Jewel Vercoe Rainbow v Townsville City Council
[2014] QCAT 652
•12 December 2014
| CITATION: | Jewel Vercoe Rainbow v Townsville City Council [2014] QCAT 652 |
| PARTIES: | Jewel Vercoe Rainbow (Applicant) |
| v | |
| Townsville City Council (Respondent) |
| APPLICATION NUMBER: | GAR312-14 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 12 December 2014 |
| HEARD AT: | Townsville |
| DECISION OF: | Member Pennell |
| DELIVERED ON: | 12 December 2014 |
| DELIVERED AT: | Townsville |
| ORDERS MADE: | The decision made by the Respondent on 15 August 2014 to declare the dog Tor a menacing dog is set aside and is substituted with a decision that the grounds upon which a declaration of dangerous dog was made in respect to the Applicant’s dog are not met. |
| CATCHWORDS: | ADMINISTRATIVE REVIEW – regulated menacing dog – whether dog seriously attacked – insufficient weight given to evidence when making a menacing dog declaration – unreasonable decision to declare the dog menacing Animal Management (Cats and Dogs) Act 2008 s 9, s 10, s 62, s 89(1)(b), s 89(7), s 90, s 188 Briginshaw & Briginshaw (1938) 60 CLR 336 |
APPEARANCES and REPRESENTATIONS:
| APPLICANT: | Ms J H Vercoe Rainbow |
| RESPONDENT: | Ms C Conaghan for the Respondent |
REASON FOR DECISION
INTRODUCTION
The Applicant in this matter is Jewel Vercoe RAINBOW. The Townsville City Council is the Respondent (“the Respondent”). The relevant animal is a de-sexed male Rottweiler crossbreed called Tor. The animal is recorded as being a registered dog with the council.
On 24 July 2014 the Respondent made a decision to declare the Applicant’s dog Tor a menacing dog pursuant to the provisions of the Animal Management (Cats and Dogs) Act 2008 (“the Act”). In making the declaration, the Respondent provided reason for doing so was that the dog Tor had been involved in an attack on an animal causing bodily harm.[1] In making that decision to declare the dog Tor a menacing dog, the Respondent said that at approximately 8:30am on 15 June 2014 the dog Tor attacked another dog in a public place outside the Foodworks store at Horseshoe Bay, Magnetic Island; and the attack caused injury to the other dog.
[1]Bodily harm means any bodily injury which interferes with health or comfort.
REVIEW JURISDICTION
The Applicant has asked the tribunal for a review of the Respondent’s decision to declare her dog Tor a menacing dog.[2]
[2]Animal Management (Cats and Dogs) Act 2008 s 188.
In conducting a review, the Tribunal must hear and decide a review by way of a fresh hearing on the merits of the application. The purpose of the review is to produce the correct and preferable decision.[3] In carrying out its functions to produce the correct and preferable decision, the Tribunal may either confirm or amend the decision; or set aside the decision and substitute its own decision; or set aside the decision and return the matter for reconsideration to the decision maker for the decision, with the directions the Tribunal considers appropriate.[4]
[3]Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) s 20.
[4]Ibid s 24(1).
THE LEGISLATION
The Applicant’s application falls under the Animal Management (Cats and Dogs) Act 2008 (“the Act”). The purposes of the Act are to provide for the identification and registration of cats and dogs; provide for the effective management of regulated dogs; and promote the responsible ownership of cats and dogs.
The Act deems that the owner of a dog is the registered owner[5], and the person is a responsible person for a dog means a person has immediate control or custody of the dog.[6]
[5]The Act s 9.
[6]Ibid s 10.
Chapter 4 of the Act provides for Regulated Dogs and an interpretation of what is a menacing dog.[7] A declared menacing dog is a dog declared under section 94 of the Act to be a menacing dog; or a dog that is the subject of a declaration, however called, if the declaration was made under a corresponding law and is the same as or similar to a menacing dog declaration.
[7]Ibid s 62.
Chapter 4, Part 4 of the Act provides for regulated dog declarations. The Act provides the power or any local government to declare a particular dog to be a declared menacing dog.[8] A menacing dog declaration may be made for dog only if a ground mentioned in section 89(2) exists for the dog, except that the attack was not serious. A serious attack means to attack on the way causing bodily harm, grievous bodily harm or death.[9]
[8]Ibid s 89(1)(b).
