O'Brien v Gladstone Regional Council
[2014] QCAT 618
•28 November 2014
| CITATION: | O’Brien v Gladstone Regional Council [2014] QCAT 618 |
| PARTIES: | Shelley O’Brien (Applicant) |
| v | |
| Gladstone Regional Council (Respondent) |
| APPLICATION NUMBER: | GAR283-14 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 18 November 2014 |
| HEARD AT: | Rockhampton |
| DECISION OF: | Member Beckinsale |
| DELIVERED ON: | 28 November 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the Gladstone Regional Council regulating a Great Dane named Boof as a declared dangerous dog is confirmed. |
| CATCHWORDS: | REGULATED DOG DECLARATION - declared dangerous dog - whether dog seriously attacked - whether declaration correctly made. Animal Management (Cats and Dogs) Act 2008 (Qld) ss 3, 70(1), 89(1), 89(2), 89(3), 89(7),194,195,196 and 188 Van Cuylenburg v Tablelands Regional Council [2012] QCATA 60 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Shelley O’Brien represented herself |
| RESPONDENT: | Gladstone Regional Council represented by Brooke Saunders |
REASONS FOR DECISION
Background
Mrs O’Brien is the owner of a male Great Dane named Boof.
Following an incident on 20 June 2014, involving Boof and a male Bichoodle named Ollie, the Gladstone Regional Council, on 24 July 2014, declared Boof a dangerous dog under the Animal Management (Cats and Dogs) Act 2008 (Qld) (the Act).
The Council refused to overturn that decision on internal review on 11 August 2014.
Mrs O’Brien has applied to QCAT for a review of that decision.
Legal Framework
The Act empowers a local government to declare a particular dog to be a declared dangerous dog[1] if the dog has seriously attacked, or acted in a way that caused fear to, a person or another animal[2] or may, in the opinion of an authorised person having regard to the way the dog has behaved towards a person or another animal, seriously attack, or act in a way that causes fear to, the person or animal.[3]
[1]Animal Management (Cats and Dogs) Act 2008 (Qld) s 89(1).
[2]Ibid s 89(2)(a).
[3]Ibid s 89(2)(b).
The Act says that in that section, serious attack means to attack in a way causing bodily harm[4], grievous bodily harm[5] or death.[6]
[4]Ibid Schedule 2 Dictionary “bodily harm” has the meaning given by the Criminal Code 1899 s 1 which is “bodily harm means any injury which interferes with health or comfort”.
[5]Ibid “grievous bodily harm means an injury which if left untreated would endanger or be likely to endanger life, or cause or be likely to cause permanent injury to health.”
[6]Ibid s 89(7).
The Act provides a menacing dog declaration may be made for a dog only if the above grounds exist for the dog, except that the attack was not serious.[7]
[7]Ibid s 89(3).
The making of such declarations is discretionary, with the decision maker to determine how the objects of the Act are best met.[8]
[8]Ibid s 3.
The jurisdiction of the Tribunal to review this matter is provided in section 188 of the Act with section 24 of the Queensland Civil and Administrative Act 2009 outlining what the Tribunal may do on review. The Tribunal must hear and decide the matter by way of a fresh hearing on the merits[9] to produce the correct and preferable decision.[10] The Tribunal may confirm or amend the decision, set aside the decision and substitute its own or set aside the decision and refer it back to the decision-maker.[11]
[9]Queensland Civil and Administrative Act 2009 (Qld) s 20(2).
[10]Ibid s 20(1).
[11]Ibid s 24(1).
Mrs O’Brien has indicated in her application that the decision she seeks reviewed is that of 11 August 2014, that is, the council’s decision after internal review under section 94, however, the Tribunal must not confine its consideration to the decision under that section. Part 4 of Chapter 4 provides for a single process consisting of a number of steps.[12]
[12]Van Cuylenburg v Tablelands Regional Council [2012] QCATA 60.
The regulations to the Act include provisions that the owner of a declared dangerous dog must provide specified enclosures and signage and that the dog is to be desexed (unless desexing is likely to be a serious risk to the dog’s health)[13], tagged and muzzled and under effective control when away from its residence. The annual registration fee for a regulated dog is substantial.
[13]Animal Management (Cats and Dogs) Act (2008) s 70(1).
The difference for a dog declared merely menacing is that a muzzle is not required nor desexing. The wording on signage and tagging will be different.
The standard of proof required in findings of fact by the Tribunal is that the Tribunal be “comfortably satisfied” having regard to the nature and consequence of the facts to be proved.[14]
[14]Brigenshaw v Brigenshaw (1938) 60 CLR 336.
