Thomas v Ipswich City Council

[2014] QCAT 681

CITATION: Thomas v Ipswich City Council [2014] QCAT 681

PARTIES:	Christine Mary Thomas (Applicant)
v
Ipswich City Council (Respondent)

APPLICATION NUMBER: GAR334-14

MATTER TYPE: General administrative review matters

HEARING DATE: 28 November 2014

HEARD AT: Brisbane

DECISION OF: Member Allen

DELIVERED ON: 17 December 2014

DELIVERED AT: Brisbane

ORDERS MADE: 1.    The decision of the Ipswich City Council is confirmed.

CATCHWORDS:

ADMINISTRATIVE REVIEW – dog destruction order – where declared dangerous dog attacked person entering yard of residence – where dog not kept in enclosure

Animal Management (Cats and Dogs) Act 2008 ss 59, 125, 127

APPEARANCES and REPRESENTATION (if any):

APPLICANT: Christine Thomas represented by Ms Julia Jasper of Couper Geysen, Solicitors

RESPONDENT: Ipswich City Council represented by Mr Anthony Dunleavy, in-house solicitor

REASONS FOR DECISION

1. Mrs Thomas is the registered owner of Bruce, a bull Arab cross, brindle, white, male who was made subject to a destruction order by the Council on 28 August 2014. Mrs Thomas sought an internal review of that decision. The review decision of 17 September 2014 confirmed the destruction order. Mrs Thomas has applied to the Tribunal to review the decision to destroy Bruce.

2. Bruce was declared a dangerous dog on 30 March 2010 following an attack on a Council officer on 4 March 2010.  There were some submissions that the dangerous dog declaration should not stand because there was an application to review the decision, which was not properly considered, and Mrs Thomas was not given an opportunity to seek a review to the Tribunal. The time for a review by the Tribunal of that decision has now passed and the Tribunal accepts the dangerous dog declaration of Bruce as valid. 

3. As a result of the dangerous dog declaration Mrs Thomas was required to do the following:-

   a)    have Bruce de-sexed;

   b)    implant him with prescribed permanent identification device;

   c)    he must be muzzled in a public place and must be under the effective control someone;

   d)    construct an enclosure which Bruce was to be kept in;

   e)    place dangerous dog signs around the enclosure or place where Bruce is usual kept; and

   f)     Bruce must not be usually kept at a place other than that stated on the permit and any change of residential address of the owner must be notified

4. The dangerous dog declaration notice issued on 30 March 2010 stated that the enclosure for the dog must be maintained at or on the address in the registration notice for the dog and must be child proof and stop the dog leaving the enclosure.

5. Council records note that signs were up on 28 May 2010 and the enclosure constructed for Bruce was considered adequate following an inspection by Council officers on 2 June 2010, though Bruce was still to be chipped and de-sexed. Photos evidence the signs and completed enclosure.

6. Following an inspection on 31 May 2011 a non-compliance notice was issued to Mrs Thomas because Bruce had not been de-sexed nor had an identification device been implanted. At that time, a copy of Schedule 1 of the Animal Management Act was provided to Mrs Thomas setting out the full requirements for the keeping of a dangerous dog.

7. A further inspection occurred on 10 July 2013, copies of photos from that inspection were made available to the Tribunal. The report indicated that Bruce did not have tags; there were issues with signs and the enclosure. Two of the photos show that the designated dog enclosure was being used as a storage area and another shows that the front stairs are chained off with a “danger guard dog” sign attached to the chain. The inspection report states ‘dog has full access to front, back veranda and backyard enclosure showed to me appeared to be tool shed under house’.

8. A compliance notice was issued on 2 September 2013 and an amended notice issued on 18 September 2013. The notice required that signs be placed near each entrance to the relevant place; Bruce must wear an identifying tag as prescribed, to have a suitable enclosure as prescribed. If the owner failed to comply, it was stated amongst other things that the dog could be seized.

