Wheeler v Rockhampton Regional Council - [2010] QCAT 676

CITATION:	Wheeler v Rockhampton Regional Council [2010] QCAT 676
PARTIES:	MR MARTIN JOHN WHEELER
V
ROCKHAMPTON REGIONAL COUNCIL
APPLICATION NUMBER:	GAR103-10, GAR147-10
MATTER TYPE:	General administrative review matters
HEARING DATE:	4 October 2010
HEARD AT:	Rockhampton
DECISION OF:	Mr Paul Favell
DELIVERED ON:	24 December 2010
DELIVERED AT:	Brisbane
ORDERS MADE:	The Tribunal reaffirms the decisions of the respondent in relation to the declarations that “Oppy” and “Tara” be destroyed pursuant to s 127(4) of the Animal Management (Cats and Dogs) Act 2008.
CATCHWORDS:	Section127 of the Animal Management (Cats and Dogs) Act 2008; failure to comply with obligations imposed on regulated dog owners; failure to comply with obligations under the Animal Management (Cats and Dogs) Act 2008
APPEARANCES AND REPRESENTATION (if any):	Applicant: Martin John Wheeler assisted by Ms Lyn Laskus Respondent: Mr AD Grant, Grant and Simpson Solicitors

REASONS FOR DECISION

Introduction

Mr Martin Wheeler seeks an external review of a decision made by the Rockhampton Regional Council on 3 February 2010 which declared that his silver brindle ban pet dog, known as “Oppy”, be destroyed pursuant to s127 of the Animal Management (Cats and Dogs) Act 2008.
Mr Wheeler also seeks an external review of a decision made by the Rockhampton Regional Council on 23 December 2009 which declared that his brindle female pet dog, known as “Tara”, be destroyed pursuant to s127 of the Animal Management (Cats and Dogs) Act 2008.

Factual Background and Claims

On 21 January 2008 two “hunting dogs” were reported to attack a miniature poodle resulting in the pet poodle dying of fatal injuries. After fatally injuring the poodle, the two attacking dogs began to turn their attention to the two children of the owner of the poodle before the attacking dogs were called away by their owner. The description of the attacking dogs given by the owner of the poodle, Jane Cotter, describes the two dogs as “bulldogs (pigging dogs)”, one brown and the other grey in colour.
On 25 January 2008 a nearby resident of Mr Wheeler, Helen Payne, telephoned the Council to report that Mr Wheeler was keeping three dogs on his property and that he hid the third dog when Council inspected the property.
On 22 February 2008 Ms Payne again telephoned the Council to report that Mr Wheeler was still keeping three dogs on his property.
On 22 February 2008 a nearby resident of Mr Wheeler, Lewis Richardson, telephoned the Council to report that Mr Wheeler was keeping three dogs on his property. Mr Richardson claimed that the large female brindle dog jumps over the fence which he has photo evidence of.
On 22 February 2008 the Council found Mr Wheeler to be keeping more than the permitted number of dogs at his residence and the third dog was impounded. Mr Wheeler claimed the third dog was simply visiting. A Council officer, Damien Hauff informed Mr Wheeler that he had been warned about keeping three dogs previously and that the third dog was not to return to his premises. Further, the enclosure he had for the dogs was found to be insufficient and a compliance notice was issued under section 23(1) of the Animal Management (Cats and Dogs) Act 2008.
On 1 March 2008 Mr Wheeler’s dog Shitana was declared to be a dangerous dog.
On 8 March 2008 Council officers returned to inspect Mr Wheeler’s property and found three dogs residing on the property. Council officers issued a compliance notice to reduce the number of dogs to two at all times which was to be complied with by 9 March 2008.
On 10 March 2008 Council officers returned to inspect Mr Wheeler’s property to ensure the third dog had not returned. Mr Wheeler claimed that he had removed the dog on the day he received the notices and sent the dog to his mother’s place. Council officers informed Mr Wheeler that they had inspected his mother’s premises earlier that day and found no sign of the third dog. Mr Wheeler then claimed that the dog may have been moved out of town. Council officers informed Mr Wheeler that if the dog had indeed been removed from his mother’s property then his mother needed to inform the council.
On 5 and 6 June 2008 a nearby resident of Mr Wheeler, Gail Richardson, reported a “large brown” type dog wandering at large in her backyard. Ms Richardson claims that the dog has been in her yard everyday. Further, Ms Richardson claimed that the dog has injured her pet dog. Council identified this dog as Shitana who had previously been declared a dangerous dog. Accordingly Council issued an infringement notice for failing to comply with a dangerous dog declaration.
Council officers attended Mr Wheeler’s property on 19 June 2008 to discuss the issue with Mr Wheeler. Mr Wheeler and partner Ms Cotton both confirmed that it was their dog known as Shitana that was escaping via jumping or climbing the back fence. Shitana had been previously declared a dangerous dog which made Mr Wheeler in breach of the declaration. Council officers recommended some methods as to raising the fence. At the time of the visit, the fence had been raised by a bamboo shielding that had lain over. Council officers also noted that Wheeler’s second dog Tara had a litter of puppies at the time of the visit around two weeks old.
Because of the reports of Shitana’s wandering at large, Mr Wheeler was charged on the same date of inspection with failing to comply with a dangerous dog declaration under s27(2) Animal Management (Cats and Dogs) Act 2008 and was issued with a compliance notice pursuant to section 32(1) which required Mr Wheeler to either remove the dog permanently to a non-urban location in the Council’s jurisdiction or to a property outside the Council’s jurisdiction or destroy the dog or have it destroyed by 23 June 2008.
On 14 July 2008 Shitana was again found to be wandering.
On 29 July 2008 Ms Richardson again telephoned the Council to report that Mr Wheeler was keeping more than three dogs on his property. Ms Richardson claimed that Mr Wheeler ignored Council’s directions and instead had been hiding the third dog.
On 30 July 2008 Council officers inspected Mr Wheeler’s property. Council officers found no sign of the third dog. Council officers spoke to Mr Wheeler’s partner, Ms Cotton, who said that the dog had been brought home for a few days as there had been a death in the family but it was now removed. Council officers informed Ms Cotton that in future the excluded dog was not to be brought back to the city area unless permission had been sought and granted.
Council officers also discussed Tara’s pups with Ms Cotton. Ms Cotton was informed that the pups would have to be removed before they reach the age of six weeks.
On 1 August 2008 Shitana was reported to still be on Mr Wheeler’s property.
On 12 August 2008 Mr Richardson telephoned the Council to inform them that there were four dogs and eight pups on Mr Wheeler’s premises. Mr Richardson claimed that the twelve dogs wander through his property at all times of the day. Further, Mr Richardson claimed that he has photo evidence.
On 12 August 2008 Ms Richardson reported that her elderly mother, Meryl Semple, was attacked by two dogs. Ms Semple was cornered in her back yard by the dogs. She avoided the dogs coming close enough to bite her by waving a doona in front of them. The dogs were scared off by a neighbour who cracked a whip at the dogs. Ms Semple described the dogs as “brown-brindle” in colour and identifying one as female and the other as male. Ms Semple’s injuries were described as “shock and fright”.
On 13 August 2008 Mr Richardson telephoned the Council to inform them that he had caught a large brindle dog of Mr Wheeler’s in the council dog trap he had been provided with. Council officers attended the Richardsons’ residence where the dog was identified as Shitana. Shitana was impounded. Ms Richardson also informed council officers that a small dog, known as Toby, that belongs to Mr Wheeler had also been in their yard that night.
On 14 August 2008 Shitana was destroyed summarily pursuant to section 30(4)(b) of Local Law. Council officers attempted to contact Mr Wheeler prior to doing so but could not get in contact with him.
After the destruction of Shitana on 14 August 2008 Mr Wheeler rang council asking for information about Shitana. Mr Wheeler was informed by a council officer, Melanie Dansie, that Shitana had been destroyed according to the order of the manager of regulatory services, Mark Allpress. By Ms Dansie’s account, Mr Wheeler became agitated, stated that he would be taking council to court over such event and then hung up the phone.
