MELANIE and CITY OF KWINANA
[2020] WASAT 32
•16 MARCH 2020
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: DOG ACT 1976 (WA)
CITATION: MELANIE and CITY OF KWINANA [2020] WASAT 32
MEMBER: MS R PETRUCCI, MEMBER
HEARD: 6 FEBRUARY 2020
DELIVERED : 16 MARCH 2020
FILE NO/S: CC 1255 of 2019
BETWEEN: SAMANTHA MELANIE
Applicant
AND
CITY OF KWINANA
Respondent
Catchwords:
Dog Act 1976 (WA) - Application for review of decision declaring dogs dangerous - Whether dogs aggressively rushed at any person without a reasonable cause - Repeatedly shown a tendency to attack even though no injury has been caused by that behaviour - Exercise of discretion - Turns on own facts
Legislation:
Dog Act 1976 (WA), s 3(1), s 3(1)a, s 33e, s 33e(1), s 33e(1)(b)(i), s 33e(1)c, s 33e(2), s 33f, s 33i, s 33i(b)
Dog Regulations 2013 (WA)
State Administrative Tribunal Act 2004 (WA), s 17
Result:
Respondent's decision affirmed
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| Respondent | : | Mr T Houweling and Ms B Waugh |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | Cornerstone Legal |
Case(s) referred to in decision(s):
Ioppolo and City of Wanneroo [2013] WASAT 172
REASONS FOR DECISION OF THE TRIBUNAL:
The application
The applicant in these proceedings is Ms Samantha Melanie. She owns two dogs, Patchy, a brindle/black male Staffordshire Bull Terrier Cross and Bella, a tan female Staffordshire Bull Terrier Cross. Both dogs are registered with the respondent, the City of Kwinana (City) at the address at which Ms Melanie resides, No 10 Melford Court, Wellard (property).
On 19 August 2019, Ms Melanie applied to the Tribunal under s 33I(1)(b) of the Dog Act 1976 (WA) (Dog Act) to review the decision made by the City on 12 August 2019 declaring Patchy and Bella to be dangerous dogs (the declaration decision). In her application, Ms Melanie set out the following as her grounds for seeking a review of the declaration decision:
Insufficient evidence of said attacks causing no physical injury
No prior record before these alleged incidences
Harassment (sic) and bullying as all complaints stem from one neighbor who has not liked us since the day we moved in to our home and have done everything to make our lives harder in every way[.]
Ms Melanie described Patchy and Bella as playful puppies and much loved family pets. Further, Ms Melanie stated that even though Patchy and Bella can be very mischievous, adventurous and naughty at times, these traits can be corrected by training. Finally, Ms Melanie said that any person who has entered her property will verify that Patchy and Bella are very sweet and loving dogs and neither of them deserve the label of 'dangerous dog' as neither are aggressive nor dangerous.
The reviewable declaration decision
The declaration decision under review is based upon three incidents which are alleged by the City to have occurred on 20 June 2019, 29 July 2019 and 12 August 2019 involving Patchy and Bella which when taken together, are said to satisfy the criteria for the making of a declaration that both Patchy and Bella are dangerous dogs pursuant to s 33E of the Dog Act. It is common ground that neither Patchy nor Bella have caused any physical injury.
The declaration decision made by the City is subject to thirteen conditions which include that the dogs are to be confined to Ms Melanie's property and that the yard in which the dogs are kept must be enclosed with a fence constructed of such a nature to prevent them from escaping under, over or through the fence constructed. Also, the dogs must be kept on a leash or chain by a person physically able to control the dogs when in a dog exercise area and in any public place. Ms Melanie must also ensure that at all times the dogs wear a dangerous dog collar with information attached to or endorsed on the collar in accordance with the Dog Regulations 2013 (WA) and that the dogs are muzzled in such a manner to prevent them from biting a person or animal at all times when in a public place.
There was no dispute that the City's notice of 12 August 2019 declaring the dogs to be dangerous complies with s 33F of the Dog Act. The Tribunal is satisfied that the notice is compliant with s 33F of the Dog Act.
The Tribunal's review jurisdiction
Section 33I of the Dog Act confers jurisdiction on the Tribunal to review the declaration decision.
Ms Melanie's application to the Tribunal seeking a review of the declaration decision falls within the Tribunal's review jurisdiction pursuant to s 17 of the State Administrative Tribunal Act 2004 (WA). The Tribunal's review jurisdiction was explained in Ioppolo and City of Wanneroo [2013] WASAT 172 at [5] and [6] as follows:
5In exercising the Tribunal's review jurisdiction, the Tribunal is to review the decision in question by way of a hearing de novo for the purposes of producing the correct and preferable decision on the basis of the information and evidence before the Tribunal at the time of the review (s 27 of the SAT Act). In the exercise of its review jurisdiction, the Tribunal is not limited in its considerations to the material that was before the original decisionmaker, nor to a consideration of the original decisionmaker's reasoning alone (s 27 of the SAT Act). Section 29(1) of the SAT Act provides that all of the functions and discretions conferred on the original decisionmaker are conferred on the Tribunal, in addition to the powers conferred on the Tribunal by the SAT Act. Section 29(3) of the SAT Act confers specific powers on the Tribunal in the disposition of the review application (affirmation or variation of the reviewable decision; setting aside the reviewable decision and instead substituting its own decision; or setting aside the reviewable decision and remitting the 'matter' back to the decisionmaker with directions or recommendations).
