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

1. 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”).

1. 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.

1. 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.

1. 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.

1. 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.

1. The applicant then sought an external review that resulted in this Hearing. QCAT has jurisdiction to review the decision, arising primarily under section 188 of the Animal Management (Cats and Dogs) Act 2008 (the Act) and sections of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act). On review, the Tribunal must hear and decide the matter by way of fresh hearing on the merits and the review is by way of rehearing. The purpose of the review is to produce the correct and preferable decision. The standard of proof is on the balance of probabilities.

THE HEARING

1. The application came on for hearing in Cairns on 3 February 2012.  The following persons attended:

   Mrs Dawn Watts (Applicant)

   Mrs Glenys Crawford (witness for the Applicant)

   Ms Shellina McKellar (Tablelands Regional Council Supervisor Local Laws Officer)

   Ms Katrina Muller (Tablelands Regional Council Local Laws Officer)

   Tracey Blankers (Witness for the Respondent)

   Two witnesses for the Applicant attended and provided evidence for the Applicant by phone:

   Ms Janet Kelly

   Mrs Daphne Foxover

   Legal Representatives:

   Ms Melinda Parker (Student lawyer) for the Applicant (Bottoms English Lawyers, Cairns)

   Mr Neil Worsley of Counsel for the Respondent

   Mr Peter Apel Solicitor for the Respondent (Apels Solicitors and Notary, Mareeba)

1. Ms K Muller was the Council officer who investigated the incident and made a report.  Mr James McCafferty was the Council officer who made the Proposed Regulated Dog Declaration on 8 February 2010.  Ms Shellina McKellar was the Council Officer who declined a request for the review of the Proposed Dangerous Dog Notice and made the Regulated Dog Declaration Information Notice on 10 June 2010.  Mr Steven Ripper was the Council Officer who made the Internal Review of the Dangerous Dog Notice and upheld the Decision on 17 August 2010.

1. Following the giving of evidence, both the applicant’s legal representative and the respondent’s legal representative made submissions and the hearing was closed after I reserved my reasons for the decision.

THE LAW

1. Section 89 of the Act empowers a local government to make certain declarations and is as follows:

   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 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.

2. Sections 20 and 24 of the Queensland Civil and Administrative Tribunal Act 2009 are also relevant and are as follows:

   20. Review involves fresh hearing

   1.   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 jurisdiction

   1.   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.

THE ISSUES

Factual Issues

1. Was the dog that caused the injury to Mrs Blankers the dog Susie, owned by the applicant?

1. Can the prior inconsistent statements of the victim Mrs Blankers be reconciled on the balance of probabilities?

1. Which version of the events of the day of the alleged attack, the applicant’s or the victim’s, is more likely, on the balance of probability?

Issues of Law

1. Was the injury a serious injury as defined by section 89 of the Act?

1. Was it open to the Council to find that the injury was serious and to issue the Dangerous Dog Notice under sections 89 and 94 of the Act?

1. Whether, under the Act, it is a defence to a Dangerous Dog Declaration where a dog bites a person, causing serious injury, if that person is a mere trespasser to the property?

1. Did the investigation and decision of the Council comply with the tenets of procedural fairness?

REASONS FOR DECISION – THE EVIDENCE AND DISCUSSION

Facts

1. The applicant maintained that it was not her dog Susie who inflicted the wounds on Mrs Blankers.

1. The applicant provided statements and witness evidence to support her claim. Submissions were made on behalf of the applicant in relation to the disputed facts of the incident of the alleged attack. Submissions were also made in relation to the law, in particular sections 89 and 94 of the Act. Submissions were made in relation to the issue of procedural fairness in respect of the Council investigation and decision.

1. The applicant and her sister, Mrs Crawford, gave evidence of the incident of the attack.  Both said that they did not see the actual attack.  Both claimed that when they arrived on the scene, in response to Susie’s barking, Mrs Blankers was outside the gate.  Therefore neither saw the alleged attack.  Mrs Watts said that the dog was on the patio barking when she came to the scene.