Around fifteen minutes after speaking to Mr Wheeler, Ms Dansie answered a phone call from Mr Wheeler’s father. The father asked for Mr Allpress’ contact details. Ms Dansie supplied the father with the telephone number of Mr Allpress.
On 16 August 2008 Ms Dansie received a phone call from Mr Wheeler’s mother, Daphne Louis, asking that the dog’s body, lead and collar be returned to them. Ms Dansie redirected the call to Mr Allpress.
Later on the day of 16 August 2008 Ms Dansie received a phone call from Mr Wheeler’s partner, Sandy Cotton, who demanded that the dog’s body be returned. By Ms Dansie’s account, Ms Cotton became abusive and started to yell at Ms Dansie. Ms Dansie ended the phone call.
Again later on the day of 16 August 2008 Ms Dansie received a phone call from Ms Louis. Ms Dansie had let the phone ring out but Ms Louis left a message. The message was for Ms Louis’ call to be returned.
Ms Dansie on that same day contacted council officer Mr Gordon Reynolds for advice. Mr Reynolds then spoke to Mr Allpress who stated that he did not wish to speak to Ms Louis and that she can seek legal advice if she was not happy with Council’s decision.
Mr Reynolds then contacted Ms Louis and advised her that both she and members of her family should stop calling animal control as they were unable to help them any further and that if the calls did not stop then officers would complain to the authorities regarding the calls. Mr Reynolds also informed Ms Louis that if she was not happy with the actions of the council then she should seek legal advice on the matter. Ms Louis requested that the dog’s collar be returned. Mr Reynolds informed her that she could collect the collar from customer service on 18 August 2008. Ms Louis also requested that the dog’s body be returned. Mr Reynolds informed her that this would not be possible as the body had been buried.
On 18 August 2008 Ms Dansie delivered Shitana’s dog lead to customer service for Ms Louis to collect.
On 20 August 2008 the dog lead and collar were returned to Mr Wheeler via post.
On 20 August 2008 a nearby resident of Mr Wheeler, Sue Jones telephoned the council to advise that there is a female dog which has approximately 10 pups along with other dogs at Mr Wheeler’s residence. Ms Jones was concerned that the dogs were not getting enough food. Ms Jones also said that the noise coming from the yard was terrible.
On 29 August 2008 a nearby resident of Mr Wheeler, Helen Payne telephoned the council to report that there was up to ten pups being kept at Mr Wheeler’s residence. Ms Payne believed the pups were up to 9 weeks old. Ms Payne also said that the pups are hunting dogs and are beginning to hunt the runt of the litter. Ms Payne was of the opinion that it is only a matter of time until the runt is seriously injured as the other pups have been really laying into him. Ms Payne also reports that the pups play quite loudly and are becoming a nuisance now that they are growing in size.
On 1 September 2008 Council officer Melanie Dansie attended Mr Wheeler’s residence in the company of another Council officer Gordon Reynolds and two police officers. Ms Dansie advised Mr Wheeler’s partner Sandy Cotton as to the reason of their presence. Ms Cotton informed Ms Dansie that there were 4 brindle pups, 1 black pup, 1 silver pup, 1 female bandog brindle (06/07 tag 10649) and 1 fox terrier black and tan male (06/07 tag 10649) at the property.
Ms Cotton and council officers Ms Dansie and Mr Reynolds came into dispute over the method of delivery of Shitana’s collar. Ms Cotton alleged that the collar was hand delivered to the residence of Mr Wheeler while Ms Dansie and Mr Reynolds claimed that the collar was posted. Ms Cotton said she was going to the ombudsman over the issue.
According to Ms Dansie’s account, Ms Cotton became increasingly upset and asked Council officers to leave the property and leave the compliance notice in the letter box. Council officers left the property and left the compliance notice in the letter box. The compliance notice required Mr Wheeler to reduce the number of animals at his property within seven days.
On 10 September 2008 nearby resident Mr Richardson rang the Council to inform them that a brindle ban dog from Mr Wheeler’s property had strayed onto his property and been caught in a council dog trap. Council attended the scene and impounded the dog. Council officers issued Mr Wheeler with compliance notices regarding the enclosure and to reduce the number of dogs.
On 22 September 2008 nearby resident Ms Payne telephoned the council to inform them that there will still 2 pups at Mr Wheeler’s residence. As there was a total of four dogs on the property, council officers issued Mr Wheeler with a compliance notice and a failure to comply fine.
On 13 October 2008 the Richardsons telephoned council to inform them that Mr Wheeler had moved away from his residence at 161 Venables Street and appeared to have taken the dogs with him.
On 9 January 2009 an anonymous caller telephoned the council to report four dogs being kept at Mr Wheeler’s new property. The caller claimed the dogs made a lot of noise.
Following that complaint, on 13 January 2009 Council officer Gordon Reynolds inspected Mr Wheeler’s premises. Mr Reynolds knocked on the door but no one answered. Mr Reynolds assumed no one was home but could hear numerous dogs barking at the rear of the property. Mr Reynolds then entered Mr Wheeler’s neighbour’s house to gain a view of the dogs. Mr Reynolds observed three dogs in Mr Wheeler’s yard being two grey dogs of approximately 6-7 months of age tied up at the back of the house and one brindle female dog loose in the yard. Mr Reynolds recalls that the dogs began barking at him and he spoke in a quiet manner in an attempt to calm them. The female dog then ran to the fence between the two yards and jumped over the fence. Mr Reynolds patted the dog and directed it to jump back over the fence which it did and proceeded to lay back with the two younger dogs.
Mr Reynolds then wrote out penalty and infringement notices. As Mr Wheeler’s residence is actually owned by his mother Daphne Louis, the notices were in the name of Ms Louis.
On 20 January 2009 Mr Wheeler swore a statutory declaration stating his inability to comply with the compliance notice:
“I am unable to register my dogs by the 20/01/09 as per the compliance notice issued to me on the 13/01/09 as I am only paid fortnightly by Centrelink. I will be able to pay it in my next pay which is this Friday 23/01/09.”
On 20 January 2009 Mr Wheeler swore a second statutory declaration requesting waiver of the infringement:
“The reason why I have had to have the 3 dog with me, was because that I had a buyer for the dog after Christmas but unfortunately the dog got parvo and spent time in the vet not knowing if I was going to lose him or not because of the parvo. I have since been nursing him back to health. The buy feel through. I then spoke to my Uncle in regards to taking him, then my Uncle has taken ill and has since been in hospital and now advised that he has cancer and now is unable to take him – due to his illness. This has just happened. As I am also struggling with expenses I have had to move home with my mother to try and get on my feet. As I was unaware that my dogs were unregistered as my ex-partner would handle all that sort of paperwork, and all my personal belongings is divided between 3 addresses and I cannot find any information and have not thought to look when it was due. I have enclosed a copy of vet account and a copy of my Uncle’s health report. Please consider me not paying the extra fine of $150.00.”
On 23 January 2009 the Council decided against waiving the fine and issued Mr Wheeler with a letter which read as follows:
“In deciding this matter I firstly considered whether the elements of the offence were evidently made out and found that they were. I then considered whether you had a reasonable lawful excuse for the commission of the offence and could find none in the evidence before me. you have an extensive record of non-compliance with the local law and are fully familiar with both the registration and enclosure requirements of the legislation.
Finally I tested the issue of the infringement notices against Council’s guidelines for officers in such matters and found that the guidelines had been met. Your history of non-compliance ensures that officers in following council guidelines must take the strongest possible action when your breaches of the local law come to notice. In this regard I would strongly suggest that you examine the manner in which you own, care for and control dogs because there are even stronger responses available to Council under the local law, and the forthcoming Queensland legislation will have an increasingly severe impact on non-compliant animal owners.”
