexamination, he conceded that, generally, as dogs became more defensive, they became more aggressive.
Mr Jennens cast doubt that the injuries to Billy were caused by either Jack or Jet. Mr Jennens said that when larger dogs grabbed or shook smaller dogs, the larger dog would most likely inflict serious injuries. In this case, Mr Jennens observed from the photographs four superficial wounds to Billy. Mr Jennens suggested that the attack described by Mr Adams was not as aggressive as Mr Adams had described. Mr Jennens did not suggest that Mr Adams exaggerated the incident, but said that if the attack had been as bad as Mr Adams had described, he would have expected serious wounds to Billy. Mr Jennens also held the view that, while two dogs could have 'caused' Billy's injuries, by which he meant actually inflicting the injuries, in his opinion, the injuries to Billy were probably inflicted by one dog, Jack, who is the more anxious of the two dogs. Mr Jennens believed that the respondent should not have declared Jack and Jet 'dangerous' dogs, because:
1)one dog stood back and the other dog may have been more aggressive;
2)no serious wounds had been inflicted in this particular case; and
3)neither Jack nor Jet had any history of dangerous or aggressive behaviour.
In these circumstances, Mr Jennens believed that the respondent should have issued the applicant with a 'warning'. These comments are not, in the Tribunal's view, a matter of evidence. These matters go to the exercise of the discretion and the interpretation of the legislation concerned. They are not a proper matter for opinion evidence.

Injuries

The report from the Balcatta Veterinary Hospital dated 17 May 2013 establishes that Billy suffered four superficial wounds around his shoulder region consistent with being involved in a 'dog fight'. Billy was hospitalised overnight at the hospital, was medicated and released the following day. He was treated with Tramadol for the pain, Carprofen for any swelling and Clavulox (for seven days) for any infection. There was no evidence about the cost incurred by Mr Adams and his wife, Ms Harrington, but no doubt the consultation, treatment and hospital care was not free of charge. The Tribunal finds that Billy's injuries were caused by the attacks and chasing by Jack and Jet referred to herein on 16 May 2013.