1. Both claimed that Mrs Blankers was calm and composed when they spoke to her.  They both stated that Mrs Blankers said she was nipped by their dog.  They both claimed to ask to see the wound but Mrs Blankers declined.  Mrs Crawford said that Mrs Blankers was more concerned about receiving her receipt for the payment of child-minding fees than about the alleged bite.

1. The applicant gave evidence that Mrs Blankers had had two dogs and a kangaroo.  There was some confusion on the part of the applicant as to how this knowledge arose but suggested that Mrs Blankers’ daughter had said it many times.  Her sister was clear that she had been told this by Mrs Blankers directly.  The submission was made that it may have been Mrs Blankers’ own dog which bit her.  Mrs Blankers denied she had said she had two dogs because she only had one dog: a teacup Chihuahua.

1. Mrs Crawford and the applicant attested that Mrs Crawford had a system in place where a parent of one of the children being minded had to let them know when they would come to drop off and to collect their child so that the dog could be put into a fenced area at the rear of the house.  Mrs Crawford said that this was for the dog’s protection.  She also said all parents were told this when they came to inspect the premises before booking their child in.  Mrs Blankers denied that she ever been told of this system.  Nevertheless on the day of the alleged attack she told Mrs Crawford that she would be picking up her daughter early as she had an appointment in Atherton.  Mrs Crawford and the applicant gave evidence that they were expecting Mrs Blankers at 12.30 p.m.

1. It was submitted that Mrs Blankers was trespassing on the property and therefore the dog was provoked into attacking her.  This submission is not accepted.  Mrs Blankers was expected to arrive and come on to the property to collect her daughter.  Even if a stranger had merely entered the property uninvited that would not have justified an attack causing serious injury.  Any provocation of the dog would have to entail something more than mere entry on to the property.

1. Both the applicant and Mrs Crawford stated: The children that come to day care never have access to or see Susie.  This is contradicted by the photos supplied by the applicant, that show the front yard area of the house can clearly be seen by a person or child standing at the front window.  The applicant and Mrs Crawford both have stated that Susie had the run of the whole yard including the front after all the children had arrived at the house.

1. Mrs Watts and Mrs Crawford both stated that many strangers had entered the premises for various reasons and were never attacked.  They cited people such as the meter reader, Jehovah Witnesses and the butcher as examples.  No statements were provided from these or any other genuine strangers as to Susie’s demeanour when they had entered the property.  Mrs Watts did say that Susie was confined in the back yard when the butcher came but no reason for this was provided.  The Tribunal won’t speculate on the possible reasons.

1. Statements and evidence were provided by two people into Susie’s demeanour.  The neighbour Mrs Foxover had known Susie since she was a pup and thus was no stranger.  She gave evidence that she would trust Susie with her life.

1. Mrs Kelly who is Mrs Watts sister in law and lives in the south of the state says she visited, sometimes with her family – husband and six children- about every six months.  She gave her opinion that she was effectively a stranger and had to be re-introduced to Susie each visit.  In her evidence she said that once she was reintroduced she was OK but ventured the opinion that if she was not recognised she was afraid that it would not be OK.  She gave evidence that Susie was a playful friendly dog.

1. Mrs Kelly said that she used to visit every 6-9 months and stay for one to two weeks, although more recently she had not visited for over 12 months.  Given Mrs Kelly’s evidence I am not convinced that she would fall into the “stranger” category.

1. I accept the evidence of both Mrs Kelly and Mrs Foxover but consider it not particularly helpful in providing insight into Susie’s demeanour when approached by a stranger.

1. That the applicant was quick to put Susie into the back yard enclosure when she was alerted by Susie’s barking at a stranger suggests that she was concerned that something more serious than barking might occur.  She gave evidence that this was for Susie’s protection though Mrs Crawford admitted under cross examination that it would be both for Susie’s protection and for the person entering the property.

1. Ms Muller says, in her file note dated 5 February 2010, that the applicant stated that Susie loved children but not adults.  This was not disputed by the applicant at the Hearing.

1. Mrs Crawford admitted, in evidence that Susie as a pup had nipped her owner Mrs Watts and once had drawn blood.

1. The evidence of Mrs Blankers is supported by the photos of her injury, the timing of the attack and her report to the hospital at Atherton for treatment of her wound.  In cross examination she was asked why she went to Atherton rather than to a clinic at Ravenshoe.  Her answer that she was not aware of a clinic in Ravenshoe.  Moreover she was heading to Atherton for an appointment.  Her explanation that she had an appointment not at the hospital, as she had previously stated, but with a government department in relation to her disabled son is accepted.

