Piperides v Brisbane City Council
[2025] QCAT 87
•20 February 2025
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Piperides v Brisbane City Council [2025] QCAT 87
PARTIES:
LUCAS PIPERIDES
(Applicant)v
BRISBANE CITY COUNCIL
(respondent)APPLICATION NO:
GAR030-24
MATTER TYPE:
General administrative review matters
DELIVERED ON:
20 February 2025
HEARING DATES:
1 February 2025
HEARD AT:
Brisbane
DECISION OF:
Member Roney KC
ORDERS:
The decision of the Respondent Council made on 20 October 2023 to issue a destruction order is upheld and the application for review is dismissed.
CATCHWORDS:
GENERAL ADMINISTRATIVE REVIEW – DOG DESTRUCTION ORDERS –– where history of non-compliance with requirements of declaration – where dog seized – whether discretion to issue destruction order in respect of dog should be exercised – where the dog had been declared as a dangerous dog – where dog repeatedly not kept in enclosure, and allowed into the street to roam freely – discretionary considerations as to whether to make an order to destroy (or not destroy) the dog – effective management of regulated dogs – whether a dog constitutes, or is likely to constitute, a threat to the safety of other animals, by attacking them or causing fear, to the extent that the threat may only be satisfactorily dealt with by the destruction of the dog
Animal Management (Cats and Dogs) Act2008 (Qld), s 3, s 4, s 59, s 97, s 118, s 125, s 127, s 131
Queensland Civil and Administrative Tribunal Act2009 (Qld), s 19, s 20, s 21, s 24
Balens v Moreton Bay Regional Council [2018] QCAT 297
Bradshaw v Moreton Bay Regional Council [2017] QCATA 139
Cutbush v Scenic Rim Regional Council [2019] QCAT 80
Cutbush v Scenic Rim Regional Council (No 2) [2019] QCATA 167
Mitchell v Gympie Regional Council [2020] QCATA 19
Nguyen v Gold Coast City Council Animal Management [2017] QCATA 121Thomas v Ipswich City Council [2015] QCATA 97
APPEARANCES & REPRESENTATION:
Applicant:
T Christie, solicitor
Respondent:
J Crane, solicitor
REASONS FOR DECISION
The Applicant Lucas Piperides is the registered owner of two dogs named ‘Biggie Smalls’ and ‘Nixon’. Biggie Smalls was declared to be a ‘dangerous dog’ under the Animal Management (Cats and Dogs) Act2008 (Qld) (‘AM Act’) by the Respondent Council on 21 June 2023. Hence since then Biggie Smalls has been declared a regulated (dangerous) dog. He was seized on 8 October 2023 and held by the respondent since then.
Biggie Smalls is described as an Alaskan Malamute Cross. The Applicant took ownership of Biggie Smalls in or around November 2017. He was a rescue dog. The Applicant gave evidence that the dog had been abused in some way before he took ownership. Nixon, a male Bull Terrier, was also a rescue dog.
On 22 November 2022, Biggie Smalls and Nixon entered a neighbour’s property in Balmoral where Biggie Smalls attacked a cat named ‘Georgie’. That attack led to the declaration that Biggie Smalls was a regulated (dangerous) dog.
Then less than three months after the declaration took effect, on 8 October 2023, Biggie Smalls and the Applicant’s other dog Nixon entered another person’s property on Grassdale Road, Gumdale around lunch time and attacked their dog Sodapop, which was tied up on the front veranda of its owner’s property. Biggie Smalls was identified as the dog which had attacked the dog Sodapop around the neck, where it sustained a serious injury.
On 8 October 2023 both of the Applicant’s dogs were impounded pursuant to section 125 of the AM Act and Biggie Smalls has remained impounded since then. Nixon was returned to the Applicant. An infringement notice was issued to the Applicant in respect to Nixon wandering at large on 8 October 2023.
On 20 October 2023, Council issued the Applicant with a destruction order (regulated dog) in respect to Biggie Smalls.
The Applicant has applied to the Tribunal for external review of the decision to make the destruction order.
The provisions of the Animal Management (Cats and Dogs) Act 2008 (Qld) and the jurisdiction of QCAT
Section 127 of the AM Act, which applies to seized dogs, provides for destruction of regulated dogs, in various circumstances, which may be summarised as follows:
(a)an authorised person may immediately destroy a dog if the person reasonably believes the dog is dangerous and the person can not control it, or an owner of the dog has asked a person to destroy it.
(b)an authorised person may destroy a dog after three days after the seizure if the dog has no registered owner and no known responsible person for it.
(c)an authorised person may make a destruction order giving 14 days’ notice, and destroy the dog if no application for internal review is made, or destroy the dog if an internal review is ended and no external review is made, or if an external review is ended.
Section 97 requires an owner or person responsible for a declared dangerous dog to ensure that permit conditions as provided for in Schedule 1 are adhered to. The conditions include enclosure requirements; implantation with a PPID and wearing an identifying tag of a specified type; for a dangerous dog, muzzling and being effectively controlled if not at its registered address; and signage.
