Wilson v City of Onkaparinga - [2024] SASC 139

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal to a Single Judge)
WILSON v CITY OF ONKAPARINGA
[2024] SASC 139
Judgment of the Honourable Justice B Doyle
5 December 2024
ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
ANIMALS - LIABILITY OF OWNERS AND KEEPERS IN RESPECT OF INJURIES BY ANIMALS - STATUTORY PROVISIONS - SOUTH AUSTRALIA
The applicant sought leave to appeal a decision of the South Australian Civil and Administrative Tribunal ('the Tribunal') affirming the decision of the City of Onkaparinga Council to make a prohibition order against the applicant pursuant to s 59A of the Dog and Cat Management Act 1995 (SA).
The prohibition order prohibited the applicant from acquiring or becoming responsible for the control of any dog for a period of five years and required that each dog in the control of the applicant be surrendered to the respondent and destroyed.
The applicant sought orders that the dog not be destroyed and be returned to him under his care and control.
Held, granting leave to appeal, allowing the appeal in part to reduce the duration of the prohibition order but otherwise dismissing the appeal:
1.The applicant was not denied procedural fairness by the Tribunal.
2.The criteria for making a prohibition order were established.
3.The Tribunal should have found that the preferable order was of a lesser duration.
4.The Tribunal did not otherwise err in finding that the prohibition order, requiring the destruction of the applicant's dog, was the correct and preferable decision.

Criminal Code 1899 (Qld) s 31(2); Criminal Law Consolidation Act 1935 (SA) s 50; Dog and Cat Management Act 1995 (SA) ss 25D, 43, 44, 47, 50, 51, 55, 59A, 72 and 86; Freedom of Information Act 1991 (SA) sch 1 cl 12; South Australian Civil and Administrative Tribunal Act 2013 (SA) ss 34, 37, 39, 50 and 71, referred to.
Aldridge v Registrar of Firearms (SA) [2022] SASC 5; Aldridge v Whyalla City Council [2020] SACAT 13; Allen v Chadwick (2015) 256 CLR 148; Ash v City of Burnside (Unreported, District Court of South Australia, Master Rice, 3 March 2016); Briginshaw v Briginshaw (1938) 60 CLR 336; Chiro v The Queen (2017) 260 CLR 425; Fletcher v Australian Health Practitioner Regulation Agency [2023] SASCA 36; Gassy v The King [2023] SASCA 90; GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857; Henderson v South Australian Housing Trust [2024] SASCA 55; House v The King (1936) 55 CLR 499; Jackson v Lepp Investments Pty Ltd [2016] SASC 62; JJK v Police [2023] SASCA 73; Khoo v Bartholomaeus [2020] SASCFC 122; Maroulis v Pscyhology Board of Australia [2021] SASC 16; Martincic v Ethnic Broadcasters Inc [2024] SASCA 33; Minister for Immigration & Border Protection v SZVFM (2018) 264 CLR 541; Minister for Primary Industries and Regional Development v Scali [2024] SASC 4; Norcock v Bowey [1966] SASR 250; Optometry Board of Australia v Bhoola [2021] SASC 51; Pickering v The Queen (2017) 260 CLR 151; Pix v South Australian Housing Trust (2016) 125 SASR 10; Rebbeck v Housing SA [2024] SASCA 86; Schinckel v Registrar of Firearms [2020] SASC 236; Selvanera v City of West Torrens [2018] SACAT 14; Shah (a pseudonym) v Medical Board of Australia [2022] SASC 140; Warren v Coombes (1979) 142 CLR 531; Wilson v City of Onkaparinga Council [2024] SACAT 53; Young v The King [2024] SASCA 47; Zhang v City of Burnside (Unreported, District Court of South Australia, Master Keith, 18 August 2017), considered.

WILSON v CITY OF ONKAPARINGA
[2024] SASC 139
Civil: Single Judge Appeal

B DOYLE J: The applicant seeks leave to appeal against a decision of the South Australian Civil and Administrative Tribunal (‘the Tribunal’) made on 5 August 2024.[1]
[1] Wilson v City of Onkaparinga Council [2024] SACAT 53 (‘Reasons’).
By that decision, the Tribunal affirmed the decision of City of Onkaparinga (‘the Council’) on 26 March 2024 to make a ‘Prohibition Order’ against the applicant pursuant to s 59A of the Dog and Cat Management Act 1995 (SA) (‘the Act’).
That section relevantly provides as follows:
59A—Prohibition orders
(1)A council or the Board may, in accordance with this Division, make a Prohibition Order against a person.
(2)A Prohibition Order—
(a)prohibits the person from acquiring or becoming responsible for the control of any dog for the period specified in the order; and
(b)requires each dog owned by the person, or for the control of which the person is responsible, at the time the order takes effect—
(i)to be destroyed or, if the order so allows, disposed of in a specified manner, within a specified period (but not less than one month after the order takes effect); and
(ii)until destroyed or disposed of, to be kept or detained at a place specified in the order (or at some other place subsequently approved by the council or the Board (as the case requires)).
(3)A council or the Board may, on its own initiative or on application, make a Prohibition Order against a person if satisfied that—
(a)while the person owned or was responsible for the control of a dog, the dog attacked, harassed or chased a person or an animal or bird owned by or in the charge of a person in circumstances that would constitute an offence against this Act; and
(b) —
(i)the dog was already subject to a Destruction Order or a Control (Dangerous Dog) Order; or
(ii)during the 5 years preceding the event referred to in paragraph (a), a Destruction Order or a Control (Dangerous Dog) Order was made in relation to some other dog on grounds that arose while the person owned or was responsible for the control of that other dog.
(3a)…
(4)However, a council or the Board may not make a Prohibition Order if the person satisfies the council or the Board that—
(a)the person did not intend the event referred to in subsection (3)(a) to occur and the event did not result from any failure on the part of the person to take all reasonable steps to avoid the occurrence of the event; or
(b)the event referred to in subsection (3)(a) occurred while the dog was, without the person's consent, in the possession or control of another person.
…
Prohibition Order
The Prohibition Order made in this case prohibited the applicant from acquiring or becoming responsible for the control of any dog for a period of five years and required that each dog owned or in the control of the applicant be surrendered to the respondent and destroyed. At the time of the making of the order, the applicant had an American Bulldog in his possession, named Stella. The order required that Stella was to be destroyed not before 3 May 2024 and, until destroyed, was to be kept or detained at the RSPCA shelter, Meyer Road, Lonsdale.
The basis for the making of the Prohibition Order, as set out in the order, was that:
·in circumstances that would constitute an offence against the Act, the dog Stella attacked another dog, a Golden Retriever, on Navigation Street, Seaford Meadows at about 9.20 am on 14 March 2024. The victim dog received injuries to its neck and shoulders requiring medical attention;[2]
·at the time of the attack, Stella was subject to a Control (Dangerous Dog) Order issued on 8 January 2024.[3]
[2] Section 59A(3)(a) of the Act.
[3] Section 59A(3)(b)(i) of the Act.
In a letter accompanying the Prohibition Order, Mr Phillip Jeffery, the decision-maker within the respondent Council, advised that the reasons for the determination to make the order in its terms were:
·the significant history of dog attacks involving Stella;
·the history of non-compliance with previous orders placed upon Stella;
·that Stella was currently not registered and therefore in breach of the Act;
·that Stella was in breach of a Control (Dangerous Dog) Order placed upon her on 8 January 2024 in that she was wandering at large, not wearing a Dangerous Dog collar, and not wearing a muzzle during the incident on 14 March 2024;
·that no training for Stella had commenced since the Dangerous Dog Order was issued on 8 January 2024;
·that the applicant’s history of non-compliance with basic obligations under the Act had proven he was unable to comply with the complex requirements of a Control (Dangerous Dog) Order;
·that Stella posed a significant risk to the public and other dogs due to the applicant’s inability to keep her contained as required by current control orders; and
·that Stella posed a significant risk to the public due to her aggressive behaviour to any dogs that are in her vicinity.
The respondent later prepared and provided a statement of its reasons which set out a number of findings of material fact relating to five earlier incidents and the incident on 14 March 2024. It also set out the evidence or other material upon which those findings were based.
Expanding upon what was contained in the letter communicating the original decision, the respondent’s reasons record a finding that, on 14 March 2024, whilst subject to a Control (Dangerous) Dog Order, Stella had attacked another dog in circumstances that would constitute an offence against the Act. The reasons recorded that, by reference to the so-called Briginshaw standard,[4] the respondent was satisfied of the elements of an offence against s 43 of the Act (which requires that a person who owns or is responsible for the control of a dog is guilty of an offence if the dog is wandering at large), s 55 of the Act (which provides that a person who owns or is responsible for the control of a dog that is subject to an order is guilty of an offence where that order is contravened) and s 44(2) of the Act (which provides that a person who owns or is responsible for the control of a dog is guilty of an offence if the dog attacks, harasses or chases or otherwise endangers the health of a person or an animal or bird owned by or in charged of another person, whether or not actual injury is caused).
[4] Briginshaw v Briginshaw (1938) 60 CLR 336.
The reasons of the Council included the following:
[80] Prior to issuing the Order the Council considered and ruled out the application of section 59A(4) of the Act on the basis of the evidence in its possession because, whilst the Council does not suggest that the Applicant intended for the Sixth Incident to occur, the Council is not satisfied that the Sixth Incident arose in circumstances where the Applicant took all reasonable steps to avoid its occurrence. The Council formed this view on the basis that the following steps could have reasonably be taken by the Applicant to avoid the Sixth Incident:
[80.1] ensuring that the Dog was properly controlled on a leash when in a public place; and
[80.2] the Dog, at the very least, should have been wearing a muzzle as required by the Control (Dangerous Dog) Order.
Application for review
Exercising his right under s 72 of the Act, the applicant made an application to the Tribunal for a review of the Council’s decision to issue the Prohibition Order. The review proceeded to a hearing before a senior member of the Tribunal on 26 July 2024. At that hearing, the Tribunal received written documents including witness statements, heard evidence from two witnesses, viewed video evidence and heard submissions.