6The Tribunal is not bound to apply the Evidence Act 1966 (WA), the rules of evidence or the practices and procedures of any courts of record (s 32(2)(a) of the SAT Act), but is bound by the rules of natural justice (s 32(1) of the SAT Act) and 'is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities' (s 32(2)(b) of the SAT Act). The more flexible procedure provided for by s 32 of the SAT Act, however, does require that Tribunal decisions are made on the basis of evidence that has probative (sic) force: see Sammut v AVM Holdings Pty Ltd [No 2] [2012] WASC 27 and cases referred to therein. Further, the Tribunal is bound to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in a proceeding (s 32(7)(a) of the SAT Act). In conducting the proceeding, the Tribunal is to review decisions fairly and according to the substantial merits of the case (s 9(a) of the SAT Act).
The issues for determination
Ms Melanie's application, as supplemented by each of the parties' respective statements of issues, facts and contentions (SIFC), identified the following issues for determination by the Tribunal:
(1)Are the dogs, Patchy and Bella, dangerous by reason of repeatedly showing a tendency to:
(a)attack, or chase, a person, animal or vehicle even though no injury has been caused by that behaviour; or
(b)threaten to attack?
(2)Does the behaviour of the dogs, Patchy and Bella, meet other criteria prescribed for the purpose of declaring them a dangerous dog or dogs?
(3)Having regard to all the circumstances, is the correct and preferable decision on review, in the exercise of the discretion provided for in s 33E(1) of the Dog Act, to declare the dogs, Patchy and Bella, to be dangerous?
The law
The definition of 'attack' is set out in s 3(1) of the Dog Act as follows:
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;
'Provocation' is defined in s 3(1) of the Dog Act as follows:
provocation, in relation to the behaviour of a dog, includes
(a)on the part of a person, other than a person liable for the control of the dog
(i)any teasing, tormenting, or abuse of the dog; or
(ii)any assault on, or act of cruelty towards, the dog; or
(iii)entry without lawful excuse on any land or premises of which the owner of the dog is an occupier or where the dog is ordinarily kept; or
(iv)any intrusion into or upon any vehicle in or on which the dog is present; or
(v)any threat to, or attack upon, another person or animal towards whom the dog could reasonably be expected to be protective;
The circumstances in which a dog may be declared a dangerous dog are set out in s 33E of the Dog Act as follows:
33E.Individual dog may be declared to be dangerous dog (declared)
(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 an individual dog to be a dangerous dog (declared) 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; or
(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;
(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 (declared), or detained under this Division, shall have the rights referred to in this Division to object and to apply for a review.
In these proceedings counsel for the City did not rely upon any behaviour that meets the criteria prescribed for the purposes of s 33E(1)(c) of the Dog Act, and the Tribunal was not referred to any such prescribed criteria. The exemption referred to in s 33E(2) of the Dog Act has no application in these proceedings.
As already noted, it is common ground that Patchy and Bella did not cause injury or damage. It follows then, if Patchy or Bella have repeatedly shown a tendency to attack, or chase a person, animal or vehicle, even though no injury has been caused by that behaviour, it will be open for the Tribunal to declare either or both dogs, Patchy and Bella, to be dangerous. This is because the term 'attack' as defined in s 3 of the Dog Act includes aggressively rushing at or harassing any person, animal or vehicle (unless the owner establishes that the behaviour was justified by a reasonable cause).
The hearing and evidence
In accordance with the Tribunal's usual practice in matters of this nature, the hearing was conducted on 6 February 2020 on the basis that all of the documents filed with the Tribunal would be regarded as being in evidence, subject to any proper objection. The Tribunal prepared a hearing book which included Ms Melanie's application, the SIFC of each party, and the documents and witness statements filed by each party (Exhibit 1). At hearing, counsel for the City handed up a CDROM containing CCTV footage taken on 20 June 2019, 29 July 2019 and 12 August 2019 and a video recording taken using a mobile telephone (Exhibit 2). The material on the CD-ROM was previously filed with the Tribunal by way of a USB stick. Finally, counsel for the City handed up a Summary of Record Information by the Metropolitan Cemeteries Board stating the death of one of the City's witnesses, Mr John Stewart, as at 25 August 2019 (Exhibit 3). Neither party raised any objection regarding the admission of the exhibits into evidence. The Tribunal therefore accepted all three exhibits into evidence.
Ms Melanie attended the hearing. She filed the following witness statements:
•Ms Leona Grigson, (undated), who stated she has never seen either dog show any aggressiveness or act in a dangerous or vicious manner;
•Ms Rachel Pitt, dated 19 September 2019, who stated that she has never had a problem with the dogs being aggressive towards her children and that she has never seen the dogs be aggressive towards children or adults while at Ms Melanie's property; and
•Mr Daniel Brennan, dated 29 September 2019, who stated that the dogs have a great temperament which he noted when he visited Ms Melanie at her property with his children. Further, Mr Brennan stated that he understood that the dogs escaped from Ms Melanie's property but since the fence has been attended to this issue will not arise again.
Ms Melanie did not call the above witnesses to supplement their witness statements with oral evidence at hearing. This did not allow the witnesses to be cross-examined. The above witness statements support the view that Patchy and Bella are not aggressive whilst contained inside Ms Melanie's property. None of the witnesses reported on any of the incidents which occurred outside of Ms Melanie's property in the Melford Court culde-sac. Further, none of the witnesses reported on the dogs' behaviour outside of Ms Melanie's property. The Tribunal finds the statements to be of little probative value.
Ms Melanie chose not to give oral evidence at the hearing. Instead, Ms Melanie called her husband, Mr Domenic Melanie, to give oral evidence even though he had not provided a witness statement. He was subjected to cross-examination. His evidence is discussed further below.
