Sarlija v Registrar, Domestic Animals Services
[2012] ACAT 57
•17 July 2012
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
SARLIJA & REGISTRAR, DOMESTIC ANIMAL SERVICES
SARLIJA & REGISTRAR, DOMESTIC ANIMAL SERVICES (Administrative Review) [2012] ACAT 57AT 32 of 2012
AT 34 of 2012
Catchwords: ADMINISTRATIVE REVIEW - review of decision to refuse dangerous dog licences – dog attacks on animals – factors under section 25(2) of the Domestic Animals Act 2000 - size and nature of the premises where dogs kept - security of premises - suitability of facilities - potential impact on others - likelihood of harm being caused to people or animals – purpose of legislation – reliability as opposed to credibility of applicants as responsible dog owners
List of legislation: ACT Civil and Administrative Tribunal Act 2008, s 68
Domestic Animals Act 2000
, ss 22, 25 and 120, and
Division 2.3
List of cases: Bugter v Moorabool Shire Council [2011] VCAT 1833
Clare and Gilbert Valleys Council v Crawford
[2005] SADC 135
Gubbins v Wyndham City Council [2004] VSC 238
Robertson v Domestic Animal Services [unreported, 20 August 2009]
Tribunal: Ms Jann Lennard, Senior Member
Date of Orders: 17 July 2012
Extempore Reasons for Decision: 17 July 2012
Published Reasons for Decision: 20 August 2012
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 32 of 2012
AT 34 of 2012
BETWEEN:
AARON SARLIJA
Applicant
AND:
REGISTRAR, DOMESTIC
ANIMAL SERVICES
Respondent
BETWEEN:
MIRA SARLIJA
Applicant
AND:
REGISTRAR, DOMESTIC
ANIMAL SERVICES
Respondent
TRIBUNAL: Ms Jann Lennard, Senior Member
DATE: 17 July 2012
ORDER
The Tribunal orders that:
The decision to refuse a Dangerous Dog licence is confirmed.
sgd
Ms Jann Lennard
Senior Member
REASONS FOR DECISION
The ACT Civil and Administrative Tribunal [ACAT] heard applications by Mr Aaron Sarlija and Ms Mira Sarlija to review two decisions made by the Registrar of Domestic Animal Services (the registrar) in respect of the dogs Kayla and Stripe. The hearing was conducted on 6 and 17 July 2012. ACAT commenced the hearing on 6 July 2012 by visiting premises at Fisher and viewing the yard and enclosure in which the applicants intended to keep the dogs.
The applicants appeared in person. The respondent was present and represented by Ms Kristy Katavic and Ms Lisa Tomlins from the Government Solicitor's Office.
The hearing reconvened in ACAT’s hearing room. Evidence was heard from the applicants and, for the respondent, from Senior Ranger Miller, Mr Bullivant (dog behaviourist and dog trainer), Mr Burns (an eye witness to the attack on Sugar) and Ms Abbott (owner of Sugar, a cat). In addition, ACAT received a bundle of documents provided by the respondent which contained internal documents of Domestic Animal Services; reports/complaints from members on the public in relation to attacks upon animals by dogs in the Fisher area; statements by the witnesses; impact statements from owners of animals attacked and correspondence between the applicants and the respondent. Many of the documents had been redacted. Ms Katavic informed the tribunal that some of the persons making statements had declined to appear and give evidence because they feared neighbourhood repercussions. ACAT accepted the documents in redacted form, but notes that the evidence is untested and, therefore, it must be weighed carefully.
At the conclusion of the evidence, ACAT determined that the proper and fair procedure was to allow the applicants some time to prepare final submissions. The purpose of final submissions was explained to the applicants. ACAT indicated that only evidence which was relevant and probative would be taken into account, and provided the applicants with a copy of the relevant section of the Domestic Animals Act2000.
On the morning of 17 July, ACAT heard final submissions from the parties. ACAT adjourned until the afternoon of 17 July and read its decisions. This is an edited version of the extempore reasons that has been prepared for publication.
