Simshauser v Gladstone City Council
[2025] QCAT 378
•2 October 2025
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Simshauser v Gladstone City Council [2025] QCAT 378
PARTIES:
ZACHARIAH SIMSHAUSER (applicant)
v
GLADSTONE CITY COUNCIL (respondent)
APPLICATION NO/S:
GAR786-24 and GAR788-24
MATTER TYPE:
General administrative review matters
DELIVERED ON:
2 October 2025
HEARING DATE:
19 September 2025
HEARD AT:
Rockhampton
DECISION OF:
Member McVeigh
Member Willey
ORDERS:
1. The decision of the Gladstone City Council to issue a destruction order in respect of the dog Jess made on 29 October 2024 (and confirmed on internal review on 4 November 2024) is confirmed.
2. The decision of the Gladstone City Council to issue a destruction order in respect of the dog Winston made on 29 October 2024 (and confirmed on internal review on 4 November 2024) is set aside.
CATCHWORDS:
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – animals – whether destruction orders for seized dogs should be confirmed
Animal Management (Cats and Dogs) Act 2008 (Qld), s 127AA, Sch 1
Mitchell v Gympie Regional Council [2020] QCATA 19
Thomas v Ipswich City Council [2015] QCATA 97
APPEARANCES & REPRESENTATION:
Applicant:
Self-represented
Respondent:
P Krebs, General Counsel for Gladstone Regional Council
REASONS FOR DECISION
What was the hearing about?
On 29 May 2024 three bull Arab type dogs escaped from their cage on the back of a ute which was parked at the Gladstone Dan Murphy’s store. Bindi, the leader of the pack, attacked Rusty, a red kelpie, which was being walked by his owner. Jess, another of the bull Arab type dogs, also attacked Rusty while Winston, the third dog, watched. The attack was captured on CCTV.
The owner of the three dogs, Mr Zachariah Simshauser, was in the store. He heard the commotion and ran out. He first attempted to get Bindi off Rusty and then commanded Jess and Winston to get back in their cage, which they did. Members of the staff of Dan Murphy’s and members of the public assisted Rusty and his owner. Mr Simshauser chased after Bindi who had run off to the other side of the car park, he caught her and got her back into the cage.
Mr Simshauser was very angry at Bindi. He knew there would be trouble. At the hearing he accepted that the CCTV evidence spoke for itself. He gave his name and contact details to the staff at Dan Murphy’s. As Rusty’s owner had rejected his offer to drive him to the vet, he took his dogs home to the place he was living at Turkey Beach.
The next day, Mr Henry Tonkin, the owner of Rusty, reported the attack at the office of the Gladstone City Council (Council).
The Council investigated. On 20 June 2024 Mr Simshauser received a notice in his letterbox. The notice alerted him to the necessity of registering the dogs and also to the fact that the Council proposed to declare the three dogs as regulated dogs. He was given 14 days to make submissions to the Council as to why that should not happen. The notice explained the steps that he would have to take to meet the requirements for keeping a declared menacing dog and a declared dangerous dog.
This was not the only challenge that Mr Simshauser was facing at the time. He had to leave the property he had been living in and could not find any other rental accommodation in the area. The fact he had four dogs made it even harder to find alternative accommodation. He could not go to his mother’s place at Tannum Sands as other family members were living there. As he had no fixed address he could not comply with most of the requirements for keeping a declared menacing dog or a declared dangerous dog as they relied on him having an address that he could give to the Council.
Things came to a head for Mr Simshauser when he was told that the Council had declared Bindi a dangerous dog and Jess and Winston as menacing dogs, without any discussions with him. He understood that the Council would seize his dogs if he did not comply with the permit conditions for keeping declared dogs. However, he couldn’t see any way that he could comply because he had been unable to find anywhere to live. He did not want to lose his dogs which he depended on for emotional support. He decided that the only thing he could do to protect his dogs was to put his things into storage, move his stock into agistment and go bush. He spent a weekend at a friend’s place building a large cage on the back of his ute so he would have somewhere to keep the dogs while he was moving about. He used small gauge mesh and welded the cage to the ute.
He then moved from place to place, camping out of his ute at various spots.
By October 2024 Mr Simshauser and his dogs were able to visit his mother’s place as other family members had left. On 28 October Council officers went to his mother’s place in response to a report about a dog attack. They saw three dogs in the back of the ute. The Council officers seized Bindi, Jess and Winston. Mr Simshauser helped the Council officers move the dogs from the cage in the back of his ute into the Council’s vehicle.