The Tribunal's findings

The Tribunal finds that Jack and Jet have no history, prior to 16 May 2013, of any aggressive behaviour or any breaches of the Dog Act. The Tribunal finds that the applicant is a careful dog owner and that both dogs were registered pursuant to the Dog Act. The Tribunal also finds that neither Jack nor Jet had been the subject of any concern to the neighbours in Bayport Circuit prior to 16 May 2013 and in fact, many close neighbours did not know of their existence prior to 16 May 2013.
As to the events on 16 May 2013, the Tribunal finds that the incidents during the walk on Bayport Circuit and at the pond occurred as Mr Adams described. The Tribunal found Mr Adams to be an honest witness who was not prone to exaggerate, but who may have miscalculated the time of the incident. The Tribunal accepts his evidence that it felt like a long time while the attacks occurred. The Tribunal finds that both Jack and Jet aggressively rushed at and harassed Billy and Teddy on their walk. The Tribunal finds that one of the dogs had Billy's body in its mouth. The Tribunal accepts both the applicant's statement and Mr Jennens' statement that the dog that had Billy in its mouth on Bayport Circuit was, more probable than not, Jack.
The Tribunal finds that it is more probable than not that at least some of Billy's wounds were inflicted by Jack on the walk. The Tribunal is not satisfied that Jet had no part to play. Jet assisted Jack in the unified attack on Billy and Teddy, and assisted in corralling Billy and Teddy to enable Jack to bite Billy on the walk. The Tribunal is satisfied, on the balance of probabilities, that Jack and Jet both chased Billy and Teddy into the pond, and one or the other bit Billy. Billy's injuries are described above and the Tribunal finds his injuries to be consistent with having been bitten by a dog. The Tribunal is not satisfied that only Jack bit Billy, as was contended by the applicant, but is satisfied that Jack did bite Billy. At the pond, Mr Adams could not be clear as to which dog had Billy in its jaws at that time, or which dog had bitten Billy. Certainly after he broke up the fray, he saw one dog sitting a few feet away, and the Tribunal can infer that that dog was Jet, based on the evidence of Mr Jennens and the applicant. The Tribunal also infers that it is more probable than not that Jack bit Billy in the pond. However, the Tribunal cannot infer that Jet did not bite Billy in the pond as well.
In any event, the Tribunal is satisfied that both Jack and Jet aggressively rushed at and harassed Billy and Teddy in the pond (as well as on the walk) and chased Billy and Teddy to the pond, and is satisfied they acted in unison.
As stated above, it is not necessary that the injury to Billy be actually inflicted by one dog. The injury must be caused by the offending behaviour of Jack and Jet. Jet's aggressive rushing, chasing and harassing, at the very least, permitted Jack to bite Billy on the walk and probably at the pond. That is enough to form a basis for a dangerous dog declaration pursuant to s 33E(1)(a) of the Dog Act in the case of Jet. The Tribunal does not need to find that Jet inflicted the wound but that her attack or the chase caused the injury and the Tribunal does so find.
As to the second stage of their behaviour that evening, the Tribunal is satisfied, on the balance of probabilities, that both Jack and Jet did harass Mr Hubbard and the boy who stood behind a gate. The applicant suggested that the boy hitting the gate with a stick provoked the dogs' behaviour. There was no evidence that the boy's behaviour provoked the harassment by Jack and Jet. The evidence of Mr Hubbard, accepted by the Tribunal, is that he and the boy ran into the property and he held the gate shut, as they could see the dogs rushing towards them, and then the dogs both continued to aggressively jump up at the gate. This harassment, although it did not cause injury, demonstrated that the dogs were capable of fearsome behaviour and were not afraid at all of the people who came to watch them.
Mr Jennens' evidence is not relevant to whether or not Jack or Jet attacked Billy or Teddy, or were capable of so doing. Nor is his evidence relevant as to whether Billy suffered any injury caused by the attacks. The fact is that Jack and Jet did attack Billy and Teddy, as evidenced by Mr Adams' eye witness account and as a consequence of the unified attacks, Billy suffered injury, regardless of whether it was Jack or Jet that actually bit Billy. Mr Jennens' evidence and the applicant's evidence can only be relevant to the exercise of the respondent's discretion to make the declarations.
As to that issue, the Tribunal finds that, in the past, neither dog has displayed any aggressive tendencies. Mr Jennens' observations and opinion about the behaviour and nature of the dogs is difficult to give any weight to, as he conceded in cross-examination that his observations of Jack and Jet with other dogs and people were in controlled environments where children had been kept away, all dogs were on leashes and there were a number of people about.

Consideration

Having arrived at the conclusions of fact referred to above, the question for the Tribunal now is whether it is the correct and preferable decision that both dogs be declared 'dangerous'. In the Tribunal's opinion, because both Jack and Jet did attack and chase Billy, and their attacks and chasing caused injury to Billy, it was open to the respondent, and it is open to this Tribunal, to declare both Jack and Jet 'dangerous' dogs pursuant to s 33E(1)(a) of the Dog Act. The remaining question is whether the discretion should be exercised by making the declarations in relation to both Jack and Jet.