Background
On or about 26 April 2012, Kayla was declared a dangerous dog and on or about 26 April 2012, Stripe was declared a dangerous dog. These declarations were made pursuant to section 22(2) of the Domestic Animals Act. On or about 7 May 2012, the owners of the dogs, Aaron and Mira Sarlija, each made applications for a licence to keep a dangerous dog. These applications were refused on 9 May 2012. A decision to refuse to issue a licence is a reviewable decision under section 120 of the Domestic Animals Act. In reviewing a decision, ACAT may confirm, vary or set aside the decision. If ACAT sets aside the decision, ACAT may make a substitute order or remit the decision to the original decision maker as provided for in section 68 of the ACT Civil and Administrative Tribunal Act 2008.
There are two applications here. There were two licences involved and two dogs. The applicants, Aaron Sarlija and Mira Sarlija, reside at the same premises and the dogs are ordinarily kept at those premises. The applications are considered together.
The dogs Kayla and Stripe are seven-year old females. They are sisters from the same litter and are tan coloured Staffordshire German Shepherd crosses. The dogs have always lived together and lived with the applicants as members of their household. ACAT received evidence of a strong bond between the applicants and their dogs. It is quite clear that Aaron and Mira love their dogs very much. However, as was pointed out by the solicitor for the respondent, this case is not a test of how much the dogs are loved.
Since February 2012, there have been five incidents involving attacks upon animals by dogs in the Fisher area. This summary is based on the documents that were handed up, the evidence of the ranger and the evidence of the eyewitness to the attack on Sugar. ACAT emphasises that the first two incidents are not the incidents on which the dangerous dog declarations were based. No action was taken by the respondent in relation to those incidents, but they are, by way of background, relevant.
Firstly, on 16 February 2012 two black and tan dogs attacked and killed a cat in a street in Fisher. The dogs were described by witnesses to the attack as Staffy-German Shepherd crosses. A seizure notice in relation to the dogs was issued to the Sarlijas. There was an AFP report to the effect that two Staffy-German Shepherd dogs belonging to Aaron Sarlija have escaped from his backyard and mauled a black cat.
On 22 February two dogs attacked a Persian cat. Witness describes two tan coloured medium sized identical short-haired dogs, possibly Mastiff breed, attacking and tearing apart a large Persian cat.
ACAT received evidence that rangers had attended the Fisher area following reports of attacks on animals by two dogs in the afternoon and the evening of 2 April. These summaries are, again, made from the written reports that have been received, the eyewitness evidence that was given and the evidence of the ranger.
The first incident was that Mummy, an 11-year old grey and white short-haired tabby cat, was killed in Fisher. A neighbour of the owner of the cat described the dogs involved in the attack to the owner. The owner of the cat states, in a written but redacted statement, “I have seen one dog matching the description of the two dogs involved in the attack being walked by Chris and Aaron Sarlija.” In the neighbour’s statement, the dogs are described as, “Two tan medium-sized Staffy cross type dogs.”
The second incident involves Sugar, and this was the incident upon which the dangerous dog declaration was based. Sugar was a white Ragdoll cat that was attacked and subsequently died from the injuries. Sugar was attacked in the backyard of her owner’s home in Fisher. There were two eyewitness accounts of the attack. Mr Burns, who gave oral evidence to the tribunal, witnessed this attack. He described them as big dogs, one bigger than the other, one tan and one dark brown. Mr Burns said to the tribunal that he had perhaps had the dogs in view for six to 10 seconds because his focus was on saving the cat. Senior Ranger Miller gave evidence that a neighbour who witnessed the attack on Sugar attended the Domestic Animal Services premises and identified Kayla and Stripe as the dogs that had attacked Sugar. This neighbour did not give evidence, but a redacted written statement was available to the tribunal.
The third incident involved Brandy, a Maltese Shih Tzu cross dog who was attacked and killed in her own backyard. Photos show that Brandy’s throat was ripped and she was disembowelled. There was no eyewitness. ACAT did, however, receive a redacted copy of an email from a neighbour whose son saw two dogs jump a fence from a laneway and heard a dog being attacked at the relevant premises. The son described the dogs as follows: “They had short browny-gold fur, were medium-sized, they were muscly and had sharp teeth.” Ranger Miller was called to the area. He and Ranger Roberts patrolled the area. Ranger Miller gave evidence to the tribunal. He said that he had observed the two Sarlija dogs roaming the area. He was able to identify the two dogs now in the pound as the dogs he observed in the Fisher area on the afternoon of 2 April and he produced photographic evidence of the two dogs Kayla and Stripe being in the area at the time.
