Millar v Brisbane City Council - [2024] QCAT 93

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Millar v Brisbane City Council [2024] QCAT 93

PARTIES:

ANDREW JOHN MILLAR

(applicant)

v

BRISBANE CITY COUNCIL

(respondent)

APPLICATION NO/S:

GAR083-19

MATTER TYPE:

General administrative review matters

DELIVERED ON:

28 February 2024

HEARING DATE:

20 February 2024

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver

ORDERS:

1. The decision of the respondent is confirmed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – animals – dangerous dogs – where unprovoked attack causing physical injury and fear – where two dogs were attacked on separate occasions at a local dog park – where allegations of provocation by victim dogs on both occasions – where provocation confined to growling and baring of teeth – where respondent satisfied that the attack was unprovoked – where attacks on two separate occasions in close proximity to each other – whether the applicant’s dog was subject to provocation in each attack by the victim dogs – whether applicant’s dog was defending itself – whether attack caused bodily harm – whether serious attack by applicant’s dog – whether a dangerous dog declaration should be made on review

Queensland Civil and Administrative Tribunal Act2009 (Qld), s 20, s 24

Animal Management (Cats and Dogs) Act2008 (Qld),
s 89, s 94, s 186

Criminal Code Act 1899 (Qld), Schedule 1, s 1

Brisbane City Council v Roy [2020] QCATA 147

Kehl v Board of Engineers [2010] QCATA 58

Lee v Brisbane City Council [2012] QCA 284

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Mr Spencer, in-house lawyer for the Respondent

REASONS FOR DECISION

Mr Millar is the owner of a staffordshire dog named Jack. On 19 May 2018 and 21 May 2018 Mr Millar took Jack to a dog park at Whites Hill in Brisbane. Whilst at the park on 19 May 2018 Jack and another dog, Cooper, owned by Renee Stone, had an altercation resulting in a puncture wound to Cooper which drew blood. Then on 21 May 2018, when at the same dog park, there was another altercation between Jack and a dachshund dog, Alfred, owned by Rosie Sutton and Kate McCarthy. Jack inflicted a puncture wound to Alfred in that altercation.
As a consequence of complaints received about these two events, Brisbane City Council officers carried out an investigation. The result of the investigations was that on 13 September 2018 the Council issued a Dangerous Dog Declaration in respect of Jack under s 94 of the Animal Management (Cats and Dogs) Act 2008 (Qld) (‘AM Act’). The initial Dangerous Dog Declaration was withdrawn to allow Mr Millar to obtain further information for the purposes of lodging a response to the initial Proposed Dangerous Dog Declaration. Having considered this, the Council issued a further Dangerous Dog Declaration on 26 October 2018, which is the operative decision.
An internal review into that decision was conducted by Troy Casey. On 14 February 2019, Mr Casey confirmed the original decision of the Council. Under s 186(4)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Millar v Brisbane City Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] QCAT 93
Decision Date: 28 February 2024

CaseChat Overview and Summary

The matter of Millar v Brisbane City Council was heard in the Queensland Civil and Administrative Tribunal (QCAT). The applicant, Mr Millar, sought to challenge a decision by the Brisbane City Council to declare his dog, Jack, a dangerous dog following an unprovoked attack on another dog, Cooper. Subsequently, Jack attacked another dog, Alfred. Mr Millar argued that the attacks were provoked or in self-defence, and that the injuries sustained by the victim dogs did not amount to bodily harm. He contended that, if a declaration was necessary, it should be limited to a menacing dog declaration. The respondent, Brisbane City Council, maintained that Jack's attacks were unprovoked, serious, and that a dangerous dog declaration was warranted.

The legal issues in this case centred on whether the attacks were unprovoked and serious, and if so, whether the appropriate declaration was for a dangerous dog or a menacing dog. The definition of "serious attack" under the Animals Act 2005 (AM Act) was critical, as it included attacks causing bodily harm, grievous bodily harm, or death. The Tribunal had to determine if the injuries to Cooper and Alfred met the threshold of bodily harm and if the attacks were unprovoked. Furthermore, the Tribunal needed to decide whether, based on the findings of fact, the Council's decision to declare Jack a dangerous dog was correct.

The Tribunal found that the evidence established that Jack had attacked both Cooper and Alfred without provocation, and that both victim dogs sustained injuries that qualified as bodily harm. The Tribunal noted that Cooper had a severe puncture wound that drew blood, and Alfred had a distinct puncture wound to his neck, which was confirmed by a veterinary surgeon. Given that the injuries met the definition of bodily harm, the Tribunal concluded that the attacks were serious and therefore qualified as dangerous dog attacks under the AM Act. Consequently, the Tribunal held that the Council's decision to declare Jack a dangerous dog was justified and should be confirmed.

In light of the above findings, the Tribunal confirmed the decision of the Brisbane City Council. The Tribunal held that the respondent had correctly determined that Jack was a dangerous dog based on the unprovoked attacks on Cooper and Alfred, which caused bodily harm. The Tribunal rejected Mr Millar's submissions that the attacks were provoked or that the injuries did not amount to bodily harm. The appropriate declaration under the AM Act was for a dangerous dog, not a menacing dog.

Orders

Orders of the court

1. The decision of the respondent is confirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

If a declaration was to be made it was submitted by Mr Millar that the declaration be confined to a menacing dog declaration under s 89(1)(b) of the AM Act. As the injury involved bodily harm, it was by definition a ‘serious attack’ and therefore could not be downgraded to menacing.[19] [19]Brisbane City Council v Roy [2020] QCATA 147.Conclusion Based on these findings of fact, I am satisfied that the requirements of s 89 of the AM Act have been satisfied. Therefore, standing in the shoes of the Council and being so satisfied I must make the declaration under s 94(2).[20] That section provides that: If after complying with subsection (1), the local government is satisfied that the relevant ground under section 89 still exists, it must[21] make the regulated dog declaration for the dog. [20]Ibid.[21]My emphasis. Having regard to s 24 of the QCAT Act, the correct and preferable decision is that the decision of the Council of 14 February 2019 is confirmed.

Ratio Decidendi

Legal Principle Established

Having been satisfied that Jack attacked both Cooper and Alfred, the next question is whether the attack was serious. Here I am guided by section 89 of the AM Act. It provides: (1) Any local government may, by complying with the requirements of this part – (a)declare a particular dog to be a declared dangerous dog (a dangerous dog declaration); or (b)declare a particular dog to be a declared menacing dog (a menacing dog declaration); or …(2)A dangerous dog declaration may be made for a dog only if the dog: (a)has seriously attacked, or acted in a way that caused fear to, a person or another animal; or (b)may in the opinion of an authorised person having regard to the way the dog has behaved towards a person or other animal, seriously attacked, or acted in a way that causes fear to, the person or animal. (3) A menacing dog declaration may be made for a dog only if a ground mentioned in subsection (2) exists for the dog except that the attack was not serious. …(7) In this section seriously attacked means to attack in a way causing bodily harm, grievous bodily harm or death. Bodily harm is defined in the dictionary to the AM Act as:bodily harm has the meaning given by the Criminal Code, section 1. Section 1 of the Criminal Code provides that bodily harm “means any bodily injury which interferes with health or comfort”. The question whether this is the case here is a finding of fact. Having regard to the evidence of the owners of both Cooper and Alfred I am satisfied that the injuries sustained by the dogs fall within definition of bodily harm. Cooper has a distinct puncture wound, which was severe enough to draw blood. Alfred also had a distinct puncture wound to his neck clearly depicted in the photographs attached to Ms McCarthy’s affidavit. If there is any doubt about that, he was seen by a veterinary surgeon on 22 May 2018, Dr Jonsson, who examined the wound to the ventral neck and recorded that it was “weeping last night”.[18] He administered medication.[18]Attached to Ms McCarthy’s affidavit Ex 12. This evidence was admitted despite Mr Millar’s objection consistent with s 28 of the QCAT Act. It is plain on the evidence that both dogs, Cooper and Alfred, suffered bodily harm within the definition under the AM Act. If a declaration was to be made it was submitted by Mr Millar that the declaration be confined to a menacing dog declaration under s 89(1)(b) of the AM Act. As the injury involved bodily harm, it was by definition a ‘serious attack’ and therefore could not be downgraded to menacing.[19] [19]Brisbane City Council v Roy [2020] QCATA 147.Conclusion Based on these findings of fact, I am satisfied that the requirements of s 89 of the AM Act have been satisfied. Therefore, standing in the shoes of the Council and being so satisfied I must make the declaration under s 94(2).[20] That section provides that: If after complying with subsection (1), the local government is satisfied that the relevant ground under section 89 still exists, it must[21] make the regulated dog declaration for the dog. [20]Ibid.[21]My emphasis.