XY v Registrar, Domestic Animals Act 2000
[2019] ACAT 93
•16 October 2019
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
XY v REGISTRAR, DOMESTIC ANIMALS ACT 2000 (Administrative Review) [2019] ACAT 93
AT 17/2019
Catchwords: ADMINISTRATIVE REVIEW – review of decision to destroy a dog – whether decision should be overturned and made again by the Tribunal – consideration of a number of attacks – purpose of Domestic Animals Act 2000 – safety of the public – safety of domestic family of the dog – circumstances of attacks – whether one attack was provoked – whether in one attack the dog came to the aid of a person the dog could be expected to protect – alternative actions to destruction order
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 68
Dog Control Act 1975
Domestic Animals Act 2000 ss 22, 26, 27, 28, 53A, 53B, 53C, 62, 64, 68A, 70
Domestic Animals (Dangerous Dogs) Legislation Amendment Act 2017
Domestic Animals (Dangerous Dogs) Legislation Amendment Act 2018
Legislation Act 2001 ss 139, 141
Subordinate
Legislation cited: Domestic Animals Regulation 2001
Dog Regulation Ordinance 1926
Cases cited:An inquest into the death of Tania Louise Klemke [2018] ACTCD 18
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Esber v Commonwealth (1992) 174 CLR 430
Isbester v Knox City Council [2015] HCA 20
Robertson v Domestic Animal Services (ACAT, 20 August 2009)
Sarlija v Registrar, Domestic Animals Services [2012] ACAT 57
Lau v Registrar, Domestic Animals Act 2000 [2018] ACAT 119
List of texts cited: LexisNexis Concise Australian Law Dictionary (4th edition)
Tribunal:Senior Member R Orr QC
Date of Orders: 16 October 2019
Date of Reasons for Decision: 16 October 2019
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 17/2019
BETWEEN:
XY
Applicant
AND:
REGISTRAR, DOMESTIC ANIMALS ACT 2000
Respondent
TRIBUNAL:Senior Member R Orr QC
DATE:16 October 2019
ORDER
The Tribunal orders that:
1.The decision of the respondent on about 25 February 2019 to order destruction of the dog is set aside so that the Tribunal can make a substitute decision.
2.On the basis of the incidents in 2019, in addition to the incidents in 2018, the dog be destroyed under section 53C of the Domestic Animals Act 2000.
………………………………..
Senior Member R Orr QC
REASONS FOR DECISION
1.These proceedings concern a challenge to the decision of the Senior Deputy Registrar, Domestic Animals Services, Transport Canberra and City Services, ACT Government (Registrar or respondent) on about 25 February 2019 to order the destruction of a dog (destruction decision) under section 53C of the Domestic Animals Act 2000 (Domestic Animals Act or the Act). In these proceedings there was significant evidence of a personal and private nature which is relevant to the decision of the Tribunal. Confidentiality orders were made in relation to some of this evidence during the hearing. Because of the evidence of a personal and private nature and the relevance of it to this decision, I do not think it appropriate to disclose publicly the identity of the people directly concerned in the decision and these reasons. Therefore in the decision and these reasons I will refer to the applicant in these proceedings as XY (Ms XY or applicant), the dog as Z and the complainant who was attacked by the dog in 2018 as VW (Mr VW or complainant). Ms XY appeals the destruction decision to the Tribunal.
Summary of this decision
2.The basis of the destruction decision were several incidents of the dog attacking Mr VW in 2018. Mr VW was a friend of Ms XY.
3.In this hearing there was a wide range of evidence about these incidents, and Ms XY was able to participate fully in the proceedings. Further in this hearing there was evidence of other incidents which occurred at the pound in 2019 where Z has recently been held. In these circumstances in my opinion it is appropriate to set aside the destruction decision of the respondent and for the Tribunal to make a substitute decision.
4.Considering the incidents in 2018, in relation to the requirements for a destruction order, I think that Z attacked a person, namely Mr VW, and caused an injury, but not a serious injury. In these circumstances the decision maker is not obliged to destroy the dog under section 53B of the Domestic Animals Act, but may do so under section 53C.
5.But on the principal occasion in December 2018 when Mr VW was attacked, this was because the dog came to the aid of Ms XY as a person the dog could be expected to protect.[1] It is also likely that Mr VW provoked the dog.[2] The Act makes these circumstances relevant to whether a destruction order should be made. The respondent argued that these circumstances were not present, or at least that there was doubt that they were present. I think it is likely that these circumstances were present, but even if there is doubt about this, the decision-maker may consider any other relevant matter[3] and in my view the circumstances around the attack are relevant matters, including the fact that it appears that Mr VW, the victim of the dog attack, was on this occasion, and at other times, verbally abusive towards Ms XY, the owner of the dog.
[1] Section 53C(3)(a)(ii)(B)of the Domestic Animals Act
[2] Section 53C(3)(a)(ii)(A)
[3] Section 53C(3)(b)
6.The decision-maker must also consider the safety of the public and other animals (section 53C(a)(i)), but in the events in 2018 the dog was a danger to only one person. It is not unreasonable to expect Mr VW to adjust his behaviour to address his relationship with the dog and Ms XY. There was also significant evidence that when at home the dog was an important family pet who behaved appropriately in relation to the family and their friends, leaving aside Mr VW.
7.If the evidence had been left on this basis, the Tribunal would not have made an order for the destruction of the dog. But it would have made an order that she is a dangerous dog under section 22 or issue a control order under sections 53C(4), 53CA and 70(4).
