Slade v Cairns Regional Council
[2021] QCAT 276
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Slade v Cairns Regional Council [2021] QCAT 276
PARTIES: DARRYN JOHN SLADE (applicant)
v
CAIRNS REGIONAL COUNCIL (respondent)
APPLICATION NO/S:
GAR284-20
MATTER TYPE:
General administrative review matters
DELIVERED ON:
6 August 2021
HEARING DATE:
21 July 2021
HEARD AT:
Cairns
DECISION OF:
Member Taylor
ORDERS:
1. The decision of the Cairns Regional Council dated 8 July 2020 to declare ‘Daisy’ a dangerous dog is confirmed.
CATCHWORDS:
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – animals – dangerous dog – where dog owner asserts attack was provoked by a third person – where victim was not the person provocateur – whether victim sustained bodily harm – where Dangerous Dog declaration made
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 18, s 19, s 20, s 24
Animal Management (Cats and Dogs) Act 2008 (Qld), s 89, s 94, s 188.
Roy v Brisbane City Council [2019] QCAT 311, considered
Brisbane City Council v Roy [2020] QCATA 147, followed
Thomas v Ipswich City Council [2015] QCATA 97, distinguished.
Gligoric v Gold Coast City Council [2020] QCAT 320, distinguished.
Nguyen v Gold Coast City Council Animal Management [2017] QCATA 121, distinguishedAcaroglu v Moreton Bay Regional Council [2020] QCAT 76, distinguished
APPEARANCES & REPRESENTATION:
Applicant:
Self-represented
Respondent:
T. McKee – Compliance and Appeals Review Officer
REASONS FOR DECISION
Background
On the afternoon of 16 March 2020 at around 3:30 pm a young schoolgirl was waiting in the courtyard outside the Wallamurra Towers building in Abbot Street, Cairns. She was there to visit her grandparents.
Medical offices are housed on the ground floor of that building with residences on the upper floors. At the same time the Applicant was there with his dog, a young blue-heeler cattle dog named Daisy. He was waiting for his wife to complete an appointment at one of the medical offices.
At the time both the Applicant and the young girl were near the stairs at the front of the courtyard, Daisy bit the young girl on the rear of her thigh penetrating the skin causing bleeding (the Incident).[1]
[1]This is a short summary of the relevant facts as they appear in Ex. 1.1 and 1.2.
Later that afternoon the young girl’s mother made a complaint to the Respondent about the Incident. This appropriately caused the Respondent to investigate the complaint. During that investigation, it obtained a statement from the young girl as the victim, her mother as the complainant, and a man who had contacted the mother immediately following the Incident, doing so seemingly to assist the young girl. It is said that he witnessed the occurrence of the Incident.[2]
[2]A copy of a statement from both the young girl and the mother appear in the Respondent’s Investigation Report which is Ex. 1.2.
Following the investigation, on 9 April 2020 the Respondent issued the Applicant with a ‘Proposed Regulated Dog Declaration Notice’ under s.90 of the Animal Management (Cats and Dogs) Act 2008 (Qld) (the Animal Act).[3] As he was entitled to do under s.90(1)(e) of that Act, the Applicant responded with a written submission on 28 April 2020.[4]
[3]Ex. 1.3.
[4]Ex. 1.4.
As it was required to do under s.94(1) of that Act the Respondent considered those submissions. Having done so it remained satisfied that the Incident occurred, and that the Incident was such that it was properly said Daisy ‘seriously attacked’ the young girl as that term is used in s.89 of the Animal Act.
Accordingly, as mandated by s.94(2) of the Act, on or about 7 May 2020 the Respondent issued to the Applicant the requisite ‘Regulated Dog Declaration Information Notice’ declaring Daisy to be a dangerous dog.[5]
[5]Ex. 1.5 and 1.6.
The Applicant then sought internal review of that decision under Chapter 8 – Part 1 of the Animal Act.[6] By letter dated 8 July 2020, the Respondent informed the Applicant that it had conducted the review of the decision and confirmed the original decision as being correct, providing the Applicant with a statement of reasons for same (the Decision).[7]
[6]Ex. 1.7.
[7]Ex. 1.8.
The Applicant now seeks a review of the Decision in this Tribunal and an order that the Decision be overturned.[8]
[8]Application filed 5 August 2020.
The Review Process
The purpose of this review, arising under s.188 of the Animal Act in conjunction with s.17 to s.20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), is to produce the correct and preferable decision. It is conducted by way of a fresh hearing on the merits.[9] In effect, as the Member constituting this Tribunal for the purposes of the review, I stand in the shoes of the original decision maker.
[9]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s.20(2).
I am not concerned with the process by which the Decision was reached and whether any error was made in any of the steps taken by the decision-maker.[10] Accordingly, the role of the Respondent is not to advocate for the correctness of the Decision, but rather to assist me in my task of being required to make the correct and preferable decision.[11] In doing so the Respondent primarily refers to the material that was before its decision-maker during the process that led to this hearing, and to have its witnesses confirm their previously filed written statements and make them available for cross-examination, but it may also present other evidence during the hearing by way of other witnesses.[12]
[10]During the hearing the Applicant on occasion sought to raise issues that went to the process of the original decision making – e.g. an asserted failure to have served him with a sworn copy of the ‘Oath or Service’ contained in the Respondent’s material at Ex. 1.6 as evidence of service of the Regulated Dog Declaration Notice on the Applicant, and an asserted failure by the decision-maker to have taken photos of the injury sustained by the young girl, or to have visited the Applicant and personally observed the dog. When it was explained to him that this is not a review of the process but a review of the original decision by way of a fresh hearing on the merits, he did not press those issues further.
[11]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s.21.