The City was represented by counsel at the hearing who made submissions on behalf of the City. The City filed the following witness statements:
•Mr Mohammad Asif Iqbal, City Assist Officer, dated 17 August 2019, who stated that he attended Ms Melanie's property on 29 July 2019 at 9.45 pm and was told by Ms Melanie that the dogs had been inside her home the whole time;
•Mr Willem de Klerk, City Environmental Health Officer/Compliance Officer, dated 8 January 2020, who reported that he attended Ms Melanie's property on 16 September 2019 to inspect the fencing and concluded that he did not believe that the back boundary fence was sufficient to contain the dogs in Ms Melanie's property. Mr De Klerk stated that more work was required to the back fence, side fence on the southwestern corner of the house and front door;
•Mr John Dwyer, owner of the neighbouring property at 9 Melford Court, Wellard provided four witness statements. The first statement was made on 21 June 2019 in which he reported that on 20 June 2019 Patchy crossed the cul-de-sac to attack him and Bella followed. He wrote that the dogs were barking, snarling and bearing teeth with their heckles up. The second statement was made on 30 July 2019 in which Mr Dwyer stated that on 29 July 2019 Patchy was barking and growling at him from across the culdesac. Patchy then rapidly raced across the culdesac towards him with his heckles up. The third statement was made on 14 August 2019 in which Mr Dwyer said that on 12 August 2019 he observed the dogs approach his home and made aggressive advances towards him when he opened the window. Finally, on 28 September 2019 Mr Dwyer stated that on 10 September 2019 he witnessed the dogs leaving the neighbour's property at 7 Melford Court, Wellard and crossed the cul-de-sac to return to Ms Melanie's property;
•Mr Carl Bradnick's statement dated 20 June 2019, who reported that on 20 June 2019 the dogs started to be aggressive towards him and Mr Dwyer and the dogs 'pinned' them in the van. Mr Bradnick wrote that it was a good job that no kids were in the street playing;
•Mr John Stewart (deceased), dated 12 August 2019, who reported that on 12 August 2019 he saw the dogs loose on the road and they were very aggressive and when he was at the back of his ute the dogs charged and growled and pinned him to the ute; and
•Mr Rick Burnett, dated 21 January 2020, who reported that he attended Ms Melanie's property on 20 June 2019 where Patchy remained on the driveway in a standoff and on 12 August 2019 when Patchy charged at him in an aggressive manner.
The above listed witnesses for the City, apart from the late Mr Stewart, supplemented their witness statements with oral evidence and were subjected to cross-examination. Their evidence will be dealt with further below.
Counsel for the City correctly submitted that the evidence of a witness who is unable to attend for the purposes of cross-examination (for example the late Mr Stewart) needs to be properly taken into account by the Tribunal but can only receive such weight as which it is accepted that the evidence accurately records the facts where there is a dispute as to the truth of the contents of a document which is being produced.
The Tribunal had the benefit of viewing the CCTV footage and video recording taken using a mobile telephone (Exhibit 2) before the City's witnesses were called to give their oral evidence. Further, the Tribunal had the benefit of Ms Melanie's and counsel for the City's comments on what they observed while the CCTV footage and video recording was being played.
The Tribunal observes in cases, such as this one, where the behaviour of the dogs is the crux of the dispute, that it would have been useful had Ms Melanie filed independent objective evidence, such as from an animal behaviouralist, to explain what the behaviour of her dogs had been in the past and what the behaviour of her dogs was at the date of the hearing. All Ms Melanie offered was a statement that 'although they [Patchy and Bella] can be very mischievous, adventurous and naughty at times, it is nothing that the correct training couldn't fix' (Exhibit 1 page 23) and that behavioural training is scheduled for the 7th of next month (ts 90, 6 February 2020).
The Tribunal turns, next, to the incidents.
The incidents
In its SIFC, the City identified three separate incidents where it says Patchy and Bella were aggressively rushing at, harassing and generally falling within s 33E(1)(b) of the Dog Act to 'attack, chase a person or animal although no physical injury has been caused' (ts 21, 6 February 2020) which resulted in Patchy and Bella being declared dangerous dogs on 12 August 2019. Each of these incidents will now be summarised.
The incident on 20 June 2019
Mr Dwyer resides at 9 Melford Court, Wellard. It is next door to Ms Melanie's property.
Mr Dwyer returned to his home at about 1.40 pm on 20 June 2019, and upon getting out of his car he saw Bella run from a neighbouring property back to Ms Melanie's property. Bella was followed by Patchy. Mr Dwyer says Patchy approached him from across the cul-de-sac as he walked back towards the edge of his driveway with his 'heckles up and growling and snarling and his head down and in a distinctly aggressive mode' (ts 33, 6 February 2020). Mr Dwyer emphasised in giving his oral evidence that both dogs were barking, snarling and baring their teeth and had their heckles up. Mr Dwyer shouted to Patchy to 'get away and go home' (ts 33, February 2020) but the dog became more incensed and more aggravated and began to approach him (ts 33, 6 February 2020). At that time, Mr Dwyer said he saw Mr Bradnick 'bailed up' inside his van which displayed the sign 'Temico'. Mr Dwyer said he got into the passenger side of Mr Bradnick's van to avoid being bitten by Patchy. Mr Dwyer said he telephoned the City's ranger but by the time the ranger arrived, Patchy had retreated back to Ms Melanie's property. Mr Dwyer said Patchy 'leads the attack and then the female [Bella] brings up the rear' (ts 33, 6 February 2020).