8.But the respondent provided further more recent evidence that Z, on occasions, had been aggressive or menacing to other dogs when held at the pound. Importantly the evidence was that on one occasion the dog tried to bite an officer of the Domestic Animals Services, on another Ms XY herself, and more recently had actually bitten Ms XY’s son. Most of the basic facts in this regard were not contested by Ms XY, though she disputed that the dog tried to bite her, but agreed that the dog jumped at her. On the basis of the evidence provided the Tribunal thinks it likely that the dog did try to bite an officer of the Service, and Ms XY, and did bite her son.
9.The regime in the Domestic Animals Act, including that concerning a destruction order, seeks primarily to protect the safety of the public. As this case demonstrates, dogs can play a very important and positive role in the social lives of Canberra families. While recognising this, the key factor in deciding whether a destruction order should be made is the safety of the public, including the dog’s domestic family.
10.The evidence of aggression by Z towards her domestic family is a worrying development when added to the evidence of the earlier attacks. While Ms XY and a number of her family and friends were strongly supportive of saving the dog, the evidence of an expert and of officers of the Domestic Animals Services showed significant concern as to the risk posed by the dog including to her domestic family, a concern which I share. There is doubt that a dangerous dog order under section 22 or a control order under sections 53C(4), 53CA and 70 can address this risk.
11.This leads the Tribunal very reluctantly to decide that a destruction order should be made.
The hearing
12.Ms XY made an application for review of the destruction decision to the tribunal on 4 March 2019 (Application). A hearing was conducted on 3 and 13 June 2019. Ms XY appeared for herself, supported by some friends. The Registrar was represented by Mr Nigel Oram who was instructed by the ACT Government Solicitor.
13.Ms XY provided a number of documents and statements (exhibits A1, A2, A10 and A11), gave oral evidence and was cross-examined on that evidence. She provided a number of supportive statements from friends and relatives (exhibits A3, A4, A5, A6 and A7), and one friend gave oral evidence and was cross-examined. She also provided a report from Sean Ehlers (Mr Ehlers), a dog obedience instructor and dog training behaviourist (exhibit A8), who gave oral evidence, and Shari Gabriel (Ms Gabriel) of the RSPCA (exhibit A9).
14.The documents in relation to the decision were provided (exhibit T1). These were supplemented at the hearing by the submission to the Regulatory Advisory Committee of the Domestic Animals Services (exhibit R8) and then the submission of the Committee to the decision-maker (exhibit R9). The respondent provided a statement from Mr Ehlers (exhibit R1); Dr Eamon Ryan (Dr Ryan), a vet (exhibit R2); and Ian Tomlinson (Mr Tomlinson) (exhibit R3), Michelle Corlett (Ms Corlett) (exhibit R4) and Holly Granville-Edge (Ms Granville-Edge) (exhibit R10) who were all ACT public servants in the Domestic Animals Services, and all these people gave oral evidence. A range of other documents including AFP records and health records were provided (exhibit R5, in relation to which a confidentiality order was made, and exhibit R6, and some relevant documents are included in exhibit T1). The respondent provided an outline of submissions.
15.After the conclusion of the hearing, with leave of the Tribunal, the respondent provided statements from Jasmine Parker (Ms Parker) (dated 29 July 2019) and Matthew Guest (Mr Guest) (dated 30 July 2019) in relation to an incident on 25 June 2019. The respondent provided further submissions in relation to this incident on 12 August 2019. Ms XY also made a further statement in relation to this incident by email dated 6 August 2019. The Tribunal has taken these documents into account.
Background to destruction decision
16.Ms XY, her friend Mr VW, and her two children obtained Z in about early 2018. Z is a female pit bull terrier.[4] There was a suggestion that the dog had previously been a “heavy”, which I understand to be a guard dog. Ms XY said that the previous owner told them that the dog did not like loud voices. Although initially Ms XY did not want to keep the dog she stated that “the bond between us all got pretty strong, pretty quickly” and that the dog “would sleep in my bed and barely leave my side through the day”.[5] Ms XY disclosed her significant health problems to the Tribunal and stated that the dog was a huge emotional support to her; that the impact of her companionship cannot be overstated; and that Z was a great dog, a fantastic family member and “we love her as much as we love each other.”[6]
[4] Exhibit T1, page T8; exhibit R2, statement of Dr Ryan, at para [4]
[5] Application; exhibit T1, pages T53-55; exhibit A2; transcript of proceedings 3 June 2019 at page 39; transcript of proceedings 13 June 2019 page 19
[6] Application, statement to Senior Deputy Registrar dated 4 March 2019
17.There were however some incidents, which in due course, led to the destruction decision.
(a)One was in about April 2018 when Mr VW was playing with the dog on a bed and was bitten. There was possibly another incident in Ms XY’s house when Mr VW, or someone, raised their voice and Mr VW was bitten.
(b)Another was a more serious incident in the backyard of Ms XY’s house on 17 December 2018 when Mr VW was bitten.
These incidents are discussed in more detail below.
18.It was as a result of the incident on 17 December 2018 that various investigations were undertaken which revealed that the dog was not registered, not microchipped, not de-sexed, and was pregnant but there was no relevant breeding licence. On about 7 January Ms XY took the dog to a vet at Tuggeranong, and the vet reported some concerns to the Registrar. In due course a seizure notice was issued under the Domestic Animals Act in relation to the dog which has been held for some time at a pound.[7]
[7] Exhibit T1, pages T45-46, T47 and T97
19.The Senior Deputy Registrar sent a notice of the destruction decision to Ms XY on 25 February 2019. The notice stated that the decision to destroy the dog was made under section 53C of the Domestic Animals Act which provides in part as follows:
Dealing with attacking, harassing or menacing dogs generally
(1) This section applies if the registrar is reasonably satisfied, because of a complaint or otherwise, that a dog—
(a)attacked a person or an animal and the attack caused—
(i)an injury (other than a serious injury) to the person; or
(ii)serious injury to the animal
(b)harassed a person or an animal; or
(c)is aggressive or menacing.