Mrs O’Brien took issue with the qualifications of council officers to make a determination that Boof is “dangerous” suggesting a professional animal behaviourist was necessary to make that finding. The decision makers were appointed under the Local Government Act 2009 and thus authorised to make the decision. The Act legislates how a particular dog is to be declared a dangerous dog; it is not a matter for “expert opinion”.
Mrs O’Brien also took issue with the council’s procedures in investigating the incident. She alleged the council, in not providing her with full details of the information obtained regarding the incident on 20 June 2014, before she responded with her own submissions, had not afforded her natural justice. She also contended that the council did not properly take into account the material submitted by her.
The Tribunal conducts a fresh hearing on the merits and Mrs O’Brien’s dissatisfaction with the council process is not a relevant consideration.
Mrs O’Brien raised section 196 of the Act as providing a defence for any attack by Boof on the basis he was provoked by Ollie. This is an argument previously raised and dealt with on appeal.[15]
[15]Lee v Brisbane City Council (No 2) [2012] QCATA 64.
The Learned Judicial Member in that matter observed that section 196 provides a potential defence to avoid conviction under sections 194 and 195 and there is no similar provision relevant to section 89. He went on to say:
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.[16]
[16]Ibid at [30].
The matters to be addressed by this Tribunal are essentially: did Boof seriously attack Ollie; if so, how should the discretion be exercised in determining whether a regulated dog declaration should be made?
Evidence of the Attack
Mrs O’Brien disputes that Boof seriously attacked Ollie. The evidence she gave at the hearing was that she was inside her residence when she heard a lady screaming and a guest (Mrs O’Brien conducts a B and B guesthouse from her residence) called her name. She said she raced outside and saw that Boof had the other dog. They were in her yard. She got downstairs and Ollie’s owner, Anne Duncan, was yanking Boof by the tail. Mrs O’Brien says she grabbed Boof by the chain and he let go. She said Mrs Duncan was still dragging on his tail but he was not aggressive to her. She said she thought the guest, Alan Walker, may have told Mrs Duncan to let Boof go.
Mrs O’Brien went on to say that Boof weighs 65kg and the other dog was small, possibly 6-8 kg : “If it was an aggressive attack he would have killed the dog in one crunch because he is a large dog.”
Mrs O’Brien suggested Boof may have grabbed Ollie to come and play. She said Boof had owned a squeaky fluffy toy and may have mistaken Ollie for a toy. In written submissions she said she believed that “the injuries that occurred to Ollie was a result of an accident due to Boof’s size and an automatic physical response as a result of Ollie’s owner swinging off his tail screaming at him.”
Mrs O’Brien produced a letter dated 16 November 2014 from Gary Blain, a specialist dog handler. Mr Blain appeared to object to the current legislation regulating dogs in Queensland. Mrs O’Brien considers Mr Blain supports the theory that the bite to Ollie was accidental. His letter says:
The dog bite is…believed to be puncture wounds of a dog under stress with someone pulling its tail causing…Boof to grit his teeth to get away from a much larger person by walking off with a small dog in its mouth.
When asked at the hearing how had Ollie got into her yard Mrs O’Brien replied “I don’t know.” In written submissions she stated that she believed that Ollie got away from his owner and ran into her front yard and ran up to Boof “as little dogs do to big dogs.”
Mrs O’Brien produced numerous letters from people who know Boof attesting to his gentle nature and lack of aggressiveness as well as a letter dated 26 October 2014 from Deborah Kampman, an owner of Tannum & Boyne K9 Obedience School. Mrs O’Brien appears to be suggesting in her written submissions that these letters “question that an attack took place”.
As regards the injuries sustained by Ollie, Mrs O’Brien pointed out that Ollie was discharged from the veterinary surgery the next day, that the veterinary report had not described the attack as vicious and generally other witnesses had overstated the seriousness of the injuries.
Mrs O’Brien questioned why Mrs Duncan had not included in a statutory declaration made by her on 20 June 2014 the matters she included in her statement dated 23 September 2014. She objected to the council including information provided by Mr Walker without his “permission”. She took issue with the council officers recording conversations which were then included in written statements without producing and making available the recordings.
In addition to her written statements Mrs Duncan gave evidence at the hearing by phone. Her evidence was that Boof had come out of the gate of his residence as she walked past with Ollie on a lead. She went to cross the road but Boof grabbed Ollie around his neck. She was holding the lead but Boof dragged Ollie out of his collar and into the yard of Mrs O’Brien. The first person on the scene to help was a man staying at Mrs O’Brien’s B & B Mr Walker. Then Mrs O’Brien ran downstairs and tried to get Ollie out of Boof’s mouth. She said Mrs O’Brien yelled at her to pull Boof’s tail to make him let go. Mrs Duncan said Mr Walker then drove her and Ollie to the vet.
