SARLIJA & REGISTRAR, DOMESTIC ANIMAL SERVICES (Administrative Review)
[2012] ACAT 62
•10 September 2012
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
SARLIJA & REGISTRAR, DOMESTIC ANIMAL SERVICES
(Administrative Review) [2012] ACAT 62
AA 35 & 36 of 2012
Catchwords: ADMINISTRATIVE REVIEW – refusal to issue dangerous dog licences - factors under section 25(2) of the Domestic Animals Act 2000 – recommended action by domestic animal services
Tribunal: W.G Stefaniak, Appeal President
Date of Orders: 10 September 2012
Date of Reasons for Decision: 11 September 2012
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 35 & 36 of 2012
BETWEEN: MIRA SARLIJA
Appellant
(AA 12/35)
AARON SARLIJA
Appellant
(AA 12/36)
AND:
REGISTRAR, DOMESTIC ANIMAL SERVICES Respondent
TRIBUNAL: W.G Stefaniak, Appeal President
DATE: 10 September 2012
ORDER
Appeal dismissed.
The decision of Senior Member Lennard of 17 July 2012 is confirmed.
ACAT recommends before a application can be accepted or rejected:
a) that Domestic Animal Services (DAS) clearly inform applicants for Dangerous Dog Licences orally of what is required including making it clear that owners have 28 days to secure their premises or such other time to do so as agreed with DAS; and
b) DAS in all instances, inspect the premises prior to formally accepting or rejecting an application for a Dangerous Dog licence.
Signed………………..
W.G Stefaniak
Appeal President
REASONS FOR DECISION
- The appellants appealed against a decision on 17 July 2012 by Senior Member Jann Lennard to confirm the decision of DAS (domestic animal services) to refuse to issue a dangerous dog licence to the appellants for their 2 dogs (aged 7).
- My review of the evidence and my reasons for decision can be found in the transcript of proceedings on Friday 7 September 2012. As the transcript records over an hour of reasons and observations, I felt it prudent to summarise my reasons for decision.
- The 2 dogs in question were apprehended in Fisher on 2 April 2012 after escaping from their yard and killing 1 little dog and 2 cats in the suburb of Fisher. The 3 dead animals were killed in their own yards (the 2 dogs on occasions jumping fences to get into other yards). The 2 dogs had also escaped on 16 February 2012 and again on 22 February 2012 and I am satisfied that they killed a cat on 22 February. The incidents of injury to other animals on 16 February could not be definitively attributed to these 2 dogs. There were no other instances of the 2 dogs ever escaping from their yard.
- The decision to refuse a dangerous dog licence was made prior to any inspection being undertaken of the appellants’ yard and I commented on this at length in my oral decision. I recommended that DAS take certain action in future to address this issue. DAS, in my view, must inspect the premises prior to making a final decision. It is also important to explain the Section 25 criteria to applicants for dangerous dog licences and advise them that even if the premises are made secure, there are other factors that also must be satisfied before a licence is issued. In this appeal, I found the premises were not inspected until Senior Member Leonard went there for a view and were not reinspected until 23 August 2012 in response to a direction issued by me at a directions hearing of the appeal on 14 August 2012. When the appeal tribunal conducted a view on 7 September 2012 considerable improvements had been made , but more work needed to be done which would potentially cost a lot of money, money the appellant didn’t have readily available immediately. .
- Accordingly, in assessing the criteria of section 25 of the Domestic Animals Act 2000 I found as follows.
a) Section 25 (2) (a), (b), and (c) that dealt with the security of the
premises and suitability of the premises still had not been fully addressed (although substantial improvements had been undertaken). It was still unclear exactly when and indeed if the appellants were financially capable of finishing the job. Had this been the only issue of concern, I would have adjourned the hearing to give them a chance to finish the job. Had the 2 dogs merely annoyed or injured in a minor way other animals, this approach would have been reasonable. However the suitability and security of the premises are only one factor to consider in issuing a dangerous dog licence.
b) Section 25(2) (e) is not a factor in this case as the appellants did not
have any previous findings against them. It was their first offence.
c) Section 25(2) (d) is a factor of relevance although in this case the dogs
seemed to have done the damage outside of the immediate neighbourhood. Nevertheless if the dogs did get out for whatever reason, or escaped from their owners control whilst outside the premises, there was the potential for trouble.
d) Section 25(2) (f) was of significant relevance in this case. I found that
if the dogs did escape the control of their owners there was a very real probability, given their previous history, of the” likelihood of harm being caused to any member of the public or an animal”- especially to cats and small dogs . Whilst there was little likelihood of harm to adults, I accepted the argument that a small child holding onto a cat or a small dog to protect it could indeed end up being “collateral damage”.
e) Section 25 (5) is also relevant. Both myself on appeal and the
tribunal below, considered the fact that these dogs had been responsible for 4 deaths. 3 cats and one little dog. Members of the public in Fisher were justifiably concerned about the vicious and unexplained nature of these attacks. Four residents and their families had lost their pets and in some instances seen them mauled before their eyes. The public reaction and expectation was that steps needed to be taken to ensure these dogs never got out again. I found this to be quite understandable. I could not discount the expectation among member of the public that to ensure community safety and as a result of these dogs killing four other animals, they should be put down.
- Taking all these matters into account, it was my view that I would be failing in my duty to the public if I did not dismiss the appeal and affirm the decision of Senior Member Lennard which I found to be correct. The appellant Ms Sarlija was fully advised of her rights to appeal and encouraged to get some legal advice before hand if she wished to take that step.
Bill Stefaniak
Appeal President
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A FILE NO: AA 12/35
AA 12/36
APPLICANT: Mira and Aaron Sarlija
RESPONDENT: Registrar of Domestic Animal Services
COUNSEL APPEARING: APPLICANT:
RESPONDENT:
SOLICITORS: APPLICANT:
RESPONDENT:
Act Government Solicitor
Ms Lisa Tomlins
OTHER: APPLICANT:
RESPONDENT:
TRIBUNAL MEMBER/S: W.G Stefaniak, Appeal President
DATE/S OF HEARING: 10 September 2012 PLACE: CANBERRA
DATE/S OF DECISION: 11 September 2012 PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
1
0
0