Section 125 sets out circumstances in which dogs can be seized by Council. Under s 127, if a regulated dog cannot be controlled it may be immediately destroyed. It also provides for a destruction order to be made. AM Act s 125(1)(a) provides for seizure if there is a reasonable belief the dog has attacked, threatened to attack or acted in a way causing fear to a person or animal, or is (or may be) a risk to community health and safety, and under s 125(1)(c), for a regulated dog a compliance notice has not been complied with.
The source of power to make the original decision to destroy the dogs is in s 127 of the AM Act, headed “power to destroy seized regulated dog”.
The purpose of the Act is stated to be to:
(a)provide for the effective management of regulated dogs: s 3(c);
(b)promote the responsible ownership of dogs: s 3(d);
(c)be primarily achieved through by:
(i) imposing obligations on regulated dog owners: s (4)(g);
(ii) imposing obligations on persons to ensure dogs do not attack or cause fear: s (4)(m);
(iii) prohibiting anyone from allowing or encouraging a dog to attack or cause fear to people or other animals: s (4)(n).
Chapter 4 of the Act concerns “regulated dogs”, the purpose of which it is stated is to:
(a)protect the community from damage or injury, or risk of damage or injury, from particular types of dogs called ‘regulated dogs’: s 59(1)(a); and
(b)ensure the dogs are:
(i) not a risk to community health or safety; and
(ii) “controlled and kept in a way consistent with community expectations and the rights of individuals”: s 59(1)(b)(ii).
Section 59(2) sets out how the purposes of Chapter 4 are to be achieved primarily by:
(a)providing for local governments to declare dogs to be dangerous dogs, menacing dogs and restricted dogs;
(b)providing for the compulsory desexing of declared dangerous dogs and restricted dogs;
(c)providing for identification of dogs as regulated dogs;
(d)providing for permits for restricted dogs;
(e)imposing conditions on keeping, and requirements for the control of, regulated dogs;
(f)allowing authorised persons to seize or destroy dogs in particular circumstances;
(g)providing for local governments to administer, and be responsible for, the matters mentioned in paragraphs (a) to (f).
By s 60 a “regulated dog” is a declared dangerous dog, declared menacing dog or a restricted dog. In this case Holly is regulated as a dangerous dog and Reuben, originally regulated as dangerous, is now a regulated menacing dog.
Part 4 of Chapter 4 deals with “regulated dog declarations”. The AM Act[1] empowers a local government to declare a particular dog a dangerous dog 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]The Act, s 89(1).
[2]Ibid, s 89(2)(a).
[3]Ibid, s 89(2)(b).
The requirements[4] in regard to a dog which is subject to a dangerous dog declaration are as follows:
(a)An owner must ensure the relevant dog is desexed within three months;
(b)A relevant dog must be implanted with a PPID and must, at all times, wear a collar with attached identification tag;
(c)A relevant dog must not be in place that is not the relevant place for the dog 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;
(d)An enclosure for a relevant dog must be maintained at or on the relevant place for the dog and the dog must, unless there is a reasonable excuse, be usually kept in the enclosure (there is also an extensive list of requirements set out for the enclosure in the Act and its regulations);
(e)A sign, supplied by the Council, must be placed at or near each entrance to the relevant place notifying the public that a relevant dog is kept at the place;
(f)A relevant dog must not be kept at a place other the relevant place for the dog; and
(g)If a relevant person changes residential address, the person must give the Council notice of the person’s new residential address within seven days.
[4]Ibid, s 70.
The obligation at s 94 of the Act mandates that the local government must make a regulated dog declaration if after considering written representations the local government is still satisfied that that the relevant ground under s 89 still exists. Relevantly:
(2) A dangerous dog declaration may be made for a dog only if the dog—
(a)has seriously attacked, or acted in a way that caused fear to, a person or another animal; or
(b)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.
A serious attack means to attack in a way causing bodily harm, grievous bodily harm or death.[5]
[5]Ibid, s 89(7).
Bodily harm is defined pursuant to Schedule 1 of the Criminal Code. Relevantly:
bodily harm means—
any bodily injury which interferes with health or comfort.
The owner of a regulated dog must ensure that each permit condition imposed in relation to the dog is complied with: s 97(1). Chapter 5 of the Act concerns “investigation, monitoring and enforcement.”
As I have mentioned already, section 127 of the Act confers a power to destroy a seized regulated dog.
A regulated dog that has been seized may be immediately destroyed by an authorised person if the person reasonably believes the dog is dangerous and the person cannot control it or an owner of the dog has asked the person to destroy it: s 127(2).
A regulated dog that has been seized may be destroyed within three days after the seizure, in certain circumstances, such as, the dog not having a registered owner, or the owner is not known: s 127(3).
Where there is a registered owner of the dog, the authorised person may make an order (a destruction order) stating it is proposed to destroy the dog within 14 days after the order is served: s 127(4).
The destruction order together with an information notice must be served on the registered owner of the dog: s 127(5).
If a destruction order is made for the dog, the person may destroy the dog within 14 days after the order is served if there is no application for an internal review of the original destruction order: s 127(6).
2024 Amendments to the AM Act
The AM Act was substantially amended by virtue of the Agriculture and Fisheries and Other Legislation Amendment Act 2024. The amendments commenced in two stages; being 31 July 2024 and 28 August 2024. The latter involving amendments to Chapter 4 which deals with regulated dogs. Chapter 10, Part 6 of the AM Act (as amended on 24 August 2024) contains transitional provisions.