[9]Ibid s 89(7).
A local government entity that proposes to make a regulated dog declaration must give the owner of the dog a notice of the proposed declaration for a menacing dog. The local government entity is to provide reasons or the proposed declaration to the owner.[10] The owner may make, within the stated period[11], with representations, to show why the declaration should not be made.
[10]Ibid s 90.
[11]The stated period is at least 14 days after the declaration notice is given.
The local government entity must consider any written representation and evidence accompanying them within the period stated in the proposed declaration notice. If the local government is satisfied that the relevant ground still exists, it must make the regulated declaration for the dog.
The Tribunal is satisfied that the Respondent has complied with its responsibilities under the Act.
EVIDENCE AT THE HEARING
The procedure for a proceeding is at the discretion of the Tribunal. The Tribunal is not bound by the rules of evidence[12]; however the Tribunal must act fairly and according to the substantial merits of the case.
[12]QCAT Act s 28.
In observing the rules of natural justice, the Tribunal may inform itself in any way it considers appropriate. The Tribunal must also ensure, as far as practical, that all relevant material has been disclosed so that the Tribunal is able to reach a decision on the relevant facts.
Evidence in a hearing may be given orally or in writing; and if the Tribunal requires must be given on oath or by affidavit.[13] The Tribunal must allow a party a reasonable opportunity to call or give evidence; and examine, cross-examine and re-examine witnesses; and make submissions to the Tribunal. Both parties were given that opportunity.
[13]QCAT Act s 95.
CONSIDERATIONS
Primarily there are two dogs that are subject to these proceedings. There is the declared menacing dog Tor, and the dog called Candy. The dog Candy is a red and white coloured de-sexed cattle dog, Jack Russell cross. There appears to have been a third dog involved, which was under the control of the Applicant, however this animal did not seem to feature in the investigation and declaration by the Respondent, but this was because that third dog is no longer alive.
The owner of the dog Candy is Mr John Elliott. He attended the hearing and gave evidence. The Tribunal did not find him to be a credible witness, he was rude and argumentative, and often gave evidence inconsistent with his affidavit. What was consistent was that he was not present when the incident took place. His friend, Barry Sharpe, had taken his dog for a walk on the morning of 15 June 2014. At about 8:30am he dog Candy returned home. He described her as having 35 puncture wounds to her body. In his affidavit provided to the Respondent he said that he did not take his dog to the Vet by that time because the Vet was not opened, but planned to take her on 17 June 2014. At the hearing, he said that he did not take the dog to the vet because he could not afford the vet fees. Consequently there is no evidence in the form of a veterinary report outlining the extent of the injuries to the dog.
The Respondent relied upon an affidavit from Mr Barry Sharpe. He did not give evidence at the hearing. His affidavit was sworn and outlined his knowledge of the incident. He said that at about 8:30am on 15 June 2014 he walked the dog Candy down to the Foodlands store at Horseshoe Bay, Magnetic Island. He tied the dog Candy up to a pole outside the front of the shop. He then went inside and spoke to the shopkeeper. Shortly afterwards he heard a dog scream and he went outside. He saw that two Rottweilers had the dog Candy. One had her on the shoulder and the top of her head and the other had her by the back. He saw the Applicant on the ground; she appeared to have no control of the dogs, and was yelling at him to get her dogs off. He then hit the male dog on the top of the head and this dog released the dog Candy. He picked up the dog Candy. The female dog was still trying to attack the dog Candy and jumped up and bit Candy on the rear. The dog candy then jumped out of his arms and ran up the street. Significantly he did not see the start of the incident.
The Respondent also relied upon an affidavit from Mr Lee Hodges. He declined to give evidence at the hearing. His affidavit was sworn and showed that on the morning of 15 June 2014 he was in the park opposite the Foodlands Store. He knows the Applicant and had arranged to meet her at that location. He saw the Applicant walking past some rubbish bins towards the Foodlands store. As the Applicant walked past a wheel chair near the store he saw that she was walking her two dogs on their leads. He also saw a small dog on the other side of the wheel chair which was lying down. He also saw that as the Applicant walked past the small dog, the small dog appeared to get a fright. All the dogs appeared to lunge together. He saw one of the Applicant’s dogs grab a hold of the small dog. He did not see any injuries on any of the dogs involved.
