KELLY and CITY OF ALBANY - [2010] WASAT 27

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: DOG ACT 1976 (WA)

CITATION: KELLY and CITY OF ALBANY [2010] WASAT 27

MEMBER: MR C RAYMOND (SENIOR MEMBER)

HEARD: 27 NOVEMBER 2009

DELIVERED : 25 FEBRUARY 2010

FILE NO/S: CC 976 of 2009

BETWEEN: SANDRA KELLY
Applicant
AND
CITY OF ALBANY
Respondent

Catchwords:

Dog Act 1976 (WA) Application for review of decision declaring dogs dangerous Whether dogs engaged in attack Turns on own facts

Legislation:

Dog Act 1976 (WA), s 3, s 33E, s 33E(1), s 33F(2)(b)(ii)
State Administrative Tribunal Act 2004 (WA), s 9

Result:

Declaration set aside in respect of one dog, and affirmed in respect of the other dog

Category: B

Representation:

Counsel:

Applicant: Mr CJ Cook
Respondent: Mr A Carr

Solicitors:

Applicant: Christopher J Cook
Respondent: Cornerstone Legal

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

City of Armadale v Kiraly [2009] WASC 199
Corrigan and Shire of Northam [2009] WASAT 140

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicant applied under s 33F(2)(b)(ii) of the Dog Act 1976 (WA) for the review of declarations made by the respondent that the applicant's two Weimaraner dogs to be dangerous.
While the Tribunal accepted expert evidence from a veterinarian concerning the general character of the dogs, it observed that whether or not a dog might be found to be dangerous must be determined by reference to statutory criteria and is not dependent on expert evidence of general character.
The case turned entirely on the circumstances of four incidents which were analysed by the Tribunal. The applicant denied that two of the incidents had occurred at all, but the Tribunal found to the contrary.
The Tribunal found that one of the dogs bit a postal worker on 28 April 2008, but that the identity of the dog was not established. Both dogs were found to have aggressively rushed at a pedestrian in a later incident, which constituted an attack under the provisions of the legislation. In relation to a later incident, the tribunal found that the older dog had chased the same postal worker who was on a motorcycle. The circumstances of that incident also constituted an attack under the legislation because the dog had rushed aggressively at the postal worker and chased him.
In considering the incidents in combination, the Tribunal found that the evidence established that the older dog had, repeatedly, shown a tendency to attack, or threaten to attack, a person which met the criteria for the making of a declaration that the dog was a dangerous dog. Because of the difficulty in identifying the dog which bit the postal worker in the first incident, there was insufficient evidence to support the making of such a declaration in relation to the younger dog. Consequently, the declaration in respect of the older dog was affirmed and that in respect of the younger dog was set aside.

The application and issues for determination

The applicant (Mrs Kelly) applies under s 33F(2)(b)(ii) of the Dog Act 1976 (WA) (Dog Act) for the review of declarations made by the respondent (City) on 19 June 2009 that Mrs Kelly's two Weimaraner dogs, Minuet and Hugo, are dangerous dogs.
The application, as supplemented by the parties' respective statements of issues, facts and contentions (SIFC), identifies the following issues for determination:
1)Whether in the circumstances of any or all of the incidents alleged to have occurred during or about:
a)28 April 2008, involving Mr Simon Marshall in Barry Court, Albany;
b)early September 2008, involving Ms Emily Elsasser, in Barry Court, Albany; and
c)30 December 2008, involving Mr Simon Marshall, near the intersection of Barry Court and Dillon Close, Albany;
the dog Minuet, or the dog Hugo, or both of them, carried out an attack within the meaning of that term as defined in s 3(1) of the Dog Act.
2)Whether, having regard to the alleged incidents referred to in 1), either the dog Minuet, or Hugo, or both of them, have caused injury or damage by an attack, or have repeatedly shown a tendency to attack or chase a person or animal, or to have threatened to attack, as provided for in s 33E of the Dog Act.
3)Whether or not, having regard to all the circumstances, the correct and preferable decision on review, in the exercise of the discretion provided for in s 33E(1) of the Dog Act, is to declare either the dog Hugo, or the dog Minuet, or both of them, to be a dangerous dog or dogs.