This approach was consistent with the nature of the Tribunal’s review jurisdiction as contemplated by ss 34 and 37 of the South Australian Civil and Administrative Tribunal Act 2013 (SA) (‘SACAT Act’).
Earlier incidents
Before the Tribunal, the respondent sought to establish that Stella’s attack upon another dog on 14 March 2024 was the sixth incident involving Stella (Reasons [27]).
The respondent contended that:
·on 28 March 2018, a woman was walking her dog near the applicant’s premises. Stella came running from the premises towards them; the woman tried to grab Stella’s chain collar, but Stella latched on to her dog’s shoulder. A witness came to assist, and the applicant then attended and apologised. A formal warning was issued to the applicant;[5]
·on 7 April 2018, a woman was walking her dog close to the applicant’s premises. Stella ran from the premises and grabbed the woman’s dog by the neck. The woman tried to make Stella release the dog and screamed for help. The attack lasted about 10 minutes, and the woman’s dog was taken to a vet for treatment. The applicant was issued expiation notices for three offences and the Council issued a Control (Menacing Dog) Order with respect to Stella on 29 August 2018;[6]
·on 11 September 2018, SAPOL informed the Council that there had been a dog attack involving the applicant’s dog. The applicant told the Council officer that Stella had attacked a passing dog on the footpath and that he had to punch Stella to get her to let the other dog go. The injured dog was taken to the vet for treatment. Following this incident Stella was taken to the RSPCA by Council officers and there were negotiations with the applicant in relation to the micro-chipping and de-sexing of Stella;
·on 20 December 2022, a man was walking his two dogs near the applicant’s premises, and he was knocked to the ground by Stella who had escaped from a caravan where the applicant was living. Stella then attacked the man’s dogs and several people came to assist. The applicant attended and apparently said, ‘if anyone does anything to my dog I will kill them’, and subsequently the police were called. The applicant removed his dog in a car. Expiation notices were issued to the applicant in respect of this incident;[7]
·on 22 September 2023, two women were walking a dog near to the applicant’s premises. They heard the applicant call out ‘look out’, and then saw Stella approach, jump on their dog and latch onto its stomach. The applicant attended and pulled Stella away, apologised and gave his address to the women. The injured dog was treated by a vet. An expiation notice was issued to the applicant in respect of the incident, and a Control (Dangerous Dog) Order was issued to the applicant on 8 January 2024.[8]
[5] The warning was dated 10 July 2018 and advised the applicant that any further breaches of the Act may result in control orders and/or expiations being issued.
[6] Pursuant to s 50(4) of the Act, such an order requires that: (a) if it has not already been, the dog be microchipped; (b) the dog, while on the premises of which the person who is responsible for the control of the dog is the occupier, to be kept indoors or for the premises to be fenced so as to prevent the dog escaping from the premises; (c) the dog, at all times, to wear a collar that complies with the requirements of the Board (except while the dog is suffering from injury, disease or sickness to the extent that wearing the collar would be injurious to the dog’s health); (d) the dog, except while confined to premises of which the person who is responsible for the control of the dog is the occupier—(i) to have a muzzle securely fixed on its mouth capable of preventing it from biting any person or animal; and (ii) to be under the effective control of a person by means of physical restraint; and (da) the dog or the person or both to undertake such approved training courses as may be specified in the order; and (e) all reasonable steps be taken to prevent the dog repeating the behaviour that gave rise to the order.
[7] The owner of the dogs, who provided a signed witness statement together with photographs, sustained minor injuries to his right wrist, left forearm, left elbow region and left upper arm.
[8] Pursuant to s 50(3) of the Act, such an order requires that: (a) if it has not already been, the dog is desexed; (b) if it has not already been, the dog be microchipped; (c) the dog, while on the premises of which the person who is responsible for the control of the dog is the occupier, be kept indoors or for the premises to be fenced so as to prevent the dog escaping from the premises; (d) the dog, at all times, wear a collar that complies with the requirements of the Board (except while the dog is suffering from injury, disease or sickness to the extent that wearing the collar would be injurious to the dog’s health); (e) the dog, except while confined to premises of which the person who is responsible for the control of the dog is the occupier—(i) have a muzzle securely fixed on its mouth capable of preventing it from biting any person or animal; and (ii) be under the effective control of a person by means of physical restraint; (f) warning signs (complying with the requirements of the Board) be prominently displayed at all entrances to premises where the dog is usually kept warning people that a dangerous dog is kept on the premises; (g) the dog or the person or both undertake such approved training courses as may be specified in the order; and (h) all reasonable steps be taken to prevent the dog repeating the behaviour that gave rise to the order.
In addition to the mandatory provisions of the order, the Control (Dangerous Dog) Order issued to the applicant required that the applicant attend an approved training course, which was to be commenced within 30 days and be completed within 120 days of the order. The mandatory content of such a course was to include muzzle training, desensitisation and counter-conditioning, environmental enrichment, behaviour adjustment training, dog body language and foundation behaviours.
Council rangers attended the applicant’s premises on 23 February 2024 and spoke to him. The visit was recorded by the bodycam of one of the rangers.
The footage shows the applicant acknowledged that he had received the Control (Dangerous Dog) Order and that he asked for another copy, which was provided. The applicant was told that Stella was to wear a prescribed collar at all times, that a muzzle was required, and that a sign needed to be displayed. The applicant said that Stella would not wear a muzzle, but a ranger said it was required. The applicant was agitated. The rangers told the applicant to read over the order and that it ‘sets out all the requirements’. The applicant agreed to place a sign on his property. The evidence suggests that the applicant did not himself instal a sign but, apparently, the Council later supplied such a sign.
Incident on 14 March 2024
According to the evidence relied upon by the respondent, on 14 March 2024, a woman who lives nearby to the applicant was walking her dog, a Golden Retriever named Lenny, on a lead, near the applicant’s premises. As she passed his house she heard a dog barking and ‘scratching at the screen door’ for a time. Shortly after this she heard the screen door had opened and the dog was now quiet. She saw Stella running quickly out of the driveway. The woman saw that Stella observed and ran straight at and attacked Lenny. Stella grabbed Lenny between his shoulder blades on his back. The woman then noticed the applicant coming out of the house yelling at Stella. He came over pretty quickly. Stella was not wearing a muzzle as required by the Control (Dangerous Dog) Order. The applicant prised Stella’s jaws open and got her away from the dog. He removed Stella, apologised to the woman and offered to pay any vet costs. The woman received minor scratches and her dog sustained grazing around the back of the neck between the shoulders. It appears that the applicant himself subsequently reported the incident to the Council.

The woman involved in the incident provided a signed witness statement which describes the events summarised above in greater detail, save that she misdescribes, because she presumably misheard, the dog’s name as ‘Bella’ rather than ‘Stella’. As I have recorded, she described having heard barking and scratching at the door for a time before the door opened and Stella ran out. She also describes the degree of effort apparently required by the applicant to prise Stella’s jaw open and then remove her from the situation and take her inside. Her statement mentions the presence, shortly after Stella had been restrained, of an ‘NDIS lady’.
In the aftermath, and in the course of discussions with the applicant, she recalls the applicant saying ‘please do not report this to Council? If you report it to the Council she will be put to sleep. She is my whole life’. She noticed the applicant had cuts on his hands from the attack. The applicant subsequently apologised profusely to the woman and her partner.
Another neighbour provided an unsigned witness statement describing his observations following the attack in terms that are generally consistent with the woman’s account. She spoke with the applicant and asked how the dog escaped. She reports the applicant saying, ‘[t]he nurse was coming for my dad’ and ‘[t]he screen door was unlocked and she must have pushed through’. She also referred to the presence of a nurse.
An officer of the Council swore an affidavit summarising the alleged earlier incidents and annexing a veterinary report in respect of Lenny regarding the 14 March 2024 incident and the statement of Lenny’s owner. That affidavit was evidently in support of an application for inspection pursuant to s 25D(1)(b) of the Act. A warrant was issued under that provision to enter and inspect the premises.
The evidence before the Tribunal included transcripts (and MP4 or video recordings) of interviews between Council officers and the applicant at his premises on 15 March 2024 and 21 March 2024.
On 15 March 2024, in the course of the interview or exchange conducted following the provision of a caution on 15 March 2024, the applicant said that:
I think she might have jumped on the handle, because I normally have it locked, but cause Dad’s RDNS nurses were due, and I thought I’d better unlock the door and Stella ran, jumped up on the door, must of opened the door, ran out, ran down the street, I was on her tail, and attacked the dog from next door, two houses up and out of the front of their house. I grabbed Stella straight away, got her off. There was no, no, no injury to the dog whatsoever, except for a tiny little scratch on the back of her neck.
He explained that he is generally able to get Stella to release another dog by putting his hand in her mouth.
The applicant stated that he nearly always otherwise keeps the door locked. He explained that the screen door has a latch on it and ‘ninety nine point nine percent of the time I keep that door locked so no one can walk in’. He explained that on this occasion he had the front door open because it had been raining and he wanted to let the breeze through and the screen was not latched because he had been anticipating the arrival of RDNS nurses. Later in the interview he stated that ‘[n]ow I don’t know and I presume its shut properly and she jumped on the thing’, and made reference to the ‘compression thing on the top’ of the screen door which means that it ‘normally shuts’.
On 21 March 2024, the Council’s ranger coordinator attended the applicant’s residence and asked to inspect Stella. Subsequently, he stated that he would have to seize Stella. The applicant was distressed and resistant, initially saying they would have to shoot him, and he repeatedly said, ‘you are not taking my dog’. It was explained that Council had an intention to issue a Prohibition Order which ‘means you are not allowed to own a dog for five more years’. The applicant was told he had seven days to put a submission in writing. He inquired whether, in the meantime, his brother could take his dog. He was told that was not possible and it would go to the RSPCA. The applicant complained that what had occurred was underhanded. In context his complaint was that he had been informed that they wanted to inspect Stella when they had in fact come to seize her. He explained that it was not Stella’s fault and that she had been injured as a puppy.
The applicant also met with Mr Jeffery on 25 March 2024, after having visited Stella at the RSPCA Lonsdale.