Section 238 now states that:
238 Destruction orders for particular dogs
(1)New section 127AA applies only in relation to a dog seized, under section 125 or a warrant, after the commencement.
(2)Former section 127 continues to apply in relation to a dog seized, under section 125 or a warrant, before the commencement as if the amendment Act had not been enacted.
It is common ground that section 127 of the AM Act as it was at the time 'Biggie Smalls' was seized on 8 October 2023 applies in respect to this external review. Were it otherwise there would be no right of review since that would have been the effect of the amendments because the dog was a regulated dog at the time of the incident that led to the destruction order.
Review of the decision made under s. 127 of the AM Act by QCAT
On a review of the decision made under s 127 of the AM Act QCAT is required to hear and decide the review by way of a fresh hearing on the merits to produce the correct and preferable decision: ss 19; 20(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
By s 28(3) of the QCAT Act, the Tribunal:
(a) must observe the rules of natural justice;
(b) is not bound by the rules of evidence, or any practices or procedures applying to courts of record, other than to the extent QCAT adopts the rules, practices or procedures;
(c) may inform itself in any way it considers appropriate;
(d) must act with as little formality and technicality and with as much speed as the requirements of this Act, an enabling Act or the rules and a proper consideration of the matters before the tribunal permit; and
(e) must ensure, so far as is practicable, that all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts.
By s 24(1) of the QCAT Act, QCAT may confirm or amend the decision, or set aside the decision and substitute its own decision.
When reviewing a destruction order the Tribunal is required to undertake extensive enquiry before exercising its discretion under section 127(4) of the Act.[6]
[6]Bradshaw v Moreton Bay Regional Council [2017] QCATA 139.
The standard of proof required for findings of fact by the Tribunal is that I must be ‘comfortably satisfied’ having regard to the nature and consequence of the facts to be proved.[7]
[7]Briginshaw v Briginshaw (1938) 60 CLR 336.
In deciding this matter, the Tribunal must have regard to the public interest in deciding whether to set aside the destruction order.
In Thomas v Ipswich City Council [2015] QCATA 97 (‘Thomas’) some, but little guidance was given as to how the discretion to make an order to destroy (or not destroy) a dog should be exercised. The legislative intent should inform how the discretion was exercised.
Relevantly, at [16] it was held that:
In the absence of any specific criteria, the legislative intent must be ascertained from the legislative scheme. Section 3 provides that the purposes of the AM Act include providing for effective management of regulated dogs.[68] Section 4 specifies how the purposes are primarily to be achieved. These means include imposing obligations on regulated dog owners; appointing officers to monitor compliance with the AM Act; and imposing obligations on some persons to ensure dogs do not attack or cause fear. Section 59 sets out that the purposes of ‘Chapter 4 Regulated Dogs’ include protecting the community from damage or injury, or risk of damage or injury, from regulated dogs;[69] ensuring that regulated dogs are not a risk to community health and safety;[70] and ensuring regulated dogs are kept in a way consistent with community expectations and the rights of individuals.
The decision in Thomas is often relied upon in support of the proposition that a destruction order is a last resort and that it is generally only where the mechanisms in the Act for management fail, or are ineffective, that it is appropriate for destruction to occur.
Later in Thomas at [18], it was said that:
It is clear that the AM Act is primarily directed towards the effective management and responsible ownership of dogs and that the destruction of a dog is a ‘last resort.’ It is generally where the mechanisms in the Act for management fail, or are ineffective, that destruction arises. The essential question is whether the dog constitutes, or is likely to constitute, a threat to the safety of other animals or to people, by attacking them or causing fear, to the extent that the threat may only be satisfactorily dealt with by the destruction of the dog.
(My emphasis)
That statement in Thomas was adopted in Bradshaw v Moreton Bay Regional Council [2017] QCATA 139 (‘Bradshaw’) at [47].
The relevant test to be applied was also discussed in Bradshaw which relevantly held:
The general discretion under s 127(4) to order that an animal be destroyed is not limited to a consideration of the seriousness of the attack and the risk of another serious injury occurring by the dog giving rise to seizure. As determined in Thomas’s case, the question, and the exercise of discretion that follows, is to be based on whether the dog constitutes, or is likely to constitute, a threat to the safety of other animals or to people, by attacking them or causing fear, to the extent that the threat may only be satisfactorily dealt with by the destruction of the dog.
In Bradshaw, at [39], the Appeal Tribunal comprising Senior Member Browne and Member Howe correctly observed that it is a ‘serious matter’ to order the destruction of a family pet. The Appeal Tribunal correctly observed that there are no express criteria under the AM Act to guide the exercise of the discretion to make a destruction order and that the Member whose decision was under appeal had regard in his reasons to other provisions, including the objects of the Act. The Appeal Tribunal held that the learned Member correctly observed that community safety is a key issue in exercising the discretion along with, amongst other things, the nature of the attack, the behavioural aspects of the dog, the exposure of the community to risk of injury including arrangements for keeping of the dog, and the likelihood of persons responsible for the dog taking proper steps to minimise risk to the community. The Appeal Tribunal held that the learned Member correctly observed that the AM Act does not contemplate that every dog that attacked and caused injury is to be destroyed. The Appeal Tribunal held that the learned Member had correctly said that the decision-maker has a discretion whether or not to make a destruction order.