Mrs Duncan said she had often seen Boof out of his yard. Mrs O’Brien asked her why she hadn’t previously made a complaint to the council then, and Mrs Duncan replied that Boof had never attacked before.
The council’s local laws enforcement officer Sarah Kummerow advised that Mr Walker declined to give a written statement on the basis he was a regular guest at Mrs O’Brien’s B&B and knew the dog and owner well.
Mr Walker’s verbal account was recorded by Ms Kummerow who included that in her written statement dated 25 September 2014. Mr Walker told Ms Kummerow he had been reading a paper on the verandah of the B&B when he heard Mrs Duncan yell out suddenly with urgency and he stood up just in time to see Boof lurch across to the middle of the road and grab hold of Ollie. He yelled out for Mrs O’Brien but she had already heard the commotion and they both got downstairs about the same time. Boof dragged Ollie back into the B&B yard and dragged Mrs Duncan with him as she had hold of the lead. Boof then started shaking Ollie. At some point Mrs Duncan was dragging Boof harshly by the tail. Mrs O’ Brien grabbed Boof by the muzzle and he soon let go of Ollie. Mrs O’Brien took Boof inside and Mr Walker drove Mrs Duncan and Ollie to the vet.
The council produced a letter from Harbour City Veterinary Surgery written by vet Chris Dahl. The letter is not dated but a date stamp indicates the council received the letter 3 July 2014.
The letter relevantly reports that Ollie was presented on 20 June 2014 after a dog attack:
There were numerous puncture wounds on the top of the neck and below the neck that looked like they were from the upper and lower teeth of a large dog. There were areas of skin surrounding the wounds that were pulled away from the body.
On the flank there were other puncture wounds. Ollie was also in severe shock with pale bluish gums and tongue, rapid heart rate and respiratory rate and unable to stand. After treatment with antibiotics, fluids and anti-inflammatories there were still problems with the back legs and head elevation evidence of trauma to the Central Nervous System.
Seven photographs taken by Ms Kummerow at the vet surgery of Ollie’s injuries were included in the council’s evidence.
Discussion of the Attack
Mrs O’Brien sought to cast doubt on the truthfulness of Mrs Duncan’s account and also of the evidence as gathered by the council.
I accept the statement of Ms Kummerow as an accurate version of what she was told. Why and how Mrs Duncan came to be pulling on Boof’s tail I do not consider relevant to the question of whether Boof seriously attacked Ollie. I don’t find that Mrs Duncan’s later statement contradicts her statutory declaration. The later document is a more detailed account of what occurred. Mr Walker’s recollection of the attack as related by Ms Kummerow corroborates what Mrs Duncan has said about being on the street with Ollie when Boof attacked.
The letters attesting to Boof’s nature may express surprise that he was involved in an attack but they are certainly not evidence that the attack did not occur when there are eye witnesses to the incident, one whom is independent.
I am satisfied that Boof attacked Ollie who was being walked in the street on a lead. I am satisfied that the attack was serious as Ollie suffered at the very least, bodily harm. I do not consider that Boof mistaking Ollie for a toy or merely engaging in play is relevant in determining whether a serious attack occurred. I do not find that Boof accidently injured Ollie.
Evidence to be Considered in Exercising Discretion
Mrs O’Brien submitted that Boof was purchased from a council refuge. He was and still is a very timid natured dog due to abuse by previous owners. He has a hip injury which makes it painful for him to jump. He is extremely friendly and affectionate and shares his territory with other dogs of various breeds and temperaments when they and their owners stay at the B&B which is specifically a pet friendly establishment. He has never shown any aggression towards other animals or to people, including young children of whom he is exceptionally tolerant. The incident was out of character.
Mrs O’Brien produced letters attesting to Boof’s exceptionally friendly and gentle nature from his former vet, from the next door neighbour and from sixteen guests of her B&B, including a behaviour therapist and trainer from dog training company, Bark Busters.
Mrs O’Brien submitted that a declaration that Boof is a dangerous dog will damage her B&B business, which is pet friendly so specifically encourages people to stay with their pets.
Mrs O’Brien submitted that a friend has a young son with autism who has a special connection with Boof. Mrs O’Brien produced a letter from her friend which said she visits for her son to play with Boof which settles her son when he is having issues at school.
Mrs O’Brien submitted that she was a nurse for many years and now visits a local nursing home with Boof for the benefit of the residents which she said she could not do if he were declared dangerous. She provided letters from two nursing staff of the nursing home which stated Boof has been visiting the home with Mrs O’Brien over the past year. The letters commented on Boof’s gentle nature and the pleasure residents have petting and interacting with him.