(2) The registrar may decide to destroy the dog.
(3) In making a decision under subsection (2), the registrar—
(a)must consider—
(i)the safety of the public and other animals; and
(ii)if the dog attacked a person or animal—the circumstances of the attack including whether—
(A)the person or animal provoked the dog; or
(B)the person or animal was attacked because the dog came to the aid of a person or animal the dog could be expected to protect; or
(C)if the attack was on premises occupied by the keeper of the dog—the person or animal was on the premises without lawful excuse; and
(b)may consider any other relevant matter.
20.The process towards making the decision was considered to some extent in the hearing. This involved a submission to the Regulatory Advisory Committee (RAC) dated 14 February 2019 by the investigator, who was Ms Corlett who gave evidence in the matter (exhibit R8). This submission was not in the T documents provided to the Tribunal and the applicant; it should have been. This showed Mr VW as the complainant/victim. This document provided a range of factual background information and concluded that after consideration of the conflicting evidence the investigator was unable to reach a recommendation and invited discussion with the Committee as to the appropriate regulatory response.
21.This process also involved a submission signed on 21 February 2019, which was based on the submission to the RAC with the addition of the rationale of the RAC, to the decision maker (exhibit R9). This document was also not in the T documents provided to the Tribunal and the applicant; it should have been. This showed Mr VW as the complainant/victim. The RAC recommended that the dog be destroyed. Ms Corlett gave evidence that this was a unanimous decision of the Committee.[8]
[8] Transcript of proceedings 3 June 2019 page 81
22.The notice of decision to Ms XY dated 25 February 2019 stated that in making the decision the author considered that the dog did attack a person, and the attack caused an injury; that there were conflicting versions of the attack as to “whether … [the dog] was provoked or came to your aid as a person she would be expected to protect”; and that Mr VW had made claims that the dog attacked him on two separate occasions in 2018 where he received several bite wounds.[9]
[9] Exhibit T1, pages T8-9
23.There was also a statement of findings for the respondent dated 21 March 2019. This set out a range of evidence. It also set out section 53C, and noted that if the Registrar decided not to destroy the dog, the Registrar could consider issuing a control order under section 70(4) or declare the dog to be a dangerous dog under section 22(2). The statement said that the Registrar agreed with the RAC’s recommendation “noting the owner’s previous lack of compliance and the lack of control she had over … [the dog] and determined the risk … posed could not be satisfactorily mitigated through Dangerous Dog Licence conditions”. The statement noted the parallels between this case and the Klemke case[10] and that the Registrar agreed that the dog was not suitable to be returned or re-homed as she would be an unacceptable risk to the public and other animals.[11]
Approach of the Tribunal
[10] This is apparently a reference to An inquest into the death of Tania Louise Klemke [2018] ACTCD 18
[11] Exhibit T1, pages T11-T25
24.Under section 68 of the ACAT Act the Tribunal must (a) confirm, or (b) vary, or (c) set aside and make a substitute decision or remit the matter that is the subject of the original decision. The Tribunal conducts merits review of an administrative decision, and in doing so is required to stand in the shoes of the original decision maker, and where appropriate make the correct or preferable decision.[12]
[12] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 419; Esber v Commonwealth (1992) 174 CLR 430, 440
25.There are a number of reasons why the Tribunal thinks it appropriate to set aside the decision and make a substitute decision. First, significant further evidence was provided which was not before the original decision-maker.
26.Second, the respondent relied on three more incidents in relation to the dog namely:
(a)an incident on 4 April 2019 at the pound where the dog is kept;
(b)an incident on 28 May 2019 again at the pound; and
(c)an incident on 25 June 2019 again at the pound.
Significant evidence was also provided about these incidents.
27.Third, while it is not a matter which was considered in detail at the hearing, the applicant as the owner and carer of the dog was entitled to procedural fairness in relation to the original decision, that is an opportunity to know the case against her and in effect the dog and to respond to this.[13] Whilst the material before the decision maker referred to statements by Ms XY and a range of other persons, it does not appear that she had an opportunity to know the case against her and to respond to it as the person principally affected by the destruction decision. Further Ms XY was the obvious person to speak for the dog. Ms XY had this opportunity in the hearing of the Tribunal.
[13] Isbester v Knox City Council [2015] HCA 20, esp Gageler J at [54]
28.In light of these factors it is appropriate that the Tribunal set aside the destruction decision and consider whether to make a substitute decision. The respondent made submissions that it was inappropriate in this case to remit the matter to the respondent, which the Tribunal accepts. The primary incidents relevant to this decision are as follows.
