Parker v Sunshine Coast Council - [2016] QCAT 350

CITATION:

Parker v Sunshine Coast Council [2016] QCAT 350

PARTIES:	Philip Joseph Parker (Applicant)
v
Sunshine Coast Council (Respondent)

APPLICATION NUMBER:

GAR125-16

MATTER TYPE:	General administrative review matters
HEARING DATE:	26 September 2016

HEARD AT:

Maroochydore

DECISION OF:

Member Rogers

DELIVERED ON:

5 October 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

CATCHWORDS:

1. The decision by Sunshine Coast Council dated 7 July 2016 to declare Ajax a menacing dog is set aside.

ADMINISTRATIVE REVIEW – MENACING DOG DECLARATION – where dog injured another dog– whether decision to declare a regulated dog declaration is discretionary– whether an attack occurred

Animal Management (Cats and Dogs) Act 2008 (Qld) s 3 s 59 s 112(1)(a)(ii) s 125(1)(a).
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20 s 28(3)

APPEARANCES:

APPLICANT:	Mr Philip Parker
RESPONDENT:	Mr Marskel, an officer of Sunshine Coast Council

REASONS FOR DECISION

Mr Parker is the owner of a young German Shepherd male dog named Ajax. He seeks a review of the decision made by the Sunshine Coast Council on 7 July 2106 to declare Ajax a menacing dog.
This decision was based on three separate incidents attributed to Ajax which occurred on 10, 13 and 15 May 2016.
On 10 May 2016 Ms Harrison was walking her small white terrier Sunny, when she became aware of a big dog roaming free in the vicinity. The dog was wet and his hackles were up. She had been to obedience school with Sunny and knew to remain calm. She stopped and tried to put Sunny, who was on a leash, behind her. The big dog came up to her, and went to Sunny’s hindquarters. She noticed the dog had taken hold of Sunny’s leg and she stamped her foot to make it let go. Sunny was yelping. The big dog did not let go. Ms Harrison shouted for help and some workmen from a nearby building site and an elderly lady from a nearby house came to her assistance and released the dogs. The workers restrained the big dog and tied him to a fence.
Ms Harrison was shaken and crying. The neighbour offered her a glass of water but she said she wanted to get home. After she started to walk home she noticed Sunny was limping. She picked him up and felt her hand was wet from blood. She then called the Council and took Sunny to the vet.
Ms Harrison says she is now not comfortable walking Sunny alone or with her kids anywhere near this area. If she saw the dog again she would wait to avoid it. She said she had seen the big dog before but only behind its gates, she had not seen it roaming. She just wants to see the dog in an appropriate fully fenced yard.
Mr Bell, an authorised officer of the council, gave evidence that he went to the building site and released the dog. He scanned the dog for a microchip and identified the dog as Ajax. He took…

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: [2016] QCAT 350
Decision Date: 5 October 2016

CaseChat Overview and Summary

In the matter of Parker v Sunshine Coast Council, the applicant sought a review of the respondent's decision to declare his dog, Ajax, a menacing dog following an incident in which Ajax caused injury to another dog. The application was heard and determined by the Queensland Civil and Administrative Tribunal. The primary issue before the tribunal was whether the council's decision to declare Ajax a menacing dog was made in accordance with the relevant legislative provisions and whether the declaration was justified by an attack on another dog. The tribunal considered whether the decision was discretionary and if there was sufficient evidence of an attack to support the declaration.

The tribunal examined the statutory framework provided by the Animal Management (Cats and Dogs) Act 2008 and the Queensland Civil and Administrative Tribunal Act 2009. It focused on whether the council's decision was within its discretionary powers and whether the declaration was appropriately supported by the evidence. The tribunal found that the council's decision-making process was flawed, as it did not properly consider the evidence of the incident and the circumstances surrounding it. The tribunal concluded that the evidence did not sufficiently demonstrate that an attack occurred, as required by the legislation.

The tribunal set aside the council's decision, finding it was not made in accordance with the law and was not supported by the evidence. The tribunal's reasoning was based on the statutory provisions and the council's failure to properly consider the evidence and exercise its discretion appropriately. The decision was made under the authority provided by the Queensland Civil and Administrative Tribunal Act 2009. The tribunal ordered that the decision by Sunshine Coast Council dated 7 July 2016 to declare Ajax a menacing dog be set aside.

Orders

Orders of the court

1. The decision by Sunshine Coast Council dated 7 July 2016 to declare Ajax a menacing dog is set aside.

ADMINISTRATIVE REVIEW – MENACING DOG DECLARATION – where dog injured another dog– whether decision to declare a regulated dog declaration is discretionary– whether an attack occurred

Animal Management (Cats and Dogs) Act 2008 (Qld) s 3 s 59 s 112(1)(a)(ii) s 125(1)(a).

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20 s 28(3)

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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