LANFRANCHI & OWNERS OF UNITS PLAN 806 (Civil Dispute) - [2011] ACAT 73

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

LANFRANCHI & OWNERS OF UNITS PLAN 806
(Civil Dispute) [2011] ACAT 73
XD 981 of 2011
Catchwords: CIVIL DISPUTE – seeking declaration to keep dogs in unit - did the Owners of Unit Plan 806 unreasonably withhold consent to the keeping of the dogs? – the meaning of “unreasonableness” – erroneous belief that the dogs were of a ‘pit bull type’ when they were Staffordshire Bull Terriers - did the owners corporation fail to consider relevant matters and did take into account irrelevant matters?

List of legislation: Unit Titles Act 2001, s.51A, s.123, s.124 and s.125(i)(e)and(f)

List of cases: Chomyn v Owners Corporation SP 14801 [2001] NSWSSB 6

Tribunal: Ms J. Lennard, Senior Member

Date of Orders: 24 October 2011

Date of Reasons for Decision:         24 October 2011
AUSTRALIAN CAPITAL TERRITORY  )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          XD 981 of 2011

BETWEEN:
KARINA LANFRANCHI
Applicant

AND:

OWNERS OF UNITS PLAN 806

Respondent

TRIBUNAL: Ms J. Lennard, Senior Member

DATE: 24 October 2011

ORDER

The Applicant Ms Lanfranchi may keep her two Staffordshire Bull Terrier female dogs Zoe and Lola in the premises subject to the following conditions:

a.The dogs will be at all times confined to the unit or its back yard;
b.If the dogs are taken from the unit by Ms Lanfranchi, her partner or any other person the dogs will be on a lead.
c.Ms Lanfranchi is to ensure that the unit and its back yard are at all times secure so that no unauthorised entry by other persons or escape by the dogs is possible.
The Applicant is to file and serve any submissions on the question of costs within 14 days of the date of this order. The Respondent is to file and serve any response to submissions on costs within 28 days of the date of this order.

………………………………..

Professor P. Spender
Presidential Member
For and on behalf of Ms J. Lennard
Senior Member

REASONS FOR DECISION

The Applicant is an owner of a unit in Units Plan 806.
On 25 January 2011 the Applicant made an application to the owners committee of Units Plan 806 to keep two English Staffordshire Bull Terriers (the dogs) at her unit.
On 7 February 2011 the executive committee of the Owners of Units Plan 806 voted to refuse the application to keep the dogs.
This is an application under the Unit Titles Act 2001 by Ms Karina Lanfranchi. The application seeks a declaration that pursuant to s51A of the Unit Titles Act 2001:
i)That the Owners Corporation has unreasonably withheld its consent for the Applicant to keep an animal, namely two dogs, within the premises;
ii)That the Owners Corporation consent to keep an animal has been unreasonably withheld given the Pets Policy Guidelines of the Owners Corporation; and
iii)That the Applicant, the owner of the Unit in Units Plan 806 be allowed to keep an animal, namely two dogs within the unit.

Background to the refusal of consent to the keeping of an animal

The Applicant purchased her unit in September of 2010. The Applicant purchased the dogs in September 2010. By the time of the executive committee meeting, the dogs were micro chipped, registered and vaccinated. It is not clear from the evidence before the ACAT whether this information was given to the executive committee. The minutes of the executive committee meeting do not indicate whether this information was considered or sought (see paragraph 9 below).
The Pets Policy guidelines of the complex were submitted as annexure H to the application and are attached as a PDF at the end of this decision.
Prior to the meeting of 7 February, the executive committee sent to each owner within the complex a Notice of Executive Committee Meeting. It noted the motion that the Owners Corporation grants consent to the owner for the keeping of two Staffordshire Terriers upon the lot pursuant to Section 51A of the Unit Titles Act 2001 and conditional to the Pets Policy as required by Local Councils and Governments was to be dealt with on 7 February 2011 and requested that each owner vote yes or no and return the ‘voting paper’. The ACAT received evidence from both parties that 7 voting papers were returned and the votes were 5 in favour of and 2 against the motion. This was the only motion to be dealt with at that meeting.
The executive committee voted two against and one in favour of the motion and the motion was therefore lost.
The minutes of the executive committee meeting of 7 February 2011 noted that the motion was lost and contained the following statement setting out the concerns of the executive committee:
·       The crossed breed of the dogs are classified as a ‘pit bull’ types.
·       The type of dogs is unsuited to unit/apartment living especially when there are two of them.
·       The breed of dog requires attention and training which may be difficult to provide when the owner is away from home for most of the day.
·       The papers provided show both dogs desexed status as ‘unknown’ which does not meet the requirement for any application at the complex.
·       The dogs should be muzzled as well as leashed when outside on common property.
·       This breed of dog has a high record of incidents of biting both people and other animals.

