Mazzaracca v Logan City Council - [2012] QCAT 63

CITATION:

Mazzaracca v Logan City Council [2012] QCAT 63

PARTIES:	Mr Joseph Mazzaracca
v
Logan City Council

APPLICATION NUMBER:

GAR202-11

MATTER TYPE:

General administrative review matters

HEARING DATE:

6 February 2012

HEARD AT:

Brisbane

DECISION OF:

Mr J Allen, Member

DELIVERED ON:

10 February 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

The decisions of the Logan City Council dated 27 June 2011 are confirmed.

CATCHWORDS :

Menacing Dog – Destruction Notice

Animal Management (Cats and Dogs) Act 2008

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr Joseph Mazzaracca did not attend the hearing
RESPONDENT:	Logan City Council represented by Mr Crosse in house legal officer

REASONS FOR DECISION

Mr Mazzaracca is the registered owner of two dogs, Doze, a female bull arab female, and Teasha, a male staghound cross, which were declared menacing dogs[1] by the Council on 7 December 2010. The dogs were seized[2] twice by the Council following the incident which resulted in the menacing dog declarations and the Council then issued Destruction Orders[3] in respect of the dogs on 27 May 2011 in respect of Doze and 30 May 2011 in respect of Teasha.
[1] Sections 89 to 95 of the Animal Management (Cats and Dogs) Act 2008.
[2] Section 125 of the Animal Management (Cats and Dogs) Act 2008.
[3] Section 127 of the Animal Management (Cats and Dogs) Act 2008.
Mr Mazzaracca applied to the Council for an internal review[4] of the destruction orders and the Council confirmed the decision to destroy the dogs on 27 June 2011. An application to review[5] the Council’s decision to confirm the Destruction Orders has been made to the Tribunal by Mr Mazzaracca.
[4] Chapter 8 Part 1 of the Animal Management (Cats and Dogs) Act 2008.
[5] Section 188 of the Animal Management (Cats and Dogs) Act 2008.
Mr Mazzaracca stated in his application that the decisions were wrong for the following reasons:
a) The dogs should never have been classed as dangerous;
b)They are working dogs council have called out of my yard before then taken them to the pound;
c)I got them back for free that time but now they (the dogs) think if they jump the fence they get a ute ride and a feed;
d) Why council can call dogs out of your yard; and
e)How a dog can be classed dangerous if they are with a dog that attacks another dog but don’t do anything.
In his application for review of the Destruction Orders Mr Mazzaracca raised the following grounds in regard to Doze:
a)      Much loved dog will be moving five hours west to a better home;
b)      Doze has never been aggressive towards people;
c)Doze was declared a menacing dog because he was barking at another dog with two other dogs; and
d)      Doze is a young well natured dog.
Mr Mazzaracca in his application for review raised the following grounds in relation to Teasha:
a) Teasha is a young well natured dog;
b)Was declared a menacing dog because she was barking at another dog with two other dogs; and
c) Teasha has never shown any aggression towards any people.
According to the Council Doze and Teasha were involved with another dog which Mr Mazzaracca was looking after at the time, known as Jack, in an attack on a neighbour’s dog on 7 October 2010 which resulted in the death of the neighbour’s dog, a Keeshond known as Kysar. A witness to that attack stated that the three dogs were involved in the attack but one dog in particular was aggressive towards Kzsar. The other dogs were described as mere accomplices, even though all three were involved in the attack.
Following this incident the Council proposed to make Menacing Dog declarations in respect of Doze and Teasha and sent Mr Mazzaracca a notice[6] giving him 14 days to make representations as to why the declaration should not be made.
[6] Section 90 of the Animal Management (Dogs and Cats) Act 2008.
A Menacing Dog declaration may be made if a dog has attacked, or acted in a way that caused fear, to a person or another animal; or may, in the opinion of the authorised person having regard to the way the dog has behaved towards a person or another animal, attack, or act in a way that caused fear to, the person or animal[7]. The Tribunal notes that the Council stated as their grounds in the proposed menacing dog declaration notice that the dog had seriously attacked or may seriously attack. This is only required where the proposal is for a dangerous dog declaration.
[7] Section 89(20 and (3) of the Animal Management (Dogs and Cats) Act 2008.
Mr Mazzaracca did not make any representations to Council and the Menacing Dog declarations were made against Doze and Teasha on 7 December 2010.
The declaration of a dog as a menacing dog results in conditions being imposed on the owner of the dog[8]. The conditions set out in Teasha’s menacing dog declaration relevantly included the following:
a)   In a public place the dog must be under the effective control of someone who has the control of no more than one dog at a the same time; and
b)   An enclosure for the dog must be maintained at or on the address in the registration notice for the dog and must be childproof and stop the dog from leaving the enclosure.
[8]        Section 93 of the Animal Management (Dogs and Cats) Act 2008.
The Tribunal notes that there is also a required permit condition for a menacing dog that “the dog must, unless there is a reasonable excuse, be usually kept in the enclosure”[9]. The Tribunal expects that the Council would advise the dog owner of all the relevant requirements of Schedule 1 to ensure compliance in respect of the regulated dog.
[9]Sections 98(1) and Schedule 1 section 4 (2) of the Animal Management (Dogs and Cats) Act 2008.
Following the making of the menacing dog declarations Teasha and Doze were impounded twice – once on the 8 March 2011 when they were impounded in a private yard and then the final impounding on 24 May 2011 which was an impounding from a public place where the dogs were not under anyone’s effective control[10]. If a regulated dog in this case, a declared menacing dog, is seized then the Council may issue a destruction order[11] which has been done here.
