Pye v Registrar, Domestic Animals Act 2000 (Appeal)
[2022] ACAT 102
•30 November 2022
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
PYE v REGISTRAR, DOMESTIC ANIMALS ACT 2000 (Appeal) [2022] ACAT 102
AA 12/2022 (AT 7/2022, AT 8/2022)
Catchwords: APPEAL – Registrar, Domestic Animals Act 2000 decided to cancel special licence in relation to a dangerous dog and to destroy the dog – original tribunal confirmed Registrar’s decisions – whether original tribunal was in error – nature of rehearing on appeal – whether appellant should be granted leave to provide further evidence on appeal – appeal dismissed
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 7, 10, 82
Domestic Animals Act 2000 ss 27, 36, 53B, 53C, 121, Dictionary
Industrial Relations Act 1996 (NSW) s 191
Subordinate: ACT Civil and Administrative Tribunal Rules 2020 r 91
Cases cited:Akins v National Australia Bank (1994) 34 NSWLR 155
Amer v Erikson [2019] ACAT 108
Arnot and Arnot v Commissioner of Fire and Rescue NSW [2021] NSWIRComm 1082
CCH Australia Ltd v Bowen (1998) 79 IR 206
CDJ v VAJ (No 1) [1998] HCA 67
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404
Excel Intelligent Pty Ltd v Thomson [2018] ACAT 4
Fernando v Medical Complaints Tribunal (No 2) [2003] TASSC 139
Fox v Percy [2003] HCA 22
Giusida Pty Ltd v Commissioner for ACT Revenue [2016] ACTSC 275
Hamers v South Canberra Holdings Pty Ltd ACN 606 747 602 trading as Southside Village [2021] ACAT 71
Harada v Barnes & Anor [2021] ACAT 66
He v Qin & Ors [2021] ACAT 129
Hurst-Myers v Aulich Civil Law Pty Ltd [2020] ACAT 56
Lisa Pye v The Registrar, Domestic Animals Act 2000 [unreported, 10 May 2022]
LP 202021 vCouncil of the Law Society of the ACT [2022] ACAT 80
Mansour v Dangar [2017] ACAT 49
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
Pye v Pye [2022] ACAT 91
Sarbandi v Sharif [2017] ACAT 57
Solovastru v Leonid Anderson t/as Motor Depot [2020] QCATA 131
Tam v Du [2019] ACAT 94
V v Elringtons Pty Ltd [2018] ACAT 23
List of
Texts/Papers cited: J D Heydon AC, Lexis Nexis, Cross on Evidence (at 3 August 2017)
Tribunal: President G Neate AM
Member A-M Delahunt
Date of Orders: 30 November 2022
Date of Reasons for Decision: 30 November 2022
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 12/2022
BETWEEN:
LISA PYE
ApplicantAND:
REGISTRAR, DOMESTIC ANIMALS ACT 2000
Respondent
TRIBUNAL:President G Neate AM
Member A-M Delahunt
DATE:30 November 2022
ORDER
The Tribunal orders that:
1.The appeal is dismissed.
2.Orders 1 and 3 made by the Tribunal in AT 7/2022 and AT 8/2022 on 10 May 2022 are confirmed.
………………………………..
President G Neate AM
For and on behalf of the TribunalContents
Introduction
Grounds of appeal and orders sought
Type of appeal hearing
Role of the Appeal Tribunal
Ms Pye’s concerns and current circumstances
Application for leave to provide further evidence on appeal
Further evidence – the documents
Further evidence – the law
Further evidence – some rulings of the Appeal Tribunal
Grounds of appeal considered individually
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Additional grounds of appeal
Conclusion and order
REASONS FOR DECISION
Introduction
1.In 2021 and early 2022, Lisa Pye owned two registered, desexed male Pitbull crossbreed dogs named Buddha and Tonner.
2.On 6 January 2022, the Registrar appointed under section 121 of the Domestic Animals Act 2000 (Registrar) decided:
(a)to cancel special licences allowing Ms Pye to keep the dogs, both of which a differently constituted tribunal had declared to be dangerous dogs; and
(b)to destroy Buddha after he bit a male person in an underground car park on 24 November 2021.
3.Ms Pye sought merits review of the Registrar’s decisions. Her application was heard by a Senior Member of the ACT Civil and Administrative Tribunal (the Original Tribunal). On 10 May 2022, following a hearing, the Original Tribunal ordered, in substance, that:
(a)The decision of the Registrar to cancel a special licence issued to Ms Pye for Buddha is confirmed.
(b)The decision of the Registrar to cancel a special licence issued to Ms Pye for Tonner is confirmed.
(c)The decision of the Registrar to destroy Buddha is confirmed.[1]
[1] Lisa Pye v The Registrar, Domestic Animals Act [unreported, 10 May 2022] (Pye v The Registrar)
4.Ms Pye has appealed against Orders 1 and 3 made by the Original Tribunal. As she no longer owns Tonner, there is no appeal against Order 2.
5.In support of the orders made, the Original Tribunal provided detailed findings of fact and conclusions. For the purpose of providing background to the appeal, it is appropriate to summarise those findings and conclusions.
6.In relation to the cancellation of the special licence for Buddha, the Original Tribunal was prepared to accept that Ms Pye’s inability to comply with the condition requiring the dogs to reside and be contained at a particular address was caused by circumstances beyond her control. In those circumstances, she chose not to return the dogs to the Domestic Animal Service (DAS) while she tried to secure suitable alternative accommodation. Nor did she apply to the Registrar for approval to keep the dogs at an appropriate boarding kennel. Consequently, Ms Pye was in breach of that condition of the special licence in relation to Buddha from 30 September 2021 until 26 November 2021 when he was seized. The breach of that condition justified cancellation of the special licence, irrespective of other considerations. The seriousness of Ms Pye’s breaches was compounded by other specified facts. Accordingly, the Original Tribunal was satisfied that Ms Pye “repeatedly breached the conditions of the special licenses and failed to exercise responsible dog management or control giving rise to an unacceptable risk to the safety of the public.” The Original Tribunal was also satisfied that there were grounds under sections 36(1)(b)(ii), 36(1)(b)(iv), and 36(1)(b)(v) of the Domestic Animals Act 2000 (DA Act) to cancel the special licence permitting Ms Pye to keep Buddha.[2]
[2] Pye v The Registrar at [70]-[75]
7.In relation to the decision to destroy Buddha, the Original Tribunal described the circumstances of the attack by Buddha on Mr Yipu Li as bearing out the correctness of Mr Bruno Grutzner’s behavioural assessment of Buddha in February 2021 which led him to conclude that Buddha was dangerous and unsuitable to be rehomed. The evidence in total persuaded the Original Tribunal that Buddha was more dangerous at the time of the hearing than when Mr Grutzner assessed him in February 2021. The Original Tribunal had difficulty accepting Ms Eleni Butler’s evidence that Buddha can be rehabilitated. In the Original Tribunal’s view, a decision not to destroy Buddha would result in an unacceptable risk to the safety of the public and other animals. Consequently, the Original Tribunal was satisfied that the Registrar’s decision to destroy Buddha should be confirmed.[3]
Grounds of appeal and orders sought
[3] Pye v The Registrar at [76]-[79]
8.Ms Pye lodged with the tribunal two applications for appeal, one dated 9 June 2022 and an amended application dated 23 June 2022. The first application for appeal stated that a “complete list of errors of fact or law” would be provided by 22 June 2022 as ordered by the Tribunal on 7 June 2022.
9.The amended application for appeal set out two reasons for appeal. In summary:
(a)There was a failure to afford procedural fairness, because the Original Tribunal “had difficulty accepting Ms Butler’s evidence due to the fact that Ms Butler was denied the opportunity to perform a full temperament assessment only being able to perform half of the assessment whilst Buddha was impounded at the DAS facility.” Ms Butler was denied the ability to perform the part of her assessment with the owner being present. “This being part of the reason for the decision to destroy Buddha, any question of law which formed a necessary step in reaching the conclusion of the Tribunal could be the subject matter of appeal, whether identified by the parties and the Tribunal or not. A finding of fact made in the absence of supporting evidence is an error of law.”
(b)Reference was made to section 53B(4)(b) of the DA Act.[4] The application continued, “Whether reasonable steps can be taken to reduce the risk of the dog endangering the public and other animals was not afforded due to Covid lockdown and rehabilitation & training not being an assenting service. This is now not the case, Buddha should be afforded the ability to begin rehabilitation & Training as both assessor’s believe all dogs can be rehabilitated and retrained.”
[4] Section 53B of the DA Act is quoted at [165] below
10.Ms Pye lodged submissions dated 13 July 2022 which set out in considerable detail her critique of numerous paragraphs in the Original Tribunal’s reasons for decision. As noted later, that document included, in effect, the grounds of appeal. The Registrar made submissions in response to that document. The Appeal Tribunal followed the order of the issues raised in that document in preparing reasons for decision on the appeal.
11.The types of orders sought by Ms Pye in this appeal were expressed in her application for appeal filed on 10 June 2022 as follows:
(a)Set aside decision to destroy Buddha and allow for transfer of ownership to Mr Kel Harris.
(b)Remove decisions to cancel special licences for Buddha and Tonner from the applicant.
12.In her application for appeal filed on 23 June 2022, she asked that:
(a)The Original order to destroy Buddha be set aside.
(b)The dangerous dog licence for Buddha be reinstated.
13.In an email to the tribunal dated 14 July 2022, Ms Pye listed “Orders Sought if Successful”:
1. The decision to euthanise Buddha be set aside
2. That Buddha be released on a control order or applicants Dangerous Dog Licence be varied
3. That Buddha be immediately relocated to Ms Susan Turner-Davis of Yass Pets to complete behaviour training whilst boarding at her facility.
4. Whilst Buddha is in training, Domestic Animal Services to inspect the applicant’s premises and dog enclosure for the return of Buddha
5. Upon completion of training, Buddha be returned to the applicant
6. the applicant to strictly comply with any orders set by the tribunal
7. Impound fees of Domestic Animal Services be waived
14.At the hearing on 8 August 2022, Ms Pye indicated that she was not sure of the process to achieve some of these outcomes (e.g., whether she needed to apply again for a new dangerous dog licence) and whether some of what she wanted needs to be in an order of the Appeal Tribunal. Ms Pye was also uncertain whether the Appeal Tribunal has power to make all the orders that she sought.[5]
[5] Transcript of proceedings 8 August 2022, pages 14-16
15.It is not necessary to deal with those issues at this stage. It is sufficient to note that Ms Pye wants Orders 1 and 3 set aside, and that she listed a series of events that she wished to occur if her appeal succeeds.
Type of appeal hearing
16.All appeals are creatures of statute and the features (or incidents) of appeals can vary from statute to statute.[6] Section 82(1) of the ACAT Act states:
(1) An appeal tribunal may, as the tribunal considers appropriate, deal with an appeal—
(a)as a new application; or
(b)as a review of all or part of the original decision on the application by the tribunal.
[6] See Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [29]
17.The principles to be applied when determining which form of appeal is appropriate were considered by Presidential Member Daniel in Mansour v Dangar as follows:[7]
20. … In deciding the correct approach to take, the appeal tribunal is required by the ACAT Act to adopt a procedure which is as simple, quick, inexpensive and informal as is consistent with achieving justice, and the requirements of procedural fairness.[8] Other than containing these overarching requirements, the legislation does not dictate how the choice between a new hearing or a rehearing is to be made. It is nonetheless an important procedural distinction, which may have substantive consequences.