April 2018 incident
29.Ms XY described her relationship with Mr VW as an “on-again off-again relationship for seven years.”[14] In relation to the incident in April 2018 Ms XY stated that Mr VW and the dog were playing on a bed while she and a friend were watching them, and after about 15 to 20 minutes of rough house playing she noticed a red mark on the doona cover and asked who was bleeding, and then saw it was Mr VW. As he had a bit of blood on one of his arms, she asked if he was all right and he said “oh she must of got me.”[15] Her friend offered to take him to a doctor, and he returned 20-30 minutes later with his arm bandaged and in a sling. She said that as she did not go with him to the doctor she was uncertain how serious the injury was, but he ended up working the next day.[16]
[14] Transcript of proceedings 3 June 2019 page 16
[15] Exhibit A2 page 4
[16] Exhibit A2; exhibit A10
30.The applicant stated that she did not regard this as an attack, rather Mr VW and the dog were playing. She thought that in Mr VW’s version of this incident he was making aspects of this event up, I infer in particular by calling it an attack, to get back at her.[17]
[17] Transcript of proceedings 3 June 2019 page 36
31.The respondent provided a document from the Canberra Hospital Walk In Centre where Mr VW was admitted on 19 April at 3.53pm and discharged at 4.09pm. This states that Mr VW presented with a “dog bite/crush injury to his left forearm and a small puncture wound over his right eye brow from the dog bite … Multiple puncture wounds to both volar and dorsal aspect of arm, the wounds present as a typical jaw clench injury.” It was recorded that there was minimal active bleeding at the time of assessment but that Mr VW complained of a lot of pain in his left hand.[18]
[18] Exhibit R6
32.The notes from an interview with Mr VW on 20 January 2019 record him saying that: the dog “didn’t really take to me … I was in [the] bedroom lying on bed. I gave her a cuddle and … [Ms XY] said to her friend ‘watch this’ … started pushing me and then … [the dog]… attacked me. Injury to right eye – clean graze to eyelid (Rht) left forearm – 2 deep puncture to top of arm, yellow fatty tissues exposed and 2 other punctures underneath on same arm.”[19] While Mr VW did not give evidence, the description of the wounds seems to be taken from the medical records.
[19] Exhibit T1, pages T108-109
33.Mr Ehlers stated that the medical report of this incident suggested that the dog had not only punctured and bitten Mr VW’s arms but also gone towards the face, which he thought was fairly serious and he would have a lot of concerns about the dog behaving in that manner.[20]
[20] Transcript of proceedings 3 June 2019 page 101
34.In his interview Mr VW also refers to a second attack where there was a raised voice at the kids to go for a bath, apparently his, which resulted in two puncture wounds to his right arm.[21] There was little other evidence of this incident.
[21] Exhibit T1, page T109
December 2018 incident
35.The December 2018 incident is the most significant. Ms XY stated that she was talking to Mr VW in her shed; “it turned pretty nasty”; he left and slammed the door which meant that she needed pliers to open it. When she did she saw that he was up on a chair with a rope hanging off a beam and around his neck; she was screaming and crying; she got something to cut him down, but he was too heavy for her to grab him and he hit the floor. She yelled for her neighbour to help her. She said that her partner was verbally abusive to her. Her son opened the door and the dog ran out to her side; her partner was yelling at her; the dog was barking at him; he “pushed a scooter towards us and it hit … [the dog] in face, making her bite him on lower part of leg.”[22] She got the dog inside, went back to her partner who continued to be verbally abusive to her, and she asked her neighbour to take her partner to hospital.[23] In oral evidence Ms XY stated that before the dog attacked him Mr VW was abusive, “he was yelling abuse, calling me every name under the sun,”[24] and “coming at us” and the dog responded to this.[25]
[22] Exhibit A2 page 9
[23] Exhibit A2
[24] Transcript of proceedings 3 June 2019 page 31
[25] Transcript of proceedings 3 June 2019 page 34
36.There are several aspects of this account by Ms XY which are brought into question by other evidence and were therefore queried by the respondent. First, in the T documents there is an account of the incident by Mr VW, in which he suggests that he was unconscious after he fell and he did not regain consciousness until after the dog had bitten him.[26] Mr VW did not give evidence in these proceedings. Ms XY has given a number of versions of the incident. These, and other accounts, generally state that Mr VW was yelling at her, and she at him, at the time of the attack by the dog.[27] I think it is likely that Ms XY and Mr VW were yelling at each other before the attack, and in particular that Mr VW was being verbally abusive to Ms XY.
[26] Exhibit T1, pages T109-111
[27] Exhibit T1, page T29: Ms XY said she “was yelling at time of bite, so was … [Mr VW] so … [she] believes her dog was doing so to protect her”; page T60-61, statement of 14 January 2019; page T90, AFP report stated: “Ms XY states the dog bit him as she was protecting her because … [Mr VW] was yelling and screaming; page T161 medical report stated that: Mr VW “had an argument with his partner and was attacked by his dog” (see also T135, T148, T153); pages T270-T280 information provided to Mr Ehlers and set out in his report of 21 January 2019
37.The respondent suggested that it was Ms XY yelling which was the primary cause of the bite on this occasion.[28] But it seems clear that Mr VW was also yelling. This would seem consistent with the volatile relationship which they had. Ms XY stated that over the last year or so she has called the police in relation to Mr VW eight or so times.[29] As to what caused the attack it is of course difficult to say.