As I have noted, some in some decisions of the Tribunal the view has been expressed that the destruction of a dog should be a “last resort”. The Tribunal in some cases has not applied the “last resort” test.
In Mitchell v Gympie Regional Council [2020] QCATA 19, Senior Member Aughterson and Member Cranwell stated:
[17] In exercising its discretion as to whether to destroy a dog, it seems to us that the correct approach is to start by a consideration of the purposes set out in s 59. These purposes include the protection of the community from damage or injury and ensuring that dogs are not a risk to community safety.
[19] Inevitably it is a balancing exercise as to whether community safety can be achieved through the conditions and requirements imposed for a regulated dog, or whether destruction of the dog is indicated in a particular case. The destruction of a dog is neither a first resort or a last resort, but one of the options available for achieving community safety.
In Cutbush v Scenic Rim Regional Council [2019] QCAT 80, Member Gordon stated:
[171] The difficulty with the 'last resort' test and the 'the threat posed by the dog can only satisfactorily be dealt with by its destruction' test plainly stated, is that they appear to tip the merits of such an argument in favour of the owner by suggesting that the owner ought in every case be given an opportunity to demonstrate they can control the dog as a dangerous dog.
[182] It is also notable that when disposing of the appeals, neither Thomas nor Bradshaw applied either the 'last resort' test or the 'whether the threat posed by (the dog) can only be satisfactorily dealt with by the destruction of the dog' test in their bare forms. Instead, in both of those appeals there was a consideration of the balance between the extent of the danger posed by the dog, having regard to the enclosure and other requirements of the dangerous dog provisions, and the likelihood of those requirements being observed by the dog's keeper or owner in the future.
On appeal, in Cutbush v Scenic Rim Regional Council (No 2) [2019] QCATA 167 (‘Cutbush (No 2)’), at [18] to [19] it was said to be appropriate to take in account the following matters in a review of a destruction order, they being matters which had been considered previously in Thomas referred to above and Nguyen v Gold Coast City Council Animal Management [2017] QCATA 121 where the Tribunal said:
[31] The essential question is whether the dog can be controlled taking into consideration the threat, or likely threat, to the safety of other animals or to people by attacking them or causing fear, posed by the dog.
[32] Determining whether a dog can be controlled will require a consideration by a decision-maker of a range of matters which might include:
(a)the relevant history of the behaviour of the dog giving rise to the consideration of the making of a destruction order;
(b)any other relevant history of the behaviour of the dog, including the circumstances giving rise to the declaration that the dog was a regulated dog;
(c)the current behaviour of the dog including whether the behaviour of the dog has been, and/or could be, modified through appropriate training;
(d)the arrangements for the dog at its place of residence including the security of any enclosure and whether any interaction by the dog with persons, including household members and other persons entering upon the property, post a threat of harm to such persons;
(e) the risk the dog poses to community health or safety including the risk of harm to people and other animals outside the place of residence of the dog;
(f)compliance by the owner of the dog with any permit conditions imposed as a result of the dog being declared a regulated dog;
(g)whether the owner of the dog demonstrates insight into and understanding of the dog's behaviour and has acted appropriately to mitigate any risk posed by the dog to people or animals;
(h)the rights of individuals including the owner of the dog.
[33] The decision-maker must also take into account the purposes of the Act generally, the purpose of Chapter 4 specifically and how the Act states those purposes are to be achieved. As the appeal tribunal said in Thomas any decision must be made in the context of the legislative scheme, and specifically Chapter 4 of the AM Act in which the protection of the community is clearly given a higher priority than the individual rights of dog owners.
Neither party to this application submitted that the destruction of a dog should be a “last resort” of that such a test should be applied here.
I intend to adopt the approach described in Cutbush (No 2). All other issues aside, I am specifically required to consider whether to exercise the broad discretion in s 127(4) whether to order that an animal be destroyed. I also have regard to s 3, s 4, s 97, s 125, and Schedule 1 of the Act.
Regulatory history of the dog
On 10 March 2019, a complaint was lodged with the Council by a member of the public, alleging that Biggie Smalls had followed them to their residence from Keith Street, Bulimba. Consequently, Biggie Smalls was impounded. On 24 April 2019, an infringement notice was issued to the Applicant in relation to this incident.
Four months later, on 11 July 2019, after complaints concerning off-leash dogs at Merry Street Park, Bulimba, a Council officer observed the Applicant releasing two dogs from their leashes. Upon engagement by the officer, the Applicant confirmed that the dogs in question were identified as Biggie Smalls and Nixon. No enforcement measures were taken at that time; however, the Applicant was provided with educational information regarding the matter, and his details were recorded. The Applicant, in his affidavit, does not contest that this incident occurred although he seeks to explain it away[8] as being something other dog owners did, or mentioning that he was president of the sporting club whose oval they were on and that he took them there often as a result.