[12]QCAT Practice Direction No. 3 of 2013 – para 5(d).
Following consideration of the relevant material, I may confirm or amend the Decision, set aside the Decision and substitute my own decision, or set aside the Decision and return the matter for reconsideration by the decision maker.[13]
The Statutory Framework of the Animal Act
[13]Queensland Civil and Administrative Tribunal Act 2009 (Qld) – s.24(1).
I respectfully adopt the following description of the statutory framework of the Animal Act from the reasoning of the Appeal Tribunal in Brisbane City Council v Roy [2020] QCATA 147 because of its succinctness and clarity.[14]
[14]Brisbane City Council v Roy [2020] QCATA 147, [20] to [23]. The footnote references are as contained therein at footnotes 25 to 34 but renumbered herein to reflect the sequence of footnotes in these reasons.
A regulated dog means a declared dangerous dog, a declared menacing dog or a restricted dog.[15] A local government may declare a dog to be dangerous, menacing, or restricted. [16] A declared dangerous dog includes a dog declared to be dangerous under s 94 of the AnimalAct.[17] A dangerous dog declaration may be made if a 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 another animal, seriously attack, or act in a way that causes fear to, the person or animal.[18]
[15]Animal Act s.60.
[16]Ibid s.89(1).
[17]Ibid s.61(a).
[18]Ibid s.89(2).
A menacing dog declaration may be made for a dog only if a ground referred to in
s 89(2) of the Act exists, except that the attack was not serious.[19]
[19]Ibid s.89(3).
‘Seriously attack’ means to attack in a way causing bodily harm, grievous bodily harm or death.[20] ‘Grievous bodily harm’ and ‘bodily harm’ have the meaning given by the Criminal Code Act 1899 (Qld) Schedule 1 (‘Criminal Code’), s 1.[21] Under the Criminal Code: ‘bodily harm’ means any bodily injury which interferes with health or comfort; ‘grievous bodily harm’ means the loss of a distinct part or an organ of the body; or serious disfigurement; or any bodily injury of such a nature that, if left untreated, would endanger or be likely to endanger life, or cause or be likely to cause permanent injury to health; whether or not treatment is or could have been available.
[20]Ibid. s.89(7).
[21]Ibid. Schedule 2.
If a local government proposes to make a regulated dog declaration it must first give to the owner of the dog a proposed declaration notice.[22] The local government must consider any written representations and evidence submitted by the dog owner.[23] If the local government is satisfied that a ground for making the declaration still exists, it must make the regulated dog declaration.[24]
[22]Ibid. s.90(1).
[23]Ibid. s.94(1).
[24]Ibid. s.94(2).
The Applicant’s Original Representations and his Evidence in this Hearing
A copy of the Applicant’s original representations given under s.90(1)(e) of the Animal Act appears in the Respondent’s material.[25]
[25]Ex. 1.4.
Much of it was directed to the ‘investigation process’ engaged in by the Respondent prior to issuing the Proposed Regulated Dog Notice.[26] It was only the first page therein that addressed the Incident, concluding with some ‘Recommendations’. On my reading of those representations, I note the following as expressed in those Recommendations.
Darryn took reasonable steps to ensure that Daisy did not attack or cause fear as required under Section 194 of the Animal Management (Cats and Dogs Act) (sic) 2008. …
Daisy did not inflict bodily harm as is required for declaration of a Dangerous or Menacing Dog. The mark inflicted on the schoolgirl was of an insignificant nature which was unlikely to interfere with her health or comfort and she herself stated that she was Ok.
As per the defences listed in Section 196 of the Animal Management (Cats and Dogs Act) (sic) 2008, Daisy acted as a result of being provoked or feeling that she was being attacked and should not be declared as a Dangerous or Menacing dog as a result. …
[26]Given that I am not concerned with the ‘process’ but rather hearing the matter afresh and making a decision on the merits, I did not give any consideration to these representations.
Much of what was contained in those Representations was repeated in the Applicant’s statement filed in this proceeding.[27] On my reading of that statement, and having listened to the Applicant during his oral evidence in the hearing, as I understand that evidence it is that the facts as I have summarised them in paragraphs [1] to [3] herein, subject to only that which I say in the next paragraph, are not disputed by the Applicant.
[27]Ex. 3.
The exception is that he describes the Incident as being a ‘nip’ rather than a ‘bite’ stating it was “one small puncture wound”, asserting that the bleeding was minimal because “There were 3-4 small drops of blood and one wipe of a tissue stopped [the] bleeding.”[28]
[28]This is as the Applicant described it in his written statement and confirmed in oral evidence.
In her written statement of evidence, also confirmed in oral evidence during the hearing, the Applicant’s wife Mrs Lilian Slade described it in this way: “I helped her by wiping the small wound with a tissue which soon stopped [the] bleeding.”[29]
[29]Ex 5. As I understand the reference to ‘her’ it is to the young girl.
As to that which is said to have occurred at the time of the Incident, the Applicant described it as follows, the reference to the clinic therein being to a medical clinic on the ground floor of Wallamurra Towers.
As Darryn and Lilian went to leave the clinic a man wanted to enter the courtyard area in front of them. Darryn had Daisy on a very short leash with her “behind” immediately adjacent to his foot. Lillian had proceeded down the steps in front of Darryn. …
Darryn stopped to let this person past. The other gentleman indicated for Darryn to proceed, which he did. The other man then “dashed” between Darryn and Daisy, apparently to get something off a bicycle leaning against the wall next to Darryn. … He pushed against Daisy’s lead and loomed over Daisy, causing here to feel threatened. Daisy reacted by barking and jumping against the lead and generally showing signs of stress.