In oral evidence, Mr Bradnick stated that he saw the dogs on approaching Mr Dwyer's property in his van (ts 47, 6 February 2020). He said he remained in his van because he thought the dogs 'did not look too friendly' (ts 48, 6 February 2020). When a parcel delivery van arrived at Mr Dwyer's property, Mr Bradnick said the dogs came running across and one of the dogs '[went] for the parcel guy' (ts 48, 6 February 2020). Mr Bradnick said the dogs came and jumped up the side of his van (ts 48, 6 February 2020). Mr Bradnick sat in his van for about 40 minutes (ts 49, 6 February 2020). Mr Bradnick said the dog's (Patchy) tail was up in the air, standing his ground, growling, showing his teeth and the other dog (Bella) was patrolling around (ts 49, 6 February 2020).
Mr Bradnick was not able to remember the colour of the dogs nor the colour of the parcel van. In his statement he referred to the dogs as being 'pit bull' but in giving oral evidence Mr Bradnick said they were 'American staffies' (ts 50, 6 February 2020). On reviewing the CCTV footage of 20 June 2019 whilst giving his oral evidence, Mr Bradnick identified Patchy and Bella as the dogs that 'pinned them in the van'. Further Mr Bradnick identified the delivery van that the dogs went for as the yellow DHL van (ts 52-53, 6 February 2020).
Ms Melanie did not dispute that from about 1.40 pm on 20 June 2019, Patchy and Bella had escaped from her property and were roaming nearby. Further, Ms Melanie accepted that Patchy and Bella were barking. However, Ms Melanie strongly asserted in her SIFC that Patchy and Bella were wagging their tails but were acting in a playful or territorial manner. Ms Melanie rejected any suggestion that the dogs were acting in an aggressive manner. Ms Melanie asserted that Patchy and Bella ran, but did not charge, towards Mr Dwyer and Mr Bradnick.
Whilst Ms Melanie accepted that Mr Bradnick and Mr Dwyer were sitting inside Mr Bradnick's van, she stated they had ample time to exit the van and go into Mr Dwyer's home but they chose to remain in Mr Bradnick's van. Ms Melanie suggested that Mr Dwyer had provoked Patchy and Bella because, having returned home he left his vehicle in his carport and walked over to sit with Mr Bradnick in his van instead of retreating into his home.
There is no dispute that no one was physically injured by Patchy or Bella on 20 June 2019. It is common ground that two officers from the City attended at approximately 1.50 pm where they found Patchy and Bella in the front yard of Ms Melanie's property. Further, there is no dispute that the City telephoned Ms Melanie's husband, Mr Melanie, at about 1.55 pm on 20 June 2019 regarding Patchy and Bella. In addition, the parties accepted that Bella retreated to the rear of Ms Melanie's property. However, Ms Melanie strongly disputed that Patchy remained on the driveway in a 'standoff' with the City officers. Those officers were Mr Iqbal and Mr Burnett. According to Ms Melanie, Patchy only remained on the driveway because the officers were throwing him treats in order to entice him closer in order to catch him. It is also common ground that Mr Melanie, returned home at about 2.05 pm on 20 June 2019 to restrain the dogs. It was also agreed by the parties that upon inspection the dogs had dug a hole under the side fence of Ms Melanie's property to escape and that directions were given to Mr Melanie to make good the fencing to prevent the dogs from further escaping.
Ms Melanie stated that at about 2.07 pm on 20 June 2019 Mr Dwyer exited the van and in an aggressive manner yelled abuse at Mr Melanie, demanding the destruction of Patchy and Bella which she said caused the situation to unnecessarily escalate. Counsel for the City properly submitted that the question of the behaviour of the dogs, and not the behaviour of Mr Dwyer and Mr Melanie, is relevant in these proceedings (ts 93, 6 February 2020). The Tribunal makes no comment about the behaviour of Mr Melanie and Mr Dwyer.
The incident on 29 July 2019
After reviewing the CCTV footage, Ms Melanie accepted that Mr Dwyer's home sensor lights were activated at about 9.15 pm on 29 July 2019 and that Mr Dwyer went outside to investigate. It was also accepted by Ms Melanie that Mr Dwyer saw Patchy in the culdesac. It is common ground that two officers from the City attended Ms Melanie's property at about 9.45 pm on 29 July 2019 to check that the dogs were contained in her property. Those officers were Mr Iqbal and Mr Burnett. Ms Melanie accepted that she told the officers that Patchy and Bella had been inside the whole time as this is what she believed to be true prior to viewing the CCTV footage.
Mr Dwyer explained that while standing on his driveway, Patchy who was across the cul-de-sac with his head down, heckles up, snarling and barking made his way towards him. Mr Dwyer said he was about eight feet from the edge of his driveway and as he retreated to his front door, Patchy had pursued him up the driveway. According to Mr Dwyer, Bella was not with Patchy on that occasion.
In her SIFC, Ms Melanie accepted that Patchy was barking at Mr Dwyer, however she rejected any suggestion that Patchy was showing his teeth, snarling or showing any other signs of aggression towards Mr Dwyer. She refuted that Patchy had charged or rushed at Mr Dwyer.
Ms Melanie stated that on the CCTV footage she observed Mr Dwyer standing outside his home for some time, which she thought was unusual as she had expected him to retreat inside his home if he was in fact fearful of her dogs. At hearing, Ms Melanie asserted that Mr Dwyer provoked Patchy (ts 93, 6 February 2020). This was rejected by counsel for the City who submitted that the suggestion that Mr Dwyer, in standing on his own property and not seeking immediate refuge inside, could amount to provocation is to stretch the meaning of the word 'provocation' as there was no suggestion that Mr Dwyer had done anything to Patchy but rather what Patchy had done was the same as had been previously observed on 20 June 2019 where Patchy rushed at Mr Bradnick who was standing on his property, outside his own yard. Such behaviour is not provocation (ts 93, 6 February 2020).
