ROBINSON and SHIRE OF MUNDARING - [2016] WASAT 53

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: DOG ACT 1976 (WA)

CITATION: ROBINSON and SHIRE OF MUNDARING [2016] WASAT 53

MEMBER: MS K WHITNEY (MEMBER)

HEARD: 15 MARCH 2016

DELIVERED : 12 MAY 2016

FILE NO/S: CC 1960 of 2015
CC 157 of 2016

BETWEEN: KELLIE ROBINSON
Applicant
AND
SHIRE OF MUNDARING
Respondent

Catchwords:

Dog Act 1976 (WA) - Application for review of decision declaring dog dangerous - Reliability of evidence in support of declaration - Exercise of discretion - Turns on own facts

Legislation:

Dog Act 1976 (WA), s 3(1), s 33E, s 33A, s 33A(3), s 33E, s 33E(1)(a), s 33F, s 33F(2)(b)(ii), s 33F(6)(b), s 33GA(2), s 33I(i)(b)
State Administrative Tribunal Act 2004 (WA), s 17, s 21, s 24, s 27, s 29(1), s 29(3), s 32, s 87

Result:

Decisions to declare dogs dangerous set aside

Summary of Tribunal's decision:

The applicant applied for review of the respondent's decisions declaring the applicant's two dogs to be dangerous.
The applicant's evidence was that her dogs were with her at the time of the attack and could not have been involved.
The Tribunal identified a number of concerns with the evidence of the respondent's ranger which impacted on its reliability. The Tribunal also identified concerns about the reliability and weight of the eyewitness evidence in circumstances where dog registration records indicated that some 80 dogs lived in the vicinity of the attack, and many of these dogs potentially fell within the eyewitness descriptions of the offending dogs.
Having considered the evidence, the Tribunal was not satisfied on the balance of probabilities that the applicant's dogs were involved in the attack and ordered that the declarations be set aside.

Category: B

Representation:

Counsel:

Applicant: Mr T Houweling
Respondent: Mr T Beckett

Solicitors:

Applicant: Cornerstone Legal
Respondent: McLeods

Case(s) referred to in decision(s):

Ioppolo and City of Wanneroo [2013] WASAT 172
Sammut v AVM Holdings Pty Ltd [No 2] [2012] WASC 27
Teissier and Commissioner of State Revenue [2016] WASAT 40

REASONS FOR DECISION OF THE TRIBUNAL:

The application

On 15 December 2015, the respondent issued notices declaring that the applicant's dogs 'Buddy' and 'Shiva' are dangerous dogs pursuant to s 33E of the Dog Act 1976 (WA) (Dog Act) (declarations).
On 22 December 2015, the applicant filed an application in the Tribunal for review of the respondent's decision to issue the declaration in respect of the dog 'Buddy'. On 10 February 2016, after the initial directions hearing, the applicant lodged a second application for review of the respondent's decision to issue the declaration in respect of the dog Shiva. Without objection from the respondent, the Tribunal ordered that both proceedings be heard together.
Both applications were brought pursuant to s 33F(6)(b) of the Dog Act. However, as it was conceded by the parties that the applicant did not lodge a written objection with the respondent pursuant to s 33F(6) of the Dog Act and instead applied directly to the Tribunal, the applications should have been brought pursuant to s 33F(2)(b)(ii) and s 33I(1)(b) of the Dog Act. Without objection from the respondent, the Tribunal ordered that the applications be deemed to be pursuant to s 33F(2)(b)(ii) and s 33I(1)(b) of the Dog Act.

The reviewable decision

On 15 December 2015, the respondent issued the declarations. The declarations described Buddy as a Mastiff Cross and Shiva as a Labrador Cross Kelpie. Each declaration records that it is made pursuant to s 33E and s 33F of the Dog Act, and the reasons for the declarations are identical:
The reason for this declaration is that the dog has caused injury resulting in death by an attack on an animal.
Each declaration records the applicant's right of review and the requirements that follow from the declaration, and each is signed by Mr Adrian Dyson, 'Manager Health and Community Safety Services, Authorised Officer Shire of Mundaring'.
Sections 33F(2)(b)(ii) and 33I(1)(b) of the Dog Act confer jurisdiction on the Tribunal to review the declarations. A review of the declarations involves a review of the decisions to declare Buddy and Shiva dangerous dogs. By reason of s 17 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the application to review the decisions to make the declarations falls within the Tribunal's review jurisdiction.

The Tribunal's review jurisdiction

In exercising the Tribunal's review jurisdiction, the Tribunal is to review the decision in question by way of a hearing de novo for the purposes of producing the correct and preferable decision on the basis of the information and evidence before the Tribunal at the time of the review (s 27 of the SAT Act).
In the exercise of its review jurisdiction, the Tribunal is not limited in its considerations to the material that was before the original decisionmaker, nor to consideration of the original decisionmaker's reasoning alone (s 27 of the SAT Act).
Section 29(1) of the SAT Act provides that all of the functions and discretions conferred on the original decisionmaker are conferred on the Tribunal, in addition to the powers conferred on the Tribunal by the SAT Act.
Section 29(3) of the SAT Act confers specific powers on the Tribunal in the disposition of the review application (affirmation or variation of the reviewable decision; setting aside the reviewable decision and instead substituting its own decision; or setting aside the reviewable decision and remitting the matter back to the decisionmaker with directions or recommendations).
The Tribunal is not bound to apply the Evidence Act 1966 (WA), the rules of evidence, or any practices and procedures of courts of record (s 32(2)(a) of the SAT Act), but is bound by the rules of natural justice (s 32(1) of the SAT Act) and 'is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities' (s 32(2)(b) of the SAT Act). The more flexible procedure provided for by s 32 of the SAT Act, however, does require that Tribunal decisions are made on the basis of evidence that has probative force: see Sammut v AVM Holdings Pty Ltd [No 2] [2012] WASC 27 and cases referred to therein.
Further, the Tribunal is bound to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in a proceeding (s 32(7)(a) of the SAT Act). In conducting the proceeding, the Tribunal is to review decisions fairly and according to the substantial merits of the case (s 9(a) of the SAT Act).