The applicants each conceded to the tribunal that their dogs had got out that afternoon. Aaron Sarlija confirmed that he had been driving in the area, seen the ranger’s vehicle and picked up the dogs by calling them in to his car. ACAT is comfortably satisfied, in fact, more than comfortably satisfied, that the two dogs, Kayla and Stripe, were the dogs which attacked and killed Mummy, Sugar and Brandy on 2 April 2012. There are clear eyewitness descriptions of the dogs. There is a clear identification of the dogs in the pound as the dogs observed roaming by Ranger Miller and witnessed attacking Sugar. The Sarlijas confirm that the dogs were out. Further, from the reports submitted and the statements made by Mira Sarlija, it is more likely than not that these dogs have been involved in attacks on other animals in the Fisher precinct at other times.
On or about 26 April 2012, the dogs were declared to be dangerous dogs under section 22(2) of the Domestic Animals Act, based on the evidence of the attack made by them upon Sugar.
The decision to refuse dangerous dog licences
On 9 May 2012, the registrar refused applications for dangerous dog licences. The decision maker took into account facts relevant to the assessment required by section 25(2) of the Domestic Animals Act. The decision maker did not examine the premises personally, but relied on observations of the rangers. There was no evidence before ACAT as to when or under what circumstances the rangers assessed or observed the premises. An undated letter sent, on or around 24th of April 2012, to each of the applicants by the registrar, set out the process that the applicants had to follow for an application for a licence to keep a dangerous dog. The letter also set out conditions which would be attached to such a licence. The letter stated: “Your licence application will be assessed by the registrar once your premises have been inspected and found to comply with the conditions of the licence.” There is no evidence before this tribunal that any such inspection took place after the information as to the licence conditions relevant to the premises was given, and before the decision to refuse licences was made.
In preparation for this hearing, on the morning of 6 July 2012, the tribunal met the parties at the applicants’ home and inspected the yards in the premises. It could be argued that because there was no precise inspection of the premises prior to the decision, that the decision to refuse the licence failed to take into account a relevant consideration. If that was the case, ACAT could set aside the decision and substitute its own.
Whether ACAT confirms or varies or sets aside the original decision, it is necessary to revisit each of the factors that are set out in section 25(2) of the Domestic Animals Act. Section 25(5) provides that subsection (2) does not limit the matters the registrar may consider. ACAT likewise is not confined to those matters set out in the subparagraphs of subsection (2) of section 25.
The relevant law
Section 25 of the Domestic Animals Act provides:
Dangerous dog licences—approval or refusal
(1) If an application for a dangerous dog licence is made under section 24, the registrar must, by written notice to the applicant—
(a) approve the issue of a licence; or
(b) refuse to approve the issue of a licence.
(2) In making a decision under this section, the registrar must consider the following:
(a) the size and nature of the premises where the applicant intends to keep the dog;
(b) the security of the premises;
(c) the suitability of facilities for keeping the dog on the premises;
(d) the potential impact on the occupiers of neighbouring premises;
(e) any conviction or finding of guilty of the applicant within the last 10 years for an offence against a law of a Territory or State relating to the welfare, keeping or control of an animal;
(f) the likelihood of harm being caused to any member of the public or an animal.
...
(5) Subsection (2) does not limit the matters the registrar may consider.
ACAT turns first to the section 25(2) factors and takes together the size and nature of the premises where the applicant intends to keep the dogs and the security of the premises. In doing this, ACAT refers to the conditions set out in the undated letters sent to the applicants and in particular conditions 1 and 2 in those letters.
1.Whilst the dog is on your premises it must be kept under effective control so as to prevent it from attacking another animal or a person. This control includes the erection and maintenance of escape proof perimeter fencing to your yard. That fence should not have any gaps that would allow any part of a person’s body to enter your property. All perimeter gates must be spring auctioned, self closing and secured by padlocks.