The compliance notice was extended to 4:00 pm on Friday 27 February 2009. A letter was sent to Mr Wheeler from the Council which included the following:
“In considering this matter I note that you are a frequent offender in regard to the requirements of the local law. Should you again be found keeping an unregistered dog Council will be forced to consider immediate action to seize any such animal, with Police assistance if necessary, and, instead of issuing compliance and infringement notices, prosecute you before a magistrate.”
On 27 January 2009 Mr Wheeler’s mother, Daphne Louis completed a statutory declaration regarding the infringement and penalty notices in her name which stated the following:
“The dog is not my dog and don’t think I should of had this fine in my name. So please be sure to find out that the dog is only staying with me for a short time.”
On 11 February 2009 the Council found that a penalty infringement notice issued to Mr Wheeler for failing to register a dog over 6 weeks of age was incorrectly issued as the dog, although not wearing a current registration tag, was still registered to a previous address. The Council accordingly waived that penalty notice. There were however still three other outstanding penalty infringement notices.
On 14 February 2009 Council officers picked up two dogs from the Mobil Roadhouse on Yaamba Road. The dogs were described by Council officer Gordon Reynolds as “a medium sized female mastiff x and a puppy of the same breed.” The dogs were taken to the pound by council officers and were later picked up by Mr Wheeler’s mother, Daphne Louis.
On 14 March 2009 the Council again found Mr Wheeler to be keeping more than the permitted number of dogs at his residence. Further, the enclosure he had for the dogs was again found to be insufficient.
On 22 April 2009 a nearby resident, A S Adams telephoned the Council to inform them that Mr Wheeler had four dogs on his premises. Adams also said that the dogs were very dirty and the smell was “really bad”.
On 6 May 2009 Council officer, Melanie Dansie, attended Mr Wheeler’s property. Ms Dansie did not see any dogs and could not raise any one at the premises. Ms Dansie left a visit advice.
On 7 May 2009 Mr Wheeler telephoned Ms Dansie in response to her visit advice. Mr Wheeler said he was still moving into the property and did have four dogs at the premises briefly. Mr Wheeler also said that only two dogs will be staying at the property permanently; Tara and Auto.

On 12 May 2009 a nearby resident, Annette Ross, telephoned the Council to inform them that Mr Wheeler was keeping four dogs at his property; 2 large mastiff type dogs, a puppy possibly belonging to the female and a small black terrier type dog. Ms Ross also said that the male bull mastiff is jumping over the neighbouring fences and when shooed away by a person, the dog turns on them. Ms Ross said that as it is a large dog the neighbours are concerned for the children in the area.
On 14 May 2009 notices were issued to Mr Wheeler for keeping more than two dogs on his property and also for maintaining an inadequate enclosure. At the time of inspection only two dogs were found on the property.
On 16 June 2009 nearby resident A S Adams telephoned the Council to inform them that Mr Wheeler’s dogs are always jumping the fence and entering neighbouring properties. Adams reported that Mr Wheeler keeps four dogs at his property; three of the dogs are large brown / black dogs all of which can jump the fence and the fourth is a small black foxy. Adams observed that the fence is only high on some of the fence.
On 17 June 2009 Mr Wheeler telephoned the Council to inform them that he had just moved to a new property and the fencing is not sufficient to keep his dogs in however he is nearly finished erecting an extra fence to keep them in which should be finished by the end of that day.
On 17 June 2009 the Council received a statutory declaration from nearby resident, M J Penny, stating that Mr Wheeler’s dogs, described as 2 silver weimaraners, had been wandering at large on 8 June 2009 in neighbouring properties. Penny also stated that one of Mr Wheeler’s dogs attacked their dog.
On 19 June 2009 the Department of Housing telephoned the Council as they had been receiving complaints about an excessive number of pig dogs located at Mr Wheeler’s property.
On 19 June 2009 nearby resident Karen Briggs telephoned the Council to report that Mr Wheeler is keeping four dogs at his property. Ms Briggs said that the dogs are continually fighting, barking, wandering the streets and jumping over fences. Ms Briggs also said that the week before the dogs had jumped over a neighbour’s fence and attacked the animal in that yard.
On 22 June 2009 Ms Briggs telephoned the Council to report that her dog whilst walking down the street was attacked by two large brown / grey crossbreeds. Ms Briggs described her pet dog’s injuries as “raw abrasion on dog’s side, 3 bites on back”.
On 22 June 2009 nearby resident Alfred Adams telephoned the Council to report that two large brown male dogs from Mr Wheeler’s property had attacked a small black dog on the street. Mr Adams was concerned over the future of his small pet dog as Mr Wheeler’s dogs can jump his fence into his yard.
On 24 June 2009 the Council received a statutory declaration from nearby resident, Karen Briggs, stating that Mr Wheeler’s four dogs, described as three large dogs and one small dog, have been wandering at large most days since Mr Wheeler moved in approximately 12 weeks ago.
On 28 June 2009 two dogs were reported to circle two passer-bys, Mr Alan and Mrs Carmel Wust, before one of them grabbed at the shirt of Mrs Wust. Mr Wust scared the dogs off before any injuries were sustained. The description of the attacking dogs given by Mr Wust was “2 large brindle coloured dogs”.
On 29 April 2009 Mr Wheeler’s mother, Daphne Louis, telephoned the Council about receiving reminder notices for infringement notices. Ms Louis informed Council that she had already completed a statutory declaration stating that the dogs were actually her son’s. Ms Louis was informed that as she did not state her son’s name and address on the statutory declaration she would need to complete another statutory declaration stating such details so Council would be able to send reminder notices to him.
Ms Louis wrote out another statutory declaration requesting the outstanding infringements be taken out of her name stating the following:
“These dogs do not belong to me, is registered in my name. My son Martin Wheeler was staying at my home for 4 months and has now moved to Horton Street with his 2 dogs. I do not accept these accounts in my name in case they go to court. I was not aware of the dogs not being registered and the law for the extra dog.”
On 1 May 2009 Ms Louis telephoned the Council again to advise that her son had moved off her property and has taken his two dogs with him. Ms Louis could not say his new address. Ms Louis said that she received another letter with another account in the mail. Ms Louis also said that she had already signed a statutory declaration stating that the dogs were not hers and that she does not want any more contact or correspondence from the Council in regards to the dogs.
On 12 May 2009 the Council decided that they would only consider altering the person responsible on the infringement notices if an alternative owner and address can be identified. To date, Council had not received such information and accordingly decided that Ms Louis would still be considered the keeper at the time of the offence.
On 1 July 2009 the Council issued an infringement notice to Mr Wheeler for a wandering dog in the street.
On 3 July 2009 the Council issued compliance notices to Mr Wheeler to erect a sufficient enclosure and to reduce the number of animals to two. This was in response to a Council inspection when it was found that a dog tied to the front fence was able to jump over the fence on to the footpath. Council officers also observed four dogs during the inspection.
On 29 July 2009 nearby resident Alfred Adams telephoned the Council to inform them that there are again four dogs at Mr Wheeler’s residence. Mr Adams telephoned again at a later unknown date to report that there were 3-4 larger dogs and 1 small dog at Mr Wheeler’s residence. Later Mr Adams again telephoned the Council to report that there were now five dogs at Mr Wheeler’s property.
On 13 August 2009 Council officers attended Mr Wheeler’s property and spoke with Mr Wheeler regarding complaints over the number of dogs. Mr Wheeler stated that he currently had three dogs on the property being Oppy, Auto and Ms Cotton’s mother’s dog Toby, a black and tan terrier type dog. Council officers recommended to Mr Wheeler that he issue a letter to the Council informing them of the dates that the third dog will be at his property. Mr Wheeler stated that his female dog is being kept at his mother’s house and is currently pregnant.