9. The Tribunal notes that there was no material filed by the Council about any follow up on the compliance notice. It is also noted in the internal review decision notice that

   compliance was achieved (in relation to the 18 September 2013 notice) at your property after you made a case to the authorised officer that an enclosed area used for some outdoor storage be accepted as Bruce’s enclosure. You were provided with information and verbal warnings about the enclosure requirements, that is, that keeping Bruce on your verandah area was not an acceptable enclosure in accordance with the provisions of the Act.

10. From the photographic evidence, it is clear that Mrs Thomas’ house is a Queenslander with front stairs to the wrap around veranda, which provides access to the rear yard, which is separated by a gated fence from the front yard. Bruce’s enclosure is under the house.

11. On 21 August 2014 Mr Russell Johnson, an electricity meter reader attended at the residence to read the meter which is located in the backyard. Mr Johnson stated that he noted that Bruce was on the front verandah and that in accordance with discussions he had had with Mr Thomas it would be safe for him to enter the backyard to read the meter. Upon entering the backyard, Mr Johnson states that he was attacked and bitten by Bruce. He was able to exit the backyard, an ambulance was called, and he was taken to the Ipswich Hospital.

12. At the time of the attack, neither of Mrs Thomas or Mr Thomas was present at the residence. Mr Thomas was away overnight and Mrs Thomas had left the house to pick up her grandchildren. Those present were a Mr Bell, a house painter and the Thomases’ son who was asleep at the time.

13. Mr Bell provided a statement to the Tribunal. He stated that he did not hear the dogs or any other noise. He heard Mr Johnson saying ‘Help, Help’ and Mr Johnson told him he had been bitten. He noted Mrs Thomas returned to the residence in time to see Mr Johnson and she waited for an ambulance to arrive to take Mr Johnson to hospital.

14. Mr and Mrs Thomas took issue with the characterisation of Mr Johnson’s wound as a dog bite in their material. A veterinary specialist was requested to give an opinion but he was unable to provide any conclusive opinion. The Council filed Mr Johnson’s discharge summary from the Ipswich Hospital, which describes the wound as a dog bite and that he was in hospital from 21 August 2014 and discharged on 25 August 2014, and that the bite required surgery. The Tribunal is satisfied based on the characterisation of the wound by the Ipswich hospital that the wound is a dog bite, which confirms Mr Johnson’s statement.

15. Council was advised of the attack and officers attended at the Thomas residence to seize Bruce. Bruce had been removed from the residence and it was later that he was delivered to the Council Pound by a family member.

16. Mr Quill, a council officer, undertook an investigation of the incident and his report was tendered as evidence. The report notes the prior declaration of Bruce as a dangerous dog, the various non-compliance notices and the events surrounding the attack on 21 August 2014. In the report, Mr Quill sets out Mr Johnson’s statement that he had been told that it would be safe in the backyard if Bruce were on the verendah. He also states that Mr Thomas confirmed that he had made this statement to Mr Johnson. At the hearing, Mr Johnson was cross-examined and he confirmed his statement that he had been advised that he would be safe in the backyard if Bruce were on the front verendah. Mr Thomas in his cross-examination stated that he had told Mr Johnson that he should never enter the backyard unless he was escorted or Bruce would have him.

17. Mr Quill was also cross-examined on this issue and an audio recording was played of his interview with Mr Thomas. Mr Thomas was heard on the recording to deny the assertions of Mr Johnson about the backyard being safe and confirming that he had told him that he should not go into the backyard or Bruce would have him. Mr Quill stated that there was a later recording which supported his statement in the report but could not advise the date and time of this recording.

18. The Thomases explained to the Tribunal that they had set up the house so that a chain with a warning sign blocked access to the front door of the upstairs via the stairs and Bruce was left on the verandah and had access to the backyard to run and toilet. The entry to the house had been moved to the downstairs and there was no need to enter via the front stairs. Bruce was only placed in the enclosure when no one was at home or there were visitors who may be at risk. Bruce also slept on a double mattress downstairs.