[8]Affidavit of Lucas Piperides sworn 5 April 2024, paragraphs 7-11.
On 8 January 2020, a formal complaint was lodged concerning a dog repeatedly escaping from the Applicant’s then residence located at 67 Quay Street, Bulimba. In response, educational materials and warning infringement notices were issued to the Applicant. Subsequently, on 7 April 2020, Council officers conducted an inspection of the property and verified that the fencing was compliant at that time. In his affidavit, the Applicant acknowledges he had been contacted by a woman to retrieve his dogs on one occasion during this period, attributing the incident to a meter reader allowing the dogs to escape and leaving a note to say so.[9]
[9]Affidavit of Lucas Piperides sworn 5 April 2024, paragraphs 12-15.
Council officers made enquiries through the local vet, Bulimba Vet Surgery, which revealed that between March 2019 and March 2021 both Biggy Smalls and Nixon had, on multiple occasions, been handed in to the vet after being found by members of the public outside of their property. The Applicant told Officer Spencer on 4 May 2023[10] that his dogs had got out half a dozen times because of the builders opening the gate to his yard.
[10]Council bundle page 180 – Audio recording between Lucas Piperides and Daniel Spencer on 4/05/23.
The evidence establishes that the dogs escaped three to four times whilst they were left at Quay Street, which was a rental property, and six times from another property at Taylor Street.
The recent past and current conduct and demeanour of the dog
On 22 November 2022, the Applicant’s dogs, Biggy Smalls and Nixon, unlawfully entered a private property located in Balmoral. During this incursion, Biggy Smalls engaged in an attack upon a domestic cat, identified as ‘Georgie,’ owned by Ms Amy Yorston. Ms Yorston’s affidavit attesting to her recollection of the incident identifies Biggie Smalls as the dog responsible for the attack. At first, she thought her cat had actually died.
The Applicant, in both his affidavit and verbal communications with the council, has contested Ms Yorston’s account of events. Indeed, he has mounted a significant and repeated attack on her and her credit in relation to a number of matters to which I shall return in due course, when dealing with the lack of insight which the Applicant has shown and continues to show in relation to his management of the dogs and specifically Biggie Smalls. It is to be noted that the Applicant was not a direct witness to the attack but sought to blame the cat owner for having allowed her cat to be on the street.
Following the incident, the cat was transported to Bulimba Vet Surgery for initial medical assessment and subsequently referred to Veterinary Specialist Services at Underwood for urgent medical intervention. The necessary treatment included surgical repair of thoracic wall, abdominal wall, and diaphragmatic defects. The cat remained under intensive veterinary care for a period of ten (10) days post-surgery.
Although no formal medical opinion has been submitted to specifically identify the extent of the harm inflicted, the nature and severity of the injuries sustained were substantial and would have caused significant impairment to the cat’s health and comfort and, as such, meet the legal threshold for bodily harm. There are photographs of the injuries and they are clearly serious.
Council Officer Daniel Spencer investigated the matter and spoke to the Applicant by telephone on 2 May 2023. The Applicant stated that the dogs were at his property at 22 Taylor Street, Balmoral but that they normally reside in Brunswick Heads in NSW. However, he was travelling overseas the day of the attack, so his father was to watch the dogs. He said there was building work happening next door and the builders were accessing his property to do work on the neighbouring garage and that the builders must have left the gate open.
There is no actual evidence that any builder or any associated person left the gate open, nor even evidence that the gate was found to be open that day, or as to how the dogs got out past the builder’s men if that happened while they were going through it.
The Applicant accepted that the dogs had been escaping from his previous property at Quay Street Bulimba due to the poor fence and that he had moved to Taylor Street Balmoral to control them better, as the Quay Street address was a rental property. He said he did not accept Ms Yorston's version of events even though he was not present at the time of the attack. He collected his dogs from Ms Yorston’s property after she called him. He said he had paid her very substantial vet bills until such time that his insurance company told him not to. He explained this in his evidence before the Tribunal as being based on some assertion she had claimed on her own insurance but was somehow engaged in some inappropriate, even dishonest conduct in taking the Applicant’s money. I make no finding whatsoever that attributes any inappropriate conduct by her. She swore an affidavit as to the circumstances and was not challenged by the Applicant in cross-examination.
Ms Yorston swore, and I accept her unchallenged evidence, that she was taking out her rubbish when the dogs saw her 13-year-old cat Georgie at the front door. They then ran from the road, about five to six metres towards Georgie. Georgie ran down the side of the house and attempted to jump the fence. It was at this point that Biggie Smalls grabbed her by the throat and shook her. Ms Yorston then got Georgie out of the dog’s jaws. She then grabbed both dogs by their collars and put them into her pool area. She noted the Applicant’s contact details from their collars, and she contacted him. She also called Council.
On 21 June 2023, Council declared Biggie Smalls a regulated (dangerous) dog following the investigation in relation to the attack on Georgie. The Applicant did not seek an internal review of the declaration.
The effect of that declaration, as fully explained to the Applicant, was that an owner and persons responsible for a declared dangerous dog must ensure each permit condition imposed under sections 2 to 6 and 8 of Schedule 1 are complied with.