1. The medical evidence and the photos of the wounds show that Mrs Blankers suffered a penetrating bite wound delivered with some force gouging her skin, causing bleeding and bruising. This wound is of the type that defines “serious attack” pursuant to section 89 of the Act.

Procedural Fairness

1. I am satisfied that on the evidence held by the Council at the time of the decision the Council reached a view which was fairly open to it, however I am not satisfied that the Council availed itself of all the evidence that was potentially available to it.  Where a set of facts are in dispute the Council has a duty to conduct a careful investigation acquiring all the evidence that might be available and that might throw light on the set of disputed facts.

1. In my view the circumstances of the present matter are finely balanced.  I have considered the photos and medical report regarding Mrs Blankers’ injuries.  The photos demonstrate injuries.  I accept that the injuries were caused by a dog bite.

1. However, having made those observations, the issue remains that there are significant differences in the evidence presented by the parties.  The Council, in making its decision relied on the evidence of Mrs Blankers and the evidence of the LLO Ms Muller, who had what may be called an uncomfortable experience when she visited 22 Wormboo St to investigate the allegation.  Her description of that visit indicates that it may have contributed to her conclusion about the dog Susie.  She gave evidence that the dog would more than likely have bitten her if the dog had not been restrained.  That either the applicant or her sister Mrs Crawford felt it was necessary to hold the dog lends credence to that assumption.

1. Ms Muller admitted in evidence that she might have used the word “when” rather than “if” during her discussion with the applicant and her sister, in explaining the consequences of a dangerous dog declaration to the applicant.  The applicant placed considerable importance on this use of “when” in their submissions.  The applicant submitted that it follows that Ms Muller had already made up her mind about the decision to be made.  I do not agree that this is necessarily the case and is an unlikely conclusion in this case.  The investigation had only just begun and Mrs Blankers had yet to tell Ms Muller her version of events.  Subsequent further investigation was conducted by the Council and Mrs Blankers’ version was checked twice before the decision was made.  I am satisfied that the expression was a mere turn of phrase and did not indicate that Ms Muller had already made up her mind about the dog.

1. I am mindful of the comments of Mr Ripper in his review of the decision to declare Susie to be a dangerous dog, and find his responses to be perfunctory and not always directed to the grounds proffered by Mrs Watts.  Mrs Watts maintains that it was not her dog that caused the injury to Ms Blankers and proffers the ground that there were no witnesses to the attack.  Mr Ripper’s response and conclusion do not address the fundamental issue of which dog caused the injury but rather concludes that the evidence is consistent with a dog attack.  A fact that Mrs Watts has not disputed.

1. Mrs Watts proffered the grounds that there was no blood evidence in several places.  Mr Ripper’s response dealt only with blood on the footpath saying that the area of the bite wound was fully clothed.  I find Mr Ripper’s review of this ground insufficient to draw his conclusion.  Mr Ripper ought to have addressed each of the grounds for review that alleged that a complete lack of any physical evidence at the scene existed to support the allegation that a bite as serious as alleged had occurred at that time and place.

1. Mrs Watts also raised the question of the lack of medical evidence available to her to indicate that there was a wound or the cause of the wound.  Mr Ripper does not address the issue of the medical evidence but if he had been mindful of it, since it had been raised, he may have sought the medical evidence which does in fact exist.  If he had sought the medical evidence he might have investigated Mrs Blankers’ statements further to determine the veracity of her story.  Failure to do so raises the issue of procedural fairness.  Evidence was available which warranted further investigation.  This evidence was neither discovered not pursued.  The outcome of any investigation into that evidence cannot be guessed at, at this point in time so far removed from the original incident.  But that the investigation was never conducted where due process and procedural fairness indicate the investigation ought to have been carried out means that the investigation was not as thorough as it might have been.