As Darryn moved Daisy out of the area and attempted to control her, Daisy turned her head and nipped at a schoolgirl immediately next to her causing one small puncture wound.
The gentlemen who caused the incident apologised for his behaviour and left the scene before contact details could be exchanged. [30]
[30]Ex.3.
The Applicant expressed the events in a very similar manner in his original representations to the Respondent, but therein when describing the initial interaction with the unidentified man, he states “Darryn had Daisy on a very short leash with her “behind” immediately adjacent to his foot. (sic) and stopped to let this person past in a narrow area. …”
The Applicant’s Statement contained a photograph of the street view of Wallamurra Towers, marked up with arrows and captions showing where it is said the Applicant was standing at the top of the stairs, and the young girl was to the right hand side of the stairs at street level.
As to the injury sustained by the young girl, there was some conjecture as to the nature of the wound. As I have already noted it, the Applicant described it in his written statement as being a small puncture wound. In answer to questioning from me during the hearing, the Applicant described it with more particularity as being “approximately 1 cm long 3 to 4 mm wide at maximum” equating it to his thumbnail as visible from the palm side of his hand where the nail protrudes beyond the end of his thumb, describing it in this way whilst holding up his thumb with the down-side facing me such that the nail protrusion was visible.
Mrs Lilian Slade described it in oral evidence as being merely grazing of the skin, describing it as being “skin pulled back”, and that it did not look like a puncture wound. Also, whilst Mrs Slade stated that there was blood around the area of it, it was not dripping blood.
In the material filed by the Respondent, photos of what is said to be the wound on the young girl’s thigh appear. [31] The Applicant says these are not photos of the wound he saw. Mrs Slade gave her evidence by phone and accordingly was unable to be questioned about these photographs.
[31]These appear within Ex. 1.2 at pages 17 and 18 of Ex. 1.
As to the effect the Incident had on the young girl, the Applicant gave this evidence in his written statement.
The young girl appeared more startled than injured and was soon laughing with Lilian and talking about her Jack Russell (sic) dog.[32]
[32]Ex. 3.
The exact same statement, verbatim, appears in Mrs Lilian Slade’s written statement.[33]
[33]Ex. 5.
The Applicant also gave other evidence during the hearing which arose from questioning by me in my efforts to understand the Incident more clearly as it unfolded.
The Applicant described the manner in which he was restraining Daisy by holding the leash in his right hand with it being tight down to Daisy’s collar whilst Daisy was at his right foot, and that when he walked down the steps Daisy was still on a tight leash and only loosened enough for her to go from step to step. By reference to some photographs taken of Daisy at a different location on a different day, he sought to show me the leash in question and the manner in which he would restrain Daisy on that leash.[34]
[34]Ex. 4.
He also described further for me the circumstances of what he said occurred at the stairs and the interaction with the other man. He stated that he was at the top of the stairs to the left side when viewed from the street, with the man at the bottom of the stairs wanting to come up. The Applicant stated that he stood aside holding Daisy on a tight leash because he was worried that Daisy might try and bite the man when he was coming up the stairs.
When the Applicant was reminded of this whilst under cross-examination by the Respondent’s representative, he sought to recant from this evidence asserting that he never said he was worried the dog might bite the man.
Under cross-examination, the Applicant also described the interaction with the other man as follows: “When the man moved between me and Daisy he hit the lead and loosened it off. [The young girl] was not within the length of the leash until the man moved between me and the dog.”
The Respondent’s Material
In satisfaction of a pre-hearing direction of this Tribunal,[35] the Respondent filed documentary material which contained the complaint, investigation report, and relevant notices of proposed declaration and declaration, together with the decisions and reasons for decision, all of which I made brief reference to earlier in these reasons under the heading Background.[36]
[35]Direction 2 of the Tribunal’s Directions dated 15 September 2020.
[36]Ex. 1.
During the hearing, the Respondent called only one witness. He was Mr Leonard Hart, identified as being the person who contacted the young girl’s mother immediately after the Incident occurred. His statement given to the Respondent during its investigations of the complaint appeared in the Respondent’s material.[37] However, this version was heavily redacted making it difficult to read and comprehend. Thus, on my request during the hearing, an unredacted version was produced by the Respondent’s advocate, save only for redaction of the witness’s personal address and phone number contained therein. It was received into evidence as his written statement and evidence in chief.[38] With leave being given without objection, Mr Hart also gave some additional evidence in chief orally at the hearing. He was also cross-examined by the Applicant.
[37]Ex. 1.2 – pages 5 to 10.
[38]Ex. 6.
It is convenient to summarise his evidence as follows:
(a)He had parked in the centre parking of Abbott Street to attend a doctor’s appointment at one of the doctor’s rooms in Wallamurra Towers.
(b)As he walked across the street from his car, he heard a dog barking. He looked up and saw a dog barking at a young girl in a school uniform.
(c)The girl was about eight to ten feet back from the top of the stairs but walking towards the stairs as if to go down the stairs. There was also a man, whom he identified as the Applicant, together with a woman, standing at the top of the stairs on the right side of the stairs when viewed from the street. As he described it, the Applicant and woman were standing behind or just beside a handrail that exists to the right side of the stairs.[39]
(d)He observed the dog bite the young girl as she was on the top step.
(e)At that time, the dog was pulled away and the girl started crying and shaking.
(f)It was immediately after that he asked the young girl for a contact number, and he called the girl’s mother on his own mobile phone.
(g)As to the wound on the girl’s leg, he said he did not take much notice of it thus could not comment whether the photos which were in evidence were an accurate record of the wound, but he did say that he saw blood running down the girl’s leg.
