VP v Mareeba Shire Council

[2021] QCAT 172

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

VP v Mareeba Shire Council [2021] QCAT 172

PARTIES:

VP

(applicant)

v

MAREEBA SHIRE COUNCIL

(respondent)

APPLICATION NO/S:

GAR279-20

MATTER TYPE:

General administrative review matters

DELIVERED ON:

4 May 2021

HEARING DATE:

22 April 2021

HEARD AT:

Brisbane

DECISION OF:

Member Howe

ORDERS:

1.   The decision made 6 July 2020 upholding the regulated dog declaration concerning Peppa dated 16 June 2020 is set aside.

2.   The matter is returned to the decision-maker for reconsideration of the destruction order made 7 July 2020 in light of the order made herein setting aside the regulated dog declaration concerning Peppa.

3.   The publication of any information in these proceedings that could identify the applicant is prohibited.

CATCHWORDS:

ANIMALS – VARIOUS STATUTORY PROVISIONS – REGULATION OF COMPANION ANIMALS – OTHER MATTERS – where a regulated dog declaration was made following an attack on a dog by another – where a destruction order for the animal was made because the owner could not comply with the statutory requirements for enclosure – where the owner sought external review of both decisions in the Tribunal – where the facts did not establish to the reasonable satisfaction of the Tribunal that the animal the subject of the regulated dog declaration was the animal responsible for the attack – where the regulated dog declaration and destruction order were set aside

Animal Management (Cats and Dogs) Act 2008 (Qld)
s 89(2), s 89(3), s 127

Briginshaw v Briginshaw(1938) 60 CLR 336

APPEARANCES & REPRESENTATION:

Applicant:

MO

Respondent:

Self-represented by M Schuck

REASONS FOR DECISION

1. VP owns a female brindle dog called Peppa. On Sunday 17 May 2020 she was visiting people she knew at a residential property (‘the property’) in Mareeba with Peppa and her other dog, a black and tan Basenji cross Kelpie, when she heard an altercation outside.

2. Two people were walking their small dog and it had been attacked by another larger dog. The small dog suffered some bites. VP’s Peppa was involved in the affair.

3. On Wednesday 20 May 2020 the owner of the small dog, Quinn, made a complaint to the Council. The complainant said a black dog had jumped the fence of the property concerned and attacked Quinn.

4. Council officers attended the property the following day and the occupants told them that the dog that had attacked Quinn was Peppa. They told the officers that VP was homeless, but they described her vehicle for the officers.

5. Later that day the officers recognised VP’s car and spoke to her about the attack. She told them she was aware Peppa was involved in the incident but she was not aware of any attack. The officers said given the seriousness of the attack they would have to seize Peppa, which they did.

6. On 29 May 2020 the Council issued a proposed regulated dog declaration requiring VP to make submissions why Peppa should not be declared a menacing dog within 14 days. VP made no submissions within time and Peppa was declared a menacing dog on 16 June 2020.

7. VP lodged an application for internal review of that decision on 30 June 2020. The menacing dog declaration was upheld in the internal review by decision made 6 July 2020. Given VP had no fixed address, she was unable to comply with the statutory requirement that Peppa be kept in an enclosure,[1] and therefore the Council made a destruction order regarding Peppa on 7 July 2020.

   [1]Animal Management (Cats and Dogs) Act 2008 (Qld) Schedule 1.

8. On 5 August 2020 VP applied to the Tribunal for external review of both the menacing dog declaration and the destruction order.

Jurisdiction

1. It appears no internal review of the decision to destroy Peppa has taken place. By

   
   

   s 180 of the Animal Management (Cats and Dogs) Act 2008 (Qld) (‘AM Act’):

   Internal review process before external review

   Every review of an original decision must be, in the first instance, by way of an application for internal review.

2. The scheme of the AM Act is clear. Before seeking external review in the Tribunal a person dissatisfied with an original decision made by a local government must first apply for internal review.[2]

   [2]Section 181(2) – a general review application, which covers destruction orders under Chapter 5 Part 4 of the AM Act.

3. After the internal review, the applicant is given a review notice. If given a review notice the applicant may apply to the Tribunal for external review of the decision.[3]

   [3]AM Act, s 188.

4. Internal review was sought of the decision to declare Peppa a menacing dog, but not the destruction order. As such the issue for determination before me must be limited to review of the menacing dog declaration.

The evidence before the Council when making the menacing dog declaration

1. The decision to declare Peppa a menacing dog was pivotally based on the complaint by the owner of Quinn and her partner describing the dog that attacked Quinn as of Pitbull/pigging dog type, black in colour, and male.