The hearing and relevant evidence

In accordance with the Tribunal's usual practice in matters of this nature, the hearing was conducted on the basis that all documents filed with the Tribunal would be regarded as being in evidence, subject to any proper objection.
The applicant had filed witness statements from Mrs Sandra Eleanor Kelly, who is the owner of the dogs, Mr Michael Stephen Kelly, who is the husband of Mrs Kelly, and Dr Katherine Helen Nairn, a veterinarian and member of the Australian College of Veterinary Science in the Chapter of Animal Behaviour, together with a letter addressed 'To whom it may Concern' from a Mr David Bostock.
Mr Bostock set out his qualifications as a veterinary surgeon and indicated that although he was registered to practise veterinary medicine in Britain, and was eligible to do so in Australia, he had made an assessment of the two dogs, as reflected in his letter, as a private person. Counsel for the City raised objection to any reliance being placed on the opinion expressed by Mr Bostock because he was not available to be crossexamined. The letter does not reflect that Mr Bostock was informed about the allegations made concerning the dogs, or that he had any knowledge of the incidents referred to above. There is no indication of the time which he spent observing the dogs and the description of the behaviour which he witnessed is very limited.
The witness statements of Mrs Kelly and Dr Nairn were supplemented by oral evidence and they were subjected to crossexamination. Their evidence will be dealt with further below. The evidence of Mr Kelly discloses that he had no firsthand knowledge of the incidents in question. His knowledge of the incident which occurred on 30 December 2008 is based on what Mrs Kelly informed him. In relation to the April incident, he endeavours to support his wife by stating that if the incident had occurred, Mrs Kelly would have informed him about the event. He does not actually state that she did not inform him and that is left to be inferred. Otherwise, his evidence is limited to his observation of the way in which the dogs behave and to the locality where the incidents are alleged to have occurred.
The City filed witness statements of Mr Simon Paul Marshall, a postal delivery officer employed by Australia Post, Ms Emily Sandra Elsasser, an administration assistant, Mr Robert Forster, a ranger employed by the City, and Mr Daniel Paul Sharples, who at all relevant times was a ranger employed by the City of South Perth. Messrs Marshall and Forster and Ms Elsasser supplemented their witness statements with oral evidence and were subjected to crossexamination. Their evidence will be dealt with further below.
Before turning to the evidence in relation to the alleged incidents identified by the parties' SIFCs, it is necessary to draw attention to a further incident involving both dogs. This was an incident which occurred on 3 August 2008 in Waterford, a suburb under the control of the City of South Perth (the South Perth incident), where Mr and Mrs Kelly have their permanent residence. The dwelling in Barry Court, Albany is their holiday home. It is clear that the City has not relied on this incident to support any finding that the dogs, or either one of them, have repeatedly shown a tendency to attack either a person or an animal. Yet, the incident was clearly one which influenced the City's decision to make the declarations, as is evident from the evidence of Mr Forster. He referred to a customer service request form (at 13 of the respondent's book of documents) which set out a chronological record of his actions relating to the matter. That reflected that prior to hearing about the South Perth incident, and one other unsubstantiated incident (at that stage - which may be a reference to the alleged September 2008 incident), he had intended only to issue an infringement notice for the dogs being off the leash. But, because of those incidents, he had informed Mr Kelly that it would be complacent for him not to act, and, consequently, dangerous dog declarations were issued. These declarations were subsequently withdrawn because they had been issued without proper authority, and further declarations were issued, the subject of these proceedings. Mrs Kelly's evidence went further than simply relating the discussion which had occurred between Mr Forster and Mr Kelly. She went on to state that she had never received an infringement or summons arising out of the South Perth incident. The matter was then raised with her in crossexamination. Both counsel referred to the September incident in their closing submissions.
Section 9 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) states as one of the main objectives of the Tribunal, that in dealing with a matter within its jurisdiction, it must make or review decisions fairly and according to the substantial merits of the case. In the circumstances, it is necessary to have regard to the evidence that was put before the Tribunal, without objection by either party, concerning the South Perth incident, and it must be given due weight in considering whether any of the criteria for the making of a dangerous dog declaration are met.
Each of the incidents will now be addressed.