1. Further, the reasons for this conclusion are related to an allegation of facts that is disputed – where the Council was alerted to the need for a copy of the medical report but failed to act on that ground.  The issue of the inconsistent statements of Mrs Blankers as to the cause of the wound and how she received the wound were, later, the subject of submissions by the applicant.

1. The inconsistent prior statements made to the hospital staff by Mrs Blankers as to the cause of her injury were the subject of written submissions by the applicant and were raised in the evidence by Mrs Blankers and subject to cross examination.  Mrs Blankers gave evidence that she did not know why the medical record indicated a different version of the biting and how it occurred, compared to the one she gave in statements and evidence.  She thought that she was confused and could not recall what she had said.  Under cross examination she said that she was muddled.

1. In the submissions of 21 February 2011 the applicant submits, in the first paragraph of number 1 that the “evidence presented and used by the Council in making their decision does not conclusively prove that the applicants dog was responsible for the attack”.  This submission would be cogent if the test for reaching that decision were to judge the evidence of facts beyond reasonable doubt.  However the test is to make that judgment on the balance of probabilities.  Notwithstanding that there are inconsistent statements alleged to have been made by the victim Mrs Blankers these inconsistencies were addressed in the evidence in chief and tested in cross examination.  The hospital record may or may not be an accurate reflection of what Mrs Blankers actually said.

1. I find that these inconsistencies are not sufficient in themselves, when the weight of all the evidence of Mrs Blankers is considered, to invalidate the conclusion she was bitten by Susie.

1. Despite the above conclusion the Tribunal finds that there are grounds for concluding that Mrs Watts was not accorded procedural fairness and I so find.

1. The Tribunal recommends that the Council investigate matters of this type as thoroughly as is reasonably possible and, in particular, when a party seeking an internal review of a decision raises specific questions of fact these questions should be fully addressed in the review and further inquiries made where appropriate.

1. The applicant submitted that the Council demonstrated bias.  This bias arose, it is submitted, because the applicant and her sister both resigned from the Council at the same time and provided negative reports on the Council on its activities during their time of employment.  Both the applicant and her sister admitted in cross examination that it was not likely that the council would hold a grudge against them because of this.  Both admitted that the Council Officers, most of whom were unknown to the applicant and her sister, would not risk their careers and positions in the Council to fabricate a dangerous dog story or to collude in such fabrication.

1. I find that there was no bias demonstrated by the Council in its decision making process in this matter.

1. This Tribunal review hearing decision is based on the merits of the case in both fact and law as discovered by the evidence presented at and prior to the hearing in statements, and in the submissions by both parties.  The Tribunal substitutes its decision in place of the Council decision.  In this matter the issue of procedural fairness is not fatal to the substituted decision but the Council needs to consider the possible consequences and institute procedures to ensure that original investigations, decisions and internal reviews of decisions are conducted thoroughly and fairly.

1. My interpretation of section 89 subsection (2) of the Act where the act uses the word “may” is that the word “may” is so used to indicate the possibility that if the council finds that a serious attack has occurred it will issue the Proposed Dangerous Dog Notice but if the Council finds that a serious attack did not occur it may not issue such a Notice. That is it may only issue the Notice under the circumstances where it has found that the dangerous attack has occurred. I do not interpret the words to mean that the Council, having found that a serious attack has occurred may choose to not issue such a notice. However, even if I am wrong in this interpretation, the Council in this case, having decided that a serious attack had occurred, is within its rights to issue the Notice.

CONCLUSION

1. From an examination of all the evidence on its merits and having read and listened to all the submissions I find that Susie “seriously attacked” Mrs Blankers as defined by section 89 of the Act.

1. Accordingly, the decision of the Tribunal is that the grounds upon which a declaration of “dangerous dog” was made in respect to the applicants’ dog Susie are met.

1. The issue of a Dangerous Dog Declaration Notice is confirmed.

1. The applicant must comply with the Council requirements for the keeping of Susie in compliance with section 95 of the Act and the Act’s Regulations as conveyed to the applicant in writing.

1. There was evidence that Susie is currently not registered.  The dog must be registered and it makes sense to have the dog registered at the address where it spends most time but this is a matter for the dog’s owner to decide.

COSTS ORDER

1. Each party are to meet their own costs.