Mr Simshauser attended at the Council’s office on 5 November 2024. He filed an application to review the destruction notice. He apologised for the problems that had been caused by the dogs. He acknowledged that Bindi has been a problem and that she may need to be put down. He asked that he be allowed to keep Jess and Winston because they were good dogs that meant a lot to him. He indicated his willingness to keep them in a fenced yard and in his dog cage when he was travelling. He said that he would keep them on leads when out in public. He noted that he had fixed the cage latch that had failed on the day of the attack.
The Council confirmed the decision to destroy the dogs on 7 November 2024. Mr Simshauser filed this application to review the Council’s decision on 20 December 2024. He asked that Winston and Jess be returned to him to be kept in his car as they are not a threat to the public and were not menacing dogs. He said that they were good dogs, great with the elderly, kids, his family and friends. They helped him get through the day. He described the difficulties he has had in attempting to speak to Council officers. He noted that he had not been trying to avoid the Council but that because he could not camp anywhere for more than 48 hours it was difficult to deal with the Council.
Mr Simshauser has visited the dogs at the Pound regularly. Since the dogs have been there, he has noticed that Jess is showing traits shown by her mother Bindi. Jess barks at other dogs and when she gets excited, she doesn’t obey his commands. He thinks that she can’t be 100% trusted if she were to be released. He did not press the case for her in the same way he urged the tribunal to set aside the destruction order that applies to Winston.
The task for the tribunal
Our task is to conduct a fresh hearing on the merits, taking into account all the evidence before us, in order to come to the correct and preferable decision. In undertaking that task, we must follow the requirements of the Animal Management (Cats and Dogs) Act 2008 (Qld) (Dogs Act). The Dogs Act regulates the management of dogs by their owners. The purposes of the Act include promoting the responsible ownership of dogs and providing for the effective management of regulated dogs.[1] These purposes are primarily achieved by imposing obligations on owners to exercise effective control of dogs in particular circumstances and ensure dogs do not attack or cause fear.[2]
[1]Dogs Act s 3.
[2]Ibid s 4(m).
In undertaking this task, the protection of the community is to be given a higher priority than the individual rights of dog owners.[3] The destruction of a dog is neither the first resort nor the last resort, but one of the options available for achieving community safety. It is a balancing act as to whether community safety can be achieved through the conditions and requirements imposed for a regulated dog, or whether destruction of the dog is indicated in a particular case.[4]
[3]Thomas v Ipswich City Council [2015] QCATA 97, [20].
[4]Mitchell v Gympie Regional Council [2020] QCATA 19.
The Act sets out two circumstances in which a destruction order can be made in respect of a regulated dog that has been seized:
(a)first, if the dog has seriously attacked a person or an animal, in which case the destruction order is mandatory;[5]
(b)second, if the dog has not seriously attacked a person or an animal, in which case the destruction order is discretionary.[6]
[5]Dogs Act s 127AA(2).
[6]Ibid s 127AA(3).
A serious attack on an animal is an attack in a way that causes the death of the animal, or maims or wounds the animal.[7]
[7]Ibid s 127AA(9).
The Council declared Jess and Winston to be regulated menacing dogs on 30 July 2024. We are not able to review the Council’s decision to declare either Jess or Winston menacing dogs because the time for such a review has expired. The purpose of declaring a dog to be a regulated menacing dog is twofold:
(a)to protect the community from damage or injury, or risk of damage or injury, from regulated dogs; and
(b)to ensure that regulated dogs are:
(i) not a risk to community health or safety; and
(ii) controlled and kept in a way consistent with community expectations and the rights of individuals.[8]
[8]Ibid s 59.
What does the law require the owner of a regulated menacing dog to do?
The owner of a menacing dog must exercise effective control of the dog and ensure that the dog does not attack a person or an animal, or cause fear. The conditions on keeping, and requirements for the control of, menacing dogs are found in Schedule 1 to the Dogs Act.
All regulated dogs must be implanted with a prescribed permanent identification device (PPID) and must at all times wear a collar with an attached identifying tag of the type and containing the information prescribed under a regulation.[9]
[9]Ibid sch 1 ss 2, 2A.
The Council requires the owner of a regulated menacing dog to register the dog as a regulated dog and to pay the annual fee. When the fee is paid the Council will provide the required distinctive collar, yellow identifying tag and ‘dangerous and menacing dog’ signs that must be put on the fence of the place the dog is kept.
