Roy v Brisbane City Council - [2019] QCAT 311

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Roy v Brisbane City Council [2019] QCAT 311

PARTIES: EDWIDGE ANGELE GEORGETTE ROY

(applicant)

v

BRISBANE CITY COUNCIL

(respondent)

APPLICATION NO/S:

GAR108-19

MATTER TYPE:

General administrative review matters

DELIVERED ON:

15 October 2019

HEARING DATE:

15 August 2019

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver

ORDERS:

The decision of the Respondent making the Dangerous Dog Declaration is set aside and instead there be a Menacing Dog Declaration.

CATCHWORDS:
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – animals – dangerous dog – where unprovoked attack causing bodily harm – where bodily harm constituted three puncture wounds to the back of the leg – where Dangerous Dog Declaration made – where the dog had undergone training and assessment by an experienced handler – whether the attack was a serious attack – whether Menacing Dog Declaration should be made in lieu of Dangerous Dog Declaration.

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

Animal Management (Cats and Dogs) Act 2008 (Qld),
s 89, s 94

Imbrogno & Anor v Brisbane City Council [2017] QCATA 148

APPEARANCES & REPRESENTATION:

Applicant:

A Greenway, solicitor of Lawyers for Companion Animals

Respondent:

Mr Cartledge, solicitor of Brisbane City Council

REASONS FOR DECISION

Dr Roy[1] is the owner of a Kelpie cross medium sized dog known as “Keziah”. She also has another dog known as “Zeus”. She lives with her husband and son in Kelvin Grove and takes the dogs to Bancroft Dog Park, which is nearby, for exercise .
[1]Dr Roy holds a Doctorate in Pharmacy and in Immunology and is employed as a Researcher at the University of Queensland.
On 5 January 2019, late in the afternoon around 6.15pm, she and her son took both dogs to the dog park. When they arrived Sally Mahoney, her partner Nicholas Mayer-Miller, with their daughter Ophelia, who was playing with their dog, were also there.
Dr Roy released both her dogs in the off-leash area. Ophelia’s dog, on seeing Keziah and Zeus ran over to them and tried to play with Zeus. Ophelia ran after her dog and was holding a stick in her hand and calling out to her dog. On Dr Roy’s version of events she was also waving the stick at Zeus. Dr Roy says she was about two to three metres away from the dogs while this was going on.
Ms Mahoney and Mr Mayer-Miller were also watching the events unfold but were not quite as close as Dr Roy. They were a little further away with Ms Mahoney on one of the park benches which is depicted in the photos annexed to Dr Roy’s material. They do not agree that Ophelia was waving the stick or calling out, but agree that she was holding a stick which was about 30cm long. In the end this makes little difference to the outcome of this matter.
While this interaction was going on, Keziah was standing a little way off and about 30 degrees…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Roy v Brisbane City Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] QCAT 311
Decision Date: 15 October 2019

CaseChat Overview and Summary

In the case of Roy v Brisbane City Council, the respondent made a Dangerous Dog Declaration in relation to Keziah, a dog owned by the appellant. The appellant challenged the decision, contending that the attack on the complainant was unprovoked but was instead a reaction to the complainant’s conduct. The Queensland Civil and Administrative Tribunal was required to determine whether the attack was unprovoked and whether the Dangerous Dog Declaration should be set aside in favour of a Menacing Dog Declaration. The Tribunal found that the attack was unprovoked and that the Dangerous Dog Declaration should be set aside in favour of a Menacing Dog Declaration.

The key issue in this case was whether the attack on the complainant was unprovoked and warranted a Menacing Dog Declaration instead of a Dangerous Dog Declaration. The appellant argued that the complainant’s conduct may have provoked the attack, while the respondent argued that the attack was unprovoked and warranted a Dangerous Dog Declaration. The Tribunal considered the evidence before it, including the witness statements of Mr Ferguson, Troy Casey and Mark McConnie, and found that the attack was unprovoked. The Tribunal noted that while provocation is not necessarily a defence, there may be circumstances where the conduct of the victim was the direct cause of a dog to bite. However, in this case, the Tribunal found that Keziah’s attack on the complainant was unprovoked and unwarranted, and that the Dangerous Dog Declaration should be set aside in favour of a Menacing Dog Declaration.

The Tribunal found that the attack was unprovoked and that the Dangerous Dog Declaration should be set aside in favour of a Menacing Dog Declaration. The Tribunal noted that while the complainant was coming towards Keziah waving a stick in the air and shouting at her two dogs, this did not constitute provocation in the circumstances. The Tribunal found that Keziah was very jumpy and more energetic than the other two dogs, and that she moved across about 2 to 3 metres to behind the complainant and bit her on the leg without any threat or provocation. The Tribunal concluded that the attack was unprovoked and unwarranted, and that the Dangerous Dog Declaration should be set aside in favour of a Menacing Dog Declaration.