The incident on 12 August 2019
It is common ground that at about 7.39 am on 12 August 2019 a tradesman, the late Mr Stewart, arrived to begin work at No 7 Melford Court (No 7), Wellard and that he parked his vehicle in the cul-de-sac outside No 7. Mr Dwyer explained that he received a text message from the owner of No 7 which stated in part that 'the dogs were out again on the street and to be careful' (ts 35, 6 February 2020). Mr Dwyer said he saw both dogs on the pathway down the side of his property and so he yelled out of his open window to the dogs to 'push off' (ts 35, 6 February 2020). He said the dogs saw him and came up onto his property and growled at him, with heads down, heckles up and shoulders hunched.
Mr Dwyer said he noted that when the late Mr Stewart got out of his ute, the dogs lunged towards the late Mr Stewart then retreated back to Ms Melanie's property.
In her SIFC, Ms Melanie strongly disputed that upon exiting his vehicle, the late Mr Stewart was rushed at aggressively by Patchy and Bella. Rather, Ms Melanie stated that whilst both dogs were barking, they were wagging their tails but they did not bare their teeth, growl or show any signs of aggression. Once the dogs returned to her property, it was accepted by the parties that the late Mr Stewart exited his vehicle. Ms Melanie stated that at the time the late Mr Stewart was exiting his vehicle, a male occupant of No 7 exited that property and stood at the front doorway in a 'standoff' manner with two weapons (which were identified as wooden poles when the CCTV footage was viewed) in his hands.
It was agreed that at about 8 am on 12 August 2019, the late Mr Stewart went to move his vehicle into the driveway of No 7. However, Ms Melanie rejected that the dogs rushed aggressively at the late Mr Stewart. She explained that Patchy was running past No 7 and was entering the yard of No 5 at about 8.07 am and two minutes later, Patchy headed back to her property when he spotted the late Mr Stewart at the rear of his vehicle. Ms Melanie said Patchy ran in the direction of the late Mr Stewart bounding in a most playful puppy manner. She accepted that Patchy was barking at that time.
Further, in her SIFC, Ms Melanie strongly rejected that the late Mr Stewart was forced to ward off the dogs by waving work tools at them. Ms Melanie stated that when the late Mr Stewart stomped his foot at Patchy, that the dog retreated in a fearful manner. Ms Melanie stated that at about that time the male occupant of No 7 again came out of the residence with the weapons in hand (wooden poles) seeking to provoke Patchy. In Mr Dwyer's view, the male occupant of No 7 had 'some sort of small ornamental something stick or something in his hand' (ts 36, 6 February 2020). Mr Dwyer noted the male occupant was in his dressing gown and he remembered thinking 'Well, that's not going to do much good against those two [dogs]' (ts 36, 6 February 2020).
Mr Burnett from the City attended Ms Melanie's property at approximately 8 am on 12 August 2019. He stated that Patchy charged at him in an aggressive manner. He explained that he deals with dogs day in day out and that Patchy's behaviour had escalated from the previous encounters to a degree where he thought it was possible the dog 'could have a go' (ts 63, 6 February 2020).
The alleged incident on 10 September 2019
In its SIFC, the City reported that Patchy and Bella were sighted roaming free in the Melford Court cul-de-sac on 10 September 2019, and that on inspection of Ms Melanie's property, the fencing remained inadequate and unlikely to prevent the dogs from escaping.
Mr Dwyer explained that his neighbour had telephoned him to say that she had been attacked at her door by the dogs who 'had gone through the screen door' (ts 37, 6 February 2020). Mr Dwyer said from his window he saw Patchy and Bella retreat from his neighbour's property, go down her driveway and then run up the cul-de-sac and back towards Ms Melanie's property and stayed there (ts 37, 6 February 2020). Mr Dwyer said he called the City and noted that Ms Melanie and the children were outside in front of Ms Melanie's property as if they were waiting for officers from the City to arrive (ts 37, 6 February 2020).
Ms Melanie rejected that Patchy and Bella were roaming free in the Melford Court cul-de-sac on 10 September 2019 as she and her children were home all evening. Ms Melanie stated that she has requested CCTV footage from the City regarding the alleged incident of 10 September 2019 but none has been provided (ts 91, 6 February 2020). Further, Ms Melanie rejected that the fencing remained inadequate because on 16 September 2019 officers from the City reported to her that they were 'quite happy' with what had been done to the property. Since then Ms Melanie stated that the following items have been installed or completed at her property (Exhibit 1 pages 2223):
a)a self-closing hinge which closes from 100 millimetres out as well as a padlock to the side access gates;
b)bamboo screening on the front connecting the fences so that the dogs cannot see down the street and therefore do not remain territorial outside of the residence's boundary;
c)an inner fence on both side boundary fences at the height suggested by the officers from the City and dug in chicken wire and fencing panels underneath to prevent the dogs digging out;
d)the fence heightened to a height suggested by the officers from the City and tensioned both the back fence and the right-hand side boundary fence; and
e)a self-closing mechanism to the front door.
Mr De Klerk in giving oral evidence stated that Ms Melanie had done a good job by putting up the extra fencing. Since the installation of the fencing, Mr De Klerk said he was not aware if the dogs had escaped from Ms Melanie's property (ts 66, 6 February 2020).
Having set out the incidents, the Tribunal turns to make findings on the credibility of the witnesses and to make findings in regard to those incidents.
The Tribunal's consideration
There is no dispute that Ms Melanie is the owner of Patchy and Bella which are both registered with the City pursuant to the Dog Act and that she has a right to apply for a review of the declaration decision for the purposes of s 33E(3) of the Dog Act.