On 13 August 2009 nearby resident Shirley Roberts reported that a medium size grey staffy type dog came up behind her and attacked her pet dog. The dog was biting Ms Roberts’ dog and knocking it over. Ms Roberts and her friend attempted to get the attacking dog away from her pet dog but to no avail. Ms Roberts described the attacking dog as very strong and said it would not stop snapping and barking at her pet dog even when she was hitting it with a stick. Ms A car drove past which Ms Roberts and her friend got in with her pet dog. Ms Roberts described the dog as an unknown grey / black male. Ms Roberts described the incident as very distressing.
On 24 August 2009 nearby resident Alfred Adams telephoned the Council to inform them that there are four dogs at Mr Wheeler’s property; two large brindle males, a large brindle female and a black and tan fox terrier. Mr Adams claims that Mr Wheeler brings the dogs back after Council inspections.
On 1 September 2009 there were two dog attacks where two females were severely injured. The first female, Emily Briggs, who was sixteen at the time, was walking from her garage to her back yard when a dog grabbed the back of her thigh. Ms Briggs then kicked the dog and ran into her back yard while the dog continued to sit in the driveway. Ms Briggs’ injuries consisted of puncture wounds. Ms Briggs described the dog as a male “bull mastiff x” that was “brown / grey / white” in colour.
Minutes later, the second female, Shirley Roberts, who was walking through the street, was attacked by two dogs. Ms Roberts was knocked to the ground several times despite her attempts to get up and was bitten numerous times. A neighbour, Daniel Doble, ran towards the dogs whilst yelling at them. At this time the grey dog stopped the attack and started growling at him. The dark coloured dog kept attacking until a second neighbour scared the dogs off by swinging a shovel at them. The dark coloured dog was observed to run into Mr Wheeler’s property while the grey coloured dog ran down the street.
Ms Roberts described her injuries as “several gaping wounds to both legs requiring surgery plus puncture wounds to back & right arm”. Ms Roberts spent 5 days in hospital and was receiving intravenous antibiotics whilst in hospital with daily dressings of her wounds. Ms Roberts will undergo continued occupational therapy in relation to the scarring and muscle damage.
Ms Roberts described the two dogs as a male “smoky grey coloured dog” and a “darker coloured” dog. Ms Roberts recounts that the grey dog started attacking and biting her but was then joined by the darker coloured dog who also attacked and bit her.
Another nearby resident at the attack, Daniel Doble described the two dogs as “two large dogs, one was a grey brindle coloured dog and the other was a dark coloured dog which I could see was a female as it had large sagging breasts hanging from under its belly”. Mr Doble was shown a collective group of photographs of varying dogs and he identified both dogs currently held in possession. Mr Doble noted that “both dogs appeared to be attacking the woman” at the time he first witnessed the attack. When running over he saw “both dogs bite her on the legs and drag her off the fence and knock her to the ground”. While Ms Roberts attempted to get on her feet, “both dogs kept knocking her to the ground and biting her”.
A nearby resident at the attack, Fred Hore observed a “big dark brindle Mastiff type dog” attacking Ms Roberts before a second dog “light in colour” joined the attack. Mr Hore noted that both of the dogs attacked Ms Roberts “with the brindle dog on her left leg and the light coloured dog on her right leg shaking its head and pulling”. Mr Hore was shown a collective group of photographs of varying dogs and he identified both dogs currently held in possession.
Another nearby resident at the attack, Terrence McGilvray, described the two dogs: “one of the dogs was a pretty big dog and light grey in colour and the other one I think was darker”. Mr McGilvray recalls that the “two dogs were fighting around her feet” and he witnessed “the grey one grab her around the back”.
After that incident Council workers arrived to impound the two attacking dogs.
As the darker coloured dog, later identified as Tara, was observed to run back into Mr Wheeler’s property, Council officer, Royce Foley, attended the property. Mr Foley spoke with Sandy Cotton, Mr Wheeler’s partner, who had taken Tara inside the house. Ms Cotton refused to hand the dog over as she claimed Tara was not involved in the incident. Mr Foley, advised Ms Cotton that several witnesses identified Tara as one of the attacking dogs and if she did not surrender Tara then Mr Foley would seize her from the property. Ms Cotton refused to let Council officers inside the premises to retrieve Tara unless they had a warrant.
A short time later the grey coloured dog, later identified as Auto, who had run off down the street had returned to the yard of Mr Wheeler’s property. Council officers entered Mr Wheeler’s yard by virtue of their power under section 112 of the Animal Management (Cats and Dogs) Act 2008. Council officers attempted to seize Auto but the dog began displaying signs of fear aggression and jumped the fence into the rear of the property. Mr Foley described the fence as constructed with 3 foot weld mesh and a 6 foot cane weaved attached to the weld mesh. Mr Foley also noted that the dog was able to part and push through the cane fence where the two fences join. Ms Cotton refused to assist Council officers in seizing Auto. When Council officers attempted to restrain Auto, the dog again displayed aggression, ran and jumped the fence into the back yard. After blocking off the fence to keep Auto in the back yard, Council officers were able to corner the dog and then noose him. Auto was then transported to the Council pound.
Council officers then obtained a warrant for the retrieval of Tara. Ms Cotton still refused to allow Council officers entry to the house as the warrant said that Tara was involved in the attack, not allegedly involved. Council officers informed Ms Cotton that they would not be changing the warrant. Ms Cotton again refused to assist. Council officers then forced entry and retrieved Tara and her eight puppies. Tara displayed no signs of aggression.
Auto, Tara and Tara’s eight pups were impounded. The pups were impounded as they were only a week old and still completely reliant on Tara. The dogs were seized by virtue of s125 Animal Management (Cats and Dogs) Act 2008.
At the time of seizing Tara and Auto, Ms Cotton was sitting with a third dog, almost identical to Auto, known as Oppy. Council officers also observed a fourth dog, a male miniature foxy that belongs to Ms Cotton who stated that she was a resident at the property. That dog was microchipped in Ms Cotton’s name listing her previous address, not her current address at which she lives with Mr Wheeler. That dog was not registered with Rockhampton Regional Council.
The enclosure at the time consisted of a chain link fence with an extension of bamboo fencing that separated the front yard from the back. It ran either side of the house. One of the dogs was observed by a Council officer to push between the house and the fence. The enclosure did not stop the dogs from leaving the property and was therefore inappropriate.
Tara was found to be registered to the address of Mr Wheeler’s mother, Daphne Louis. Tara however has been found several times to have been staying at Mr Wheeler’s property. Further, Ms Louis has completed a statutory declaration stating that the dog is Mr Wheeler’s and now resides with him.
Auto was found to be not wearing any identifying tags whilst in the street or after impoundment.
As a result of the events of 1 September 2009, Mr Wheeler was found to be in breach of the following sections of Rockhampton City Council Continuing Local Law Number 15 (Keeping and Control of Animals) 2004 in relation to Tara:
(a)Division 2 Obligation to Register Section 8(1): A person must not keep an animal for which registration is required unless the person holds a current certificate of registration for the animal from the local government.
(b)Division 1 Animals in Public Places Section 19(1): A person must not bring or permit an animal to be brought into a public place unless the animal is under the person’s effective control.
(c)Division 2 Duty to Provide Proper Enclosure Section 23(1): A person who keeps an animal must maintain a proper enclosure to keep the animal on the person’s land and prevent the animal from wandering or escaping from the land.
(d)Division 2 Duty to Provide Proper Enclosure Section 23(2): If an animal is found wandering at large, the owner of the animal is guilty of an offence.
(e)Division 4 Aggressive Dogs Section 25(1): A person must not cause, encourage or allow a dog to attack or worry another person or animal.
As a result of the events of 1 September 2009, Mr Wheeler was found to be in breach of the following sections of Rockhampton City Council Continuing Local Law Number 15 (Keeping and Control of Animals) 2004 in relation to Auto:
(a)Division 2 Obligation to Register Section 8(2): A person who keeps a registered animal must ensure that the animal carries the identifying tag required under the subordinate local laws.
(b)Division 1 Animals in Public Places Section 19(1): A person must not bring or permit an animal to be brought into a public place unless the animal is under the person’s effective control.