The 3 August 2008 incident

Mr Sharples' written witness statement disclosed that he had been a ranger employed by the City of South Perth at the time of the incident and had been responsible for investigating it. He said that a Mrs Sue Clay had complained that her dog had been attacked by two grey Weimaraners and a long haired rough Collie on 3 August 2008. He annexed to his statement a copy of the City of South Perth dog attack report form which contained his notes of the complaint made and of Mrs Kelly's response. Mrs Kelly was the only person who gave any direct evidence about the incident.
The complaint form records that Mrs Clay, who was walking her dog Misty Storm, together with her children, stated that three dogs ran across the road from No 56 Elderfield Road, which is in Waterford, and attacked her dog. The report continues:
She used her foot to move the Collie off her dog and then picked her dog up.
The report goes on to deal with who had been in control of the dogs (Mrs Kelly's daughter) and what was later said by 'an older lady' who had moved out of the house, which was a reference to Mrs Kelly.
The report then continues to set out information obviously provided by Mr Sharples, and includes information which does not appear from the notes of what is referred to as the initial conversation with Mrs Clay and the notes from interview with Mrs Kelly. This section of the report states:
As they [a reference to Mrs Clay and her two children] were walking[,] their [sic] three dogs, two Weimaraners one a female named 'Minuet' a male named 'Hugo' and one Long Haired Rough Collie (which was visiting from Albany) rushed across the road from 56 Elderfield St toward Mrs Clay's dog. While this occurred Mrs Kelly's daughter was in control of the dogs.
As the two Weimaraners approached them Mrs Clay stood between her children and 'Misty Storm'. While this was occurring the Rough Collie approached from a different direction and attacked 'Misty Storm'. Mrs Clay used her foot to get the Rough Collie off her dog before picking it up. According to Mrs Clay 'Misty Storm' had some minor grazes but there was no serious injury sustained as a result of the attack. Mrs Kelly disputes this stating that the dogs did not make physical contact with, or chase 'Misty Storm' and only went up to sniff her.
Mr Sharples' note of the interview with Mrs Kelly reflects, consistent with the note of what Mrs Clay said, that the two Weimaraners and the rough haired Collie had run across the road to Mrs Clay's dog.

The alleged incident on 28 April 2008

Mr Marshall, in his written statement, said that on 28 April 2008 he was delivering mail in Barry Court, Albany. After delivering mail to No 53 Barry Court, he stated he saw two dogs running towards him. He described them as grey Weimaraners. After running towards him, the dogs began to circle him. While he was looking away to check what mail he was to deliver next, one of the dogs 'came up and bit me on the left leg'. He said that his leg hurt, although the skin had not been broken.
Mr Marshall then related that the owner of the dogs, who he now knows to be Mrs Kelly, came up and he showed her his leg. Mrs Kelly stated that the leg 'was okay because it was not bleeding' and that she was 'sorry … that her dogs only get like that when the postie is around'.
Mr Marshall continued in his written statement to relate that he had continued on his postal round, but that his leg had continued to really hurt and that it had started to bleed. He said that he attended the Great Southern Medical Centre where he saw a female doctor, whose name he could not remember. While waiting for the doctor, he stated that he took two photographs of his leg, using his mobile telephone. Those photographs appear at 16 of the respondent's bundle of documents. Mr Marshall did not report the incident to the ranger as he thought it was a oneoff event, but he did report it to his employers. He completed an incident report which is at 11 and 12 of the respondent's bundle of documents. The report reflects that the incident occurred at 11.50 am, which he described as follows:
While delivering to 53 Barry Court two dogs being walked by owner came up to me and one of the dogs bit me on leg.
Mr Marshall was crossexamined about his identification of the dogs because he did not report the above incident to the ranger until 30 December 2008, when the incident of that date allegedly occurred, and because when he did report the matter, he had indicated that he thought the dogs might be Great Danes. The issue of identification is important because Mrs Kelly, in her written statement of evidence and oral evidence, denied that any such incident had occurred. Mr Marshall responded to the effect that after he had first raised the issue with the City's ranger, the ranger, Mr Forster, had shown him photographs of dogs from which he had identified that the dogs involved were Weimaraners.
Mr Marshall was also criticised in crossexamination for maintaining in his statement that he went to the Great Southern Medical Centre for medical treatment. Mr Marshall conceded that was an error, he had thought that was the name of the practice which he attended, but there was no practice of that name and it must obviously have been the Hillside medical practice.
It is also to be noted that in the chronological customer service request form maintained by Mr Forster, the very first description of the incident refers to dogs apparently belonging to No 34 Barry Court.
Mrs Kelly, in her written statement, in dealing with the alleged April incident, gave an account of a quite unremarkable event. She stated that a postman had ridden a motorbike through vacant land onto Barry Court and that Minuet, who is nine years of age and not able to run very far or fast, ran towards the direction of the postal worker. However, Mrs Kelly noticed that she had 'taken off' towards a cat. Mrs Kelly called Minuet and the dog returned to her. She stated that at no time did Hugo leave her side. She denied that any discussion had taken place with the postman.

