Naidu v Brisbane City Council
[2014] QCAT 420
| CITATION: | Naidu v Brisbane City Council [2014] QCAT 420 |
| PARTIES: | Shantu Naidu (Applicant) |
| v | |
| Brisbane City Council (Respondent) |
| APPLICATION NUMBER: | GAR225-14 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 22 August 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Hughes |
| DELIVERED ON: | 22 August 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the Brisbane City Council dated 1 May 2014 and 26 May 2014 to issue a Destruction Order in respect of ‘Porcha’ is set aside; and 2. The Tribunal substitutes its own decision that the grounds for a destruction order are not met. |
| CATCHWORDS: | ADMINISTRATIVE REVIEW – where Declared dangerous dog – whether proper grounds for Destruction Order - whether reasonable belief that dog attacked another animal – where no direct evidence of attack by Declared dangerous dog – where natural justice applies to Tribunal proceedings - whether contravention of prescribed conditions and compliance notice is separate grounds for destruction of dog – where contravention relates to offence provisions Animal Management (Cats and Dogs) Act 2008 (Qld) ss 60, 97, 125,126, 127, 134 and Schedule 1 Animal Management (Cats and Dogs) Regulation 2009 (Qld) ss 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18 Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 20, 21, 28 Briginshaw v. Briginshaw (1938) 60 CLR 336 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Shanta Naidu appeared in person Shabana Sutton also appeared as representative with leave of the Tribunal |
| RESPONDENT: | Brisbane City Council represented by Richard Thorn, Senior Investigator |
REASONS FOR DECISION
What is this Application about?
Owning a dog can provide significant benefits including security and companionship. Like all meaningful relationships, with those benefits come responsibilities.
Miss Shanta Naidu (also known as Shanta Sutton) is the registered owner of a mixed Boxer dog, ‘Porcha’.[1] Miss Naidu has applied to the Tribunal to review a decision by the Brisbane City Council to destroy Porcha.[2]
[1] Brisbane City Council Registration Details Permit Ref: AN01238382210.
[2] Although Brisbane City Council issued two Destruction Order – Information Notices
dated 1 May 2014 and 26 May 2014, the second Information Notice is identical to the first except for an update on the whereabouts of Porcha since the first Notice. For the purposes of this Review, it is the one Destruction Order.
The Council had previously declared Porcha to be a Dangerous Dog.[3]
[3] Brisbane City Council Proposed Regulated Dog Declaration Notice dated 13 March 2013.
What does the Tribunal do?
In a review application, the Tribunal’s purpose is to produce the correct and preferable decision by way of a fresh hearing on the merits.[4]
[4] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20.
The Tribunal must therefore decide whether to destroy Porcha.
What is the power to issue the Destruction Order for the dog?
An authorised person may order a regulated dog who is seized to be destroyed.[5]
[5] Animal Management (Cats and Dogs) Act 2008 (Qld) ss 126 and 127(4).
Because the Council has declared that Porcha is dangerous, she is a regulated dog.[6]
[6] Ibid s 60(a).
The Tribunal has previously considered the power to destroy a seized dog:
The provision states that the person may make an order advising of the intention to destroy the dog. The implication is that in appropriate circumstances no such order need be made but that proper consideration be given to the grounds that might justify a destruction order…
Any dog may be seized when the requirements of section 125 of the Act are fulfilled. However, having lawfully seized… a regulated dog, the decision maker (and therefore the Tribunal in this appeal) may (or may not) make a destruction order. On what basis should the order be made? If there is evidence that the regulated dog has attacked, threatened to attack, or acted in a way that causes fear, to another animal, seizure and in turn a destruction order may be activated. By inference the consequences are that if the destruction order is carried out there is no danger that any other ‘attack’ can take place by that dog.[7]
[7] Gala v. Fraser Coast Regional Council [2010] QCAT 576 at paragraph 28.