In summary the AM Act and its Regulation required:
(a)the implantation of a prescribed permanent identification device and the wearing of a collar with an attached identifying tag (in the form specified) at all times;
(b)a sign complying with regulations must be placed at or near each entrance to the registered place for the dog notifying the public that a relevant dog is kept at the place;
(c)the dog must usually be kept at the registered place
(d)if the dog is at its registered place, it must usually be kept in an enclosure unless there is a reasonable excuse;
(e)the enclosure must be childproof and stop the dog from escaping and be of the dimensions specified in the regulations;
(f)it must not require a person seeking entrance to the front entrance to the dwelling house to go through it;
(g)it must have a weatherproof area for a dog, for example a kennel;
(h)if the dog is in a vehicle, it must be enclosed and restrained to stop the dog or any part of the dog being outside of the enclosed part of the vehicle;
(i)if the dog is not as its registered place, it must be muzzled and under the effective control of someone who has the control of no more than one dog at the same time; and
(j)any change of address must be notified to the relevant authority within seven days.
The second attack on another pet – 8 October 2023
According to the Applicant’s affidavit, on 8 October 2023, he took Biggie Smalls and Nixon to his semi-rural property in London Road and said he secured them in a vegetable enclosure. By that he means put them inside a fenced enclosure on the property while he worked. He says he put Biggie Smalls’ muzzle on and then continued with his work. He says that whilst moving some sheet iron into the enclosure he left the gate open. Soon thereafter, he says, he realised that the dogs were not on the property and immediately began to search for them with his father.
He swore in his affidavit in 2024 that “the property is fully fenced, and I am still baffled as to how they got out”. By the time he came to give evidence before me he had a detailed explanation, he says, for what happened, which is that they had got under the fence in any of the numerous places around the site where erosion had undermined the area below the fence. That he was still “baffled” as to how they got out a year after the incident but could put forward that explanation recently presents a conundrum. He did not discover this on a recent analysis of what happened, he must have always known it, if he ever has known it. The numerous places around the site where erosion had undermined the area below must have been a matter he knew or ought to have known of if he planned on taking a declared dangerous dog there.
In relation to the use of the muzzle and the question of whether the muzzle is likely to have somehow or other been removed by the dog or fallen from its head on the day of the second major incident I have regard to the fact that there is video evidence of the Applicant and his pre-8 October 2023 technique for putting the fabric muzzle over the dog’s head. His evidence, which I accept, is that the muzzle is connected or clipped to the collar around the dog’s neck in two places. It also appears to sit carefully and closely around the dog’s muzzle, face, ears and the back of its head. In the video, it is apparent that the Applicant was prior to 8 October 2023 effective at properly putting the muzzle on. It presents a difficulty for his case that he asserts that he applied the muzzle on the day in question, since the animal did not have the muzzle on when it attacked the other dog. Neither the Applicant nor the inspectors found any muzzle, which might have been removed by the animal during its escape or anywhere it travelled prior to the attack.
Ordinarily in the face of this evidence it would be open to me to infer that the muzzle was not in fact, put on, and this is conduct, which would have been consistent with his other conduct, which was in flagrant disregard for the conditions imposed on the declared dog. Early on in the hearing I invited the Respondent's legal representative to indicate what she proposed to make by way of a submission about this, but she was not prepared to accuse the Applicant of giving false evidence about putting the muzzle on in the first place. Nor did she cross-examine him with a view to discrediting him on this issue.
Despite that her final written submissions suggested that I should find that he did not muzzle the dog that day or that if he did, he did so in a way which was inadequate to keep the muzzle on and in either case, it demonstrated disregard for his responsibilities.
The Applicant swore that there had been no example, on any other occasion, when the muzzle had come off the dog. He sought to make much of a comment by an inspector when he first put the muzzle on the dog that the dog tried to paw it off. But the fact is that it did not succeed in doing so and that it had worn it for some months preceding the incident of 8 October 2023. There is no evidence that Biggie Smalls tried to remove it in the months which followed his first being required to use it.
On balance, I find that the most likely scenario was that, in circumstances where he was prepared to take this animal to a site other than that where he lived, not properly tether it, keep it with another dog and take it there every second weekend for the three previous months as he told the inspectors he had done (effectively therefore some six times) is that he did not muzzle the dog at all that day or any other day.
If I am wrong about this, it is nevertheless clear that he contravened the conditions in taking the dog to the site untethered with an inappropriate enclosure, and did not properly put the muzzle on to ensure that it remained on, which for practical purposes constitutes a failure to muzzle the dog from the time it ceased to be muzzled.
Further the idea that he was not aware of the condition of the exterior fence around the property where he was keeping these dogs unlawfully is also unsatisfactory. It is difficult to accept that he did not know what the condition of those fences was. It is difficult to accept that he did not know that there was a risk that if the dogs could leave the inner enclosure, they would be effectively able to run free in the neighbourhood despite their violent history.
His explanation of how they escaped the inner enclosure while he was moving building material from it is also unsatisfactory. If he left the gate open after he went through it, that was clearly reckless and non-compliant with the requirement of which he was well aware: that if the dog was not as its registered place, it must be muzzled and under the effective control of someone who has the control of no more than one dog at the same time.
