SWALLOW and CITY OF WANNEROO
[2019] WASAT 116
•22 NOVEMBER 2019
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: DOG ACT 1976 (WA)
CITATION: SWALLOW and CITY OF WANNEROO [2019] WASAT 116
MEMBER: MS C BARTON, MEMBER
HEARD: 17 OCTOBER 2019
DELIVERED : 22 NOVEMBER 2019
FILE NO/S: CC 1246 of 2019
BETWEEN: JESSE SWALLOW
Applicant
AND
CITY OF WANNEROO
Respondent
Catchwords:
Dangerous dog declaration - Attack - Injury - Repeatedly shown a tendency to attack - Turns on own facts
Legislation:
Dog Act 1976 (WA), s 3(1), s 3(1)(b), s 33E, s 33F(6)(a), s 33I
Evidence Act 1906 (WA)
State Administrative Tribunal Act 2004 (WA), s 17, s 27, s 29(1), s 29(3), s 32
Result:
Respondent's decision affirmed
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| Respondent | : | Mr J Winton |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | Francis Burt Chambers |
Case(s) referred to in decision(s):
Ioppolo and City of Wanneroo [2013] WASAT 172
Sammut v AVM Holdings Pty Ltd [No 2] [2012] WASC 27
REASONS FOR DECISION OF THE TRIBUNAL:
The application
Mr Jesse Swallow (applicant) is the owner of two American Staffordshire Terriers, 'Winnie' (female) and 'Buddy' (male). Both dogs are registered with the City of Wanneroo (City) at the address at which Mr Swallow resides, 1 Sheldwich Loop, Butler. 'Winnie' (Registration No 9907900) is gold in colour, and 'Buddy' (Registration No 9901795) is described as blue/white in colour.
The City's delegate, Mr Anthony McTaggart, declared both dogs dangerous by notices dated 14 June 2019 (dangerous dog declarations).
The owner lodged an appeal with the City against the making of the dangerous dog declarations. On 8 August 2019, the City dismissed the owner's appeal for the following reasons (declaration decision):
•both dogs have a proven history in regard to attacks on other dogs;
•the recent attack although mitigated by 'Murphy' being off lead did occur in contravention of Section 33(D) of the Dog Act 1976;
•the declarations have been made with due cause as a result of a number of attacks involving both dogs and
•under the dangerous dog provisions in the Act the City has a responsibility to ensure dogs involved in attacks are kept under effective control.
The dangerous dog declarations are subject to a number of conditions including that the dogs are to be confined to the owner's property and that the yard in which the dogs are to be kept must be enclosed to prevent the dogs escaping. Also, the dogs must be kept on a leash or chain by a person physically able to control the dog when in any public place. They must also wear a dog collar at all times with information endorsed on it identifying the dogs as dangerous dogs.
On 15 August 2019, the owner applied to the Tribunal under s 33F(6)(a) of the Dog Act 1976 (WA) (Act) seeking a review of the declaration decision.
Issues for determination
Are the owner's dogs, 'Winnie' and 'Buddy', dangerous by reason of:
1)having caused injury or damage by an attack on, or chasing, a person, animal or vehicle?; or
2)repeatedly showing a tendency to:
(a)attack or chase, a person, animal or vehicle even though no injury has been caused by that behavior?; or
(b)threaten to attack?
The Tribunal's review jurisdiction
Section 33F(6)(a) and s 33I of the Act confer jurisdiction on the Tribunal to review the declaration decision. By reason of s 17 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the application to review the declaration decision falls within the Tribunal's review jurisdiction.
In exercising the Tribunal's review jurisdiction, the Tribunal is to review the declaration decision by way of a hearing de novo for the purposes of producing the correct and preferable decision on the basis of the information and evidence before the Tribunal at the time of the review (s 27 of the SAT Act). In conducting the review, the Tribunal is not limited to the material before the respondent, as the original decision‑maker, but may consider new material (s 27 of the SAT Act).
All of the functions and discretions conferred by the enabling Act on the original decision‑maker are conferred on the Tribunal (s 29(1) of the SAT Act). Section 29(3) of the SAT Act confers specific power on the Tribunal to, amongst other orders, set aside the original decision, affirm that decision or vary that decision.