As has been noted, the Prohibition Order was issued the following day, on 26 March 2024, and was provided to the applicant under cover of a letter of that date. That letter referred to submissions provided by the applicant on 21 March 2024. This must have been a reference to things said by the applicant in the course of the discussion on 21 March 2024, referred to above. There is no evidence of any written submission having been provided to the respondent prior to its decision being made.
Course of proceedings in the Tribunal
At an initial directions hearing on 10 May 2024, the presiding member noted that a written submission had been received from the applicant and two brief medical reports. The presiding member noted that the Council was ‘steadfast’ in its position that the dog could not be returned to the applicant and was required to be euthanised. The applicant said it was likewise his steadfast view that the dog must not be destroyed. The presiding member was satisfied the matter should be referred for a compulsory conference.[9]
[9] The order refers to s 49 of the SACAT Act but this appears to be an error. Section 50 is the relevant section concerned with compulsory conferences.
That conference evidently occurred on 11 June 2024 and was unsuccessful. Procedural directions were made requiring the applicant to identify the errors that he had contended were revealed in the reasons of the respondent and the documents contained in the book of documents. At a subsequent hearing on 21 June 2024 the applicant indicated he was anxious for the matter to proceed to a full hearing as soon as possible. The matter was set down for a full hearing on 10 July 2024. Ultimately, it proceeded on 26 July 2024.
Hearing on 26 July 2024
It is apparent from the transcript of the hearing on 26 July 2024 that the Tribunal had before it a book of documents containing materials relating to the six relevant incidents, signed versions of a number of witness statements that had been included in that book in unsigned form, the short handwritten submission provided by the applicant earlier in the proceedings and a further six page handwritten document addressed to the respondent’s statement of reasons.
In his written submissions, the applicant stated variously that he was aware of the Control (Menacing Dog) Order but had not been aware of the Control (Dangerous Dog) Order; that he had always tried to contain and keep Stella secure and would take her out for walks early in the morning to avoid contact with other dogs; that she had never wandered at large or roamed the streets unsupervised; that every time she had escaped the home he had been right behind her and regained control in seconds; that he reported the last incident involving the Golden Retriever himself to the Council; that he has since moved from his parents’ home to a more suitable and secure location where people would not be coming and going to provide medical attention; that he had made inquiries with RSPCA about appropriate training; and that the ultimate decision was excessive, unfair and cruel. He stated that the mental and psychological toll of the matter on him had been immense.[10]
[10] A letter from the applicant’s general practitioner dated 6 May 2024 indicated that he has a previous history of mental health problems, with depression, anxiety and drug/alcohol issues. It stated he was suffering an acute deterioration in his mental health following the removal of his dog, which had otherwise been a source of comfort and routine.
In his submission concerning the reasons for decision of the respondent, the applicant: complained about the circumstances of the occasion on which Stella was seized; contended that the incident on 11 September 2018 did not involve Stella but another similar looking dog, Boris, which had belonged to his brother; stated he had no recollection of the paperwork relating to the Control (Dangerous Dog) Order; and made various submissions relating to the six incidents, generally to the effect that the accounts were exaggerated, particularly in relation to the duration of incidents involving Stella.
At the commencement of the hearing, the senior member gave the applicant an opportunity to explain why the respondent’s decision was not the correct or preferable decision. The applicant appeared to suggest it had been the second, rather than the third, incident, that had involved his brother’s dog, although he later repeated that it was the third incident.
Focusing upon the 14 March 2024 incident, the applicant said:
The last one wasn’t my fault, because what had happened, my dad’s a diabetic, and the RDNS nurse had left the door ajar at the front. Because his blood sugar was low, I was busy getting him something to eat to bring his sugar back. The door should have been shut properly and it wasn’t shut properly by the RDNS nurse.
In respect of his non-compliance with the requirements of the Control (Dangerous Dog) Order, the applicant said:
I tried to comply as well as I could. She’s always had a collar on. The only thing is, when I take her out, she hasn’t had a muzzle on, but none of these incidents have occurred when she’s out. I tried to do the muzzle thing with her, but she kept banging her head against the wall. I had Ranger Alma come down and try to help me put the muzzle on and she even gave up on it.
…
I never knew there was training available. No, I’d asked previously about training and no one from the Council at all told me anything about training. Never suggested anywhere, never even said that there was training available, and they never said that training was a criterion of the menacing dog order or the dangerous dog order, which I have no recollection of receiving.
Counsel for the respondent took the Tribunal through the relevant material with a view to demonstrating that the two criteria required before a Prohibition Order could be made were satisfied.
In respect of the question of proof of the provision of the Control (Dangerous Dog) Order, this was demonstrated by reference to video footage of an attendance at the applicant’s premises on 23 February 2024 at which he was handed a copy of the order and aspects of it were explained to him. In respect of the third incident, the respondent called evidence from a Council officer to the effect that the dog that the applicant was suggesting had been involved had been euthanised prior to that incident.
Counsel for the respondent submitted that there was plainly power to make the order; the question was whether it was appropriate in the circumstances to make such an order. By reference to the applicant’s failure to comply with orders and requirements in the past, and having regard to considerations of community safety, the respondent submitted that it was appropriate.
In respect of the appropriateness of any Prohibition Order requiring Stella’s destruction, rather than some other form of disposal, the following exchange occurred:
[Respondent’s counsel]: … Your Honour can see from section 59A(2)(b)(i) that the Act allows for two possibilities. One, the dog to be destroyed, or disposed of in a particular manner. The dog’s presently at the RSPCA. It’s the subject of a- I accept there’s no evidence about this, but it’s the subject of a dangerous dog order. There are significant difficulties with re-homing dogs that are subject to dangerous dog orders. So, I think it’s important to emphasise that’s the context, that’s the reason that we’re here. It’s a prohibition order, not a destruction order.
[Applicant]: If it’s such big thing with the prohibition order and not the destruction of the dog, may [I] ask why they willing to negotiate the prohibition order, but still not willing to negotiate the life of my dog. If it’s a prohibition order, then why are they willing to negotiate that, but still wanting to destruct the dog.
[Senior Member]: Well, I don’t think they are, are they?
[Applicant]: They are, yeah, yeah, yeah, I was given an opportunity a couple of times, where they said they would reduce the prohibition order, but they still wanted to destruct the dog.
[Counsel for the respondent]: There have been some without prejudice negotiations.
[Senior Member]: Yeah, of course, of course.
[Counsel for the respondent]: … which were to the effect of the Council was prepared to reduce the length of the prohibition order, but it was – the dog wasn’t to be returned.
[Senior Member]: So, even if …
[Applicant]: Which seems to me to be – sorry about the nervousness, but that seems to be, if it’s a prohibition order, that should be the main thing they’re focusing on. So, why reduce that and still want to destruct the dog? It seems they’re more focused on killing my dog than they are on the prohibition order.
[Senior Member]: Well, I think what they’re doing- the prohibition order means you can’t have a dog.
[Applicant]: Have a dog, yeah. Yep, yep.
[Senior Member]: Yeah. So, something- since you’ve got a dog at the moment …
[Applicant]: But they’re willing to negotiate the length of the prohibition order …
[Senior Member]: Yeah.
[Applicant]: … but they still want to destruct the dog, kill my dog.
[Senior Member]: Well, I guess the issue is that something’s got to happen to the dog if you’re not allowed to own it. You know, if you can’t have the dog, what’s going to happen to it?
[Applicant]: Well, see, I just don’t understand why I can’t have the dog …
[Senior Member]: Well …
[Applicant]: … and why they’re going to kill it. She’s done nothing to deserve to be killed …
It is apparent from the transcript that as the hearing progressed, the applicant became emotional and, at times, difficult, during the course of the hearing. No criticism can be or is made of counsel for the respondent or the senior member. However, it is apparent that the applicant was distressed.
In the course of Mr Jeffery’s evidence, when it was proposed to show the footage relating to the attendance of Council officers on 23 February 2024, the applicant requested an adjournment to obtain legal representation.
He said that he was ‘overwhelmed by all these lawyers’ and ‘it’s getting out of control and I can’t argue this because I’m in such an emotional wreck’. He complained that ‘[y]ou’re not even helping me by letting me get legal representation, you just let me get screwed over’. Counsel for the respondent indicated that he was conscious of what the applicant was saying about wanting legal representation and observed that it was obviously imperative that he was afforded procedural fairness. Counsel observed that the applicant was expressing concern about his ability, due to emotion, to properly advocate his case, but indicated that it was a matter for the Tribunal.
The Tribunal did not immediately rule on the adjournment application. The footage was shown. The applicant asked a small number of essentially irrelevant questions of Mr Jeffery and then another Council officer, Ms Croft, was called. The applicant queried why some witnesses were being ‘sworn in’. Later, after he was seeking to cross-examine Ms Croft about the topic of whether one of the earlier incidents had involved Boris, rather than Stella, he again stated that he needed legal representation because he had ‘no chance’.
He then suggested that perhaps it was the second incident that he had been thinking involved a different dog, and repeated:
And all I ask is, can we adjourn this so I can get legal representation, or can we get – or can we just finish this so I can go home because I can’t – I can’t deal with this anymore. I just want my dog. I just want my dog. She doesn’t deserve to die. I’ve tried everything in my power to keep her safe. I can’t do this anymore. I need legal representation because this is way above my head.
At that point, the senior member indicated she was willing to adjourn the matter for the applicant to get legal representation. Unfortunately, the applicant then stated:
Or can we make a decision- can you make a decision and then I’ll take it to the Supreme Court.
The senior member again asked the applicant what he wanted to do and he said:
If you want to make a decision, and yeah, and then if it’s a negative decision, then I need some time for a stay of execution so I can organise …
…
Okay I’m ready for a decision.
…
No, no, let’s get it over and done with. Let’s get it over and done with.
There were no further substantive submissions made and the senior member reserved her decision.
Reasons of the Tribunal
The Reasons summarise the applicant’s case (Reasons [5]-[12]), the respondent’s case (Reasons [17]-[26]) and the evidence (Reasons [27]-[37]) before setting out the Tribunal’s findings and conclusions, under the heading ‘Consideration by the Tribunal’ (Reasons [38]-[75]).