The trigger for both the seizure of and the power to destroy the dog is therefore the same – an attack, threat to attack or a risk to community health or safety.[8].
[8] Animal Management (Cats and Dogs) Act 2008 (Qld) s 125(1).
Importantly, both the Council as the original maker of the decision to issue the Destruction Order and the Tribunal in its review of the decision have a discretion whether to issue a Destruction Order.
Why did the Council decide to issue a Destruction Order for the dog?
On 1 May 2014 and 26 May 2014, the Council issued a Destruction Order for Porcha.[9] The Council detailed reasons that include events leading to a Regulated Dog Declaration on 13 March 2013[10] and a Compliance Notice for Regulated Dog Offences issued on 16 September 2013.[11] The Council contended that the history leading to the Declaration and Compliance Notice, combined with subsequent events demonstrate a pattern.
[9] Although Brisbane City Council issued two Destruction Order – Information Notices
dated 1 May 2014 and 26 May 2014, the second Information Notice is identical to the first except for an update on the whereabouts of Porcha since the first Notice. For the purposes of this Review, it is the one Destruction Order.
[10] Brisbane City Council Proposed Regulated Dog Declaration Notice dated 13 March
2013.
[11] Brisbane City Council Compliance Notice For Regulated Dog Offences dated 16
September 2013.
However, the events prior to the Declaration and Compliance Notice led to Council declaring Porcha to be dangerous and issuing a Compliance Notice. Of themselves, they did not result in the Destruction Order. A pattern can only be demonstrated if in addition to these earlier events, additional subsequent events are proven that alone or combined with the earlier events warrant a Destruction Order.
Simply, if nothing was alleged to have occurred after the Compliance Notice, the Council would not and could not have issued the Destruction Order.
It is therefore the events alleged after the Compliance Notice that resulted in the Destruction Order and are relevant to this Review. These alleged events are that Porcha:
· Attacked another animal;[12]
· Is or has been kept in contravention of prescribed conditions;[13]and
· Is or has been kept in contravention of the Compliance Notice issued on 16 September 2013.[14]
Attack another animal
[12] Brisbane City Council Destruction Order –Information Notice dated 1 May 2014 at
paragraph 5 and Brisbane City Council Destruction Order – Information Notice dated 26 May 2014 at paragraph 7.
[13] Brisbane City Council Destruction Order –Information Notice dated 1 May 2014 at
paragraph 6 and Brisbane City Council Destruction Order – Information Notice dated 26 May 2014 at paragraph 8.
[14] Brisbane City Council Destruction Order –Information Notice dated 1 May 2014 at
paragraph 7 and Brisbane City Council Destruction Order – Information Notice dated 26 May 2014 at paragraph 9.
Claim
The Council claims that Porcha attacked another animal:
On 26 April 2014 Council received a complaint that the above mentioned Regulated Dangerous Dog seriously attacked an animal after it had escaped the property it is usually kept and was in a public place without a muzzle and wandering at large without a keeper present and not under effective control in contravention of the conditions as set out in the Animal Management (Cats & Dogs) Act 2008 and the Animal Management (Cats and Dogs) Regulation 2009 and also in contravention of the Compliance Notice issued on 16 September 2013.
The Council adduced the below evidence to support its claim that Porcha attacked another animal.
Brisbane City Council Witness - Tania Moore, Animal Attack Officer
Ms Moore relevantly states:
On 26 April 2014, Council received a complaint that the dog ‘Porcha’ had allegedly attacked another dog within the vicinity of 61 Brandon Road, Runcorn.
Subsequent investigations determined that the complainant, while riding a bicycle past 61 Brandon Road, Runcorn, with his dog named ‘Charlie’ on a lead, was rushed by the dog “Porcha” (sic). The dog ‘Porcha’ unrestrained exiting (sic) the property at 61 Brandon Road, Runcorn, and attacking the dog named ‘Charlie’. The dog named ‘Charlie’ sustained injuries as a result of the attack.