The alleged September 2008 incident

Ms Elsasser's evidence, as set out in her written statement, is that in early September 2008 at approximately 6 pm to 6.30 pm, she was walking towards Emu Point Drive along Barry Court, Albany. There is no footpath, so she was walking on the road. When opposite No 34 Barry Court, (the Kellys' property), two grey Weimaraners ran out of the front door of the house, across the lawn and towards her 'very fast'. They were not on a lead and were growling and barking at her. She stated that she 'was very scared that the dogs were going to attack me as they bared their teeth and jumped up at me'. She stated that a lady came out of the front door of No 34 Barry Court and called out to the effect that Ms Elsasser was in no danger. Ms Elsasser then started to walk away and the dogs continued to bark and jump at her. She stated she was still very scared.
Under crossexamination, Ms Elsasser stated that she had come forward only after reading an article in the newspaper about the dogs. The article reflected that in April the previous year, a postal worker had been attacked by the dogs and that in the previous week they had menaced the same worker. That must have been a reference to an article which appeared in the Albany Advertiser on 6 January 2009, a copy of which was attached to the witness statement of Mrs Kelly. The article referred to the dogs having then been declared dangerous. Ms Elsasser confirmed that she does not know Mr Marshall and had only met Mr Forster after she telephoned to report her experience. Ms Elsasser explained that she had only come forward after reading the article because, knowing that the incident with her was not an isolated one, she would feel guilty if she did nothing and someone else were to be attacked by the dogs. In crossexamination, it was put to her that no such incident had occurred and that she was 'making it up'. Ms Elsasser denied that suggestion, stating that she knew what had happened. She made it clear that the dogs were continuously barking around her and that she was anxious from the moment the incident started until she was able to leave Barry Court.
I subsequently questioned Ms Elsasser with a view to establishing whether she was unduly timid and may have misinterpreted the demeanour of the dogs. Ms Elsasser responded to the effect that she worked for the Electoral Commission and did a lot of door knocking. She was accustomed to being approached by many dogs, that her father had been a breeder of German shepherd dogs, and that she had herself owned dogs. She stated that she believed that she could read dogs and that when Mrs Kelly's dogs ran towards her, she could not read any friendly intention when their teeth were bared and they were growling. She said she was not comfortable at all. She made it clear under crossexamination that she was referring to both dogs; also, that she remembered the incident as if it had occurred 'yesterday' and she knew what had happened.
Ms Elsasser lives in relative close proximity to Barry Court. She was aware that the owners of No 34 Barry Court resided there only some of the time, when they were on holiday. She indicated that she knew everyone else in that street and who did or did not have pets.
Mrs Kelly's evidence in relation to this alleged incident was unequivocal. She declared in a very forthright manner that Ms Elsasser was lying, that her dogs never jump up at anyone and that they never growl at anyone. She said that she had trained her dogs and had been an owner of Weimaraner dogs for 32 years. She said her dogs would not even jump on her. She later repeated that her dogs do not jump on people, or growl, and that they did not bare their teeth. With reference to Mr Marshall and Ms Elsasser's evidence, she again stated, 'They are all lying'.

The 30 December 2008 incident

In his written statement, Mr Marshall described that on 30 December 2008 he was delivering mail near the intersection of Barry Court and Dillon Close, Albany when he saw Mrs Kelly. That caused him to look for her dogs as he remembered what had happened in April. He then saw the dogs running towards him. He stated that he 'took off on my motorcycle as I was scared that I would be bitten again. The dogs continued to chase me until I was out of sight'.

