Waters v Brisbane City Council - [2023] QCAT 388

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Waters v Brisbane City Council [2023] QCAT 388

PARTIES:

KYM NIGEL WATERS

(applicant)

v

BRISBANE CITY COUNCIL

(respondent)

APPLICATION NO/S:

GAR004-22

MATTER TYPE:

General administrative review matters

DELIVERED ON:

26 September 2023

HEARING DATE:

20 September 2023

HEARD AT:

Brisbane

DECISION OF:

Member Howe

ORDERS:

The dangerous dog declaration made by Brisbane City Council on 17 September 2021 concerning the dog Roxy is confirmed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the applicant’s dog attacked another dog – where the attack was without provocation – where the attack was a serious attack – where the attack is a serious attack there is no discretion not to declare the dog a dangerous dog

Animal Management (Cats and Dogs) Act 2008 (Qld),
s 89(2), s 89(7), s 90, s 94

Brisbane City Council v Roy [2020] QCATA 147

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Mark Thomas, City Legal

REASONS FOR DECISION

Mr Waters is the owner of a female Shar Pei dog named Roxy. On 7 June 2021 Roxy was involved in a fight with another dog called Blossom, a female Cavoodle. Blossom sustained significant injuries in the fight. Blossom was 8 years old at the time.
Brisbane City Council (‘BCC’) gave Mr Waters notice that BCC proposed to declare Roxy to be a dangerous dog. He was asked to make submissions about that.
Mr Waters made submissions to the effect that the declaration should not be made but despite that BCC declared Roxy a dangerous dog on 17 September 2021. Mr Waters thereafter sought internal review of that decision but on 20 November 2021 the internal review confirmed the earlier decision.
On 29 November 2021 BCC issued a compliance notice to Mr Waters with respect to the inadequacy of the fencing of the property where Roxy was held and a number of other matters such as poor dangerous dog signage fixed to the fence.
On 4 January 2022 Mr Waters applied to the tribunal for review of the decision to declare Roxy a dangerous dog and subsequently the issuing of the compliance notice.

The evidence

The owner of Blossom, Ms Mollenhauer, gave evidence at hearing. Her evidence was that on 7 June 2021 she was walking Blossom on a lead and harness in McPherson Street when a brown Staffordshire type dog ran up from behind and attacked Blossom by latching onto Blossom’s rump and violently shaking Blossom back and forth.
The first she knew of the presence of the other dog was when she heard the sounds of its claws on the road or pavement as it ran up from behind them.
She screamed for help and took hold of one of the hind legs of the other dog which caused it to let go of Blossom. At that moment Blossom came loose from her harness and ran off down the road and the other dog chased her for a short distance but then stopped. The other dog…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Waters v Brisbane City Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] QCAT 388
Decision Date

CaseChat Overview and Summary

Kym Nigel Waters brought an application for review of a decision made by the Brisbane City Council (BCC) to declare his dog, Roxy, a dangerous dog. The Tribunal considered whether the BCC was justified in making the declaration following an unprovoked attack by Roxy on another dog, Blossom, which resulted in serious injury. The key legal issue was whether the BCC was entitled to declare Roxy a dangerous dog under the Animal Management (Cats and Dogs) Act 2008 (Qld) following the serious attack.

The Tribunal found that the BCC was entitled to declare Roxy a dangerous dog because Roxy had seriously attacked Blossom, causing bodily harm. The attack was unprovoked and occurred without any warning. The Tribunal noted that under the Act, a dog can be declared dangerous if it seriously attacks another animal, which includes causing bodily harm. The evidence showed that the injuries sustained by Blossom were consistent with those caused by a serious dog attack. The Tribunal rejected Mr Waters' submissions that there was a lack of communication by the BCC and found that the BCC had made sufficient attempts to contact Mr Waters and provide him with the opportunity to respond to the proposed declaration. The Tribunal further found that the BCC had complied with the statutory requirements in proposing and making the declaration.

The Tribunal concluded that the declaration of Roxy as a dangerous dog was justified under the Act and confirmed the BCC's decision. The Tribunal found that there was no basis to overturn the declaration made by the BCC. The decision to declare Roxy a dangerous dog was therefore upheld.

The Tribunal orders that the dangerous dog declaration made by BCC on 17 September 2021 concerning the dog Roxy is confirmed.

Orders