…
As a result of my investigation I determined that the dog ‘Porcha’ had not been under effective control and within a designated enclosure as required under the conditions of a declared ‘Dangerous Dog’ and has attacked the dog named ‘Charlie’ causing injury and fear not only to the dog ‘Charlie’ but also the owners of that dog.[15]
[15] Statement of Tania Moore, Animal Attack Officer dated 21 July 2014 at paragraphs 21
to 22 and 24.
The only photographs attached to Ms Moore’s statement taken on 26 April 2014, the day of the alleged attack are two photographs of Charlie. One of these shows what appears to be a small abrasion to Charlie’s right rear leg. None of the other photographs attached to Ms Moore’s statement relates to the alleged attack.
Brisbane City Council Witness - Brad Kelso, Animal Attack Supervisor
Mr Kelso relevantly states:
On or about 1 May 2014, I became aware that the dog ‘Porcha’ had on 26 April 2014, been involved in the attack of another dog causing both injury and fear to the other dog and the person I (sic) control of that other dog.
As a result of the most recent attack, I formed the opinion that the dog ‘Porcha’ should be seized and destroyed.
On 1 May 2014, I signed both a Receipt of Seizure and Destruction Order – Information Notice.[16]
[16] Statement of Brad Kelso, Animal Attack Supervisor dated 21 July 2014 at paragraphs
16 to18.
Order For Destruction Review Notes
The Council also filed “Order For Destruction Review Notes” that relevantly state:
· Was there an attack post any regulation action? Yes – 26 April, 2014 Council received a complaint that Porcha attacked another dog having escaped the property from where it was kept. It is noted that at the time it was not being kept to conditions associated with the regulation.
…
· Was the dog positively identified as being involved in or responsible for the attack? Yes – The alleged attack was disputed by the daughter of the applicant, Shabana Sutton but does not dispute that PORSCHA (sic) was involved in an incident.
…
· There is no doubt that an attack took place outside the place where PORCHA is housed and at the time was not being kept to the conditions associated with the regulated condition of being a ‘dangerous dog’.
· Officers from the Rapid Response Group attended and obtained a version from the daughter of the applicant after having been told to go inside the house and to let her deal with the officers. The daughter claims that the other dog attacked PORCHA at the time.
· A conflicting version was provided by the complainant in the matter. He claims that PORCHA rushed at him and his dog having escaped from the property.
· I am satisfied that an investigation has taken place with versions provided by both parties with accompanying photographic evidence and that there is evidence of an attack by PORCHA on the complainant’s dog.
· There are no independent witnesses to the incident.
…
Complainant / Witness Information
· … Owner of the victim dog and complainant in the matter witnessed the attack and provides direct evidence supported by photographic injuries to the dog.[17]
[17] Brisbane City Council Order For Destruction Review Notes signed 18 June 2014 at page 3.
Is there sufficient evidence of an attack by the dog?
In conducting a proceeding, the Tribunal must act fairly and according to the substantial merits of the case.[18] The Tribunal is not bound by the rules of evidence[19]and may inform itself in any way it considers appropriate.[20]
[18] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28(2).
[19] Ibid s 28(3)(b).
[20] Ibid s 28(3)(c).
However, this does not mean that the rules of evidence may be ignored as of no account:
After all, (rules of evidence) represent the attempt made, though many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer “substantial justice”. The position of an appellant has been specifically protected by the Legislature, and he should not be placed in a position where he is effectually prevented from conducting his appeal. [21]
[21] R v. War Pensions Entitlement Appeal Tribunal (1933) 50 CLR 228 at 256, per Evatt J.
The Queensland Legislature has specifically prescribed that the Tribunal must still observe the rules of natural justice.[22] The Queensland Legislature has also specifically prescribed that in a proceeding for the review of a reviewable decision, the decision-maker must use his or her best endeavours to help the Tribunal so that it can make its decision on the review.[23] This includes providing any document or thing in the decision-maker’s possession or control that may be relevant to the Tribunal’s review of the decision.[24]
[22] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28(3)(a).