[39]The witness marked up a photograph of the street view of Wallamurra Towers showing the stairs and handrail, the markings showing the location of the girl, the Applicant, and the dog as he observed them. Those markings are a X for the position of the girl, a + for the position of the Applicant, and a D for the position of the dog, as he first observed them as he looked up. Ex. 7.
When asked whether he observed any other persons present at the time, his answer was that there were some children at the rear, which I understood was a reference to the rear of the courtyard, some other people on the footpath in front of the windows to the right hand side of the stairs, and another man going up the ramp to the left hand side of the courtyard to the left of the stairs.
When asked by me whether he observed any other person in the vicinity of the Applicant and/or the young girl at the time the dog was barking or when he saw the dog bite the girl, his response was that there was no other person present.
Finally, it should be noted that whilst cross examining Mr Hart, the Applicant sought to challenge Mr Hart, putting to him the proposition that Mr Hart did not arrive on the scene until three to four minutes after the incident had occurred. Mr Hart emphatically rejected that as being correct.
Mr Hart was the only witness proffered by the Respondent. That being so, I noted that there were statements purportedly given by the young girl and by her mother contained in the Respondent’s investigation report.[40] When asked by me why the young girl, as the victim, or her mother, as the complainant, were not presented at the hearing to give evidence or be cross-examined, Ms McKee informed me that the Respondent did not consider it necessary and relied solely on Mr Hart’s evidence as being sufficient.
[40]Ex. 1.2 – pages 15 and 16.
Notwithstanding that they were not presented for cross-examination, the Applicant did not raise any objection to the purported statements of the young girl or the mother being considered by me as part of the material that was before the original decision maker. Thus, I am left to consider only that which is within the Respondent’s material filed that is said to have come from the young girl or her mother.
Once again much of that material is redacted which makes its reading and comprehension challenging. As best I can make it out, the young girl’s statement is as transcribed by her mother on 6 April 2020. Notwithstanding that challenge and the fact that it is not a statement written directly by the young girl, I note the following which I consider as being relevant to the decision I must make.
From the young girl:[41]
As they came closer to me to walk down the 3 stairs to the footpath where I was waiting for my [redacted], I turned away as I noticed the dog was still aggressive. The dog was between the owner and myself as they progressed down the stairs where the dog lunged and bit my upper back thigh. After being bitten by the dog a (sic) unknown lady witness comforted me and the dog owner and his wife and dog waited approx. 4 mt away on the footpath.
[41]As I understand the statement, the reference ‘they’ is to the Applicant and his wife.
From the mother:
When I arrived at the scene I found [redacted] sitting on the landing very upset and shaking holding [redacted] bloody thigh be (sic) comforted by 2 x ladies, 2 men [redacted]. …
The Applicant’s Submissions
On 28 April 2021 the Applicant filed a document entitled ‘Submission outlining Reasons for the Decision to declare Daisy Slade as a Dangerous Dog by Cairns Regional Council (CRC)’, which he informed me during the hearing was his understanding of the direction given by this Tribunal for filing of material.[42] He relied on this document as his closing submissions in the hearing, supplementing them with short oral submissions.
[42]Ex. 8.
That document is relatively extensive. I need not refer to all of it. It is sufficient to note the following from it to which the Applicant referred during his oral submissions, such being what I understand to be the focus of his argument.
A common-sense approach would suggest that the incident did not constitute a serious attack and constituted a nip from an 8-month-old puppy who was placed under threat.
As noted in Roy v Brisbane City Council [2019] QCAT 311, provocation should be considered by Council in any declaration: “the circumstances in this matter, where after training and further evidence about the dog’s demeanour, an appropriate exercise of discretion might well be that the Dangerous Dog Declaration should not be made.”
As stated in Thomas v Ipswich City Council [2015] QCATA 97 : “The essential question (in a Dangerous Dog Declaration) is whether the dog constitutes, or is likely to constitute, a threat to the safety of other animals or to people, by attacking them or causing fear.”
[In] Gligoric v Gold Coast City Council [2020] QCAT 320, [the Tribunal] stated that the onus is on Council under the Act to “show that the dog was dangerous and could not be controlled.”
Daisy was provoked by the actions of an unknown man running between Darryn Slade and Daisy, which caused her to feel threatened and snap at a bystander, unfortunately injuring her in the process.
CRC have not met the requirements of Gligoric v Gold Coast City Council and have not shown that the dog is dangerous and cannot be controlled.
Council have not answered the essential question from Thomas v Ipswich City Council and as required under Section (sic) of the Act, in whether Daisy is likely to represent a threat moving forward.
It seems clear from these cases that the intent of the legislation is to make irresponsible dog owners accountable and prevent Dangerous Dogs from harming the public. It is not the intent of the AM Act to declare 8 month old puppies who have been provoked by unreasonable actions by members of the public and nipped at their surroundings to be Dangerous.
The Applicant summed up his case reliant on the decision of this Tribunal in Roy v Brisbane City Council [2019] QCAT 311, submitting:
Council should have considered the issue of provocation and council should have exercised its discretion not to declare Daisy a dangerous dog.
This consideration should have been given before the notice of proposed dangerous dog declaration was given.
The Respondent’s Submissions
The Respondent’s submissions were oral and relatively succinct. These may be summarised as follows:
(a)The injury to the young girl was not minor. It contained a puncture wound.
(b)It was a ‘serious attack’ as that term is used in s89(7) of the Animal Act.
(c)The relevant decision is not Roy v Brisbane City Council [2019] QCAT 311 but rather the decision on appeal from that first instance decision, namely Brisbane City Council v Roy [2020] QCATA 147.
(d)In the appeal decision, it was confirmed that once a ‘Proposed Regulation Dog Declaration Notice’ has issued, there is no further discretion for the Council to apply and thus, if on review of any submissions the dog owner chooses to make in response thereto the Council remains satisfied that the relevant ground for giving the proposed notice still exists, then the Council must issue the declaration.
In conclusion, the Respondent submitted that I must confirm the Decision if I am satisfied on consideration of the Applicant’s representations that the circumstances of s89(2)(a) have not been rebutted.
Applicant’s Reply Submissions
The Applicant responded to the Respondent’s submission on the Appeal Tribunal’s decision in Roy, noting that whilst he had read it, he said that the first instance decision was still relevant. He asserted that the issue of provocation being considered in the first instance decision was not disturbed on appeal.
Consideration of the Arguments
Firstly, it is convenient to dispose of one aspect of the Applicant’s original representations as I have noted them in paragraph [18] herein. The Applicant seemingly sought to rely on s.194 and s.196 of the Animal Act. It was unclear to me whether this was as a challenge to the Dangerous Dog Declaration or to a fine imposed on him by the Respondent arising out of the Incident. If it is the former, his reliance is misplaced as these provisions do not bear on the Decision and this review. If it is the latter, the imposition of any fine by the Respondent is not an issue under review by this Tribunal.
The Decision under review in this proceeding is the decision made by the Respondent’s decision-maker on 8 July 2020 to declare Daisy a dangerous dog. This is the decision made under s94 of the Act. It is not the decision under s89(2) of the Act to issue the ‘Proposed Regulated Dog Declaration Notice’.
This is a critical aspect of the process because it informs where the issue of discretion lies, such being at the effective core of the Applicant’s argument in this proceeding, with him arguing that I should exercise a discretion and apply a common-sense test. For the reasons that follow here, his argument is misguided. As I will shortly explain, the Respondent’s closing submission is the correct one. In effect, I do not have a discretion under s94 of the Act. The only issue is one of whether I am satisfied that the relevant ground under s89 still exists.
The Applicant’s original representations plus the evidence he presented and his submissions in the hearing before me are in effect the Applicant’s ‘representations and evidence’ that I must consider under s.94 of the Animal Act standing in the shoes of the decision maker. As I have noted it, his argument is premised on the reasoning of this Tribunal in Roy v Brisbane City Council [2019] QCAT 311. In that matter the learned Tribunal Member set aside the dangerous dog declaration and substituted it with a menacing dog declaration on the basis that he determined the attack was not serious notwithstanding that it resulted in three small puncture wounds which caused bleeding, which he described as being “more in the nature of a snap than a vicious bite.” [43]
[43]Roy v Brisbane City Council [2019] QCAT 311, [30], [31].
In my opinion, this decision does not assist the Applicant.
Firstly, as I understand the Applicant’s submissions, he asserts that there was an element of provocation considered in Roy which I must also consider here. Respectfully, I am unable to accept that submission. On my reading of the learned Member’s reasoning at first instance I am unable to discern that the issue of provocation was germane to the decision he ultimately made. The Member mentions it only once at paragraph [14] noting that whilst 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.
In my opinion provocation is not an element I need consider any further. However, given it is raised by the Applicant and appears to be an issue which he strongly advocated for I will make these brief observations on the point with particular regard to the evidence of the Applicant himself going to the issue.
Firstly, it must be noted that there is no evidence, nor even a mere suggestion, before me that the young girl provoked Daisy such as to cause the dog to bite her. At its highest there is the assertion of some interference by an unknown and unidentified man that caused Daisy to act as she did. As I understand the Applicant’s evidence and his submissions, he is saying that Daisy was provoked by the man who gestured to the Applicant to come down the stairs, but then lunged between the Applicant and Daisy, pushing on her leash causing her to react and at that time nip at the young girl.
With the utmost of respect to the Applicant, I am simply unable to accept this evidence and argument.
Firstly, as I noted it from reading his original representations and as relevantly extracted at paragraph [24] herein, the Applicant seemingly suggests that the stairway is a ‘narrow area’. I do not accept that description. I am able to observe the staircase in question as it is shown in the photographs contained in the Applicant’s statement as I referred to them in paragraph [25] herein. It cannot be accurately described as ‘narrow’. To the contrary, it is broad and open. Moreover, it appears that it consists of only two steps between the upper and lower levels and as such it could not in any way be considered to be a constrained or confined space. That fact casts some doubt on the correctness of that which the Applicant described occurred on the staircase that resulted in Daisy acting as she did. His description of the events suggests it to be a narrow location where two persons passing on the staircase could not avoid being in close proximity to each other, a description I simply do not accept as being accurate.
As the Applicant explained it, he held Daisy on a tight leash with her at his feet, confirming on questioning from me that the leash was in effect running parallel to his right leg and loosened off only slightly so as to enable Daisy to step down the steps. The Applicant then says that it was only when this man lunged and moved between himself and Daisy that the dog reacted.
Given this description of the manner in which Daisy was being restrained at the time, I cannot see how this man could have passed between the Applicant and his dog.
There is also the inconsistency in the Applicant’s evidence of where he stood at the time this man is said to have gestured for the Applicant to come down the stairs. The Applicant says he was to the left of the stairs, not to the right where he says the young girl was at the time and in the direction that the man lunged. If that was so, I have difficulty in understanding how, if the man lunged to the right when the Applicant and Daisy were to the left, how Daisy could have then gone to the right and nipped at the young girl.
However, even if I have misunderstood the Applicant’s description of what he said occurred, I also have difficulty accepting the Applicant’s account of his interaction with this unknown man. It is subjective and entirely inconsistent with the objective evidence of Mr Hart who states that there he did not observe any such man present.
In contrast to the Applicant’s evidence which does not, on my understanding of it, accord with the facts, Mr Hart’s evidence is credible. He gave it in a very clear and precise way leaving me with the conclusion that he had a clear recollection of the Incident as he observed it and recounted it in his written statement to the Respondent and during the hearing before me.
As I have noted it the Applicant challenged Mr Hart putting to him that he was not there until three to four minutes after the Incident occurred, an assertion Mr Hart emphatically denied. I also accept that denial as being correctly made. Given the clarity of Mr Hart’s evidence and his composure which I observed he exhibited whilst in the witness stand, there is simply no reason for me to doubt he observed the Incident as it occurred, and that it occurred as he described it. Where Mr Hart’s evidence is different to that of the Applicant concerning the alleged presence of this unknown man, I prefer Mr Hart’s evidence. I give it greater weight given its clarity.
There is also the issue of the Applicant’s oral evidence that he sought to recant under cross-examination, that being his concern that Daisy might bite the man coming up the stairs. Whilst ultimately not relevant to the decision I am required to make, it leaves me wondering about the Applicant’s evidence overall. Put simply there was a lack of consistency about it that leaves me in doubt as to its credibility.
All that being said, in summary, the evidence is against the Applicant. Equally, as I will explain it in the following paragraphs, so is the law.
I thus return to the passage from Roy v Brisbane City Council on which the Applicant relies, as I have extracted it in paragraph [48] herein. When read alone, presented in the manner of the Applicant’s submission, it conveys a context different to that which it carries when read as part of the entirety of the learned Member’s reasons in that matter.
The same submission that is before me from the Respondent was before the learned Member. In that regard, notwithstanding that it is lengthy, it is convenient to extract the following passage from the learned Member’s reasons wherein he deals with the equivalent submission. It is within this passage at paragraph [24] that the short passage the Applicant relies on appears.
[17] The Council submits that because the bite resulted in bodily harm within the definition of serious attack, s 89(2)(a) applies and therefore there is no alternative under s 94(2) but to declare the dog a dangerous dog. It is submitted by the Council that once it has considered the representations after giving notice of the proposed declaration, and it is satisfied that the relevant ground still exists, it must make the regulated dog declaration for the dog under s 94(2) of the Act.
[18] This submission in effect means that the Council has no choice, where it is admitted that the dog did cause bodily harm and irrespective of the circumstances or what is contained in the representations in response to the Notice, but make the proposed declaration. Similarly, if the legislation mandates that the Council must make the declaration in these circumstances, then it follows that this Tribunal must also make the declaration and the review process, both internally and before this Tribunal, is pointless. The Council relies on the following statement from Imbrogno & Anor v Brisbane City Council:
The learned member found that Thor and Zeus had seriously attacked Miffy. The learned member observed that there was no discretion afforded to the Tribunal to reach a different decision (other than to make the regulated dog declaration if the attack results in grievous bodily harm). As was held in Lee v Brisbane City Council (No. 2) [2012] QCATA 6, all the relevant circumstances need to be taken into account in the exercise of the discretion. The discretion involves the decision maker, after considering all of the relevant circumstances including submissions and evidence by the dog owner, determining whether a dog has seriously attacked the person or another animal. Having found that Thor and Zeus had seriously attacked Miffy within the meaning of s.89 of the AM Act, s.94(2), required the learned member to confirm the decision to declare Thor and Zeus to be dangerous dogs.
[19] In Imbrogno there was some confusion about which dog actually attacked Miffy and generally a dispute about the circumstances of the attack. Here there is no dispute that Ophelia was bitten by Keziah. But, after she had 18 days training with an experienced trainer and exhibited no signs of aggression, the question might be asked whether Keziah is the same dog now (at the time of the review hearing) as he was on the day of the attack. Alternatively having regard to s 94(2) whether relevant grounds for making the declaration still exists.
[20] I raise this issue because the Council contends that the question for determination, having considered all of the evidence including that before the reviewer, is whether the relevant ground under s 89 still exists after considering ‘any written representation and evidence accompanying them’ pursuant to s 94(1). If nothing changes, or materially changes, then the local government ‘must’ make the regulated dog declaration for the dog.
[21] This is in stark contrast with section 89 which confers the power on the local government to make the declaration. Even where it is established that a serious attack has occurred (as defined) the local government, under s 89, still has a discretion whether or not to make the declaration upon complying with the requirements of Part 4.
[22] The incongruity between s 89 and s 94 is plain, one section confers a discretion and the other a mandatory obligation to make the declaration once any representations are taken into account. One might ask in circumstances such as these the purpose of the representations. The difficulty for the dog owner is that once the relevant ground is established, the discretion goes. In some cases, the relevant ground will always exist despite the circumstances of the bite and what is said in response to the Notice.
[23] A simple example might be where if, inadvertently, a victim stood on a dog’s paw and it reacted instinctively by biting the victim’s foot resulting in a puncture wound thereby causing bodily harm. This, by definition is a serious attack. In those circumstances, where the dog has no history of aggressive behaviour and is a friendly obedient pet, it will be difficult to see as a matter of common sense how it could be declared a dangerous dog. It would seem that if such a circumstance existed, and a full explanation was provided along these lines in response to the Notice, the Council would have to conclude that the ‘relevant ground’ under s 89 did still exist and would have to (must) make the Declaration. Despite how strong the case is in favour of the dog, if the relevant ground still exists then the Council, on the argument propounded in this application must make the declaration.
[24] There will of course be situations where there is a dispute of fact as to whether the relevant ground is made out, e.g., whether the dog was the culprit. In those cases, the response to the Notice might be of assistance and the Council, and the Tribunal standing in the shoes of the decision maker, could find that the relevant ground did not ‘still exist(s)’. But there are other situations, like the example above, and the circumstances in this matter, where after training and further evidence about the dog’s demeanour, an appropriate exercise of discretion might well be that the Dangerous Dog Declaration should not be made.