Mrs O’Brien submitted that she had Boof assessed by Tannum & Boyne K9 Obedience School and provided the letter mentioned above from owner of the school Deborah Kampman. Mrs Kampman described Boof as appearing relaxed and balanced in his own environment and in training classes he showed no aggression or body language to suggest aggression to any dogs (small, medium or large) or their handlers. Mrs Kampman said “With our experience with aggressive dogs we do not deem “Boof” as a dangerous dog.”
As discussed above the Act sets out the requirements for the declaration and it is not determined by “expert opinion.” I do consider that opinion is relevant to the exercise of discretion in making a declaration.
In her written submissions Mrs O’Brien took issue with the council not mentioning the “testimonial” from Tannum & Boyne K9 Obedience School but that letter is dated October and the council decision was made in September. On review, being a fresh hearing on the merits, the Tribunal can take the letter into account.
The Tribunal was shown photographs of Boof provided by the council as well as Mrs O’Brien which showed Boof as a very large, placid looking dog in the company of a number of people including young children touching and laying on him.
Mrs O’Brien made submissions and presented evidence to the effect that Ollie’s behaviour was the cause of the incident with Boof. She described Ollie as a very loud and aggressive dog even when on a leash. She said she had seen the dog being walked in the street, barking and rushing at other dogs. She referred to Boof being “taunted and provoked continually over time” by Ollie. When asked at the hearing how this occurred she recalled that two or three times during the past year when Ollie has been on his lead he has rushed at and barked at her through her fence when she has been in her yard and the she has heard Ollie’s continuous barking numerous times late at night.
Mrs O’Brien also related how when she had visited Mrs Duncan’s home on two occasions after the incident, Ollie was aggressive towards her and had to be restrained by his owner.
Mr Blain, the specialist dog handler, remarked in his letter that (Ollie) was never assessed for “Small Dog Syndrome”. Mrs O’Brien asked that Mr Blain give evidence by phone specifically to explain that “syndrome”. Mr Blain’s evidence in that regard was that small dogs are “bred down.” They think they are a big dog and will take on a bigger dog and get hurt. Mrs O’Brien suggested this is what has occurred with Ollie.
Mrs O’Brien has submitted that she and her husband have taken “significant measures to ensure Boof does not have the ability to leave the premises again”. She said they have installed remote control gates at the front entry of the premises, raised the front panels of the side gate, put self shutting and self locking latches on all gates “to ensure there is no egress from Boof’s back area of the property.” Further, whenever they leave the property they take Boof in a purpose built cage on their utility which Boof is unable to get out of. At night Boof is locked in an enclosure under the house which is fully enclosed and tied up.
Discussion of Exercise of Discretion
Mrs O’Brien has provided a great deal of material which is relevant in considering whether a declaration should be made.
The matters which I consider went towards the argument for not making the declaration that Boof is a dangerous dog were in particular, the measures taken to secure Boof and evidence of Boof’s temperament. There was no evidence that to date Boof had showed any aggression despite his frequent contact with other dogs and children. The implication from that is that it is not likely he will be aggressive in the future.
However I have also taken into account the serious nature of the injuries sustained by Ollie in circumstances where Ollie was being walked in public on his lead and Boof was out of his own yard. I do not accept that Ollie or his owner were “responsible” for the attack.
Mrs O’Brien has described the council’s decision to make the declaration as extremely unjustified, incorrectly targeted and heavy handed. I note the Act actually provides a council with power to seize and destroy a dog which has attacked.[17]
[17]Animal Management (Dogs and Cats) Act 2008 (Qld) ss 125, 127A.
Mrs O’Brien sought to question the credibility of council officers and witnesses to the attack rather than accept her dog had caused such damage when it was really quite clear what had occurred. To mount an argument that the attack was not serious because Boof is so large and that the injuries to Ollie occurred unintentionally shows a lack of insight as to responsibility as the owner of a very large dog. The fact that Boof is so big means it is imperative that Mrs O’Brien accepts what occurred in order to prevent a reoccurrence. It may be the case that little dogs can “get away” with more than big dogs but that is something owners need to be aware of when a large animal, in a one off incident, can do so much damage.
In these circumstances, I find that the objects of the Act to promote the responsible ownership of dogs, would best be met by a declaration that Boof is a dangerous dog. I considered whether the declaration should be that he is merely menacing but given that there was a serious attack resulting in bodily harm to Ollie I do not find that appropriate.
Orders
The decision of the Gladstone Regional Council regulating a Great Dane named Boof as a declared dangerous dog is confirmed.
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