When in a public place, the owner must have control of only one dog and it must be on a leash which is not attached to the distinctive collar, but to a separate collar or muzzle.
The owner must keep the dog at the registered address in a childproof enclosure which meets very specific requirements. The enclosure:
(a)must not be built or situated in a way requiring a member of the public seeking access to the house to go into the area enclosed;
(b)must not include any area that is—
(i) a swimming pool or area surrounding a swimming pool; or
(ii) all or part of a building usually used for residential purposes;
(c)must have walls at least 1m high above ground level if the dog is 8kg or less or at least 1.8m high above ground level if the dog is more than 8kg;
(d)must be made of firm and strong materials designed to prevent a child from climbing over, under or through the walls into the enclosure;
(e)must be designed to prevent the dog, or part of the dog, from protruding over, under or through the enclosure;
(f)may include a perimeter fence if that fence complies with all other requirements for the enclosure;
(g)must include a weatherproof area appropriate for the dog.[10]
[10]Animal Management (Cats and Dogs) Regulation 2019 (Qld) s 10.
If the owner moves, they must advise the Council (or relevant local authority if the owner moves into another area) within seven days after changing address.
The evidence
Mr Tonkin
Mr Tonkin made a statement.[11] He was not required for cross-examination. He described the incident that occurred on 29 May 2024 outside the Gladstone Dan Murphy’s store. He was walking Rusty past Bunnings towards Dan Murphy’s. He noticed a tray back ute in the car park area which had a dog cage on the back and four large dogs on the back of the ute. One of the dogs was tied up on the tray, the three others were not tied up. The dogs started barking and the next thing he saw was three dogs surrounding him and Rusty. Two of the dogs latched onto Rusty, one at the front and one at the back. The third dog appeared to be watching and did not attack Rusty. Another person intervened and between them they successfully broke Rusty away from the dogs attacking him. Mr Tonkin noticed blood on Rusty and applied bandages as necessary. He proceeded to a local veterinary surgery where Rusty was assessed, provided treatment for bite wounds to the right leg and puncture marks on the backside. Rusty required an overnight stay at the veterinary surgery.
[11]Exhibit 4.
Local Laws Officer Elphinstone
Ms Elphinstone made two statements[12] and attended for cross-examination via phone. Ms Elphinstone is employed by the Council as a Local Laws Officer. She has been in that position since 2021. In June 2024 she was allocated a customer service request for a dog attack. She reviewed the relevant material produced from the investigation and determined there was sufficient evidence to propose to declare the three dogs. Ms Elphinstone issued the Proposed Declaration on 20 June 2024. On 9 July 2024 she drafted the Declaration Notice for the dogs, and later hand delivered the Declaration Notice to the mailbox of Mr Simshauser. She attended the known address (at Turkey Beach) of Mr Simshauser on 21 August 2024, however, could not enter the property.
[12]Exhibits 5 and 6.
Local Laws Officer Van Der Lely
Mr Van Der Lely made a statement.[13] Mr Van Der Lely is employed as a Local Laws Officer with the Council and has been in that position since 2 July 2022. On 1 August 2024 he was tasked to conduct an inspection at an address in Turkey Beach to see if Mr Simshauser had complied with the relevant requirements. He and officer Robertson attended and observed the main gate to the property had been broken and left open. The house on the property had another fence around it with a locked gate. He yelled to see if anyone was home but did not get a response. Two dogs appeared and seemed very calm. He could see a set of three highset kennels. He was told by local police that Mr Simshauser was moving from that address.
[13]Exhibit 1 pp 76–8.
On 28 October 2024, in company with another Local Laws Officer, Mr Van Der Lely attended an address at Tannum Sands (the property owned by Mr Simshauser’s mother) following a report that a dog at that address had attacked another dog at the address. He approached Mr Simshauser and advised they were there to seize his dogs as he had failed to comply with the requirements of keeping regulated dogs and provided him with a copy of the Compliance Notice. Mr Simshauser assisted in getting the three dogs out of the back of his ute into the Council’s van.
Mr Simshauser
Mr Simshauser gave evidence. He was a passionate advocate for his dogs. He plainly loves them. He referred to Jess as ‘his girl’ and Winston as ‘his boy’. They have been a source of comfort and stability for him in stressful times in his life. He acknowledged that Bindi has been troublesome since the time he took her from a mate. He could not train her out of her habit of attacking other animals. However, he did not have the heart to take her to the pound to be put down. He was very angry at her when she broke out of the dog cage on the back of his ute and attacked Rusty. He acknowledged that he could not control Bindi and that is the reason he decided not to challenge the Council’s decision to destroy her.
