Westacott v Noosa Shire Council - [2023] QCAT 124

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Westacott v Noosa Shire Council [2023] QCAT 124

PARTIES:

MARK STEVEN WESTACOTT

(applicant)

v

NOOSA SHIRE COUNCIL

(respondent)

APPLICATION NO/S:

GAR097-22

MATTER TYPE:

General administrative review matters

DELIVERED ON:

30 March 2023

HEARING DATE:

20 February 2023

HEARD AT:

Brisbane

DECISION OF:

Member Munasinghe

ORDERS:

Noosa Shire Council’s decision dated 10 December 2021 declaring ‘Max’ a dangerous dog is confirmed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where applicant’s dog attacked delivery person – where the respondent subsequently made a Dangerous Dog Declaration in respect of the dog – where applicant seeks to review Dangerous Dog Declaration – whether attack was a serious attack – whether delivery person entered applicant’s residence lawfully – whether delivery person provoked the dog – where preponderance of evidence suggests the dog is usually gentle and good natured – whether Tribunal is required to confirm Dangerous Dog Declaration if it finds a serious attack has occurred

Animal Management (Cats and Dogs) Act 2008 (Qld), s 60, s 61, s 89, s 94

Criminal Code Act 1899 (Qld), s 1

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24

Brisbane City Council v Roy [2020] QCATA 147

Halliday v Nevill [1984] HCA 80

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Jackson Voges, Local Laws Governance Officer at Noosa Shire Council

REASONS FOR DECISION

What is this application about?

Mark Steven Westacott owns a Dalmatian Crossbreed dog named Max.
On 10 December 2021, Noosa Shire Council (‘Council’) declared Max a ‘dangerous dog’ under s 89 of the Animal Management (Cats and Dogs) Act 2008 (‘AM Act’).
Council made its declaration following an allegation that Max seriously attacked and caused bodily harm to a delivery person named Paul Callaghan who attended Mr Westacott’s residence.
Mr Westacott applies to the Tribunal to review Council’s dangerous dog declaration (‘review application’).
The Animal Management (Cats and Dogs) Act 2008 (Qld)
It is appropriate to set out sections of the AM Act relevant to the review application. To that end, I respectfully adopt the succinct exposition of the AM Act concerning dangerous dog declarations contained in Brisbane City Council v Roy [2020] QCATA 147.
[20] “A regulated dog means a declared dangerous dog, a declared menacing dog, or a restricted dog.[1] A local government may declare a dog to be dangerous, menacing, or restricted.[2] A declared dangerous dog includes a dog declared to be dangerous under s 94 of the AM Act.[3] A dangerous dog declaration may be made if a dog:
(a) has seriously attacked, or acted in a way that caused fear to a person or other 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.
[21] A menacing dog declaration may be made for a dog only if a ground referred to…

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.

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Details

Case: [2023] QCAT 124
Decision Date

CaseChat Overview and Summary

Mark Steven Westacott applied to the Queensland Civil and Administrative Tribunal (QCAT) for a review of a decision made by the Noosa Shire Council to declare his dog, Max, a dangerous dog under the Animal Management (Cats and Dogs) Act 2008 (Qld). The Council had made the declaration after an incident in which Max allegedly attacked a delivery person, Paul Callaghan, who had attended Mr Westacott’s residence. The central legal issues in this case were whether the attack was serious, whether Mr Callaghan entered Mr Westacott’s residence lawfully, and whether Mr Callaghan provoked Max. The Tribunal considered evidence from Mr Callaghan, who described the attack, as well as letters from a veterinarian and a professional dog trainer attesting to Max’s gentle disposition.

The Tribunal found Mr Callaghan’s account of the attack to be reliable and consistent. It accepted that Max had seriously attacked Mr Callaghan, causing him bodily harm. The Tribunal rejected Mr Westacott’s contention that Mr Callaghan provoked Max or entered the property unlawfully. The Tribunal also found that the letters from the veterinarian and dog trainer, while persuasive about Max’s usual temperament, could not account for his behaviour at the time of the attack. Given that a serious attack had occurred, the Tribunal was compelled to confirm the Council’s declaration that Max was a dangerous dog, in accordance with s 94(2) of the AM Act. This decision aligns with the reasoning in Brisbane City Council v Roy, which held that the Tribunal has no discretion to deviate from the statutory requirement to confirm a dangerous dog declaration if a serious attack has been established.

The Tribunal confirmed Noosa Shire Council’s decision dated 10 December 2021 declaring Max a dangerous dog.

Orders