Proceedings in the Tribunal

At the initial directions hearing, the Tribunal made orders pursuant to s 24 and s 32 of the SAT Act to facilitate the filing of statements of issues, facts and contentions, relevant documents, and witness statements. In compliance with those orders, on 4 February 2016, the respondent provided to the Tribunal and the applicant the following documents:
1)a statement of issues, facts and contentions dated 3 February 2016 (respondent's SIFC);
2)a statement of reasons for decision dated 3 February 2016 (respondent's Reasons);
3)a s 24 bundle of documents which included:
i)Witness statement of Nicola Hill dated 28 November 2015;
ii)Witness statement of John (Joe) Hill dated 28 November 2015;
iii)Photograph of injured/dead goat dated 28 November 2015;
iv)Dog registration certificate for Shiva dated 1 December 2015;
v)Dog registration certificate for Buddy dated 1 December 2015;
vi)Dangerous Dog declaration notice for Shiva dated 15 December 2015;
vii)Dangerous Dog declaration notice for Buddy dated 15 December 2015;
viii)Witness statement of Delphine Wilson dated 20 January 2016; and
ix)Witness statement of Patrick Bertola dated 29 January 2016.
The respondent's bundle of documents was tendered without objection and comprises Exhibit 2.
On 26 February 2016, the applicant provided the following documents to the Tribunal and the respondent:
1)a statement of issues, facts and contentions dated 26 February 2016 (applicant's SIFC);
2)a s 24 bundle of documents which included:
i)Witness statement of Barrie Robinson dated 18 February 2016;
ii)Witness statement of Kellie Robinson dated 25 February 2016;
iii)Witness statement of Philip Frances Astone dated 25 February 2016;
iv)Report of Garth Jennens, Animal Behaviour Expert dated 25 February 2016;
v)Photographs of dogs Shiva and Buddy November 2015;
vi)Swan Veterinary Hospital report re Shiva 13 January 2015 and 22 February 2016;
vii)Map of the route for walking dogs dated 25 February 2016;
viii)Various photographs and notices of various lost dogs of similar appearance in the vicinity November December 2015;
ix)Copy of council record of registered dogs in the area highlighting those with similar appearance January 2016;
x)Photographs of compliance with dangerous dog declaration notices, fencing and collars February 2016;
xi)Various letters of reference for dogs Buddy and Shiva;
xii)Photographs taken from Brazier Street road reserve February 2016;
xiii)Google Maps images of the view of the goat pen from Hummerston Street 25 February 2016;
xiv)Google Maps aerial view of the vicinity 25 February 2016.
The applicant's bundle of documents was tendered without objection and comprises Exhibit 1.

The issues

As a question of fact, the Tribunal must determine whether the dogs Shiva and Buddy caused injury or damage to a goat at Hummerston Street Mount Helena by an attack on 28 November 2015. If so, the Tribunal must determine whether the discretion to make dangerous dog declarations pursuant to s 33E(1)(a) of the Dog Act should be exercised in all of the circumstances.
It is not in dispute between the parties that on Saturday 28 November 2015 at approximately 8.15 am, an anglonubian goat the property of Mr John 'Joe' Hill of Hummerston Street, Mount Helena, was killed by dogs in an attack within the meaning of s 3(1) of the Dog Act. As this fact of the attack is not in dispute, the Tribunal will henceforth refer to the incident as the attack. The only issue in dispute is whether the applicant's dogs were the dogs which attacked Mr Hill's goat, and if so, whether the correct and preferable decision is for the Tribunal to exercise the discretion to make a dangerous dog declaration pursuant to s 33E(1)(a) of the Dog Act in all of the circumstances.
The Tribunal finds on the balance of probabilities that Shiva and Buddy did not cause injury or damage to Mr Hill's goat by an attack on 28 November 2015 and concludes that the declarations were not properly made.

The statutory framework

Relevantly, s 33E of the Dog Act provides:
(1)A local government, or on behalf of the local government an authorised person or person specifically authorised by the local government for the purposes of this section either generally or in a particular case, may, by a notice in writing given in accordance with section 33F, declare an individual dog to be a dangerous dog (declared) if, in the opinion of the local government or that person
(a)the dog has caused injury or damage by an attack on, or chasing, a person, animal or vehicle; or
(b)the dog has, repeatedly, shown a tendency
(i)to attack, or chase, a person, animal or vehicle even though no injury has been caused by that behaviour; or
(ii)to threaten to attack;
or
(c)the behaviour of the dog meets other criteria prescribed for the purpose of this section.
(2)For the purpose of subsection (1)(b), a dog to which section 30(3) applies shall not be taken to show a tendency to attack, or chase, in carrying out the activities referred to in section 30(3) in relation to a dog of that kind.
…
In this proceeding, the respondent relies upon s 33E(1)(a) as the basis for the declarations. Although respondent's Reasons dated 3 February 2016 also provide that 'the dogs have repeatedly entered a separate property at [No] Lion Street, Mount Helena in November 2015', the respondent does not allege any behaviour identified in s 33E(1)(b) or (c). The exemption referred to in s 33E(2) of the Dog Act has no application in this proceeding.
The term 'attack' in s 3(1) of the Dog Act (unless the context otherwise requires):
[I]n relation to the behaviour of a dog, does not include behaviour which was an immediate response to, and was induced by, provocation, but includes
(a)aggressively rushing at or harassing any person or animal; or
(b)biting, or otherwise causing physical injury to, a person or an animal; …
…
unless the owner establishes that the behaviour was justified by a reasonable cause[.]
There was no issue between the parties as to whether the declarations comply with s 33F of the Dog Act. Further, and for the reasons referred to above, the Tribunal is satisfied that the declarations comply with s 33F of the Dog Act.
As to Mr Dyson's authority to issue the declarations, there was no dispute between the parties that the declarations were validly issued by Mr Dyson, the Manager Health and Community Safety for the Shire of Mundaring, as an authorised person. However, the Tribunal notes that the respondent did not provide the Tribunal with a copy of any certificate evidencing the authority of Mr Dyson to issue the declarations pursuant to the Dog Act.
It is not in dispute that the applicant is the owner of two dogs, Shiva and Buddy. Shiva and Buddy are both registered in accordance with the Dog Act and the respondent's local laws at present, but were unregistered on 28 November 2015.
At the commencement of the hearing, the Tribunal offered the parties the opportunity (subject to any specific objections) to call any other witnesses who had not provided witness statements. This was because the Tribunal was aware that several potential witnesses had attended the hearing as support persons. To preserve the integrity of any evidence, the Tribunal directed that all witnesses (and potential witnesses) should be excluded from the hearing.