(c)Division 2 Duty to Provide Proper Enclosure Section 23(1): A person who keeps an animal must maintain a proper enclosure to keep the animal on the person’s land and prevent the animal from wandering or escaping from the land.
(d)Division 2 Duty to Provide Proper Enclosure Section 23(2): If an animal is found wandering at large, the owner of the animal is guilty of an offence.
(e)Division 4 Aggressive Dogs Section 25(1): A person must not cause, encourage or allow a dog to attack or worry another person or animal.
As a result of the events of 1 September 2009, Mr Wheeler was found to be in breach of the following section of Rockhampton City Council Continuing Local Law Number 15 (Keeping and Control of Animals) 2004 generally:
(a)Division 1 Animals for which a licence is required Section 6: If a licence for keeping an animal is required, a person must not keep the animal unless the person holds a current licence from the local government authorising the person to keep the animal.
The requirements of which are set out in the subordinate local law and are as follows:
Division 2 Prohibition on Keeping Dogs Section 7 A person must not keep more than two (2) dogs on an allotment in the local government area unless an application has been made in writing to the local government and permission granted in writing for the keeping of more than two dogs on the grounds of proven compassionate circumstances satisfactory to the local government.
On 2 September 2009, the mother of the injured Emily Briggs, Karen Briggs wrote an email to the Council urging them to take action regarding Mr Wheeler and his dogs because of the injuries of Emily Briggs, Shirley Roberts and others caused by these dogs.
On 9 September 2009 one of Tara’s pups was found with an injury to its leg and was taken to the vet. The vet was of the opinion that the leg could not be saved. The vet said that they could operate but would not recommend it and said it would be better off being euthanized.
Council officers later that day informed Mr Wheeler of the pup’s injury via telephone. Mr Wheeler was informed that if he wanted the pup to be operated on he would have to pay for that. Mr Wheeler decided to have the operation to amputate the leg. Mr Wheeler was then given the vet’s number and was told to liaise with the vet directly.
On 11 September 2009 Council officers telephoned the vet and they informed the Council that after speaking with Mr Wheeler he said he was going to have another think about the operation and told the vet he would ring back. The vet did not receive any call back and were unable to contact Mr Wheeler on the number he supplied them. The pup had died overnight on 9 September 2010.
On 14 September 2009, a Council officer, Jacqui Bullock completed a dog attack risk assessment worksheet for both Tara and Auto. The worksheet ranks both dogs as an “Extreme” threat.
On 25 September 2009, the Council sent a proposed regulated dog declaration notice to Mr Wheeler which explained that the Council proposed to declare a dangerous dog. The reasons for such were listed as follows:
(a)The dog has seriously attacked and acted in a way that caused fear and injury to a person; and
(b)The animal is a risk to community health or safety.
On 7 October 2009, Karen Briggs reported to the Council that four dogs were being kept at Mr Wheeler’s residence. Ms Briggs claims that Mr Wheeler hides the dogs when Council inspects his residence.
On 7 October 2009 the Council and Mr Wheeler came to the following agreement in regards to Tara:
(a)The owner agrees that if the dog called “Tara” (a 4.5 year old female, brindle coloured Ban dog) is returned to him than it must immediately be removed from the Rockhampton Regional Council area by a recognised animal transporter. The owner has also agreed that the animal transporter will take the dog to a location in New South Wales where it will be kept and shall not return to the Rockhampton Regional Council area. The location will be provided to Council prior to the release of the above mentioned dog.
(b)The owner agrees that the dog described as a grey coloured mixed breed male called “Auto” which was seized together with “Tara” for attacks on 2 people on the 1^st September be surrendered to Council for euthanasia;
(c)The owner agrees to “Tara” being desexed and will meet the costs associated with this.
(d)The owner agrees that “Tara” will be declared a dangerous dog and as such will be placed on the State data base for regulated dogs. The dog shall not be returned to any location in Queensland unless the relevant Local Authority gives approval.
(e)The owner acknowledges that the Council will only proceed with the prosecution process for the three (3) dog attack offences and two (2) failure to provide proper enclosure offences which occurred on the 1^st September 2009.
(f)The Owner shall not assign, sell or transfer or part with the possession of the dog or share with any person, body, or firm or corporation the ownership thereof.
(g)The Owner agrees to notify the Council as soon as practicable by telephone or otherwise by the quickest medium of any accident or misadvantage occurring in or during the transfer of the dog to the agreed destination.
(h)The Owner agree and understands that permitting or allowing this dog to run freely with other dogs, and that unleashing this dog and being present in an area where there are other people, including children, and other unleased dogs, poses risks to others and himself, his dog and the dogs and property of others, and does hereby agree to assume such risks.
(i)The Owner agrees to release, discharge, hold harmless and indemnify the Council and all of its officials, agents, officers, employees and representatives from liability for any and all claims for injuries, damages and / or losses whatsoever to any person or animal (including, but not limited to disability and death) or property which may arise out of, result from or be associated with this dog being permitted or allowed to run freely or unleashed.
(j)The Owner shall indemnify and keep indemnified the Council against all losses, damages, costs and expenses which Council may sustain, expend or be put to by reason or on account of any neglect or misconduct by the owner or the personnel employed by the owner of any of the agreements or stipulations or advances herein contained or implied.
(k)The Owner and the Council agree that this agreement may not be altered unless subject to mutual agreement between the parties.

On 15 October 2009 the Council declared Tara to be dangerous under section 89(2)(a) Animal Management (Cats and Dogs) Act 2008 as the dog did attack a person.
On 19 October 2009 the dog Auto was euthanized.
On 8 December 2009, Scott Harris reported a dog attack on his pet border collie Will in the yard of his private residence. The attacking dog had grabbed Will by the throat. After seeing Will was being attacked, Mr Harris started to fight off the attacking dog. Mr Harris had a hold of the attacking dog but let it go as it was getting restless. Mr Harris then observed the attacking dog jump over the back fence. Mr Harris drove around looking for the attacking dog and a witness said that it ran into Mr Wheeler’s property. Mr Harris described the injuries as “life threatening” to Will. The specific injuries were bruising and minor abrasions around Will’s throat.
Mr Harris described the attacking dog as a “medium-large” dog “brownish/red” in colour. Council later identified the attacking dog as Oppy.
After the attack was reported by Mr Harris, Council officer Gordon Reynolds went to Mr Wheeler’s property. Mr Reynolds spoke with Mr Wheeler’s partner, Sandy Cotton, who informed him that there were no big dogs kept on the premises.
Later on that day Council received a phone call from a neighbour of Mr Wheeler who informed Council that a male had broken the screen fence at the back of Mr Wheeler’s property and entered the property with 2 brindle dogs.
The Operational Manager of Rockhampton Regional Council, Steve Best, then went to Mr Wheeler’s house and observed Mr Wheeler running down the street with two dogs that Mr Best recognised as Tara and Oppy. Mr Best yelled out to Mr Wheeler to stop but he continued running. Oppy and Tara were later located at the private residence of Colleen Murphy and were impounded.
Tara was in Rockhampton without authority and in circumstances where dangerous dog conditions were not complied with.
As a result of the events of 8 December 2009, Mr Wheeler was found to be in breach of the following sections of Rockhampton City Council Continuing Local Law 15 (Keeping and Control of Animals) in relation to Oppy:
(a)Section 194(1): A relevant person for a dog must take reasonable steps to ensure the dog does not attack or act in a way that causes fear to someone else or another animal.
(b)Section 23(1): A person who keeps an animal must maintain a proper enclosure to keep the animal on the persons land and prevent the animal from wandering or escaping from the land.
(c)Section 7: A person must not keep more than two (2) dogs on an allotment in the local government area unless an application has been made in writing to the local government and permission granted in writing for the keeping of more than two dogs on the grounds of proven compassionate circumstances satisfactory to the local government.
(d)Section 19(1): A person must not bring or permit an animal to be brought into a public place unless the animal is under the person’s effective control.