21. For a new hearing, established principles dictate that the hearing starts afresh. Evidence may be given again, and additional evidence may be given. The appeal tribunal’s view on any question of fact or law is determinative of the issue. Any discretion to be exercised by the original tribunal is exercised anew by the appeal tribunal.
22. By contrast, for a rehearing, the appeal tribunal relies upon the evidence given to the original tribunal, supplemented by any additional evidence which the parties are given leave to adduce. The appeal tribunal’s findings on questions of law are determinative. The appeal tribunal will not lightly substitute its own findings of fact for the original tribunal’s primary findings of fact, but may be less constrained in relation to drawing inferences of fact. The appeal tribunal should not interfere with a discretionary decision unless satisfied that there has been an error in the exercise of discretion.
23. … Applications for appeal raising only questions of law or confined questions of fact are most expeditiously dealt with as a rehearing, occasionally with further evidence admitted in relation to areas of factual dispute. By contrast, where there appears to have been a real failure of process at the original hearing, such as a failure to hear both parties, the appeal might be heard as a new application. In such circumstances, this approach is often the simplest, quickest and most inexpensive way to achieve a fair and just outcome. (footnotes omitted)
[7] [2017] ACAT 49; see also Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [30]-[33]
[8] ACAT Act, section 7
18.As Presidential Member Robinson pointed out in the subsequent decision in Hamers v South Canberra Holdings Pty Ltd ACN 606 747 602 Trading as Southside Village, the usual approach of an appeal tribunal is to conduct a rehearing or review on the evidence before the original tribunal, plus any fresh evidence that, exceptionally, may be admitted. However, where there has been a failure of process during the first hearing, a new hearing may be the most appropriate means to address that.[9] For example, an appeal tribunal might have to decide whether the circumstances of a particular case lead to the conclusion that the original hearing amounted to a denial of natural justice that is of such magnitude that a de novo hearing is required to address that injustice.[10] It would be for the appellant to demonstrate an actual injustice.[11]
[9] Hamers v South Canberra Holdings Pty Ltd ACN 606 747 602 Trading as Southside Village [2021] ACAT 71 at [3]
[10]Hamers v South Canberra Holdings Pty Ltd ACN 606 747 602 Trading as Southside Village [2021] ACAT 71 at [43]
[11] Hamers v South Canberra Holdings Pty Ltd ACN 606 747 602 Trading as Southside Village [2021] ACAT 71 at [45]. See also Pye v Pye [2022] ACAT 91
19.On 24 June 2022, the tribunal made orders in relation to the hearing of this appeal. Order 8 included the statement that the appeal hearing would “proceed as a review of the original decision unless the Appeal Tribunal orders otherwise.”
20.There was no application for a hearing as a new application (or hearing de novo). Nor did the circumstances of this case warrant the unusual approach of starting afresh. Consequently, the appeal was conducted as a review (or rehearing) of the original tribunal’s decision. Later in these reasons for decision we consider whether the Appeal Tribunal should grant leave for Ms Pye to provide further evidence to support her appeal against the decision of the Original Tribunal.
Role of the Appeal Tribunal
21.Differently constituted appeal tribunals have considered judicial decisions on the nature of an appeal that is a review or rehearing, and have described an appeal tribunal’s role in a rehearing as follows:
(a)An appeal tribunal must determine whether the decision appealed against is wrong because the original tribunal fell into an error of law, made a finding of fact that is clearly wrong or exercised a discretion on a wrong principle or in a way that is clearly wrong.
(b)Ordinarily, if there has been no further evidence admitted or no relevant change in law, an appeal tribunal in entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was an error on the part of the original tribunal.
(c)The appeal tribunal will give proper allowance to the advantage of the original tribunal who saw and heard the witnesses, so that, ordinarily, facts found based on the assessment of witnesses will not lightly be overturned.
(d)The appeal tribunal is obliged to conduct a real review of the trial and the reasons of the original tribunal.
(e)In an appeal by way of rehearing, once error has been found (after making proper allowance for the advantages of the original tribunal), the appeal tribunal can substitute its own decision based on the facts and the law as they now stand.[12]
[12] See Excel Intelligent Pty Ltd v Thomson [2018] ACAT 4 at [53]; V v Elringtons Pty Ltd [2018] ACAT 23 at [23]; Harada v Barnes & Anor [2021] ACAT 66 at [8]-[10]; He v Qin & Ors [2021] ACAT 129 at [43]-[48]; LP 202021 vCouncil of the Law Society of the ACT [2022] ACAT 80 at [101]-[103]
22.In short, an appellant must show that the original tribunal committed an error of fact or law that was material to the result.[13]
[13] Tam v Du [2019] ACAT 94 at [22] citing Giusida Pty Ltd v Commissioner for ACT Revenue [2016] ACTSC 275 at [29]-[39]; Excel Intelligent Pty Ltd v Thomson [2018] ACAT 4 at [46]-[55]
23.An appellant must do more than contend that the decision of the original tribunal was wrong and that there should be a different result. A rehearing does not give an appellant the opportunity to have a second run at the target, as if the original decision had never been made, simply because the appellant is dissatisfied with the result. The onus is on an appellant to show, specifically, where the original tribunal went wrong. Normally, that requires an appellant to point to an error of fact or an error of law in the written or oral reasons for decision of the original tribunal and to explain to the appeal tribunal how that error affected the result.
24.If an appellant says that the original tribunal made an error of fact, the appellant must take the appeal tribunal to:
(a)the evidence before the original tribunal to demonstrate the error; or
(b)if the appeal tribunal gives leave for the appellant to rely on further evidence, the evidence that the appellant says demonstrates the error, and the appellant must explain what the correct finding of fact should be, based on that evidence.
25.It is not enough for an appellant to say that a different inference of fact should have been made when all the evidence is weighed in the balance. The appellant must show that a material finding of fact was clearly wrong.
Ms Pye’s concerns and current circumstances
26.Before considering whether to grant leave to Ms Pye to provide further evidence on appeal, and before considering the grounds of appeal, it is appropriate to describe the context in which Ms Pye brought the appeal.
27.First, Ms Pye has a strong attachment to Buddha, as evidenced by the considerable time and cost involved in her various applications and appeals to the tribunal over the past two years, and by some of the video evidence before the Original Tribunal. As she has noted, Ms Pye has also suffered personal difficulties, including eviction and mental health challenges. The material before the Appeal Tribunal is consistent with the observation of the Original Tribunal that Ms Pye “feels deep affection for her dogs and fears losing them.”[14]
[14] Pye v The Registrar at [60]
28.Second, Ms Pye and the Registrar have had poor communications and an adversarial relationship from at least early 2020.
29.On 6 March 2020, DAS sent Ms Pye a notice to desex Buddha. On 23 September 2020, Ms Pye applied to have Buddha remain sexually entire. On 13 October 2020, DAS noted it had received the application but had taken no action and instead, sent Ms Pye a second notice for Buddha to be desexed. A third such notice was sent on 19 January 2021.
30.On 4 February 2021, Ms Pye’s dogs were seized by DAS from her home in Bonner. Email communication between Ms Pye and DAS staff suggested that Ms Pye’s earlier application was still active. It was also noted that the dogs would be released after desexing. Ms Pye agreed to having the dogs desexed.
31.However, on 21 April 2021, after an investigation, the Deputy Registrar decided that Buddha should be destroyed. Ms Pye was incorrectly informed that she had seven days to lodge a review application with the tribunal.
32.On 20 August 2021, the tribunal set aside the decision to destroy Buddha and declared Buddha a dangerous dog.[15] On 9 September 2021, Buddha was released to Ms Pye with conditions on a Dangerous Dog Licence, including that Buddha resides at her house in Bonner and that, if he left the Bonner premises, he “must” be muzzled, kept on a leash, be wearing a dangerous dog collar, and be under the effective control of Ms Pye or another person over 18 years of age. The Dangerous Dog Licence concluded “Failure to comply with any of these conditions may result in the cancellation of the Dangerous Dog Licence, seizure of the declared dangerous dog, the issuing of infringement notices and/or possible prosecution action.”
[15] Lisa Jane Pye v The Registrar, Domestic Animals Act 2000, AT 38/2021
33.On 30 September 2021, Ms Pye was given an eviction notice. On 1 October 2021, after a hearing, a Presidential Member of the tribunal made orders to the effect that the Registrar would:
(a)consider on an urgent basis an application for Buddha to be accommodated at an appropriate boarding kennel and would undertake to notify the tribunal as soon as possible after approving that application; and
(b)consider any application for Buddha to be housed at an alternative location and would approve that application if the relevant conditions in the order of 20 August 2021 could be met.
34.The Registrar consented to interim orders being made by the tribunal to give effect to an arrangement consistent with (a) or (b).
35.On 6 October 2021, the Registrar’s legal representative wrote to Ms Pye’s brother, Mr Christopher Pye (who had permission to act as Ms Pye’s power of attorney in the proceedings), stating that Mr Pye had rejected the suggestions made at the hearing on 1 October 2021 and declared that the dogs would never be released out of Ms Pye’s sight. The letter noted that as of 6 October 2021 Ms Pye was in breach of the Dangerous Dog Licences as her two dogs were no longer kept at the premises at which the dogs must reside. Neither Mr Pye nor Ms Pye had provided the Registrar with a new address for where the dogs resided. The Registrar demanded that Ms Pye inform him of the address where Ms Pye and the dogs now resided so arrangements could be made to inspect the property to ensure that Ms Pye was complying with the conditions of the Dangerous Dog Licences. Ms Pye was given until 7 October 2021 to respond to the letter.
36.On 7 October 2021, Ms Pye advised by email that she was complying with the orders as best she could given that she was homeless and finding it difficult to secure a property with two dogs on Dangerous Dog Licences. However, she notified DAS that both dogs had been kennelled at an “appropriate facility” for the interim basis while appealing the Dangerous Dog Licences. She stated, “At this point in time we will not be disclosing the location to DAS as concerns of seizure due to the forced non-compliance with the finalisation of the separate residential dispute which has caused me to be homeless at this time. ACAT have been made fully aware of the location and compliance.” She concluded, “Further information will be provided promptly if necessary.”
37.On 8 October 2021, Ms Pye’s brother, acting on her behalf, informed the tribunal of the location of the dangerous dog at an “appropriate, professional & registered kennel”, as required by DAS conditions. He requested that DAS not be informed of the location of the boarding kennel when the ACAT advised the Registrar and the Registrar’s legal representative that Buddha was no longer at the Bonner address. The tribunal registry agreed to this request and advised that it had contacted the Registrar’s legal representative to confirm that the tribunal had received a message on behalf of Ms Pye which identified the location of Buddha’s kennel. The Tribunal did not disclose that location to the representative. The implications of this process are considered below (see [138]-[143]).
38.Although the Tribunal accepted this request, on 8 October 2021, the Registrar’s legal representative wrote to Mr Pye reiterating that Ms Pye was in breach of the orders made by the Tribunal on 20 August 2021 and advising that, in order to rectify the breaches, Ms Pye needed to complete a form to provide the current address where the dogs reside. Ms Pye was given until 2pm that day to respond to the letter and was advised that failure to do so would result in further compliance action being taken by the Registrar.
