STEVENS and CITY OF WANNEROO
[2015] WASAT 55
•1 MAY 2015
STEVENS and CITY OF WANNEROO [2015] WASAT 55
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2015] WASAT 55 | |
| 20/05/2015 | |||
| DOG ACT 1976 (WA) | |||
| Case No: | CC:1775/2014 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR P McNAB (SENIOR MEMBER) | 1/05/15 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Application for review dismissed Decision under review affirmed | ||
| B | |||
| PDF Version |
| Parties: | GEMMA STEVENS CITY OF WANNEROO |
Catchwords: | Animals Regulation of animal welfare Companion animals Dogs Ownership of dog Duties of local governments Dog Act 1976 (WA) Extent of jurisdiction of Tribunal to determine ownership of dog Register of dogs Dog seized and then released by local government Original owner and latter owner each claiming ownership Dog originally registered to latter owner for 2012/2013 Dog becoming unregistered and impounded in 2014 while housed with latter owner's agent Original owner contacted by local government Dog then registered to original owner Dog released by local government to original owner 'New' owner could register dog and seek change of record of ownership Dog had microchip record Microchip planted in 2010 before compulsory microchip regime Microchip recorded details of original owner Statutory presumption of ownership where microchip record found Tribunal holding that older microchip record relevant to determining ownership Agent of applicant arriving too late to collect dog Information as to dog's history supplied to local government by original owner Tribunal holding that jurisdiction limited to reviewing decisions of ownership as recorded in a Register of Dogs Tribunal satisfied that correct and preferable decision was to register dog to original owner Tribunal satisfied that correct and preferable decision was to release dog to original owner Whether Tribunal could or would have, in any event, ordered return of dog to latter owner Words and phrases: 'new owner' |
Legislation: | Dog Act 1976 (WA), s 3, s 3(2), s 3(3), s 16A, s 16A(2), s 16A(3), s 21, s 28(1), Pt 3 Div 2 |
Case References: | Nil |
Summary | The applicant, Ms Stevens, sought a review of decisions of the City of Wanneroo relating to the release to a third party of her impounded dog. This party claimed to be an original owner of the dog, and a microchip record implanted in the dog in 2010 supported her claim. The third party gave the City of Wanneroo additional information to bolster her claim to ownership.,The dog had passed through various owners or carers and Ms Stevens had registered ownership of the dog with the City of Wanneroo for the period 20122013. However, this registration had expired by the time that the dog was seized and impounded by the City of Wanneroo in June 2014. Ms Stevens' agent (who was by then caring for the dog and who had let the registration lapse) arrived too late to collect the dog from the City of Wanneroo's pound. Instead, the third party, who had been contacted by the City of Wanneroo by reason of the details on the microchip record, had registered and collected the dog.,The Tribunal held that it did not have a general jurisdiction to determine the ownership of dogs but could review decisions as to ownership 'as recorded in' a Register of Dogs. The Tribunal held that a microchip record and the statutory presumption of ownership that that status attracted were relevant to such ownership decisions, notwithstanding that the microchip had been implanted before the system of compulsory microchipping had commenced.,Under the Dog Act 1976 (WA), a 'new owner' could effect a change in the record of ownership. The Tribunal held that the Dog Act 1976 (WA) must be read so as to include a claim to ownership by a previous owner of a dog, even if some other person has also previously registered the animal as being owned by them.,The Tribunal decided that the correct and preferable decisions in June 2014, in the circumstances of what was known to the City of Wanneroo at that time, were to permit the registration of the dog to the third party and its subsequent release to that party.,By August 2014, the dog had left the jurisdiction of the City of Wanneroo.,The Tribunal also held that it was doubtful whether (assuming that the Tribunal had the power to do so) it would have, in the circumstances of the case (including the effluxion of time), exercised any discretion to disturb the status quo, specially where a dog was reunited with one of its original owners who had taken the time to record their details in a microchip record.,Although the review was dismissed, the Tribunal noted that the outcome may well have been different had the dog been registered to Ms Stevens or her agent. The City of Wanneroo had properly conceded that this was the case. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : DOG ACT 1976 (WA) CITATION : STEVENS and CITY OF WANNEROO [2015] WASAT 55 MEMBER : MR P McNAB (SENIOR MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 1 MAY 2015 PUBLISHED : 20 MAY 2015 FILE NO/S : CC 1775 of 2014 BETWEEN : GEMMA STEVENS
- Applicant
AND
CITY OF WANNEROO
Respondent
Catchwords:
Animals Regulation of animal welfare Companion animals Dogs Ownership of dog Duties of local governments Dog Act 1976 (WA) Extent of jurisdiction of Tribunal to determine ownership of dog Register of dogs Dog seized and then released by local government Original owner and latter owner each claiming ownership Dog originally registered to latter owner for 2012/2013 Dog becoming unregistered and impounded in 2014 while housed with latter owner's agent Original owner contacted by local government Dog then registered to original owner Dog released by local government to original owner 'New' owner could register dog and seek change of record of ownership Dog had microchip record Microchip planted in 2010 before compulsory microchip regime Microchip recorded details of original owner Statutory presumption of ownership where microchip record found Tribunal holding that older microchip record relevant to determining ownership Agent of applicant arriving too late to collect dog Information as to dog's history supplied to local government by original owner Tribunal holding that jurisdiction limited to reviewing decisions of ownership as recorded in a Register of Dogs Tribunal satisfied that correct and preferable decision was to register dog to original owner Tribunal satisfied that correct and preferable decision was to release dog to original owner Whether Tribunal could or would have, in any event, ordered return of dog to latter owner Words and phrases: 'new owner'
Legislation:
Dog Act 1976 (WA), s 3, s 3(2), s 3(3), s 16A, s 16A(2), s 16A(3), s 21, s 28(1), Pt 3 Div 2
Result:
Application for review dismissed
Decision under review affirmed
Summary of Tribunal's decision:
The applicant, Ms Stevens, sought a review of decisions of the City of Wanneroo relating to the release to a third party of her impounded dog. This party claimed to be an original owner of the dog, and a microchip record implanted in the dog in 2010 supported her claim. The third party gave the City of Wanneroo additional information to bolster her claim to ownership.
The dog had passed through various owners or carers and Ms Stevens had registered ownership of the dog with the City of Wanneroo for the period 20122013. However, this registration had expired by the time that the dog was seized and impounded by the City of Wanneroo in June 2014. Ms Stevens' agent (who was by then caring for the dog and who had let the registration lapse) arrived too late to collect the dog from the City of Wanneroo's pound. Instead, the third party, who had been contacted by the City of Wanneroo by reason of the details on the microchip record, had registered and collected the dog.
The Tribunal held that it did not have a general jurisdiction to determine the ownership of dogs but could review decisions as to ownership 'as recorded in' a Register of Dogs. The Tribunal held that a microchip record and the statutory presumption of ownership that that status attracted were relevant to such ownership decisions, notwithstanding that the microchip had been implanted before the system of compulsory microchipping had commenced.
Under the Dog Act 1976 (WA), a 'new owner' could effect a change in the record of ownership. The Tribunal held that the Dog Act 1976 (WA) must be read so as to include a claim to ownership by a previous owner of a dog, even if some other person has also previously registered the animal as being owned by them.
The Tribunal decided that the correct and preferable decisions in June 2014, in the circumstances of what was known to the City of Wanneroo at that time, were to permit the registration of the dog to the third party and its subsequent release to that party.
By August 2014, the dog had left the jurisdiction of the City of Wanneroo.
The Tribunal also held that it was doubtful whether (assuming that the Tribunal had the power to do so) it would have, in the circumstances of the case (including the effluxion of time), exercised any discretion to disturb the status quo, specially where a dog was reunited with one of its original owners who had taken the time to record their details in a microchip record.
Although the review was dismissed, the Tribunal noted that the outcome may well have been different had the dog been registered to Ms Stevens or her agent. The City of Wanneroo had properly conceded that this was the case.
Category: B
Representation:
Counsel:
Applicant : In person
Respondent : Mr M Yildiz
Solicitors:
Applicant : N/A
Respondent : City of Wanneroo
Case(s) referred to in decision(s):
Introduction
1 In November 2014, the applicant, Ms Gemma Stevens, sought review of decisions of the City of Wanneroo (City or respondent) in relation to the release by the City of her dog from the City's dog pound.
2 Ms Stevens' dog was discharged from the City's pound to another person (third party) who claimed to be the original owner of the dog. A microchip record implanted in the dog supported the third party's assertions as to ownership, although at the time of the dog's impoundment, the dog was being looked after by friends of the applicant. The release to the third party took place on 13 June 2014.
3 The dog has been referred to by name as 'Goldie' or 'Goldy', and also by the name of 'George'. (I will refer to the dog as 'Goldy'.) Goldy is a white or gold coloured male of the breed type cavoodle or spoodle.
4 By an order of the Tribunal made by Member Jordan sitting in directions, the matter was to be determined by the Tribunal on the documents.
5 The Tribunal has decided that the correct and preferable decision was to allow the third party to register Goldy in the third party's name and to permit the dog to be released into the third party's custody.
6 The Tribunal delivered oral reasons in the matter. What follows has been formally revised and edited from the transcript of reasons delivered by the Tribunal.
7 Ms Stevens sought to delay the delivery of oral reasons. The Tribunal ruled that there was insufficient material or justification put forward by the applicant to delay the delivery of reasons to a date simply more suitable or convenient to the applicant.
Sources of facts
8 The facts underlying the review, which are not in dispute, are taken from the following sources:
1) Certain allegations contained in Ms Stevens' application for a review, received by the Tribunal on 11 November 2014 (under the heading 'Grounds of Review').
2) The documentation received by the applicant under a Freedom of Information application directed to the Citynamely, two redacted entries from the respondent's Register of Dogs, covering the years 2012, 2013 and 2014.
3) An undated statement of the applicant (made, it appears, in or about June 2014) and filed with her application, detailing the relevant events of 13 June 2014.
4) An email from the City to the applicant dated 17 July 2014, attaching a previous email to Mr Palmer, an agent and friend of the applicant, dated 19 June 2014. (Mr Palmer was caring for Goldy at the date of impounding and release: see further below.)
5) The respondent's written submissions' filed with the Tribunal dated 24 December 2014.
6) The applicant's brief written submissions in reply of 4 February 2014.
7) The record of notes made by Member Jordan of this Tribunal, arising out of directions sitting in the Tribunal on 10 December 2014.
Facts
9 Arising out of the documents listed above, the following narrative of events may be provided, commencing with the details of the first owner of Goldy.
10 Mrs Jeffrey, an elderly lady, who is now believed to be deceased, owned Goldy pre2010, and gave Goldy to the third party, a person known in these proceedings only as 'Donna'. Donna had Goldy microchipped in 2010, although this procedure was not compulsory at that time. That trace recorded Donna as the owner of Goldy.
11 Donna had personal reasons for giving the dog back to Mrs Jeffrey who, in 2010, then registered Goldy in her name in the Town of Claremont. In 2011, Mrs Jeffrey, becoming frail, gave Goldy to Ms Stevens. Ms Stevens registered the dog with the City for the period 22 November 2012 to 31 October 2013, recording herself as the owner of Goldy. This followed the dog's impounding by the City in 2012. At that point, Donna (the recorded owner, according to the microchip) could not be contacted.
12 In September 2012, Ms Stevens had a second child and, as a consequence, in about November 2012 gave Goldy to friends of the applicant, Mr and Mrs Palmer to look after. They renamed the dog 'George'.
13 On 31 October 2013, the previous registration, showing Ms Stevens as the owner of Goldy lapsed. Mr and Mrs Palmer did not realise, apparently, that the reregistering of Goldy was required by law.
14 On 13 June 2014, Goldy, who was by then unregistered, went missing. Mr Palmer contacted the City's pound on that day, having seen a photograph of Goldy on the City's website. He was told that he could collect Goldy from the City's pound after 4 pm.
15 Mr Palmer claims that he explained that the microchip record was no longer correct and that he had evidence of the correct ownership. He emailed that information to the City. It is thus clear, at that point, that the microchip record had been interrogated by the City, as Mr Palmer's communication was responsive in nature.
16 Mr Palmer arrived at the pound shortly before 4 pm and was told by the City's officers that the dog had been collected by the person named on the microchip; namely, Donna.
17 Thus, Donna had been contacted by the City and she had said that she was, in fact, the owner and would collect the dog. She arrived and registered Goldy as belonging to her so that, amongst other reasons, she could take him from the pound. Donna registered the dog in her name for the period 30 June to 31 October 2014.
18 Goldy 'departed' the respondent's Register of Dogs on 19 August 2014. (Presumably, this is a reference to a formal request, by or on behalf of the owner of the dog, for the dog to be taken off the register.)
19 It is understood that Goldy is now registered with Donna in another local government jurisdiction.
The application for review
20 The application for review is brought pursuant to s 16A of the Dog Act 1976 (WA) (Dog Act). Section 16A is headed 'Change of ownership' and s 16A(3) of the Dog Act provides as follows:
A person aggrieved by a decision of the local government relating to the ownership of a dog as recorded in a register may apply to the State Administrative Tribunal for a review of the decision.
21 The applicant sought the following orders from the Tribunal:
i. To revoke the decision made by [the] City of Wanneroo to hand [Goldy] that was last registered to me at the time [he] was reported missing, to another person;
ii. To revoke the decision made by [the] City of Wanneroo to allow the registration of [Goldy] by another person during the time the dog was reported missing;
iii. [The] City of Wanneroo to undertake the necessary steps to recover and return [Goldy] to me[;]
iv. [The] City of Wanneroo to bear all expenses [incurred] by me for relevant applications in relation to the recovery and return of my dog. This includes, but [is] not limited to, [this] application to the State [Administrative] Tribunal and [the] application for information and documents made under [the] Freedom of Information Act.
22 The respondent's case in reply is that the Tribunal has no jurisdiction to do what the applicant seeks. The City's submissions, at least so far as claims (iii) and (iv) are concerned, are, in the circumstances of this case, undoubtedly correct and should be accepted. As to the revocation decisions sought, the Tribunal commences with the following general observations.
23 The Tribunal is a creature of statute and does not have a general jurisdiction to determine private law matters relating to the ownership of dogs. Jurisdiction is confined to reviewing only ownership 'as recorded in a register'. And, such decisions will be mostly controlled by the statutory duties and obligations found in the framework of the Dog Act itself.
24 Likewise, the Tribunal's powers to make ancillary orders is founded upon the scope of the reviewable decision and the outcome of the review.
Respondent's case
25 In its written submissions, the City contends that no reviewable decision about the change of ownership has been made. The City submits as follows:
a. when the dog was impounded on or around 13 June 2014, it was not registered for the purposes of the Dog Act;
b. when the dog had its microchip scanned, there was no evidence of the [a]pplicant or any another person ever registering the dog, and therefore, the [r]espondent determined ownership pursuant to [s 3(3), see below] of the Dog Act, by relying on the information prescribed on the microchip;
c. in relying on [s 3(3)] of the Dog Act, the [r]espondent made no decision in regards to a change of ownership as it returned [the] dog to its owner as prescribed by the Dog Act;
d. the dog was required to be registered pursuant to [s] 14 of the Dog Act, and this occurred when the owner pursuant to [s 3(3)] of the Dog Act collected the dog.
- Thus, the City contends that 'there was no decision made to change the ownership of the dog, and therefore, [s 16A(3) of the Dog Act] is not enlivened'.
26 Sections 3(2) and 3(3) of the Dog Act provides as follows:
(2) A person who is shown in the register maintained by a local government under this Act as being the last person recorded by the local government as the registered owner of a dog is deemed to be the owner of that dog, whether or not the registration in his name continues in force, unless he proves that he is not the owner of the dog.
(3) In the case of a dog that is not registered, but is microchipped, a person whose name is recorded as the owner of the dog in a microchip database is to be taken, in the absence of evidence to the contrary, to be a person by whom the dog is ordinarily kept.
27 Importantly, in the same section (s 3) of the Dog Act, 'owner' is defined in the following terms:
owner in relation to a dog means
(a) the person by whom the dog is ordinarily kept; or
(b) a person who is deemed by [s 3(2)] to be the owner of the dog[.]
29 Under s 3 of the Dog Act, a dog management facility is defined to include 'a facility' operated by a local government that is, or may be, used for keeping dogs'. Under s 28(1) of the Dog Act, there is an obligation imposed upon 'the owner' of a dog management facility, as follows:
If the identity of the owner of a dog entering a dog management facility is unknown to the operator of the facility then, as soon as practicable after the dog enters the facility, the operator must make every reasonable attempt to identify the owner of the dog including, where possible, by scanning the dog[.]
30 'Scan' is defined in s 3 of the Dog Act to mean 'to scan in a manner that enables a microchip to be detected and the information recorded to be electronically retrieved'. Plainly, a microchip scan is relevant in determining the ownership of a dog in the framework of the legislation just set out; use of the scan's record is what occurred in this case.
31 In an email dated 19 June 2014 to Mr Palmer, who was effectively the agent of Ms Stevens, the City alleged as follows (original emphasis):
…
This [case] is both an unusual and unfortunate situation due to the microchip details and the registration status of [Goldy].
As you are aware, at the time [Goldy] was impounded by [the City's] Rangers he was not registered and the only means by which they were able to identify him was via his microchip. Under [s] 28(1) of the Dog Act 1976, the City has an obligation to identify a dog's owner[.]
Furthermore, under [s] 3(3) of the Dog Act 1976, 'in the case of a dog that is not registered, but is microchipped, a person whose name is recorded as the owner of a dog in a microchip database is to be taken, in the absence of evidence to the contrary, to be a person by whom the dog is ordinarily kept'[.]
In this instance, and following the release of [Goldy] to the person who was listed as the owner on the microchip database, although you subsequently provided evidence to show you had cared for [Goldy] over a period of time … [this is] not proof that you are the lawful owner. This may have been different had [Goldy] been registered in your name.
On claiming the dog as hers, [Donna,] the person who was listed as the owner on the microchip database has also registered the dog in her name.
[Officers of the City] have contacted the registered owner of [Goldy] and [Donna] has provided credible information that she had not previously relinquished ownership of him. She has also indicated [that] she is not prepared to relinquish ownership now.
… the City has acted within the constraints of the legislation and is not in a position to adjudicate in what has now become a civil matter between two parties external to the City. You may consider seeking legal advice to determine whether or not any civil action is likely to be successful[.]
32 Thus, it is a fair inference that, at all relevant points, there existed sufficient, plausible and reliable information and material before the City (aided by the presumption in s 3(3) of the Dog Act as to the effect of the microchip record) to sustain Donna's registration of Goldy on 13 June 2014. The existence of such material (as opposed to its effect) has not been relevantly challenged in these proceedings.
33 On its face, such a finding means that the requirements of s 16A(2) of the Dog Act were met as at 13 June 2014. That provision is as follows:
No change shall be made in the record of the ownership of a dog unless
…
(b) an application for registration is made by a person who alleges that he is the new owner.
34 In other words, the allegation of 'new' ownership was supported by material evidence in the context of the legal framework provided by the Dog Act. There is but one Register of Dogs in the City and only one dog in issue here; in the Tribunal's view, in the context of the Dog Act and its evident purpose of, amongst other things, recording the ownership of dogs, the word 'new' in s 16A(2) of the Dog Act must be read as including a previous owner of a dog, even if some other person has also previously registered the animal.
Conclusion
35 Accordingly, the review should be dismissed on these grounds. And, even if the Tribunal had reached a different conclusion, a real question would then have arisen as to whether the Tribunal, in the exercise of its discretion in the circumstances of the case, including the effluxion of time, would have made any order (assuming that there was power to do so) disturbing the status quo where the original 2010 owner was reunited with her dog. After all, and unlike everybody else connected with the case, the third party had at least taken the trouble of voluntarily microchipping her details for purposes which would include the potential release to her of Goldy if he were ever impounded and his identity was unknown to the authorities.
36 As the City correctly conceded, the result may well have been different if Goldy had been impounded but was registered to either the applicant or Mr and Mrs Palmer.
Orders
For these reasons the Tribunal orders:
1. The applicant's application by email dated 30 April 2015 for an adjournment of the delivery of oral reasons listed for 1 May 2015 is refused.
2. The application for review is dismissed.
3. The decisions under review are affirmed.
I certify that this and the preceding [36] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR P McNAB, SENIOR MEMBER
0
0
1