Mr Simshauser said that he was able to control Jess and Winston, although in the months after they were seized by the Council, he has seen Jess’s behaviour become more like that of Bindi (Bindi was the mother of Jess). She barks at other dogs and does not respond to his commands if she is excited.
Mr Simshauser strongly argues that Winston should not be destroyed as he was not involved in the attack on Rusty. He responded to Mr Simshauser’s command to get back into the cage on the day Rusty was attacked by Bindi.
At the time the Council declared the dogs dangerous, in the case of Bindi and menacing, in the case of Jess and Winston, Mr Simshauser did not have secure accommodation. He became homeless. His attempts to register his dogs were thwarted by the Council’s online registration system. He could not complete the address field in the forms because he did not have an address. Despite his requests for assistance the Council could not help him. He also had no way of complying with the requirement that he maintain an enclosure meeting particular requirements at the address on the registration notice of the dogs because he had no address.
When Mr Simshauser learned that he had to leave the house he was sub-letting in Turkey Beach he knew that he would have to make some arrangements to keep the dogs secure while he camped. He and a friend built a large cage on the back of his ute. He stayed at various camp sites, being careful not to annoy other campers by having the dogs near them. At night he locked Bindi in the cage and tied Jess and Winston to the front and rear bumper bars of the ute. They provided an important source of companionship; they gave him something to get up for each morning.
Mr Simshauser thinks he has been persecuted by the Council. He understood that he had to have a suitable enclosure for the dogs after they became regulated dogs. He had spent $3,000 on such an enclosure which he had used when he and the dogs were living with his father in Mount Larcom. However, as he had been homeless for some time he did not have anywhere to put the enclosure. He did however construct an enclosure on the back of his ute.
He gave evidence that while he was moving about, he had been visited by the RSPCA on a number of occasions to check on the welfare of the dogs. They did not have any issues with the way the dogs were being looked after.
Since his brother and family moved out of his mother’s house in Turkey Beach, Mr Simshauser has been staying there, helping with renovations. He said that if he got Winston back, he would:
(a)lock him in the back yard which is surrounded by a 6-foot picket fence;
(b)put an electric wire on top of the fence to stop Winston jumping out;
(c)not take him out of the car, or if he did, would put him on a leash;
(d)re-home one of the dogs that is currently registered at that address and destroy the other.
Should Jess be destroyed?
Based on the CCTV evidence, the evidence of Mr Tonkin and the report from the vet[14] there can be no doubt that Jess seriously attacked the red kelpie, Rusty.
[14]Exhibit 1 p 68.
Based on Mr Simshauser’s observations of Jess while she has been in the Pound, which has led him to conclude that she can’t be 100% trusted if she were to be released, and given the high priority we must give to the protection of the community, we have no alternative but to confirm the Council’s decision to destroy Jess.
Should Winston be destroyed?
The evidence indicates that Mr Simshauser can exercise effective control of Winston. Winston responded to Mr Simshauser’s command at the time of the incident at Dan Murphy’s. Mr Simshauser has acted appropriately to mitigate the risk to people by ensuring that Winston was kept under control, either in the cage on the back of the ute or tied to the bumper bar of the ute, during the period that Mr Simshauser was homeless. Winston was in the cage on the back of the ute before he was seized.
There is no evidence that Winston has attacked a person or an animal, before or after the incident outside Dan Murphy’s. Nor is there any evidence that anyone is afraid of Winston. This means that we have a discretion in respect of the destruction order which we exercise to set aside the Council’s decision to destroy Winston.
However, Winston remains a regulated menacing dog. This means that Mr Simshauser is obliged to ensure that he complies with legal requirements for keeping a declared menacing dog. In order to protect the community, Mr Simshauser has to:
(a)register Winston as a menacing dog;
(b)arrange to have a PPID implanted;
(c)ensure that Winston wears a distinctive prescribed collar and tag (which the Council will provide);
(d)keep Winston in an appropriate enclosure of a particular type, unless there is some reasonable excuse for him not to be in the enclosure;
(e)put up the necessary signs (which the Council will provide) outside the property where Winston is regularly kept.[15]
[15]Dogs Act sch 1.
Mr Simshauser’s description of the enclosure in which he proposes to keep Winston sounded satisfactory, but must be checked by officers of the Council before Winston is released.
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