The Tribunal set aside the Dangerous Dog Declaration and made a Menacing Dog Declaration instead. The appellant was ordered to pay the respondent’s costs of the internal review and the proceedings before the Tribunal.

Orders

Orders of the court

The decision of the Respondent making the Dangerous Dog Declaration is set aside and instead there be a Menacing Dog Declaration.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The Council have provided statements of Mr Ferguson, referred to above, Troy Casey and Mark McConnie. They deal with the factual circumstances of the Council’s investigation which is not controversial. The Council can declare a dog dangerous in certain circumstances. Section 89 of the Act relevantly provides that: (1) Any local government may, by complying with the requirements of this part – (a)declare a particular dog to be a declared dangerous dog (a dangerous dog declaration); or (b)declare a particular dog to be a declared menacing dog (a menacing dog declaration); or …(2)A dangerous dog declaration may be made for a dog only if the dog: (a)has seriously attacked, or acted in a way that caused fear to, a person or another animal; or (b)may in the opinion of an authorised person having regard to the way the dog has behaved towards a person or other animal, seriously attacked, or acted in a way that causes fear to, the person or animal. (3) A menacing dog declaration may be made for a dog only if a ground mentioned in subsection (2) exists for the dog except that the attack was not serious. …(7) In this section seriously attacked means to attack in a way causing bodily harm, grievous bodily harm or death. Upon undertaking the investigation and considering the response from the issuing of the Notice, if the Council considers that the requirements of s 89 have been satisfied, it can then make a declaration under s 94. That section provides that: (1) The local government must consider any written representations and evidence accompanying them within the period stated in the proposed declaration notice. (2) If after complying with subsection (1), the local government is satisfied that the relevant ground under section 89 still exists, it must[3] make the regulated dog declaration for the dog. [3]My emphasis There is of course the internal review process that I mentioned above but here, that review did not alter the Council’s initial decision to make the dangerous dog declaration. There is no dispute that Ophelia was bitten on the back of the leg by Keziah and injury constitutes bodily harm as defined in Schedule 2 of the Act. Dr Roy contends that as Ophelia was coming towards her waving a stick in the air and shouting at her two dogs and telling Zeus to go away she may have provoked Keziah into becoming excitable which led to the biting incident. However, Mr Mayer-Miller was watching Ophelia and noted that Keziah was very jumpy, and more energetic than the other two. Although he noticed the stick in Ophelia’s hand, he says she was not waving it around and was not threatening any of the dogs, bearing in mind that Ophelia is 8 years old. On this version, Keziah’s attack on Ophelia was clearly unprovoked and unwarranted. I am prepared to accept this was the case. Although provocation is not necessarily a defence, there may well be circumstances where the conduct of the victim was the direct cause of a dog to bite In this case, it seems to me that irrespective of either view, it makes little difference to the outcome because Keziah was not threatened, left the company of Dr Roy, moved across about 2 to 3 metres to behind Ophelia and bit her on the leg.

CITATION:	Roy v Brisbane City Council [2019] QCAT 311
PARTIES:	EDWIDGE ANGELE GEORGETTE ROY
(applicant)
v
BRISBANE CITY COUNCIL
(respondent)
APPLICATION NO/S:	GAR108-19
MATTER TYPE:	General administrative review matters
DELIVERED ON:	15 October 2019
HEARING DATE:	15 August 2019
HEARD AT:	Brisbane
DECISION OF:	Member Richard Oliver
ORDERS:	The decision of the Respondent making the Dangerous Dog Declaration is set aside and instead there be a Menacing Dog Declaration.
CATCHWORDS:	ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – animals – dangerous dog – where unprovoked attack causing bodily harm – where bodily harm constituted three puncture wounds to the back of the leg – where Dangerous Dog Declaration made – where the dog had undergone training and assessment by an experienced handler – whether the attack was a serious attack – whether Menacing Dog Declaration should be made in lieu of Dangerous Dog Declaration. Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20 Animal Management (Cats and Dogs) Act 2008 (Qld), s 89, s 94 Imbrogno & Anor v Brisbane City Council [2017] QCATA 148
APPEARANCES & REPRESENTATION:
Applicant:	A Greenway, solicitor of Lawyers for Companion Animals
Respondent:	Mr Cartledge, solicitor of Brisbane City Council