Van Cuylenberg v Tablelands Regional Council
[2011] QCAT 722
•13 September 2011
| 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
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.
Each party appeared, gave evidence and made submissions to the Tribunal. A number of witnesses provided written statements and gave oral evidence.
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.
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.
The applicant owns two Rottweiler dogs named Casius and Samson. On the 30th 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.
It was submitted by the applicant that the owner of Neo became very aggressive towards the applicant’s husband following the dog fight. An investigation occurred into the incident and statements were taken from a number of people. The applicant resides on a five acre allotment which is fully fenced. The neighbouring properties are all of similar size. Many are unfenced.
Ms Katrina Muller, Laws Officer, from the Tablelands Regional Council investigated the complaint. She interviewed witnesses as well as the applicant. She took photographs of the applicant’s dogs and photographs of Neo. She observed the applicant’s dogs to be friendly. The owner of Neo attended the Council at Mareeba and withdrew her complaint about the applicant’s dogs.
After speaking to witnesses and taking statements, Katrina Muller, Laws Officer, reached the view that the Van Cuylenburg’s dogs were responsible for the attack. A Dangerous Dog notice was issued to the applicant for both dogs.
Following the issuing of the notice the applicant approached the Council asking them to reconsider the notice. The applicant made a number of phone calls regarding the issuing of the notices as the owner of Neo had withdrawn the complaint. It was the applicant’s testimony that she was not advised of how to appeal the decision and she found it difficult to get in contact with the appropriate person in the Council to address her concerns to. A meeting was held on the 15th of February 2010 with the decision maker and the council manager. The applicant asked for a review of the decision. The applicant was given an opportunity to discuss the matter further. Following this meeting no response was received from the respondent and the applicant sought further contact with the respondent. A second meeting was held on the 11th of March 2010. Still no decision was made. On 12th May 2010 a decision was made to issue a Menacing Dog notice to the applicant in respect of both dogs.
A number of people provided statements in support of the applicant and the two dogs in question. Adrienne Easton was the vet who treated the two injured dogs following the incident. She gave oral evidence that both dogs owned by the applicant were old dogs and their condition was commensurate with their age. She stated that the dogs had not been aggressive in her presence.
Kerry Anne Ramsden, dog behaviouralist, provided oral evidence that she had been doing some work with both dogs and that they were capable of being socialised to reduce any risk of a similar incident.
Todd Newman is an electrician who has carried out a lot of work at the applicant’s residence. Mr Newman stated that the dogs were welcoming and were not at all intimidating.
Section 89 of the Animal Management (Dogs and Cats) Act 2008 provides as follows:
89 Power to make declaration
(1) Any local government may, by complying with the requirements of this part—
(a)Declare a particular dog to be a declared dangerous dog (a dangerous dog declaration) ; or
(b)Declare a particular dog to be a declared menacing dog (a menacing dog declaration); or
(c)Declare a particular dog to be a restricted dog (a restricted dog declaration).
Note—
See sections 61 (What is a declared dangerous dog), 62 (What is a declared menacing dog) and 63(2) (What is a restricted dog).
(2) A dangerous dog declaration may be made for a dog only if the 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.
(3) A menacing dog declaration may be made for a dog only if a ground mentioned in subsection (2) exists for the dog, except that the attack was not serious.
(4) A restricted dog declaration may be made for a dog only if the local government is satisfied the dog is of a breed mentioned in sections 63(1).
(5) The declaration may be made even if the dog is not in the local government’s area.
(6) A declaration under this section is a regulated dog declaration.
(7) In this section—
Seriously attack means to attack in a way causing bodily harm, grievous bodily harm or death.
Section 61 of the Act states that a declared dangerous dog is a dangerous dog declared under section 94 to be a dangerous dog.
Section 94 of the Act states:
(1)The local government must consider any written representations and the evidence accompanying them within the period stated in the proposed declaration notice.
(2)If, after complying with subsection (1), the local government is satisfied that the relevant ground under section 89 still exists, it must make the regulated dog declaration for the dog.
The initial dangerous dog declaration was made on 5 February 2010. The declaration was made on the basis that dogs attacked another dog resident in the street. As a result of the attack the third dog was injured, as was one of the applicant’s dogs. No issue was raised as to the identity of the applicant's dogs being those dogs that attacked the third dog “Neo”. It has been accepted that this is what happened.