The respondent’s evidence

Ms Nicola Judith Hill, who resides in Houston Street, Mount Helena, gave evidence by written statement dated 28 November 2015 (Exhibit 2 tab 1) as well as at the hearing. The Tribunal notes that Ms Hill is not related to the goat's owner, Mr John 'Joe' Hill. In her written statement, she indicated that on 28 November 2015 at about 8.15 am she was walking with her husband and her dogs on Brazier Street, a bush path which connects Bernard and Hummerston Streets. She noticed two dogs, which she described as a medium to large brindle short haired dog and a honey brown coloured dog, barking in a fenced pen. She indicated that the brindle dog was attempting to get out of the pen under the fence. She then noticed a goat lying on the ground trying to get up, and saw the two dogs attack it. She attended at the house to alert the owner. She then observed the two dogs crawl under the fence to get away. She also observed that the goat had multiple wounds to its face and throat.
Ms Hill gave evidence during the hearing that she had first seen the dogs that morning from a distance of about 50 metres, and then from about 30 metres. She gave evidence that at first she watched the dogs for about 20 seconds, thinking they were playing. She said that she thought she recognised the dogs involved in the attack, having seen them in the area about three times during the six months prior to the attack. On those occasions, the dogs had been walking with the applicant, on the applicant's property, and outside the applicant's gate. She indicated that on those occasions she had seen the dogs in full daylight, up close (within 3 to 4 metres). When shown the photograph of the dogs at Exhibit 1 tab 5 by counsel for the respondent, she identified the dogs in the photograph as the same dogs she had seen prior to 28 November 2015 with the applicant and on the applicant's property, and attacking the goat on 28 November 2015. She indicated that she had not seen the dogs since the attack.
In crossexamination, Ms Hill indicated that she wore multifocal glasses for reading, and was not wearing them on her walk on 28 November 2015 as she did not require them for distance vision. She was able to read the time from the digital clock on the opposite side of the hearing room on request without glasses. She indicated that when she telephoned the respondent to report the attack immediately after returning home from her walk on 28 November 2015, she described the dogs as being a medium to large brindle dog with short hair and a medium to large honey coloured dog with short hair, both with long tails. She accepted that she may have also have reported to the respondent that 'I think the dogs are from Lions Street'. She indicated that later on the morning of 28 November 2015, before she prepared her written statement but after she had described the dogs to Ranger Delphine Wilson and told the Ranger where she thought the dogs resided, Ranger Wilson showed her IPad photos of two dogs. Ms Hill identified the photographed dogs as the dogs she had seen attacking the goat. Those photographs were not tendered in evidence.
Ms Hill was asked by applicant's counsel whether, based solely on what she saw at the time of the attack, she could be sure that the dogs in the Exhibit 1 tab 5 photograph were the same dogs she had seen attacking the goat, or whether they just looked similar. Ms Hill responded that the dogs involved in the attack 'look similar to the dogs I've seen in the [Exhibit 1 tab 5] photo, and similar to the dogs that I've seen walking, and similar to the dogs I saw on the IPad that the dog ranger took photos on'. Applicant's counsel asked Ms Hill whether it could be possible that because she had seen the applicant's dogs previously that she had merely presumed that they were the same two dogs who attacked the goat. Ms Hill responded 'it could be possible'. She indicated that although she had been shown the Exhibit 1 tab 5 photograph by respondent's counsel prior to giving a description of the dogs during her evidence to the Tribunal, her memory of the dogs involved in the attack was not affected by the photograph.
When asked by the Tribunal about whether she had discussed the attacks with her husband immediately after the attack, Ms Hill said that her husband had also seen the dogs and they agreed whilst walking back to their home after the attack that the dogs were from 'the house on Lion Street' because they had not 'seen any other dogs like that around'. Ms Hill indicated that her husband had been present when she prepared her statement and although he did not tell her what to write or say, 'he made the odd comment, I can't remember exactly what he said but he did make the odd comment' during preparation. When asked if it was a joint statement, Ms Hill said, 'No, it's more me'. Ms Hill indicated that her husband did not make a statement because 'he wasn't asked'. Although he was present at the Tribunal with his wife on the day of the hearing, and the parties were invited by the Tribunal during the course of the hearing to fill in any evidentiary gaps by calling further witnesses who had not been included in the witness list, Ms Hill's husband was not called by the respondent.
Mr John ('Joe') Hill, who resides in Hummerston Street, Mount Helena gave evidence by written statement dated 28 November 2015 (Exhibit 2 tab 2) as well as at the hearing. In his written statement, he indicated that on 28 November 2015 at about 8.00 am he was awakened by the barking of his two chained dogs. As he was preparing to feed the dogs, he heard a woman's voice calling outside, who reported to him that she had seen two dogs attack his goat. Mr Hill proceeded to the goat pen, where he saw the injured goat. He gave evidence that he returned to the house to alert his partner and to obtain material to cover the wound. When he returned to the pen he saw two dogs, which he described as 'red/brown (white/cream chest)' and 'dark brown/black', about 10 to 15 meters from the goat pen which 'movedoff stealthily in approximately a northerly or northwesterly direction towards Bernard Street'. He gave evidence that he telephoned the ranger at approximately 9.00 am, who later attended and shot the goat. On his statement he indicated that the residence of the dogs was 'unknown'.