2. In a statement made 25 May 2020[4] the complainant  described a black dog jumping the fence of the property and grabbing Quinn in its mouth. She said she grabbed the black dog around the back of its neck, hurting it, and it let Quinn loose. She kept hold of the black dog. VP came out of the gate from the property, accompanied by another brown dog. The complainant says she was yelling at VP to help.

   [4]Exhibit 3 page 10.

3. The complainant said she couldn’t understand why VP let the other brown dog out.

4. The complainant’s partner also provided a statement.[5] She also says she saw a black dog jump the fence of the property and rush towards Quinn and seize her. Both the complainant and her partner struggled to separate the two dogs, the complainant grabbing the black dog by the neck. The complainant’s partner ran after Quinn and held her high away from the black dog.

   [5]Exhibit 4 page 2 of 25.

5. She saw VP standing at the gate of the property. The complainant and the partner yelled out to her to get “her dog” inside. Then another light brown Pitbull/Bull Arab/big dog ran out from the property and came towards her and Quinn. She shouted at the brown dog and at VP. VP took hold of the black dog and called the brown dog and she and the complainant managed to walk away.

6. In her statement the partner noted the attacking dog was a black, male, Pitbull/ Bull Arab/ pigging dog.

7. On a visit to the complainant by Council officers on 21 May 2020 the complainant confirmed to them the attacking dog was “definitely all black with no other distinguishing markings and was just over knee height.”[6]

   [6]Exhibit 3 page 6.

8. The officers spoke to male occupants of the property on that same day. They told the officers that the dog responsible belonged to VP who had been visiting them on the day in question. The officers noted two caged dogs at the property. One was an entire male eight year old black/grey and white coloured dog.

9. That same day, when the Council officers spoke to VP at the park, she told them that she was aware of the incident involving the small dog (Quinn) outside the property but was not aware that her dog had attacked the other dog.

10. The registration details held by Council at the time described Peppa as a four year old female “Lab x Staffy black brindle”.

11. Subsequent to the menacing dog declaration being made, Council records reveal a telephone conversation with the partner of Quinn’s owner on 6 August 2020 in which she repeated her description of the attacking dog as a pit bull, black, male, and added it was very aggressive.

VP

1. VP made her statement to Council on 21 May 2020. In the statement she says she was lying on the couch inside the property when she heard barking from three dogs. She recognised Peppa as one of the dogs barking.

2. She ran out the front. She saw Peppa out on the road jumping excitedly. There were two women there. One was carrying a dog and the other “walking another dog on a lead”. The woman carrying the dog was trying to kick Peppa away but Peppa was jumping out of her reach each time. VP took hold of Peppa’s collar and took her inside the yard of the property. Neither of the other women said their dog had been attacked. VP assumed they were simply scared by Peppa’s size and loud barking.

3. VP was not available for the hearing. Neither were the complainants.

4. VP is homeless. She is only a young woman. A letter from a community services group was tendered in evidence. The letter dated 5 February 2021 describes her situation as one of chronic homelessness and mental ill-health.

5. A letter dated 13 November 2017 from a psychologist with a Cairns based Mental Health Unit written at the time to support her search for accommodation was also put in evidence. In the letter the psychologist says VP and Peppa should be viewed as a “package” when considering housing. She goes on to describe the close bond formed between them and the positive impact of animals on the mental wellbeing of homeless youths.

6. VP’s mother was given leave to represent her daughter at the hearing in the Tribunal. Her mother informed the Tribunal that VP suffers from mental ill-health, including autism.  

Follow up statements

1. The Council had the complainant and her partner renew their statements for the hearing. The renewed statements have been redacted as to names and therefore it is unclear who makes which statement. In one, the attacking dog is again described as black, and a Bull Arab/ big dog with no distinguishing marks. In the other, the dog is described variously as a Pitbull or Pitbull looking cross, but certainly male and black with no colour, “nothing to memorable (sic)”.

2. Additionally, the Council provided the complainant and her partner with a photo board made up with four photographs of different dogs and asked them to identify the attacking dog. Both identified Peppa as the dog responsible.

Consideration

1. This review is a fresh hearing of the matter on the merits based on the information currently available. The purpose of the review is to produce the correct and preferable decision in the circumstances. It is not an examination about the correctness or otherwise of the preceding decisions made.

2. Effectively the issue is whether the Tribunal can be reasonably satisfied that Peppa was the dog that attacked Quinn.

3. In understanding what reasonably satisfied means, the statement by Dixon J in Briginshaw v Briginshaw[7] is commonly cited:

   The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty… Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.[8]

   [7](1938) 60 CLR 336.

   [8]Ibid 361.

4. I regard the matter before me as a matter of serious consequences. If the charge is made out, Peppa faces destruction. To exacerbate that there is VP’s mental health which may be adversely affected given her relationship with Peppa if Peppa is destroyed.