The Tribunal is not bound to apply the Evidence Act 1906 (WA), the rules of evidence, or any practices and procedures of courts of record (s 32(2)(a) of the SAT Act), but is bound by the rules of natural justice (s 32(1) of the SAT Act) and 'is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities' (s 32(2)(b) of the SAT Act). The more flexible procedure provided for by s 32 of the SAT Act, however, does require that Tribunal decisions are made on the basis of evidence that has probative force: see Sammut v AVM Holdings Pty Ltd [No 2][2012] WASC 27 at [40].
Conduct of proceedings
At a directions hearing on 2 September 2019, the Tribunal made orders to facilitate the filing of statements of issues, facts and contentions, relevant documents, and witness statements.
The respondent provided to the Tribunal an indexed s 24 bundle of documents dated 16 September 2019 (Exhibit 1) which includes:
1)a statement of issues, facts and contentions dated 16 September 2019;
2)statements of the following witnesses who were called to give evidence before the Tribunal:
(a)Ms Jasmine Oliver (owner of the Labrador 'Murphy');
(b)Mr Vincent Ciappa (witness to dog attack);
(c)Ranger David Murie; and
(d)Ranger Benjamin Tonkin.
3)copies of the dangerous dog declarations, customer request management enquiry reports (CRM records), photographs taken outside Ms Oliver's property by Mr Ciappa, photographs of 'Murphy', and the declaration decision; and
The respondent's counsel tendered in evidence a certificate of authorisation appointing Mr Anthony McTaggart as an authorised person (Exhibit 2).
Both the owner and the owner's partner, Ms Sarah Forde, gave evidence in support of the application. The owner's statement of issues, facts and contentions (with annexures) dated 26 September 2019, and filed with the Tribunal on 7 October 2019, was also tendered in evidence (Exhibit 3).
The statutory framework
There was no dispute that the relevant provisions of the Act have application to the circumstances of this proceeding. It was also not in issue that the applicant is the registered owner of Winnie and Buddy, and had the right to object to the dangerous dog declarations and apply for review of the declaration decision.
Section s 33E of the Act provides, relevantly:
(1)A local government, or on behalf of the local government an authorised person or person specifically authorised by the local government for the purposes of this section either generally or in a particular case, may, by a notice in writing given in accordance with section 33F, declare an individual dog to be a dangerous dog (declared) if, in the opinion of the local government or that person ‑
(a)the dog has caused injury or damage by an attack on, or chasing, a person, animal or vehicle; or
(b)the dog has, repeatedly, shown a tendency ‑
(i)to attack, or chase, a person, animal or vehicle even though no injury has been caused by that behaviour; or
(ii)to threaten to attack;
or
(c)the behaviour of the dog meets other criteria prescribed for the purpose of this section.
(2)For the purpose of subsection (1)(b), a dog to which section 30(3) applies shall not be taken to show a tendency to attack, or chase, in carrying out the activities referred to in section 30(3) in relation to a dog of that kind.
(3)The owner of a dog declared to be a dangerous dog (declared) or detained under this Division, shall have the rights referred to in this Division to object and apply for a review.
The exemption referred to in s 33E(2) of the Act has no application in this proceeding.
The term 'attack' in s 3(1) of the Act (unless the context otherwise requires):
[I]n relation to the behaviour of a dog, does not include behaviour which was an immediate response to, and was induced by, provocation, but includes ‑
(a)aggressively rushing at or harassing any person or animal; or
(b)biting, or otherwise causing physical injury to, a person or an animal; or
(c)tearing clothing on, or otherwise causing damage to the property of, the person attacked; or
(d)attempting to attack, or behaving in such a manner toward a person as would cause a reasonable person to fear physical injury,
unless the owner establishes that the behaviour was justified by a reasonable cause[.]
The term 'provocation' in s 3(1)(b) of the Act in relation to the behaviour of dogs, includes, on the part of another animal:
(i)an attack on the dog made by any other animal; or
(ii)the entry of that other animal on any land or premises of which the owner of the dog is an occupier or where the dog is ordinarily kept; or
(iii)any threat to, or attack upon, another person or animal towards whom the dog could reasonably be expected to be protective,
but does not include an intentional provocation of the dog by a person liable for the control of the dog.
The City's evidence
The Tribunal finds that the events that led the two dogs being declared dangerous dogs by the City on 14 June 2019 may be summarised as follows.
The incident with 'Murphy'
On 2 June 2019, the City received a complaint of a dog attack outside the residence of Ms Oliver at 5 Badley Loop, Butler. Buddy and Winnie were being walked on leads along the footpath outside Ms Oliver's property by Ms Forde.
