O’Donnell v Brisbane City Council - [2024] QCAT 112

QUEENSLAND CIVIL AND

ADMINISTRATIVE TRIBUNAL

CITATION:

O’Donnell v Brisbane City Council [2024] QCAT 112

PARTIES:

THOMAS O’DONNELL

(applicant)

v

BRISBANE CITY COUNCIL

(respondent)

APPLICATION NO/S:

GAR531-21, GAR664-21

MATTER TYPE:

General administrative review matters

DELIVERED ON:

13 March 2024

HEARING DATE:

28 – 31 August 2023

HEARD AT:

Brisbane

DECISION OF:

Member Bridgman

ORDERS:

1. In the matter of GAR531-21, the stay application is dismissed.

2. In the matter of GAR664-21, the declaration of Boof as a dangerous dog is confirmed.

CATCHWORDS:

ADMINISTRATIVE TRIBUNAL – animals – dangerous dog – where dangerous dog declaration made – where no direct evidence of which of two dogs inflicted bites – where challenge to the fact of an attack on grounds of provocation – consideration of the scope of power conferred by Part 4 of the Animal Management Act – whether decision to make a dangerous dog declaration is discretionary – factors relevant to making a dangerous dog declaration if it is discretionary – where dog attack caused fear – whether propensity or ordinary character of dog relevant to dangerous dog declaration

Animal Management (Dogs and Cats) Act 2008 (Qld), s 3, s 4, s 89, Sch 1

Brisbane City Council v Roy [2020] QCATA 147

Lee v Brisbane City Council [2012] QCA 284

APPEARANCES & REPRESENTATION:

Applicant:

Mr J. Hastie of Counsel instructed by Coves & Co

Respondent:

Mr M. Thomas, City Legal

REASONS FOR DECISION

Mr Thomas O’Donnell applied for review of a decision by the Brisbane City Council to declare Mr O’Donnell’s dog, Boof, to be a dangerous dog under the Animal Management (Dogs and Cats) Act 2008 (Qld) (‘Animal Management Act’).
Mr O’Donnell also sought a stay of the decision. The two matters were heard and determined together.
The Tribunal places on record appreciation for the way the parties conducted the hearing and for providing hearing books that consolidated the filed materials; and for Coves & Co providing searchable copies of those hearing books and the transcripts.

Background

On Saturday 17 July 2021, sometime before 6.00pm, Abbey Crawford and her sister Candice Crawford were walking with their dogs, Leila and Kamura, on the grounds of St Patrick’s Church in Fortitude Valley.
Mr O’Donnell lives, and has his professional offices as a solicitor, in the Old Presbytery, a separate building on the South-West corner of the church grounds. He had been out shopping, and after returning home emerged from the dwelling to collect his goods from his car. Boof, a large American Staffordshire Terrier x Boxer dog, followed him onto the grounds of the church. Boof was off-lead and without a collar as was Mr O’Donnell’s habit when the dog was on its own home territory and not heading out of the grounds.
Kamura, a Husky x Kelpie dog, on Mr O’Donnell’s evidence, barked, and Boof followed the line of a short fence to approach Kamura on a grassed area under trees towards the North-East corner.
The two dogs met on the grassed area beyond the short fence and…

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: [2024] QCAT 112
Decision Date: 13 March 2024

CaseChat Overview and Summary

In O’Donnell v Brisbane City Council, the plaintiff sought to challenge the decision of the Brisbane City Council to declare one of their dogs as dangerous under the Animal Management (Dogs) Act 2008 (Qld). The plaintiff argued that there was insufficient evidence to identify which of the two dogs had bitten the victim, and contested the fact of the attack on the grounds of provocation. The dispute was heard in the Queensland Land Court, which was asked to determine whether the decision to declare a dog as dangerous was discretionary and, if so, what factors should be taken into account.

The court considered whether the power to make a declaration under Part 4 of the Animal Management Act was discretionary or mandatory, and if discretionary, what factors should be considered. The court also examined whether the propensity or ordinary character of the dog was relevant to the decision. The court held that the power to declare a dog as dangerous was discretionary and that the relevant factors included whether the dog had caused fear in a member of the public, the circumstances of the attack, and the dog's ordinary character. The court held that the decision to declare a dog as dangerous was not affected by the lack of direct evidence as to which dog had inflicted the bites, and that provocation was not a relevant consideration.

The court dismissed the stay application in GAR531-21 and confirmed the declaration of Boof as a dangerous dog in GAR664-21. The court found that the declaration was supported by the evidence and was not affected by the lack of direct evidence as to which dog had bitten the victim. The court held that the propensity or ordinary character of the dog was relevant to the decision and that the declaration was justified in this case. The court also held that provocation was not a relevant consideration in determining whether a declaration should be made.

The court's decision clarifies the scope of the power to make a declaration under the Animal Management Act and provides guidance to councils and dog owners on the factors that should be taken into account when making a declaration. The decision also highlights the importance of considering the ordinary character of the dog in determining whether a declaration should be made. The final orders of the court confirm the declaration of Boof as a dangerous dog and dismiss the stay application in GAR531-21.

Orders

Orders of the court

1. In the matter of GAR531-21, the stay application is dismissed.

2. In the matter of GAR664-21, the declaration of Boof as a 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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