Winika v Moreton Bay Regional Council
[2015] QCAT 436
•22 October 2015
| CITATION: | Winika v Moreton Bay Regional Council [2015] QCAT 436 |
| PARTIES: | Lance Winika (Applicant) |
| v | |
| Moreton Bay Regional Council (Respondent) |
| APPLICATION NUMBER: | GAR142-15 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 12 October 2015 |
| HEARD AT: | Brisbane |
| DECISION OF: | Acting Senior Member Allen |
| DELIVERED ON: | 22 October 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the Moreton Bay Regional Council made on 9 June 2015 for the destruction of Rusty is set aside. |
| CATCHWORDS: | GENERAL ADMINISTRATIVE REVIEW – where declared dangerous made subject to destruction order – where dog had entered neighbour’s yard and was found in its yard by Council Officers – where dog not aggressive on the day – where issue of non-compliance with permit conditions – where unable to determine how dog left its yard – whether dog posed a risk to the public and other animals which could only be dealt by its destruction Animal Management (Cats and Dogs) Act 2008 (Qld) ss 3, 4, 59, 89, 97, 111, 125, 127, 132, 134 Thomas v Ipswich City Council [2015] QCATA 97 |
APPEARANCES:
| APPLICANT: | No appearance |
| RESPONDENT: | Ms Boyd appeared for the Moreton Bay Regional Council |
REASONS FOR DECISION
Rusty, a female mastiff crossbreed, owned by Mr Winika was made subject to a destruction order[1] by the Council on 21 May 2015. This was as a result of a complaint made by Mr Rodney Clark, a neighbour of Mr Winika, which on 20 May 2015 Rusty in company with another dog had entered his yard. This was not the first time this had occurred. In early 2014, Rusty with two other dogs owned by Mr Winika entered Mr Clark’s yard and attacked him causing significant injuries, which required medical treatment. The Council declared Rusty a regulated dog being a dangerous dog[2] on 11 April 2014 following this attack.
[1]Animal Management (Cats and Dogs) Act 2008 (Qld) s 127.
[2]Animal Management (Cats and Dogs) Act 2008 (Qld) s 89(1)(a).
Once a dog is declared a dangerous dog the owner must comply with particular permit conditions in respect of the dog including that the dog be implanted with a PPID and must wear a collar with an identifying tag; that it be muzzled and under the effective control of someone when it is not at its usual place; that it must be usually kept in an enclosure unless there is a reasonable excuse; a sign must be placed at or near each entrance to its usual place notifying the public that a dangerous dog is kept at the place; it must not usually be kept at a place other than its usual place, any change of address must be notified to Council[3].
[3]Animal Management (Cats and Dogs) Act 2008 (Qld) s 97 and schedule 1, further details of the requirements are set out in the regulations.
The failure of an owner to comply with these requirements is subject to a maximum penalty of 75 penalty units. Council may issue compliance notices[4] where Council considers an owner has committed an offence in respect of the regulated dog provisions. Failure to comply with a notice is also an offence with a maximum penalty of 75 penalty units[5].
[4]Animal Management (Cats and Dogs) Act 2008 (Qld) s 132.
[5] Animal Management (Cats and Dogs) Act 2008 (Qld) s 134.
On 24 October 2014, Council received a complaint from Mr Clark that Rusty and other dogs were on his property causing fear. The dogs were impounded and a destruction order was issued on Rusty. Council found that Mr Winika had not complied with the above requirements and in particular, there was no enclosure for Rusty. Following negotiations, Mr Winika was able to satisfy Council that he had complied with the requirements in regard to the enclosure and that he would keep Rusty in the enclosure, which he had constructed, and Council withdraw the destruction order.
Two Council officers, Mr Duck and Ms McAllister attended Mr Clark’s property following his telephone complaint on 20 May 2015. They confirmed with Mr Clark that one of the dogs concerned was Rusty, who he knew from the previous complaints. Mr Clark stated at the hearing that Rusty had wandered into and out of his yard and the dogs had been returned to Mr Winika’s property by another neighbour. Mr Clark at the hearing advised that Rusty had not acted aggressively to him or his animals and that he did not want to see him killed. His only concern was that the dangerous dog requirements be met. Mr Clark stated that he assumed his neighbour put the dogs back in their property and that he saw him walk them to the property. He therefore did not observe how his neighbour returned the dog to Mr Winika’s property in terms of whether gates were open or closed when the dogs were returned.
The Council officers confirmed that they had spoken to Mr Clark who confirmed his story and had advised them that a neighbour had returned the dogs to Mr Winika’s property. The Council officer advised the Tribunal that they had not sought a statement from the neighbour as he had previously indicated that he wanted no official involvement with Council.
The Council Officers stated that when they arrived at Mr Winika’s property they had noted that the front gate was closed and Rusty was in the front yard of Mr Winika’s property with the other dog. That Rusty had not acted aggressively towards them. Rusty was not wearing the required collar and was clearly not in her enclosure. In addition, the sign that should have been placed at the front gate was not there though there was a dangerous dog sign near the enclosure. Mr Duck stated at the hearing that he had inspected the perimeter of Mr Winika’s property and there was no obvious sign of where the dogs may have been able to leave the property. This meant that they did not know how the dogs left the property and so it could not be secured. For this reason, the dogs were impounded for public health and safety reasons.