The Applicant sought to rely upon a hand written document purportedly under the hand of Mr Hodges in which there was an alteration to the version that he provided in his sworn affidavit. There was no basis to allow the Applicant to rely upon that document.
Ms Shailee Innes provided an affidavit about her knowledge of the incident and gave evidence at the hearing. The Tribunal found that she was a most impressive witness. She said that on the morning of 15 June 2014 she was setting up tables at the front of her restaurant at Horseshoe Bay. She went onto say that at about 10:30am – 11:00am she heard the sound of dogs growling. When she looked in the direction of the growling she saw that the growling was coming from the dogs at the front of the Foodlands Store. She estimated the dogs to be about 5 – 7 metres from her. She said that there was a small white coloured dog which was tied to a pole out the front of the Foodlands store and there were two large Rottweilers attacking the small dog. She went on to say that she was unsure if the smaller of the Rottweilers was involved in the dogfight, however the larger Rottweiler was the aggressor.
The investigating local laws officer employed by the Respondent was Roslyn Matheson. She gave evidence of her investigation and subsequent report. The Tribunal did not accept the Applicant’s criticisms of the way in which the investigation was carried out, and found that Ms Matheson was a reliable witnesses who had conducted her investigation in an unbiased manner.
Evidence was heard from Sandi McClintock, Anne Christman and Mylel Smith. They are employed by the Respondent and were involved in the internal review of this matter. The Tribunal did not accept the Applicant’s criticisms of the way in which these witnesses carried out their respective roles and they came to their conclusion based on the evidence.
During the initial part of the investigation the Applicant was offered the opportunity to provide her description of the incident in a formal interview, however she declined that opportunity. Instead, she opted to provide to the Respondent information in an email on 26 June 2014 as to what she saw. The Applicant said that she was walking her dogs on their leash near the Foodlands store and the small white dog (Candy) was concealed behind the wheelchair-for-hire on the lawn outside the store. As she walked past with her dogs, the small white dog rushed at the dog Tor. It was then that the small white dog bit the dog Tor on his right paw.
The Applicant said that her dog Tor did not initiate the aggression and he was only responding to the aggressive move by the smaller white dog when he picked the small white dog up in his mouth. She went on to say that when other people came rushing towards the dogfight this startled her other dog.
The Applicant later provided photographs showing an injury to the paw of the dog Tor. Also provided were photographs of the dog Tor inside an enclosure at the Applicant’s premises and a further photograph and a video of the dog Tor interacting with another dog and people on the beach. These items would appear to support the Applicant’s evidence that the dog Tor is ordinarily a good natured dog and his behaviour on that day was totally out of character.
Although at times she was emotional and her evidence wavered from the factual issues of the matter, the Tribunal found that her evidence was consistent with the information she initially provided to the Respondent.
The Respondent relied upon a number of photographs of the injuries to the dog Candy[14] and an aerial view of the area of the Foodlands store at Horseshoe Bay.[15] The photographs of the dog Candy, although they show some injuries, do not support the evidence of Mr Elliott that there was 35 puncture wounds. Notwithstanding that, the Tribunal is satisfied that the injuries to the dog Candy were sufficient to fall within the definition of bodily harm.
[14]Exhibit 1.
[15]Exhibit 2.
THE INCIDENT
Apart from the Applicant’s evidence, none of the other witnesses saw the start of the dogfight. Their attention of the other witnesses was only drawn to the incident by the sounds of the dogs. Although the affidavit of Mr Hodges indicates that he saw the dogs lunge together, it could never be tested as to whether this was at the commencement of or at a point after the start of the dog fight.
The Applicant and the Respondent do share common ground. That is, the dog Candy was tied up outside the Foodlands store and the Applicant was walking her two dogs in an area that took her past the dog Candy. It is also common ground that an altercation occurred between the dogs Candy and Tor and that at some stage the Applicant’s other dog became involved resulting in the dog Candy suffering an injury consistent with the definition of bodily harm as be provided for by the Act.