Mr Hill also gave evidence during the hearing that the dogs he saw on his property immediately after the attack were the same dogs which he had seen on about six occasions, in full daylight, from varying distances but as close as 10 to 15 metres, in the three to four months prior to the attack. He indicated he had seen the dogs at an address in Lion Street, where they had barked at him, as well as on Hummerston Street and part way up his driveway. He indicated that each time he had seen the dogs they were unaccompanied, and that the dogs were not similar to other dogs in the area. He described them as a large dark brown dog and a large reddish brown dog. He said that he assumed the dogs belonged to the applicant because he knew she lived at the property in Lion Street. He informed the Tribunal that his identification of the dogs on the day of the attack was based on him recognising them as the applicant's dogs and he was unable to describe them.
I recognised these dogs because they were familiar to me. … These terms like brown and things are different, very subjective terms and are different for different people. But the darker one was dark brown, verging on black …. The other one was a much lighter brown, like I would call it a tan colour … light brown … I would say a reddish brown … There was some white on the chest.
Mr Hill gave evidence that after seeing the dogs were still on his property, he returned to the house to get his digital camera and then followed the dogs across his and neighbouring properties for about 5 minutes trying to obtain a photograph but was unable to do so as the dogs did not stop. He indicated that the dogs were about 20 to 30 metres away from him during this time and were walking, not running.
Mr Hill explained the inconsistency between his statement (which indicated the residence of the dogs was 'unknown') with his oral evidence as follows:
At that time I didn’t know the street number and secondarily I didn’t want to commit to making an accusation against someone that might have connotations later on, so I didn’t fill those details in, but that formed part of my discussion with the ranger.
However, he told the ranger in person when she attended that 'those are Barrie's daughter's dogs from over there'. Mr Hill was adamant that he had never been shown any photographs of dogs by Ranger Wilson on the day of the attack.
Mr Hill gave evidence that the day after the attack, the applicant's father Barrie Robinson came to see him to apologise for the attack and offered to replace the goat. He also said that the applicant came by personally shortly thereafter and offered to replace the goat. He conceded that neither Mr Robinson nor his daughter admitted that the dogs had killed the goat.
Under crossexamination, Mr Hill gave evidence that on the morning of the hearing, a ranger named Damian employed by the respondent showed him the Exhibit 1 tab 5 photograph of the applicant's dogs and asked him if 'these were the dogs'. Mr Hill denied that he had otherwise discussed his evidence with the ranger or the other witnesses whilst waiting to give evidence. Mr Hill gave evidence that the Exhibit 1 tab 5 photograph 'was not a good image' but also that he had never seen any other photograph of the dogs. Mr Hill indicated that he was reasonably certain that the dogs in the photograph were the dogs which he saw on his property immediately after the attack, despite the dog in the photograph not having a white chest as described in his statement. He referred to the tan coloured dog in the photograph as being 'reddish brown'.
Mr Hill indicated that he had discussed his evidence extensively with his partner, and that she drafted the statement with him, discussing it at the time. He said he chose not to include in the written statement the information about who owned the dogs. However, when he prepared the written statement he had in his mind that the dogs he was describing were the applicant's dogs. Mr Hill's partner was not called to give evidence for the respondent.
Mr Patrick Bertola, who resides at Lion Street, Sawyers Valley, gave evidence by written statement dated 28 and 29 January 2016 (Exhibit 2 tab 9) as well as at the hearing. In his written statement, he indicated that he was warned by a friend on 25 October 2015 that two dogs were wandering near the corner of Houston and Lion Streets heading generally towards his property. He gave evidence that a few days later, the same friend lost five sheep on a neighbouring property to what 'appeared to be a dog attack'. He indicated that about two weeks later, he found two large dogs on his property, one being a mix of tan and creamy colour, somewhat similar to a German shepherd and the other being a large brindle colour like a bull terrier but larger. He gave evidence that he saw the same two dogs on his property a few days later and found them digging in a spot where he found a rabbit carcass. He indicated that he never saw the dogs again. He identified the dogs which he saw on his property as the dogs in the Exhibit 1 tab 5 photograph.
Mr Bertola also gave evidence during the hearing. He indicated that the dogs in the Exhibit 1 tab 5 photograph 'look very similar, if not exactly the same' as the dogs which he observed on his property. He indicated that he had a clear view of the dogs and was no more than five to six metres away. He gave evidence that there are no similar looking dogs in the area where his property is located.
On crossexamination, Mr Bertola indicated that he is an elected Councillor for the Shire of Mundaring and that he travelled with the rangers in the car to the hearing. He denied that he had discussed the specifics of the matter with the rangers. However, counsel for the respondent had shown him a copy of the Exhibit 1 tab 5 photograph prior to the hearing and told him it was a photograph taken by the applicant of her dogs.
On being asked by the Tribunal how he came to be involved in the matter when he had not reported the incidents the subject of his statement, Mr Bertola gave evidence that it was his friend, Ranger Wilson's partner Graeme, who had phoned him as described in his statement to warn him of the wandering dogs. He also indicated that it was Ranger Wilson and her partner who owned the sheep which had been killed as described in his statement. Although he had not formally reported the incidents involving the dogs on his property, he had discussed it with Ranger Wilson's partner, and Ranger Wilson brought photos of dogs to him to identify after the attack. He indicated that he had not seen the dogs since.
Prior to calling the respondent's final witness, the respondent tendered as Exhibit 3 a document titled Customer Action Request which was described as a 'running sheet' of events documenting the investigating ranger's record of the investigation from the initial messages from Mr Hill and Ms Hill immediately after the attacks to the completion of the investigation. Ranger Wilson's written statement dated 20 January 2016 (Exhibit 2 tab 8) was compiled in reliance on Exhibit 3.
Ranger Wilson also gave evidence at the hearing. She identified Exhibit 3 as the Customer Action Request report she prepared in respect of the investigation. She explained that each entry by a ranger into the 'notes' section of Exhibit 3 was marked with a computerised time and date stamp (which appear in bold text at the top of each entry). She also manually included the dates of incidents where notes were not recorded on the date of occurrence.
Exhibit 3 indicates that a Customer Action Request was 'opened' in the respondent's system on 30 November 2015 at 8:13:29 AM in respect of a dog attack reported by Mr Hill. The description is as follows:
Insight report: Animals: Dog Attack Report only (Mount Helena) Nm: Joe Hill Ph: [Telephone Number] Det: 2 large dogs still wandering dark brown/black reddish/brown attacked my goat ripped throat will need to be put down.
The relevant entries in the 'notes' section are as set out below:
30/11/2015 8:19:27 AM MUNDARING\SOMDW01
29/11/15 Second insight report: - Animals: Dog Attack Report only (Mount Helena) Nm: Nicki Hill Ph: [Telephone Number] Det: 1 brindle large dog short hair/long tail. 1 honey brown short hair medium size dog attacked 1 brown goat. Goat badly mauled. I think dogs are from Lion St.
30/11/2015 8:46:42 AM MUNDARING\SOMDW01
29/11/15 I spoke to Nicki who along with her husband witnessed the attack. She described where she believed that the dogs had come from and gave me a description. I then went to property and spoke to owner of goat who gave me a similar description of the dogs. I went to [number] Lion St and knocked on the door but no answer so I went to Kellie's fathers home and spoke to him. He said that at about 8 am he had gone to his daughters house to take her dogs for a walk but the dogs did not want to go with him so he left them on the front veranda. He phoned his daughter for me and advised that she was at home but had been asleep when I had called around earlier.
I then went back to [number] Lion Street and spoke to Kellie who owns two dogs an entire male dark brindle possibly a Mastiff cross and a female light tan possibly German Shepherd cross. She admitted to me that her dogs are frequently loose as she has a containment collar but believes that somebody is removing the collar. I advised her of what had occurred and she conceded that the male dog could be the culprit but she did not believe that the female would be involved in an attack. I took photos of the dog to show the witnesses and the owners of the goat and advised her that if the witnesses identified the dogs I will need to seize them. She said that she was going out and would be back in the early afternoon but gave me an undertaking that both dogs would be locked in the house. I tried to phone her twice but no answer and called into her property at about 4:30. NOAH so left her a note asking her to phone me today. DW
30/11/2015 1:12:39 PM MUNDARING\SOMDW01
29/11/15 I spoke to Joe who said he was unable to get a Veterinarian out to his goat until later in the day so I offered to euthanize her for him which he gratefully accepted.
I showed Joe the photos of the dogs and he and his partner Anne both identified them as being the two dogs that they had seen in their goat yard. I left them a statement form to fill in.
I then took the photos to Nicki and she and her husband both believed that these were photos of the dogs that attacked the goat. I have given them a statement form to fill in. I also took the photos to show Councillor Patrick Bertola and his wife Ann who had previously advised me that they have had two dogs chasing and killing rabbits in [their] front yard. They both stated that these were the same dogs as the ones they had seen previously in their property. DW
…
30/11/2015 1:28:27 PM MUNDARING\SOMDW01
30/11/15 Joe Hill came into the front counter to deliver his statement. He advised me that Kellie's father Barry Robinson had called into his property to apologise for the attack on his goat. He also told Joe that he believes that his grandson has been the one previously taking the containment collar [off] the dog. DW
1/12/2015 4:39:57 PM MUNDARING\SOMDW01
1/12/15 Averill Robinson came into the shire and registered the dogs and to pay the impound and micro chip fee. She then came up to the pound with her daughter Kelli to collect the dogs. TLCS Damian Stephen and I met them up at the pound and we explained to both of them the ramifications if the dogs get loose again.
Damian also advised that he will be speaking to people in the area who have lost stock recently to ascertain if these dogs have attacked other stock.
We also advised them that the dogs will be declared dangerous and that Ranger Bruce Bergin will take on the case from now on. DW
Under crossexamination, Ranger Wilson acknowledged that she had recently purchased a property which 'came with five sheep' and that the sheep had been 'attacked by dogs and run into a dam and killed'. She was taken off the investigation into the goat attack because of her proximity to the applicant's parent's house, which is opposite Ranger Wilson's new home. She indicated that both she and her husband had seen the applicant's dogs running loose, and made the telephone call Mr Bertola referred to in his evidence to warn him. At that time, she said she had never seen the dogs before.
Ranger Wilson confirmed that on the day of the attack, she took photographs of the applicant's dogs on her IPad and showed them to the witnesses. She did not show them photographs of any dogs other than the applicant's dogs. She stated that Ms Hill told her that the dogs belonged to 'Barrie Robinson's daughter' and that Mr Hill did not know to whom they belonged. She insisted that the date of the attack was 29 November 2015, not the 28^th, and would not accept that she had put the wrong date on her notes. She conceded that the notes were not made contemporaneously, and that her notes of the events of 28 November 2015 (which she insisted took place on 29 November) were made on 30 November 2015 after the investigations were complete. She indicated her view that what she recorded in her notes two days after the events was 'verbatim'.
Ranger Wilson confirmed that when she attended at the applicant's home the first time on 28 November 2015 she knocked on the door and window but no one answered. She went to the side of the house, 'peered around the corner and sung out to see if anyone was there'. She could hear the dogs barking but they did not approach her and she could not see them. She thought they 'sounded like they were outside', perhaps 'in a yard at the back of the house', but did not check.
When crossexamined on her conversation with Barrie Robinson that morning, Ranger Wilson was certain he told her he had taken his own dog for a walk that morning, and had called around to the applicant's home to take her dogs too, but that the applicant's dogs did not want to go so he left them there. When asked if she could be mistaken about this, Ranger Wilson was adamant she could not be, as she had thought it peculiar that dogs would 'turn down a walk'.
When crossexamined on her meeting with the applicant that morning, Ranger Wilson confirmed that she had given the dogs a cursory look for the presence of blood, but had not looked in their mouths or at their teeth. She indicated that the dogs were not aggressive, and she had never seen them be aggressive. Ranger Wilson denied she had told the applicant that the dogs who had attacked the goat were 'black and white staffies', and confirmed that the applicant had told her that she believed Buddy could have done that but Shiva would not have been involved in an attack. Ranger Wilson denied that the applicant told her that 'she had the wrong dogs' because the dogs had been with her all morning apart from a brief walk with her father. Ranger Wilson confirmed that she told the applicant that morning that she was not entirely sure what time the attack had occurred, as she had not yet received any statements. She said she then photographed the dogs to show to the witnesses.
Ranger Wilson acknowledged under crossexamination that most households in the area owned dogs. Applicant's counsel referred Ranger Wilson to an extract from the Shire's register of dogs from the five streets near the attack which indicated that there were approximately 80 registered dogs in the area, some of which were similar in size and colour to the applicant's dogs. Ranger Wilson accepted that she did not investigate whether any of these dogs were involved in the attack, and that she was satisfied the applicant's dogs were the dogs she had seen on Hummerston Street in October 2015 and the dogs identified by the 'three sets of people from the photographs I'd taken'.
Ranger Wilson confirmed that the descriptions which were noted as 'Insight' reports in her notes were likely to be the precise words used by the witnesses when they made their telephone calls immediately after the attacks, and that these descriptions were provided before she showed any photographs to the witnesses. She confirmed that she took no contemporaneous notes during the course of the investigation on the day of the attack and that it was customary for the statement form to be left with witnesses to complete on their own rather than the Ranger interviewing the witnesses and recording their statements. She also confirmed that she had been kept up to date with the status of the investigation despite her proximity conflict, and that she had 'quite a conversation' with the Team Leader Community Safety Damian Stephens about having previously seen the applicant's dogs loose on the road prior to the attack and the need to 'keep an eye on them'. She indicated that this information would have been 'passed on to Adrian [Dyson]' as part of the decision to issue the declarations. Ranger Wilson confirmed that the only risk to the community in respect of the applicant's dogs was their risk to livestock, and that she considered there to be no risk to people. She also confirmed that no further livestock attacks had taken place since November 2015 and that the applicant's dogs had never been seen on the street since the attack.
Ranger Wilson further confirmed that counsel for the respondent had shown her, Damian Stephens and Mr Bertola a copy of the Exhibit 1 tab 5 photograph prior to giving evidence and told them it was a photograph taken by the applicant of her dogs. Ranger Wilson said that she expressed the view during that conversation that the applicant's photograph of her dogs was 'not very clear'. She denied that Mr Hill was present when she expressed that view.

