MOURISH and TOWN OF PORT HEDLAND
[2015] WASAT 80
•23 JULY 2015
MOURISH and TOWN OF PORT HEDLAND [2015] WASAT 80
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2015] WASAT 80 | |
| DOG ACT 1976 (WA) | |||
| Case No: | CC:817/2015 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR J JORDAN (SENIOR SESSIONAL MEMBER) | 23/07/15 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is dismissed The dog 'Captain' remains a dangerous dog (declared) and must be kept as required by the Dog Act 1976 (WA) | ||
| B | |||
| PDF Version |
| Parties: | TREVOR MOURISH TOWN OF PORT HEDLAND |
Catchwords: | Under Dog Act 1976 (WA) Application for review of decision declaring a dog dangerous Circumstances of attack by dog Dog also dangerous dog (restricted breed) Turns on own facts |
Legislation: | Dog Act 1976 (WA), s 3, s 21, s 22, s 29, s 33E(1), s 33F(2)(b)(ii), s 33GB, s 33GD(b) Dog Regulations 2013 (WA), reg 4(e) |
Case References: | Nil |
Orders | On the application determined on the documents by Senior Sessional Member James Jordan, it is on 23 July 2015 ordered that: ,1. The application for review of the Town of Port Hedland notice of 14 May 2015 is dismissed.,2. The pit bull terrier 'Captain' remains a dangerous dog (declared) and must be kept in accordance with the requirements of keeping a dangerous dog under the Dog Act 1976 (WA), as set out in the Town's notice of 14 May 2015. |
Summary | The applicant applied under the Dog Act 1976 (WA) for review of the notice issued by the Town of Port Hedland declaring the applicant's dog 'Captain' to be dangerous.,The Tribunal had written submissions from a witness to the attack, from the applicant, the Town's ranger and a veterinarian. The case turned on the nature and the circumstances of the incident, which were analysed by the Tribunal.,The applicant also raised his desire to retrieve his dog from the Town's dog management facility. The Tribunal viewed this as a separate issue to be resolved other than as part of the review of the declaration of the dog as dangerous.,The Tribunal found that there was no dispute that the attack by the dog did occur and that it was serious, resulting in another dog having to be euthanased. The Tribunal decided to affirm the declaration of the dog as dangerous and the application for review was dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : DOG ACT 1976 (WA) CITATION : MOURISH and TOWN OF PORT HEDLAND [2015] WASAT 80 MEMBER : MR J JORDAN (SENIOR SESSIONAL MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 23 JULY 2015 FILE NO/S : CC 817 of 2015 BETWEEN : TREVOR MOURISH
- Applicant
AND
TOWN OF PORT HEDLAND
Respondent
Catchwords:
Under Dog Act 1976 (WA) Application for review of decision declaring a dog dangerous Circumstances of attack by dog Dog also dangerous dog (restricted breed) Turns on own facts
Legislation:
Dog Act 1976 (WA), s 3, s 21, s 22, s 29, s 33E(1), s 33F(2)(b)(ii), s 33GB, s 33GD(b)
Dog Regulations 2013 (WA), reg 4(e)
Result:
The application for review is dismissed
The dog 'Captain' remains a dangerous dog (declared) and must be kept as required by the Dog Act 1976 (WA)
Summary of Tribunal's decision:
The applicant applied under the Dog Act 1976 (WA) for review of the notice issued by the Town of Port Hedland declaring the applicant's dog 'Captain' to be dangerous.
The Tribunal had written submissions from a witness to the attack, from the applicant, the Town's ranger and a veterinarian. The case turned on the nature and the circumstances of the incident, which were analysed by the Tribunal.
The applicant also raised his desire to retrieve his dog from the Town's dog management facility. The Tribunal viewed this as a separate issue to be resolved other than as part of the review of the declaration of the dog as dangerous.
The Tribunal found that there was no dispute that the attack by the dog did occur and that it was serious, resulting in another dog having to be euthanased. The Tribunal decided to affirm the declaration of the dog as dangerous and the application for review was dismissed.
Category: B
Representation:
Counsel:
Applicant : In Person
Respondent : Mr T Wilden (Acting as Agent)
Solicitors:
Applicant : N/A
Respondent : Town of Port Hedland
Case(s) referred to in decision(s):
Nil
Introduction
1 Mr Trevor Mourish (applicant) applied for review of the decision by the Town of Port Hedland (respondent or Town) to declare his dog 'Captain', as dangerous pursuant to s 33E(1) of the Dog Act 1976 (WA) (Dog Act). Captain is reported as having City of Stirling tag M08302.
2 A letter from a registered veterinarian filed by the Town stated that the dog, Captain, is a 'large tan entire male pit bull or pit bull cross type breed'.
3 Section 3 of the Dog Act states:
dangerous dog means a dog that is
(a) a dangerous dog (declared); or
(b) a dangerous dog (restricted breed); or
(c) a commercial security dog;
dangerous dog (declared) means an individual dog that under section 33E(1) is declared to be a dangerous dog (declared).