After this experience, he called the ranger for the City to report the two incidents.
Under crossexamination, he explained that after the April incident he had not wanted to do anything, but that after the second incident, he thought he had better say something before someone else was injured. He acknowledged that he could not say with certainty that both dogs chased him; it may have been only one dog which did so.
Mrs Kelly, in her written statement, stated that she was returning from the beach with both dogs on their leads when, at the entrance to Dillon Close, Minuet went on one side of a metal pipe dividing barrier, and she and Hugo went on the other side. As further clarified in her oral evidence, this resulted in Minuet not being able to advance when the leash tightened. She turned and then backed out of her collar. Mrs Kelly continued in her written statement to say that Minuet then ambled off but stopped when she called. She did not run or rush very far.
At that time, there was a postal worker on a motorbike who was driving past Dillon Close along Barry Court. The entrance off Barry Court to Dillon Close is approximately 100 metres from where Mrs Kelly was then standing. She stated that Mr Marshall's evidence that he was entering Dillon Close was not true. Mrs Kelly stated the postman was travelling east to west along Barry Court and that the postman does not deliver mail in Dillon Close as none (of the properties in that street) have letterboxes as they are holiday units. She continued that Minuet did not chase the postman and at all times, Hugo was on his lead and secured by her.
It is to be noted that Mr Marshall did not state that he was delivering mail in Dillon Close, as attributed to him by Mrs Kelly. He said he was delivering mail near the intersection of Barry Court and Dillon Close.

The evidence of Dr Nairn

Dr Nairn's evidence was in no way seriously challenged and her evidence is accepted.
Dr Nairn described a visit which she had at the Kellys' home in Elderfield Road, Waterford. Prior to the visit, she had Mrs Kelly complete a questionnaire relating to the dog, giving full details of their history and behaviour. It is unfortunate that Mrs Kelly's legal adviser did not provide this document, although having regard to the views expressed by Dr Nairn, it can be inferred that it is unlikely that there was any prejudicial information contained therein. Dr Nairn spent an hour in Mr and Mrs Kelly's home discussing the reasons for the consultation, the dogs' origins and behavioural history. That took approximately one hour. She described the behaviour of the dogs when she arrived and during this aspect of the visit. After taking the history, Dr Nairn spent some time engaging with the dogs. She described Hugo as an entire male, three years old, in good and lean physical condition. Minuet was described as a sterilised female, nine years of age, moderately overweight and arthritic.
It suffices to say that the dogs' behaviour was compliant and that although there was some indication of low grade territorial behaviour (barking by Hugo), there was no indication of any territorial aggression. Minuet demonstrated that she is a 'smiler'. As Dr Nairn explained, this means that Minuet bares her incisors and canine teeth with otherwise submissive body language. Some dogs learn this behaviour in imitation of humans, but it is used as an ingratiating posture, rather than one of relaxed enjoyment. Dr Nairn stated that 'it is definitely not threatening although inexperienced people may mistake this facial expression for a snarl'.
Dr Nairn then described a walk which she and Mrs Kelly had with the dogs. During part of this walk, the dogs were allowed off their leash. Significantly, the dogs observed workers wearing a uniform but did not react to them. Later, they came close to another worker in a gazebo and, again, the dogs showed no reaction. The first group of workers were operating a lawn mowing machine and a whipper snipper. This had particular significance because Dr Nairn explained dogs are more inclined to be aggressive towards workers in uniform and operating equipment as they are perceived to be more threatening to them.
During the walk, Mrs Kelly saw a young woman walking a small dog, whom she knew. Mrs Kelly had a short conversation with the woman and during this time, Dr Nairn observed the behaviour of Minuet and Hugo in relation to the other dog. They showed no aggression at any time.
Dr Nairn concluded her written statement to the effect that from her observations and experience, and assessment of Minuet and Hugo, she saw no evidence that these dogs would have acted in the way described, and she concluded that the dogs are not dangerous. This latter conclusion is, of course, a matter to be determined by the Tribunal, based on statutory criteria, and is not dependent on an expert opinion of the general character of a dog.
In any event, Dr Nairn acknowledged that no dog can be 100% guaranteed never to display aggression, or to bite. In her oral evidence, she made it clear that if a dog is baring its teeth and growling, it is not smiling. She commented, having sat through all the evidence, that the description of the incidents by the City's witnesses made it sound like two completely different dogs. She said that she would consider the dogs to be dangerous if they acted as described by Mr Marshall and Ms Elsasser. That conclusion is, in turn, subject to the qualification expressed above.

