Lee v Brisbane City Council (No 2)
[2012] QCATA 64
•27 April 2012
| CITATION: | Lee v Brisbane City Council (No 2) [2012] QCATA 64 |
| PARTIES: | Ms Nancy Lee (Applicant/Appellant) |
| v | |
| Brisbane City Council (Respondent) |
| APPLICATION NUMBER: | APL428-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | K Dodds, Member |
| DELIVERED ON: | 27 April 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to appeal is refused. |
| CATCHWORDS: | Leave to appeal Tribunal review decision – whether a reasonably arguable case of error – regulated dog declaration – declared dangerous dog – whether dog seriously attacked – whether declaration correctly made Queensland Civil and Administrative Tribunal Act 2009, ss 20, 28, 142, 143, 147 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
This is an application for leave to appeal a decision of the Tribunal in its review jurisdiction. Any appeal is to be on the papers.
Some brief background
In the vicinity of 8am on 19 August 2010 a house painter and his labourer, Andrew Croxon and Trent Bowler were preparing to start work at 35 Mount Street, Toowong at the home of one Susan Marchant.
Ms Marchant was the owner of a Cavalier King Charles Spaniel named Monty. As the workers were going through the front gate to get equipment from their vehicle Monty followed Mr Croxon exiting through the open gate and into the street.
Outside the gate in the street was a German Shepherd unaccompanied by any person. Monty ran towards it barking. As he reached the German Shepherd it immediately bit into Monty’s back, picked him up and shook him vigorously causing Monty to cry out. Both Mr Croxon and Mr Bowler observed this occur.
A complaint was made to the Council and was investigated by one Matthew White, a Brisbane City Council Community Regulation officer. Mr White obtained statements from Ms Marchant, Mr Croxon and Mr Bowler dated 20 August 2010 and 19 August 2010 respectively. After several attempts he interviewed Ms Lee on 23 August 2010 at her premises. The interview was digitally audio recorded.
On 11 November 2010 a delegate of the Council made a declaration under Section 94 of the Animal Management (Cats and Dogs) Act 2008 (the Cats and Dogs Act) regulating a German Shepherd named Rox owned by Ms Lee as a declared dangerous dog. Such a declaration may be made only if the dog “(a) has seriously attacked or acted in a way that caused fear to a person or another animal”. There was then an internal review of that decision on the application of Ms Lee. The decision was confirmed on 5 January 2011. Ms Lee then applied to the Queensland Civil and Administrative Tribunal (QCAT) for an external review of the decision.
On 6 October, 2011 a member of the Tribunal conducted the review. Before the member was the material upon which the Council had made its decisions. Ms Lee was represented by Dr C Lee, the Council by Mr Brough, a Council employee. Each of the parties was in possession of the material upon which the Council had made its decision. Evidence was given by Ms Marchant, Mr Croxon and Mr White. Mr Bowler’s whereabouts was unknown. Each of the witnesses who gave evidence was cross-examined by Dr Lee. Mr Craig Pillay, team leader from the Brisbane City Council Community and Environmental Regulation Team who had made the decision to regulate Rox and Mr Chris McCahan, the Council Enforcement Co-ordination Manager who had undertaken the internal review were present at the hearing. They did not give evidence but the Council’s documentation by each of them was in the possession of the parties and the Tribunal.
On 30 October 2011 the member published his decision. He was satisfied on the evidence before him that Rox “in terms of Section 89 of the Act, seriously attacked Monty on 19 August 2010” and confirmed the decision of the Council of 11 November 2010 regulating Rox as a declared dangerous dog.
On 28 November 2011 Ms Lee sought leave to appeal the Tribunal’s decision. Ms Lee’s appeal involves questions of mixed law and fact and section 142(3) of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act) requires such an appeal may only be by leave of the Tribunal. If an appeal were to proceed, section 147(2) of the Act requires it be “decided by way of re-hearing with or without the hearing of additional evidence as decided by the appeal tribunal”. The upshot is that if leave were granted the appeal would be decided on a consideration of the evidence before the Tribunal and the member’s published reasons for his decision.
Should there be leave to appeal?
[10] That depends on whether it appears there is a reasonably arguable case of error in the decision of the Tribunal member. The member’s decision was required to be made “by way of a fresh hearing on the merits”: see section 20(2) of the QCAT Act. The purpose of the hearing before the member was to “produce the correct and preferable decision”: see section 20(1). The member was plainly aware of these requirements. He adverted to them on occasions throughout the hearing and referred to them in his reasons for his decision.
[11] It will be convenient to approach the question of leave by considering the grounds of appeal against the background of the evidence and the member’s reasons for his decision.
[12] The grounds of appeal were quite wordy but may be conveniently be summarised:
Did the evidence prove, to the standard of proof required by the proceeding that Rox was the German Shepherd involved in the incident;
Did the evidence prove to the standard of proof required by the proceeding that the German Shepherd “seriously attacked” Monty in terms of section 89(2) of the Cats and Dogs Act;
Was the decision to regulate Rox as a dangerous dog supportable on the evidence.
