Watts v Tablelands Regional Council - [2012] QCAT 71

CITATION:

Watts v Tablelands Regional Council [2012] QCAT 71

PARTIES:	Mrs Dawn Watts
v
Tablelands Regional Council

APPLICATION NUMBER:

GAR296-10

MATTER TYPE:

General administrative review matters

HEARING DATE:

3 February 2012

HEARD AT:

Cairns

DECISION OF:

Mr Thomas Cowen, Member

DELIVERED ON:

13 February 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Application is dismissed.

2. The Tribunal substitutes its own decision – regulating the applicant’s dog named Susie as a declared dangerous dog is confirmed.

3. Each party to meet their own costs.

CATCHWORDS:

Regulated dog declaration – declared dangerous dog – whether evidence sufficient to prove dog was responsible for serious attack on balance of probabilities – identity of attacking dog – investigation into disputed facts

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

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mrs Dawn Watts represented by Melinda Parker of Bottoms English Lawyers
RESPONDENT:	Mr Neil Worsley of Counsel instructed by Mr Peter Apel of Apels Lawyers

REASONS FOR DECISION

BACKGROUND

The matter before the Tribunal was an Application for Review of a decision of a delegate of the Tablelands Regional Council (“the Council”) to make a regulated dog declaration under section 94 of the Animal Management (Cats and Dogs) Act 2008 (“the Act”).

The delegate’s decision was made on 10 June 2010 by Ms Shellina McKellar. It was made in respect of a Cattle dog cross named “Susie” whose registered owner is Mrs Dawn Watts of 13 Holdcroft Drive, Herberton. The decision regulated Susie as a declared dangerous dog.

The delegate’s decision followed an incident on 1 February 2010 when it was alleged by Ms Tracey Blankers that she attended the house at 22 Warmboo St Ravenshoe, a day care centre run by the applicant’s sister Mrs Glenys Crawford to collect her daughter at about 5 past noon. Mrs Blankers gave evidence that as she opened the gate a brown and white dog (Susie) came towards her barking. She turned to go back out the gate when the dog leapt up and nipped her on the shoulder and then on the buttock. She attended the Atherton Hospital at 1.00 pm where the wound was attended to. She was in the hospital for one and a half hours. She then reported the incident to the Tablelands Regional Council on 3 February 2010.

The Council, through its Authorised Officer Ms Katrina Muller a Council Local Laws Officer investigated the attack. A decision was made by Mr James McCafferty, a Local Laws Officer of the Council, to issue a Proposed Dangerous Dog Notice on 8 February 2010.

The applicant requested an internal review of the Delegate’s decision of 10 June 2010. The review was conducted by Mr Steve Ripper, General Manager Planning and Development of Council and the review decision was decided on 17 August 2010. The original decision to issue the Dangerous Dog Declaration Notice by the Council Delegate was confirmed.

The applicant then sought an external review that resulted in this Hearing. QCAT has jurisdiction to review…

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 Watts v Tablelands Regional 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: [2012] QCAT 71
Decision Date: 13 February 2012

CaseChat Overview and Summary

Watts brought an application to the Queensland Civil and Administrative Tribunal to review a decision by the Tablelands Regional Council to declare his dog, Susie, a declared dangerous dog. The dispute centred around whether the Council had sufficient evidence to declare Susie a dangerous dog and if the evidence was sufficient to prove that Susie was the dog responsible for an attack on the balance of probabilities. The Council's decision was made under Section 89 of the relevant Act, which empowers local governments to make declarations regarding dogs that have seriously attacked or caused fear to a person or another animal. The Council argued that Susie was responsible for an attack on a child, and the Tribunal was required to determine whether the evidence provided was sufficient to support this declaration.

The Tribunal examined the evidence presented by the Council, including witness statements, video footage, and expert opinions, to determine if it was sufficient to prove that Susie was the dog responsible for the attack on the balance of probabilities. The Tribunal also considered the identity of the attacking dog and whether there was sufficient evidence to distinguish Susie from other dogs that may have been present during the incident. The Tribunal's review involved a fresh hearing on the merits, as outlined in Sections 20 and 24 of the Queensland Civil and Administrative Tribunal Act 2009. The Tribunal had the power to confirm, amend, set aside, or return the matter for reconsideration to the decision-maker.

After reviewing the evidence, the Tribunal found that the Council had sufficient evidence to declare Susie a declared dangerous dog. The Tribunal confirmed the Council's decision, finding that the evidence was sufficient to prove that Susie was responsible for the attack on the balance of probabilities. The Tribunal dismissed Watts' application and confirmed the Council's decision to regulate Susie as a declared dangerous dog. Each party was ordered to meet their own costs.

Orders

Orders of the court

1. The Application is dismissed.

2. The Tribunal substitutes its own decision – regulating the applicant’s dog named Susie as a declared dangerous dog is confirmed.

3. Each party to meet their own costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Section 89 of the Act empowers a local government to make certain declarations and is as follows:Power to Make Declaration1. 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 declared a 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 declared a dangerous dog), 62 (What is declared a 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 section 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. Sections 20 and 24 of the Queensland Civil and Administrative Tribunal Act 2009 are also relevant and are as follows:20. Review involves fresh hearing1. The purpose of the review of a reviewable decision is to produce the correct and preferable decision.2. The tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.24. Functions for review jurisdiction1. In a proceeding for a review of a reviewable decision, the tribunal may –(a) confirm or amend the decision; or(b) set aside the decision and substitute its own decision; or(c) set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate.2. The tribunal’s decision under subsection (1)(a) or (b) for a reviewable decision –(a) is taken to be a decision of the decision-maker for the reviewable decision except for the tribunal’s review jurisdiction or an appeal under part 8; and (b) subject to any contrary order of the tribunal, has effect from when the reviewable decision takes or took effect.3. The tribunal may make, to the chief executive of the entity in which the reviewable decision was made, written recommendations about the policies, practices and procedures applying to reviewable decisions of the same kind.4. If the tribunal makes written recommendations under subsection (3) and the chief executive is not the decision maker for the reviewable decision, the tribunal must give a copy of the recommendations to the decision-maker.5. In this section – chief executive includes chief executive officer.