[28] Transcript of proceedings 3 June 2019 page 30
[29] Transcript of hearing 3 June 2019 at pages 43-45; exhibit R5 in relation to which there was a confidentiality order made
38.Second, in some accounts by Ms XY she stated that the dog was barking, but the applicant admitted in oral evidence that the dog was growling and that Mr VW might have thought on this basis that Z was about to attack him.[30]
[30] Transcript of proceedings 3 June 2019 page 26
39.Third, the respondent queried the statement that Mr VW “pushed a scooter towards us and it hit … [the dog] in face.” This goes to the issue of whether Mr VW provoked the dog. The basis for questioning this was that in some of the reports of the incident by the applicant, this aspect is omitted.[31] A report of the incident from the AFP noted that Ms XY “states the dog bit him as she was protecting her because … [he] was yelling and screaming …”[32] A statement taken by one of the rangers has Ms XY stating that she “was yelling at the time of the bite, so was Mr VW, so [Ms XY] believes the dog was doing it to protect her … [Ms XY]’s partner started yelling, this is when … [the dog] bit him”.[33] An officer of Child and Youth Protection stated in an email that Ms XY said to them that “she was yelling at … [Mr VW] and the dog heard the ‘panic’ in her voice and attacked him …”[34] Mr Ehlers does not mention the pushing of the scooter in his report and Mr Ehlers stated that Ms XY did not tell him this.[35]
[31] Transcript of proceedings on 3 June 2019 pages 26-34
[32] Exhibit T1 page T76; exhibit R5
[33] Exhibit T1 pages T30-31; exhibit R4
[34] Exhibit T1 page T70
[35] Transcript of proceedings 3 June 2019 page 99
40.These reports were put to the applicant but she maintained that Mr VW hit Z with a scooter. Further, the report Ms XY gave to the investigating officer from the respondent, Ms Corlett, was that Mr VW was verbally abusing her; her son got scared and opened the door and the dog ran out to her; the dog was standing next to her growling and barking and pouncing at him; Mr VW grabbed one of the kid’s scooters and rammed it into the dog; he was hurting her; she then bit him.[36] Ms Corlett’s note also stated that Ms XY’s son said that Mr VW picked up a scooter and hit the dog before the dog bit Mr VW.[37]
[36] Exhibit T1 page T61
[37] Exhibit T1 page T66 ; exhibit A1
41.Therefore, there does seem to be some evidence that Mr VW did throw a scooter at the dog. Ms XY gave sworn evidence to this effect and appeared a truthful witness, and there were supporting accounts by her and her son in the T documents. It is true that a number of other accounts omit this fact which casts some doubt on whether it happened. But the fact that these were obviously traumatic events and that accounts were given in varying contexts for varying purposes may explain the differences. In my view it is likely that Mr VW threw the scooter at the dog, but as I discuss later even if this aspect of events did not occur, it does not affect my basic approach and conclusions.
42.Fourth, there was an issue about the nature of the bite. As noted, Ms XY stated that the dog bit Mr VW on the leg, which she described as a hold and release bite.[38] She did not see him bit on the arm. She said that any injury to his ear came when he fell and hit the concrete and side of the deck.[39]
[38] Transcript of proceedings 3 June 2019 page 34
[39] Transcript of proceedings 3 June 2019 pages 34-35
43.The respondent provided a report from the ambulance service which referred to dog bites on lower leg and forearm.[40] Significant hospital documents were also provided. Mr VW was admitted to hospital on 18 December and discharged on 19 December against medical advice. The records generally show that there were “three deep puncture marks to L) lower leg and 3 deep puncture marks to L) forearm … nil active bleeding, rinsed with saline and dressed with combine and bandage”. There was an injury to his right ear but it is unclear whether this was caused by the dog; it does not seem that Mr VW reported that the dog had bitten his ear.[41]
[40] Exhibit T1, pages T139, T141,T157, T161, T165, and T171; transcript of proceedings 3 June 2019 page 35
[41] Exhibit T1, page T141; transcript of proceedings 3 June 2019 pages 35-36
44.Therefore it seems that Mr VW suffered significant bites to his leg and arm. It seems that while he may have suffered an injury to his ear, there is little evidence this was caused by the dog.
Visit to the vet in January 2019
45.On 4 January 2019, Ms XY took Z to a vet in Tuggeranong. After the visit the vet provided information to the Domestic Animals Services because of his concerns in relation to the dog. There are quite divergent reports of this visit, however. The vet, Dr Ryan gave a statement dated 22 May 2019 (exhibit R2). There were also contemporaneous notes of the visit which he relied on. His approximate recollection based on his notes was that Ms XY said that Z “can be aggressive towards men. She will be right, she will be fine, but can become aggressive towards men”. [42] He stated she went on to say: “If I am telling the kids off or raising my voice, Z will become aggressive towards me. If anyone raises their voice she becomes aggressive, particularly men”. He went on to examine the dog. He said that the dog was agitated and kept trying to wiggle out of Ms XY’s control. He said he recommended that the dog’s pregnancy should be terminated but that Ms XY took offence at this advice.[43]
[42] Exhibit R2
[43] Exhibit R2
46.Dr Ryan stated that based on his observations he believed Z poses a risk to the safety of the public and other animals. He stated in his oral evidence that although the dog seemed nervous, she displayed no signs of overt aggression. He said his opinion was based on the warning signs that Ms XY told him about. Asked whether there was anything in what he observed that would suggest the dog should be destroyed he answered no.[44]
[44] Transcript of proceedings 3 June 2019 pages 62-65
47.Ms XY stated that she did take Z to the vets, with a friend, as the dog was not breathing well. She checked with the staff at the desk, asking if it was busy, because the dog had not yet been to the vet under her care. The vet examined the dog and advised that he could have her de-sexed and the foetuses euthanised and she was horrified that this was his immediate response. She said that the vet told her that the breed was dangerous, and of his personal dislike for the breed. She said that at no point did the doctor request any assistance from other staff nor did he advise that he wished to have the dog medicated or restrained.[45]
[45] Application
Incident on 4 April 2019
48.Mr Tomlinson gave a statement in relation to an incident on 4 April 2019.[46] Mr Tomlinson is employed within the Domestic Animal Services Unit and assisted with a visit by Ms XY to the dog. While this was occurring there was a separate meeting of a member of the public with a dog for rehoming in an adjourning visitation yard. The other dog began to bark at the fence between the two yards; this dog and Z began “fence-fighting”; Z became aggressive redirecting and snapping towards Mr Tomlinson’s hand but did not make contact. Ms XY was quickly able to secure her dog. This account was confirmed in oral evidence.[47]
[46] Exhibit R3
[47] Transcript of proceedings 3 June 2019 pages 95-97
49.Ms XY agreed that the dogs were barking and growling at each other and leaping at the fence. She said that she was behind Z so she did not see her snapping. She said that she thought the other dog was showing aggression and Z was just protecting herself. She said she did not see Z redirect her aggression towards Mr Tomlinson. She said when asked if she was disputing that it happened: “I don’t know. I didn’t see it so I can’t actually give, I can’t say”.[48]
[48] Transcript of proceedings 3 June 2019 pages 41-42
50.In light of this evidence and Mr Ehler’s evidence at paragraph [62] below I think that it is likely that Z was snapping towards Mr Tomlinson.