Evidence before the Tribunal

Ms Lanfranchi attached a number of documents to her application:
a.        NSW Companion Register Certificate of Identification for each dog
b.        Vaccination Certificates for each dog
c.         Registration information for each dog
d.        A copy of the Pets Policy for the complex
e.         A copy of her email to the owners corporation manger seeking information about permission to keep the dogs
f.       A copy of the Notice of Executive Committee Meeting and voting paper sent to each owner
g.        A copy of the minutes of the Executive Committee meeting held
7 February 2011
h.        A copy of the veterinary clinics account for the speying of each dog. This is dated 16 February 2011.
i.       A BITSA Breed Identification document which show that the dogs were of mixed breed with the primary breed being Staffordshire Bull Terrier.
j.       A report dated 28 February 2011 on Lola and Zoe Lanfranchi 2 Staffordshire Terrier cross breed Bitches aged 6 Months by
Dr Sandra Hassett of the Animal Medical Centre. This report summarises the Centre’s interaction with the dogs and addresses the issues raised in the minutes of the meeting of the Executive Committee of 7 February 2011. Dr Hassett notes:
i.In the contact with the centre the dogs have not shown any aggressive, predatory or hyperactive behaviour
ii.The dogs exhibit calm and polite behaviour towards people
iii.The dogs have behaved politely and quietly in the waiting room and have been relaxed and readily examined during consultations with no fear, anxiety or aggression manifest
iv.The owners understand the need for proper training and have shown themselves to be enthusiastic and dedicated pet owners.
k.        Dr Hassett’s conclusion is:
All current research into dogs with behaviour problems such as aggression indicate that each dog must be assessed on an individual basis, regardless of age, gender or breed. Key factors to consider in determining the likelihood of behaviour problems such as aggression include individual personality of the dog, socialisation, training and owner commitment and competence. On all these points Lola and Zoe have a low probability of developing behaviour problems such as aggression. There is no evidence to support the Committee’s conclusion that these dogs are unsuited to apartment living, should be muzzled, or represent an increased risk of displaying aggressive behaviour on the basis of their breed.
Attached to Dr Hassett’s report were two articles: Does breed specific legislation reduce dog aggression on humans and other animals? A Review Paper, by Linda Watson and what appears to be a chapter from a text book: genetics and Behaviour: by Gabrielle Carter. Dr Hassett’s broad conclusion draws upon these articles. ACAT notes that Linda Watson Biography appended to the article reveals a bias against breed specific legislative control. However, Dr Hassett’s first hand observation of the dogs’ behaviour and the owner’s attitudes were of assistance to ACAT.
The Respondent lodged three documents with ACAT:
i)         A document headed Pit Bull faq, downloaded from the internet site DogsBite.org: Some dogs don’t let go. This is a national dog bite victims’ group dedicated to reducing serious dog attacks.
ii)       A second document entitled Pit Bull Myths from the same organisation.
iii)     An article entitled Killer dog destroyed as neighbours reveal horror of attack in house, published in the Sydney Morning Herald of 19 August 2011.
A letter dated 12 September 2011 sent by the owners corporation to all owners in the complex except Ms Lanfranchi. This letter explained that the matter was to be dealt with in ACAT and asking for comment. One reply, an email from Shane Kay dated 21 September 2011,was handed up. This email supports the decision to refuse permission to keep the dogs.
The matter was heard on 4 October 2011. Ms Lanfranchi was present and represented by Mr Patrick, Solicitor of Gillespie-Jones & Co. Mr Trevor Mann, a member of the Executive Committee represented the Owners Corporation.
ACAT heard evidence from Ms Lanfranchi and Mr Mann. Mr Mann at the conclusion of the hearing handed up his notes by way of written submissions and reference to sources of information.
ACAT heard evidence by phone from Dr Hassett. She stated that she had
25 years experience of veterinary practice.
In relation to the breed of Staffordshire Terrier Dr Hassett stated:
·       They were social little dogs;
·       They were small hunters and ratters;
·       They grew to about 16 kgs;
·       They were not regarded as a danger to children, but any dog could be a risk;
·       They had not been bred to enhance fighting characteristics or capabilities;
·       They were not the same as Pit Bull Terriers but would as a breed have had ancestors in common with pit bulls.
In relation to Pit Bull Terriers Dr Hassett stated:
·       They had been bred to enhance fighting characteristics;
·       They were larger and more powerful that Staffordshire Terriers;
·       They were known to be aggressive.
In relation to the dogs owned by Ms Lanfranchi Dr Hassett stated:
·       She had treated the young dogs last in June or July;
·       The dogs had attended puppy socialisation sessions and she had had a chance to observe them;
·       Neither dog showed any aggressive characteristics, they interacted well with people and were not fearful; they sat quietly in the waiting room and were easily examined.
·       She believed that the owners were dedicated and careful dog owners.
ACAT adjourned the matter for a written decision to allow time to read the articles and cases submitted by the parties. ACAT also searched legislation, including the recent Victorian Standard for Restricted Breed Dogs and the Companion Animals Act 1998(NSW).