(e)Section 36(1): A person must not abandon an animal.
(f)Section 8(1): A person must not keep an animal for which registration is required unless the person holds a current certificate of registration for the animal from the local government.
Accordingly, Mr Wheeler was charged with failing to have an animal under effective control and failing to provide a sufficient enclosure for Oppy. Mr Wheeler was also charged with failing to register a dog over six weeks with respect to both Oppy and Tara.
On 22 December 2009 the Council issued Mr Wheeler with a proposed regulated dog declaration notice with regard to Oppy. The reasons for such were listed as:
(a)The dog attacked another animal causing injury on private property other than where the dog is usually kept.
(b)The dog has shown aggression toward council officers on numerous occasions.
On 23 December 2009 the Council issued Mr Wheeler with a destruction order (information notice) with regard to Tara. The reasons for the destruction order were listed as:
(a)You being the owner / person responsible of the above described dog failed to comply with a signed agreement between Council and yourself dated 7 October 2009. This agreement was made with the clear understanding that the above dog had been the subject of numerous complaints to Council. The most recent of which was a serious dog attack on a person on 1 September 2009, causing grievous bodily harm.
(b)In this agreement you unconditionally agreed to the permanent relocation of the above dog to a property in NSW and further agreed not to return the dog to any local authority in QLD unless relevant approvals were obtained. On the 8^th December at approximately 7:30 am you were seen running down Horton Street with the above described dog on a lead. When asked to stop by the Acting Operation Manager Community Compliance, Steve Best you refused and ran into bush land.
(c)You being the owner / responsible person of the above mentioned Declared Dangerous Dog have failed to comply with the conditions of the Declared Dangerous Dog Permit supplied to you:
i.The dog gained access to a public place and was not muzzled nor under effective control.
ii.You failed to provide a proper enclosure with childproof locks,
iii.You failed to display relevant signage notifying the public that a regulated dog is kept at that place.
iv.You failed to ensure your dog has a collar displaying a prescribed tag.
(d)You being the owner / responsible person of the above mentioned Declared Dangerous Dog have failed to comply with the Animal Management (Dogs and Cats) Act 2008 section 68 in that you abandoned the above dog by leaving it at a place other than the Relevant Place for that dog.
(e)You being the owner / responsible person of the above mentioned Declared Dangerous Dog have failed to comply with the Animal Management (Dogs and Cats) Act 2008 section 134 in that you failed to comply with an oral compliance notice issued by the Acting Operational Manager Community Compliance, Steve Best who advised you to stop walking the above dog without a muzzle and return the dog to your property so that breaches of the above described Act could be discussed with you.
(f)You being the owner / responsible person of the above mentioned Declared Dangerous Dog have failed to comply with the Animal Management (Dogs and Cats) Act 2008 section 137 in that you hindered Council Officers in carrying out their investigation into an alleged dog attack involving your dogs and investigations as to why the above described dog was being illegally kept at your address. You hindered these officers by running away from the property with both dogs and failed to stop when requested by the officers. You subsequently hid both dogs at a property in Lakes Creek Road.
On 7 January 2010 Mr Wheeler completed an application for review of the destruction notice of Tara. Mr Wheeler’s grounds of review are:
“That I have not had enough time to provide all the required information that you require from me. I am stressed with concerns that I have only been given this information just before Christmas and that I am being rushed after receiving this notice. This is too short of notice for such a serious order.”
Oppy was declared as a menacing dog on 11 January 2010. The reasons for the menacing dog declaration are as follows:
(a)The dog exited the property and attacked another dog causing injury and a breach of section 194 of the Animal Management (Cats and Dogs) Act 2008;
(b)The dog escaped the property to carry out the attack, a breach of section 23 of the Animal Management (Cats and Dogs) Act 2008;
(c)Three dogs were being kept on the property at the time, a breach of section 7 of the Animal Management (Cats and Dogs) Act 2008;
(d)Mr Wheeler removed the leash from the dog in a public place in front of a Council Officer, a breach of section 19 of the Animal Management (Cats and Dogs) Act 2008;
(e)Mr Wheeler abandoned the animal at a private residence, a breach of section 36 of the Animal Management (Cats and Dogs) Act 2008;
(f)The dog’s registration had expired, a breach of section 8 of the Animal Management (Cats and Dogs) Act 2008;
(g)Risk to the members of the public and / or other animals; and
(h)The described dog has shown aggression towards Council Officers on numerous occasions and the owner of the dog and his partner have advised Council Officers that the dog is extremely aggressive and will attack unprovoked.
According to a letter dated 11 January 2010 from the Council to Mr Wheeler, Oppy would not be released to Mr Wheeler until he was registered and a sufficient enclosure was provided. This letter also gave notice that if Mr Wheeler did not comply with those conditions within 14 days, a destruction order would be issued and the Council would seek to recover costs for keeping Oppy from the date of the notice in accordance with Section 5.1 of Council’s Regulated Dog Management Policy.
On 14 January 2010 Mr Wheeler completed an application for review of the menacing dog declaration of Oppy. Mr Wheeler listed his grounds of review as:
“My wish is to view some evidence on the attack that Oppy has done at the time that you have stated in the notice I received from you. The date being for the 8.12.09 of the attack that was allegedly done!”
On 14 January 2010 Mr Wheeler completed an application for review of the destruction order of Tara. Mr Wheeler listed his grounds of review as:
“Due to the amount of time given from 8-1-10 to 15-1-10 I have only been given 4 working days to seek legal advice in regards to this notice. I request 14 days this being 28-1-10.”
On 28 January 2010 Mr Wheeler completed an application for review of the destruction order of Tara. Mr Wheeler listed his grounds of review as:
“I do not agree or accept the destruction order. Legal Aid is still giving advice to me. This advice has not been completed by them. I will need further time for this date, I need until 15^th February 2010. The enclosure is close to completion for Tara.”
On 29 January 2010 Council Operations Manager, Steve Best, inspected the fencing at Mr Wheeler’s property to establish whether the fence complied with the conditions of the Menacing Dog Declaration for Oppy. The fencing had not been completed at the time of inspection. Mr Best was advised that the fencing would be complete by the following Tuesday.
On 2 February 2010 Mr Best again inspected the premises and spoke with Mr Wheeler’s partner, Sandy Cotton. Ms Cotton advised Mr Best that they were having an issue with the Housing Commission regarding the fence and that is why no further fencing had been carried out.
On 2 February 2010 an internal review notice of the decision to declare Oppy a menacing dog completed by Alastair Dawson the Chief Executive Officer was issued to Mr Wheeler. The decision of Mr Dawson was to confirm the original decision as described in the Regulated Dog Declaration Information Notice (Menacing Dog). Mr Dawson was satisfied that Oppy has satisfied one of the two matters set out in section 89(2) and 89(3) of the Animal Management (Cats and Dogs) Act 2008. Those subsections are:
(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.
Mr Dawson was of the view that confirmation of the original decision would best achieve the purposes of the Animal Management (Cats and Dogs) Act 2008.
On 2 February 2010 an internal review notice of the decision to destroy Tara completed by Alastair Dawson the Chief Executive Officer was issued to Mr Wheeler. The decision of Mr Dawson was to confirm the original decision as described in the Regulated Dog Destruction Order. Mr Dawson was satisfied that Oppy has satisfied one of the two matters set out in section 89(2) of the Animal Management (Cats and Dogs) Act 2008 in that it had:
(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.
Mr Dawson was of the view that confirmation of the original decision would best achieve the purposes of the Animal Management (Cats and Dogs) Act 2008
Oppy was ordered to be destroyed by a declaration dated 3 February 2010. The reasons for the destruction order of Oppy, as explained in the information notice sent to Mr Wheeler from the Council, are as follows:
(a)Oppy is a declared menacing dog being held in Council’s impoundment facility;
(b)Council’s Regulated Dog Management Policy section 5.1 states that
“If Council has a dog in its impoundment facility at the time when … a menacing or dangerous dog declaration is made, Council will release the dog to the person responsible for the dog only if the dog is registered and an enclosure complying with legislation is provided to contain the dog.