Incident on 28 May 2019
51.The respondent provided a statement from Ms Granville-Edge, an animal behaviour support officer within the Domestic Animal Services Unit. She has been in that role since 8 May 2019. Her duties include conducting behavioural assessments of dogs. She described events when she, the dog, Ms XY and a kennel master were in one yard. A ranger with another dog walked beside that yard which caused Z to have intense focus on and to bark loudly at them. When they later walked back Z rushed the fence, barking fiercely, lunging, and escalated in her level of aggression. Ms Granville-Edge thought that Z was likely to injure anyone who got in the way of her teeth, either intentionally or by accident. Ms XY tried to calm Z down, and the dog snapped at Ms XY’s hand and may have made contact, and lunged upward with muzzle pointed towards her face and neck. Ms XY was told to and did move away, and the dog began to settle somewhat.[49]
[49] Exhibit R10
52.Ms XY stated that she stood in front of the dog at the fence to block the view of other dogs. She stated that there was a lot happening on this day with men working on a back fence line and dogs being walked in turn. She admitted that Z rushed towards the fence and was barking back at the other dog. She admitted hitting Z to get her attention. Ms XY did not agree that Z made any contact with her teeth. She said she verbally reprimanded the dog, and told her to come to the other end of the yard which she did. She said she never felt scared or worried. She remembered someone telling her to move away from the dog, which she did, and then Ms Granville-Edge saying she did not mean to come across as rude but it was her duty of care to act. She did not feel that this event was an issue.[50] In cross-examination Ms XY denied that Z tried to bite her; she admitted the dog “jumped up”.[51]
[50] Exhibits A10 and A11
[51] Transcript of proceedings 3 June 2019 page 42
53.This was clearly a serious incident on both accounts. It does not seem that Z actually bit Ms XY; there would be physical evidence of this if it had occurred. Ms Granville-Edge stated that the dog lunged upward with muzzle pointed towards Ms XY’s face and neck. Ms XY conceded that the dog “jumped up”, which sounds less threatening but is to the same effect. Ms Granville-Edge stated that Z snapped at Ms XY’s hand but Ms XY denied this; this is the substantive area of dispute. Ms Granville-Edge was an eye witness, her reaction which is confirmed by Ms XY supports her version of this act, and I am concerned that Ms XY may be seeking to minimise this event. On the basis of Ms Granville-Edge’s evidence, the other incidents of 28 May and 25 June, and Mr Ehlers evidence at paragraph [62] below, I think it is likely that Z snapped at Ms XY’s hand. Even if this specific act of snapping did not occur, the broader incident was a significant event of concern.
54.One of the issues it raises on any view of the evidence is that it suggests that Ms XY struggled to control the dog. The respondent noted this as a general issue arising from this and some of the other incidents. Ms XY conceded that she has health problems and is a little bit weaker. She said that she wanted to get Z into some training so she can control her better, but she just had not had a chance to do so.[52]
[52] Transcript of proceedings 13 June 2019 page 16
Incident on 25 June 2019
55.After the hearing of this matter the respondent provided information in relation to an incident on 25 June 2019. One statement dated 30 July 2019 was given by Mr Guest, a senior ranger, who stated that on a visit by Ms XY and her son to Z that the dog began fence fighting with a dog in an adjoining yard; they were barking and growling at each other. He observed Ms XY’s son walk towards Z, and as he feared the dog may redirect her aggression to the boy he yelled at Ms XY to move her son away from the dog but she did not do or say anything in response. He saw Ms XY’s son grab Z by the collar and then Z bite him on his right forearm, and the boy then immediately let go of the dog. Ms XY’s son had two small bite wounds that had not punctured the skin. He terminated the dog visit.
56.This incident was confirmed by Ms Parker, a ranger, in a statement dated 29 July 2019. She stated that she saw the fence fighting; Z was lunging forward on her front legs, stiff throughout her body and her teeth were showing as she barked. She saw Ms XY’s son grab the dog by the collar, the dog spun her head around and bit the boy on the right arm and the boy recoiled and backed away. The boy she said looked forlorn and shocked. She saw two teeth indents and a slight tear in the skin but no bleeding.
57.Ms XY provided a statement in the form of an email response dated 12 July 2019. She stated that the other dog was off the lead and going at the fence, that the walkers of the other dog were able to get control of it, that “in the mean time my son, was trying to help (not so helpful) by pulling… [Z’s] tail, and trying to grab the collar”. She stated that Z “was a little worked up by this other dog and in the heat of the moment, she turned and nipped … [her son] on his arm … [but] [Z’s] teeth did not break the skin, it was more of a shock to … [her son], he was more disappointed in himself for not listening to me when I asked him to move away from the fence when it first started”.[53]
[53] Email from Ms XY dated 12 July 2019
Evidence of Mr Ehlers
58.Two reports were provided by Mr Ehlers who is the head instructor for Naughty Dog Training in Canberra. He stated he was a level 2 obedience instructor, a qualified dog training behaviourist and had over 25 years’ experience in canine behavioural training.