19. The Tribunal is satisfied that Mr and Ms Thomas set up a regime where Bruce was on the verandah with access to the backyard and that the photos show that the front verandah access to the house had been closed off. That access to the backyard by Bruce was part of this arrangement so that the dog could toilet and run. Therefore, it is not conceivable that Mr Thomas would have told Mr Johnson that if Bruce was on the front verandah that it was safe to go into the backyard. Mr Johnson had already confirmed to the Tribunal that he had never entered the backyard by himself but had always been escorted by Mr Thomas.

20. In accepting Mr Thomas’ version of events does that mean that in Mr Johnson doing what he was told not to do he bears some responsibility for the attack? The fact is that Mr Thomas clearly acknowledged he said to Mr Johnson that the dog “would have him” if he entered the backyard. This indicated that he knew that the dog was dangerous and capable of attacking though he says it was just by way of emphasis. The dog had previously been declared dangerous and so that question had been determined.

21. If Bruce had have been in his enclosure the attack would not have occurred. There was some argument about what were the requirements about the keeping of Bruce in the enclosure. The council reports indicate that Bruce’s enclosure was used as a storage area and Mr Thomas alleges that Council officers had consented to Bruce being kept in accordance with the above arrangement, which would ensure that the house was accessible, and Bruce would not need to be kept in an enclosure because the Thomases thought the enclosure was cruel.

22. The Tribunal acknowledges that there were a number of signs around the residence stating, “Beware dangerous dog” which would put people on notice. Clearly though if anyone entered the backyard of the Thomases’ residence they were at risk of attack by Bruce if he was not in his enclosure. While the Thomases said that Bruce would be in his enclosure when no one was at home, this did not occur on 21 August 2014 and the photos show that what was the enclosure was used for storage.

23. The dangerous dog regulations require the dog to normally be in an enclosure unless there is a reasonable excuse. The Thomases though only put Bruce in the enclosure as the exception. Clearly, on this occasion, Bruce was not supervised and he attacked someone. Any person who had a lawful excuse could have entered the rear yard and would have been at the same risk as Mr Johnson.

24. The reason why the dangerous dog rules require that the dog be in an enclosure is so that the dog does not have the opportunity to attack members of the public. This is fulfilling the purposes of the dangerous dog provisions. The provisions about regulated dogs have the purposes to protect the community from damage or injury, or risk of damage or injury from regulated dogs and to ensure the dogs are not a risk to the community health or safety and controlled and kept in a way consistent with community expectations and the rights of the individual[1].

    [1]Animal Management (Cats and Dogs) Act 2008 ss 59(1).

25. Bruce should only be out of the enclosure if he is under effective control. In this case, the Thomases have set up an arrangement, which partially complies with the rules and relies on their vigilance to ensure that the public is not at risk. Unfortunately, they have failed in that vigilance by not ensuring that when they were not at home Bruce was in his enclosure and as a result, a member of the public was attacked and required hospitalisation. There is a history of non-compliance by the Thomases which can be seen in the infringement notices issued to Mrs Thomas.

26. The Thomases say that they now have a better understanding of their responsibility as the owners of a dangerous dog and have built a new enclosure which complies with the rules and gives Bruce yard access within the enclosure. With their history of non-compliance though, the Tribunal does not consider that the Thomases’ future conduct in respect of Bruce would adequately protect the community.

27. Bruce was seized following the attack of 21 August 2014 in accordance with s 125 of the Animal Management Act and a destruction order may then be made under s 127 of the Act. In its review of the decision, the Tribunal stands in the shoes of the decision maker[2] and is required to make the correct and preferable decision[3] based on a fresh hearing on the merits. There are no specific criteria set out in s 127 and so the Tribunal looks to s 59 as it has in previous decisions[4].

    [2]Queensland Civil and administrative Tribunal Act 2009 s 19.

    [3]Ibid s 20.

    [4]Ireland v Moreton Bay Regional Council [2011] QCAT 678.

28. Bruce has now attacked two people, he is already a declared dangerous dog and his owner had not been able to comply adequately with the regulatory framework in the Act, which is there to ensure that the community is protected from dangerous dogs. The Tribunal confirms the decision of the Ipswich City Council.