In respect of the question of the adjournment application initially made by the applicant during the hearing, the Reasons state:
[13] Part way through the hearing Mr Wilson told the Tribunal he wanted the matter adjourned so he could obtain legal advice, as he felt disadvantaged as the Council was legally represented at the hearing.
[14]I did not grant this request. The issue of legal representation had been raised at directions hearings prior to the referral of this matter to a full hearing, and there was also a conciliation conference conducted prior to this full hearing. I am satisfied Mr Wilson has had the opportunity to consider obtaining legal representation prior to this hearing.
[15]In addition however, I noted that Mr Wilson had also expressed considerable concern at the length of time Stella had been detained by the Council and the cost of this detention which was billed to him. It seemed to me likely that if this matter was adjourned at this stage of the proceedings, necessitating a further listing of the full hearing after Mr Wilson obtained and instructed legal representation, it was likely there would be quite a considerable further delay in determining this application, [necessitating] additional costs to Mr Wilson.
[16]Mr Henderson for the Council acknowledged Mr Wilson’s application and did not oppose it, but I am satisfied an adjournment at this stage of the proceedings was not appropriate, and I am satisfied Mr Wilson was not denied procedural fairness by this decision.
Turning to substantive matters, the Tribunal found that the statutory preconditions to the making of a Prohibition Order were established. It found that at the relevant time Stella was subject to a Control (Dangerous Dog) Order and that the applicant had been informed of this (Reasons [47]).
In relation to the possible application of s 59A(4) of the Act, the Tribunal referred to the applicant’s statement that whilst he normally locks the front door, on this occasion, Stella had got out because a visitor had not properly secured the front door and he had been distracted by his father’s illness. The Tribunal found that:
[46]This explanation does not establish the “defence” set out in s 59A(4)(a) of the Act. While I do accept that Mr Wilson did not intend the attack to occur, this assertion by Mr Wilson does not demonstrate that he had taken “all reasonable steps to avoid the occurrence of the event”. “All reasonable steps” would include ensuring that the door was appropriately secured at all times, and by his own admission to the Council he had not locked the door on this occasion; and in his evidence to the Tribunal he was distracted and did not pay attention to whether the door was properly secured, or what the dog was doing. Mr Wilson was aware of Stella’s propensity to escape, especially if there was another dog passing by, and he was also aware of the conditions of the Control (Dangerous Dog) Order, which required him to ensure that Stella had “no unrestricted access to the front of any property [she] may be housed or visiting”.

In relation to the question whether Stella’s attack on the Golden Retriever was in circumstances that amounted to an offence against the Act, the Tribunal found that:
[49]The Council submits, and I accept, that at the time of the attack on 14 March 2024 Stella was wandering at large, not in Mr Wilson’s control, was not wearing a prescribed collar or muzzle as required by the Control (Dangerous Dog) Order, and was not registered. All these matters, in addition to the attack itself, constitute offences under the Act.
[50] Mr Wilson did not deny any of these matters.
The Tribunal indicated that in those circumstances, it was satisfied that the requirements of s 59A(3) were established and accordingly that the decision to issue the Prohibition Order was the ‘correct decision’, made in accordance with the terms of the Act (Reasons [51]).
The Tribunal then turned to consider whether it was the ‘preferable decision’, noting in that respect that even where the criteria specified in s 59A(3) are met, a Council has a discretion whether to make a Prohibition Order and that, if it does, it has to determine the period for which the person is prohibited from acquiring or being responsible for a dog and whether the dogs owned by the person or for which they are responsible are to be destroyed or disposed of in a specified manner (Reasons [52]-[58]).
In that context, the Tribunal noted that it was required to give appropriate weight to the decision of the original decision-maker (Reasons [54]).[11]
[11] SACAT Act s 34(4).
The Tribunal reasoned that the preferable decision was one which addressed the objects of the Act, supporting responsible dog ownership and effective management of dogs (Reasons [59]). The Tribunal considered that the circumstances leading to the decision being made were centrally important and this included the six incidents that had occurred, the fact that Stella had been unregistered on a number of occasions, the fact that the applicant had not complied with the Control (Dangerous Dog) Order by failing to make training arrangements, not ensuring that she wore the prescribed collar and not using the prescribed muzzle (Reasons [60]). The Tribunal found that Stella was involved in each of the six incidents alleged and noted that even if one of the incidents had involved a different dog there were still five other attacks on dogs when she was at large from the applicant’s premises (Reasons [61]-[62]).
The Tribunal considered the respondent’s contention that these matters made clear that the applicant could not responsibly manage a dog with a demonstrated propensity to escape and attack other dogs in the vicinity (Reasons [63]). It then considered the applicant’s assurance that he would do anything to keep Stella, including the required training, but the Tribunal did not have confidence in his commitment to training or more responsible control of Stella or any other dog (Reasons [64]).
The Tribunal’s reasons then concluded as follows:
[65] I accept Mr Wilson is very attached to Stella, and she is important to him, and I note the doctor’s account of the value of the dog for Mr Wilson’s health. I accept that with Mr Wilson, Stella is, as he described, a loving dog with a heart of gold. It was clear at the hearing that Mr Wilson was extremely distressed at the prospect of losing Stella. However, this is not the character that Stella displays to other dogs and their owners passing by the house.
[66]It is not tolerable that the public generally and Mr Wilson’s neighbours in particular continue to be subject to Stella’s behaviour in escaping Mr Wilson’s premises and attacking other dogs, causing injury and distress. The evidence establishes that Mr Wilson does not or cannot manage Stella in a manner which avoids this risk. Stella’s conduct has caused injury and distress to dogs and their owners on six separate occasions, and Mr Wilson has not complied with the requirements of the two earlier orders issued against him. The evidence is that Stella has caused injuries necessitating medical treatment to several dogs, and I accept that their owners would have been significantly distressed by what are reported as violent, unprovoked and distressing attacks by Stella. These attacks have continued even after the issue of a Menacing Dog Order and a Dangerous Dog Order in respect of Stella. Under these circumstances it is reasonable for the Council to consider other means of ensuring public safety and responsible dog ownership, as required by the Act.
[67]It is a very serious matter for the Council to make a Prohibition Order, but in circumstances where Stella has on several occasions escaped from Mr Wilson’s control, and engaged in unprovoked attacks on members of the public causing injury to other dogs, and undoubtedly significant distress to the owners of those dogs, to achieve the purposes of the Act and to ensure public safety, it is necessary to put in place orders that will address the risk to the public and other animals. Other less draconian orders available to the Council to achieve these ends have been issued, but have not been successful, and Mr Wilson has not complied with them. Such a lesser order has not been successful in achieving the requirements of the Act to ensure public safety and responsible dog ownership.
[68] I note the comments of the District Court in Fisk v City of Tea Tree Gully [2011] SADC 82, [55] - [56]:
The public must be assured that effective action will be taken to protect persons and animals and to bring home to the applicant and other dog owners the importance of responsible dog management. Public confidence is maintained by ensuring that irresponsible dog management is met with a strong and meaningful sanction. The sanction is not in any sense imposed as a penalty or punishment but rather to achieve the public purpose of the Act.
[69] I am satisfied, taking the evidence before me of the conduct of Mr Wilson and Stella over the past several years, and the purposes of the Act, that the decision to make the Prohibition Order was both correct and preferable.
[70] The remaining aspect of the decision is the exercise of discretion in terms of the length of the period specified in the Order (5 years); and the consequences of the Order for Stella.
[71] Mr Wilson did not make any submissions concerning the period of the order. His primary concern was the aspect of the Order requiring Stella to be destroyed.
[72] Section 59A(2)(b) of the Act requires, as a consequence of the making of a Prohibition Order, that any dog owned by the person in relation to whom the Prohibition Order is issued is required to be destroyed or otherwise disposed of. The person cannot own or be responsible for a dog within his or her control, so any dog presently owned or in the control; of the person must be removed. Once a Prohibition Order is issued against Mr Wilson, Stella cannot remain with him.
[73] At the hearing Mr Henderson submitted that Stella has been in the care of the RSPCA since she was removed from Mr Wilson on 21 March 2024. She has been subject to a dangerous Dog Order since January 2024. He submitted that after this period of time Stella was not suitable to be rehomed, and under these circumstances there was no alternative means of disposing of her. Accordingly, the decision made in the Prohibition Order of 21 March 2024, that she be destroyed, remained the preferable decision.
[74] I accept this submission. Mr Wilson strongly submitted that Stella not be destroyed, and emphasised how important she was to him and that she “did not deserve to die”, but his submission was that she be returned to him, rather than rehomed or dealt with in some other manner. However, once a Prohibition Order has been affirmed, this is not an option under the Act. Having concluded that the making of the Prohibition Order constitutes a correct and preferable decision, Stella cannot be returned to Mr Wilson.
[75] Accordingly, I am satisfied the decision made by the Council on 21 March 2021 is both the correct and preferable decision, and should be affirmed. …
Accordingly, the Tribunal affirmed the decision under review. It determined, however, to stay the operation of the decision until the expiration of the period within which an appeal to the Supreme Court may be made.
The appeal to this Court
Unfortunately, the applicant did not file his application for leave to appeal until 2 September 2024, being a date very shortly before the expiry of the appeal period. At a directions hearing in this matter on 4 September 2024, I granted a stay of that part of the order affirmed on 5 August 2024 which required that Stella be destroyed. I determined that the question of leave to appeal and the appeal proper would be heard and determined together later that month.
The grounds of appeal were as follows.
(1)The penalty for the offences is extremely excessive, cruel, immoral and totally unjustified.
(2)Statements and descriptions of Stella’s offences are grossly exaggerated and in many of the cases completely false.
(3)I was not granted a fair and impartial hearing.
(4)The [respondent] acted towards myself in an unprofessional, inappropriate if not an illegal manner.
The orders sought on the proposed appeal are:
(1)For both the destruction order of Stella and the prohibition [order] against myself be overturned and dismissed.
(2)For Stella to be returned to me.
The applicant did not file any written submissions within the time frame provided by the Uniform Civil Rules 2020 (SA), or at all.
