Isberg v Moreton Bay Regional Council

[2021] QCAT 168

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Isberg v Moreton Bay Regional Council [2021] QCAT 168

PARTIES:

GUDRUN ISBERG

(applicant)

v

MORETON BAY REGIONAL COUNCIL

(respondent)

APPLICATION NO/S:

GAR139-20

MATTER TYPE:

General administrative review matters

DELIVERED ON:

10 May 2021

HEARING DATE:

16 April 2021

HEARD AT:

Brisbane

DECISION OF:

Member Browne

ORDERS:

The decision of the Moreton Bay Regional Council of 16 April 2020 to declare the dog ‘Coco’ as a Regulated Dangerous Dog is confirmed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where incident involving a dog bite in a public carpark – where the incident was recorded by camera footage – where injuries sustained by the victim – where the Council declared the dog a dangerous dog – where the dog owner applied for review –– whether the attack was a serious attack – whether the dog should be declared a dangerous dog

Animal Management (Cats and Dogs) Act 2008 (Qld), s 59, s 89, s 94

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 23

Briginshaw v Briginshaw (1938) 60 CLR 336

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented by G Lalor, Brief Management and Prosecutions Co-Ordinator

REASONS FOR DECISION

1. On 10 January 2020, a contractor working for a shopping centre was bitten by a dog ‘Coco’ as he was walking between two parked vehicles inside the underground carpark of the shopping centre. The man was carrying a plastic dustpan and brush. The incident was captured on video footage.

2. At the time of the incident, Coco was sitting inside a parked vehicle, behind the driver’s seat. Ms Isberg, Coco’s owner, was the driver of the vehicle. Although Coco was harnessed to the back seat of Ms Isberg’s vehicle, she was still able to rest her head on the door of the vehicle (with the window down) and could extend her head outside the vehicle.

3. Council investigated the incident. A copy of the video footage was obtained by Council along with statements from Ms Isberg, the man who was bitten by Coco and other people said to have witnessed the incident and the man’s injuries.

4. On 21 February 2020, the Council declared Coco as a regulated dangerous dog for the purposes of the Animal Management (Cats and Dogs) Act 2008 (Qld) (‘the Act’). Ms Isberg applied for an internal review of Council’s decision. On 16 April 2020, the Council confirmed its decision.

5. Ms Isberg now applies for a review of Council’s decision to declare her dog Coco a regulated dangerous dog.

What is the Tribunal’s power on review?

1. The Tribunal on review has all of the functions of the decision-maker, in this case the Council and must hear and decide the review by way of a fresh hearing on the merits.[1]

   [1]Queensland Civil and Administrative TribunalAct 2009 (Qld), s 19 and s 20.

2. The Tribunal effectively stands in the shoes of the Council, exercising the same powers under the Act to arrive at the correct and preferable decision.

3. In assessing the evidence, the Tribunal applies the common law standard of proof being ‘on the balance of probabilities’.[2]

   [2]Briginshaw v Briginshaw (1938) 60 CLR 336.

4. It is convenient to set out below the relevant legislative provisions of the Act for the making of a dangerous dog declaration:

   89 Power to make declaration

   (1) Any local government may, by complying with the requirements of this part—

   (a) declare a particular dog to be a declared dangerous dog (a dangerous dog declaration); or

   (b) declare a particular dog to be a declared menacing dog (a menacing dog declaration); or

   (c) declare a particular dog to be a restricted dog (a restricted dog declaration).

   (2) A dangerous dog declaration may be made for a dog only if the dog—

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

   (b) 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.

   (3) A menacing dog declaration may be made for a dog only if a ground mentioned in subsection (2) exists for the dog, except that the attack was not serious.

   …

   (6) A declaration under this section is a regulated dog declaration.

   (7) In this section—

   seriously attack means to attack in a way causing bodily harm, grievous bodily harm or death.

   …

   94 Making declaration

   (1) The local government must consider any written representations and evidence accompanying them within the period stated in the proposed declaration notice.