The applicant’s evidence

The applicant Ms Kellie Robinson, who resides in Lion Street, Mount Helena gave evidence by written statement dated 25 February 2016 (Exhibit 1 tab 2) as well as at the hearing. In her written statement, she indicated that on the morning of 28 November 2015, her father walked her dogs, returning them to her house at about 6.40 am. She indicated that Buddy climbed onto the bed and fell asleep. Shiva slept on the floor as she is unable to jump onto the bed. The applicant gave evidence that the dogs remained with her in the bedroom whilst she slept until they woke her at 9.30 am by barking at a knock on the door.
The applicant indicated that Ranger Wilson came to see her later that morning, telling her that a goat had been attacked by 'two dark/black staffies with white head/neck' which the witnesses had identified as her dogs. She indicated that she was certain the Ranger had the wrong dogs, because they did not meet the description and had never been aggressive, but noted that the Ranger would not tell her what time the attack had occurred.
The applicant also gave evidence during the hearing. On crossexamination, the applicant indicated that she now mainly kept her dogs in the house, but that prior to the declarations her dogs had been out on limited occasions. Since the declarations, her dogs had been kept in a fenced enclosure of about 2 metres high from which they were unable to escape, and which had met the Shire's approval upon inspection.
She denied that she had told Ranger Wilson that her dogs frequently ran loose or that Buddy could have been responsible for the attacks. She was certain that she heard her father collect the dogs for a walk but she had no independent recollection of the time. She was certain she heard her father return the dogs at 6.40 am because she checked her phone (which was under her pillow) for the time and shut off her alarm, which had been set for 7 am. She then returned to sleep, with Buddy on the bed and Shiva on the floor beside the bed until about 9.30 am when she heard someone outside knocking, and then Buddy ran to the front door barking. By the time she had answered the door, she saw the Ranger's vehicle leaving.