39.After Buddha was seized by DAS, and the process which led to the current appeal was commenced, DAS was unco-operative with Mr Pye’s attempts to arrange for Buddha to be assessed at DAS facilities or elsewhere. The series of events is described later (see [86]-[102]).
40.The Appeal Tribunal accepts that the DAS has difficult work to perform to ensure compliance with the DA Act and Dangerous Dog Licences, and that it was not easy to deal with the persistent and numerous requests from Ms Pye. However, although the volume of Ms Pye’s email and voice call requests to DAS could be viewed as excessive, the delayed or lack of response by DAS to some of those requests, and the occasional erroneous response, are instances of administrative failure.
41.Given the interactions summarised briefly above, the Appeal Tribunal appreciates why, as the Original Tribunal observed, Ms Pye “nurses deep-seated feelings of anger and resentment towards DAS.”[16]
[16] Pye v The Registrar at [60]
42.Third, Ms Pye advised the Appeal Tribunal that she is now in secure accommodation and can ensure that it can be made suitable to hold Buddha as a dangerous dog. She stated that her new residence has “a safe and secure backyard” with enclosed Colorbond fencing.[17]
[17] Email from Ms Pye to the tribunal and the Registrar’s representative dated 8 August 2022 paragraph (a) and penultimate paragraph
43.Ms Pye sought leave to put into evidence a letter from her landlord dated 4 July 2022 to the effect that Ms Pye’s tenancy application was approved with Buddha residing at the property. The landlord acknowledged that Buddha “is listed as a dangerous dog breed in the ACT” and stated that she had given Ms Pye permission to keep Buddha at the property, “noting the enclosed fence backyard and roller door that encloses the driveway.” Ms Pye described the document as Exhibit K in her list of further evidence.
44.Fourth, Ms Pye acknowledged that not all dogs like all other dogs and not all dogs like every person. Further, she stated that she is “now fully aware of the importance of following the conditions of” the Dangerous Dog Licence.[18]
[18] Appellant’s Response to Respondent’s Outline of Submissions, page 12
45.Ms Pye expanded on that submission, contending that the Appeal Tribunal should take into consideration the amount of time and money spent on compliance with the orders of the Dangerous Dog Licence, the difficulties she faced, and the financial and emotional support she had from friends and family in “my fight to save my dogs.”[19] She sought to provide further evidence of the amounts she spent on desexing the dogs, accommodating them at the Sonzo Veterinary Clinic and the kennels of Tara Estate Pet Boarding (Tara), and engaging Ms Eleni Butler to provide a behaviour assessment of Buddha. She described these documents as Exhibits E4 and E5 in her list of further evidence.
[19] Appellant’s Response to Respondent’s Outline of Submissions, page 12
46.As noted earlier, Ms Pye’s amended application for appeal argued that, following the period of Covid lockdown during which reasonable steps could not be taken to reduce the risk of Buddha endangering the public and other animals, Buddha should now be afforded the ability to begin rehabilitation and training.
47.Ms Pye advised that evidence is available that should satisfy the Appeal Tribunal that she is in a better position than previously to exercise responsible dog management, care, and control. With the change in ownership of Tonner, her full focus can now be directed to Buddha’s rehabilitation and training program with Ms Susan Turner-Davis.[20]
[20] Email from Ms Pye to the tribunal and the Registrar’s representative dated 8 August 2022 paragraph (j)
48.In her final written submissions, Ms Pye asked that the Appeal Tribunal give her and Buddha:
a chance now that my circumstances have changed and that I am in a better position to fully comply with any order the tribunal sees fit.
I can give 100% attention to Buddha and the conditions if given the chance now that I have my own secure property for us to reside, and Tonner is no longer having to share the same property with him.[21]
[21] Appellant’s Response to Respondent’s Outline of Submissions, page 12
49.The Registrar submitted that Ms Pye did not adduce any new evidence to prove that her circumstances had changed in that way and although she adduced evidence from her landlord regarding her change of residence, there was no evidence in relation to her capacity to comply with the requirements of a dangerous dog licence if that were to be granted by the Appeal Tribunal.[22]
[22] Respondent’s Outline of Submissions to the Appellant’s Submissions in Reply at [21(d)]
50.Without making findings of fact in relation to all of the matters raised by Ms Pye, the Appeal Tribunal proceeds on the understanding that:
(a)Ms Pye is strongly attached to Buddha;
(b)Ms Pye’s dealings with the Registrar and certain officers of DAS have been unsatisfactory and have influenced her thinking and attitude about DAS;
(c)because Ms Pye no longer owns Tonner, she could devote more time to the care and control of Buddha;
(d)the premises where Ms Pye currently resides could be used to care for Buddha; and
(e)Ms Pye has taken action, including by commencing and persisting with the appeal, to secure the return of Buddha to her.
51.Important as those matters are to Ms Pye, and despite them providing the context of her persistence with these proceedings, they cannot determine the outcome of this appeal.
52.The issue before this Appeal Tribunal is whether the Original Tribunal was in error in deciding to make Orders 1 and 3 (referred to above). It is on that basis that the Appeal Tribunal must:
(a)consider the grounds of appeal; and
(b)decide in relation to particular grounds of appeal whether to allow Ms Pye to provide further evidence (that is, evidence that was not provided to the Original Tribunal) for the purpose of the appeal.
Application for leave to provide further evidence on appeal
53.As noted earlier, Ms Pye applied for leave to provide further evidence in relation to her appeal. In order to deal with that application, the Appeal Tribunal needs to identify the nature of each of the documents and ascertain, by reference to relevant legal principles, whether leave should be granted in respect of any or all of those documents.
Further evidence – the documents
54.In support of her appeal, Ms Pye sought to rely on documents which, in part or in whole, were not before the Original Tribunal. That further evidence comprised:
(a)the transcript of proceedings before another Senior Member of the tribunal on 21 and 27 May 2022 in matter AT 39/2021;
(b)unredacted versions of certain documents that in a redacted form (e.g., with names obliterated) were before the Original Tribunal;
(c)certain documents that existed at the time of the hearing before the Original Tribunal but were not in evidence at the original hearing; and
(d)a document or documents that did not exist at the time of the original hearing, but which Ms Pye wanted to be prepared for the purpose of the hearing of the appeal.
55.Ms Pye submitted that the further evidence should be accepted on appeal on the ground that the Original Tribunal erred in relation to findings of fact and law and that, if the factual evidence had been available at the time of the Original Tribunal’s decision, the further evidence could have altered that decision. In particular, Ms Pye contended that the Original Tribunal’s reasons for decision relied heavily on assessments of Buddha by Mr Grutzner (a dog handler and dog behaviouralist) and appeared to disregard Ms Butler’s assessment “even though Ms Butler could not provide a full assessment.” Further, the Original Tribunal stated that not every breach of the conditions of the dangerous dog licence would justify cancellation of the licence.
56.The Registrar made overarching submissions in opposition to the further evidence which Ms Pye alluded to or provided to the Registrar and the Appeal Tribunal on 8 August 2022. In essence, the Registrar submitted that the Appeal Tribunal should not use the further evidence and hence should not grant leave to Ms Pye to adduce any of it.
57.For example, the Registrar opposed the admission into evidence on appeal of the 75 pages of additional documents provided by Ms Pye as Attachments to Response dated 8 August 2022. In the Registrar’s submission:
(a)none of the documents advance Ms Pye’s case;
(b)it is not clear why they were not relied on at the hearing before the Original Tribunal;
(c)some of the documents were provided at the original hearing but in a redacted version so the Original Tribunal could not make any use of them; and
(d)it is not clear why they should be accepted on appeal.[23]
Further evidence – the law
[23] Respondent’s Outline of Submissions to the Appellant’s Submissions in Reply at [24] and [26]
58.In deciding whether to admit any or all of the further evidence provided by Ms Pye, the Appeal Tribunal must apply the relevant legal principles contained in legislation and the judgments of courts and decisions of tribunals.
59.Where an appeal is conducted as a review or rehearing (rather than a hearing de novo), it proceeds on the basis of evidence before the original tribunal. An appellant is not entitled to provide further evidence without the leave of the appeal tribunal.
60.Rule 91(c) of the ACT Civil and Administrative Tribunal Rules 2020 (ACAT Rules) provides:
For an appeal within the tribunal, the appeal tribunal–
…
(c) may, if leave is granted, receive further evidence about questions of fact, either orally or in a hearing, by written statement or in another way.
61.Evidence is material which goes to establish the relevant facts. It does not include a party’s arguments, or the legal authority (cases and legislation) relied on to support those arguments. Rule 91(c) expressly limits the tribunal’s power to grant leave to receive further ‘evidence’ about questions of fact. Because this appeal is a review of the Original Tribunal’s decision, it follows that any further evidence must be about a fact or facts in dispute in the original proceedings.
62.Although the ACAT Act and the ACAT Rules do not prescribe how an appeal tribunal decides whether to grant leave to receive further evidence about questions of fact on appeal, there is a substantial body of case law to guide the Appeal Tribunal when exercising its discretionary power.
63.The principles regarding the grant of leave to introduce further evidence on appeal were summarised in Hurst-Myers v Aulich Civil Law Pty Ltd[24] where the tribunal drew on the High Court’s decision in CDJ v VAJ (No 1)[25] to say that the reception of further evidence on appeal should be “exceptional”. It noted Justice Gaudron’s view that:
… ordinarily, further evidence should not be admitted on appeal if it was available, or could reasonably have been obtained, at the time of the hearing.[26]
[24] Hurst-Myers v Aulich Civil Law Pty Ltd [2020] ACAT 56 at [11]-[30]
[25] CDJ v VAJ (No 1) [1998] HCA 67
[26] CDJ v VAJ (No 1) [1998] HCA 67 at [55]
64.The tribunal also noted the observations of Justices McHugh, Gummow and Callinan, who stated that factors such as finality, discoverability of the evidence and its likely effect on the orders made are usually relevant to whether the discretion to admit new evidence should be exercised. The tribunal quoted their Honours’ view that:
The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.[27] (emphasis added)
[27] CDJ v VAJ (No 1) [1998] HCA 67 at [111]
65.The present appeal is not an application for a new trial, but it is still necessary to show an ‘exceptional’ reason to allow further evidence. In the later case of Fox v Percy, Chief Justice Gleeson and Justices Gummow and Kirby wrote:
The “rehearing” does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits.[28] (emphasis added)
[28] Fox v Percy [2003] HCA 22 at [22]
66.In Hurst-Myers v Aulich Civil Law Pty Ltd, the tribunal concluded by saying that from these authorities:
[I]t is apparent that an Appeal Tribunal would only grant leave to admit further evidence about questions of fact in exceptional circumstances where it serves the demands of justice to do so.[29](emphasis added)
[29] Hurst-Myers v Aulich Civil Law Pty Ltd [2020] ACAT 56 at [30]
67.In Amer v Erikson, Presidential Member Daniel reviewed the authorities and stated:
19. The overarching principle to be applied when considering whether to allow new evidence on appeal is the interests of justice. The power “exists to serve the demands of justice” and is a “remedial” power.
20. It is not usually in the interests of justice to allow new evidence on appeal. To do so would be inconsistent with the appellate nature of the proceedings, and the public interest of finality in litigation. However, in a particular case it may be in the interests of justice to admit new evidence on appeal if there is an acceptable reason for the evidence not being brought at the original hearing and the new evidence would, or was likely to, have produced a different result.