4 The Tribunal also noted that at reg 4(e) of the Dog Regulations 2013 (WA), a pit bull terrier is in the list of 'restricted breeds for the definition of dangerous dog (restricted breed) in section 3(1)' of the Dog Act. Section 3 of the Dog Act also states:
dangerous dog (restricted breed) means a dog that
(a) is of a breed prescribed by the regulations to be a restricted breed; or
(b) is a mix of 2 or more breeds, one being a breed prescribed by the regulations to be a restricted breed[.]
5 Section 33GB of the Dog Act requires that a dangerous dog (restricted breed) must be sterilised. Captain is not sterilised.
6 Section 33GD(b) provides that a person must not breed from a dangerous dog (restricted breed). In this matter the evidence was that the second dog in the attack by Captain was a five month old pup bred from Captain.
7 Section 21 of the Dog Act requires that all dogs be microchipped and s 22 requires that all dangerous dogs be microchipped. The report from the Town states that Captain is not microchipped.
The issue and application for determination
8 The issue for determination by the Tribunal was whether the Town's declaration that Captain be declared a dangerous dog is to be set aside.
Discussion
9 The evidence before the Tribunal was that on 14 May 2015, the Town served a notice on Mr Mourish informing him that his dog had been declared dangerous under s 33E(1) of the Dog Act because it had caused injury by an attack.
10 The submissions showed that Mr Mourish was visiting Port Hedland with his two dogs. On 10 May 2015, he leashed his two dogs behind a cousin's house and went to visit friends elsewhere. In his absence, Captain attacked and severely injured the second dog. The house owner called the police who then called the Town's rangers. The rangers called a veterinarian and the report shows that the second dog's head was so badly mauled that on the veterinarian's advice the second dog was euthanased. Captain was then taken to the Town's dog management facility where it remains.
11 The Town's rangers then confirmed the details of the attack with witnesses and got statements from those who came to the house soon after the attack, including the applicant.
12 On 14 May 2015, the Town issued its notice declaring Captain to be a dangerous dog.
13 On 26 May 2015, Mr Mourish applied to the Tribunal under s 33F(2)(b)(ii) of the Dog Actfor review of the dangerous dog declaration. Mr Mourish explained that he had to visit Perth for health tests soon after Captain was declared dangerous. While this was understood to be a significant demand on his time and resources, since then Mr Mourish has had additional time and to date no steps have been taken by him to have Captain sterilised and microchipped, or to have arrangements made for the Town to recover pound fees accrued between May and the present date.
14 Mr Mourish says that he wants to take Captain back to Perth and to look after him. He explained that the dogs were in a secure yard, but that he had left them leashed. He commented that being leashed would have 'triggered the father's anger' and ultimately made him attack the pup. He said this was the first time this had happened and considered it to be out of character for Captain. He does not believe it will happen again if he is allowed to look after Captain.
Other comment
15 At directions before the Tribunal and in a submission, Mr Peter Wilden, the Town's coordinator of ranger services, said the Town was considering action under s 29 of the Dog Act, which provides for steps to deal with dogs not claimed from the pound. The Town stated that for Captain to be retrieved from the pound, it was necessary for the accumulated pound fees to be paid, and for Captain to be sterilised and microchipped.
16 The Tribunal notes it would be open to the Town to proceed accordingly if Mr Mourish takes no steps that would enable Captain to be retrieved. These actions might result in the matter again coming before the Tribunal but that would have to be a separate application by Mr Mourish.
17 The Tribunal also notes that Captain, being a pit bull terrier, is by definition under the Dog Act, a dangerous dog (restricted breed) and must, in any event, be kept in the manner prescribed under the Dog Act for the keeping of dangerous dogs.
18 There was no evidence that Mr Mourish had taken steps to put in place suitable accommodation and to take the steps necessary to have Captain identified and kept as a dangerous dog.
Conclusion
19 The Tribunal is required to determine whether the Town's notice to declare Captain to be a dangerous dog should stand or be set aside.
20 The Tribunal has determined that the application for review should be dismissed.
21 Captain is a pit bull terrier, a dog breed that has a nature that requires it to be defined as a dangerous dog (restricted breed) under the Dog Act. Captain's attack on the young dog was so severe that the dog had to be euthanased. This is considered by the Tribunal to be an illustration of how Captain is capable of behaving if he feels disturbed or threatened in any way.
22 The Tribunal considered it to be in the interest of safety of other dogs that the potential for similar attacks be avoided. To achieve this the Tribunal is of the view that Captain should be controlled in the way required by the Dog Act for dangerous dogs, as set out in detail in the Town's notice to Mr Mourish of 14 May 2015 declaring Captain to be a dangerous dog.
Orders
1. The application for review of the Town of Port Hedland notice of 14 May 2015 is dismissed.
2. The pit bull terrier 'Captain' remains a dangerous dog (declared) and must be kept in accordance with the requirements of keeping a dangerous dog under the Dog Act 1976 (WA), as set out in the Town's notice of 14 May 2015.
I certify that this and the preceding [22] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J JORDAN, SENIOR SESSIONAL MEMBER
0
0
2