If the dog is not registered or an enclosure complying with legislation is not provided to contain the dog, a suitably qualified officer will issue a compliance notice to the person responsible for the dog at the time when the restricted dog permit is approved or a menacing or dangerous dog declaration is made.
Council will issue a destruction order, if the person responsible for the dog does not satisfy the compliance notice within 14 days” ;
(c)On 13 January 2010 a compliance notice was issued to Mr Wheeler requiring him to “erect and maintain an appropriate enclosure for the dog as prescribed under the regulation” by 27 January 2010; and
(d)Mr Wheeler failed to erect an appropriate enclosure by that time.
On 7 February 2010 Mr Wheeler’s mother, Daphne Louis, sent a letter to the Council in regards to the destruction order against Tara which outlined her opinion of the dog as follows:
“…she has spent a lot of time in my home and with family and friends, we have never seen her ever act in any such manner to harm anyone, she is not vicious or ferocious at all..
there has been family friends and even workmen that has entered my home and never in hear of her attacking them. If you need I can get written letters from these people in regards to her.
…
I believe that Tara was not responsible for the attack on the lady in question, but to leave her yard and babies to the noise that was made, you see she had a litter at my home and never left here until the pups were at least 5 weeks old, and I only have a small fence on one side of the yard, and 1 side gate and nothing on the other side of the house. She stayed in our yard at all times, she has never chewed up anything as dogs do. I found her to be a very loving dog with happy tail syndrome. I am not a dog lover but found Tara to be the best mate to Martin as she always knew when he was coming home and let us known, if he spoke to her to go to her bed she would obey.”
Ms Louis also enclosed photos of Tara playing with various children.
On 13 February 2010 Mr Wheeler completed an application for review of the destruction notice issued regarding Oppy. Mr Wheeler listed his grounds of review as:
“I am awaiting an answer from Housing Commission for the completion of the enclosure for the dogs and also for forms to QCAT. I will notify you as soon as these 2 request have been received from them.”
On 24 February 2010 Acting Chief Executive Officer, Evan Pardon, confirmed the decision described in the Regulated Dog Destruction Order for Oppy dated 3 February 2010. Mr Pardon was satisfied that Oppy posed an unacceptable risk to members of the public and other animals such that the Regulated Dog Destruction Order ought to be upheld. Mr Pardon also considered that confirmation of the original decision is consistent with how the purposes of the Animal Management (Cats and Dogs) Act 2008 are primarily achieved.
On 9 March 2010 Chief Executive Officer, Alastair Dawson, confirmed the internal review decision of 2 February 2010, that is, to confirm the destruction order of Tara. Mr Dawson explained that his reasons for doing so were set out in the review notice of 2 February 2010.
On 17 June 2010 a letter was received by the tribunal from Mr Wheeler’s mother, Daphne Louis in relation to Tara which read as follows:
“I have had Tara living at my home on and off in her life and have always found her to be a very caring dog and have never put any of my friends in fear of her biting. My granddaughter and friends children have played with her, while visiting my residence.
Tara seems to be the main part of my son’s life and a pal and best friend to him. You see it goes a lot deeper than that, Martin named Tara close enough to his sister, her name was Lara.. she was murdered when he was 14, I believe that it was his only way of coping with her death 9 years ago, and Tara is 5 ½ years old. I have seen it where she has tried to stop both the male dogs playing with Martin a number of times, where she didn’t like them making play noises as a growling sound, while playing with the hose was another time. This would get her to stomp her front feet at them and move them on and to stop. When she could she would go into my bedroom and take my teddies off the chair to her bed these teddies were never torn up.
Tara always had the best and lived on a long closed verandah where shutters would open and shut. She was always bathed and bed blankets were washed once or twice a week. I have never taken to dogs through my life but found Tara a joy to have in my home. I do not honestly believe that she was the one to cause any trouble to any persons on that day, I believe that she should be given the right to be with Martin in a high secured fence. My thought goes out to Martin as well.
As he said that the reason why he brought her back to Rockhampton, is because they could not live away from his or his partners family without our help. There was a big burden lifted off Martin when the council said he could have her but they would desex her first. The whole ordeal was traumatic for the family to come to terms to that she was involved in the attack. I don’t like to think of Martin’s mental state if she is put down. As Martin’s mother I ask that she be put under supervision by council and checks done on her., that he has her at heart with responsibility to have her with him.”
In relation to the attack of 1 September 2009 Mr Wheeler claims that it was Auto who did the attacking rather than Tara. Mr Wheeler contends that he knew it was wrong of Auto to attack a person and therefore handed Auto over to be euthanized without complaint.
With regard to the Applicant’s failure to provide a sufficient enclosure, the Applicant claims that:
(a)The dogs were actually with the Applicant for the majority of time.
(b)The Applicant began erecting the required fence but was forced to remove it by the Housing Commission.
(c)The Applicant was also told by his neighbour that they did not approve of the fence.
(d)The Applicant was unable to erect a fence until he received requirements from the Housing Commission which is a lengthy process.
(e)The Applicant was issued with Housing Commission requirements on or around 15 March 2010. The Applicant had begun to meet these requirements.
(f)The Applicant met with both the Housing Commission and his neighbour on 25 March 2010 in order to take steps for the approval to be granted. The Housing Commission said that the fence could not go ahead.
(g)The Applicant asked the Housing Commission to be placed in another rental with a high fence. The Housing Commission could not arrange that.
(h)The Applicant made Council aware of the fact that he was awaiting instructions from Housing Commission before he erected the required enclosure.
(i)The Applicant will complete the enclosure as soon as approval is granted from the Housing Commission.

The Applicant claims that he has complied with all Council requirements bar the fencing requirement for the above reasons.
The Applicant claims that he was bullied into the agreement with council on 7 October 2009 regarding the removal of Tara to NSW. The Applicant further claims that he was not given the opportunity to instead comply with the dangerous dog restrictions.
The Applicant claims that he could not afford to move to NSW as he has needs to remain close to his parents and his partner’s parents who help support his child.
The Applicant admits that he brought Tara back in violation of the agreement of 7 October 2009 however claims that Tara was not seen or heard by the neighbours.
The Applicant contends that Oppy and Tara have not re-offended.
The Applicant contends that he has a strong emotional bond with his dogs and that being away from the dogs causes him severe distress.
The Applicant claims that the problems with his dogs have caused him much distress as he has been subject to numerous council, police and media visits and received numerous complaints and threats from neighbours.

Discussion

The Tribunal heard evidence given by Daphne Louis to the effect that her observation of the dogs particularly that of Tara was that they did not harm members of her family and she was comfortable with having children around the dogs. She gave two written statements which are exhibits 2 and 3 and a statutory declaration which is exhibit 4. Photos were tendered showing Oppy playing with her grandson (exhibit 5) and Tara playing with her grandson (exhibit 6). Exhibit 7 was also a photo taken in 2008 showing Tara and exhibit 8 consisted of 2 photos taken in January 2009 showing Tara and her niece. Exhibit 9 is 3 photos showing Tara with a child. Mrs Louis expressed the view that she could not believe that Tara was involved.
Exhibit 18 is a certificate of conviction certifying that on 16 September 2010 Martin John Wheeler was convicted of 3 offences against s 194(4) of the Animal Management (Cats and Dogs) Act 2008. The first conviction is that he failed to take reasonable steps to ensure a female brindle coloured ban dog named Tara did not attack or act in any way that causes fear to someone in circumstances where the attack caused grievous bodily harm to Shirley Roberts. The second is in respect of a male grey coloured mastiff / mixed breed dog involved in the attack on Shirley Roberts. The third conviction is in respect of a male grey coloured mastiff / mixed breed dog and an attack on Emily Briggs.