[13] There were a number of side issues in the grounds of appeal which I will touch upon under the summarised headings.
[14] The standard of proof required in a review proceeding by the Tribunal is that which produces “the correct and preferable decision” (section 20(1) QCAT Act), the Tribunal throughout acting “fairly and according to the substantial merits of the case” (section 28(2) QCAT Act). In finding a fact or facts in such a proceeding “the Tribunal must feel an actual persuasion of its (ie a fact or facts) occurrence or existence before it can be found. Reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved”: Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2 per Dixon J (as he then was).
[15] I have referred above to the Tribunal’s review.
[16] In his statement and in his evidence Mr Croxon described what he saw and did. When he observed Rox bite into Monty, pick him up and shake him vigorously he approached the German Shepherd calling in a loud voice “no” and waving his arms above his head. He said the German Shepherd dropped Monty but did not retreat. He could see blood on Monty and on the ground. Mr Bowler picked up Monty and took him into Ms Marchant’s yard. As Mr Croxon began to return to the yard he noticed the German Shepherd advance towards him. He turned, faced it, raised his arms and shouted “no” again. The dog stopped but stood its ground. He asked Mr Bowler to distract the dog but observed the dog move towards him again as he began to move away. He turned towards the dog again and it stopped. He retreated backwards into the yard with his hands raised above his head. He then saw the dog licking the blood.
[17] Mr Bowler’s brief written statement was in similar vein.
[18] In her evidence Ms Marchant said she did not see the incident. She came into the front yard of her premises shortly afterwards after being made aware Monty had been attacked. She said she saw a German Shepherd in the street outside her premises. That was the same dog Mr Croxon and Mr Bowler had seen attack Monty. She recognised it as the German Shepherd from 52 Mount Street, the premises of Ms Lee; Rox. She said she had seen the dog in the street unaccompanied on prior occasions and in the yard at 52 Mount Street. She took some photographs of the dog. She said that on previous occasions when she had walked past 52 Mount Street Rox had barked aggressively, putting his front paws up on the fence. She said that Monty received a number of puncture wounds in his back. He was taken immediately to a veterinary surgery where he was treated and spent a night under observation. Invoices before the Tribunal appear to show that the cost was in the vicinity of $1,200. Further investigation by the veterinary service revealed a diaphragmatic hernia. Monty subsequently underwent surgery for that but did not survive. It should be mentioned that the hernia may have pre-existed the incident.
[19] In his evidence Mr White said that whilst interviewing Ms Lee in the yard of her premises on 23 August he observed Rox, who had been inside the yard, appear in the neighbour’s premises and then out in the street indicating he was somehow able to exit the enclosed yard. He also took some photographs. He said that enquiries conducted revealed there were no other German Shepherds in Mount Street or surrounding streets.
[20] Did the evidence prove to the standard of proof required by the proceedings that Rox was the German Shepherd involved in the incident?
[21] Once the Tribunal accepted the evidence of Mr Croxon, Ms Marchant and Mr White supported to a lesser extent by Mr Bowler’s statement the probability was that the German Shepherd was Rox. The member had the statements originally made, and he saw and heard the witnesses examined and cross-examined. He had before him copies of photographs taken by Ms Marchant and Mr White and copies of the veterinarian’s invoices. He accepted the evidence of the witnesses as he was entitled to do. During cross-examination of Ms Marchant, Dr Lee put into her hands a photograph showing a number of German Shepherds and asked if she could pick out Rox. She could not. However there was no evidence Rox was one of the dogs in the photo despite Dr Lee being asked to confirm that was the case. He declined. He did not seek to put the photograph into evidence. In those circumstances that questioning of Ms Marchant had no evidentiary value.
[22] Did the evidence prove to the standard of proof required by the proceedings that Rox seriously attacked Monty?
[23] Section 89(7) of the Cats and Dogs Act provides that “seriously attack means to attack in a way causing bodily harm, grievous bodily harm or death”. Bodily harm and grievous bodily harm have the meanings provided in the Criminal Code.
[24] The word “attack” is not defined in the Act. According to the Australian Concise Oxford Dictionary it may have a number of meanings. Relevantly to this case it means to act against with force, to seek to hurt or defeat.
[25] Dr Lee has argued that Monty attacked Rox by running towards him and barking. That may be so. In support of his argument he referred to a decision in the Supreme Court in NSW, Council of the City of Lake Macquarie v Morris [2005] NSW SC 387 per Johnson J. That case was an appeal from a magistrate’s decision in a prosecution under the Companion Animals Act 1998 (NSW). In his decision in the appeal his Honour referred to a number of cases involving dogs in NSW where the meaning of the word “attack” was considered. I will not set them out in detail. Suffice to say the cases supported the proposition that the word encompasses an act of hostility or aggression; a dog “coming at” another; a barking or growling dog charging at a person; a dog running at a horse at the rider’s stirrup and under the horse whilst yapping aggressively.