21. In considering the first element, the question is whether the new evidence could have been procured with reasonable diligence for the Original Tribunal. If the new evidence could have been available at the original hearing, the Appeal Tribunal must consider whether there was an acceptable reason why it was not relied upon at that time…[30]
[30] Amer v Erikson [2019] ACAT 108 at [19]-[21], citations omitted
68.The conditions to be satisfied in deciding whether at admit further evidence have been considered by other courts and tribunals in recent years.
69.In Akins v National Australia Bank[31] (Akins), Clarke JA stated that “it is not possible to formulate a test [as to what are special grounds]” on which fresh evidence should be admitted but his Honour set out the three conditions that, in general, need to be met before fresh evidence in appeal proceedings may be admitted:
(a)it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial;
(b)the evidence must be such that there must be a high degree of probability that there would be a different verdict; and
(c)the evidence must be credible.
70.In Solovastru v Leonid Anderson (t/as Motor Depot),[32] the Queensland Civil and Administrative Tribunal (QCAT) held that the appeal tribunal would only accept fresh evidence in that case if it was not reasonably available at the time the proceeding was heard and determined. The QCAT wrote:
Ordinarily, an application for leave to adduce fresh evidence must satisfy three tests:
(a) Could the parties have obtained the evidence with reasonable diligence for use at the trial?
(b) If allowed, would the evidence probably have an important impact on the result of the case?
(c) Is the evidence credible?[33]
[32] [2020] QCATA 131
[33] [2020] QCATA 131 at [6] citing Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, 408
71.In Fernando v Medical Complaints Tribunal (No 2),[34] a case involving an appeal to the Tasmanian Supreme Court from an occupational disciplinary decision of the Medical Complaints Tribunal, Blow J (as his Honour then was) decided that the appeal was in the nature of a rehearing (as in the present appeal). However, the Supreme Court had no express statutory power to admit fresh evidence on appeal (unlike the context in which the Appeal Tribunal decides the issue in the present appeal). His Honour considered leading judicial decisions and concluded that it was appropriate for the established case law relating to appeals from courts on the ground of fresh evidence to be applied in relation to appeals from statutory tribunals.[35] He noted that courts have taken a different approach to the implications of fresh evidence in criminal and civil proceedings. Appellate courts exercising jurisdiction in relation to civil matters have traditionally given greater weight to the desirability of finalising litigation.[36]
[34] Fernando v Medical Complaints Tribunal (No 2) [2003] TASSC 139
[35] Fernando v Medical Complaints Tribunal (No 2) [2003] TASSC 139 at [18]
[36] Fernando v Medical Complaints Tribunal (No 2) [2003] TASSC 139 at [22]
72.His Honour seemed to accept the submissions of counsel for the appellant medical practitioner that the well-settled requirements as to fresh evidence are that:
(a)it is potentially credible;
(b)it was not available to the appellant or his legal advisers before the tribunal made its decision;
(c)it was evidence which the appellant and his legal advisers could not reasonably have been expected to obtain with the exercise of due diligence before the tribunal made its decision; and
(d)it would have made a different result in the tribunal proceedings so likely that the matters before the tribunal should be reconsidered or re‑determined.[37]
[37] Fernando v Medical Complaints Tribunal (No 2) [2003] TASSC 139 at [19]
73.In Arnot v Commissioner of Fire and Rescue NSW,[38] the New South Wales Industrial Commission considered the operation of section 191 of the Industrial Relations Act 1996 (NSW).
[38]Arnot v Commissioner of Fire and Rescue NSW [2021] NSWIRComm 1082
74.Subsection 191(1) of the Act provides that an appeal to the Full Bench of the Commission:
(a)is not by way of a new hearing; and
(b)is to be determined on the evidence and material which was before the person whose decision is the subject of the appeal.
75.Subsection 191(2) creates an exception to this default position, permitting the Full Bench to receive, by leave, “further evidence”:
(a)if it considers that ‘special grounds’ exist which warrant the admission of the further evidence which was not before the original decision maker; or
(b)if the evidence “concerns matters occurring after the decision appealed against.”
76.Having considered various judgments, including that of Clarke JA in Akins, the Commission wrote:
In summary, for the Commission to find that ‘special grounds’ of the kind described in section 191(2) of the Act exist, it must first be satisfied that:
(a) The Appellants knowing of the Fresh Evidence, deliberately elected not to tender it;
(b) Even if the Appellants did not know of the Fresh Evidence, it could not, with reasonable diligence, have been obtained and relied upon by the Appellants at first instance;
(c) had the Fresh Evidence been relied upon by the Appellants at first instance, there is a high degree of probability that the Decision would … be different;
(d) the Fresh Evidence is credible and, for this reason, does not:
(i)give rise to disputed questions of fact; nor
(ii)rest upon the credibility, or alleged lack thereof, of untested evidence;
(e) electing not to grant leave to the Appellants to adduce Fresh Evidence in the Appeal would cause a ‘miscarriage of justice’ of the kind contemplated by the Full Bench in Bowen.[39]
[39] Arnot v Commissioner of Fire and Rescue NSW [2021] NSWIRComm 1082 at [22]
77.In CCH Australia Ltd v Bowen,[40]the Full Bench held:
... having in mind the terms of s 191(2) of the Act, and the powers on appeal available under s 192(1) thereof, we would not wish it to be taken as our view that further evidence to be heard on appeal it must necessarily be of such a nature as would make it almost certain that an opposite result would have been reached if the evidence had been adduced at first instance … .
Given that each case requires consideration in light of its own particular circumstances, it seems to us only open to hold ... that the purpose of fresh evidence is to avoid ‘‘a miscarriage of justice’’ and... that the power to allow further evidence on appeal ‘‘is exercised rarely and in exceptional circumstances only.’’
Our opinion is that the potential mischief if the evidence is not admitted must be sufficiently operative on the challenged decision and as would cause real prejudice to the party seeking to lead such additional evidence if it were not given....[41]
[40] CCH Australia Ltd v Bowen (1998) 79 IR 206
[41] CCH Australia Ltd v Bowen (1998) 79 IR 206 at [211]
78.Although the statutory provisions applicable to the Appeal Tribunal are not identical to section 191 of the Industrial Relations Act 1996 (NSW), the criteria adopted by the Industrial Relations Commission inform the approach to be adopted in the present appeal.
79.While accepting that:
(a)leave to provide further evidence about questions of fact should be granted only in exceptional circumstances where it serves the demands of justice to do so; and
(b)it is not possible to formulate a definitive test governing the admissibility of further evidence on appeal,
the Appeal Tribunal draws from the authorities referred to above to proceed on the basis that, in deciding whether to grant leave to admit the further evidence on which Ms Pye seek to rely, we should consider:
(a)whether the evidence was available at the time of the hearing before the Original Tribunal;
(b)if the evidence was available at that time, whether it could have been reasonably obtained and tendered or adduced orally at the hearing;
(c)if the evidence was available, whether the party chose not to tender or adduce it (or whether there is an acceptable reason why it was not brought at the original hearing);
(d)whether the evidence is credible;
(e)if the evidence had been available to the Original Tribunal, whether it would (or would be likely to) have produced a different result.
80.It will not be necessary to consider each of those conditions in relation to every item of proposed further evidence. For example, if evidence is not credible then it could not have affected the outcome of the case. If the proposed further evidence could not have affected the outcome, then it is immaterial whether or when it was available to Ms Pye.
81.Having set out what section 82 and Rule 91(c) provide, it is appropriate to express colloquially what they do not provide.[42] Dealing with an appeal as a review of an original decision under section 82 is not simply an opportunity for an unsuccessful party to have a “second bite of the cherry.” To succeed, an appellant must be able to satisfy the Appeal Tribunal that the Original Tribunal made an error (or errors) of fact or law. Similarly, the fact that Rule 91(c) provides that leave must be granted before further evidence about questions of fact is received shows that Rule 91(c) does not give an unsuccessful party free reign to “plug the gaps” in their case that were exposed by the reasons for decision of an Original Tribunal.
Further evidence – some rulings of the Appeal Tribunal
[42] Hurst-Myers v Aulich Civil Law Pty Ltd [2020] ACAT 56 at [10]
82.There are numerous grounds of appeal (see [108]-[115] below). Many items of proposed further evidence were provided in response to alleged errors of fact by the Original Tribunal in a particular paragraph or paragraphs of its reasons for decision. Consequently, it is appropriate not to make general rulings about whether leave is granted to receive that evidence. Rather, most rulings will be made when dealing with the specific errors which Ms Pye submits were made by the Original Tribunal or specific grounds of appeal to which the evidence might apply.
83.However, some initial observations and rulings are best made at this stage of these reasons for decision.
84.First, in reaching the understanding about Ms Pye’s concerns and current circumstances set out above (see [26]-[52]), the Appeal Tribunal considered some documents which Ms Pye asked the Appeal Tribunal to receive as further evidence. As already noted, those concerns and circumstances cannot determine the outcome of the appeal. Indeed, some of the documents concerned circumstances that have changed since the original hearing (and hence could not have produced a different result). Consequently, the Appeal Tribunal has decided not to receive the documents in evidence on the appeal.
85.Second, in advance of the hearing of her appeal, Ms Pye asked the Appeal Tribunal to permit her to provide further evidence which did not exist at the time of the hearing before the Original Tribunal or at the time of her application. The proposed evidence was a further report on a temperament assessment of Buddha.
86.It appears that the impetus for this application dates back to about one year before the hearing before the Original Tribunal when Ms Pye was seeking to obtain an assessment of Buddha.
87.On 21 May 2021, a Senior Member of the tribunal ordered that:
The respondent [the Registrar] shall provide access by a vet and/or an animal behaviour assessor, either together or separately, to the dog “Buddha” for the purpose of assessment of the dog’s health and behaviour. Such access shall be provided on or before 31 May 2021, and the applicant shall give the respondent 24 hours’ notice of the time and date for access by email to [email protected]
88.Ms Pye arranged for a vet to attend, and the booking was confirmed for Tuesday, 25 May 2021 at 9:15am. However, when the vet arrived he was turned away, apparently on the basis that DAS would not allow him to enter because they wanted their vet to be present and because the visiting vet was not wearing appropriate footwear.[43] They offered to re-book the appointment for Friday, 28 May 2021.[44]
[43] Transcript of proceedings 27 May 2021, pages 2, 4, 9
[44] Transcript of proceedings 27 May 2021, pages 2, 3
89.The matter returned to the Senior Member on 27 May 2021. Ms Pye advised that she was having difficulty obtaining the services of a vet who would attend DAS premises by the relevant date or, perhaps, at all.[45] The Senior Member said that she was “appalled” at the behaviour of DAS,[46] and observed that it was never a condition of the tribunal’s order that a DAS vet be present. Accordingly, that was not a reasonable excuse to fail to comply with the tribunal’s order.[47] Instead, the tribunal’s orders were “subverted” and “frustrated.”[48] The inability of the vet to attend as scheduled appeared to have the consequence that Ms Pye was prevented from obtaining evidence to present to the tribunal to ensure that she had a fair hearing, by being able to put her case and to test the evidence put by the Registrar.[49] The Senior Member also criticised the behaviour of DAS as being inconsistent with a government entity’s obligation to be a model litigant.[50]
[45] Transcript of proceedings 27 May 2021, pages 2, 4, 5, 8-9
[46] Transcript of proceedings 27 May 2021, pages 4, 5
[47] Transcript of proceedings 27 May 2021, pages 3-4, 7, 12, 13
[48] Transcript of proceedings 27 May 2021, pages 4, 5
[49] Transcript of proceedings 27 May 2021, pages 4, 7, 10, 11, 14
[50] Transcript of proceedings 27 May 2021, pages 6, 8
90.Eventually the parties agreed that a vet acceptable to Ms Pye would be able to attend the DAS premises on the morning of Friday, 28 May 2021.[51] The tribunal made orders that the Registrar arrange and facilitate access to Buddha by a named vet at the DAS facilities at noon on 28 May 2021, and that the vet provide to the parties and the tribunal a written report of her assessment. According to Ms Pye, at the original hearing, the vet arrived but did not conduct the assessment because of other circumstances.[52] A written report was not prepared.