Council officers may enter a place to inspect work carried out under a lawfully imposed condition of a dangerous dog declaration[6], which is what the Council Officers did in this case. Once they inspected the premises and noted the issues of non-compliance mentioned in respect of the dangerous dog declaration for Rusty they had the power to seize[7] Rusty, which they did. Once that occurred Council had power to make a destruction order in respect of Rusty in accordance with s127 of the AM Act. This is a discretionary power and the AM Act does not set out criteria for the exercise of the discretion. The Act gives the registered owner the right to apply for an internal review of the decision, which Mr Winika did on 2 June 2015. The internal review decision to confirm the destruction order was made on 9 June 2015. Mr Winika then applied for this review in accordance with s188 of the AM Act.
[6] Animal Management (Cats and Dogs) Act 2008 (Qld) s 111(1)(g).
[7]Animal Management (Cats and Dogs) Act 2008 (Qld) s 125(1)(c).
The Tribunal when reviewing a decision does so by way of a fresh hearing on the merits[8] and must decide the review in accordance with the QCAT Act and the Act that gives it jurisdiction to hear the matter[9]. The Tribunal’s purpose is to produce the correct and preferable decision[10] and it may confirm the decision; amend the decision or set aside the decision and substitute a new decision[11]. The role of the decision maker is to assist the Tribunal to make its decision[12].
[8]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20(2).
[9]QCAT Act s 19.
[10]QCAT Act s 20(1).
[11]QCAT Act s 24.
[12]QCAT Act s 21.
As there are no specific criteria set out in s127, the Tribunal considers the objects of the Act to determine the legislative intent. “This is set out in section 3 of the Act which provides that the purposes of the AM Act include providing for effective management of regulated dogs. Section 4 specifies how the purposes are primarily to be achieved. These means include imposing obligations on regulated dog owners; appointing officers to monitor compliance with the AM Act; and imposing obligations on some persons to ensure dogs do not attack or cause fear. Section 59 sets out that the purposes of ‘Chapter 4 Regulated Dogs’ include protecting the community from damage or injury, or risk of damage or injury, from regulated dogs; ensuring regulated dogs are not a risk to community health and safety and ensuring regulated dogs are kept in a way consistent with community expectations and the rights of individuals”[13].
[13]Thomas v Ipswich City Council [2015] QCATA 97 at [16].
The submission of the Council in this case are that Rusty is a regulated dog, which has previously been subject to a second destruction order. It is now the second time since the dangerous dog declaration was made that Rusty has left the property and Council has very little faith in Mr Winika complying with the dangerous dog declaration requirements and has no confidence that he will keep the dogs correctly. That the injuries that resulted in the dangerous dog declaration were significant and while Rusty may not have acted in an aggressive way on 20 May 2015 it does not mean he would not act in that way on another day.
While Mr Winika was not present at the hearing his submissions and those of his partner Ms Keating were to the effect that they had always complied with the requirements of the declaration since the enclosure was built and it was their recollection that they had that day. They thought that a party unknown may have entered the property and let the dogs out. Mr Winika stated that knowing that the result of non-compliance with Council requirements would lead to Rusty’s destruction meant that were vigilant to ensure they complied. Further that from now on they would put padlocks on the gates so that they could not be interfered with.
There is no one who can confirm the return of Rusty to Mr Winika’s property and whether or not the front gate was closed or open and the other circumstances around this. Which may show whether or not Mr Winika had been compliant with the permit conditions. While the Tribunal accepts Mr Clark as a credible witness, in terms of Rusty having been on his property it is not known how Rusty was able to leave Mr Winika’s property and where the dog was at the time Mr Winika and Ms Keating left the property that day.
The Council officers confirmed that the enclosure was complaint and there was no obvious issue with the boundary fences, which could have enabled Rusty to escape. There was some non-compliance in terms of the collar and signage. It cannot be discounted that someone unknown may have let the dogs out. The fact that Rusty did not act aggressively on the day is also a factor, which should be taken into account while noting the submission of Ms Boyd in regard to conduct.
A decision to destroy a dog is major one and it should not be made unless there is no other way to ensure that the community is protected from the risk of harm. A destruction order has been described as a last resort. “The essential question is whether the dog constitutes, or is likely to constitute, a threat to the safety of other animals or to people, by attacking them or causing fear, to the extent that the threat may only be satisfactorily dealt with by the destruction of the dog”[14].
[14]Ibid at [18].
In this case while Rusty was outside of his property and therefore outside of his enclosure she did not cause fear in any person or animal and the very person who she had previously attacked simply wants that the requirements of the Act are complied with as an outcome. There is insufficient evidence to show that Rusty left the property as the result of any default of Mr Winika in not securing her in her enclosure and the other issues of non-compliance can be dealt with by the issuing if necessary of compliance notices. The Tribunal is satisfied that if Mr Winika is compliant with the requirements of the AM Act then Rusty will not pose undue risk to persons or other animals. The issues of compliance should be pursued with Mr Winika to ensure his future compliance and this will ensure that the community is protected. The Tribunal is not satisfied that it is necessary to exercise the discretion to issue a destruction notice in this case to protect the community.
The order of the Tribunal is that the decision of the Council is set aside.
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