   (2) If, after complying with subsection (1), the local government is satisfied that the relevant ground under section 89 still exists, it must make the regulated dog declaration for the dog.

5. Although there is no non-publication order in this matter in relation to the identification of witnesses to the incident including the man who was bitten, I do not consider it necessary for the purposes of considering the evidence and providing my reasons to identify the name of the man bitten by the dog Coco. I will therefore refer to the man who sustained injuries as a result of the incident on 10 January 2020 as ‘the victim’. Further to that, I do not consider it necessary to identify the witness who was seated inside a vehicle parked beside Ms Isberg’s vehicle at the time of the incident. I will refer to this person as ‘the witness’.

6. In this matter, Ms Isberg accepts that the video footage is a true recording of the incident and that Coco bit the victim on his arm. Ms Isberg accepts that Coco’s bite to the victim’s arm resulted in three puncture wounds but says the injury was superficial. Ms Isberg contends that Coco has never acted like this before and there have been no similar incidents since. Ms Isberg says that Coco was provoked because the victim did not look where he was going, Coco got a fright and the victim put a dustpan and brush in Coco’s face.

7. Ms Isberg says that she has complied with the requirements for keeping a dangerous dog and she accepts that there are benefits to Coco wearing a muzzle in that it will prevent any further incidents occurring. Ms Isberg has concerns, however, about the requirement that Coco wear a muzzle while she is participating in water exercises such as hydrotherapy because there is considerable cost involved in paying for private hydrotherapy sessions. Further to that, Ms Isberg says that she is required to pay a higher registration fee to Council if Coco is declared a dangerous dog.

8. On the other hand, the Council submits that the decision to declare Coco a dangerous dog should be confirmed on review. Mr Lalor appearing for Council at the oral hearing submitted that the incident took place in a public setting and injuries were caused by the bite which could have been prevented had a muzzle been worn by Coco at the relevant time. Mr Lalor submitted that a declared dangerous dog is required to wear a muzzle once the dog leaves its registered place or private property. Mr Lalor submitted that if hydrotherapy for Coco was occurring on private property and provided that Coco was under effective control, there is no requirement for a muzzle to be worn. Mr Lalor submitted that once Coco, as a declared dangerous dog, is in a public space there is a requirement for her to wear a muzzle.

What is the correct and preferable decision?

1. I have viewed the video footage obtained from a camera located inside the carpark of the shopping centre where the incident took place. It is open for me to find that on 10 January 2020, there was an incident involving Coco and the victim. Coco bit the victim on his arm.

2. Ms Isberg has failed to convince me that the victim provoked Coco and as contended by Ms Isberg, that the victim hit Coco in the head with the dustpan and brush.

3. Ms Isberg did not see Coco bite the victim. Ms Isberg’s evidence given in the oral hearing about the incident is that she was on the telephone at the time and she heard a noise described by her as a ‘funny noise’, like Coco had been knocked. Ms Isberg described the incident as being ‘really quick’ and said that she saw the victim level with her but did not witness Coco bite victim.

4. The victim’s evidence contained in his statement is that as he was walking past Ms Isberg’s vehicle, a dog lunged out of the rear window of the car and latched onto his left arm.[3] The victim states that ‘[t]he bite to my arm came with no warning’.[4]

   [3]Exhibit 1, attachment 3.

   [4]Ibid.

5. Ms Isberg cross-examined the victim at the hearing about his statement. The victim maintained his evidence that he did not hit Coco with the plastic dustpan and brush. The victim said that as he was walking between two cars and he held the dustpan and brush at his side. The victim said that the dog leaped out and bit him. I accept the victim’s evidence.