Even if this had been at the Applicant’s home address, the enclosure for a relevant dog must have been maintained at or on the relevant place for the dog and the dog must, unless there is a reasonable excuse, be usually kept in the enclosure. The extensive list of requirements set out for the enclosure in the Act and its regulations include that the enclosure must be childproof with a self-closing gate. This enclosure met none of these requirements.
The Applicant had been reminded of the permit conditions on several occasions before and after the dog was declared dangerous, the last reminder occurring only three weeks before the second attack. On 2 May 2023 Officer Spencer spoke with the Applicant by phone about the potential declaration. During this conversation Officer Spencer advised the Applicant of the restrictions on taking Biggie Smalls off the property which the Applicant acknowledged. On 4 May 2023 Officer Spencer attended the Applicant’s address and conducted an inspection in relation to the requirements that would be needed at the property to comply with the forthcoming declaration. During this conversation, Officer Spencer advised the Applicant of the restrictions that applied to the dog if the dog was to be off the property, which he acknowledged. Then on 23 May 2023 Officer Spencer provided Mr Piperides with an update in relation to the declaration. During that conversation Officer Spencer said that the immediate requirement, once he was given the proposed declaration notice, was that the dog needed to be muzzled and, on a lead, if off the property, which Mr Piperides acknowledged. On 23 May 2023 the Applicant was given a section 90 Proposed Declaration Notice which set out the permit conditions in full. On 21 June 2023 the Applicant was given a section 95 Information Notice which set out the permit conditions in full. On 18 September 2023 Officer Daniel Spencer attended the Applicant’s address to check compliance with the requirements of the declaration such as the enclosure, fencing, sign, muzzle, and collar. Officer Spencer reminded him of his obligations pursuant to the declaration, specifically the requirement to only have one dog under his control if he wanted to take Biggie Smalls for a walk.
Hence, he was perfectly aware that if the dog was away from his residence, it could not be present with another dog and had to be tethered. He did neither of those things on the six or so times when, on his own evidence, he took the dogs to Gumdale, the non-registered address for Biggie Smalls. He offered no explanation for this irresponsible behaviour. It must have been intentional and he must have known that it was non-compliant conduct. He must have known of the serious significance of his dog having been declared dangerous, but for practical purposes simply disregarded his responsibilities in that regard. The outcome was serious damage to another innocent animal tied up on someone else’s property.
For the Applicant it is broadly submitted that I should consider the circumstances of this second event, the reasonable and genuine actions taken by the Applicant in complying with the keeping conditions, the reason why Biggie Smalls was declared in the first place, the Applicant’s limited involvement into how Biggie Smalls exited his property on that occasion and overwhelmingly, the Applicant's insight and responsibility shown.
I reject the contention that he took “reasonable and genuine actions” in complying with the keeping conditions. The Applicant’s evidence was that he had put Biggie Smalls in what he described as a “vegetable enclosure” but that he was moving in and out of the enclosure. Biggie Smalls took the opportunity to escape when the Applicant was not looking. Where he went so as to be unable to see the dogs escape is not apparent. He accepts that he left the gate open when he went to get some sheeting to bring into the enclosure. Why he did not close it until he needed to walk back through it is not explained. On any view of the evidence, he was not looking out for the dogs when they escaped. He did not see them leave and had to go searching for them in the neighbourhood for some considerable time.
The Applicant swears that the events of 8 October 2023 were “entirely isolated and unforeseeable”. In my view they were neither entirely isolated or unforeseeable.
I am not satisfied that the Applicant would comply with the permit conditions if given a further opportunity to do so in relation to this dog.
Having the dog under effective control required Biggie Smalls to either be held by an adult on a lead or for an adult to have appropriately tethered the dog to an object fixed to a place from which the object cannot be moved by the dog and to be continually supervising the dog. The Applicant did neither of these things. Further, he had two dogs in his care, when the permit conditions mandated that he have no more than one dog if the regulated dog was not at its relevant place.
For the Applicant it was submitted that Biggie Smalls has also shown an ability to interact safely with other dogs at local parks. That fact does not mean that he has a history of interacting safely with other dogs or cats, and the two serious incidents that I have described demonstrate that. I reject those contentions as unsupported by the objective evidence. While it is apparent that he is apparently obedient with people, given his past behaviour, he remains a danger to other animals, particularly when unaccompanied or unsupervised and controlled.
For the Applicant it was submitted that arrangements in place at his usual residence are entirely compliant. True though that may be, he was not kept there at all times and when he was kept there, he was not kept in a compliant way.
The Applicant submitted that the most significant basis for consideration that it can be fairly accepted that Biggie Smalls can be controlled is because of his owner, the Applicant himself. It is submitted that the Applicant has done everything reasonably necessary and expected of him to demonstrate responsible animal management and that he has shown a willingness to comply with the keeping conditions and that whilst it is accepted that there was an “isolated unforeseen failure of these conditions”, it was “a very unfortunate set of circumstances giving rise to that”. I reject those contentions.