2.The dog must be kept in an escape proof roofed enclosure except when being exercise[d] or transported. The enclosure should be sited near the house to enable both easy access and visual supervision of the dog from the house. The enclosure must not be located within 2m of a perimeter. Enclosure gates must be spring auctioned, self closing and secured by a padlock. In accordance with the Animal Welfare (Welfare of Dogs in the ACT) Code of Practice 2010, [t]he enclosure is to include:
- A dog bed or wooden pallet as a sleeping area. Bedding should be provided and kept clean and dry, and replaced as required. The dog must have access to food, water and shelter at all times.
- The enclosure must have a run area of 8m2 with minimum dimension (width/length) of 2m.
ACAT also refers to the notes made at the time of the inspection and, of course, to the evidence that was later given, particularly the evidence given by Registrar Dinan and the evidence and submissions of the applicants as well as the evidence by Mr Bullivant, the dog trainer.
The yard could be described as moderately sized, grassed, with no obvious source of shade. It has a standard paling fence topped with wire attached to wooden braces. ACAT observed that this wire was in places neither straight nor tight. It appeared to be of a flimsy nature. There is a metal fence and a gate facing the driveway. This is the only entry to the yard except by coming through the house. ACAT observed that there was a significant gap under the gate, sufficient for an arm to reach under and probably enough for a small animal to crawl through. The gate had a padlock, but was not, on 6 July, self-closing or spring-loaded.
One section of the fence was topped by a piece of plywood. The applicants explained that the bamboo had been removed from either side of this fence and the board had been placed there because it was thought by the applicants that this was, most likely, the area from which the dogs had escaped on previous occasions. ACAT observed, and indeed touched and rocked the piece of plywood. It was not firmly held by its supports and it was easily rocked by hand and would easily be knocked over by two determined dogs.
Mr Bullivant gave evidence as to the observations he made of the dogs being able to jump up a 2 metre wall. Upon being shown photos of the fences, he ventured the opinion that the fences may not be enough to keep the two dogs in. Mr Dinan gave evidence that, having examined the fence on 6 July 2012 in company with the tribunal, his opinion was that the dogs would easily knock over the wire or plywood and that the rungs on the fence would further assist the dogs to climb to the wire which could be easily got over.
Ms Sarlija informed the tribunal that the wire had been put in place after the dogs escaped in February. ACAT finds as a matter of fact that the yard itself is not secure. Persons or animals could access the yard, especially via the gate area. If the dogs were running in the yard, there is a real probability that they could escape over the fences. Further, Ms Sarlija gave evidence that when she was at home she would allow the dogs to be in the house or in the yard. In such circumstances, there is an extremely high probability that the dogs could escape, such as when a door or the gate was opened. ACAT could not therefore be comfortably satisfied that the premises are properly described as secure.
Condition 2 requires the dogs to be housed in an escape-proof roofed enclosure except for when being exercised or transported. The wire enclosure inspected at the premises sat on the grass. Mr Dinan gave evidence that the dogs could dig their way out. ACAT concurs with this opinion. Mr Bullivant said that he believed that jumpers could loosen the pegs from the ground. The gates of the enclosure were noted to be not spring-actioned or self-closing as required.
Corrective measures have been proposed in the final submission session by the applicants. These measures have not been seen or tested or assessed. The applicants say that they have purchased a self-closing mechanism. ACAT is not satisfied that the enclosure is escape-proof as inspected and notes again that any measures that may be taken have not been tested.
Subparagraph (c) of 25(2) refers to the suitability of the facilities for keeping the dog on the premises. Aaron Sarlija gave evidence that the manufacturers had stated that the enclosure was suitable for two medium dogs. Mr Dinan observed that the enclosure had no roof, had only one kennel for sleeping and, in his opinion, was too small for the dogs. Ms Sarlija said that the dogs have always slept together and that they would prefer to be in the same kennel. Mr Bullivant noted that there was not a lot of room and that the dogs would need to be exercised every day.
There was, apart from Mr Bullivant and Mr Dinan, no expert evidence and no evidence linking this to any code or regulations in relation to animal welfare. However, ACAT was able to observe that it was a small enclosure, although ACAT accepts the evidence of Ms Sarlija that the dogs sleep in the same kennel - that is not unusual for dogs to do. There was what seemed to be no adequate protection for the dogs from the sun or rain. Ms Sarlija gave evidence, as indeed did Aaron when he was at the tribunal previously, that additional improvements would be made if the dogs were to be housed there.