The Tribunal finds that Patchy and Bella have no history prior to 20 June 2019 of any breaches of the Dog Act.
The Tribunal first considered the witnesses' evidence.
Findings on the witnesses' evidence
The Tribunal was informed that Mr Dwyer is a person wellaccustomed to dogs, having owned various breeds of dogs including Staffordshire Terriers, and was therefore less likely to misinterpret their behaviour. Mr Dwyer is not a person who has any abnormal fear of dogs. Mr Dwyer stated that since childhood he has had to break up many dog fights and that dogs he owned had been attacked and injured. While Mr Dwyer demonstrated directness and a high level of emotion in giving his evidence, the Tribunal finds he did so with clarity and as objectively as he could without vindictiveness. Mr Dwyer's evidence was unshaken in what he had observed in each of the incidents. Mr Dwyer's written statements, which were prepared shortly after each incident, were verified by his oral evidence and supported by the CCTV footage other than that there was no sound and therefore it was not possible for the Tribunal to confirm if the dogs were barking or snarling.
Turning to Mr Bradnick who was involved in the incident on 20 June 2019. The Tribunal finds that Mr Bradnick gave his evidence as objectively as he could. He was straightforward and to the point. He was clearly fearful of the dogs, whom he described as aggressive, as he was 'bailed up' in his van for about 40 minutes. His written statement, which was prepared on the date of the incident, was supported by the CCTV footage other than that there was no sound and therefore it was not possible for the Tribunal to confirm if the dogs were barking or snarling.
The late Mr Stewart's witness statement sets out his observations of the incident on 12 August 2019. His statement was prepared on same date as the incident and is supported by the mobile phone recording as well as Mr Dwyer's witness statement. His evidence is consistent with the evidence of Mr Dwyer and Mr Bradnick in which he stated:
On arrival, I was forced to stay in my vehicle as both dogs were on the loose, on the road and very aggressive.
The late Mr Stewart described the incident of 12 August 2019 as follows:
I was in the back of my ute getting tools when both dogs were charging and growling and had me pinned to the ute.
Like Mr Dwyer and Mr Bradnick, and the late Mr Stewart described in his witness statement that the dogs were aggressive, charging and growling.
Mr Melanie accepted the record at pages 57 to 59 of Exhibit 1 was an accurate record of the discussion he had on 2 July 2019 with two employees of the City, Mr Paul Lucas and Mr Burnett concerning the incident on 20 June 2019. In the record it is reported that Mr Melanie said that the dogs spend about 95% of their time on the driveway of Ms Melanie's property or in the garden. At hearing Mr Melanie clarified this stating that when the incidents occurred on 20 June 2019, 29 July 2019 and 12 August 2019 the dogs were on the driveway or in the garden and that they had run out into the cul-de-sac on numerous and regular occasions (ts 72, 6 February 2020). Mr Melanie explained if they are not home then the dogs stay inside in an indoor alfresco area. Despite Ms Melanie stating in her SIFC (Exhibit 1 Page 22), that the dogs are territorial, Mr Melanie refuted that the dogs are territorial over the culde-sac (ts 73, 6 February 2020).
Mr Melanie was inside his home on 29 July 2019 which is when one of the incidents occurred (ts 77, 6 February 2020) but otherwise he did not see the incidents apart from viewing the CCTV footage. Because of this, the Tribunal finds Mr Melanie's evidence to be of limited probative value as compared to the evidence of Mr Dwyer, Mr Bradnick and that late Mr Stewart who were each involved in one or more of the incidents.
Mr Iqbal attended Ms Melanie's property at 9.45 pm on 29 July 2019. When asked by Mr Iqbal whether any of her dogs had been out of her property a few minutes before 9 pm, Ms Melanie told Mr Iqbal that her 'dogs were inside the whole time' but later when preparing her SIFC and having viewed the CCTV footage, she accepted that Patchy had been outside her property. Ms Melanie did not explain why she failed to address the discrepancy between her statement to Mr Iqbal and the statement in her SIFC. Mr Iqbal reported in his statement that he did not see the dogs.
Mr Iqbal also attended Ms Melanie's property on the earlier incident date of 20 June 2019 with Mr Burnett (as stated in Mr Burnett's witness statement). However, Mr Iqbal did not report on that incident in his witness statement. No reason was given for this.
Mr Burnett in describing Patchy charging at him in an aggressive manner on 12 August 2019, explained that Patchy had lunged at him which was in an 'aggravated barking style'. Mr Burnett said Patchy's behaviour was intimidatory. Mr Burnett said the dogs' behaviour had escalated from the previous occasion he had seen the dogs. Mr Burnett said he thought that the dogs would 'have a go' (meaning attack) and were not acting in a playful manner. The Tribunal accepts that Mr Burnett has had a lot of dealings with dogs in his work with the City.
The Tribunal accepts that Mr Iqbal and Mr Burnett attended the incidents after they had occurred and were therefore reliant on what Mr Dwyer, Mr Bradnick, the late Mr Stewart and Mr and Mrs Melanie reported to them. In regards to the incident of 12 August 2019 where Mr Burnett described his concern that that the dogs' behaviour had escalated from the previous occasion, the Tribunal accepts Mr Burnett's concern and that Patchy's behaviour was intimidatory.
Turning to the CCTV footage. Such evidence has limitations. Firstly, the cameras are static. They do not give a 3 dimensional view. They do not always provide sound and they are high up above the action and so not everything is captured. However, CCTV footage is useful in that it shows when and where the dogs exited and entered Ms Melanie's property and can be relied upon as opposed to the memories of the witnesses.