[51] Transcript of proceedings 27 May 2021, pages 14-18
[52] Transcript of proceedings 1 March 2022, pages 11-12; Transcript of proceedings 8 August 2022, pages 6-7; Exhibit A1 (email from L Pye to Registrar dated 2 June 2021)
91.Ms Butler, a professional dog trainer, assessed Buddha at the DAS premises on 21 February 2022. Buddha was brought into one of the yards and Ms Butler conducted the assessment in the way described in her report dated 24 February 2022, which was evidence in the original hearing.[53]
[53] Exhibit A3
92.According to Ms Pye, Ms Butler “could not provide a full assessment.” Ms Butler gave evidence at the original hearing that the second part of the assessment (with Ms Pye and Buddha) could not be done. The purpose of that type of assessment was to see Buddha’s relationship with Ms Pye and her “capability to handle a dog of that calibre.” Ms Butler would have attempted to see whether Buddha would “intensify” more with Ms Pye than with a handler at DAS.[54]
[54] Transcript of proceedings 1 March 2022, pages 104, 118
93.In her amended Application for Appeal filed on 23 June 2022, Ms Pye sought an interim order to “allow a full temperament assessment from an independent assessor, off site, to determine the dogs true temperament.”
94.At a Directions Hearing on 24 June 2022, Orders were made that included a requirement that Ms Pye give to the Registrar and the Tribunal by 8 July 2022 “a description of any proposed further evidence for the hearing of the appeal and how that evidence might be obtained.” When that Order was made, the tribunal made it clear to Ms Pye that even if such a report was prepared, she could not be certain that leave would be granted for it to be admitted as further evidence of the hearing of the appeal.
95.On 13 July 2022, Ms Pye sent an email to the Registrar’s legal representative attaching the requirements for Ms Susan Turner-Davis to proceed with the temperament assessment of Buddha at a licensed boarding and training facility in Yass, New South Wales. That would require transporting Buddha from the DAS facility to Yass and returning him after the assessment. Ms Pye noted that Ms Turner-Davis was available that week to complete the assessment. She asked the lawyer to inform the Registrar of the requirements for the assessment to take place and to inform her of the day and time Buddha could be dropped off.
96.In her email to the Appeal Tribunal dated 14 July 2022, Ms Pye wrote:
I asked the tribunal to accept new evidence from Susan Turner-Davis, Temperament assessor for OLG NSW National Dog Trainers Federation if it becomes available by way of behavioural assessment which I have requested the registrar of DAS to allow due to the fact that I have not been able to provide a full behavioural assessment for Buddha as a defence against the two assessments produced by Mr Bruno Grutzner for Domestic Animal Services. (emphasis added)
97.Ms Pye submitted that the Appeal Tribunal should allow that new evidence because “My attempts for a full assessment have been obstructed time and again, this has continuously been in favour of Domestic Animal Services, and I have not been able to fully defend my dogs during any stage of these proceedings.”
98.The Registrar’s legal representative advised Ms Pye by email on 14 July 2022 that his client instructs that “it is not possible for DAS to facilitate assessment in Yass” and provided reasons for taking that position, including that transporting Buddha to Yass for the assessment would involve “a major safety risk.”
99.After further email correspondence between Ms Pye and the Registrar’s legal representative, Ms Pye sent an email on 20 July 2022 asking for a list of reasons and factors why the proposal for the assessment were an “unreasonable safety risk.” She also responded to the statement that it was not possible to facilitate the transport of Buddha for the assessment. Ms Pye stated that the purpose for the assessment was “due to the fact that I was not afforded the opportunity for a full assessment from Eleni Buttler previously, nor any other assessor I have lined up to assess Buddhas temperament in the past.” She continued:
The need for the assessment is due to the fact that I need to know the mental state of my dog considering he has been impounded for 236 days today and 218 days in his last impoundment and he is only 3 years and 7 months old. … You have not let him see me at all during all that time.
450+ days in the DAS facility and not even 1 single visitation has been granted for myself or anyone else to visit Buddha. …
If an independent assessment gives an unfavourable report, I must obviously consider my own safety along with the safety of the public. Without the opportunity to know what any other expert has to say, I feel like the incorrect decision is going to be made.
100.Ms Pye noted that the assessor from Yass was willing to travel to Canberra to do the assessment and asked that Buddha be transported for the assessment to take place on Ms Pye’s property. As a last resort, Ms Pye suggested that the assessment take place at DAS, even though that was “wholeheartedly against the independent assessor’s wishes as she does not believe she will get a proper result in that environment.” It would also require Ms Pye’s attendance for part of the assessment which, for other reasons, would be problematic.
101.After subsequent email correspondence, the lawyer sent an email to Ms Pye on 22 July 2022 advising that DAS would not make Buddha available for further assessment in Canberra, either at Ms Pye’s premises or at the DAS facility. The email set out reasons for declining her request and stated that this was the client’s “final position on the matter.”
102.That series of events explains why Ms Pye said to the Appeal Tribunal on 8 August 2022 that such evidence does not exist. In her contention, if the new evidence was able to be provided, it would have assisted the Appeal Tribunal “to be able to make a fair & proper decision in relation to the destruction of Buddha. It would have also assisted myself in making the correct decisions on how and if I wanted to proceed in the matter by having a clear understanding of Buddhas current temperament after an extremely long impoundment exceeding 260+ days.”[55]
[55] Email from Ms Pye to the tribunal and the Registrar’s representative dated 8 August 2022 paragraphs (a) and (b)
103.In response to Ms Pye’s initial indication that she would seek to adduce new evidence about Buddha’s behaviour from Ms Turner-Davis, a dog behaviourist, the Registrar submitted that the reason for Ms Pye wanting to call such evidence did not assist the Appeal Tribunal to understand the evidentiary value of that evidence. Consequently, the Registrar opposed leave being granted and noted that an expert behaviourist of Ms Pye’s choice, Ms Butler, provided an expert report and gave evidence at the original hearing.[56]
[56] Respondent’s Outline of Submissions to the Appellant’s Submissions in Reply at [22]-[23]
104.The Registrar also opposed any attempt by Ms Pye to adduce further evidence from Ms Butler by way of comment on the Original Tribunal’s decision in relation to Buddha’s behaviour.[57] In the Registrar’s submission, such evidence cannot be accepted and must be disregarded. Questions regarding Buddha’s temperament could have been asked at the original hearing. The appeal is not an opportunity to improve one’s case.[58]
[57] See Annexure J1 of the Attachments to Response dated 8 August 2022
[58] Respondent’s Outline of Submissions to the Appellant’s Submissions in Reply at [25]
105.The Original Tribunal had evidence provided by each party in relation to Buddha’s behaviour and temperament. That included evidence from Mr Grutzner and Ms Butler. The Original Tribunal also had written, oral and video evidence in relation to incidents involving Buddha’s attack on Tonner and Mr Li as well as an attempt to bite Mr Grutzner.
106.It is not possible to say whether any additional behavioural assessment would have led to a different outcome. As Ms Pye stated, the new evidence might have assisted the Appeal Tribunal to make a fair and proper decision. It might have confirmed the other evidence before the Original Tribunal. It might have been an “unfavourable” report. As no such evidence was produced before or at the time of the hearing of the appeal, neither the parties nor the Appeal Tribunal can say with certainty whether it could have affected the outcome of the appeal.
107.It is not for the Appeal Tribunal to speculate on such matters. No such evidence was available at the time of the hearing of the appeal. Even if it had been, there was no guarantee that it would have been received into evidence. The Appeal Tribunal cannot make a ruling in relation to evidence that does not exist.
Grounds of appeal considered individually
108.As noted earlier, the grounds of appeal were set out in the application for appeal, the revised application for appeal, and Ms Pye’s written submissions filed in the Tribunal registry on 13 July 2022. The latter document comprises a copy of the reasons for decision of the Original Tribunal which has been supplemented by Ms Pye’s critique immediately after each paragraph which, she contends, contains errors. The latter document contains the most specific and comprehensive reasons for her appeal.
109.The Registrar responded to Ms Pye’s submissions in relation to each such paragraph, and she provided submissions in reply to the Registrar’s submissions. The Registrar made some further submissions in reply. Accordingly, it is convenient and appropriate for the Appeal Tribunal to consider each ground of appeal identified in that way. Having done so, we will then consider the other submissions made by Ms Pye.
110.Before considering the particular submissions, we note that the reasons for decision of the Original Tribunal were structured as follows: Introduction (paragraphs [1] to [6]), The evidence (paragraphs [7] to [11]), Background (paragraphs [12] to [58]), The Original Tribunal’s assessment of Ms Pye’s evidence (paragraphs [59] to [69]), Consideration – cancellation of the dangerous dog licences (paragraphs [70] to [75]), and Consideration – destruction of Buddha (paragraphs [76] to [79]).
111.The parts of the Original Tribunal’s reasons for decision devoted to the consideration of the cancellation of the Dangerous Dog Licences and the destruction of Buddha are summarised above (at [6]-[7]).
112.The Appeal Tribunal makes two observations about Ms Pye’s submissions. First, almost all of the submissions were made in respect of paragraphs in the parts of the reasons devoted to Background and to the Original Tribunal’s assessment of Ms Pye’s evidence. Only one of the submissions related to paragraphs toward the end of the reasons for decision in which the Original Tribunal set out its considerations in relation to the cancellation of the dog licences. The significance of the focus of the submissions will become apparent.
113.Second, Ms Pye submitted that, although each individual error which she contends was made by the Original Tribunal “may not in itself be ‘material’, the cumulative effect may have had some effect on the Original Tribunal’s conclusions.”[59]
[59] Appellant’s Response to Respondent’s Outline of Submissions, page 12
114.In reply, the Registrar submitted that, while Ms Pye relies on the cumulative effect of the contended errors, she has not identified or submitted “what that effect is.” In the Registrar’s submission, none of the errors of fact would have materially affected the decision appealed from, even if the identified errors of fact were to be considered together with the additional documents filed by Ms Pye.[60]
[60] Respondent’s Outline of Submissions to the Appellant’s Submissions in Reply at [3]
115.Those submissions provide the context in which the Appeal Tribunal now considers each of Ms Pye’s submissions in relation to specific findings made or conclusions reached by the Original Tribunal in the following paragraphs of the reasons for decision: paragraphs 14, 15, 17, 22, 27, 33, 34, 38, 40, 41, 42, 45, 46, 48, 50, 54, 59, 60, 61, 63, 64, 68, and 71. In dealing with submissions in relation to some of those paragraphs it will be necessary to consider what the Original Tribunal wrote elsewhere in the reasons for decision.