59.The first report of Mr Ehlers is dated 21 January 2019. Mr Ehlers interviewed Ms XY, who recounted the December 2018 incident, and he assessed the dog. He concluded that there appeared to be no significant concerns in relation to the dog and people; she appeared at ease with females and children; that she followed his commands and would let him touch her but she was noticeably more apprehensive; her response to him and the fact that she bit a male is a potential concern, although he noted that that could be a result of her pregnancy. He stated that a dog’s behaviour may change markedly given environment and pack situations, and he was unable to assess the dog in its own environment. He noted that obedience classes may assist the dog to follow commands; and Ms XY did not have a strong presence and struggled to give effective commands. Some behaviour modification and desensitising with male humans was also recommended.[54]
[54] Exhibit T1, pages T279-289; exhibit A8
60.Mr Ehlers gave a further report dated 22 May 2019. He was asked to assume the dog had witnessed abuse against its female owner by a male and had on one or more occasions been subject to physical abuse by the male. He stated that there is a possibility that the dog would be more protective of her owner, depending on the level of bond, in particular to males; dogs that are physically abused usually demonstrate fear aggression and would typically avoid males where possible; this can change if the dog was trying to protect its owner. He stated that experience would suggest that behaviour modification would reduce the risk or at least provide a responsible owner with skills to avoid/minimise risk.[55]
[55] Exhibit R1
61.He stated that given the same situation that saw the dog bite, you would expect but could not guarantee a similar response, though he noted that the fact that the dog was pregnant can produce different behaviour. He stated that where the dog was with an owner who adhered to a strict regime and where the dog underwent behaviour modification, that the level of risk would be reduced. He stated that he did not find the dog to be particularly aggressive and that it would need a certain level of stimuli for her to bite a human. He suspected and noticed that the dog was more inclined to show fear than dominant aggression, but that fear aggression was more unpredictable.[56]
[56] Exhibit R1
62.Mr Ehlers also gave oral evidence to the Tribunal. He was asked about the incident on 28 May 2019, but was a little reluctant to give an assessment since he did not see it. In relation to the incident on 4 April 2019 he noted that when a dog gets into a state where they are being quite aggressive through a fence, they really do not know what they are biting and quite often they bite their owner or they bite anyone who tries to stick their hand in there; he described it as a recipe for disaster. He noted that dogs are fairly predictable so if people are trying to grab this dog and pull it away from the fence there is a fair chance it would show redirected aggression in a similar situation.[57] He stated that it is not unusual for dogs to run up to fences at another dog and growl and carry on, that it is unusual for them to redirect aggression towards another human, but that can definitely happen.[58] These comments by Mr Ehlers also seem applicable to the later incident on 25 June 2019.
[57] Transcript of proceedings 3 June 2019 pages 102-3
[58] Transcript of proceedings 3 June 2019 page 109
63.He thought that the dog had an issue with other dogs, especially behind fences, so he would want to make sure that the dog was muzzled or at least double leaded when in public. He thought that was a lesser concern than the issue with Mr VW.[59]
[59] Transcript of proceedings 3 June 2019 pages 107-8
64.He thought the fact that the dog was outside its normal home environment would be relevant. A dog’s behaviour can change a lot if they are not in familiar surroundings. He understood that most dogs start to accept a new regime after about two weeks or a month, but that some dogs go the other way and become worse.[60]
[60] Transcript of proceedings 3 June 2019 page 109
65.In view of the biting incidents he said he would have concerns that the dog is not really responding to people in an appropriate manner.[61] He thought the relationship between Ms XY and Mr VW was relevant and that the dog might not think that Mr VW is behaving appropriately towards the dog’s owner and that this dog might be trying to protect the owner.[62]
[61] Transcript of proceedings 3 June 2019 pages 104-5
[62] Transcript of proceedings 3 June 2019 page 107
66.In view of what he was told and had seen he did not have a concern in relation to Ms XY’s children. He said that the level of concern would be the same for any large dog with children, which arose from the fact that they were big dogs with big teeth. Because the dog had grown up with the boys he did not think she would have a problem with them as they turned into men; other males might be an issue.[63] The evidence of the incidents on 28 May 2019 and 25 June 2019 casts doubt on this view; it seems that in some circumstances the dog may attack even Ms XY and her sons.
Report of Ms Gabriel
[63] Transcript of proceedings 3 June 2019 page 108
67.Ms XY provided a report from Ms Gabriel, Senior Behavioural Trainer with the RSPCA, who had care of Z for a period. Ms Gabriel stated that Z was initially wary and frightened but presented with no problems in the kennels and was not noted to be destructive. Staff had no issues walking her. Ms XY showed dedication by visiting her, and Z displayed a high level of tolerance to her children. The dog did not display any behaviours during her stay that suggested aggressive behaviour, other than reactive behaviour towards other dogs, however Ms Gabriel noted that this could have been frustrated behaviour. She stated that Z was able to accept a limited number of strangers, but noted that fear of strangers is an issue that an owner needs to manage. On two occasions Z demonstrated agility and an ability to climb fences. Ms Gabriel noted that the dog displayed a moderate degree of reactivity towards other dogs, that this may have been due to her pregnancy, but that the owner was advised to be cautious when in the presence of other dogs based on behaviour witnessed while in the RSPCA’s care.[64]
[64] Exhibit A9
Legal issues
Purpose of the Act
68.The long title of the Domestic Animals Act is “to provide for the identification and registration of certain animals and the duties of owners, carers and keepers, and for other purposes.” Those other purposes are not expressly stated but the respondent argued that a key purpose is to protect the safety of the public. I agree that provisions of the Domestic Animals Act suggest that this is a key concern. This has been confirmed by other tribunal decisions.[65] Indeed section 53C which is the focus of these proceedings expressly requires that the decision-maker must consider the safety of the public and other animals (section 53C(3)(a)(i)). But the Act puts in place a regulatory regime which impliedly recognises that dogs exist and play an important role in our society, and that their owners and they themselves should generally be able to operate within the confines of that regime. It seems to recognise that dogs as sentient beings should not be destroyed without good cause, but that the safety of people and other animals is such a good cause.