The tribunal heard evidence from Gary Blain who is a certified police dog handler. His qualifications are set out in exhibit 10. He gave evidence that he was refused entry to a council’s facility. He wanted to examine the dogs to determine whether they had any aggressive tendencies. Part of exhibit 10 has a document entitled “Temperament Nature Test Assessment Civilian’s Dog Aggression” which has not been filled out with the exception of the name “Oppy” typed in one portion. I do not understand that to be a record on any examination of the dogs. The evidence of Mr Blain is a really a complaint against the refusal by the council to allow him to examine the dogs. I do not find that Mr Blain’s evidence has been of assistance to the Tribunal.
Mr Martin Wheeler gave evidence. He disputed that the dogs jumped over the fence and gave evidence that he really did not understand the agreement that he had entered into with the council. He said that there were dog attacks reported in the press (exhibit 12) while Tara was away from Rockhampton. He admitted that the fencing was not sufficient to keep the dogs in and that the Housing Commission would not allow him to put a fence up. He admitted that at times he had three dogs or more at his residence. He accepted that the two dogs could be aggressive with strangers whilst they were accepting of children. If he is successful in this review he said he would put both dogs in a boarding kennel until he found sufficient funds to house them. He admitted having financial difficulties and said that Mrs Laskus had donated $1,000 to re-house the dogs but a fence would cost $5,000.
Stephen John Best gave evidence and his affidavit became exhibit 20. He was the Operational Manager of Community Standards and Compliance with Rockhampton Regional Council. He was advised about a dog incident on 8 December 2009 and attended 180 Horton Street. He said that when he arrived he saw Martin John Wheeler who he had briefly met on a number of occasions running down the road with the two dogs that he recognised as Oppy and Tara from previous seizures and inspections carried out by the Council. Mr Best called out to Mr Wheeler on numerous occasions to stop when he was well within hearing distance (about 5 metres away) but Mr Wheeler looked at him and continued to run down Horton Street and into a park. Officers then patrolled the area and found the two dogs located in a flat above the Salad Bowl Fish & Chip Shop. Mr Best produced the records of the council showing complaints made about the dogs and notices given. Mr Best was a witness to the agreement (exhibit 22). He said that he had on several occasions attended at the residence and on occasion Mr Wheeler’s partner, Sandy Cotton, told him that the dog known as Oppy was extremely aggressive and will attack unprovoked.
Mr Damien Hauff a Community Compliance Officer employed by the Rockhampton Regional Council gave evidence. His statement is exhibit 23. He gave evidence of compliance notices given at various times, a statement of impoundment and produced a bundle of documents of the council records which became exhibit 24. Mr Hauff was the person who found Tara and Oppy at the Salad Bowl Fish & Chip Shop on 8 December 2009.
The Council submitted that the Tribunal should confirm the decisions of the Council. It refers to the intention and the purpose of the legislation and the past history of Mr Wheeler. It also refers to the present circumstances of Mr Wheeler who gave evidence that he had not worked for some time and that temporary fencing had been pulled down and it would cost $5,000 to build compliant fencing. Even though there may be a grant of $1,000 made available to him, it is not suggested by Mr Wheeler that he could afford the fencing. The submission was made that Mr Wheeler was given many opportunities which he did not take advantage of and the Council submitted that if the dogs were to be released, conditions should be imposed namely: a) appropriate fencing approved by the Council be constructed; b) Mr Wheeler pay registration for the dogs; c) there be a confirmation that other dogs have been housed elsewhere; d) that holding costs of $17,900 be paid to the Council by Mr Wheeler prior to the dogs release; e) that the holding costs be paid within 30 days.
The submissions made on behalf of Mr Wheeler in summary form are that there is no one who is qualified at the Council in animal behaviour and accordingly their evidence concerning the actions of the dog should be discarded. It was said on Mr Wheeler’s behalf that he does not understand his obligations and that he is not a bad person. It was submitted that Tara was not involved in the attack. The Tribunal was told that Mr Wheeler had been looking for another residence without success but he is not “financial”. It was said that if conditions were to be imposed Mr Wheeler was not able to meet those conditions as suggested by the Council. It was said in any event that the holding costs document (exhibit 25) showed that the council fees were excessive.
The Tribunal is given its review jurisdiction by Division 3 of the Queensland Civil and Administrative Tribunal Act 2009. Mr Wheeler has applied to the Tribunal for an exercise of its review jurisdiction for a reviewable decision pursuant to section 18 of the Act. In exercising the review jurisdiction generally the Tribunal must decide the review in accordance with the Queensland Civil and Administrative Tribunal Act 2009 and the enabling act under which the reviewable decision being reviewed was made. The tribunal has all the functions of the decision maker of the reviewable decision being reviewed.
The purpose of the review of the reviewable decision is to produce the correct and preferable decision and in doing so the Tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits. That has occurred.
The enabling act is the Animal Management (Cats and Dogs) Act 2008. The purpose of that Act is expressed in section 3 and includes the provision for the effective management of regulated dogs. The purposes of the act are primarily achieved by imposing amongst other things, registration obligations on dog owners and on regulated dog owners, imposing obligations on particular persons to ensure dogs do not attack or cause fear and prohibiting anyone from allowing or encouraging a dog to attack or cause fear to people or other animals.
In this instance both dogs were regulated dogs in that they were either declared a dangerous dog, a menacing dog or a restricted dog. Section 61 of the Animal Management (Cats and Dogs) Act 2008 defines a declared dangerous dog. Section 62 defines a declared menacing dog and section 63 defines a restricted dog.
Section 125 provides for the seizure powers of dogs. Section 127 provides for the power to destroy a seized regulated dog. Oppy was a regulated dog (exhibit 24) as a menacing dog. Tara was a regulated dog as a dangerous dog. As of 11 January 2010 Oppy was also a regulated dog as a menacing dog. I am satisfied that both dogs were seized dogs under s 125 of the Act.
Section 127 in dealing with the power to destroy a seized regulated dog allows an authorised person without notice to immediately destroy the dog if the person reasonably believes the dog is dangerous and the person cannot control it. Section 127(4) allows (when subsection (3) does not apply) the person to make an order stating the person proposes to destroy the dog fourteen days after the order is served. Here an application for an internal review was made in both instances and was considered.
I am satisfied from the evidence that both dogs have been involved in attacks on other animals and persons.
The certificate of conviction (exhibit 18) certifies that on three occasions Martin John Wheeler failed to take reasonable steps to ensure a dog did not attack or act in any way that causes fear to someone and in circumstances where the attack caused grievous bodily harm. In my view, the evidence about those attacks and the evidence given generally leads to the conclusion that there are unacceptable risks to members of the public and other animals if the dogs are released.
The evidence is also such that Mr Wheeler does not have the capacity to prevent the dogs from escaping from his property and I am of the view that accordingly there is an unacceptable risk to members of the public and other animals such that the regulated dog destruction orders of 3^rd February 2010 and 23^rd September 2009 should be confirmed.
It is my view that the evidence supports a view that Mr Wheeler does not have responsible ownership of these dogs, has failed to comply with obligations imposed on regulated dog owners and has failed to comply with his obligations under the Animal Management (Cats and Dogs) Act 2008. He has in my view failed to comply with several compliance notices, conditions of declared dangerous dog permits supplied to him and a signed agreement between Council and himself dated 7^th October 2009.
Section 59 of the Animal Management (Cats and Dogs) Act 2008 confers responsibility on the Council to declare dogs to be dangerous, menacing or restricted dogs as part of a statutory scheme to protect the community from damage or injury from particular dogs. It also seeks to ensure that dogs are not a risk to community health or safety and are controlled in such a way as to be consistent with community expectations and rights of individuals. I am not satisfied on the evidence that if these dogs were released to Mr Wheeler that the object and purposes of the act can be achieved and in my view the dogs are likely to constitute a threat to safety of individuals and other animals.
The regulated dog destruction orders of 3 February 2010 and 23 September 2009 are confirmed.

Paul Favell
Member
Queensland Civil and Administrative Tribunal

Date: 24 December 2010