The applicant confirmed on crossexamination that the dogs were with her in the bedroom (Buddy on her bed and Shiva on the floor beside the bed) for the entire time between 6.40 am (when they returned from the walk) and 9.30 am when she was awakened by the dogs barking and Buddy leaping off the bed. She confirmed that when Ranger Wilson knocked at the front door at about 9.30 am, Buddy leapt off the bed and ran to the front door. When Ranger Wilson knocked on the bedroom window, the dogs returned to the bedroom, barking throughout this time. She indicated that she was certain Buddy remained on the bed whilst she was asleep because his movement on and off the sprung mattress would have disturbed her sleep. She confirmed that all external doors to the house were securely shut, and although the windows were open, they were covered by security grills. She was adamant there was no way for the dogs to get out of the house between 6.40 am and 9.30 am. On the suggestion by counsel for the Shire that her 10yearold son might have let the dogs out, the applicant confirmed that he had stayed with his grandparents the night before, as she came home very late.
The applicant confirmed that she had gone to see Mr Hill after the attack to try to get further information about the attack, but denied that she offered to buy him another goat. In particular, the applicant indicated that she was keen to find out when the attack took place because the Ranger had been unwilling to provide her with this information.
The applicant gave her assurance that the fencing she had erected in the yard following the declarations would remain in place irrespective of the outcome of her application and was willing to give the respondent a formal undertaking to this effect to resolve the matter. She accepted that the fencing in place prior to the declarations was not sufficient to contain the dogs.
Mr Barrie Robinson, the applicant's father, resides in Houston Street, Mount Helena. He gave evidence by written statement dated 18 February 2016 (Exhibit 1 tab 1) as well as at the hearing. In his written statement, Mr Robinson indicated that he entered his daughter's house through the back door at approximately 6.10 am on 28 November 2015 to walk her dogs, and that for the duration of the walk the dogs were on their leads. At approximately 6.40 am, he returned to the applicant's house, again entering through the back door, where he released the dogs from their leads. He then closed the door firmly behind him, leaving the dogs locked inside.
Mr Robinson gave evidence that at about 9.40 am, Ranger Wilson came to his house enquiring about the whereabouts of the applicant and her dogs. He contacted the applicant and informed her that Ranger Wilson needed to speak to her, and told Ranger Wilson that the applicant would wait for her at her home.
Under crossexamination, Mr Robinson confirmed that he was certain of the time he walked the dogs because as a former marathon runner, he keeps a detailed diary of daily events, including such things as exercise and walking. He confirmed that on as many as six times prior to November 2015, the dogs had, on their own volition, left the applicant's property and walked to his own, about a kilometre away. He indicated that he always fed the dogs when they arrived, to make sure the dogs would come straight to his house if they got loose. He confirmed that the dogs had not arrived on their own at his property since the declarations. Mr Robinson confirmed that the applicant's son had stayed with him on the night of 27 November 2015.
Mr Robinson adamantly denied that he told Ranger Wilson that he had gone to the applicant's house at 8 am and the dogs had refused a walk. He explained that he had no reason to say this, given what he had contemporaneously recorded in his diary on the day. He acknowledged that he had gone to see Mr Hill the following day and said he would 'have a chat to Kellie' to see if she wanted to replace the goat or pay him for it. He indicated, however, that this was because Ranger Wilson had told him that the applicant's dogs had killed the goat and at the time he had no reason to question this.
Mr Robinson also confirmed that he returned the dogs into the applicant's house through the back door after the walk on the morning in question and did not see the dogs again that morning. He confirmed that when he spoke to his daughter about the attack she indicated that she did not believe her dogs were involved.
The applicant tendered a witness statement prepared by Mr Phillip Astone, a dog and horse trainer, dated 25 February 2016 (Exhibit 1 tab 3). Mr Astone's statement indicated that he examined Buddy at his property and conducted various tests, including a 'temperament test', an 'aggression test' and a 'prey drive test'. He concluded as result of these tests and his assessment of Buddy that Buddy is a 'balanced and stable dog'. Mr Astone was not called to give evidence at the hearing or be crossexamined.
The applicant tendered a report from Dr Garth Jennens, Animal Behaviour Consultant, dated 25 February 2016 (Exhibit 1 tab 4). Dr Jennens also gave evidence during the hearing. Dr Jennens gave evidence that he examined Shiva and Buddy at his property and observed their behaviour around other dogs and a ram and a sheep, and indicated that they 'showed very little interest in the presence of the sheep nor when the sheep moved away from them'. Dr Jennens gave evidence that there was a low likelihood of the dogs 'reoffending'. He noted that Buddy had been sterilised and matured since November and that Shiva was very restricted in her movement. He indicated that predatory behaviour in dogs was normal and that most medium sized dogs are capable of livestock attacks. He gave evidence that containment was the key to ensuring abstinence from livestock attacks for nearly any dog. Dr Jennens opined that the dogs would be securely contained by the two metre high fencing the applicant had installed in her property.
The applicant also provided numerous 'letters of reference' for her dogs to the effect that they were neither aggressive nor dangerous.