Ms Melanie, apart from her SIFC, did not give oral evidence and therefore was not cross-examined. The Tribunal preferred the evidence of Mr Dwyer, Mr Bradnick and the late Mr Stewart as their evidence was supported by CCTV footage and the video recording taken using a mobile phone.
Findings on the incidents
The crux of the dispute is whether the dogs acted in a playful manner or in an aggressive manner. Ms Melanie argued the dogs were just barking with their tails wagging in a playful manner. Counsel for the City submitted the dogs acted in an aggressive manner in each of the incidents on 20 June 2019, 29 July 2019 and 12 August 2019.
In her SIFC at para 4(c), Ms Melanie rejected that Patchy and Bella charged in an aggressive manner at Mr Dwyer and Mr Bradnick. Further, in her SIFC at para 4(e), Ms Melanie refuted that Patchy remained on the driveway of her property on 20 June 2019 in a 'standoff' with Mr Burnett and Mr Iqbal. Her evidence is that Patchy remained because he was being thrown treats by Mr Burnett and Mr Iqbal. Mr Burnett's evidence was that Patchy was holding his ground in a manner which he described as aggressive. He stated that he was throwing treats to Patchy in order to control the dog's behaviour because he said he felt intimidated by Patchy's behaviour even though he was an experienced ranger.
Ms Melanie in her SIFC at para 5(b) stated that she did not accept that Patchy, upon noticing Mr Dwyer, charged at him in an aggressive manner on 29 July 2019. Mr Dwyer's evidence is that Patchy did charge at him in an aggressive manner and that he needed to retreat into his home, opening the door quickly and watching behind him to see where Patchy had gone. The Tribunal does not accept Ms Melanie's assertion at hearing that Mr Dwyer provoked Patchy on 29 July 2019. This is because nothing was suggested that Mr Dwyer had done anything to Patchy. Rather, the Tribunal finds Patchy's behaviour on 29 July 2019 was the same as that observed on 20 June 2019 where Mr Bradnick was rushed at aggressively by Patchy who was standing outside of Mr Dwyer's property.
In her SIFC at para 6(b), Ms Melanie refuted that the late Mr Stewart, upon trying to exit his vehicle on 12 August 2019, was rushed at aggressively by Patchy and Bella. The late Mr Stewart stated in his written statement that the dogs were acting in an aggressive manner and that he was fearful.
Counsel for the City submitted that Mr Burnett reported the dogs' behaviour in similar terms as described by Mr Dwyer. That is, the dogs' behaviour is aggressive and intimidatory which points to the dogs being 'territorial' which is a term used by Ms Melanie in regards to Patchy and Bella in her SIFC at para 4(c) and at para 10(ii) (ts 85, 6 February 2020).
Mr Dwyer's evidence that the dogs stand tall and proud over the culdesac and became territorial over a period of time was not disputed apart from Mr Melanie who stated the dogs are not territorial. And consistent with that territorial behaviour, counsel for the City submitted that it is common knowledge that a dog that becomes territorial does not act in the manner described by Ms Melanie, that is, playful in the protection of that territory. Counsel for the City submitted that the dogs act in a manner which is aggressive in order to protect that territory (in this case the Melford Court cul-de-sac). It is these behaviours of Ms Melanie's dogs which counsel for the City submitted is inconsistent with the Dog Act in that the dogs:
a)are allowed to roam the Melford Court cul-de-sac;
b)have obtained or gained territorial rights and feeling over that area;
c)are acting in a manner which is aggressive to any other person who enters that territory such that their behaviours become aggressive, territorial; and
d)have engaged in a number of attacks against people who attended the Melford Court cul-de-sac and have felt intimated by the dogs' behaviour.
In the circumstances of this case, the Tribunal finds that each of the incidents on 20 June 2019, 29 July 2019 and 12 August 2019 occurred as described by Mr Dwyer. He prepared his witness statements himself shortly after each incident.
Mr Dwyer's evidence was that the dogs were snarling and baring their teeth with their heckles up. That evidence was not contradicted by Ms Melanie or her witness Mr Melanie. Mr Dwyer's evidence is supported by Mr Bradnick, at least on 20 June 2019, when he stated he felt that he needed to stay in his van for an extended period because of the aggression of the dogs barking, baring their teeth and jumping at the passenger's side window. Mr Dwyer had been speaking with Mr Bradnick from the passenger side of the van for some minutes and it was only when the dogs started to come closer to him and were barking at him that he got into the van to avoid being bitten by Patchy.
In relation to the evening of 29 July 2019, Mr Dwyer stated his sleep was disturbed because the security camera had triggered a light. Mr Dwyer went outside to the front of his home where he observed Patchy approaching him aggressively which caused him to quickly retreat back into his home. The third incident occurred on 12 August 2019. Mr Dwyer observed and using his mobile telephone recorded a tradesman (the late Mr Stewart) stay in his vehicle as both dogs were loose in the cul-de-sac and behaving very aggressively.
The evidence of Mr Dwyer, along with the CCTV footage and mobile phone recording, combined with Mr Bradnick's evidence, support the conclusion that both Patchy and Bella were barking, snarling, baring their teeth and having their heckles up. Mr Dwyer described that behaviour as aggressive dogs attacking him. Mr Burnett's evidence also supports the conclusion that Patchy acted in a manner that was aggressive.