Nothing could have been clearer during the hearing of this matter, in the course of which the applicant became emotional, than that this matter is extremely important to the applicant, who evidently has a number of challenges in his life. As he put it during the hearing:
I love her more than anything in the world. She’s been my constant companion and she helped me cope through many hard times. Without her, I’d be absolutely devastated and have no purpose to carry on. She’s all I have. She’s my everything and without the comfort and companionship she provides, I doubt if I would be here today.
…
I beg the court to please give myself and Stella another chance. She doesn’t deserve to die.
I’ve thought long and hard about what’s happened over the last eight months that we’ve been apart, and have learnt a very valuable and serious lesson. I would never put myself or Stella through this ever again.
I ask the court to please grant clemency and leave myself and Stella’s lives at your mercy.
Genuine and impactful as that statement was, I must consider this matter by reference to the relevant material and the legislative provisions, with a view to deciding whether, in the first instance, the applicant should be granted leave to appeal[12] and, if so, whether there is a basis to reach a conclusion that differs from that reached by the Tribunal.
[12] Leave to appeal is required by reason of s 71(2) of the SACAT Act.
Leave to appeal and nature of appeal
In considering whether leave to appeal should be granted, the ordinary principles governing leave to appeal in civil appeals apply.[13] The overriding principle is the interests of justice, having regard to whether the appeal is reasonably arguable, whether it raises any matter of principle or general importance, and whether the subject matter involves a matter of sufficient substance. Further, where the proposed appeal relates to a matter involving an application of the Tribunal’s specialist knowledge, that may be a matter militating against a grant of leave.[14]
[13] Jackson v Lepp Investments Pty Ltd [2016] SASC 62 at [19] (Parker J), quoted (with approval) in Pix v South Australian Housing Trust [2016] SASCFC 57 at [3] (Kourakis CJ, Bampton and Doyle JJ agreeing); Khoo v Bartholomaeus [2020] SASCFC 122 at [10] (Kelly J, Livesey and Bleby JJ agreeing); Fletcher v Australian Health Practitioner Regulation Agency [2023] SASCA 36 at [16] (Livesey P and Lovell JA).
[14] Henderson v South Australian Housing Trust [2024] SASCA 55 at [40] (Lovell and Doyle JJA, Kimber AJA), citing (inter alia) Pix v South Australian Housing Trust (2016) 125 SASR 10 at [3], [6] (Kourakis CJ, Bampton and Doyle JJ agreeing).
In considering whether grounds of appeal are reasonably arguable, it is relevant to consider the nature of the Court’s function on appeal if leave is granted. In the context of appeals by way of rehearing from a decision of the Tribunal, a distinction is drawn between a discretionary decision and a non-discretionary decision.[15]
[15] Shah (a pseudonym) v Medical Board of Australia [2022] SASC 140 at [202] (Blue J).
If the decision is properly characterised as discretionary, the principles in House v The King[16] apply, with the result that the appellant needs to demonstrate that there was a miscarriage in the exercise of the discretion, either in the manner in which, or reasoning by which, it was exercised (a process error) or in the outcome of its exercise (an outcome error).[17]
[16] (1936) 55 CLR 499.
[17] Aldridge v The Registrar of Firearms [2022] SASC 5 at [54] (Parker J); Henderson v South Australian Housing Trust [2024] SASCA 55 at [37] (Lovell and Doyle JJA, Kimber AJA).
If, however, the decision involved the determination of an issue of fact, law or mixed fact and law (including an evaluative judgment), as opposed to the exercise of discretion, the appellant merely needs to establish error in the manner described by the High Court in Warren v Coombes[18] and, in a case where the matter does not turn on the credibility of witnesses who gave oral evidence, the court on appeal may be in as good a position as the Tribunal to decide disputed issues.[19]
[18] (1979) 142 CLR 531 at 551-552 (Gibbs ACJ, Jacobs and Murphy JJ).
[19] Shah (a pseudonym) v Medical Board of Australia [2022] SASC 140 at [203] (Blue J).
Some decisions are difficult to characterise for the purposes of ascertaining whether the so-called ‘correctness standard’ or what Gageler J referred to in Minister for Immigration & Border Protection v SZVFM[20] as the ‘deferential standard’ applies on appeal. As he said:[21]
The line is not drawn by reference to whether the primary judge’s process of reasoning to reach a conclusion can be characterised as evaluative or is on a topic on which judicial minds might reasonably differ. The line is drawn by reference to whether the legal criterion applied or purportedly applied by the primary judge to reach the conclusion demands a unique outcome, in which case the correctness standard applies, or tolerates a range of outcomes, in which case the House v R standard applies. The resultant line is not bright; but it is tolerably clear and workable.
[20] (2018) 264 CLR 541 at [48].
[21] (2018) 264 CLR 541 at [49].
In GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore,[22] Kiefel CJ, Gageler and Jagot JJ said that:[23]
The reasoning in House v The King applies to judicial decisions involving an exercise of discretion. It has been said that the concept of a “discretion” is “apt to create a legal category of indeterminate reference”, but the presently relevant essential characteristic of a discretionary judicial decision is that it is a decision where more than one answer is legally open. In Norbis v Norbis, for example, the power of a court to make an order altering the interests of parties to a marriage was characterised as a judicial discretion because the decision called for “value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right”. The line separating discretionary decisions (in which appellate review is confined to the House v The King standard) and other decisions (in which the “correctness standard” applies) was identified as that between questions lending “themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions” in which event “it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance”, and questions to which there is but one legally permissible answer, even if that answer involves a value judgment.
(citations omitted)
[22] (2023) 97 ALJR 857.
[23] (2023) 97 ALJR 857 at [16].
In the case of the decision to make a Prohibition Order, such an order cannot be made unless the criteria in sub-s 59A(3) are met. In respect of that question, the correctness standard must apply on appeal. However, it was common ground that a council is not required to make an order if those criteria are met. If a council makes an order, it must decide the length of any prohibition and whether the order should provide for a form of disposal of the dog instead of destruction.
The respondent ultimately submitted that the decisions whether and in what form the order should be made were discretionary such that the deferential standard applies on appeal.
I would accept that submission.
First, whilst it is relevant and permissible to have regard to the personal impact upon the person (and the dog) of the order proposed, what is involved in the making and formulation of Prohibition Order is not punishment per se but the imposition of a sanction that achieves the public purposes of the Act both in respect of any immediate danger that would arise if the order were not imposed and in terms of maintaining public confidence by ensuring that irresponsible dog management is met with a meaningful sanction. In that respect, the protective nature of any sanction imposed has some affinity with the approach that informs the imposition of sanctions in professional disciplinary matters. It has been recognised that decisions to impose sanctions are, for appellate review purposes, very closely analogous to the imposition of a penalty, which as Blue J has observed, was the quintessential case for the application of the House v The King standard.[24] His Honour made that observation in the context of considering a passage in a judgment of Bleby J concerning the imposition of a sanction under the Health Practitioner Regulation National Law.[25]
[24] Shah (a pseudonym) v Medical Board of Australia [2022] SASC 140 at [217] (Blue J)
[25] Maroulis v Pscyhology Board of Australia [2021] SASC 16 at [33]. That decision was referred to and applied in Optometry Board of Australia v Bhoola [2021] SASC 51 at [42]-[43] (Bochner AJ).
Secondly, whilst the decision whether and in what form to impose a Prohibition Order (assuming the criteria for making the order are satisfied) is plainly informed by and bounded by the purposes of the Act, the Act does not identify a single standard by reference to which such decisions are to be made,[26] making it difficult to say that a unique outcome is demanded. Certainly that is the case with respect to the duration and form of the order.
[26] Cf Minister for Primary Industries and Regional Development v Scali [2024] SASC 4 at [38]-[44] (Kimber J), in respect of the test of ‘exceptional circumstances’ in the context of the regulatory scheme of the Fisheries Management Act 2007 (SA).
Thirdly, whilst obviously not conclusive,[27] the Tribunal has characterised the decision-making involved as discretionary.[28]
[27] The principle associated with Bunning v Cross by which evidence is excluded has routinely been described as a ‘discretion’ but is more likely, by reference to the trend of relevant authority, to entail an evaluative exercise that attracts the correctness standard: see, eg, Young v The King [2024] SASCA 47 at [119]-[141] (Doyle JA, Kourakis CJ and David JA relevantly agreeing).
[28] See, eg, Selvanera v City of West Torrens [2018] SACAT 14 at [83].
Having said this, in case I am wrong, I will consider the matter by reference to the correctness standard in the alternative.

Because the applicant is self-represented (and was only able to articulate in relatively general terms the nature of his complaints on appeal) and, having regard to the obvious importance of this matter to him, I will consider for myself whether, although not precisely articulated or developed by him, there are arguable grounds upon which to complain either about the process before the Tribunal or the essential steps in its reasoning.
I do so mindful that, in order not to compromise the neutrality of the Court, and because the resources of the Court are limited, it is not generally appropriate to spend time ‘searching’ for arguable appeal grounds.[29] In this case, the notice of appeal, whilst general, essentially complains about the fairness of the process below and whether the Prohibition Order made was appropriate in all the circumstances. The legal and factual issues that relate to those matters are in a relatively narrow compass.
[29] Rebbeck v Housing SA [2024] SASCA 86 at [16]-[17] (Livesey ACJ).
Was the applicant denied procedural fairness by the Tribunal?
Having reviewed the transcript of the hearing, the first conceivable ground upon which it might be argued that the applicant was denied procedural fairness is that his application for an adjournment was not granted when it was first made.
The Tribunal in its reasons explained why an adjournment had not been granted. The reason was that the Tribunal considered that the question of legal representation had been raised at previous hearings, and the applicant had had a sufficient opportunity to consider obtaining advice. As well, the Tribunal considered that the applicant’s concern about the time Stella had already spent in detention (at a financial cost to him) was a reason militating against granting an adjournment which would entail considerable further delay.
In fact, as my earlier summary of the transcript reveals, there was a point at which the applicant was effectively offered an adjournment. He then declined it, although he equivocated before finally requesting the Tribunal to proceed to a decision.