Ms Oliver's dog, 'Murphy', is a 10‑year‑old Labrador. Ms Oliver was at the front of her property with the garage door open. Murphy came out of the garage, without a lead, and approached Buddy and Winnie to sniff them. Buddy slipped off his lead and while Ms Forde's attention was on Buddy, Winnie bit Murphy and latched onto him. While both ladies were trying to separate Winnie from Murphy, Buddy also joined in to bite Murphy.
A number of passers‑by stopped to help to pry the dogs apart and Murphy was subsequently taken to the veterinarian for treatment. Murphy's clinical records were produced to the Tribunal as part of the City's s 24 bundle. The records dated 2 June 2019 from EVH Emergency Vet Hospital state that Murphy's wounds required sutures. His injuries are described as follows:
Skin (including turgor): right ear large number of small lacerations 1 cm or less. Only one id [sic] full thickness through the ear
puncture wound on both eyebrows, superficial grazes across top of skull.
6 puncture wounds and several grazes across ventral neck ‑ mostly on right side.
No wounds found on body or legs.
City Ranger Murie and Ranger Tonkin attended 5 Badley Loop after the incident on 2 June 2019. The Rangers observed blood on the footpath and road outside the property and took photographs of Murphy's injuries. The Rangers also attended the owner's property and observed a puncture wound on Winnie's mouth.
The incident was witnessed by Mr Chiappa, who lives three houses away from the Oliver residence on Badley Loop. Mr Chiappa took photographs of the scene outside Ms Oliver's house after the dogs had been separated.
Previous incidents
The City received a complaint on 3 February 2017 in relation to a dog attack at Brigantine Dog Park, Jindalee. The CRM states that an American Staffy, owned by the applicant, attacked a Golden Retriever causing injuries to its ear. The City's records identify the dog as 'Buddy'.
On 8 June 2017, the City received a complaint in relation to an incident that occurred on Cockelshell Brace, Jindalee. The complainant was walking her Cocker Spaniel, 'Baily', on a lead, with her two grandchildren. Two dogs, owned by the applicant, ran up to her and attacked Baily by pinning it down. The two dogs had escaped from the applicant's property. Baily suffered a puncture wound to the right shoulder. The City's records identify the dog involved in the attack as 'Winnie' and that she was 'involved in a moderate dog attack'.
The applicant's evidence
The applicant's evidence in support of his application may be summarised as follows:
The incident with 'Murphy'
Ms Forde was walking both Winnie and Buddy along the footpath on Badley Loop, Butler. She walked past a house with the garage door open and had almost passed the property when a dog, which the Tribunal finds was 'Murphy', approached the two dogs, trying to sniff them. Ms Forde pulled the two dogs away to continue walking. However, Murphy kept trying to sniff and harass the dogs, including Winnie who was 'on heat'.
Ms Oliver came out of the garage screaming and waving her hands. Ms Forde repeatedly told Ms Oliver to get her dog but she did nothing. The scuffle between the three dogs occurred and Ms Oliver continued to scream and did not help pull the dogs apart. A male passer‑by who was also walking his dog, stopped to help. He and Ms Forde were the only people who helped to separate the dogs.
During the incident, Buddy came off his lead but it was put back on as soon as the two dogs were separated.
Previous incidents
Buddy had been to the Brigantine Dog Park since he was a puppy and never had an issue with any of the dogs. The incident in question resulted in an infringement for Buddy attacking another dog. It did not involve Winnie. It was described in the City's records as 'a minor dog attack, dog v dog'. Ms Forde stated in evidence that Buddy's face was also injured in the incident. The incident at Brigantine Dog Park was over two years prior to the incident involving Murphy.
In relation to the incident on Cockelshell Brace, the applicant stated that both of the dogs had got out of his property. When giving evidence, Ms Forde stated that she had heard a noise at the front of the house, saw the gate to the property was open and that Winnie was across the road. Buddy was further down the road. Ms Forde went to the assistance of the complainant and separated the dogs. Winnie was the only dog to cause injury to Baily. Buddy was not involved in the incident.
The Tribunal's consideration
There was no dispute between the parties that the applicant is the owner of a declared dog for the purposes of s 33E(3) of the Act and has the right to apply for review of the dangerous dog declarations in respect of Winnie and Buddy.