The criteria for an attack to have occurred is established by the dogs aggressively rushing at Mr Dwyer. Mr Dwyer is accustomed to being around dogs. It can be inferred, and the Tribunal finds, that Mr Dwyer interpreted the dogs' behaviour as aggressive and that they did aggressively rush at him, as evidenced by the CCTV footage on 20 June 2019 (in regards to Patchy and Bella) and 29 July 2019 (in regards to Patchy), so as to constitute an attack. The Tribunal finds that the behaviour of the dogs constituted an attack on Mr Bradnick and the late Mr Stewart within the meaning of s 3(1)(a) of the Dog Act. That is, Patchy and Bella aggressively rushed at each of these people on one or more of the incident dates of 20 June 2019, 29 July 2019 and 12 August 2019.
Conclusion
Having arrived at the above findings, the question for the Tribunal now is whether it is the correct and preferable decision that one or both dogs be declared 'dangerous'. In the Tribunal's opinion, both Patchy and Bella have, repeatedly, shown a tendency to attack any person, in this case Mr Dwyer, Mr Bradnick and the late Mr Stewart by aggressively rushing at them on 20 June 2019, 21 July 2019 (in the case of Patchy only) and/or 12 August 2019 and therefore it was open to the City, as it is open to the Tribunal, to declare both Patchy and Bella dangerous dogs pursuant to s 33E(1)(b)(i) of the Dog Act. The remaining question is whether the discretion should be exercised by making the declaration in relation to Patchy and Bella.
Ms Melanie stated:
… I know the law states that, if a person feels threatened, it is classed as a dog attack. But as you know, the law is not black and white. So it (sic) can be interpreted and implemented on a case-by-case scenario…
(ts 67-68, 6 February 2020)
Ms Melanie said the declaration decision is impacting on her children as their friends do not want to come over to play with them because of the dangerous dog signs. She said they are not horrible dogs, rather they are naughty and mischievous puppies and they need to be trained in the correct way (ts 90, 6 February 2020). Further, Ms Melanie said that the dogs have 'never shown any signs of aggression to our children, to our family, to our friends' (ts 90, 6 February 2020).
Ms Melanie stated that she and Mr Melanie has taken great measures to keep her dogs contained. This included putting in an electric boundary fence so that the dogs do not go near the boundary as well as internal fences, a metre away from the external fence. In addition, they have installed a selfclosing flyscreen door on the front door because the self-closing hinge was not working on the door because of its size. Ms Melanie explained that they have spent a lot of money which they really did not have just to try to keep the dogs contained as they do not want to loose their dogs (ts 8990Februar2020).
In conclusion, Ms Melanie said that '[a]ll that we wanted to come here today to do was just to get this dangerous dog label taken off' (ts 926 February 2020) and that:
[w]e've actually been ostracised in our street by the rest of the neighbours … there's only about 10 houses in the street, so its quite hostile every time we pull up and this does stem from everything that has happened that was given evidence of today the dog incidences. We just want to be able to walk our dogs and to, you know, not having signs up to say our dogs are dangerous when they're not dangerous'
(ts 92, 6 February 2020).
Counsel for the City submitted:
… The label of a dangerous dog is not so much as the dog's behaviour necessarily but it's the dog's behaviour in a particular location. Dogs aren't, and ought not to be, permitted to attack or cause other people harassment but it is really speaking about the nature of the responsible ownership of the applicants.
(ts 23, 6 February 2020).
Further, counsel for the City submitted that inspections by the City have caused Patchy and Bella to be contained. Counsel for the City submitted that the City has worked with Ms Melanie to improve latches and fencing, with Mr De Klerk complimenting Ms Melanie on the efforts she has undertaken to comply with the requirements of the declaration decision (ts 86, 6 February 2020). Counsel for the City submitted that for the present, while the dogs are exhibiting behaviour and while Ms Melanie has not provided any evidence in respect of training of the dogs, which in her application stated that 'it's nothing that correct training couldn't fix', and while the dogs have been kept in their yard by the City having supervision through the dangerous dogs declaration, for the City to continue to monitor the activities of the dogs will have a modifying effect on the behaviour of the dogs so that they will increasingly become only territorial over their yard.
Counsel for the City properly suggested that at such time as Ms Melanie is able to satisfy the City that her dogs' behaviour has been remedied and that they have been kept in their yard in an appropriate manner, the dangerous dogs declaration may be able to be the subject of an application by Ms Melanie to the City to be lifted (ts 87, 6 February 2020).
As submitted by counsel for the City, '[i]t is all about responsible ownership' (ts 88, 6 February 2020). The purpose of s 33E the Dog Act is public safety. The public should feel safe and be safe from dogs that are aggressively rushing at any person. The purpose of s 33E of the Dog Act is not to punish the owner, in this case Ms Melanie, and it is not penal in nature. In this case the attacks were unprovoked, aggressive and intimidatory and were directed at three grown men whom counsel for the City described as not being 'withering violets' (ts 85, 6 February 2020). In the opinion of the Tribunal, the public should be warned that Patchy and Bella have acted or behaved aggressively. The Tribunal concludes that the declaration that Patchy and Bella are dangerous dogs pursuant to s 33E(1)(b)(i) of the Dog Act is the correct and preferable decision and therefore the City's decision of 12 August 2019 should be affirmed.
For the above reasons, the Tribunal dismisses Ms Melanie's application for review and affirms the decision of the City.
Order
The Tribunal orders:
1.The respondent's decision of 12 August 2019 declaring 'Patchy' (registration 953010002299400) and 'Bella' (registration 941000019974683) to be dangerous dogs is affirmed.
2.'Patchy' and 'Bella' must be kept by the applicant in accordance with the requirements of keeping a dangerous dog under the Dog Act 1976 (WA) as set out in the City of Kwinana's declaration notice of 12 August 2019.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R PETRUCCI, MEMBER
16 MARCH 2020
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