In those circumstances, it is difficult to conclude that the applicant was denied procedural fairness. The only basis upon which that conclusion might be reached is if it were open to conclude that when the applicant finally requested the Tribunal to proceed to a decision, he was so distressed or confused that his request should not have been accepted as a true reflection of his position. I have carefully reflected on this question, because it is apparent from the transcript that the applicant was very distressed, as he was at points during the appeal hearing before me. The respondent’s counsel’s observations during the hearing before the Tribunal that he was anxious to ensure that the applicant was able properly to advocate his case also indicates that there was reason to question the applicant’s ability to effectively advance his own interests. In the end, however, in circumstances where delay entailed a daily ongoing cost to the applicant, I have concluded that there was no procedural unfairness in acting on the applicant’s request that, instead of adjourning, the Tribunal proceed to a decision.
The second conceivable ground on which the applicant might assert procedural unfairness is that the applicant, whilst given a fair opportunity to say whatever he wanted to say, or adduce whatever evidence he wanted to adduce, was not given more directed or targeted assistance by way of inviting him to address relevant factual or legal issues.
Perhaps the Tribunal might have explained that it would best advance the applicant’s case if he could adduce evidence or argument targeted towards:
·the precise timing of the escape of Stella through the screen door relative to the arrival or anticipated arrival of the nurse;
·whether the last incident should be seen as less culpable than the previous occasions with the result that the Tribunal should conclude that considerations of public protection including deterrence did not weigh heavily;
·whether, subject to the applicant and Stella residing in a house with less frequent visitations, public safety could be satisfactorily achieved without an order for destruction of the dog;
·whether, if a Prohibition Order was appropriate, the period of disqualification should be less than five years;
·whether there were identifiable and practically available alternatives to the destruction of Stella;
·whether, notwithstanding the general experience of the RSPCA about the difficulty in re-homing dogs subject to Control (Dangerous Dog) Orders, Stella was particularly suitable for training and re-homing.
Dealing with self-represented litigants can require the striking of a difficult balance. A court or tribunal should ensure that the litigant’s lack of legal representation does not compromise the fairness of the hearing by providing appropriate assistance where necessary – particularly in order to ensure that the proceeding is kept free from error or misunderstanding. However, the court or tribunal ought not conduct the case for the litigant, advise them, or otherwise detract from the neutrality of the court or tribunal so as to create a legitimate sense of grievance on the part of the other party.[30]
[30] See, eg, the discussion in Martincic v Ethnic Broadcasters Inc [2024] SASCA 33 at [21]-[24] (Livesey P), citing Gassy v The King [2023] SASCA 90 [33]-[37] (Livesey P, David JA and Stein AJA).
Considering the proceeding in the Tribunal as a whole, I consider that the applicant was given appropriate, albeit general, assistance in encouraging and facilitating the presentation by him of his arguments. To conclude that the Tribunal was required in effect to identify and guide the applicant as to the specific matters he should address, in order to best advance the broader contentions he was making, would impose an unrealistic burden on a busy Tribunal and risk detracting from the neutrality of the Tribunal’s role. It may also carry some risks. A court or tribunal will usually be unaware of the complete evidential and forensic landscape that might inform the choices litigants, including unrepresented litigants, make, and it should therefore be careful about being overly prescriptive in the identification of relevant matters about which evidence or submissions should be made. Fundamentally, as was said in Gassy v The King,[31] it remains for the parties to define the issues and to select the evidence and arguments on which they rely.
[31] [2023] SASCA 90 at [33] (Livesey P, David JA and Stein AJA).
Whilst it is reasonably arguable that there was a denial of procedural fairness to the applicant, such that leave to appeal should be granted on that issue, I have concluded on balance that the applicant was not denied procedural fairness.
I should add that even if I concluded that the Tribunal did not afford the applicant procedural fairness, the result would not necessarily be that the appeal would be allowed.
Were the criteria for a Prohibition Order met?
For the reasons given by the Tribunal, it is clear that Stella was subject to a Control (Dangerous Dog) Order at the time of the 14 March 2024 incident.
The only real questions are whether, on 14 March 2024:
·Stella attacked a dog ‘in circumstances that would constitute an offence against [the] Act’;[32] and
·the event comprising the attack ‘did not result from any failure on the part of the [applicant] to take all reasonable steps to avoid the occurrence of the event’.[33]
[32] Section 59A(3)(a) of the Act.
[33] Section 59A(4)(a) of the Act.
As has been noted, when the respondent made its decision, it referenced offences against ss 43(1), 44(2) and 55(1) of the Act. The Tribunal did not identify the offence provisions by reference to their sections, but its reference to Stella wandering at large is a reference to an offence against s 43, its reference to Stella not wearing a collar or muzzle nor being registered is a reference to an offence against s 55, and its reference to the attack itself is a reference to an offence against s 44(2).
Whilst the respondent and the Tribunal separately considered and rejected what might loosely be described as the ‘defence’ to the making of a Prohibition Order in s 59A(4), in neither forum was there a specific discussion of the elements of the offences set out in the three offence provisions referred to above, nor an explicit consideration of whether any defences were available.
Whether it was necessary and appropriate to do so is a different question. The view has been taken by the Tribunal in Aldridge v Whyalla City Council,[34] following observations made by Master Rice in Ash v City of Burnside,[35] that the same expression (‘in circumstances that would constitute an offence against this Act’) appearing in s 52(a)(i) of the Act does not require consideration to be given to whether a defence under s 86 of the Act would have been available in the event that the relevant offence had been the subject of a charge. The reasoning in Ash v City of Burnside also extended to the defences specified within s 43(2) and s 44(4), to which I will refer below. The Master considered that the language of the defence provisions was such that it only had application in criminal proceedings.
[34] [2020] SACAT 13 at [96]-[112].
[35] (Unreported, District Court of South Australia, Master Rice, 3 March 2016), referred to in Zhang v City of Burnside (Unreported, District Court of South Australia, Master Keith, 18 August 2017).
In Aldridge v Whyalla City Council, the Tribunal considered that the word ‘would’ (in the expression ‘in circumstances that would constitute an offence’) only had work to do if the decision in Ash v City of Burnside was correct, on the basis that its purpose is to identify circumstances which would, but for the availability of a statutory defence, amount to the constitution of an offence. A second reason given for adopting that view was that the words of the defence provisions suggest that they contemplate that the defence is available even though an ‘offence’ has occurred (that is, they do not deny the fact that an offence has occurred, rather, they avoid the consequences of that circumstance). Respectfully, that line of reasoning is in tension with the first. If the availability of a defence does not, in the scheme of the Act, alter the fact that there has been an ‘offence’, the proposed explanation for the word ‘would’ appears redundant.
Another explanation for the word ‘would’ is simply that it makes clear that the conclusion may be reached even though no offence has been charged (ie the purpose is to identify circumstances that would constitute an offence if an offence had been charged).
On that view, it is an open question whether regard should be had to statutory defences that might have been available. The question would be resolved having regard to a consideration of the entire text, structure and purpose of the Act.
There are considerations that support the conclusion that the defence provisions are intended to be ‘picked up’ by the reference to ‘circumstances that would constitute an offence against the Act’. They include the possible incongruity arising from the fact that s 47(1)(a), located in Division 1B of Part 5 of the Act, contemplates that in criminal proceedings the court may only make a destruction or disposal order in respect of a dog where the person is ‘found guilty’, which must entail a consideration of the relevant defences. It might be thought incongruous if a destruction order under s 51 (in Division 3 of Part 5) can be made by a council or the Board (and affirmed by the Tribunal) by reason of a conclusion, according to the civil standard, that circumstances have arisen which establish the elements of an offence, even though a defence would plainly be available.
Having said that, s 59A, unlike s 51, contains its own limitation, namely, the provision in s 59A(4) which, to a significant extent, does the same work as the statutory ‘defences’ considered in Aldridge v Whyalla City Council and Ash v City of Burnside.
These constructional questions were not the subject of submissions before me, nor have I been referred by the parties to authorities considering similar statutory formulae.[36] In those circumstances and because, as I explain below, the construction which favours the applicant does not ultimately avail him on this appeal, I refrain from expressing a concluded view about the question of construction.
[36] See, eg, Freedom of Information Act 1991 (SA) sch 1 cl 12, which provides that a document is exempt if it contains matter the disclosure of which ‘would constitute an offence against an Act’. The provision was considered in JJK v Police [2023] SASCA 73. See also Criminal Code 1899 (Qld) s 31(2) (‘this protection does not extend to an account or omission which would constitute the crime of murder, or an offence of which grievous bodily harm to the person of another, or an intention cause such harm, is an element …’), considered in Pickering v The Queen (2017) 260 CLR 151. Compare the observations (albeit in dissent) of Edelman J in Chiro v The Queen (2017) 260 CLR 425 at [99] in respect of an earlier form of an earlier form of s 50 of the Criminal Law Consolidation Act 1935 (SA) (which referred to an act which ‘could, if it were able to be properly particularised, be the subject of a charge of a sexual offence’).
In the case of s 43(1), the offence is constituted by proof that Stella was wandering at large. The section contains a defence provision which applies where the person charged proves that they ‘had taken all reasonable steps to prevent the dog from wandering at large’: s 43(2). The framing of the defence tends to confirm that there is no element of intention or negligence in the offence provision. It is an offence of strict liability, subject to statutory defences. (For the avoidance of doubt, I observe that it is most unlikely given the nature of the offence and the specific statutory defences provided for that any free-standing ‘act of a stranger’ defence applies.[37]) Whether the applicant had taken all reasonable steps to prevent Stella wandering at large resolves to the same question that arose under s 59A(4), to which I return below. Any failure distinctly to consider that defence therefore has no independent significance in this case.
[37] See, eg, Norcock v Bowey [1966] SASR 250, discussed in Allen v Chadwick (2015) 256 CLR 148 at [63]-[66] (French CJ, Kiefel, Bell, Keane and Gordon JJ).
In the case of s 44(2), a person who is responsible for the control of a dog is guilty of an offence if the dog attacks, harasses or chases or otherwise endangers the health of a person or an animal or bird owned by or in the charge of another person (whether or not actual injury is caused). Again, seemingly, there is no fault element that must be proved. There is a defence available if it is proved that the dog was, at the time of the offence, being genuinely used in the reasonable defence of a person or property, or for droving or removing an animal found trespassing: s 44(4). Plainly, that defence had no potential operation here.