[23] Ibid s 21(2)(a).
[24] Ibid s 21(2)(b).
The Tribunal ordered the Council to file its statements of evidence and supporting documents by 25 July 2014.[25]The Tribunal also ordered persons who gave written statements to attend the hearing in person for cross examination.[26]
[25] Directions of Senior Member O’Callaghan dated 7 July 2014 at paragraph2.
[26] Directions of Senior Member O’Callaghan dated 7 July 2014 at paragraph 6.
The only persons who gave evidence on behalf of the Council were Ms Moore and Mr Kelso. I found both Ms Moore and Mr Kelso to be direct and honest when giving their evidence.
Despite the Tribunal’s order and the evidence of Ms Moore and Mr Kelso, the Council has not provided any direct evidence of an attack. The Council has merely provided statements of hearsay of what may have occurred. The inherent dangers in the Tribunal relying upon these statements of hearsay are obvious: the statements are derived from what has been told to the statement-makers by a single person who did not provide a statement to the Tribunal nor attend the hearing to give evidence.
Ms Moore’s statement refers to receiving a complaint from an unnamed source, while Mr Kelso’s statement notes that he “became aware”, without descending into details of how he became aware. Neither Ms Moore nor Mr Kelso witnessed the alleged attack. Rather, they appear to be relying upon what they have been told from another person described as the complainant.
The only direct evidence before the Tribunal of the alleged attack was from Ms Naidu herself and Ms Shabana Sutton who is Ms Naidu’s daughter. Perhaps unsurprisingly, both ladies gave evidence to the effect that the other dog, Charlie was off-leash when he came into their driveway and bit Porcha. Ms Naidu and Ms Sutton did concede that they had left the front door open, allowing Porcha to escape into the driveway where the altercation ensued. However, that does not prove Porcha is responsible for the attack.
As it is the complainant who is alleged to have reported the alleged attack, it is the complainant who is able to provide the best evidence of the alleged attack on behalf of the Council. However, the Council did not file any statement by the complainant nor seek to have him give evidence as a witness at the hearing.
When this was put to Mr Thorn as representative of the Council, he explained that this was a conscious decision by Council due to issues between the complainant and Ms Naidu. Mr Thorn indicated to the Tribunal that he could not go into much detail but referred to a reticence to identify the complainant due to these issues.[27]
[27] See Statement of Shabana Sutton filed 11 August 2014 claiming racism, discrimination,
taunts and threats by the complainant. During the hearing Ms Naidu and Ms Sutton also alluded to racial slurs in their testimony, while the Council itself claimed there were issues between the complainant and Ms Naidu. Although I make no findings about these claims, the failure by the complainant to attend the hearing to give evidence denies the dog’s owner the opportunity to put these claims to the complainant and thereby assist the Tribunal determine credit.
If the Council had concerns about publishing the complainant’s evidence or other information about the complainant, then it could have applied to the Tribunal for a non-publication order.[28] It did not.
[28] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 66.
Because of the lack of any evidence from the complainant, Porcha’s owner has been denied the opportunity to cross-examine the only person claiming to have directly witnessed the alleged attack. Moreover, there is no direct evidence of the alleged attack before the Tribunal.
It is therefore impossible for the Tribunal to determine the cause or extent of any alleged attack, whether or to what extent the complainant’s claims were affected by any issues with Porcha’s owner[29] or indeed, whether an attack occurred at all. One photograph of the dog Charlie, the alleged victim, shows what appears to be a minor abrasion. However, there is no direct evidence of the cause of this abrasion.