ACAT must make the decision by taking into account the state of the yard and enclosure as it currently exists. Promises to correct matters at a later date are not relevant to the decision. The applicants were aware of the conditions or requirements to be met. The applicants failed to comply with those requirements.
Coming to the two subparagraphs of section 25(2) that deal with what was described as the “public interest” factors. The first is subparagraph (d), the potential impact on occupiers of neighbouring premises. The impact of granting or not granting the licences on those people who are neighbours must be examined in the broader sense, that is, wider than merely next-door neighbours, so ACAT looked at the Fisher suburban precincts. There is some relevant information to be gained from the statements made to the tribunal. ACAT notes that most have not been tested in cross-examination and that, therefore, should not be given great weight. Nevertheless, they are important and need to be read.
The owner of Mummy, the cat, said in her email, which can be found at pages 47 to 48 of the bundle of documents:
a.“Knowledge that these dogs may be returned to the owners scares us all. We will never be able to let Sam, our cat, play outside again. We will never be able to let my grandson play outside again. We will never feel safe again.”
A further statement found at pages 55 to 56 of the bundle of documents by says:
a.“If the dogs were released to their owner I would be fearful for the safety of my pet cat.”
These documents suggest that these incidents have created a public outcry in the Fisher area. ACAT takes from the documents a sense that knowledge of the incidents and the effect of the incidents extends to a wider group within the community than the owners of the animals that were attacked, or than the people who saw the attacks. There is a sense that a wide group of people are affected and that there is some discussion in the community in relation to these incidents. Some of the documents submitted, such as Riot ACT comments and newspaper reports, have been given no weight and are not taken into account,
At page 34 the owner of Mummy, the cat, says:
“I do not believe it is safe to have dogs of this nature in the community.”
At page 82 of the documents, the owner of Brandy, the dog who was killed, said:
“With a suburb filled with children, we do not believe it’s in the public interest to keep these dogs alive.”
They give a sense of fear or apprehension as to what life in the suburb would be like if occupiers of neighbouring premises became aware of the return of these dogs to their owners. They also give a sense that many people would feel that they were not able to make full use of their premises. ACAT notes that the three animals that were attacked in the incidents on 2 April were attacked in their own backyards. These statements are relevant and should be considered by ACAT.
ACAT turns now to subparagraph (f), the likelihood of harm being caused to any member of the public or an animal. There are a number of things to look at in relation to the likelihood of harm. The first of those is the security of the premises. These two matters are, as stated by General President Crebbin in Robertson v Domestic Animal Services [unreported, 20 August 2009] intrinsically linked. ACAT also takes into account the evidence of Mr Bullivant that the dogs exhibit fear aggression, that is, that they are afraid of people they do not know and that their reaction is to be aggressive. ACAT received evidence of the dogs backing into the back of the enclosures and growling at people who approach them. Mr Bullivant, the dog trainer, also said that a fearful dog is an unpredictable dog. In addition, he said that, in his observations, the two dogs worked as a pack, one as a leader, one as a follower. He said, “If the dogs escaped the premises they are likely to attack again.”
General President Crebbin in Robertson said, “When making a decision about something that is likely to happen in the future, ideally we’d have crystal balls, but we don’t. What we need to do is look at what has happened in the past. That criterion requires an examination of the circumstances of the incidents that led to us being here today. Thus ACAT must examine and must take into account the past conduct and behaviour of the dogs as a major factor in predicting the likelihood of harm being caused to any member of the public or an animal”.
There was evidence from Senior Ranger Miller in relation to the aggression of the dogs in the enclosures and in relation to the difficulties he had in capturing them. Aaron Sarlija has stated to the tribunal that he would do everything to ensure that the dogs did not get out again. Mira Sarlija has given evidence that she would allow the dogs into the house and into the yard. Her attitude has given ACAT no confidence that she would ensure the dogs were secured in the yard. This is underlined in particular by her continual denial of the involvement of her dogs in the attacks. In final submissions, Ms Sarlija said, “We’ll watch the dogs to see if they can jump over the fence.” This was put forward as some sort of method of testing the security of the fence, but, in ACAT’s view, shows no regard to the issue of what would be the consequences should Kayla and Stripe jump the fence during such a security test. Ms Sarlija’s attitude goes to the issue of effective security of the premises as well as to the likelihood of future harm being caused by the dogs.