The statutory framework

The definition of 'attack' is set out in s 3 of the Dog Act as follows:
3. Interpretation
(1)In this Act, unless the context otherwise requires
attack, 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;
The circumstances in which a dog may be declared to be a dangerous dog are set out in s 33E of the Dog Act as follows:
33E. A dog may be declared to be a dangerous dog
(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.
(3)The owner of a dog declared to be a dangerous dog, or detained under this Division, shall have the rights referred to in this Division to object and to apply for a review.
It follows that, if in any of the above incidents it is shown that Minuet or Hugo have caused injury to a person or animal, it will be open to declare the dog a dangerous dog. That will also be so if either one of them has repeatedly, that is more than once, shown a tendency to attack, or chase, a person or animal or vehicle, even though no injury has been caused, or has repeatedly shown a tendency to threaten to attack. Attack includes aggressively rushing at or harassing any person or animal, or biting, or otherwise causing physical injury to a person or animal, or attempting to attack, or behaving in a manner towards a person as would cause a reasonable person to fear physical injury.

The findings of the Tribunal

This is a matter in which the findings of fact depend on the credibility of the witnesses. The outcome is dependent on the findings relating to each incident and the incidents in combination. The evidence of Dr Nairn, concerning her views as to the behaviour of the dogs, would come into play if there is doubt about whether or not an incident occurred, as indirect support of Mrs Kelly's version that the dogs were not involved in a particular incident. As I have found that the incidents, denied by Mrs Kelly, did occur, Dr Nairn's evidence is of little assistance.
As I foreshadowed to counsel in closing submissions, no weight has been attached to the letter from Mr Bostock. His letter did nothing to add to the weight of essentially the same points made by Dr Nairn, so that there was no prejudice to Mrs Kelly in this approach, and no greater weight could be given to Mr Bostock's observations than could be given to Dr Nairn's evidence.
For the reasons which follow, and except for some aspects of Mr Marshall's evidence relating to the December incident, wherever there is any material contradiction between the evidence of either Ms Elsasser or Mr Marshall and Mrs Kelly, I prefer the evidence of Ms Elsasser and Mr Marshall.
Ms Elsasser had absolutely no motive to falsify the occurrence of the incident in early September 2008, and I find that incident occurred as described by her. She gave evidence very clearly and in a manner which impressed me. There was no doubt on her evidence that both dogs ran out of the house, across the lawn and towards her at speed while growling, barking and baring their teeth. On Dr Nairn's evidence, baring of teeth with vocalisation, such as snarling or growling, cannot be regarded as submissive smiling which, in any event, was a characteristic ascribed only to Minuet.
I explored with Ms Elsasser whether she may have misinterpreted the behaviour of the dogs. It is necessary to consider whether or not a reasonable person in the situation of Ms Elsasser may have had cause to fear physical injury and, therefore, to enquire into whether or not the behaviour of the dogs could be regarded as aggressive: see City of Armadale v Kiraly [2009] WASC 199, per Heenan J at [20] [23], inclusive. That enquiry showed that Ms Elsasser is a person well accustomed to dogs, who was therefore less likely to misinterpret their behaviour. She had been a dog owner, had worked for the Electoral Commission and had undertaken a lot of door knocking which brought her into contact with many dogs. In addition, her father was a breeder of German shepherd dogs.
Similarly, Mr Marshall impressed me with the manner in which he gave evidence. He showed no vindictiveness or partisanship and endeavoured to give his evidence as objectively as he could. It was clear that he had not wished to lodge a formal complaint after the first incident involving him in April 2008. He regarded confrontation with dogs as part and parcel of the job of delivering post by motorcycle. It was only as a result of the second incident that he thought that something needed to be done in the interests of others. Attempts to discredit him by detailed interpretation of the photographs he had taken of his injury had little sway with me. Photographic evidence can be misleading, depending on light, the angle at which photographs are taken and the quality of their reproduction. Mr Marshall was not at all shaken in crossexamination, and where he needed to make concessions, he did so quite readily. An example of this was the way in which he acknowledged that he could not be certain that both dogs had chased him on 30 December 2008.