[29] See Statement of Shabana Sutton filed 11 August 2014 claiming racism, discrimination,
taunts and threats by the complainant. During the hearing Ms Naidu and Ms Sutton also alluded to racial slurs in their testimony, while the Council itself claimed there were issues between the complainant and Ms Naidu. Although I make no findings about these claims, the failure by the complainant to attend the hearing to give evidence denies the dog’s owner the opportunity to put these claims to the complainant and thereby assist the Tribunal determine credit.
The Review Notes are prepared by the Council and are therefore also hearsay. The Review Notes refer to a complaint, the identity of the complainant who provided “direct evidence”, the lack of independent witnesses and notes that the alleged attack is disputed.
It is clear from this that the Council’s entire case for the alleged attack rests upon the evidence and credibility of the complainant. Yet the complainant did not provide a statement of evidence or appear at the hearing to give evidence.
The Tribunal is therefore unable to test the veracity of the claims.
In these circumstances, the Tribunal does not accept the Council’s assertion[30] that “there is no doubt an attack took place”:
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes… it is enough that that affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect references… the nature of the issue necessarily affects the process by which reasonable satisfaction is attained.[31]
[30] As asserted in the Brisbane City Council Order For Destruction Review Notes signed
18 June 2014 at page 3.
[31] Briginshaw v. Briginshaw (1938) 60 CLR 336, per Dixon J (as His Honour then was) at
346.
The allegation is serious: that Porcha attacked and injured another dog, Charlie. The gravity of the consequences flowing from a finding of Porcha attacking and injuring Charlie is serious and irreversible: Porcha’s destruction. These considerations are apposite to whether the attack has been proved to the requisite standard of proof.
The Council had the benefit of the complainant’s statements upon which it relied to issue the Destruction Order. The Tribunal did not. The Tribunal was thereby denied the opportunity to assess the veracity of those statements and the credit of the complainant.
In the absence of any evidence from the only person claimed to have directly witnessed the alleged attack, the Tribunal cannot be satisfied that Porcha attacked Charlie to the requisite standard of proof.
To hold otherwise would be to deny the protection of natural justice afforded to Porcha’s owner by the Queensland Legislature.[32]
[32] Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 21(1), (2)(b) and (3)
and 28(2) and 3(a).
The alleged attack is therefore not a ground for Porcha’s destruction.
Contravention of prescribed conditions and Compliance Notice
The Council claims that Porcha is or has been kept in contravention of prescribed conditions:
An authorised person reasonably believed the above mentioned Regulated Dangerous Dog was or had been being kept in contravention of the conditions set out in Schedule C – Requirements for keeping a Declared Dangerous Dog as set out in the Animal Management (Cats & Dogs) Act 2008 and the Animal Management (Cats and Dogs) Regulation 2009.[33]
[33] Brisbane City Council Destruction Order dated 26 May 2014 at paragraph 8.
Neither the legislation nor its accompanying Regulations has a “Schedule C”. However, permit conditions are prescribed for dogs declared dangerous and regulated dogs.[34]
[34] Animal Management (Cats and Dogs) Act 2008 (Qld) s 97 and Schedule 1 and Animal
Management (Cats and Dogs) Regulation 2009 (Qld) ss 5 to 18.
Similarly, the Council claims that Porcha is or has been kept in contravention of a Compliance Notice:
An authorised person reasonably believed the above mentioned regulated dangerous dog had or was being kept in contravention of the Compliance Notice issued on 16 September as detailed above.[35]
[35] Brisbane City Council Destruction Order dated 26 May 2014 at paragraph 9.
The Compliance Notice relevantly provides:
On 15 September 2013 you failed to comply with the conditions imposed by the Dangerous Dog Declaration Notice which contravenes the following requirement/s of the Act:
Section 97: A relevant person for a declared dangerous dog must ensure each permit condition imposed under “Schedule C”, sections 1, 2 to 6 and 8 in relation to the dog is complied with for the dog.
