Kent v Bundaberg Regional Council
[2011] QCAT 692
•21 December 2011
| CITATION: | Kent and Anor v Bundaberg Regional Council [2011] QCAT 692 |
| PARTIES: | Mr Ronald Kent Mrs Lynn Kent |
| v | |
| Bundaberg Regional Council |
| APPLICATION NUMBER: | GAR271-11 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 9 December 2011 |
| HEARD AT: | Bundaberg |
| DECISION OF: | Graham Quinlivan, Member |
| DELIVERED ON: | 21 December 2011 |
| DELIVERED AT: | Bundaberg |
ORDERS MADE: | 1. The Application is allowed. 2. The 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. |
| CATCHWORDS: | Declaration – dangerous dog – whether dog attacked another person – whether dog caused bodily harm to a person Animal Management (Cats and Dogs) Act 2008, ss 61, 89, 94 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Ronald Kent and Mrs Lynn Kent represented themselves |
| RESPONDENT: | Bundaberg Regional Council represented by Mr John Duffield |
REASONS FOR DECISION
Background
Mr and Mrs Kent (the applicants) seek review of a decision made by the Bundaberg Regional Council (BRC) to declare their dog Amy to be a “dangerous dog” under the Animal Management (Cats and Dogs) Act 2008 (“the Act”). The respondent made the declaration following an investigation into an incident that took place on 21 July 2011.
The applicants appeared, gave evidence and made submissions to the Tribunal. The owner of the dog that was allegedly attacked, Ms Marian Jensen attended and gave oral evidence. Ms Jensen’s friend, Mr Stan Pohle who was also present during the incident, gave a written statement but was not able to attend the hearing due to other commitments. A number of persons provided written statements in support of the applicants.
QCAT has jurisdiction to review the decision, arising primarily under section 188 of the Animal Management (Cats and Dogs) Act 2008 and sections of the Queensland Civil and Administrative Tribunal Act 2009 (“the QCAT Act”). On review, the Tribunal must hear and decide the matter by way of fresh hearing on the merits and the review is by way of rehearing. The purpose of the review is to produce the correct and preferable decision. The standard of proof is on the balance of probabilities.
The Evidence
The applicants Mr and Mrs Kent live at 7 Camellia Crt Bundaberg. They own a dog called Amy that is a long haired German Shepherd.
Ms Jensen resides at 82 Kendalls Rd Branyan and Mr Pohle resides at 16 Forbes Crt Avoca. Ms Jensen is the owner of two dogs known as Pebbles and Muffin. The dogs are a Maltese x Pomeranian and a Pomeranian.
Shortly after 5.00pm on 21 July 2011 the applicants were walking with their dog Amy through the Agro-Trend site at Bundaberg. At around the same time Ms Jensen and Mr Pohle were stopped at a barbecue bench within one of the buildings at the same site with Ms Jensen’s two dogs. Ms Jensen was trimming one of the dog’s claws. As the applicants and their dog approached the building where Ms Jensen and Mr Pohle were located an incident took place. The versions of what happened during the incident are markedly different and will be dealt with separately.
The incident was first reported to Bundaberg Regional Council on 22 July 2011. As a result of the incident Ms Jensen sought veterinary treatment for one of her dogs at the Sugarland Veterinary Clinic in Bundaberg West shortly after the incident. On 23 July 2011, Ms Jensen and Mr Pohle reported the incident to the Bundaberg Police Station. Statements obtained by the Police were included in materials filed by the BRC in these proceedings and were also included in the Statement of Facts provided by the applicants.
The applicants also attended the Bundaberg Police Station on 27 July 2011 to report the incident. On 18 August 2011 they were advised that the Police would be taking no further action because there was “no CCTV footage, no independent witnesses and conflicting statements from both parties”. The applicants objected to the statements provided by Ms Jensen and Mr Pohle to the Police being admitted in these proceedings. The Tribunal took the view that they could be admitted under section 28(3)(c) of the QCAT Act. The Tribunal notes that in his statement of evidence Mr Kent has addressed the matters raised in the police statements of Mr Pohle and Ms Jensen at paragraph 58.