Upon receiving this notice the applicant made submissions to the council and attended a meeting with council regarding the issuing of the notice. The applicant asked council to review its decision. On 12 May 2010 the Tablelands Regional Council issued a regulated dog notice under s 94 of the Act. It is this decision made on 12 May 2010 which is the subject of this application.
The power to be exercised under section 89 of the Act is clearly discretionary. A declaration does not have to be made even in the event of a dog attacking another animal or person or causing fear. However, it is not this power that is the subject of this review. The decision under review involves that made on the 12th of May 2010 under section 94 of the Act.
In short section 94 states that after considering all written representations and evidence accompanying them if the grounds established under section 89 still exist then the regulated dog notice must still issue. This section in fact removes the discretionary power of section 89.
As previously outlined the jurisdiction of QCAT exists to review the decision and place the Tribunal in the position of the original decision maker with the same powers as that decision maker. In this case those powers are those under section 94 of the Act.
Both parties presented a considerable amount of evidence, both orally and written. Following the hearing the applicant filed further submissions for consideration by the Tribunal. These further submissions have been considered and the respondent was provided leave to make further submissions to ensure procedural fairness for both parties. The respondent provided further submissions and these too have been considered.
The evidence submitted by the applicant clearly outlines that the two dogs in question are much loved and well cared for animals. It is also apparent that the event in question was not a regular occurrence. The Tribunal is also very conscious of the effect of the issuing of menacing dog notices on the applicant in terms of both the considerable costs in complying with such notices and the decrease in quality of life for the two dogs in question.
It is also accepted that the two dogs in question are in fact elderly dogs and their propensity to be a menace to their community is greatly reducing as time passes[1].
[1]It should be noted that at the time of delivering this decision the Tribunal was advised that one of the dogs in question had been euthanized due to ill health. One dog in question still remains.
The applicant’s submission is that there is only one head of power in the Act to make a Regulated Dog Declaration. The applicant submits that the power to make a declaration rests only in section 89. The applicant further submits that the sections that follow, namely sections 90, 91, 92, 93 and 94 are procedural or machinery provisions.
The applicants argue that section 94 is procedural in the sense that it provides that, if after the evidence and submission from the dog owner, there still exists the ground provided for by section 89, then council must make the declaration.
The respondent submits that section 94 is not merely a procedural provision. The respondent argues that section 94 requires council to make a discreet and fundamentally different decision to that which is required to be made under section 89.
The respondent further contends that it is inconsistent with the legislation, and logically incorrect to assert that in reconsidering a section 94 decision, all previous decisions are thrown open for reconsideration as well. That was clearly not the intention of Parliament in the drafting of the Act.
The respondent argues that if the applicant wants the decision reviewed in totality then the applicant should have sought the review of the section 89 decision.
It is noted that at the hearing a settled and agreed chronology of events from the parties was sought by the Tribunal and provided by the parties. This agreed chronology also confirmed the applicant’s contention that the decision they were seeking review on was that of 12 May 2011, the section 94 decision.
In my view the circumstances of this case are conflicting in as much as there appears to be no history of like conduct by the two dogs in question. It is clear that an event happened in which two otherwise good natured dogs left their yard and in whatever the circumstances attacked another dog. There is no lack of evidence or fundamental flaw in the making of the initial declaration by the Council.
The following contact between the applicant and the Council and the review of the decisions to make a declaration are somewhat problematic. The events leave scope for a recommendation that Council is in need of a settled method of handling such incidents, a formalised review process and publicly available material regarding their policy and practice in regard to declarations made under the Act. This would allow animal owners in the position of the applicant to know exactly what is required of them when seeking a review of the decision in question. A formal animal management policy would also enable council decision makers to follow a determined path in dealing with such events.
In my opinion the argument presented by the respondent is the correct one in law. The decision being reviewed is that of the issuing of the menacing dog notices under section 94 of the Act. As such my position is that of the decision maker making that decision. Section 94 clearly states that if, after considering the evidence and representations, the ground under section 89 still exists, a regulated dog declaration must be made.
Therefore in this case, the position of the Tribunal is that after considering the representations and evidence, if the ground under section 89 still exists it must uphold the issue of the menacing dog declaration.
It is my opinion that after considering all the evidence presented and representations by the applicant the ground for the decision in section 89 still exists.
Accordingly the Tribunal reaffirms the decision of the respondent in relation to the declaration of Cassius and Samson as regulated menacing dogs pursuant to section 94 of the Animal Management (Cats and Dogs) Act 2008.
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