You are hereby ordered under section 133 of the Act to do the following immediately to stop the contravention and prevent it from recurring-
1. The dog must not be in a place other than the place stated as its registered address,
a) Unless it is muzzled and under the effective control of someone who has the control of no more than one dog at the same time. Effective control means that the dog is under the control of an adult who is physically able to control the dog and:
· Is physically holding the dog by an appropriate leash; or
· Has appropriately tethered the dog to an object fixed to a place from which the object can not be moved by the dog and is continuously supervising the dog; or
· The dog is participating in, or being exhibited or trained at, an exhibition or an obedience trial supervised by a body recognised by Council.
…
It is an offence to not comply with this requirement.
If you fail to comply with the notice within the time specified above, under Section 134 of the Act Council may –
(a) Issue you a (sic) Infringement Notice of $770.00;
(b) Prosecute you for non-compliance,(sic) and/or
(c) Issue you a destruction order for the dog.[36]
[36] Brisbane City Council Compliance Notice For Regulated Dog Offences dated 16
September 2013.
Because the Council has declared that Porcha is dangerous, a failure by her owner to comply with prescribed permit conditions is an offence.[37]
[37] Animal Management (Cats and Dogs) Act 2008 (Qld) s 97 and Schedule 1, ss 2 - 6 and 8.
However, the Council provides no separate particulars of how the conditions or Compliance Notice have been contravened other than that Porcha was not kept under effective control, leading to the alleged attack.
I have already addressed the alleged attack above. Because of insufficient evidence of an attack by Porcha, I am not satisfied that the alleged lack of effective control led to any attack by Porcha.
The lack of effective control itself is an offence.
The Tribunal has previously considered the distinction between offence provisions and provisions conferring a discretion in the Animal Management (Cats and Dogs) Act 2008 (Qld):
There is a distinction between section 89 and sections 194 and 195 of the Cats and Dogs Act. Sections 194 and 195 deal with offences of which a person may be convicted consequent on a dog’s behaviour and fined. Section 196 provides a potential defence which may avoid a conviction. Section 89 is entirely different. It is concerned with circumstances where a relevant declaration may, not must, be made. A dangerous dog declaration may be made where the dog under consideration has “seriously attacked or acted in a way that caused fear to a person or another animal”. That is not to say that in the exercise of the discretion whether a declaration should be made with regard to a dog which has attacked another dog in a way causing bodily harm, grievous bodily harm or even death, the fact that the dog was acting in response to being attacked, provoked or teased is irrelevant. All the circumstances need to be taken into account in the exercise of the discretion.[38]
[38] Lee v. Brisbane City Council (No. 2) [2012] QCATA 64 at paragraph 30.
The provisions relating to a failure by Porcha’s owners to comply with prescribed conditions or the Compliance Notice by not keeping her under effective control are offence provisions.[39] They each prescribe an offence for which a person may be convicted for non-compliance. They are not concerned with circumstances where a destruction order may or may not be made.
[39] Animal Management (Cats and Dogs) Act 2008 (Qld) ss 97 and 134.
This means that the sanction for any failure to keep Porcha under effective control is a conviction and fine. It is not a ground for Porcha’s destruction.
The alleged contravention of prescribed conditions and the Compliance Notice is therefore not a ground for Porcha’s destruction.
Conclusion
In the absence of sufficient evidence to support the claim that Porcha attacked another animal or that the alleged contravention of prescribed conditions and the Compliance Notice is grounds for a destruction order, the Tribunal cannot be satisfied that the Destruction Order has been properly made.
Therefore, the correct and preferable decision is that the Council’s decision to destroy the seized regulated dog, Porcha is set aside and that the grounds for a Destruction Order are not met.
What are the appropriate Orders?
The appropriate Orders are:
1. The decision of the Brisbane City Council dated 1 May 2014 and 26 May 2014 to issue a Destruction Order in respect of ‘Porcha’ is set aside; and
2. The Tribunal substitutes its own decision that the grounds for a destruction order are not met.
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