ACAT has no information as to what material was before the executive committee when the decision to refuse permission to keep the dogs was made. The minutes of that meeting are taken as a list of matters taken into account by the executive committee. The minutes refer to papers showing the ‘desexed status of the dogs as unknown’: this appears to be a reference to the NSW Companion Animals Register Certificate of Identification. These papers describe the breed as ‘Bull Terrier (Staffordshire)/Bullmastiff Cross.
Did the Owners of Unit Plan 806 unreasonably withhold consent to the keeping of the dogs in contravention of s51A (3)?
In Chomyn v Owners Corporation SP 14801 [2001] NSWSSB 6 (10 August 2001) (9) it was stated:
The word "unreasonably" is to be given its meaning in the ordinary parlance; the authority for this is Davies J in Curragh Coal Co Pty Ltd v Wilcox [1984] FCR46. In order to have regard to the ordinary parlance one has regard to the dictionary. The Macquarie Dictionary provides the following definitions:-
"Reason" Sound judgement or good sense
"Reasonable" Agreeable to reason or sound judgement, endowed with reasons.
"Unreasonable" Not reasonable, not endowed with reason, not guided by reason or good sense, not based or in accordance with reason or sound judgement.
The Butterworths Australian Legal Dictionary says Unreasonable: in administrative law, a description of an exercise of power...that is so unreasonable that no reasonable person could have so exercised the power. Unreasonableness is aground for review.
ACAT deals with the noted concerns of the executive committee as follows:
a.The crossed breed of the dogs are classified as a ‘pit bull’ types. There was no evidence put to ACAT by the Owners of Units Plan 806 that the dogs in question could be classified as Pit Bulls. The Applicant has produced evidence that the dogs are Staffordshire Bull Terriers. While there remains some secondary breed not identified, the evidence of
Dr Hassett is that Pit Bulls and Staffordshire Bull Terriers are not the same.
b.The type of dogs is unsuited to unit/apartment living especially when there are two of them. There is no evidence to support this contention. The Applicant gave evidence that the dogs are crate trained; the dogs have been raised in an indoor environment. Dr Hassett’s written report stated that the dogs would have a mature body weight of 16 kgs; they are short haired with minimal shedding and body odour. They have been raised in an indoor environment and are habituated to this. As two dogs together they are less likely to experience problems relating to boredom or lack of environmental stimulation. She concludes: there is no reason to assume that they are less suited to apartment living than any other dogs, given adequate physical and mental outlets. The evidence before ACAT is that the owners have provided appropriate physical and mental outlets for the dogs.
c.The breed of dog requires attention and training which may be difficult to provide when the owner is away from home for most of the day. The Owners of Units Plan 806 bring no evidence to support this contention. The evidence of Dr Hassett and the Applicant is that the dogs have received adequate and appropriate training.
d.The papers provided show both dogs desexed status as ‘unknown’ which does not meet the requirement for any application at the complex. The contention is not clear – the Pets Policy provides at condition 2 that permission to keep pets is conditional on the pets being desexed. There is no evidence that the executive committee requested further information about the actual condition of the dogs or asked what the Applicants intention was in this regard. Thus at the time of making the decision to refuse permission to keep the dogs, the executive committee had no actual knowledge as to whether the dogs had been desexed. On the evidence before ACAT they were not, but on 16 February 2011 each dog was surgically desexed by ovariohysterectomy.
e.The dogs should be muzzled as well as leashed when outside on common property. This seems to be a condition which might be imposed upon the granting of permission to keep dogs, but otherwise makes little sense.
f.This breed of dog has a high record of incidents of biting both people and other animals. This is based upon the erroneous belief of the executive committee that the dogs were of a ‘pit bull type’. The dogs are Staffordshire Bull Terriers. The executive committee has relied on anecdotal evidence and newspaper reports. There was no evidence before ACAT that Staffordshire Bull Terriers had any such record.
ACAT also takes into account:
g.The evidence that the executive committee canvassed by way of ‘voting papers’ the views of the owners. There are 12 owners in total, 7 responded to the voting request and this was 5:2 in favour of granting permission to keep the dogs;
h.The dogs have been residing at the Unit since September 2010 and there have been no incidents or complaints about their behaviour, noise or smell. Mr Mann handed up an email from Shane Kay dated 21 September (see paragraph 13 above), this was said to constitute a complaint about smell. However ACAT places no weight on this comment, which was elicited by the letter circulated by the committee prior to hearing, because it is vague and unsupported; and
i.The Applicant indicated that she was willing to accept and abide by any reasonable conditions. This was indicated in a letter to the Owners of Unit Plan 806 dated 30 August 2011 in which by way of resolution of the dispute she offered to accept two conditions:

i.That the dogs be kept at all times within the unit or its back yard
ii.That the only times the dogs would leave the premise was when being taken for a walk or into the Applicant’s vehicle – at such times the dogs would be on a lead.
There was no evidence that the contents of the letter were conveyed to the owners. The executive committee has interpreted the final paragraph of the letter, which states that the Applicant would be seeking costs under the Calderbank principles, as a threat rather than an attempt to settle the dispute.
Taking into account the above factors, ACAT finds that the executive committee has failed to properly inform itself prior to making the decision to refuse permission to keep the dogs. It has failed to consider relevant matters and has taken into account irrelevant matters. The decision was not based on a reasonable consideration of the issues, but was based on erroneous assumptions, not supported by evidence or information. It was thus a decision that was not based on sound judgement and was unreasonable.
ACAT declares that the decision at the executive committee meeting of 7 February 2011 is void for irregularity (s125(i)(e)(ii) Units Titles Act 2001 ACT).
ACAT has reviewed that decision on the merits and pursuant to s105(i)(f) and s125(2) repeals that decision and by way of amendment of the decision makes the orders set out above.
………………………………..
Ms J. Lennard
Senior Member

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A FILE NO:

APPLICANT:

RESPONDENT:

COUNSEL APPEARING: APPLICANT:

RESPONDENT:

SOLICITORS: APPLICANT:

RESPONDENT:

OTHER: APPLICANT:

RESPONDENT:
TRIBUNAL MEMBER/S:

DATE/S OF HEARING: PLACE: CANBERRA

DATE/S OF DECISION: PLACE: CANBERRA

PART B

RECOMMENDATION:

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )

COMMENTS: