Mitchell v Gympie Regional Council - [2021] QCAT 40

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Mitchell v Gympie Regional Council [2021] QCAT 40

PARTIES: KATE MITCHELL

(applicant)

v

GYMPIE REGIONAL COUNCIL

(respondent)

APPLICATION NO/S:

GAR297-17

MATTER TYPE:

General administrative review matters

DELIVERED ON:

29 January 2021

HEARING DATE:

28 August 2020

HEARD AT:

Maroochydore

DECISION OF:

Member Poteri

ORDER:

The decision of the Gympie Regional Council made on 22 August 2017 to destroy Maggie and Max is confirmed.

CATCHWORDS:
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where dogs have attacked and caused injury to one dog and the death of another dog – where the dogs have been seized – where there are allegations that the owner of the dogs does not show acceptance of responsibility for the actions of the dogs – where there are allegations of further risk of noncompliance – where a destruction order has been made - where the Tribunal has invited the decision maker to reconsider the making of the destruction order.

Animal Management (Cats and Dogs) Act 2008 (Qld) s 3, s 4, s 59, s 89, s 127, s 188

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 19, s 20, s 23

Cutbush v Scenic Rim Regional Council [2019] QCAT 80
Nguyen v Gold Coast City Council Animal Management [2017] QCATA 121
Thomas v Ipswich City Council [2015] QCATA 97
Bradshaw v Moreton Bay Regional Council [2018] QCATA 140

APPEARANCES & REPRESENTATION:

Applicant:

B McMillan of Counsel instructed by Lumme Rynderman Lawyers

Respondent:

J Sproule of Counsel instructed by Armstrong Legal

REASONS FOR DECISION

I heard the evidence relating to the application on 28 August 2020 and I heard oral submissions from Counsel on 11 September 2020. The circumstances and issues relating to this application date back to 2016 and were the subject of an order in June 2018 and an appeal decision in February 2020. The decision of the Appeal Tribunal was to set aside the original decision and return the matter to a differently constituted Tribunal for consideration.
The dogs relating to these proceedings are owned by the Applicant (Ms Mitchell) and are named Max and Maggie. They were impounded by the Respondent (Council) following an incident on 5 July 2017. They remain impounded by the Council. At the time of the alleged incidents in 2016/2017 Maggie was fully grown and weighed approximately 25 kgs and Max was a pup and smaller than Maggie. Maggie is a female brown and white American Staffordshire Pit Bull Terrier, and Max is a male black American Staffordshire Pit Bull Terrier and he now weighs approximately 25 kgs. Max has not been desexed. Since the impoundment Maggie has been desexed by the Council for health reasons.
On 23 February 2017 Ms Mitchell’s dogs were declared by the Council as regulated dangerous dogs pursuant to s 89 of the Animal Management (Cats and Dogs) Act 2008 (Qld) (AM Act). Ms Mitchell initially contested the making of these declarations, but she now concedes that the declarations were properly made…

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.

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Details

Case: [2021] QCAT 40
Decision Date

CaseChat Overview and Summary

The matter before the Queensland Civil and Administrative Tribunal (QCAT) was an appeal by Kate Mitchell against a decision of the Gympie Regional Council to destroy her two American Staffordshire Pit Bull Terriers, Maggie and Max, following incidents involving the dogs. The Council's decision was made under the Animal Management (Cats and Dogs) Act 2008 (Qld) (AM Act). Mitchell contested the Council's decision to declare her dogs as regulated dangerous dogs and the subsequent destruction order. The Tribunal's role was to review the Council's decision to ensure it was made in accordance with the law and the relevant statutory objectives.

The key issues for the Tribunal to decide were whether the dogs had indeed attacked and caused injury to another dog, and whether Mitchell had shown acceptance of responsibility for the dogs' actions and compliance with relevant laws. The Tribunal had to consider the history and current behaviour of the dogs, the security of their housing, the risk they posed to the community, and Mitchell's compliance with permit conditions and her insight into and understanding of the dogs' behaviour.

After considering the evidence, the Tribunal found that Maggie and Max had attacked and caused injury to another dog, Joe, on multiple occasions, and that they were responsible for the death of another dog, Boof. The Tribunal also found that Mitchell had not shown sufficient insight into the dogs' dangerous behaviour or acted appropriately to mitigate the risk they posed. The Tribunal concluded that the Council's decision to destroy the dogs was the proper and preferable decision, given the serious nature of the attacks and the risk the dogs posed to other animals and the community.

The Tribunal confirmed the Gympie Regional Council's decision to destroy Maggie and Max, noting that the dogs had been impounded for over three years and their current health and behaviour had not been assessed by a qualified expert. The Tribunal also noted that Mitchell had not taken any steps to comply with the conditions for the dogs' release, such as desexing Max and erecting a compliant enclosure. The Tribunal found that the public interest obligations contained in the AM Act required the Council to ensure that the dogs did not pose a danger to the public or other dogs, and that confirming the destruction order was the appropriate decision in the circumstances.

Orders