The Tribunal's findings

It is not possible that the applicant's dogs were in her bedroom and also on Mr Hill's property at the time of the attack. Either the applicant lied or is mistaken as to whether the dogs were in her bedroom with her between 6.40 am and 9.30 am on 28 November, or Mr Hill and Ms Hill lied or were mistaken as to the identity of the dogs which they saw on Mr Hill's property between about 8 am and 8.15 am on 28 November. Having heard and carefully assessed the relevant witnesses, the Tribunal makes the following findings concerning the credibility and reliability of witnesses and evidence.
Ranger Wilson, on behalf of the respondent and under the supervision of the respondent's Team Leader Community Safety Damian Stephens and Manager Health and Community Safety Services Adrian Dyson, was responsible for investigating the attack and reporting her findings. Ranger Wilson gave evidence that she took no contemporaneous notes and the written record of her investigation was compiled after the investigation was complete, some two days later. It contained obvious errors (such as the date of the attack) and was inconsistent with the evidence of a number of other witnesses (such as what Mr Robinson told her about his walk with the dogs the morning in question, details of what various witnesses told her, and to whom she had shown the photographs). Nevertheless, in crossexamination Ranger Wilson refused to accept that her version of events could be mistaken (even as to the date of the attack when counsel for the applicant assured her it was the 28 November) and insisted that she had recorded her versions of the conversations 'verbatim' some 48 hours later.
Furthermore, whilst Ranger Wilson and other witnesses gave evidence to the effect that dogs of the colour and size of Shiva and Buddy were not common in the area, it was apparent from the extract from the dog register that this is not the case. There were some 80 dogs registered as residing in the area near where the attack took place, many potentially falling within the descriptions offered by Mr Hill and Ms Hill (including Staffordshire bull terriers coloured brindle (two), black (three), fawn and white, and tan; a brown and white heeler; four Rottweilers; a cream Labrador cross, several tan and/or black and tan kelpies; and a black and tan German Shephard). Ranger Wilson gave evidence that she was satisfied on the verbal descriptions from Mr Hill and Ms Hill, and Ms Hill's viewing of a photograph (which was not tendered into evidence) that the dogs in question were the applicant's dogs and conducted no further enquiries.
Ranger Wilson also gave evidence that despite her removal from the investigation due to a 'proximity interest', she was kept up to date with the status of the investigation, and provided an oral report to Ranger Stephens on the investigation. She gave evidence that she had 'quite a conversation' with Ranger Stephens about having seen the applicant's dogs loose on the road previously, and the need to 'keep an eye on them'. She indicated that this information would have been 'passed on to Adrian [Dyson]' to be considered in his decision to issue the declarations.
The Tribunal's role is to review the respondent's decision to declare the applicant's dogs dangerous by way of a hearing de novo on the basis of the information and evidence before the Tribunal at the time of the review. It is unnecessary for the Tribunal to consider the investigation processes commented on above except to the extent that they affect the quality of the evidence before the Tribunal. In the present case, the Tribunal is satisfied that the respondent's investigation processes had a significant impact on the credibility and reliability of the evidence.
For the reasons outlined above, the Tribunal does not accept the Customer Action Request (or any evidence derived from it) as an accurate record of what transpired in the course of the investigation. Where the evidence of Ranger Wilson conflicts with the evidence of the other witnesses, the Tribunal prefers the evidence of the other witnesses. Furthermore, the Tribunal must evaluate the quality of the eyewitness evidence as to the identity of the offending dogs in the context of the evidence that there were some 80 dogs registered as residing in the area near where the attack took place, with many potentially falling within the descriptions offered by Mr Hill and Ms Hill, but that no investigation was undertaken and no evidence was tendered by the respondent as to the whereabouts of any other dogs on the morning of the attack.
Ms Hill is the only witness to the attack or its aftermath who was truly independent. She was merely a passerby who happened upon the attack. She had no reason to provide anything other than a frank and honest description of the events she witnessed. Ms Hill's description of the dogs in her initial telephone report of the attack was virtually identical to her description of the dogs in her written statement prepared some hours later. In crossexamination, Ms Hill indicated that the dogs involved in the attack 'look similar to the dogs I’ve seen in the [Exhibit 1 tab 5] photo, and similar to the dogs that I've seen walking [with the applicant], and similar to the dogs I saw on the IPad that the dog ranger took photos on'. Ms Hill conceded on crossexamination that 'it could be possible' that because she had seen the applicant's dogs previously that she had merely presumed that they were the same two dogs who attacked the goat. The Tribunal is satisfied that Ms Hill is a witness of truth and her evidence was given honestly and to the best of her recollection. At best, however, such evidence attests to Ms Hill seeing two dogs that were similar to the applicant's dogs in the context of potentially numerous similar dogs in the area.
Mr Hill lost his goat to the attack, which was an emotional experience for him. Apart from this, he was also an independent witness. He was not interested in compensation, and appeared to be a reluctant witness who did not want to cause conflict in his community. There was a significant variation between his contemporaneous evidence and his evidence at the hearing concerning his description of the dogs. In his telephone call to the respondent reporting the attack, Mr Hill described the dogs as 'dark brown/black and reddish/brown'. This is largely consistent with the description provided in his statement later that day that the dogs were 'dark brown/black and red/brown with white/cream chest'. At the hearing, however, after having viewed a photograph of the applicant's dogs for the first time shortly before giving evidence, his description of the 'reddish brown dog' varied from 'a tan colour' to 'light brown' and back to 'reddish brown'. The applicant's dogs are described in the respondent's dog registration records as brown/brindle (Buddy) and fawn/brown with black tip ears (Shiva). Whilst the Tribunal is satisfied that Mr Hill gave evidence honestly and to the best of his recollection, the Tribunal finds that Mr Hill's recollection of the dogs he saw on his property directly after the attack is of limited reliability as it appears to have been overlaid by subsequent evidence.
In closing submissions, the respondent referred to the applicant's and her father's version of events as 'concocted' and 'manufactured'. The Tribunal is not satisfied this was the case. Mr Robinson appeared to the Tribunal to be a highly regimented individual with a very clear and firm recollection. The Tribunal finds that he gave honest evidence as to his concerns, prior to the attack, about the applicant's dogs wandering away from her property unaccompanied, and his efforts to assist the applicant to comply with her obligation to control her dogs. He seemed genuinely frustrated by the applicant's lax approach to restraining her dogs from time to time. For these reasons, the Tribunal is satisfied that he gave truthful evidence as to the timing of his walk with the applicant's dogs and whether he secured them in the applicant's house at about 6.40 am after the walk. The Tribunal is also satisfied that he gave truthful evidence as to where the applicant's son slept on the evening before the attack.
Counsel for the respondent attacked the applicant's credibility on the basis that her evidence as to the number of times her dogs had wandered off her property was inconsistent with her father's evidence on this point. The inference invited appears to be that the applicant 'minimised' the dogs' independent excursions, either intentionally (to protect her dogs) or inadvertently (because she lacked objectivity in respect of their behaviours). The Tribunal does not accept this inference. Mr Robinson gave evidence that the dogs tended to wander off through the open gate when the applicant was not home. The applicant indicated that this happened when she was at work. Clearly Mr Robinson was in a better position to know how many times this had occurred, and no negative inference necessarily follows.
The Tribunal also declines to accept the inference invited by counsel for the respondent that the applicant's evidence as to where the dogs were at the time of the attack was similarly unreliable. The Tribunal accepts that the applicant, like any other pet owner, had a clear interest in 'exonerating' her dogs. However, this does not necessarily mean that her evidence lacks credibility. The Tribunal is satisfied that the applicant gave clear, consistent, and detailed evidence as to why she would have woken if Buddy had jumped off the bed whilst she slept, and why it was impossible for the dogs to have left the house. Her evidence that her son had not slept at home the evening before was credible and independently corroborated by her father. She also gave very detailed and specific evidence as to what the dogs did when Ranger Wilson knocked on her door and window at her first visit at about 9.30 am. Her certainty and clarity on this issue is more persuasive than Ranger Wilson's evidence that she could hear the dogs barking but thought they 'sounded like they were outside', perhaps 'in a yard at the back of the house', but did not check. The Tribunal accepts both the applicant's and Mr Robinson's evidence as credible, reliable, and truthful.
The Tribunal is not satisfied that the evidence of Mr Bertola was relevant to any fact at issue, other than whether the applicant's dogs had ever been loose prior to the attack. His identification of the dogs on the morning of the attack is immaterial. Likewise, the evidence of Mr Astone and Dr Jennens was not relevant to whether the applicant's dogs attacked Mr Hill's goat.
Finally, as to whether the applicant and Mr Robinson offered to replace Mr Hill's goat or compensate him for it, the Tribunal is not satisfied that this supports an inference that the applicant's dogs attacked the goat. Mr Robinson, who admits that he did discuss this with Mr Hill, was clear that he did so because Ranger Wilson told him that his daughter's dogs killed the goat, and in the absence of the relevant details, he accepted this at the time. That Mr Robinson was prepared to apologise and or discuss compensation in such circumstances does not mean that the dogs, in fact, killed the goat. The applicant herself does not accept that she made any such offer. Even if she had, at that time she was unaware of the relevant facts, particularly what time the attack took place. In such circumstances, the Tribunal is not satisfied that an adverse inference necessarily follows.
For these reasons, the Tribunal is not satisfied on the available evidence that the applicant's dogs attacked Mr Hill's goat. Although the Tribunal accepts:
•Ms Hill's evidence she saw two dogs attack Mr Hill's goat at about 8.15 am, and that those dogs were similar to the applicant's dogs; and
•Mr Hill's evidence that he saw two dogs on his property immediately after the attack, one of which was similar to the applicant's dog Buddy, and another which was a red/brown dog with a white/cream chest;
The Tribunal is not satisfied on the available evidence that it is more probable than not that that these dogs were the applicant's dogs Shiva and Buddy. Rather, the Tribunal prefers the applicant's very clear and specific evidence and finds that Buddy and Shiva were in the applicant's bedroom at all times between about 6.40 am and 9.30 am and could not have been simultaneously attacking Mr Hill's goat.
As the Tribunal finds that both Mr Hill and Ms Hill gave evidence to the best of their ability and recollection, it necessarily follows that Mr Hill and Ms Hill must have been mistaken as to the identities of the dogs they saw on Mr Hill's property.