In relation to the question of the purpose of the Domestic Animals Act, ACAT agrees with the formulation put by General President Crebbin in Robertson, when she states that,
in interpreting and applying any law, it is appropriate that a decision- maker bear in mind the purpose of the legislation that is being considered.
Division 2.3 of the Domestic Animals Act deals with the declaration of and the keeping of a dangerous dog. It is clear from a perusal of division 2.3 that the provisions acknowledge that there are some dogs that constitute a risk to safety of members of the public and to other animals and that special provisions need to be made for the care and keeping of those dogs in order to reduce or remove that risk to public safety. The division includes provisions requiring special licensing conditions such as muzzling, written warnings, self-closing gates et cetera.
President Crebbin goes on to say:
I accept that the overarching purpose of the legislation is to secure the safety of the public and that this is the lens through which I must look when considering and evaluating the evidence that the tribunal has received.
ACAT refers to Bugter v Moorabool Shire Council [2011] VCAT 1833 and takes three things from it. First of all, in that matter VCAT noted the difficulty in accepting any undertakings as to security, and in particular that there is no practical method of enforcing such undertakings given to a tribunal except by contempt proceedings. Accepting undertakings would be inappropriate when there is already an Act in place for the regulation and the control of dangerous dogs.
Secondly, the decision in Bugter confirmed that even if a tribunal or a court is satisfied as to the absolute security of the premises that is not the end of the matter. It is not enough to say, “These premises meet the requirements of the licence conditions.” Any tribunal or decision maker must proceed to properly consider the other factors. The satisfaction of the security conditions is not by itself enough to decide the matter.
Thirdly, the purpose of the Victorian Act, which was similar to our own, was to protect the community from nuisance dogs and to identify and control dangerous dogs, and that simply reinforces President Crebbin’s view in Robertson.
In Gubbins v Wyndham City Council [2004] VSC 238, a number of things were noted. One was that a fair process has to be observed and that it is essential that the owners of dogs who are applying for licences (or as in that case, are appealing against a decision to destroy a dog) must be given a fair hearing, so these proceedings are extremely important to ensure balance in the consideration of rights across the community.
However, the Victorian Supreme Court went on to say:
The Feral and Nuisance Animals Act 1994 is not a charter of canine rights nor of the rights of the owners to which the safety of persons or other animals is secondary. The Act should be interpreted in a manner that promotes the purpose of protecting the public from dangerous dogs (at [37]).
Thus, it is not simply a matter of ticking the boxes and looking at the provisions one at a time. It is a matter of looking at those provisions one at a time then giving some weight to them and balancing the interests of dog owners and the public. It is a fine line. In all of these cases, the courts and the tribunals acknowledge that these are extremely difficult decisions to make because in none of the cases do we have owners who do not care for, or who do not want to protect, their own animals.
The third thing that comes from Gubbins is that the Supreme Court of Victoria believed that an assessment of the reliability as opposed to the credibility of the owners of the animals was appropriate. The Victorian Supreme Court stated that this was an assessment of the reliability of the applicant as a responsible dog owner (at [62]).
In this matter, on the question of the assessment of the reliability of the owners of the dogs as responsible dog owners, ACAT notes that some of these matters were taken into account by the original decision maker. I note that 2 April when the three incidents occurred, was the last of a series of escapes by Kayla and Stripe. On at least two previous occasions other animals had been attacked. The applicants were issued with a seizure notice in February after one of these incidents, hence they were aware of the serious nature of the allegations but did not, at that time, take proper steps to secure the yard or prevent further incidents and so the dogs escaped again.
An inspection of the premises and evidence before ACAT raises serious issues as to whether the premises are secure or suitable. ACAT does not feel reasonably comfortable to decide that they are. Continual denial by the applicants that Kayla and Stripe were involved in the incidents on 2 April implies a failure to appreciate the need for security. Ms Sarlija’s assertions that she would let the dogs into the yard or the house give ACAT no confidence that the dogs would be secured and appropriately supervised. Those matters go to what the Victorian Supreme Court referred to as ‘reliability as a responsible dog owner’.