In the case of s 55(1), if an order including a Control (Dangerous Dog) Order is contravened, the person who owns or is responsible for the control of a dog is guilty of an offence. It is a defence to a charge against that provision if it is proved that the defendant was not, at the time of the alleged offence, aware that the order was in force: s 55(2). Since the Tribunal otherwise found that the applicant was aware that Stella was subject to the Control (Dangerous Dog) Order, there was no need separately to address whether that defence was made out. It may be that the Tribunal did not resolve whether the applicant was aware of the requirements stipulated in the order, but I do not consider that a failure to be aware of the content or meaning of the order is a basis for making out the defence. The issue is whether the person is aware of the fact that the order which has been contravened was in force.
The order was contravened because: the premises were not fenced; Stella had not been kept indoors; Stella was not wearing an approved collar; Stella was, whilst not confined to the premises, not wearing a muzzle and was not under the physical restraint of the applicant; and the applicant had not arranged training of Stella. It may be debated whether, within the meaning of s 59A(3)(a), Stella attacked the Golden Retriever ‘in circumstances that would constitute an offence against’ s 55(2) by reference to each and every contravention. Focusing, for example, on the failure to arrange training, it is not clear to me that it could be concluded that the Stella attacked the Golden Retriever in circumstances that would constitute an offence against s 55(2) for that reason. But since one of the failures to comply with the order related to the non-confining and non-restraining of Stella, the requisite connection was able to be drawn.
Turning back to the reasonable steps provision in s 59A(4), the question was whether the event did not result from any failure on the part of the applicant to take all reasonable steps to avoid its occurrence. Two observations may be made about that provision. First, it involves a causal inquiry, albeit one about the causal effect of an omission, which requires a past hypothetical to be posited. Secondly, it is cast in terms which place the persuasive and evidential onus on the dog owner.
The Tribunal reasoned that reasonable steps to avoid the occurrence of the event included ensuring that the door was appropriately secured at all times.
I am not convinced that it would be reasonable to require the door to be secured at all times. There must be circumstances where practical necessity,[38] or possibly where there is reasonably believed to be decreased risk of escape by those means, would have the consequence that the failure to secure the front door would not be a failure to take all reasonable steps. What amounts to securing a door must depend on the nature and size of the dog.
[38] Such as where the door is opened to permit arrivals and departures.
It will be noted that the applicant’s account in March 2024 was that Stella must have jumped on the handle and been able to escape because the screen door was unlocked, he having unlocked it because the nurses were due. During the Tribunal hearing, the applicant appeared to suggest that the nurse had been and had left the door ajar.
The first account is more likely to be correct because it is more consistent with the witness’ account of having heard Stella scratching at the door for a little while before it opened. On that hypothesis, the real question here is was whether having the screen door closed, but not locked or latched, amounted to the taking of all reasonable steps to prevent Stella’s escape. In the case of many dogs, I think it would. The difficulty for the applicant is that on his own evidence, he generally locked or latched the door, which suggests he was aware of Stella’s ability to open the door. Given Stella’s history of attacks by escape from premises, I consider that locking or latching the door was reasonably required here. I do not consider that the applicant discharged his onus of demonstrating he had done everything that was reasonable in that regard.
On the alternative hypothesis that the nurse left the door ajar, the applicant would have failed to take all reasonable steps unless he took appropriate steps to instruct her about, or supervise, the latching or locking of the door on entry and exit.
Further, and in any event, I would conclude that reasonable steps to avoid the attack would also have included arranging training for Stella. That was not just a sensible and reasonable course to take, it was required by the Control (Dangerous Dog) Order. It is difficult to know whether, had the training been undertaken, the attack would not have occurred. But the onus was on the applicant to show that the event did not result from a failure including a failure to undertake required training. I am not persuaded he discharged that onus.

The same or very similar analysis would apply if, contrary to the approach taken in the decisions to which I earlier referred, it is appropriate to consider the availability of a defence under s 86. In that context, the defendant must prove that the offence did not result from any failure on the part of the defendant to take ‘reasonable care’ to avoid the commission of the offence. That differs slightly from the language of ‘all reasonable steps’ in s 59A(4). The difference might be relevant in some cases; here I do not see that it is.
For these reasons, whilst contentions about these issues are reasonably arguable, they ultimately fail.
Was the decision to make the Prohibition Order correct and preferable?
As the Tribunal correctly identified, the fact that the criteria for making the order were established does not entail that the decision to make a Prohibition Order was the preferable decision, nor that the duration or destruction requirement was the preferable form of order.
It may be that in some cases those three matters (whether to make the order, for what duration, and the appropriate order to be made with respect to the dogs in the person’s possession) ought to be considered together, rather than strictly sequentially or distinctly,[39] but for convenience, I will address them in turn.
[39] Given that a Prohibition Order requires that each dog for which the person is responsible must be destroyed or otherwise disposed of, in a case in which some other form of disposal is not practicable, this may bring into more sharp focus the question whether it is appropriate for the Prohibition Order to be made at all in a given case, particularly if one or more of the dogs that would be affected has not been involved in serious or repeated attacks and if the impact upon the owner of the destruction of the dog may be even more pronounced than may be expected in other circumstances.
Decision to make an order
In deciding whether to impose a Prohibition Order in this case, the Tribunal recognised that there were a number of factors to be brought to bear. Those included the impact of making the order on the applicant, and Stella, but they needed to be considered in the context of the inefficacy of previous less drastic measures and the significant distress caused to the owners of dogs attacked by Stella on five, if not six, occasions, and the impact of those attacks on the dogs themselves. It was also appropriate to have regard to the applicant’s response to previous orders served upon him.
The Tribunal’s reasoning at Reasons [65]-[69] appears to me to involve a consideration of the relevant considerations and does not reveal that significance has been attached to any irrelevant considerations. I discern no error of principle that would justify interfering with the decision to impose a Prohibition Order if the ‘deferential standard’ applies.
Even if the ‘correctness standard’ applies, I am not persuaded that the Tribunal was wrong in considering that the decision to make a Prohibition Order was, having regard to the statutory framework in which it was required to make its assessment of the issue, both ‘correct’ and ‘preferable’.
I should add at this point that shortly prior to the hearing of the appeal, the respondent filed and, at the hearing, sought permission to rely upon, two further affidavits which it contended were relevant to the question whether a Prohibition Order against the applicant was appropriate.
In his affidavit of 25 September 2024,[40] Mr Jeffery describes (and annexes evidence of the content of) a telephone call made to him on 2 September 2024 in which the applicant spoke aggressively and abusively towards him. He also states that immediately before and after the directions hearing on 4 September 2024 in this Court, the applicant made threatening gestures and statements to him. In his affidavit of the same date,[41] Mr Trevor Ashenden gives a similar account of the events on 4 September 2024. He also refers to a telephone call on 18 September 2024 during which the applicant made threatening comments.
[40] FDN 10.
[41] FDN 9.
During the hearing indicated I would decide in due course whether to receive the affidavits, but I considered it appropriate to give the applicant the opportunity, if he wished, to respond. In giving him that opportunity, I explained that he should consider whether, given the potentially criminal nature of the conduct alleged, it was in his interests to respond. Ultimately, he chose not to do so.
In circumstances where I am not persuaded that the decision to make a Prohibition Order was wrong, the only reason to receive the affidavit would be if it bore on the question of the duration of the order. However, if I were to receive the affidavits and accept them as proof of the facts described, I do not consider they would have a significant bearing on my assessment of that issue, because I consider that if the facts were as described, they mainly reflect that the applicant is presently extremely emotional and distressed about these proceedings. There is also a suggestion of the involvement of alcohol in one incident described. Without wishing to trivialise what might, if established, be very serious conduct, I do not think it bears materially on the question of whether the applicant ought, in say two, rather than five, years, be in a position where he should not be precluded from owning and caring for any kind of dog.
Duration of prohibition
I turn then to the duration of the prohibition order. The reasons given by the respondent for its decision, to which I referred earlier, do not contain a detailed explanation of the particular reasons why it was considered that a preclusion of as long as five years was appropriate.
In the Tribunal, it was observed (at Reasons [71], as set out earlier) that the applicant did not make any submission concerning the period of the order, and that his primary concern was the aspect of the order requiring Stella to be destroyed.
In its written submissions in this Court, the respondent concluded by submitting that:
Accordingly, the Respondent submits the imposition of the Order is the correct and preferable decision. In the alternative, if the Court is not minded to confirm the Order in its present terms, then [the] Respondent submits that the Court ought, at the very least, to impose a Prohibition Order upon the Applicant, but perhaps for a lesser period than that imposed by the Respondent.
That was not a concession that the Tribunal erred in affirming the duration of the Prohibition Order, but it was a fair and appropriate recognition of the fact that the length of the preclusion imposed in this case was significant.
Whilst I am not bound by previous decisions which, in any event, each have to be determined on their facts, my impression from other decisions is that a period of preclusion of in the range of 18 months to three years has been considered appropriate in other cases where there have been repeated failures on the part of the dog owner, but where there is reason to think both that the person now has a better insight into the importance of responsible dog management and that the impact of depriving them of the companionship of a dog will have a very deleterious effect on their health.[42]
[42] See, eg, Selvanera v City of West Torrens [2018] SACAT 14 at [88]-[92] and the decisions referred to therein.
When I asked him during the course of the appeal before me what he said about the length of time, the applicant’s initial response was that:
I think that’s very excessive, five years, you know, that’s – what am I, I’m 60? That could be half of the rest of my life, you know what I mean? Five years is a long time.
Having regard to the broad way in which ground 1 in his notice of appeal was framed, I would be prepared to treat this as a submission in support of a complaint about the duration of the Prohibition Order.
The applicant did go on to say that he did not want another dog and that:
… Whether it’s one year, five years, 10 years, it doesn’t matter because I’ll never be able to get another dog, you know what I mean?