On 27 July 2011 apparently as part of an investigation into the incident, two persons from BRC attended at the home of the applicants. The officers took particulars and photographs of Amy and advised the applicants that their dog was declared to be a dangerous dog. A document dated 27 July 2011 submitted by BRC titled “Dog Incident Local Laws Officer Assessment” is a report of the incident by a local laws officer Paul Roberts. The officer concludes that “the dog has acted in a way that the person and dog involved both had medical treatment from the attack”. Subsequently on 25 August 2011 a Regulated Dog Declaration Information notice was sent to Mr Kent advising that his dog “Amy” had been issued the notice because “(t)he dog has seriously attacked causing bodily harm to a person and an animal”.
[10] The applicants lodged an application to review the decision with BRC dated 1 August. On 15 August 2011 Mr Duffield conducted an internal review of the decision and noted the following points as having been submitted for the review:
§Dog was rushed by two off lead dogs;
§Dog has had socialisation and obedience training;
§Dog walked on leash, kept on own property, de-sexed, micro chipped and registered;
§Dog reacted to aggression from other dogs.
[11] Mr Duffield dismissed the Appeal for the following reasons:
§Actions of dog caused significant harm to the dog and also bit the dog owner;
§The issue of what dog rushed at whom is not able to be established as there was no independent witness and the claims being made by both dog owners are dramatically different;
§Dog may have reacted to the smaller dog’s claimed aggression, however the reaction was disproportionate. The applicants were notified of the result of the Appeal by letter from BRC dated 24 August 2011.
[12] On 30 August 2011 the applicants lodged an appeal against the BRC decision with the Tribunal seeking that the BRC rescind their decision.
Other evidence
[13] The evidence from each of the persons who were present at the time of the incident varies considerably.
[14] Mr Kent: Mr Kent’s version is that at about 5.10pm on 21 July he and his wife were walking their dog “Amy” on a short (90cm) lead in the Agro Trend grounds. As they approached near the southern end of a building, two small dogs not on leads rushed at them from an alcove at the other end of the building, snapping and snarling. Amy pulled the lead out of his wife’s hand and went to the two dogs. One of the dogs attacked the front legs of Amy biting her up to 6-7 times.
[15] Amy then picked the dog up in her jaws over the shoulder area. Mr Kent then instructed Amy to “leave” the dog and she dropped it immediately.
[16] The next thing was that a woman appeared from within the alcove and she rushed up and grabbed Amy by the scruff, lifted her front feet off the ground, placed her arm under the dog’s jaw, keeping her mouth closed and began punching the dog about the head with her right fist while screaming obscenities.
[17] On Mr Kent’s version “our dog looked dumbfounded by the attack and did not open her mouth, savage/bark/snarl/growl, or bite during this episode”. Mr Kent denies seeing any blood on the woman or on Amy or his wife or him. There were no signs of serious injury on the other dog.
[18] Mr Kent says there was a man standing nearby who was abusing the applicants but did not seek to intervene. In Mr Kent’s view the other dogs showed no fear in spite of the obvious difference in size.
[19] In Mr Kent’s opinion Amy was under control at all times either by lead or voice.
[20] Under cross examination by Mr Duffield, Mr Kent confirmed that he had visual contact throughout the incident. He also admitted that on occasion the applicants let Amy off the lead to play with a ball in the area but they ensure that there are no other dogs around when this occurs.
[21] Mrs Kent: Mrs Kent’s version is similar to that of Mr Kent but there are some differences. Mrs Kent says that on the day in question as they were approaching the end of the building she was holding Amy on a three foot lead. Two small off lead dogs came running towards them growling and snarling. Mrs Kent recognised the dogs from a previous incident involving the same small dogs where in her view the owner of the small dogs had encouraged them to snarl and bark at Amy. Mrs Kent also became fearful because she had been injured on another occasion at a different location because of an attack by a dog.
[22] Mrs Kent says that Amy pulled the lead from her hand and trotted towards the two dogs that immediately started snapping and biting at Amy’s front legs and chest. Amy picked up one of the dogs in her mouth and shook it once or twice. Mr Kent then told Amy to “leave” and she dropped the dog on the concrete.
[23] A woman appeared and grabbed Amy. In Mrs Kent’s version the woman ignored her own dogs and grabbed Amy and commenced punching her. Amy did not respond. There was then an altercation between the persons present that involved punching and slapping.