[10] Section 125(2) of the Animal Management (Dogs and Cats) Act 2008.
[11] Section 127(4) of the Animal Management (Dogs and Cats) Act 2008.
The Destruction Order information notice must set out the reasons for decision to make the order[12]. The reasons given here were the failure to keep the dog according to the conditions outlined in section 98 of the Act, that is those set out above.
[12] Section 127(5)(b) of the Animal Management (Dogs and Cats) Act 2008.
The Council’s response to the grounds of review raised by Mr Mazzaracca were as follows:
a)   In respect of Teasha – this ground provides no legal reason why the destruction order should not remain in force. The menacing dog declaration is considered appropriate for the circumstances investigated and was the result of an incident that involved aggression towards another animal, not a person; and
b)   In respect of Doze – this ground of review provides no legal reason why the destruction order should not remain in force. The menacing dog declaration is considered appropriate for the circumstances investigated and was the result of an incident that involved aggression towards another animal, not a person.
The Council also stated that it had complied with the requirements of the Act in terms of the seizure and issuing of the destruction order except that it had not given Mr Mazzaracca a written receipt for the dogs[13]. This receipt was issued on 28 June 2011.
[13]        Section 128 of the Animal Management (Cats and Dogs) Act 2008.
Mr Crosse stated at the hearing that:
a)   Mr Mazzaracca was able to recover the dogs following the incident of 7 October 2010 and the making of the menacing dog declaration after he was able to prove that he had erected the enclosure required under the conditions set out above;
b)   Mr Mazzaracca did not keep the dogs in the enclosure as required under the permit conditions;
c)   The dogs were able to jump the fence between Mr Mazzaracca and his neighbour’s property. Photos were provided which showed one of the dogs in the act of jumping the fence and the other in the neighbours yard at the time of the third impounding[14];
d)   the dogs had been wandering the streets at the time of the fourth impounding and neighbours had requested the Council pick the dogs up;
e)   that the seizure of the dogs was lawful; and
f)    the Council had authority to destroy the dogs as they had been seized and impounded under the local law more than three times within a period of one year[15].
[14]        Exhibit 1-4.
[15]        Section 35 of the Logan City Council Local Law No. 4 (Animal Management) 2002.
The purposes of the Act include to provide for the effective management of regulated dogs[16]. The way that is to be achieved is to impose obligations on regulated dog owners[17]. The purpose of the chapter in regard to regulated dogs is to protect the community from damage or injury, or risk of damage or injury from particular types of dogs called regulated dogs[18]. This is to be achieved by providing for local governments to declare dogs in this case menacing dogs; imposing conditions on keeping and requirements for the control of regulated dogs, allowing authorised persons to seize or destroy dogs in particular circumstances[19].
[16] Section 3(b) of the Animal Management (Cats and Dogs) Act 2008.
[17] Section 4 (d) of the Animal Management (Cats and Dogs) Act 2008.
[18] Section 59(1) of the Animal Management (Cats and Dogs) Act 2008.
[19] Section 59(2) of the Animal Management (Cats and Dogs) Act 2008.
Mr Mazzaracca’s dogs have been declared menacing dogs and he did not at that time seek review of the decision. In fact he complied with the requirements of the Act to the extent of providing the necessary enclosure to enable the dogs to be released to him. He has therefore accepted that the dogs should be subject to the regulated dog regime due to the risk they pose to people and other animals of damage or injury. He cannot now say that they should not have been classed as dangerous (here they have been classed as menacing) nor that they are young and well natured.
There has not been ongoing compliance with the conditions imposed on the keeping of the dogs in that they have not been restricted to their enclosures and have been able to leave Mr Mazzaracca’s premises without being under the control of him or another person.
Mr Mazzaracca is under an obligation to ensure that the dogs cannot leave the enclosure[20]. If the dogs can leave the enclosure then he has not complied with his obligations and so his grounds about the Council enticing the dogs from his property are not relevant except to the extent of showing the inadequacy of his compliance with the Act. There also is no proof that council officers did in fact entice the dogs from his yard. If the dogs had been kept in the enclosure they would not have been able to leave the yard in any case.
[20] Section 4(3)(b) of Schedule to the Animal Management (Cats and Dogs) Act 2008.
Doze is said to be moving five hours west to a better home. There has been no evidence presented to the Tribunal in support of that proposition such as the location and identity of the people who were to be taking the dog. The Tribunal will not consider that ground further.
For Mr Mazzaracca to say that his dogs were declared menacing dogs because they were barking at another dog does not reflect the witness report and the photos of the dog which was attacked and killed. While there is no evidence that the dogs have been aggressive towards people there is ample evidence of there involvement in an attack against another dog.
Mr Mazzaracca’s history of non-compliance with the requirements of the Act means that it is an unacceptable risk to return the two dogs, Doze and Teasha, to him as they are declared menacing dogs which are not controlled as required under the Act.
The Tribunal confirms the decisions of the Council to confirm the Destruction Orders in respect of the dogs Doze and Teasha.