[25] On a generous reading of s 94(2) it might be argued that the reason the legislature inserted the reference to the Council being satisfied that the relevant ground still existed was to consider all of the circumstances surrounding the attack, not confined to the mere fact of the definition of serious attack having been satisfied. This is somewhat consistent with the Explanatory Note on s 94:
Clause 94 – Making declaration
Clause 94 provides that a local government must consider any written representations or evidence it receives during the period given under clause 90 (Notice of proposed declaration).
Clause 94(2) provides that, if after considering representations or evidence the local government is satisfied that the dog is a regulated dog under clause 89, it must make the declaration about the dog.
[26] The difference is the generality of what the local government needs to be satisfied of before it ‘must’ make the declaration. However, I am not sure that is of particular assistance here for the applicant.
[27] Had it not been for the mandatory wording of s 94(2) I would have been inclined to set aside the Dangerous Dog Declaration in reliance on the evidence of Ms Beatson the effect of which is that this was a one-off incident and unlikely to be repeated. [44]
[44]Roy v Brisbane City Council [2019] QCAT 311, [17] to [25]. Footnotes omitted. The reference to the decision in Imbrogno is to Imbrogno & Anor v Brisbane City Council [2017] QCATA 148.
On any reading of this extract of the reasoning as a whole, it is seen that the learned Member was not persuaded to set aside the decision to issue a Dangerous Dog Declaration even though a common-sense approach might be applied and that it was a one-off incident unlikely to be repeated. As the learned Member correctly noted, the wording of s94(2) of the Act is in mandatory terms. I respectfully acknowledge the reasoning of the learned Member therein, and whilst I do not suggest any concluded view I hold as the correctness or otherwise of the observations he makes, I note his observation of that mandatory wording of s94(2) of the Act.
The issue in Roy that caused the Appeal Tribunal to consider the learned Member’s reasoning is that he decided to set aside the decision to issue a Dangerous Dog Declaration and substitute it with a Menacing Dog Declaration on a consideration of what he considered to be an interrelationship between s89(2) and s89(3) of the Animal Act, such being ultimately held by the Appeal Tribunal to be in error thus causing his decision to be overturned and the original decision confirmed. This issue does not arise in the matter before me.
However, what is telling of the decisions in Roy, both at first instance and on appeal, is the manner in which the interplay between s89 and s94 was dealt with. I need not repeat any of that to which I have already referred in the decision at first instance, and I need only refer to the Appeal Tribunal’s reasons, the relevant part of which I extract here.
[52] The words of s 89(1) clearly confer upon a local government a capacity to choose between alternative courses of action: a choice that must be made in the exercise of a discretion. A local government may, subject to compliance with the requirements of Part 4, declare a dog to be dangerous, menacing or restricted. The discretion not to make any declaration at all is confirmed by s 90(1) which states ‘If a local government proposes to make a regulated dog declaration …’ (emphasis added) and then outlines the process available to that end starting with a notice of proposed declaration given to the owner.
[53] Section 89(2) sets out the considerations the local government is required to take into account in exercising the discretion conferred by s 89(1) to declare a dog to be dangerous. Section 89(3) sets out the considerations the local government is required to take into account in exercising the discretion conferred by s 89(1) to declaring a dog menacing.
[54] If the local government is satisfied about the facts out of which the power to make a declaration about a dog arises, the local government must, by s 94(2) of the AM Act, make the declaration.
[55] The ‘relevant ground’ in s 94(2) is a reference to the considerations which must be taken into account in exercising the power to make a regulated dog declaration to which we have earlier referred, that is ss 89(2) and (3).
[56] Use of the word ‘must’ in s 94 indicates that the power granted is required to be exercised. There is no discretionary element involved save that the decision maker must be satisfied that the relevant ground under s 89 is made out. If it is not, the regulated dog declaration proposed cannot be made. [45]
[45]Brisbane City Council v Roy [2020] QCATA 147, [52] to [56]. Footnotes omitted. Emphasis added.
All that being said, in my opinion the Applicant’s reliance on the first instance decision in Roy is misplaced. The outcome of the present matter turns on the application of the decision on appeal. This is as the Respondent has submitted. The discretion that the Applicant seeks me to exercise is a discretion I do not have standing in the shoes of the decision-maker. To the extent there was a discretion afforded the Respondent’s decision-makers under the Animal Act it was that which exists under s89(2) of the Act, and one which was spent when the decision was made to issue the Applicant with the Proposed Regulated Dog Declaration Notice. But that is not the Decision now under review. It is the latter decision made under s94(2).
Accordingly, what I must only consider is the question of whether, after reviewing all of the Applicant’s representations, I am satisfied that the relevant ground under s89(2) still exists. If I am so satisfied, I must in effect make the regulated dog declaration by confirming the original decision.
That is the ‘mandatory wording of s94(2)’ to which the learned Member referred in the Roy decision at first instance, and the mandatory action to which the Appeal Tribunal referred in the emphasised words noted above.
As is relevant to this proceeding, the issue therefore is whether I am satisfied that Daisy has ‘seriously attacked, or acted in a way that caused fear to’ the young girl.[46] I will shortly turn to addressing that question, but before doing so, given the Applicant’s efforts to make his argument reliant on caselaw, for completeness I should make some observations on the other caselaw to which the Applicant referred and seemingly relied, some of which I have extracted in paragraph [48] herein.
[46]This is the operation of s.89(2)(a) of the Act. Section 89(2)(b) does not have any application on the facts as they are before me.