By contrast, Mrs Kelly was unequivocal to the point of rigidity in the manner in which she gave evidence. She demonstrated aggressiveness and a level of emotion which, although understandable to a point, was carried through to a degree which casts doubt upon her reliability as a witness.
It is strange that Mrs Kelly could remember and recount such an unremarkable event as she describes occurred in April 2008. Why would she remember with such clarity, Minuet running off towards a cat in April 2008, after a complaint made eight months later, and assert that this was the occasion which resulted in Mr Marshall's complaint? By contrast, there is the incident report completed by Mr Marshall on the following day, outlining the incident. Although he stated in that report that he was unable to ascertain the dog's owner in order to engage the ranger, that is not inconsistent with either the statement that he gave to the City in January 2009 or his statement filed in these proceedings, dated 12 November 2009. He did not then state where the dogs had come from and he did not indicate that he knew the identity of the owner with whom he spoke. More importantly, he did not advance any formal complaint in April 2008, although he had reported the incident and received medical treatment. There was no challenge made of the authenticity of that incident report.
In the circumstances, I find that the incident on 28 April 2008 occurred as described by Mr Marshall.
Mr Marshall's evidence of what occurred during the December incident is in respect of some aspects open to doubt, although I accept that he was chased by at least one of the dogs.
Mrs Kelly says that it was Minuet which was off its lead, which would therefore suggest that it was Minuet which chased Mr Marshall. Yet, Mrs Kelly's evidence, and the observations of Dr Nairn, show that Minuet is by far the older dog, is arthritic, and unlikely to be able to run fast or for any distance. The consequence of the Tribunal's findings in relation to the incidents in April and September 2008 is that Mrs Kelly has given false evidence to the Tribunal. There is no room to reconcile different versions of the events because Mrs Kelly disputes that they occurred. In these circumstances, I am cautious about accepting Mrs Kelly's evidence on this issue.
If it was Minuet which chased Mr Marshall, it is unlikely that Minuet could have chased him for any distance or length of time. Mr Marshall's evidence created the impression of a more substantial chase. In that event, doubt is cast upon the accuracy of Mr Marshall's account of this incident. Given that Mr Marshall conceded that he might be wrong in saying that he was chased by both dogs, he may well be wrong to suggest that the chase continued until he was out of sight.
Mr Marshall, as already stated, gave his evidence objectively and showed no vindictiveness. The Tribunal accepts he acted upon his sense of public duty to protect others. He is not a person who has any abnormal fear of dogs. That was evidenced by his lack of concern when being circled by the dogs in the April 2008 incident, while he sorted his mail. The Tribunal, therefore, finds that the manner in which at least one of the dogs advanced towards him was sufficiently fast to cause him to accelerate away in fear that he would be bitten again and that the dog chased him. Taking all of the above into account, it is more probable than not that the dog involved was Minuet and that she chased Mr Marshall for a relatively short time and distance, and I so find.
In relation to the incident which occurred in South Perth on 3 August 2008, there is no direct evidence, except that of Mrs Kelly. For the reasons given, I am cautious about accepting that evidence, but when regard is had to the information recorded in the dog attack report prepared by Mr Sharples, all that is established is that two Weimaraner dogs, which were obviously Hugo and Minuet, ran across the road towards Mrs Clay, together with a third dog, a rough haired Collie. The Collie attacked Mrs Clay's dog. These are the only findings which are made in relation to that incident.
It is then necessary to take the circumstances of each incident and consider the effect of each incident separately, and in combination, having regard to the statutory provisions referred to above.

The South Perth incident in August 2008

The evidence establishes only that Hugo and Minuet ran across the road towards Mrs Clay and her dog. Neither of Mrs Kelly's dogs caused any injury to Mrs Clay's dog. There is an insufficient basis on which to find that Hugo and Minuet were involved in an 'attack' as defined, because the evidence does not establish that they acted aggressively in the manner in which they ran across the road, nor that they attempted to attack or behaved in such a manner towards Mrs Clay as would cause a reasonable person to fear physical injury.