The witness evidence
Ms Oliver was an emotional witness and there were minor discrepancies in her account of the incident involving Murphy. The Tribunal accepts the City's contention that Ms Oliver's evidence must be viewed in the context of what was a traumatic experience for her as the owner of Murphy.
Ms Forde was generally a credible witness who gave her evidence in a forthright manner. Under cross‑examination, however, Ms Forde was adamant that her recollection of the events, including minor events, involving the incident with Murphy was 100% accurate. This diminished her credibility and reduced the weight that could be given by the Tribunal to her evidence.
The Tribunal finds that where there are any factual inconsistencies as to the recounting of events involving the incident with Murphy, the Tribunal prefers the evidence of Mr Chiappa to that of Ms Forde and Ms Oliver. Although he gave his evidence by telephone, the Tribunal found Mr Chiappa to be an impressive witness who responded to questioning in a calm and methodical manner. He credibly stated in evidence that he did not involve himself in the incident or go to the assistance of Ms Oliver because his initial concern was for the welfare of his children.
Mr Chiappa stated that on 2 June 2019 he noticed a lady with two large dogs walking past his driveway south on Badley Loop, Butler. As the lady and her dogs walked past 5 Badley Loop, Murphy walked slowly down the driveway onto the footpath towards the dogs to sniff them. Mr Chiappa noticed the two dogs became agitated from Murphy wandering around them. Mr Chiappa knew Murphy from passing by Ms Oliver's house and described him as a calm, placid dog. Ms Oliver came down the driveway towards Murphy and Murphy then wandered back out again to the edge of the driveway towards the two dogs. Mr Chiappa then observed the beige dog, which the Tribunal finds was Winnie, leap onto Murphy and saw that the dog's jaws were around Murphy's neck. The other dog, which the Tribunal finds was Buddy, slipped its collar and was also growling and attacking Murphy. The lady lost control of the two dogs. Mr Chiappa stated that he could hear Ms Oliver screaming and saw her trying to get the three dogs apart when passers‑by stopped to assist. He said that there were at least two men trying to pull the dogs apart. The incident lasted around five to 10 minutes.
The Tribunal finds that an attack on an animal did occur for the purposes of s 33E(1)(a) of the Act when Winnie, and then Buddy, latched onto Murphy's neck after Murphy approached the two dogs. The Tribunal further finds that the attack caused serious injury to Murphy in the nature of puncture wounds and grazes across the top of his head and across the right side of his neck as described in the clinical notes from EVH Emergency Vet Hospital. Under cross‑examination, Ms Forde conceded that Winnie had latched onto Murphy which resulted in injury to him.
The Tribunal finds that the attack on Murphy was unprovoked. Murphy's behaviour in approaching the dogs to sniff them cannot be considered, in the circumstances of this case, provocative behaviour.
The applicant has not established that the behaviour of Winnie and Buddy in latching onto Murphy was justified by a reasonable cause. The incident was described by Mr Chiappa as a sudden attack and that it occurred in a frenzy. The injuries sustained by Murphy were extensive and required surgical intervention. The incident also caused considerable distress to Ms Oliver. The public should be warned that Winnie and Buddy could behave in this manner towards another dog, whether the dog is tethered or off lead.
Accordingly, the Tribunal finds that the dangerous dog declarations issued to the owner under s 33E of the Act are necessary having regard to the purpose of that provision as enunciated in Ioppolo and City of Wanneroo [2013] WASAT 172 at [54]. In that decision, the Tribunal made the following observations about s 33E of the Act:
The purpose of s 33E of the Act is public safety. The public should feel safe and be safe from dogs that are aggressive. The restrictions and requirements that flow from a declaration serve to warn the public about dogs that have been aggressive. The purpose of s 33E of the Act is not to punish the dog or the owner of the dog. It is not penal in nature. The fact that the attacks are a 'first offence' is not, of itself, relevant.
Ms Forde and Ms Oliver differed on the recounting of events in relation to the incident with Murphy. However, both witnesses gave evidence that Winnie and Buddy latched onto Murphy and that it was necessary for a by‑stander to assist in prying the two dogs away from Murphy. Ms Oliver stated in evidence that a stick was used to separate the dogs, while Ms Forde stated that no implement was used. The Tribunal finds that the manner in which the separation of the dogs occurred is not relevant to the Tribunal's determination of whether or not an attack took place for the purposes of s 33E of the Act and, accordingly, places no weight on that evidence.