ACAT turns finally to the case of Clare and Gilbert Valleys Council v Crawford [2005] SADC 135 and notes that the South Australian District Court sets out a test for when a dog is dangerous. ACAT notes that in this case it is not making a decision as to whether the dogs are dangerous; the issue is whether the decision to refuse to issue a licence should be confirmed, set aside or varied. Nevertheless, one of the factors that must be considered is the likelihood of harm. The South Australian court speaks of, “an appreciable or substantial risk of harm to people or animals where those persons or animals are in ordinary circumstances.” So we are not looking at a dog that has a propensity to attack someone who hits it. We are not looking at a dog that has a propensity to growl at somebody who teases it through the fence. The issue is whether there is an appreciable or substantial risk that people who are going about their ordinary business in ordinary circumstances, doing reasonable things in reasonable ways, may be attacked.
ACAT has evidence from the applicants that the dogs present no substantial risk to the applicants or their household members. In that context there is no evidence that they have attacked a person, and there is no evidence that they have growled at anyone. However, that is too narrow a test. The test and the consideration have to be much broader than that. It is necessary to look at in what circumstances will people or animals be doing reasonable things in the ordinary way. ACAT here takes into account evidence relating to the attacks on 2 April where each of the animals attacked was located in their own backyard, the evidence of Mr Bullivant that the dogs operated as a pack and were likely to attack again, the evidence of the unpredictable nature of the dogs as a result of their fear aggression and, finally, the inadequacy of the security measures at the premises.
ACAT finds that the dogs Kayla and Stripe do pose a real and substantial risk of harm to animals and people in the ordinary circumstances. It does not rely on their escaping. If a stranger or a child or a small animal should enter the house or the yard, they would be in danger. If they escaped and roamed or hunted as a pack, then people and animals in ordinary circumstances would be at substantial risk of harm.
As noted at the beginning, this is a balancing act. No-one doubts the strong bond between the dogs and their owners and no-one fails to accept the assertions of the applicants that they love their dogs. However, ACAT accepts the precedents that have been put before it and argument made by the solicitors for the respondent, that there has to be a weighing up and the public interest has to be weighed extremely heavily.
To sum up, there is an unacceptable risk that these dogs will not be kept securely. If the dogs are not secure and they should escape, there is an unacceptable, appreciable and substantial risk of harm to people or animals. ACAT therefore confirms the decision to refuse a dangerous dog licence to Mira Sarlija in relation to the dog Stripe, and to refuse a dangerous dog licence to Aaron Sarlija in relation to the dog Kayla.
ACAT notes that this has been a stressful situation for the applicants. However, Ms Sarlija’s abuse of the tribunal, the other party and the persons in the public gallery is unacceptable. Her threats to ‘burn down the houses and smash the cars’ of those persons residing in the Fisher area, who complained about attacks by the dogs, or who gave evidence either actually or in redacted form to ACAT, are also unacceptable. The conduct of Ms Sarlija after ACAT had pronounced its decision to confirm the decisions to refuse dangerous dog licences, may indeed have been a product of stress and upset, but served only to underline and confirm ACAT’s assessment of her reliability.
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Ms L. Crebbin for and on behalf of Ms J. Lennard, Senior Member
PUBLICATION DETAILS
PART A FILE NO: AT 12/32 & 34
APPLICANT: AARON SARLIJA
RESPONDENT: REGISTRAR, DOMESTICANIMAL SERVICES
APPLICANT: MIRA SARLIJA
RESPONDENT: REGISTRAR, DOMESTICANIMAL SERVICES
COUNSEL APPEARING: APPLICANT:
RESPONDENT: Ms Kristy Katavic
SOLICITORS: APPLICANT:
RESPONDENT: ACT Government Solicitor
OTHER: APPLICANTS: in person
RESPONDENT:
TRIBUNAL MEMBER/S: Ms Jann Lennard, Senior Member
DATE/S OF HEARING: 6 & 17 July 2012 PLACE: CANBERRA
DATE/S OF DECISION: 17 July 2012 PLACE: CANBERRA
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