What is not common ground between the parties is how the dogfight started and that a declaration should be made that the dog Tor is a menacing dog.
The Respondent undertook a review of the evidence as a result of the investigation by Local Laws Officer Roslyn Matheson and determined that the evidence, along with the Respondent’s own internal policy on regulated dogs and the evidence of the witnesses supported the making of the declaration that the dog Tor was a menacing dog.
The Respondent rejected the Applicant’s version that the dog Tor was first attacked by the dog Candy. The basis for that rejection was because the Applicant did not raise this when first spoken to by the Local Laws officer who investigated the matter that the dog Tor was bitten by the dog Candy.
The Respondent also said that the Applicant’s submission that her dog Tor was provoked was not substantiated by the evidence obtained throughout the investigation and did not align with the Applicant’s initial statement supplied to the Applicant on 26 June 2014.
This conclusion is at odds with the evidence of the Respondent’s Local Laws investigator, Roslyn Matheson, who said that on 26 June 2014 she telephoned the Applicant and advised her of her right to be interviewed. The Applicant told Ms Matheson that she did not wish to take up her right to an interview but would provide a statement in the form of an email. That email was sent by the Applicant to Ms Matheson at 11:26am that same day and the Applicant told Ms Matheson:
I was walking my two dogs home (on leashes) along the esplanade past Foodworks when a small white dog that we didn’t see until we were alongside it – because it was hidden by a wheelchair parked on the lawn – rushed aggressively at Tor (my usually very sweet-natured male dog) who responded by picking the small dog up in his mouth, resulting (I was later told) in several puncture wounds as he changed his grip on the dog.
…I have attached a photo of the injury to his right toe which was bleeding after the incident and Tor limped the next day.
The Respondent determined that the Applicant’s later representations did not provide any mitigating factors to support that the dog Tor was first attacked, and nor and that the dog Tor would not be a further risk to the community if placed in a similar situation or otherwise. The risk principle is provided for within the purpose of regulating dogs, i.e., to ensure that the dog Tor is not a risk to community health or safety; and controlled in a way consistent with community expectations.
Furthermore, the Respondent rejected the photograph provided by the Applicant. The Applicant said that the photograph showed the injury sustained to the paw of the dog Tor when it was attacked by the dog Candy. The Respondent’s adopted the position that the photograph did not substantiate the injury was a result of a bite from the dog Candy, although it is unclear as to how that position was reached. The Applicant was provided with photographs depicting injuries to the dog Candy by Mr Elliott who is the owner of that dog. Without any factual basis, the Respondent, when examining all the evidence, placed greater weight upon the photographs of injury to the dog Candy as opposed to the photograph of the injury to the dog Tor.
CONCLUSION
In arriving at its decision to declare the dog Tor a menacing dog the Respondent erroneously dismissed not only the Applicant’s version of the incident, but also any hypothesis that the dog Tor may have reacted to being first aggressively attacked or rushed at by the dog Candy. The Respondent also erroneously dismissed evidence the dog Candy was startled and then the dogs lunged together. The Respondent relied upon the assumption that it was the dog Tor that was the initial aggressor, although this assumption was not supported by any of the evidence.
The question arises as to whether sufficient weight was given to the Applicant’s evidence that the dog Candy attacked the dog Tor and the reaction of the dog Tor was a natural instinct of a dog defending itself. The Applicant’s version of the event is somewhat supported by the contents of the affidavit of Mr Hodges.
Having regard to the standard of proof required, it is a reasonable hypothesis that the dog Candy was startled by the Applicant’s dog in the close proximity of where she was tethered and reacted aggressively towards the dog Tor, who in turn reacted in defence of itself. When the law requires the proof of any fact, the Tribunal must feel an actual persuasion of its occurrence or existence before it can be found, it cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality.[16]
[16]Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 – 362.
Therefore, the Respondent’s decision to declare the dog Tor a menacing dog is set aside as the grounds upon which the declaration of a menacing dog was made in respect of the applicant’s dog Tor are not met.
DECISION
The decision made by the Respondent on 15 August 2014 to declare the dog Tor a menacing dog is set aside. Tribunal sets aside the decision under review and substitutes its decision that the grounds upon which a declaration of dangerous dog was made in respect to the Applicant’s dog are not met.
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