The applicant became emotional at that point, and I suggested a brief adjournment. In my view, the applicant’s second response was more a statement of the distress that would be caused by the destruction of his dog than a withdrawal of his earlier submission that the period of time was excessive. Nor, given the possibility that in due course the applicant might feel that he would benefit from the companionship of another dog, do I treat it as detracting from the concern I hold that a five-year prohibition is longer than is required to meet the purposes of the Act and would therefore unnecessarily exacerbate the distress that will be caused if the Prohibition Order is upheld.
The question, however, is whether there is a basis to interfere with the decision of the Tribunal affirming the duration of the Prohibition Order. The difficulty faced by the Tribunal was that the applicant did not in terms before it advance a specific submission about the period of preclusion.
That said, the applicant did rely on material which had not been before the original decision maker relating to the impact of being without a dog on his mental health, and reflections and expressions of regret, capable of revealing insight, and therefore arguably reducing the need for a lengthy period of preclusion. In those circumstances, and given there had been no specific disavowal of a challenge to the duration of the order, I would hold that the Tribunal erred by not independently considering whether the duration of the order was the ‘preferable’ decision. Alternatively, whilst recognising that the conduct of and concerns about the applicant’s record of responsible dog management are serious, I would conclude that, particularly having regard to the fact that Stella was a rescue dog who posed challenges to the applicant which would not be presented by most dogs, the period of preclusion is excessive to the point that I would infer ‘outcome error’. Considering the matter afresh, I would impose a period of preclusion of two and a half years.
Destruction of the dog
In its written submissions on the appeal, the respondent contended that:
Regrettably, the [prospect] of Stella being rehomed within a timely manner to a suitable owner, who was prepared to comply with the Control (Dangerous Dog) Order, and engage in the training necessary to render her safe, was slim. The cost of housing her indefinitely at the RSPCA would be significant. The Applicant did not offer any alternative other than her immediate return to him, which, given the imposition of the Order, was not possible. In those circumstances, it cannot be reasonably argued that the requirement that Stella be destroyed was inappropriate or excessive.
During the hearing, I asked the applicant whether he accepted that he had not made any submission to the Tribunal about an alternative to destruction. He said that he did, and that he had suggested Stella be given to his brother, although he was not sure if it was in the context of the hearing. Counsel for the respondent submitted that there were no such submissions at the hearing and that he was instructed that the matter had not been raised in conciliation conferences either. In reply, the applicant said that ‘as far as rehoming her to my brother, I did actually bring that up on a couple of occasions during the mediation’, but he agreed it was not raised during the hearing which he said ‘was like a flash’ during which he was ‘floundering like a fish’.
I was concerned in light of these submissions that it might have been the case that the applicant had evidence that he could have adduced before the Tribunal with respect to an acceptable alternative to destruction, but which he failed to do so for a reason that might justify him being permitted to rely on that material for the first time on appeal.
For that reason I made a direction following the hearing in these terms:[43]
If he wishes to request that the Court consider any further evidence or submission relating to the question whether any prohibition order (if otherwise appropriate) should have provided or should provide for the applicant’s dog to be disposed of in some identified manner (and not destroyed), he is to file and serve any such evidence or submission on that topic (including any evidence or argument about whether the Court should consider matters not raised or argued before SACAT, if that be the case) by close of business on Thursday 3 October 2024.
[43] Orders made on 26 September 2024 (FDN 13).
I made orders permitting the respondent to respond to any such material by Thursday 10 October 2024. The applicant did not file any affidavit evidence but filed a written submission on 2 October 2024,[44] which comprised the following statement.
The option of relocation of Stella was never proposed or taken into consideration by Ms McEvoy at the SACAT hearing.
I propose Stella to be give[n] to my brother (Brett Stephen Wilson) who has agreed to have her. He fully understands all [of] the requirements of orders against her, have known each other for over 7 yrs. She will be safe and loved.
[44] FDN 14.
By way of response, the respondent filed an affidavit sworn by Mr Jeffery on 10 October 2024,[45] in which a number of matters were raised relating to the suitability of a proposal that Mr Brett Wilson take responsibility for Stella. Based on a review of the records and events summarised in the affidavit, he expressed serious concerns about Brett Wilson’s ability to comply with the requirements of a Control (Dangerous Dog) Order. In brief:
·on 31 March 2018, Brett Wilson surrendered his dog Boris for euthanasia following an attack which caused serious injuries to his right arm;
·on 10 September 2018, Brett Wilson registered a new dog, a brindle American Bulldog named Vincent;
·in around March 2019, the respondent ascertained Vincent had not been microchipped as required by the Act, resulting in an expiation notice which was never paid;
·in September 2019, Vincent escaped Brett Wilson’s backyard and attacked a Rhodesian Ridgeback named Chester, and also lunged towards the owner who sought to intervene;
·a Control (Menacing Dog) Order was imposed in respect of Vincent in April 2020, which required Brett Wilson to attend to a number of matters;
·in August 2020, a compliance inspection occurred and it was noted, contrary to the order, that a muzzle had not yet been acquired for Vincent;
·in January 2022, a dog survey revealed that, contrary to the order, Vincent’s registration had not been reviewed (and this only occurred after further follow up from the Council).
[45] FDN 15.
Subsequently, the applicant sent an email explaining that his brother has raised the height of his fence. Although leave was not sought or granted to provide further submissions by email, little turns on this. The matters raised by Council in Mr Jeffery’s affidavit go to Brett Wilson’s record of compliance which raise concerns over and above the physical arrangements that may be in place at his home.
I have reflected anxiously on this aspect of the appeal. I am not persuaded that the alternative proposal raised on appeal in relation to re-homing Stella with Brett Wilson is appropriate, such that it would be a ‘preferable’ decision to the decision to require that Stella be destroyed. First, the applicant has not produced clear evidence about Brett Wilson’s willingness and capacity to care for Stella. Even if I treat the submission as reflecting the evidence that would and could be given, the evidence of Mr Jeffery causes me to hold serious concerns about the suitability of the proposal.
My hesitation arises principally from the circumstance that, as I noted earlier, before the Tribunal, there was a submission, but not direct evidence, about the difficulty of otherwise re-homing Stella.
The question presented is whether, assuming the very making of a Prohibition Order is not called into question in a particular case by the prospect that its consequence may be that a dog must be destroyed, the Tribunal could be said to have erred in finding that the order for destruction was ‘preferable’ to some alternative where there was effectively an absence of evidence of any available alternative and where there was a submission, which accords with what one would expect to be the case, that there are significant difficulties with re-homing dogs subject to Control (Dangerous Dog) Orders. The requirements are onerous, and the consequences of non-compliance for an owner are serious.
Section 59A(2)(b)(i) provides that a Prohibition Order will require a dog owned by the person ‘to be destroyed or, if the order so allows, disposed of in a specified manner’. As expressed the section selects destruction as the default requirement, unless the decision maker has identified and specified some alternative. In those circumstances, I consider that destruction can be the ‘preferable’ order even where there is no detailed exploration in evidence of the viability of all possible alternatives, at least where the circumstances satisfying the criteria for making the Prohibition Order relate to the dog whose disposal is under consideration. Further, in this case, it seems inherently likely there would be difficulties finding a suitable owner to re-home Stella, given her history and the onerous obligations applying in respect of her. An alternative disposition order could only be said to be preferable if there could be a degree of confidence that the dog would, when re-homed, not pose a substantial risk to the safety of other dogs and people. The only person who has been proposed is not, on the material available to me, sufficiently suitable to warrant the conclusion that the order made was not the ‘preferable’ order in the relevant sense.
In those circumstances, I reluctantly conclude that there is insufficient basis to find that the Tribunal in affirming that aspect of the Prohibition Order erred.[46] Although not necessary in order to reach that conclusion, the requirement that the Tribunal give appropriate weight to the decision of the original decision-maker (s 34(4) of the SACAT Act) reinforces that conclusion, given that councils may be expected to have a degree of experience as to the viability of re-homing dogs subject to Control (Dangerous Dog) Orders.[47] Indeed, the Tribunal may be expected to possess a degree of specialist knowledge.[48]
[46] Quite apart from the potential application of the ‘deferential standard’, even where the ‘correctness standard’ applies, the appeal being by way of rehearing, it is still incumbent upon the applicant to establish error by the Tribunal, being either factual error, error of reasoning or legal error: Minister for Primary Industries and Regional Development v Scali [2024] SASC 4 at [48] (Kimber J); Shah (a pseudonym) v Medical Board of Australia [2022] SASC 140 at [219] (Blue J).
[47] See, eg, Schinckel v Registrar of Firearms [2020] SASC 236, Aldridge v Registrar of Firearms (SA) [2022] SASC 5 at [39]-[46] (Parker J).
[48] Minister for Primary Industries and Regional Development v Scali [2024] SASC 4 at [46]-[47] (Kimber J).
Other matters
To the extent that the applicant’s notice of appeal was intended to raise a complaint about the circumstances in which Stella was seized, I reject that ground of appeal. Whilst I understand the applicant’s concern that he was not informed that Stella was to be seized from the outset of the visit by Council rangers, I see no reason to doubt the lawfulness of the seizure. More importantly, the lawfulness of the seizure has no bearing on the lawfulness of the Prohibition Order, which separately and independently required the applicant to give up possession of Stella.
Further, to the extent that the applicant’s notice of appeal contended that the statements and descriptions of Stella’s earlier attacks were grossly exaggerated or in some cases completely false, I reject those contentions. The applicant did not develop the contentions. There was evidence relating to each matter before the Tribunal, and almost nothing by way of contradiction of the accounts given. The Tribunal was entitled to inform itself about those matters on the basis of the material presented to it, and was not required to insist on compliance with the rules of evidence.[49]
[49] SACAT Act s 39(1).
Disposition

I would grant leave to appeal. I would allow the appeal in part so that the Prohibition Order made on 26 March 2024 prohibits the applicant from acquiring or becoming responsible for the control of any dog prior to 26 September 2026. I otherwise dismiss the appeal.
I will hear the parties as to costs and as to whether it is appropriate immediately to discharge the stay previously ordered by me, or whether that should be continued for a brief period to permit the applicant to consider whether he wishes to seek leave to appeal this decision.