Van Cuylenberg v Tablelands Regional Council

CITATION: Van Cuylenburg v Tablelands Regional Council [2011] QCAT 722

PARTIES:	Susan Van Cuylenburg
v
Tablelands Regional Council

APPLICATION NUMBER:   GAR182-10

MATTER TYPE: General administrative review matters

HEARING DATE: 23 and 24 June 2011

HEARD AT: Cairns

DECISION OF: Louise Pearce, Member

DELIVERED ON: 13 September 2011

DELIVERED AT: Cairns

ORDERS MADE:     1.     

CATCHWORDS : 

Declaration – menacing dog

Animal Management (Cats and Dogs) Act 2008, ss 89, 94

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr John Korn of counsel instructed by Anne English of Bottoms English
RESPONDENT:	Peter Apel, Apel’s Solicitors

REASONS FOR DECISION

1. Mrs Susan Van Cuylenburg seeks a review of a decision made by Tablelands Regional Council to declare their two dogs “menacing dogs” under the Animal Management (Cats and Dogs) Act 2008 (“the Act”).  The respondent made the declaration following an investigation into an incident that took place on 30 January 2010. 

2. Each party appeared, gave evidence and made submissions to the Tribunal.  A number of witnesses provided written statements and gave oral evidence.

1. In Accordance with s 17 of the Queensland Civil and Administrative Tribunal Act 2009 (“the QCAT Act”) QCAT has jurisdiction to review the decision under s 188 of the Act. On review, the Tribunal is required under s 19 of the QCAT Act to decide the review in accordance with the Act and the QCAT Act. The Tribunal has all the functions of the decision-maker for the reviewable decision being reviewed. The Tribunal must hear and decide the matter by way of fresh hearing on the merits and the review is by way of rehearing. Under s 20 of the QCAT act, the purpose of the review is to produce the correct and preferable decision. The standard of proof is on the balance of probabilities. As such this matter proceeded as a fresh hearing conducted on 23 and 24 June 2011.

2. At the commencement of the hearing the applicant tendered a number of photos and statements from various individuals.  These statements included attestations to the good nature of the dogs in question and photographs of the applicant’s property.

1. The applicant owns two Rottweiler dogs named Casius and Samson.  On the 30^th of January 2010 the two dogs left the property, most likely due to the front gate failing to be correctly latched after visitors entered.  They wandered down the road and got into a fight with a neighbour’s Rottweiler by the name of Neo owned by a Mr Morgan Blake.  Both Neo and Samson were injured.  During the hearing there was some dispute over whether the applicant’s dogs were in fact the aggressors in this incident.  It is immaterial for the purposes of this review as to which dog instigated the fight.  It was accepted by all parties that there was an incident involving all three dogs which resulted in injury.  At no time did the applicant allege it was not their dogs involved in the incident or that they had not left their property.

1. It was submitted…