5. I turn to consider the evidence. Given neither the complainant nor her partner, nor VP attended the hearing, the Tribunal is left to decide the matter on the papers filed and without hearing from anyone who was present at the time of the attack.

6. The copy of the photo board used by the complainant and her partner to identify Peppa as the dog responsible for the attack on Quinn was produced to the Tribunal in black and white. As such it carries little weight. Presumably however they were shown the photo board with colour photographs of the dogs concerned.

7. Despite that, I determine that little weight should be given to their identification of Peppa as culprit.

8. A full sized colour copy of the same photograph of Peppa used in the photo board is produced in the Council’s material.[9] It reveals a photograph taken in heavy shade which I find hides to no small extent Peppa’s true colouring. That conclusion is reinforced when one compares a different colour photograph of Peppa taken in good light.[10]

   [9]Exhibit 3 page 64.

   [10]Exhibit 7 page 2.

9. Viewing the latter photograph, I conclude that Peppa is not accurately described as a black dog with “no distinguishing features” and “nothing to (sic) memorable”.

10. Peppa is a brindle Labrador cross Staffordshire Terrier, or so it says in her dog registration information. The Macquarie Dictionary[11] defines brindle as “grey or tawny with darker streaks or spots.” That accurately applies to Peppa as seen in the colour photograph taken in good light. Going further, I would describe her coat as predominantly brown with dark streaks.

    [11]Online.

11. Mr Schuck for the Council agreed, appropriately, that when viewing the colour photograph of Peppa taken in good light he would describe her coat as brown rather than black.

12. Peppa is also female. The offending dog was male. The complainant and her partner have been very clear about that throughout.

13. There were three dogs involved in the melee outside the property. Quinn, the offending black male Pitbull/Bull Arab, and according to the complainant’s partner, another light brown Pitbull/Bull Arab/big dog.

14. In a telephone discussion between Council officers and the complainant’s partner on 21 May 2020, the partner makes clear that the brown dog that came out after the black dog had attacked Quinn did not attack either her or Quinn.[12]

    [12]Exhibit 3 page 6.

15. The people who first identified Peppa as the dog that attacked Quinn were the occupants of the property. The record of the discussion between Council officers and those individuals shows the individuals concerned admitted they did not see the attack.[13]

    [13]Exhibit 3 page 7.

16. The complainant’s evidence was that she grabbed the attacking dog by the back of its neck, holding it to hurt it enough to make it release Quinn. Save for VP’s observation that one of the women held the attacking dog on a lead, this account coincides with VP’s observations about Peppa being merely a third party observer to the attack on Quinn by another dog.

17. In VP’s statement dated 21 May 2020 she does not say she saw Peppa attacking Quinn. What she says is that she saw Peppa jumping excitedly around the two women, with tail wagging, one woman carrying a dog (Quinn) and “the other walking another dog on a lead.”

18. I conclude that VP was wrong about the other dog being on a lead. Rather I conclude what she saw was the complainant holding the attacking dog by the neck with Peppa barking and scampering around the women and Quinn.

19. On the available evidence, I am not reasonably satisfied that the dog which attacked Quinn was Peppa.

20. By s 89(2) and (3) of the AM Act:

    (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.

21. Given my finding that I am not reasonably satisfied that Peppa attacked Quinn, the appropriate decision is to set aside the internal review decision made below to opposite effect.

The destruction order

1. As explained above, given there has not been internal review of the destruction order, I have no power to set that order aside.

2. That leaves both VP and the Council in unfortunate hiatus. By s 24(2)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), the within decision setting aside the declaration making Peppa a regulated dog has effect from when the reviewable decision took effect. That means from at least 6 July 2020, which preceded the date of making the destruction order.

3. As such, the destruction order made 7 July 2020 has no jurisdictional validity, given the power granted by s 127 of the AM Act to destroy a dog only applies if the dog is a regulated dog.

4. By s 24(1)(c) of the QCAT Act the Tribunal may set aside a decision and return the matter for reconsideration to the decision maker for the decision with such directions as the Tribunal considers appropriate. I do that with the direction that the decision to make a destruction order be reconsidered in light of the order made setting aside the declaration that Peppa is a menacing dog.

5. To assist the Council I note that by s 24AA of the Acts Interpretation Act 1954 (Qld) the power to make a decision given in an Act includes a power to repeal the decision.

6. I refused an application for closed hearing and non-publication order made by VP’s mother prior to the hearing. There was scant evidence led in support of that application at the time and the matter was being heard by video-link limited to the parties. After hearing the matter however, I conclude it is appropriate to prohibit the publication of any information in these proceedings that could identify the applicant given her age and mental health vulnerability, and I order accordingly.