The Applicant submitted that he has demonstrated insight, ownership, and accountability. I reject that contention. I have already dealt with his attempts to attribute blame and fault to others. In relation to the second attack on the dog Sodapop, while he does not dispute what occurred, the Applicant downplays the nature of the attack in that he says it was “not sustained and was over quite quickly” without acknowledging that this was only a result of the intervention of its owner and his son. If they were not present the outcome may well have been fatal.
The Applicant submitted that it was unusual for Biggie Smalls not to be contained within this primary residence enclosure. He says the secondary property has now been sold so the keeping conditions can be managed by having the dog returned to the primary residence with a compliant enclosure. The evidence does not show that it was unusual for Biggie Smalls not to be contained within this primary residence enclosure. It shows that when it suited him, the Applicant would take the dogs to at least one primary residence enclosure which left them untethered and unsupervised. Merely that he has sold that property does not persuade me that he would keep the dog only at the primary residence within a compliant enclosure. It is to be noted that it was from this residence that the first attack was initiated. His evidence is that he travels extensively due to the demands of his profession in the landscaping field. In his absence the two dogs are taken care of by his sister and father. So, he would be often not there to discharge his responsibilities.
After considering the relevant factors as I have set them out above and as discussed in the decision in Cutbush(No 2), I find as follows.
First Biggie Smalls seriously attacked another animal on 22 November 2022 and 8 October 2023.
The first attack on the cat Georgie was a vicious and sustained attack on a defenceless cat which was on its own property. The attack only ended because of Ms Yorston’s intervention. In an email to the Applicant on 24 November 2022, Ms Yorston described the incident as being “terrifying” and stated that she was “profoundly traumatised” by the incident. Against that, the Applicant seeks to attack her truthfulness, honesty and integrity. Despite not being present for the attack, the Applicant sought to downplay the incident in his affidavit by describing it as being “not sustained” and suggesting that Ms Yorston was being untruthful. The Applicant seeks to blame, in part, his father who allegedly had the dogs under his care, and builders who were working next door to his home for Biggie Smalls’ escape on this occasion. However, the Applicant does not appear to take responsibility for his dogs and his property because if there was a history of the gate being left open, the Applicant should have taken steps to ensure the dogs were contained, such as locking the gate. It is a common experience that members of the public will enter a property for a variety of reasons if gates are not locked. In those circumstances it was the duty of the Applicant to ensure the dogs could not escape if someone did so.
As for insight into his conduct on that occasion and mitigation, even in his dealings with the owner of the injured cat he did not ultimately take responsibility for his conduct because although he promised her that he would meet all the expenses of the vet, which ultimately exceeded $30000, he decided that he would not meet that undertaking because of what he says the insurance company told him to do. This was not an adequate explanation. That he thought that promising her this would mean she would not make a complaint to the Council, and that she ultimately did, did not justify his failing to meet his promise to her, the result of which was that she had to engage solicitors to pursue the matter against him.
To demonstrate that lack of insight further he swore that in hindsight, he is of the view that had he challenged the decision to have him regulated, “to the extent that the cat was wandering and not under the effective control of its owner, this could have been a mitigating factor in decision to regulate.” This is fanciful thinking.
The attack on 22 November 2022 resulted in Biggie Smalls being regulated as a dangerous dog. The attack on 8 October 2023 resulted in the destruction order. On each occasion, the attacks were unprovoked and occurred after Biggie Smalls had escaped and was wandering at large without being under effective control.
Secondly, I consider the evidence of the eye witnesses: each witness consistently described Biggie Smalls as being the aggressor and attacking the cat, and the dog Sodapop, around the neck which resulted in wounds that required significant and very costly veterinary treatment. Both attacks occurred in the space of a year or so, the last when the destruction order was made. The second attack occurred only three and a half months after Biggie Smalls was regulated as a dangerous dog, when the Applicant ought to have been hyper-vigilant in the way he managed the dog, but he was far from vigilant.
The dog poses a serious risk while in the ownership and control of the Applicant to community health or safety including the risk of harm to other animals outside the place of residence of the dog.
I consider there to have been serious and repeated non-compliance by the owner of the dog with the permit conditions imposed as a result of the dog being declared a regulated dog, and those are, in my view, unlikely to have been the only non-compliances. They are the ones we know of and they are serious.
I consider that the Applicant demonstrates little, if any, insight into and understanding of the dog’s behaviour and has not acted appropriately to mitigate any risk posed by the dog to other animals. In my view the Applicant cannot be relied on in the future to do so.
I have had regard to all the evidence, as well as the submissions before me, including that which I have not specifically referenced in these reasons.
Accepting that the exercise of discretion which follows is to be based on whether the dogs constitute, or are likely to constitute, a threat to the safety of other animals by attacking them or causing fear, to the extent that the threat may only be satisfactorily dealt with by the destruction of the dog, I consider that at present the threat can only be satisfactorily dealt with by the destruction of the dog, and that there are no responsible alternatives.
Disposition
For the reasons I have set out above, I am satisfied that the discretion should be exercised to uphold the destruction order in respect of the dog as I am satisfied that at present the threat can not only be satisfactorily dealt with by the destruction of the dog, and that there are presently other alternatives.
I uphold the order of the Council for the destruction of the dog. I therefore order that the decision of the Council made on 20 October 2023, to issue destruction orders, is not set aside and the application for review is dismissed.
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