The April 2008 incident

The evidence establishes that Hugo and Minuet ran towards Mr Marshall who was delivering mail to No 53 Barry Court. He was then obviously stationary and the dogs began circling him. The manner in which the dogs had run towards him and circled him did not cause Mr Marshall any particular concern. Mr Marshall went on with his business of sorting the mail in order to arrange what documents were to be delivered next. While he was doing that, one of the dogs, which is not identified, ran in and bit him.
The single act of biting constitutes an attack under s 3(1)(b) of the Dog Act. However, both dogs cannot be declared to be dangerous. It is necessary to identify the dog which carried out the attack. Neither of the dogs can be declared to be dangerous based on the manner in which they ran towards Mr Marshall and circled him. The evidence does not establish that by doing so, they met the requirement under s 3(1)(a) of the Dog Act of aggressively rushing at or harassing a person.
Accordingly, the incident does not provide a basis upon which to make a declaration for either dog to be declared dangerous.

The 30 December 2008 incident

As already indicated, I have found that Minuet chased Mr Marshall.
It is necessary under s 33E(1)(b) to demonstrate that the dog has repeatedly, that is, at least more than once, shown a tendency to attack, or threaten to attack, or chase a person, animal or vehicle, in order to justify the making of a dangerous dog declaration.
The criteria for an attack to have occurred is established by aggressively rushing at Mr Marshall. Mr Marshall is accustomed to being chased by dogs and, remembering his previous experience when he was bitten in April, he was in fear that he would be bitten again. It can be inferred, and I find, that Mr Marshall interpreted the dog's behaviour as aggressive and that it did aggressively rush at him, so as to constitute an attack. Further, I find that the behaviour of the dog constituted an attempt to attack Mr Marshall within the meaning of s 3(1)(d) of the Dog Act.
Before a dangerous dog declaration can be made, it is of course necessary to show that the conduct was repeated, as discussed further below.

The incidents considered in combination

It is only the September 2008 incident which potentially can be relied upon as a basis for supporting the requirement of repeatedly showing a tendency to attack, because the finding in respect of that incident is that both dogs rushed aggressively towards Ms Elsasser. Based on that finding, the element of demonstrating that the dog had repeatedly shown a tendency to attack, or attempt to attack, is satisfied in relation to Minuet in respect of the incident on 28 December 2008.
As I have found above, Minuet attacked Mr Marshall on 28 December 2008, by aggressively rushing at him, attempted to attack him and chased him. Minuet has been found also to have participated in aggressively rushing towards Ms Elsasser and, therefore, has repeatedly shown a tendency to attack, or to attempt to attack, a person.

In these circumstances, the declaration that Minuet is a dangerous dog should be affirmed. The evidence and above findings do not support the declaration that Hugo is a dangerous dog, and that declaration falls to be set aside.

General observations

It is only by a combination of fortuitous circumstances resulting in difficulties in identifying the dog which bit Mr Marshall, that Mrs Kelly has achieved an outcome requiring that the declarations in respect of Hugo be set aside. During the course of the hearing, a number of criticisms were levelled by counsel for Mrs Kelly about the manner in which the City's ranger had undertaken his investigation in this matter. In effect, that criticism was that Mr Forster should have obtained more detailed information from the persons involved in the incident in South Perth in August 2008. I do not consider that criticism to be justified. In Corrigan and Shire of Northam [2009] WASAT 140, the Tribunal commented on the pragmatic approach which needs to be taken in dealing with matters under the Dog Act. The ranger, Mr Forster, had more than sufficient evidence to recommend the making of dangerous dog declarations based on what he had established in January 2009. Of course, once it became apparent that Mrs Kelly intended to challenge the declarations, it was foreshadowed that each incident would be closely examined. The City did not take the matter lightly; it instructed solicitors, who acted on behalf of the City at all relevant times. I am satisfied that the City has acted responsibly in this matter and it is only the particular difficulties which have arisen in relation to identification which has resulted in an outcome adverse to the City in relation to the dog Hugo.
The result is a fortuitous one for Mrs Kelly. She should be under no misconception about her potential liability under the Dog Act, or arising in common law, if either one of her dogs is involved in an attack in the future. She may be the only person who knows which of the dogs bit Mr Marshall. She would do well to consider voluntarily applying the conditions applying to Minuet in relation to being muzzled in any public place, and being kept in a suitably enclosed area at other times, to the dog Hugo.

Order

For the above reasons, the Tribunal will issue an order as follows:
1.The declaration issued on 19 June 2009, declaring the dog Hugo to be a dangerous dog, is set aside.
2.The declaration issued on 19 June 2009, declaring the dog Minuet to be a dangerous dog, is affirmed.

I certify that this and the preceding [77] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR C RAYMOND, SENIOR MEMBER