[24] A man appeared who seemed to be walking towards the western gate. He stopped a few metres away and screamed obscenities and death threats at the applicants. At no time did the man pick up either of the small dogs. The only involvement by the man was the threats and placing one of the small dogs on a lead as he left with the woman. Mrs Kent says that the woman eventually picked up one of the dogs and left. There was no blood on her own hands and no dog was lying prone or yelping.
[25] Mrs Kent was also cross-examined by Mr Duffield. She denied that the applicants were in the habit of walking Amy off the lead but did admit that it did happen occasionally when they met other people with dogs that they knew. Mrs Kent admitted that she had not attended the formal training that Amy had received but that she had learnt how to control Amy at home. Mrs Kent also said that she had complete visual contact throughout the incident.
[26] Ms Jensen: Ms Jensen provided three different statements in the course of these proceedings. In her first statement to BRC dated 21 July 2011 she stated that she was walking with her friend through the Agro Trend grounds. She had stopped and had one of her dogs on a bench. As they were starting to leave she saw a large German Shepherd charging towards her. It grabbed her dog and started shaking it. She tried to get the dog out of its jaws, then the German Shepherd bit her. The owner of the dog punched her in the face and she punched him back. His partner also punched her in the face. In relation to this statement in cross-examination Ms Jensen admitted that Mrs Kent did not punch her in the face but slapped her “like kid slaps”.
[27] In her next statement to Police on 23 July 2011, Ms Jensen indicated that she was walking her two dogs with a friend. She stopped at a barbecue bench to trim one dog’s claws. She finished trimming the claws and then heard her other dog Pebbles bark and she saw a large German Shepherd running along the path towards “my other dog”. She ran to her dog. The German Shepherd grabbed her dog in its mouth. She grabbed the German Shepherd, pulled its mouth open and Pebbles fell out of its mouth. The German Shepherd bit her on the hand, she grabbed the German Shepherd and punched it a number of times.
[28] Ms Jensen then saw a small lady running towards her. This woman grabbed the German Shepherd and pulled it towards her. She also saw a man walking towards her, he assaulted her and she hit him back. The lady slapped her and the man pushed her, then the couple walked briskly off.
[29] In her third statement made on 22 November, Ms Jensen states that she recalls trying so hard to retrieve her “little Peb” from the German Shepherd’s mouth. She had been standing at a bench at the Food Pavilion with Mr Pohle. She heard Peb bark, looked back down at her and then saw the large dog bounding towards her. Ms Jensen ran about 3.5 metres to pick her dog up but the German Shepherd grabbed her. The large dog then turned and back tracked a short distance, shaking her dog. The big dog did not have a lead on whatsoever. She then goes on to say that when she knew her little dog was on the ground, she looked and saw a small lady come from the western side of the building and then she saw the man walking fast towards her. He did not say any word to his dog to help in any way. He yanked the dog’s collar so hard, turned and left the scene.
[30] In cross examination by the applicants, Ms Jensen was asked if her own dog may have bitten her during the incident. Ms Jensen answered “It could have, I am not sure” and that she was more worried about her dog at the time.
[31] Mr Pohle: Mr Pohle’s version of the event is set out in his statement to Bundaberg Police on 23 July 2011. He was not available for cross-examination due the work commitments and as a result his statement was not tested.
[32] Mr Pohle states that prior to the incident Ms Jensen was standing on the outer edge of the benches in the canteen area. She had Muffin up on the bench wrapped in a towel, cutting her nails. Pebbles was just sniffing around on the ground “not too far from us”. Mr Pohle was standing on the inside. The next thing he recalls is Ms Jensen saying “Quick Stan help me get Pebbles”. He looked up and saw a large German Shepherd running at full pelt towards Pebbles. He could see no one with the dog at the time it was running towards them.
[33] Marion ran straight for Pebbles and by the time he got there, the large dog already had Pebbles in its mouth. He then saw Ms Jensen lift the dog right up, holding its mouth open and he then saw Pebbles drop out and fall to the ground. Ms Jensen yelled “just grab Pebbles” and he picked her up and cradled her in his arms. She seemed lifeless.
[34] Mr Pohle then saw a male person running towards Ms Jensen. There was then an altercation between Ms Jensen and the man, after which she let the dog go and the male person just “legged it” and ran away. He says that he can’t recall if the large dog had a collar but it had no lead attached to it.