The Tribunal was provided with reference to a City of Wanneroo Dog Attack Category and Actions flowchart (flowchart). That flowchart is a guide created by the respondent to assist the Rangers when exercising the statutory discretion to declare a dog 'dangerous' pursuant to s 33E of the Dog Act. The flowchart provides that, where the attack is on another animal, if the attack is 'severe' in the sense that it causes major physical contact with injury evident or resulting in death or, alternatively, requires major 'vet' treatment or results in death, the outcomes include the making of a dangerous dog declaration, along with prosecution and consideration of seizing the dog. The flowchart also indicates that, in the case of a 'moderate' attack, that is, minor physical contact with injury evident or either no 'vet' treatment or 'vet' consult only, a dangerous dog declaration should be considered if there is a history of one other minor or moderate offence or if 'other circumstances deem it necessary'. There is no explanation of what those other circumstances are that might 'deem' a dangerous dog declaration 'necessary'. In this particular matter, it seems that the respondent did not follow its flowchart, as Billy's injuries were 'moderate', in the sense that the injuries required only a veterinary consultation and no treatment. As neither Jack nor Jet have a history of attacks, the result, had the flowchart been followed, would have been that the respondent would not have declared either Jack or Jet a 'dangerous' dog. Whilst this flowchart may be of assistance generally to Rangers, in this particular case, the Tribunal does not consider it of assistance, and obviously neither did the respondent as it was not followed. The respondent contended that the attacks on and chasing of Billy and Teddy on the walk and at the pond comprised one incident, and the second incident comprised the harassment of the neighbours, which constituted a separate attack. The respondent contends that the second attack constituted a repeated tendency to attack, for the purposes of s 33E(1)(b) of the Dog Act. The Tribunal does not accept the contention. The attacks on the walk and at the pond, as well as the harassment of Mr Hubbard and the boy, were one incident. The events of the evening of 16 May 2013 referred to above were so closely connected in time and space that it cannot be said that the dogs had shown a propensity or tendency to engage in attacking behaviour or that they behaved similarly in different attacks. What is called for in s 33E(1)(b) is akin to similar fact evidence showing that the dogs in question have a past tendency on more than one occasion for the offending behaviour referred to in s 33E (1)(b) of the Dog Act. In this matter, the Tribunal concludes that the behaviour of Jack and Jet on 16 May 2013 comprised one event, in which there was more than one 'attack' by each of the dogs and more than one episode of chasing by each of the dogs which caused injury, for the purposes of s 33E(1)(a) of the Dog Act.
The swift, powerful and unrelenting attacks on Billy and Teddy, the unprovoked nature of the attacks on Billy and Teddy, the distress that it caused them, the injuries to Billy, the unprovoked harassment of Mr Hubbard and the boy standing behind the gate and the distress to other neighbours and Mr Adams, was quite intense. The dogs, according to the applicant, acted quite out of character, but nonetheless, it was a frightening and ferocious event, albeit that it did not result in very severe injuries. That may well have been more good fortune than anything else. Jack's and Jet's aggressive rushing at, harassment of and chasing of Billy and Teddy and their aggressive harassment of Mr Hubbard and the boy demonstrated their capacity to cause injury and fear to animals and people alike.
The evidence of Mr Jennens goes to the propensity or likelihood of this conduct reoccurring in Jack and Jet, and he does not consider either of them as dangerous. The Tribunal places little weight on the opinion evidence of Mr Jennens, as most of his observations which formed the basis of his opinion were made in controlled environments. He did not observe Jack and Jet out of the applicant's property untethered when he observed how they reacted to other dogs; nor were they alone on 16 May 2013.
The purpose of s 33E of the Dog Act is public safety. The public should feel safe and be safe from dogs that are aggressive. The restrictions and requirements that flow from a declaration serve to warn the public about dogs that have been aggressive. The purpose of s 33E of the Dog Act is not to punish the dog or the owner of the dog. It is not penal in nature. The fact that the attacks are a 'first offence' is not, of itself, relevant. The fact of the attacks and chasing causing injury is relevant. In this matter, the attacks were unprovoked; unexplained; fearsome; sustained; caused injury to another person's animal; disturbed the neighbours; and were directed towards smaller animals, an adult man and a child. The public should be warned that both Jack and Jet have behaved aggressively. In the Tribunal's view, the respondent's decisions to declare each of Jack and Jet to be 'dangerous' dogs pursuant to s 33E(1)(a) of the Dog Act was the correct and preferable decision, and the Tribunal affirms the respondent's decisions.

Orders

For the above reasons, the Tribunal will issue the following orders:
1. The declaration made on 19 May 2013 by the respondent that the applicant's dog, Jet, Registration No 14L05976, is a dangerous dog is affirmed.
2. The declaration made on 19 May 2013 by the respondent that the applicant's dog, Jack, Registration No 1502792, is a dangerous dog is affirmed.

I certify that this and the preceding [55] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS N OWEN-CONWAY, MEMBER