As to his reference to Thomas v Ipswich City Council [2015] QCATA 97 he has endeavoured to present it as meaning something it does not by selectively leaving out certain words of a sentence, and inserting words that are not there. Such an approach does not assist him in persuading me as to the correctness of his argument overall. The short passage that the Applicant refers to in Thomas, when read as part of the paragraph in which it appears, does not convey that which the Applicant seemingly says it does. He has inserted the words “in a Dangerous Dog Declaration” that do not appear in that sentence. The issue in Thomas was a dog destruction order, the sentence in full being “The essential question is whether the dog constitutes, or is likely to constitute, a threat to the safety of other animals or to people, by attacking them or causing fear, to the extent that the threat may only be satisfactorily dealt with by the destruction of the dog.”[47] For this reason the decision in Thomas is distinguishable.
[47]Thomas v Ipswich City Council [2015] QCATA 97, [18].
As to the statement said to have been made by the Tribunal in Gligoric v Gold Coast City Council [2020] QCAT 320, no such statement appears in the reasoning of the learned Member in that matter. Moreover, like the decision in Thomas, the circumstances before the Tribunal in Gligoric dealt with a dog destruction order on facts entirely different to those that exist in the matter before me. Once again, the case is distinguishable.
In his closing submissions the Applicant also referred to the Appeal Tribunal’s decision in Nguyen v Gold Coast City Council Animal Management [2017] QCATA 121 to the extent it is said to have recast the question raised in Thomas slightly differently. That matter also concerned a dog destruction order, and in particular the issue of ‘control’ of the dog, an issue not arising in terms of a dangerous dog declaration. Again, the case is distinguishable.
He also relied on the Tribunal’s decision in Acaroglu v Moreton Bay Regional Council [2020] QCAT 76. This concerned the making of a ‘menacing dog declaration’, such not involving the issue of a serious attack. To the extent the learned Member analysed the question of whether the dog in that matter was ‘menacing’ (see paras [75] to [97] therein), and thus the conclusions reached at paras [98] and [99] therein as relied on by the Applicant, whilst these might have some relevance to a consideration under s89(2)(b) of the Animal Act in circumstances where an attack is not ‘serious’, these circumstances do not arise in the question of a dangerous dog declaration under s89(2)(a) and s94 of the Animal Act. Again, the case is distinguishable.
Returning then to the relevant question, as I have noted it the Incident is not in dispute. It may properly be said that the dog attacked the young girl. Whilst there is some uncertainty as to where the young girl was just before the Incident, Mr Hart stating she was about to walk down the steps whereas the Applicant asserts she was waiting to the side of or at the bottom of the steps, the Applicant does not challenge the fact that his dog bit the young girl, whether or not such is categorised as a bite or a nip. The issue is whether it was a ‘serious attack’.
As I have considered all of the material before me, both documentary and oral evidence and the related submissions by each party, as I see it the following facts are directly relevant to the determination of that issue:
(a)The photos of the wound show a puncture wound similar to that described by the Applicant, and some grazing which is consistent with that described by Mrs Slade;
(b)As the young girl’s mother describes that which she observed on arrival, the young girl was ‘very upset and shaking holding [her] bloody thigh’;
(c)As Mr Hart describes it, at the time Daisy was pulled away after biting the young girl, the girl “started crying and shaking”, and that he saw blood running down the girl’s leg; and
(d)As the young girl describes it after having been bitten, she was being ‘comforted’, from which I draw the inference having heard from the other witnesses that she was distressed.
The Respondent’s submission is that it was a ‘serious attack’. In contrast, in his original representations as I have noted them in paragraph [18], the Applicant effectively describes it as being ‘insignificant’ and ‘unlikely to interfere with her health or comfort’. Both he and his wife assert that soon after the attack the young girl was ‘soon laughing and talking about her Jack Russell dog’.
Once again, overall, I do not accept the evidence presented by the Applicant. It is entirely subjective and seeks to diminish the reality of what actually occurred. Where it is inconsistent with that of the statement by the young girl or her mother, and of Mr Hart, I prefer the latter. Mr Hart’s objective evidence of his recollection of what he saw gives credibility to the untested statement of the young girl and her mother. As to the contention presented by the Applicant that the asserted photos of the wound are not of the wound to the young girl’s thigh, I also do not accept that. The photos are consistent with the description of the wound as given by each of the Applicant and Mrs Slade albeit their respective evidence was not consistent.
Nor do I accept the evidence given by both the Applicant and Mrs Slade that soon after the attack the young girl was laughing and talking about her own dog. As I have noted it, that evidence is expressed in identical terms in each of the statements of the Applicant and his wife. It thus lacks credibility given it appears contrived. It is also inconsistent with that which is said to have been observed by Mr Hart and the girl’s mother.
As noted earlier in these reasons, the definition of ‘seriously attack’ draws from the definition of ‘bodily harm’ under the Criminal Code. It means any bodily injury which interferes with health or comfort. On the material that is before me, in particular the facts as I have identified them in paragraph [85] herein, I find as a fact that the injury sustained by the young girl was such as to have interfered with her health or comfort.
As I have noted it from the objective evidence of Mr Hart, she was crying and shaking with blood running down her leg, such giving credibility and probative value to the untested statement of the young girl that she was being comforted, and that of her mother that the girl was very upset and shaking.
I thus conclude that it was a serious attack as that term is used in s89(2) of the Animal Act. Accordingly, having considered the representations, evidence, and submissions of the Applicant, I am satisfied that the relevant ground under s89 still exists and accordingly I must make the regulated dog declaration in respect of Daisy. The Applicant has failed to persuade me otherwise.
As such, an order will be made confirming the Decision.
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