[35] Although he was not cross-examined it is notable that Mr Pohle made no mention of the presence of another female person, that is, Mrs Kent.
[36] The other relevant evidence is a Veterinary Report from the Sugarland Veterinary Clinic dated 22 November 2011 signed by Dr Mike Woodham. This report was not challenged by the applicants and Dr Woodham was not called to give evidence. The report states that Pebbles was presented at the Clinic on 21 July 2011. There was evidence of a dog bite over her chest region and “had been shaken by the other dog”. She was exhibiting neurological signs, nystagmus and shock. She was presented in extreme pain and was very traumatized. The report also states that over the next few months there were a series of post traumatic complications. Some of the observations made by Dr Woodham are obviously based on information obtained from Ms Jensen and/or Mr Pohle.
Considerations
[37] Section 89 of the Animal Management (Dogs and Cats) Act 2008 provides as follows:
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);
(Section 61 sets out what is a declared dangerous dog and section 62 sets out what is a declared menacing dog.)
(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.
(5)The declaration may be made even if the dog is not in the local government's area.
(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.
[38] Section 94 of the Act states:
(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.
[39] In this matter the declaration of dangerous dog has been made on the basis that the dog, Amy, has seriously attacked causing bodily harm to a person and an animal. The issue to be determined is whether the applicant’s dog was responsible for the attack, in which case it was open to the Council to make a declaration. Upon review Mr Duffield who is the BRC Manager of Health and Regulatory Services, found that in addition to the original reason that:
§The issue of what dog rushed at whom is not able to be established as there was no independent witness and the claims being made by both dog owners are dramatically different;
§Your dog may have reacted to the smaller dog’s claimed aggression, however the reaction was disproportionate.
[40] Mr Kent gave evidence at paragraphs 38-51 that was critical of the investigation undertaken by the BRC and gave evidence that was unchallenged by Mr Duffield to the effect that he had a conversation with the investigation officer Mr Roberts who said “You should file a Dog Incident Report at Council and we would investigate her 2 dogs and your complaint would probably cancel out hers”. In spite of this advice the applicants apparently did not lodge such a Report. I am satisfied that on the evidence available to it the BRC reached a view which was fairly open to it.
[41] Of the witnesses who gave evidence I found Mrs Kent to be the most reasonable. She was considered and helpful in her approach. She appeared willing to concede when she could not remember or answer some questions put to her. On the other hand I found Ms Jensen to be at times flippant and dismissive of matters put to her and prone to exaggeration. She made a number of unsupported allegations and gratuitous comments. Mr Kent was formal and deliberate and at times unwilling to expand on his answers.
[42] In my view the circumstances of the present matter are finely balanced. It is clear the incident was a result of a set of unfortunate circumstances. It does not appear to be in dispute that the dog Pebbles was not subject to control by a leash at the time of the incident. Amy is an otherwise well-behaved dog who has been well-trained and is well cared for. She escaped from Mrs Kent during a walk and what ensued is an incident the details of which remain in dispute. Nonetheless the situation presented itself for Amy who was not effectively controlled, to escape from Mrs Kent and inflict injury upon Pebbles. I have considered the photos and veterinary report regarding Pebbles’ injuries. The photos demonstrate considerable injuries to the dog.
[43] However, having made those observations, the issue remains that there are significant and unresolvable differences in the evidence presented by the parties. In particular the evidence does not establish on the balance of probabilities that the dog Amy initiated the incident which is the subject of these proceedings. I am mindful of the comments of Mr Duffield in his review of the decision to declare Amy to be a dangerous, but I differ in my conclusion because I do not find that the evidence supports a finding that either dog initiated the attack. As a result the level of the response by one of the dogs does not necessarily lead to a finding that it was disproportionate in the circumstances. Therefore I am not able to find that Amy “seriously attacked” the dog Pebbles. It is clear that Pebbles suffered injuries on the day in question but whether this was a result of an attack by Amy or as response to an attack by Pebbles is not able to be determined on the available evidence. Further the evidence does not address the issue of whether the dog Amy “acted in a way that caused fear to, a person or another animal”.
[44] Accordingly, the decision under review is set aside and the decision of the Tribunal is substituted that the grounds upon which a declaration of “dangerous dog” was made in respect to the applicants’ dog Amy are not met.
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