6. The witness who was seated inside a vehicle parked beside Ms Isberg’s vehicle at the time of the incident prepared a written statement.[5] The witness states that she parked her car with her son aged 12 years of age and daughter aged five years of age seated inside the vehicle. The witness states that she looked over to her left passenger side and saw a tan coloured dog in the back seat of a vehicle parked next to her. She says she heard the dog barking and it sounded vicious. She observed the dog’s head come out of the back window of the vehicle just as the man was walking past and saw the man jump slightly. The witness says that she turned her vehicle off and told her son who was with her to exit the vehicle. Her son opened the passenger door which was on the same side as the dog. She says that the dog started barking and growling with its teeth. As a result, the witness says that her son had to climb out of the driver’s side door which was on the opposite side of where the dog was seated.

   [5]Exhibit 1, attachment 4.

7. At the oral hearing Ms Isberg challenged the statement prepared by the witness on the basis that, as submitted, the witness was not driving the vehicle and was in fact a passenger seated inside the vehicle.

8. The witness was not available for cross-examination at the hearing. At the oral hearing Ms Isberg accepted, however, that the witness was with her two children seated inside the vehicle as it parked beside her (Ms Isberg’s) vehicle.

9. Mr Lalor for the Council submitted at the oral hearing that the video footage clearly shows the witness and her two children exit their parked vehicle from the opposite side of where Coco was seated inside Ms Isberg’s vehicle. Mr Lalor submitted that if the witness was in fact seated in the front passenger seat, as contended by Ms Isberg, then the inference can be drawn from the video footage that the witness and her children were fearful of the dog Coco because they exited their vehicle from the opposite side to where Coco was seated.

10. Mr Lalor’s submission is compelling. The video footage clearly shows the witness and her two children exit their vehicle from the opposite side to where Coco was seated inside Ms Isberg’s vehicle.

11. It is open for me to find that the witness and her children exited their vehicle from the opposite side to where Coco was seated inside Ms Isberg’s vehicle. On balance the evidence supports a finding that Coco was, as stated by the witness, barking and growling at the time of the incident.

12. Ms Isberg has failed to convince me that Coco’s behaviour on 10 January 2020 was out of character and that, as contended, Coco has not acted in a similar way since the incident.

13. I have considered the various photographs and video footage taken by Ms Isberg that she says demonstrates her dog is not behaving in an aggressive manner.[6] I have also considered the written statement from Coco’s veterinary surgeon who saw Coco in 2018 and states, amongst other things, that ‘[o]verall Coco was a healthy dog with a generally good demeanour’.[7]

    [6]See Exhibits 2, 3 and 4.

    [7]Exhibit 5.

14. There is evidence about Coco’s behaviour some five days after the incident. The unchallenged evidence of Mary Dahl, local laws investigator for the Council, is that she attended Ms Isberg’s residence on 15 January 2020 and observed the behaviour of Coco. Ms Dahl states that Coco lunged at her in an aggressive manner with no prior warning and Ms Isberg restrained Coco stating that Coco’s behaviour was unusual and Coco had not been the same since the incident. I accept Ms Dahl’s unchallenged evidence.

15. I find that Coco acted in an aggressive way towards Ms Dahl who was visiting Ms Isberg’s property some five days after the incident.

16. I will now consider the evidence relevant to the nature of the victim’s injuries. As discussed above, Ms Isberg accepts that Coco bit the victim’s arm resulting in three puncture wounds but says the injury was superficial and says that after the incident there were no signs of bleeding from the victim’s arm and she was initially informed that there were four puncture wounds to the victim’s arm.

17. The evidence relevant to the victim’s injury includes consultation notes obtained from the victim’s health practitioner who treated the victim, photographs of the victim’s injury and statements from witnesses such as Janelle Bliss who was working in the centre management office of the shopping centre at the time of the incident.[8]

    [8]Exhibit 1, attachment 2 (statement of Mary Dahl), Exhibit ‘MD2’.

18. Relevantly, the unchallenged medical notes from the victim’s treating health professional, that I accept, provide as follows:

    …bit from dog approx. 1000 [sic]

    O/E

    3 x puncture wounds to left forearm

    1x anterior and 2 x posterior

    All superficial (through a thick material safety shirt)

    Surrounding redness, nil early s or infection

    Nil concern re # to arm

    Nil muscle belly involvement

    Good distal c/w/s and circ return

    Full ROM arm and writs

    …

19. The unchallenged photographs of the victim’s injury, that I accept, show puncture wounds to the victim’s forearm.[9] Blood can be seen around the wounds.