Repeated tendency to attack
The City contends that both limbs of s 33E(1) of the Act are enlivened, that is, in addition to Winnie and Buddy causing injury to Murphy for the purposes of s 33E(1)(a) of the Act, the two dogs have also repeatedly shown a tendency to attack which triggers s 33E(1)(b) of the Act.
In relation to the incident at the Brigantine Dog Park in February 2017, the applicant was issued with an infringement for an attack causing physical injury to a dog. In cross‑examination, the applicant acknowledged that Buddy caused injury to the Golden Retriever but believed it was retaliatory behaviour. However, the applicant stated in evidence that he did not make a formal complaint to the City about the incident. Also, the applicant made an admission in his appeal letter to the City that the Golden Retriever was injured in the altercation. Accordingly, the Tribunal finds that Buddy did attack a dog at the Brigantine Dog Park as described in the City's CRM records, and Buddy's behaviour constitutes an attack causing injury to an animal for the purposes of s 33E(1)(a) of the Act.
The applicant contends that prior to the incident with Murphy, Buddy had only been involved in the incident at the Brigantine Dog Park and, therefore, it could not be said that Buddy had a repeated tendency to attack for the purposes of s 33E(1)(b) of the Act.
Similarly, in relation to the incident when Winnie attacked Baily in June 2017 on Cockelshell Brace, the applicant contends that this was an isolated occurrence until the incident with Murphy and, therefore, Winnie does not have a repeated tendency to attack for the purposes of s 33E(1)(b) of the Act. The applicant and Ms Forde conceded, when cross‑examined, that Winnie had injured Baily. In his appeal letter to the City, the applicant also admitted that there was a single puncture mark on Baily arising from the incident. Accordingly, the Tribunal finds that Winnie did attack Baily in the manner described in the City's CRM records and that the incident involving Winnie was an attack causing injury to an animal for the purposes of s 33E(1)(a) of the Act. The Tribunal further finds, based on the evidence of the applicant and Ms Forde, that Buddy was not involved in the attack on Baily.
The applicant contends that there was a gap of at least two years between the relevant incidents and that Buddy had been incident free prior to the first incident at the Brigantine Dog Park. Section 33E(1)(b) of the Act does not provide a time‑frame in which the repetition of a dog's behaviour must occur in order to trigger that provision. On this basis, it is open to the Tribunal to find that a dog has repeatedly shown a tendency to attack if the relevant behaviour is demonstrated on more than one occasion notwithstanding that the incidents in question occurred a substantial length of time apart. In this case, the period of two years between the relevant incidents is not considered by the Tribunal to be inconsequential.
Because the Tribunal has found that both Winnie and Buddy attacked Murphy and that each dog has separately been involved in a previous attack on another dog, the Tribunal finds that Winnie and Buddy have both shown a repeated tendency to attack which triggers the operation of s 33E(1)(b) of the Act.
Conclusion
The Tribunal finds that as a result of the incident with Murphy, both Winnie and Buddy caused injury by an attack on an animal for the purposes of s 33E(1)(a) of the Act. The Tribunal further finds that both Winnie and Buddy have shown a repeated tendency to attack an animal for the purposes of s 33E(1)(b) of the Act because of the incident at the Brigantine Dog Park (involving Buddy) and the incident with Bailey (involving Winnie), and the most recent incident involving both dogs attacking Murphy.
In light of the incidents involving Winnie and Buddy, the Tribunal finds that the behaviour of the dogs triggers the operation of s 33E of the Act. Having regard to the evidence of that behaviour, the Tribunal concludes that the City's decision to declare both Winnie and Buddy dangerous dogs under s 33E of the Act was the correct and preferable decision, and the Tribunal affirms the City's decision of 8 August 2019 to dismiss the applicant's objection to the dangerous dog declarations.
Orders
Upon review, the Tribunal makes the following orders:
1.The respondent's decision of 8 August 2019 is affirmed.
2.'Winnie' (Registration No 9907900) remains a dangerous dog (declared) and must be kept by the applicant in accordance with the requirements of keeping a dangerous dog under the Dog Act 1976 (WA) as set out in the City of Wanneroo's declaration notice of 14 June 2019.
3.'Buddy' (Registration No 9901795) remains a dangerous dog (declared) and must be kept by the applicant in accordance with the requirements of keeping a dangerous dog under the Dog Act 1976 (WA) as set out in the City of Wanneroo's declaration notice of 14 June 2019.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS C BARTON, MEMBER
22 NOVEMBER 2019
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