O'Brien v Gladstone Regional Council - [2014] QCAT 618

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
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 20(1), 20(2) and 24

Van Cuylenburg v Tablelands Regional Council [2012] QCATA 60
Brigenshaw v Brigenshaw (1938) CLR 336
Lee v Brisbane City Council (No 2) [2012] QCATA 64

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…

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: [2014] QCAT 618
Decision Date: 28 November 2014

CaseChat Overview and Summary

In the case of O'Brien v Gladstone Regional Council, the plaintiff challenged the council's decision to declare their dog, a Great Dane named Boof, as a dangerous dog under the Animal Management (Cats and Dogs) Act 2008 (Qld). The dispute arose from an incident where Boof allegedly attacked a person, leading to the council's regulatory action. The matter was heard in the Queensland Civil and Administrative Tribunal (QCAT).

The legal issues before the Tribunal centred on whether the dog indeed seriously attacked the person and if the council's declaration was correctly made under the relevant legislation. Specifically, the Tribunal had to determine if the council properly exercised its statutory powers and if the declaration was in accordance with the statutory provisions and principles of natural justice.

The Tribunal examined the evidence and found that the council's decision to declare Boof as a dangerous dog was based on sufficient evidence. The Tribunal concluded that the attack was serious enough to warrant the regulatory action and that the council had adhered to the statutory requirements. The Tribunal also found that the principles of natural justice were upheld in the council's decision-making process. Consequently, the Tribunal confirmed the council's decision.

The final orders of the Tribunal were to confirm the Gladstone Regional Council's decision to regulate Boof as a declared dangerous dog. The Tribunal found that the council had correctly applied the relevant statutory provisions and that the declaration was justified based on the evidence presented.

Orders

Orders of the court

1. The decision of the Gladstone Regional Council regulating a Great Dane named Boof as a declared dangerous dog is confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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