    [9]Ibid, Exhibit ‘MD3’.

20. The victim’s unchallenged evidence relevant to the injuries sustained is contained in his written statement of evidence. The victim states as follows:

    …[I] rolled up my sleeve to see if the dog had got me. As I rolled up my sleeve, I saw blood running down my arm.

    …

    I attended [Health Doctors] and it was confirmed that I sustained puncture wounds consistent with a dog bite. The wounds were cleaned and I received a tetanus needle and the arm bandaged. I did not require any follow up.

21. The victim’s statement about his injuries is also supported by Ms Bliss’ written statement.

22. Ms Bliss’ unchallenged evidence is that after the incident the victim told her that a dog had bitten him in the undercover carpark. Ms Bliss asked the victim to show her his arm. Ms Bliss states that the victim pulled up his sleeve and she could see, as stated, ‘deep puncture wounds that were bleeding. Two puncture wounds were on [his] outer arm just below the elbow and one very deep puncture wound was on [the victim’s] inner arm just below the elbow’.[10] I accept Ms Bliss’ evidence.

    [10]Exhibit 1, attachment 5.

23. I find that Coco attacked the victim on 10 January 2020 and the attack was a serious attack for the purposes of s 89(2) of the Act because it resulted in injuries to the victim. The term ‘seriously attack’ in s 89 of the Act is defined as an attack causing bodily harm, grievous bodily harm or death.

24. I am satisfied that Coco attacked the victim in a way causing bodily harm within the meaning of the Criminal Code Act 1899 (Qld).[11] The victim sustained three puncture wounds to his forearm causing bleeding. The victim sought medical attention for his injuries. The victim’s wounds were cleaned, and he received a tetanus needle and his arm was bandaged.

    [11]See definition of ‘seriously attack’ under s 89(7) of the Act and ‘grievous bodily harm’ and ‘bodily harm’ under s 1 of Schedule 1 of the Criminal Code Act 1899 (Qld).

25. I am satisfied that the correct and preferable decision in all of the circumstances of this matter is to confirm Council’s decision to declare Coco a regulated dangerous dog.

26. I have considered that the requirements for keeping a dangerous dog will require Ms Isberg to pay, as submitted by her, higher registration fees to Council and that Coco may be required to wear a muzzle during hydrotherapy. Although I have some sympathy for Ms Isberg’s submissions about additional costs involved in keeping a dangerous dog, that alone is not a reason to set aside the decision to declare Coco a dangerous dog in all of the circumstances of this matter.

27. The evidence is compelling. The victim did not provoke Coco nor, as contended by Ms Isberg, hit Coco in the head with a dustpan and brush. Indeed, the dog Coco behaved in an aggressive manner towards Ms Dahl, investigator for the Council, who was visiting Ms Isberg some five days after the incident.

28. I have also considered that the incident took place in a public carpark and the victim was simply going about his business as a contractor was walking between two parked cars. The victim was bitten by the dog Coco causing bodily harm.

29. I accept Mr Lalor’s submission made at the oral hearing that the location of the incident is particularly relevant in this matter in that the incident took place in a public setting and injuries were caused by a bite that could have been prevented had Coco been muzzled.

30. I have considered the objects of the Act that is to, amongst other things, protect the community from damage or injury, or risk of damage or injury, from particular types of dogs called regulated dogs and to ensure the dogs are not a risk to community health or safety and controlled and kept in a way consistent with community expectations and the rights of individuals.[12]

    [12]See s 59 of the Act.

31. The correct and preferable decision in all of the circumstances of this matter is the decision of the Moreton Bay Regional Council of 16 April 2020 to declare the dog ‘Coco’ as a Regulated Dangerous Dog is confirmed. I order accordingly.