Paragraph 14
116.The Original Tribunal recounted a series of events commencing on 3 March 2020 when Ms Pye sought veterinary treatment of Tonner for injuries resulting from a fight with Buddha. DAS carried out a compliance check on the dogs which established that both were sexually entire. On 6 March 2020, the Registrar issued Ms Pye with Notices to Comply regarding each dog. The Original Tribunal then recorded that on 19 October 2020, the Registrar issued Ms Pye with a second Notice to Comply regarding Buddha being sexually entire.[61]
[61] Pye v The Registrar at [12]-[14]
117.Ms Pye submitted, in relation to the last statement, that the notice was responded to by way of an application to keep dogs sexually entire. That application was dated 23 September 2020. According to Ms Pye, an email from DAS on 13 October 2020 confirmed that they had received the application, but no action was taken. In her submission, this was the first notice to comply.[62] In support of her submission, Ms Pye referred to her statement in relation to the original matter before a differently constituted tribunal (AT 38/2021 and AT 39/2021 Attachment A1) and suggested that, if the tribunal was familiar with this, it would be incorrect for the Original Tribunal to refer to this as a reason for decision.[63]
[62] Appellant’s submissions filed 13 July 2022, page 5 at [14]
[63] Appellant’s Response to Respondent’s Outline of Submissions at [25]
118.The Registrar submitted that Ms Pye’s statement has no relevance or materiality to this appeal[64] and that it would be difficult to ascertain the evidentiary value on appeal whether it was the first or second notice to comply regarding Buddha being sexually entire. The Registrar contended that it is undisputed that Ms Pye did not comply with notices issued by the Registrar and later orders issued by the Original Tribunal. In addition, the Registrar submitted that the Appeal Tribunal cannot accept Ms Pye’s submissions in relation to that being the first instance of non-compliance given the documents available in two sets of Tribunal documents (AT 38/2021 and AT 39/2021, AT 7/2022 and AT 8/2022).[65]
[64] Respondent’s Outline of Submissions at [26]
[65] Respondent’s Outline of Submissions to the Appellant’s Submissions in Reply at [5]
119.The Appeal Tribunal has concluded that the evidence before the Original Tribunal in proceedings AT 7/2022 and AT 8/2022 included evidence of Notices to Comply in relation to Buddha dated 6 March and 19 October 2020. The statement made by the Original Tribunal finds support in that evidence. Whether the notice referred to by Ms Pye was the first or second notice is immaterial to the issue to be decided in this case, which involves later breaches of a Dangerous Dog Licence and Buddha biting Mr Li.
120.Consequently, we are satisfied that even if the Original Tribunal was in error on this point, it could not have affected the outcome of the original proceedings. This ground of appeal fails.
Paragraph 15
121.The Original Tribunal recorded that on 19 January 2021, the Registrar issued Ms Pye with a third Notice to Comply regarding Buddha and a second Notice to Comply regarding Tonner. Ms Pye failed to comply with the notices and on 4 February 2021, DAS rangers seized Buddha and Tonner, exercising powers of seizure under division 2.7 of the DA Act.[66]
[66] Pye v The Registrar at [15]-[16]
122.Ms Pye submitted that, having received the second notice, she was advised that she needed to pay $424 per dog when applying to keep each dog sexually entire. She explained that she could not afford to risk losing that amount of money if DAS was not going to approve the applications. On 11 February 2021, she received an email to the effect that she could apply for the permit without the fee and could make payment when the applications were approved. By that stage, both dogs had been seized for non-compliance with the desexing notices. Ms Pye stated that she had given permission for the DAS to desex the dogs so that they could be returned to her as soon as possible. That was confirmed in email correspondence on 11 February 2021, but the dogs were not desexed until 23 August 2021.[67] Again, Ms Pye contended that the relevance of her submission can be found in her statement in the other proceedings AT 38/2021 and AT 39/2021 – Attachment A1.[68]
[67] Appellant’s submissions filed on 13 July 2022, page 7 at [15]
[68] Appellant’s Response to Respondent’s Outline of Submissions, page 6 at [26]
123.The Registrar acknowledged that Ms Pye provided an explanation of why she did not comply with the notice and submitted that the point made by Ms Pye has no relevance or materiality to this appeal.[69]
[69] Respondent’s Outline of Submissions at [27]-[28]
124.The Appeal Tribunal notes that the delay in desexing Buddha can be readily explained. As noted earlier, the Deputy Registrar issued a Notice of Decision to Destroy Buddha on 21 April 2021. Ms Pye commenced proceedings in the tribunal to review that decision. On 20 August 2021, the tribunal made orders to set aside the decision to destroy Buddha and to substitute a decision that Buddha be declared a dangerous dog and be released to Ms Pye, once she had demonstrated compliance with specified conditions of the Dangerous Dog Licence. One of those conditions was that Buddha must be desexed at Ms Pye’s expense prior to him being released to her. The Registrar was to arrange Buddha’s travel to a veterinarian of Ms Pye’s choosing for that purpose. The desexing of Buddha occurred on 23 August 2021, soon after the orders were made.
125.The Appeal Tribunal has concluded that, Ms Pye’s submissions in relation to paragraph [15] are not material to the issues in this appeal. They do not alter the fact that Ms Pye did not comply with the notice. The ground of appeal must fail.
Paragraph 17
126.The Original Tribunal stated that on 21 April 2021, after completing an investigation into a series of documented complaints of aggressive, roaming, and harassing behaviour by the dogs, the Registrar made the decision under section 68A of the DA Act to destroy Buddha and Tonner.[70]
[70] Pye v The Registrar at [17]
127.Ms Pye submitted that the decision to destroy both dogs was based on unsupported allegations by neighbours who seemed to have rallied against her. She stated that no witnesses were available to support the allegations at any time during the hearing when she was appealing (that is, seeking review of) the decision through the tribunal.[71]
[71] Appellant’s submissions filed on 13 July 2022, page 7 at [17]
128.The Registrar repeated the submission made at the hearing before the Original Tribunal[72] that, whilst the decision was relied on for background and the context of the decision, which was before the Original Tribunal, it is the subject of a decision which has been dealt with and should not be re-examined given that it was not overturned on appeal. Accordingly, the Registrar submitted that Ms Pye’s point is immaterial to this appeal.[73]
[72] Transcript of proceedings 1 March 2022, page 9
[73] Respondent’s Outline of Submissions at [29]-[30]
129.The Appeal Tribunal notes that the Original Tribunal referred to and apparently relied on information in the DAS Case Summary exhibited in those proceedings.[74] We also note that Ms Pye applied successfully to the tribunal for merits review of the Deputy Registrar’s decisions and, on 20 August 2021, a differently constituted tribunal made orders setting aside the decision to destroy the dogs and substituted decision that the dogs be declared dangerous dogs pursuant to section 22(2)(b)(i) and (ii) of the DA Act. The tribunal ordered that the dogs be released on licence to Ms Pye upon her demonstrating compliance with certain conditions of the Dangerous Dog Licence specified in the orders. Those events were recited by the Original Tribunal.[75]
[74] Exhibit R3, pages 86-100 and 106-110
[75] Pye v The Registrar at [20]
130.Accordingly, the Appeal Tribunal has concluded that the Original Tribunal relied on evidence to make the statement to which Ms Pye objects and that, even if the Deputy Registrar had made a decision based on unsupported allegations, that decision was subsequently set aside by a differently constituted tribunal. The Original Tribunal noted the set-aside decision. It follows that the Registrar’s overturned decision was not a basis for the decision of the Original Tribunal. The events recorded by the Original Tribunal in that part of the reasons for decision provide background or context for what follows but not the basis of the Original Tribunal’s decision. This ground of appeal must fail.
Paragraph 22
131.The Original Tribunal recorded that Ms Pye appealed the other tribunal’s decision declaring the dogs to be dangerous but ultimately did not pursue the appeal. The Original Tribunal continued, “the reasons why she did not are immaterial to this application. The tribunal’s earlier decision is not open to challenge in this application.”[76]
[76] Pye v The Registrar at [22]
132.The Registrar stated that the main reason for the appeal in the other case being dismissed related to Ms Pye’s being required to file and serve appeal material by 4 January 2022. She failed to do so without reasonable explanation.[77]
[77] Respondent’s Outline of Submissions to the Appellant’s Submissions in Reply at [6]
133.In her written submissions on this appeal, however, Ms Pye explained that she did not appeal because she had been advised that she was required to respond within seven days to a Notice of Intent to Cancel Special Licences for both dogs which she received on 24 December 2021. That was when her submissions for the appeal were due. She could not respond in time and the appeal deadline expired.[78]
[78] Appellant’s submissions filed 13 July 2022, page 9 at [22]
134.The Registrar acknowledged that, in her submissions for this appeal, Ms Pye provided an explanation for not appealing to the finding declaring both dogs to be dangerous dogs. However, the Registrar submitted that Ms Pye’s submissions regarding the Notice of Intent to Cancel Special Licence has no bearing on whether she should have filed and served the material requested in order for the appeal in the other matter to be heard and determined. The Registrar also submitted that (as the Original Tribunal had concluded) her reasons for not progressing the appeal were immaterial to the decision under review. Consequently, they are immaterial to this appeal.[79]
[79] Respondent’s Outline of Submissions at [31]-[32], Respondent’s Outline of Submissions to the Appellant’s Submissions in Reply at [6]
135.The Appeal Tribunal notes that the Notice of Intent to Cancel the Special Licence for Buddha was dated 17 December 2021. It advised Ms Pye that she had seven days from the day following service of the notice to provide a written submission. Ms Pye said she received the notice on 24 December 2021. According to the Notice of Cancellation of the Special Licence dated 6 January 2022, Ms Pye contacted the Registrar’s legal representative by email on 2 January 2022. The Registrar considered her written submission when deciding whether to cancel the Special Licence.
136.The appeal proceedings in the tribunal were separate from the process with the Registrar about the proposed cancellation of the Special Licence. Ms Pye was able to respond to the Registrar but apparently not to the tribunal by the due date.
137.The Appeal Tribunal accepts that a combination of factors might have influenced whether Ms Pye could file and serve appeal material by the due date. Clearly both processes were running around Christmas time and, as they dealt with the same dog, it might be that Ms Pye did not appreciate the need to comply with both timeframes or found it difficult to do so. It is not for the Appeal Tribunal to speculate on such matters. The key point is that the appeal proceedings in the tribunal were separate from the other engagement with the Registrar, and the fact that Ms Pye did not pursue the appeal is immaterial to whether the Original Tribunal erred in deciding this case. The Original Tribunal was correct in concluding that the tribunal’s decision declaring the dogs to be dangerous was not open to challenge in proceedings before the Original Tribunal. Consequently, this ground of appeal must fail.