Consideration

Because the Tribunal is not satisfied on the balance of probabilities that Shiva and Buddy caused injury or damage by an attack on Mr Hill's goat, the correct and preferable decision is that dangerous dog declarations be set aside.
Although it is unnecessary to do so in light of the above findings, for the sake of completeness, the Tribunal will proceed to determine whether, had the Tribunal been satisfied that the applicant's dogs attacked Mr Hill's goat, the correct and preferable decision would have been that the dogs be declared 'dangerous'.
There was significant evidence before the Tribunal that prior to the attack, the applicant's dogs were frequently seen wandering outside her property without human supervision and that the applicant failed to keep her dogs registered.
The applicant gave evidence that she had installed fencing on her property and the dogs were now fully contained. She was willing to provide an undertaking to the respondent that the fencing would remain in place irrespective of whether the declarations remained in effect. The respondent was unwilling to accept the undertaking in light of the applicant's prior apparent failures to comply with her responsibilities under the Dog Act. The respondent maintained that but for the respondent's decision to make the declarations on 15 December 2015, the applicant's dogs would likely still be running loose, and in the absence of the declarations, she lacked motivation to properly restrain the dogs. The Tribunal considers there is some merit in the respondent's submission. Nevertheless, the fencing is now in situ and the applicant gave clear evidence that she intends to leave it in place.

The evidence of Dr Jennens was to the effect that predatory behaviour is relatively normal in dogs, and the only way to prevent this is complete separation of dogs and livestock, or constant supervision of the dogs. Dr Jennens expressed the view that both Shiva and Buddy were good with people and other dogs, and presented no risk to the safety of the community in this regard. Ranger Wilson agreed with this view, and the Tribunal accepts this evidence. Although Dr Jennens went on to draw conclusions as to the propensity or likelihood of Shiva and Buddy engaging in another attack on livestock, either together or separately, the Tribunal places little weight on Dr Jennens' evidence in this regard because Dr Jennens' opportunity to observe the dogs was very limited and made in a controlled environment.
As noted by the Tribunal in Ioppolo and City of Wanneroo [2013] WASAT 172:
The purpose of s 33E of the Dog Act is public safety. The public should feel safe and be safe from dogs that are aggressive. The restrictions and requirements that flow from a declaration serve to warn the public about dogs that have been aggressive. The purpose of s 33E of the Dog Act is not to punish the dog or the owner of the dog. It is not penal in nature.
In the present case, even if the Tribunal were satisfied that the applicant's dogs had attacked Mr Hill's goat, the Tribunal would still be satisfied that there is no risk to the general public from the applicant's dogs, and that the only potential risk posed would be to livestock. The Tribunal accepts that the risk identified would be similar to the risk posed by many dogs residing in a rural area. The Tribunal would not have been satisfied in such circumstances that it would be necessary for public safety to warn the public about the applicant's dogs through the provisions of the Dog Act. Provided the applicant complies with her obligations under the Dog Act to control her dogs there would be no risk to livestock from her dogs. The fencing installed by the applicant was inspected by the respondent and deemed acceptable for the purpose of controlling the applicant's dogs, and the applicant was prepared to agree to an undertaking that it remain. In such circumstances, the Tribunal would have been satisfied that the risk of further livestock attack had been sufficiently addressed by the existence of the fencing.

Costs

The law concerning costs in review matters was recently reviewed by the Tribunal in Teissier and Commissioner of State Revenue [2016] WASAT 40. Relying on the principles articulated in that decision, the Tribunal is not satisfied that there is a good reason to depart from the general principle that the parties ought to bear their own costs (per s 87(1) of the SAT Act). In particular, the Tribunal is not satisfied that the factors identified in s 87(4)(a) or (b) warrant a departure from the general principle in the present matter. Despite the failings in the investigation process, the Tribunal is satisfied that the respondent genuinely attempted to make a decision on the merits based on the information available to it at the time. There was a genuine dispute as to the identity of the offending dogs and whether the declarations were necessary to protect public safety. For these reasons, the Tribunal is satisfied that there should be no order as to costs.

Orders

For the above reasons, the Tribunal will issue the following orders:
1. The applications are deemed to be pursuant to s 33F(2)(b)(ii) and s 33I(1)(b) of the Dog Act 1976 (WA).
2.The decision of the respondent to declare the applicant's dog, Shiva, Registration No 162157, a dangerous dog, and the declaration made on 15 December 2015 by the respondent that Shiva is a dangerous dog, is set aside on review.
3. The decision of the respondent to declare the applicant's dog, Buddy, Registration No 162156, a dangerous dog, and the declaration made on 15 December 2015 by the respondent that Buddy is a dangerous dog, is set aside on review.
4.There be no order as to costs.

I certify that this and the preceding [95] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS K WHITNEY, MEMBER