[26] It is plain enough that the evidence supported a view that Rox seriously attacked Monty. At the least, bodily harm was done to Monty. Whilst it may be assumed for present purposes that Monty may have attacked Rox by running towards him and barking he did not “seriously attack” him. On all the evidence he did not touch him. Rather Rox immediately bit into his back and vigorously shook him. In reality Monty posed little threat. Rox was a much bigger, stronger dog. It may be accepted that dogs may react on a primitive level. That however, is no answer to regulation of a dog in an appropriate case. Section 59(1) sets out the purposes of Chapter 4 of the Act. They are to:
“(a)protect the community from damage or injury or risk of damage or injury from particular types of dogs called regulated dogs; and
(b) ensure that dogs are –
(i) not a risk to community health and safety; and
(ii) controlled and kept in a way consistent with community expectations and the rights of individuals”
[27] Section 59(2) sets out how these purposes are to be achieved including “(a) providing for local governments to declare dogs to be dangerous dogs...”
Was the decision to regulate Rox unsupportable?
[28] Dr Lee referred to sections 194, 195 and 196 of the Cats and Dogs Act. Sections 194 and 195 are offence provisions. Section 194 makes it an offence for the owner or a person responsible for a dog to fail to take reasonable steps to ensure the dog does not attack or act in a way that causes fear to someone else or another animal. Section 195 makes it an offence for a person to allow or encourage a dog to attack or act in a way that causes fear to a person or another animal. Section 196 provides a defence to a prosecution for an offence against those sections. Relevantly for Dr Lee’s argument it is a defence for a defendant to prove that the dog attacked or acted in a way that caused fear to a person or another animal as a result of the dog being attacked, provoked or teased by the complainant or the animal.
[29] Dr Lee submitted that Monty attacked Rox by running at him and barking, that Mr Croxon, Mr Bowler and Ms Marchant committed offences against sections 194 and 195 and that section 196 would provide a defence to Rox for reacting to Monty’s attack.
[30] There is a distinction between section 89 and sections 194 and 195 of the Cats and Dogs Act. Sections 194 and 195 deal with offences of which a person may be convicted consequent on a dog’s behaviour and fined. Section 196 provides a potential defence which may avoid a conviction. Section 89 is entirely different. It is concerned with circumstances where a relevant declaration may, not must, be made. A dangerous dog declaration may be made where the dog under consideration has “seriously attacked or acted in a way that caused fear to a person or another animal”. There is no provision in the Act similar to section 196 which is relevant to section 89. That is not to say that in the exercise of the discretion whether a declaration should be made with regard to a dog which has attacked another dog in a way causing bodily harm, grievous bodily harm or even death, the fact that the dog was acting in response to being attacked, provoked or teased is irrelevant. All the circumstances need to be taken into account in the exercise of the discretion.
[31] Dr Lee referred to the evidence and to a report provided by the Auchenflower Veterinary Surgery dated 26 August 2010 together with a letter from one Val Bonney who described herself as a canine behavioural specialist/international trainer. The report from the vet surgery commented favourably on Rox’s nature and stated that an examination displayed no sign of injury to Rox. The letter from Ms Bonney described meeting Rox on one occasion, the night of 6 September 2010 when she was working with about 20 dogs. It said she did not observe any signs of aggression. It also made some comment about how often a smaller dog will challenge a larger dog. Dr Lee argued that all these matters were indicative that Rox was a non-aggressive and friendly dog, had not been involved in a dog fight and that the behaviour of Monty constituted a challenge to the German Shepherd.
[32] The Tribunal member in his reasons for his decision referred to the letter and the report I have just mentioned. He recorded that he did not find them helpful in light of the witnesses’ evidence about what occurred on the day in question, which he had accepted. He noted that the evidence showed that Monty had made no contact at all with Rox.
[33] The evidence the Tribunal member accepted supported a view that on the occasion in question Rox was out in the street unaccompanied, and unhesitatingly seriously attacked Monty, a much smaller dog. Rox was an entire male dog. In all the circumstances I would not conclude that the Tribunal member acted erroneously in concluding Rox should be regulated and confirming the decision dated 11 November 2010 regulating Rox as a dangerous dog. There was adequate evidence to support that decision.
[34] In the final analysis it has not been shown that there is a reasonably arguable case of error on the part of the Tribunal member. His conclusions were open to him and supported by the evidence before him. Leave to appeal will be refused.
[35] I would add the following in view of submissions made by Dr Lee about Ms Marchant, Mr Croxon and Mr Bowler committing an offence against sections 194 and/or 195 of the Cats and Dogs Act.
[36] The evidence which has emerged about how Monty got out on the day in question and what immediately happened thereafter does not support any reasonable prospect of a successful prosecution against any of those persons. In any event it is within the discretion of the appropriate authority whether to issue a complaint and summons. I would not expect a responsible authority to do so unless the evidence supported a reasonable prospect of success.
[37] Leave to appeal is refused.
14
0
0