Paragraph 27
138.As a further part of setting out the chronology of events, the Original Tribunal stated that on 30 September 2021, a differently constituted tribunal made orders requiring Ms Pye to give vacant possession of the premises in which she lived by 5 October 2021. Ms Pye brought her change of circumstances to the attention of both the tribunal and the Registrar on 1 October 2021 at a directions hearing relating to her appeal against orders made by the tribunal on 20 August 2021 that Buddha was a dangerous dog and could be released to Ms Pye on strict conditions. The Registrar undertook to consider on an urgent basis any application for the dogs to be housed at an appropriate boarding kennel. However, Ms Pye did not make such an application.[80]
The registrar may declare a dog to be a dangerous dog if—
(a) …; or
(b) the registrar reasonably believes the dog—
(i)is aggressive or menacing; and
(ii)without being kept in accordance with a dangerous dog licence, would be an unacceptable risk to the safety of the public or other animals.
243.The Appeal Tribunal does not know whether some training could or would modify his temperament and behaviour so that he would no longer be characterised as a dangerous dog. But that is not the issue in this case. The ground of appeal must fail.
Paragraph 63
244.The Original Tribunal did not consider Ms Pye’s evidence that she had never seen Buddha be aggressive was truthful. The Original Tribunal stated that dogfights between Buddha and Tonner on 3 March 2020 that resulted in both dogs receiving serious injuries “puts the lie to this.” Ms Pye’s evidence was also inconsistent with earlier statements she made to DAS staff to the effect that her dogs were her protection dogs. The Original Tribunal quoted a file note of a telephone call between Ms Pye and Zrinka Veljaca of DAS on 7 February 2021:
Lisa said she doesn’t want the dogs de sexed because she got them for a reason, and they will turn into cats if she gets them de-sexed (in reference to their aggression subsiding) she said I don’t know her past and she got them to protect her and if someone breaks in and anything happens to her it’s on us …[171]
[171] Pye v The Registrar at [63]
245.Initially, Ms Pye submitted that the dogs did have injuries “but they were not serious injuries that needed any other treatment besides antibiotics as a precaution.” She felt that “this has been misinterpreted and exaggerated.”[172]
[172] Appellant’s submissions filed on 13 July 2022, page 27 at [63]
246.The Registrar submitted that the Original Tribunal found, based on the evidence available to him, that Buddha and Tonner had a dogfight on 3 March 2020 and thus Ms Pye’s evidence that she had never seen Buddha be aggressive was questioned by the Original Tribunal as probably being untruthful. Further, Ms Pye’s contention that the finding was “misinterpreted and exaggerated” was made despite the fact that she agrees that the dogs had injuries “but they were not serious injuries.” In the Registrar’s submission, despite what Ms Pye considers to be serious injuries, she accepted that the dogs had injuries resulting from a fight with each other.[173]
[173] Respondent’s Outline of Submissions at [58]-[59]
247.In her response, Ms Pye contended that:
(a)she was not present when her dogs had a fight in her backyard in 2020;
(b)Ms Veljaca was not available as a witness on any occasion of the five-day hearing spanning over three months; and
(c)Ms Veljaca’s file notes are incorrect in saying anything about Ms Pye’s dogs turning into cats, which Ms Pye characterised as “ridiculous” and “simply hearsay.”[174]
[174] Appellant’s Response to the Respondent’s Outline of Submissions, page 10 at [57]
248.The Appeal Tribunal has concluded that there is no dispute that Tonner and Buddha fought on 3 March 2020, and both received injuries. If Ms Pye did not see the dogfight, that does not detract from the event having occurred and the dogs inflicting injuries on each other. The source of the alleged error in Ms Veljaca’s note was not explained. It is not clear whether Ms Pye was contending that the “hearsay” came from someone other than herself. In any case, Ms Pye was not disputing that she had the dogs as protection dogs.
249.The Original Tribunal did not err in considering evidence of past behaviour by Buddha when deciding whether he was a dangerous dog. This ground of appeal must fail.
Paragraph 64
250.The Original Tribunal stated that Ms Pye did not make her dogs wear a dangerous dog collar because there were none that would fit. She claimed that the dogs were being choked by the dangerous dog collars that DAS rangers fitted before returning the dogs to her custody on 9 September 2021 and that the video evidence proved that.[175]
[175] Pye v The Registrar at [64]
251.Ms Pye submitted that the video proves that her dogs were choking in the collar. She contended that when she contacted DAS informing them that the collar did not fit the dogs, they informed her that it was “the largest size”, and that was “different information” from the information given by the witness during the hearing.[176]
[176] Appellant’s submissions filed on 13 July 2022, page 27 at [64]
252.The Registrar submitted that Ms Pye’s contention is “fully rebutted” by her own evidence, namely video footage of when the dogs were returned to her by the Registrar’s rangers. That evidence was corroborated by the evidence of Mr Crawford-Ong[177] (the ranger who fitted the collars to the dogs) which the Original Tribunal accepted, that “there was room for three fingers under the collar – in other words, that the collars were not too tight.”[178]
[177] Transcript of proceedings 1 March 2022, page 155: “So on the day, we made the judgment call that due to the fact we could still put three fingers under the collar it was loose enough for the dog.”
[178] Pye v The Registrar at [66]
253.Ms Pye disagreed. In her submissions in response, she contended that if one viewed the video footage of the dogs’ arrival on the first day home, “it clearly shows how tight the collars were, that my dog is choking and that the collar had to be removed once the dogs were finally in my home.”[179]
[179] Appellant’s Response to the Respondent’s Outline of Submissions, page 11 at [60]
254.The Registrar submitted in reply that Ms Pye’s submissions have no material bearing on the Original Tribunal’s findings and should be disregarded.[180]
[180] Respondent’s Outline of Submissions to the Appellant’s Submissions in Reply at [19]
255.The Appeal Tribunal has concluded that the video and other oral evidence before the Original Tribunal indicated that a dangerous dog collar could be fitted to Buddha. Ms Pye did not comply with the Dangerous Dog Licence condition that Buddha wear a dangerous dog collar whenever he left the nominated premises This ground of appeal must fail.
Paragraph 68
256.The Original Tribunal wrote:
The applicant’s evidence, particularly where she accuses DAS of mistreating her dogs and blames DAS for her dogs’ aggressive behaviour, highlights her inability or unwillingness to recognise and accept responsibility, as the owner of the dogs, for her own contribution to the events and circumstances that led to the lawful seizure and subsequent lengthy impoundment of Buddha and Tonner before they were declared dangerous dogs and released to her on the conditions of the dangerous dog licences. She did not have her dogs trained or undertake any training herself to enable her to better control the dogs. She chose to break the law by keeping the dogs sexually entire without a permit. She ignored Notices to Comply issued by DAS. She did not prevent the dogs from roaming, even though she knew that Buddha and Tonner were capable of inflicting severe injury on each other and on other animals. The record of her dealings with DAS before and after the dogs were impounded in February 2021 paints a disturbing picture of a person with no understanding of the requirements for responsible dog management, care and control. [181] (emphasis added)
[181] Pye v The Registrar at [68]
257.In response to that assessment, Ms Pye submitted only that she was “unable to commence training due to the covid lockdown”, although she did “prove to the tribunal” that she had “contacted numerous trainers who are unable to help me at that time.”[182] According to Ms Pye, she had begun training for Tonner after the lockdown, but Buddha was already impounded by then and “all attempts were denied by the registrar for training.” She had provided correspondence with trainers who had given advice on methods to try to rehabilitate her dogs and had offered their services once lockdown was over.[183]
[182] Appellant’s submissions filed on 13 July 2022, page 29
[183] Appellant’s Responses to Respondent’s Outline of Submissions at [62]
258.The Registrar submitted that:
(a)this issue alone does not have any material relevance to the appeal; and
(b)the appellant could have taken other measures, such as courses online, to learn how to better control the dogs.[184]
[184] Respondent’s Outline of Submissions at [62], Respondent’s Outline of Submissions to the Appellant’s Submissions in Reply at [20]
259.The Appeal Tribunal has concluded that there is clear evidence that Ms Pye did not have Buddha trained and did not undertake any training herself to enable her to better control him. The correspondence to which Ms Pye referred could not overcome what happened in the past and cannot be used to demonstrate that the Original Tribunal was in error. This ground of appeal must fail.
Paragraph 71
260.The Original Tribunal accepted that Ms Pye’s inability to comply with the condition requiring the dogs to reside and be contained at a particular address was caused by circumstances beyond her control, namely that she was evicted from those premises. In the Original Tribunal’s view, Ms Pye was faced with the choice of:
(a)returning the dogs to DAS while she tried to secure suitable alternative accommodation; or
(b)applying to the Registrar for approval to keep the dogs at an appropriate boarding kennel.
261.Ms Pye “chose to do neither” and from the moment the dogs ceased to reside at the nominated address, Ms Pye was in breach of the conditions of the special licence. In the case of Buddha, the breach continued until 26 November 2021 when he was seized.
262.Ms Pye submitted that she had “proven to be compliant in the situation I was faced with” which, she contends, has cost her more than $11,000 to kennel her dogs, $6,000 for enclosures, $1,775 for the dangerous dog licences, and $684 for both dogs to be desexed.[185] In a subsequent written submission, Ms Pye stated that evidence of those costs had now been provided to both parties in attachments on 9 August 2022.[186] Ms Pye described the documents as exhibits E4 and E5.
[185] Appellant’s submissions filed on 13 July 2022, page 30 at [71]
[186] Appellant’s Response to Respondent’s Outline of Submissions, page 11 at [63]
263.The Registrar submitted that Ms Pye did not adduce evidence at the hearing in relation to the costs she said that she incurred. However, even if she had had adduced such evidence, it would not have been material to the Original Tribunal as all the other factual background which was proved at the hearing pointed to the fact that Ms Pye had been non-compliant with the previous orders regarding dangerous dog declarations.
264.The Appeal Tribunal has concluded that the evidence of the costs incurred by Ms Pye, particularly in relation to accommodation for the dogs, does not overcome the fact that at the relevant dates from about 5 October 2021 until 26 November 2021 she was in breach of conditions in the Dangerous Dog Licence for Buddha. This ground of appeal must fail.
265.Consequently, the Appeal Tribunal does not grant Ms Pye leave to provide further documentary evidence of the costs she incurred in relation to the dogs.
Additional grounds of appeal
266.As noted earlier, Ms Pye did not make submissions in relation to paragraphs toward the end of the Original Tribunal’s reasons for decision which dealt with whether the dangerous dog licences should be cancelled and whether Buddha should be destroyed. It was those parts of the Original Tribunal’s reasons which contained the findings of fact and the reasoning in support of the Orders 1 and 3. Although Ms Pye sought to have the Appeal Tribunal set aside those Orders, her submissions did not directly challenge those critical parts of the Original Tribunal’s reasoning.
267.However, Ms Pye made some additional submissions to which we now turn.
268.First, Ms Pye contended that the notice of cancellation of the special licence in relation to Buddha and the notice of decision to destroy Buddha advised her that she had seven days within which to appeal to the tribunal. That was an error. She should have been advised that she had 28 days to appeal.[187]
[187] Appellant’s Response to Respondent’s Outline of Submissions, page 1 at [4]
269.In support of that contention, Ms Pye provided correspondence from the ACT Government Solicitor dated 19 January 2022 which she sought to adduce as further evidence and described as Exhibit J2. That correspondence included statements to the effect that:
(a)the reference to a seven-day period within which to lodge a review application with the tribunal was incorrect and that the period set out in section 10(2) of the ACAT Act is 28 days after the day the decision to be reviewed is made; and
(b)the Registrar acknowledged the distress the seven-day period caused Ms Pye and sincerely apologised for the error.
270.The Appeal Tribunal accepts that the original advice about the cancellation of the special licence for Buddha given to Ms Pye by the Registrar on 9 January 2022 included statement, “You have 7 days from the date of service of this letter to lodge a review of application with ACAT.” That was incorrect.
271.However, the Appeal Tribunal is not satisfied that even if Ms Pye had been given the accurate advice which she was entitled to receive, that would have affected the decision of the Original Tribunal to make Orders 1 and 3.
272.Accordingly, the Appeal Tribunal does not grant leave to receive the additional evidence described as Exhibit J2 and dismisses this ground of appeal.
273.Second Ms Pye also took issue with aspects of the Registrar’s conduct in relation to the case. Indeed, she submitted that the Original Tribunal did not exercise its powers relating to the Registrar’s conduct and alleged breaches of the Tribunal’s orders, including not providing subpoenaed documents and evidence, which, she submitted, contributed to her inability to form a proper defence.[188]
[188] Appellant’s Response to Respondent’s Outline of Submissions, page 12
274.At the hearing before the Appeal Tribunal, Ms Pye also contended that the Original Tribunal did not take into consideration material that she had subpoenaed from the Registrar, some of which was provided to her. According to Ms Pye, she was not provided with security footage of the exercise area showing the daily exercise of Buddha from 4 February until 8 September 2021 and from 26 November 2021 until 28 February 2022. She had been told that footage is only kept for 30 days, and that the security camera only captures a small portion of the exercise yard. It would only show a dog entering and exiting the yard but not exercising there. According to Ms Pye, that material was meant to be before the Original Tribunal, but it was not produced. In her submission, it was relevant to her argument that her dog was not being exercised and properly cared for and that could relate to behavioural issues.[189]
[189] Transcript of proceedings 8 August 2022, pages 13-14
275.The Appeal Tribunal notes that there were a few references to subpoenaed material in the original hearing. At the start of Ms Pye’s evidence, the following exchange occurred:
MS PYE: Sure. I also notice in the submissions where I was sent photos of Buddha's - actually, sorry, this was in response to the subpoenas. The photos of Buddha being weighed and all different angles of Buddha and that the handler is seen to be in a bite suit but does not have any protective wear on his hands and is holding around my dog's mouth and patting him and my dog's, you know, putting his paw up on him and seemed, you know. That's how I know my dog, you know. I just wanted to make sure that that is seen because the way that my dog is and to what is on paper is different.
SENIOR MEMBER: Ms Pye, a couple of points. One, all the video footage that you have submitted, I have looked at.[190]
[190] Transcript of proceedings 1 March 2022, page 7
276.Later in the proceeding, Ms Pye told the Original Tribunal:
MS PYE: In my – on my memory stick I did add in there a phone conversation between myself and Luca. I did ask for Luca to do a statement but he felt it may have been a conflict of interest, but he was happy to be subpoenaed but we had run out of time for that to happen.[191]
[191] Transcript of proceedings 1 March 2022, page 96
277.On the basis of those extracts from the transcript and Ms Pye’s submissions, the Appeal Tribunal is unable to conclude whether and, if so, to what extent, the Registrar failed to comply with any subpoenas other than because the subpoenaed material no longer exists. Nor is it clear that any of the subpoenaed material would have affected the outcome in this case. Accordingly, the Appeal Tribunal does not give any weight to this ground of appeal.
278.Third, having stated that she had never seen Buddha be aggressive towards anyone in the past, Ms Pye agreed with the statement made by Mr Grutzner that whatever has happened to the dog since Mr Grutzner’s assessment in February 2021 had done the dog no favours. She contended that, because Buddha had been impounded at DAS since his last assessment, the Registrar should take accountability for the changes in the dog’s behaviour. According to Ms Pye, Buddha “was not impounded originally for being aggressive towards any member of the public that was ever proven in any way.”[192]
[192] Appellant’s Response to Respondent’s Outline of Submissions, page 5 at [21]
279.Ms Pye referred to an audio call by Luka, a kennel staff member. Apparently Luka stated that he looked after and began training with Buddha and that he had, on many occasions, told the Registrar that he did not believe that Buddha cannot be trained or rehabilitated and that he should not be euthanised.[193]
[193] Appellant’s Response to Respondent’s Outline of Submissions, page 11
280.In response, the Registrar noted that Luka was not called to give evidence, and submitted that the recording provided by Ms Pye has no evidentiary value without being tested by the Registrar at the hearing.[194]
[194] Respondent’s Outline of Submissions to the Appellant’s Submissions in Reply at [21(a)]
281.As noted above, Luka did not provide a statement and was not subpoenaed to give evidence to the Original Tribunal. The Appeal Tribunal can see no reason to allow any further evidence by Luka in the appeal proceedings.
282.Ms Pye also contended that the Original Tribunal did not take into consideration that part of her cross-examination of Eva Cawthorne, Operations Manager of DAS, when Ms Cawthorne said that neither of Ms Pye’s dogs had ever been aggressive towards any staff at any time during the more than 200 days of impoundment. In Ms Pye’s submission, that answer should have shown the Original Tribunal a “better indication” of her dog’s temperament rather than the one that was “provoked by” Mr Grutzner’s “assessment.”
283.The Appeal Tribunal can make no meaningful response to this submission. Eva Cawthorne did not give evidence in the hearing before the Original Tribunal. The Operations Manager of DAS was Andrew Syme. He gave evidence and was cross-examined briefly by Ms Pye, but not about whether either of Ms Pye’s dogs had ever been aggressive towards any DAS staff.
284.In Ms Pye’s submission, because Buddha “has not been afforded quality of life in over a year and a half” and “has been taken from the only life that he knew as an inside dog” he should be given a chance to live and the chance to be rehabilitated and trained before any decision to destroy him is made.[195]
[195] Appellant’s Response to Respondent’s Outline of Submissions, pages 11-12
285.The Appeal Tribunal notes that the premise of Ms Pye’s submissions is consistent with the conclusion of the Original Tribunal when it found that Buddha was more dangerous at the time of the original hearing than when Mr Grutzner assessed Buddha in February 2021 and he concluded that Buddha was dangerous and unsuitable to be rehomed.[196] The Appeal Tribunal is unable to decide why that is the case and, in particular, whether it is a consequence of Buddha’s detention by the DAS. The evidence before the Original Tribunal includes a series of incidents from Buddha’s first recorded attack of Tonner in March 2020 through to his unprovoked attack on Mr Li in November 2021 and his attempt to bite the arm of Mr Grutzner in December 2021. That evidence was sufficient to satisfy the Original Tribunal that Buddha was and remained dangerous.
[196] Pye v The Registrar at [76]-[77]
286.Nothing in the evidence on appeal has satisfied the Appeal Tribunal that the Original Tribunal was wrong in concluding that Buddha was and remained dangerous and that a decision not to destroy him would result in an unacceptable risk to the safety of the public and other animals.
287.Fourth, Ms Pye sought to adduce additional evidence in the form of documents listed in emails to the tribunal and the Registrar dated 14 July 2022 and 8 August 2022, some of which were not in evidence before the Original Tribunal. Others were before the Original Tribunal in a redacted form. Some were available at the time of the original hearing. Others came into existence subsequently. The additional assessment of Buddha requested by Ms Pye did not exist at the time of the appeal hearing, for reasons noted earlier (see [86] – [102]). To the extent that a document was relevant to one or more of the grounds of appeal, it has been discussed earlier in relation to that ground or those grounds.
288.In relation to Ms Pye’s attempt to adduce evidence from previous proceedings in May 2022 regarding Buddha and Tonner, the Registrar submitted that:
(a)that evidence was not adduced before the Original Tribunal and cannot be accepted in the appeal proceedings; and
(b)the Original Tribunal had the benefit of more recent evidence in relation to Buddha’s character traits from two experts.[197]
[197] Respondent’s Outline of Submissions to the Appellant’s Submissions in Reply at [21(b)]
289.The Appeal Tribunal notes that in the original proceedings there was no reference to evidence from previous tribunal proceedings in relation to Buddha. Although Ms Pye might have considered that each of the proceedings before the tribunal in relation to Buddha was linked to the others, there is some force to the Registrar’s submission that evidence in those other proceedings cannot be accepted in the appeal proceedings because it was not before the Original Tribunal.
290.Given the unusual circumstances of this case and the interaction of other proceedings (referred to earlier) that involved decisions about whether matters such as whether Buddha was a dangerous dog, the Appeal Tribunal has considered the transcript of proceedings in AT 39/2021 on 21 and 27 May 2022 for the purpose only of considering the circumstances surrounding Ms Pye’s unsuccessful attempts to have Buddha assessed by another vet in May 2022. Again, that matter was discussed earlier (see [86] – [102]).
291.The remaining issue is whether, as Ms Pye submitted, the cumulative effect of individual errors in the reasons of the Original Tribunal is sufficient to satisfy the Appeal Tribunal that the appeal should be upheld, and the decision of the Original Tribunal be replaced with different orders.
292.In order to deal with the numerous grounds of appeal identified by Ms Pye, and in acknowledgment of the thoroughness with which she expressed those grounds, the Appeal Tribunal has set out in some detail the parties’ submissions and our responses to each ground of appeal. As the reasons make clear, some of those grounds are irrelevant or immaterial to the outcome in the case. In other words, even if some of the grounds were made out, they could not have affected the decision of the Original Tribunal and hence could not support the appeal. In addition, Ms Pye has not satisfied the Appeal Tribunal that each of the other grounds has been made out. Consequently, the cumulative effect of the submissions merely reinforces what the Appeal Tribunal’s responses to individual submissions makes clear, that the appeal cannot succeed.
Conclusion and order
293.Section 36(1) of the DA Act states, in part:
(1) The registrar –
…
(b)may cancel a special licence if –
(ii) the licensee contravenes a condition of the licence; or
…
(iv)the registrar reasonably believes there would be an unacceptable risk to the safety the public or other animals if the licence were not cancelled; or
(v)the registrar reasonably believes that the licensee has failed, or is unable, to exercise responsible dog management, care or control.
294.The Appeal Tribunal is not satisfied that the Original Tribunal erred in being satisfied that there were grounds under section 36(1)(b)(ii), (iv) and (v) of the DA Act to cancel the special licence permitting Ms Pye to keep Buddha.
295.Section 53C of the DA Act provides that the Registrar may decide to destroy a dog if the Registrar is reasonably satisfied that a dog attacked a person and caused an injury (other than a serious injury) to the person and the Registrar has considered the circumstances of the attack, including whether the person provoked the dog.
296.The Appeal Tribunal is not satisfied that the Original Tribunal erred in being satisfied that the Registrar’s decision to destroy Buddha should be confirmed.
297.For the reasons given above, the appeal is dismissed, and the Orders 1 and 3 made by the Original Tribunal in AT 7/2022 and AT 8/2022 on 10 May 2022 are confirmed.
………………………………..
President G Neate AM
For and on behalf of the Tribunal
Date(s) of hearing: 8 August 2022 Applicant: In person Counsel for the Respondent: Ms A Costin Solicitors for the Respondent: ACT Government Solicitor
[31] Akins v National Australia Bank (1994) 34 NSWLR 155 at [160]
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