[65]Robertson v Domestic Animal Services (ACAT, 20 August 2009); Sarlija v Registrar, Domestic Animals Services [2012] ACAT 57 esp. at [43]-[45]; Lau v Registrar, Domestic Animals Act 2000 [2018] ACAT 119 esp. at [38]
69.There has been a long history of such regulation beginning in the ACT with the Dog Regulation Ordinance 1926, then the Dog Control Act 1975, and now the Domestic Animals Act. This history shows a developing regime which balances public safety with dog existence in varying ways. I think it is important to note that section 53C, the key section at issue in these proceedings set out above at paragraph [19] and discussed below, along with section 68A which is also noted below, were relatively recently introduced into the Act by the Domestic Animals (Dangerous Dogs) Legislation Amendment Act 2017. The overview in the explanatory statement for the Bill for that Act stated clearly that the Bill “toughens up the law to protect the public from dangerous dogs”. There were further government amendments to the Bill which provided “even stronger protections for public safety and animal welfare”. Part of this toughening up was said to be that where it is found that a dog has caused serious injury or death, the Registrar must destroy the dog, and where there are lower levels of injury the Registrar may destroy the dog. The explanatory statement provides some background to this toughening up which includes the death of a Canberra woman in 2017 in an attack by a dog previously known to authorities which it was said “has sadly highlighted long standing and widely held public concerns about the threat posed by dangerous dogs”. It was also noted that recent figures provided by the Government show that three people every week present to hospital emergency departments in Canberra because of dog attacks, and that the total number of attacks was far higher and that “many conscientious and responsible dog owners have seen their dogs attacked and, in some cases, killed by uncontrolled and dangerous dogs.”[66]
[66] Explanatory statement to the Domestic Animals (Dangerous Dogs) Legislation Amendment Bill 2017 at pages 1-2 and 5-6; explanatory statement to government amendments to the Domestic Animals (Dangerous Dogs) Legislation Amendment Bill 2017 at pages 2-3 and 14-15
70.To demonstrate the ongoing search for the right balance in this regard, there have been further recent amendments by the Domestic Animals (Dangerous Dogs) Legislation Amendment Act 2018 and the explanatory statement for the Bill for this Act recognised that dogs are an important part of the lives of many Canberrans; they are companions and often significant parts of people’s daily lives. But it also noted that dogs can cause injury and that there has been a rapid increase in the number of dog attacks reported in Canberra.[67]
[67] Explanatory statement to the Domestic Animals (Dangerous Dogs) Legislation Amendment Bill 2018 at page 2
71.Of course the requirements of the Act, in particular in this case section 53C, must be met before any action can be taken by the Registrar. But the meaning of the Act and section 53C that would best achieve its purpose is to be preferred, and regard can be had to the relevant explanatory statements to determine that purpose.[68] This purpose is significantly about protecting the safety of the public. This purpose is relevant to the exercise of discretions under the Act.
Destruction of a dog
[68] Legislation Act 2001, section 139. Explanatory statements can be used to determine the purpose in working out the meaning of the Act, see section 141
72.To this end the Act contains a range of provisions allowing for the destruction of dogs. First, section 68A allows for destruction if the Registrar reasonably believes that a dog is an unacceptable risk to the safety of the public or other animals and cannot be reasonably rehoused, retrained or otherwise rehabilitated so that the dog is no longer an unacceptable risk. As the respondent rightly argued this is not a high bar, which suggests the possibility of a destruction order without any attack, and simply on the basis of a risk to the safety of the public.
73.At the other end of the spectrum is section 53B which provides that if the Registrar is reasonably satisfied that a dog attacked a person or animal and the attack caused the death or serious injury to the person or the death of the animal the Registrar must destroy the dog. However, the obligation does not apply if the Registrar is reasonably satisfied that the dog is not likely to be a danger to the public (section 53B(3)), and the decision-maker may consider factors similar to those in section 53C(3). Serious injury is defined in the Dictionary to the Act as an injury that endangers, or is likely to endanger, the person or animal’s life or is, or is likely to be, a significant or longstanding injury. While there have been some attacks in this case, the respondent did not suggest that they resulted in serious injuries as defined in the Act.
Requirements for destruction under section 53C
Dog attacked a person
74.The most relevant provision in this matter is section 53C which is set out at paragraph [19] above. This is the section under which the Registrar’s destruction decision was made. First, this requires that the dog attacked a person.[69] There is no doubt that this requirement has been met here. Attack is not defined in the Act but in my view it means to set upon with force; begin hostilities.[70] An actual bite is such an attack; in my view an attempt to bite is also generally an attack. The evidence is that the dog attacked Mr VW in April 2018 and on 17 December 2018, attacked Ms XY’s son on 25 June 2019 , and probably attacked Ms XY herself on 28 May 2019 and Mr Tomlinson on 4 April 2019.
Injury or aggressive or menacing
[69] Section 53C(1)(a)
[70] Macquarie Dictionary
75.Section 53C also requires that there is an injury (other than a serious injury) to the person (section 53C(1)(a)(i)). Again this requirement has been met. There have been no serious injuries as defined in the Act; as noted this would require destruction subject to section 53B(3). But the general concept of injury is harm of any kind.[71] There was clearly an injury to Mr VW in April 2018 and on 17 December 2018, and to Ms XY’s son on 25 June 2019.
[71] Macquarie Dictionary
76.One alternative to the requirement that the dog attacked a person and caused injury is that the dog is aggressive or menacing.[72] It appears that this alternative has also been met because the dog attacked Mr VW on 17 December 2018, attacked Ms XY’s son on 25 June 2019, and also attacked Ms XY herself on 28 May 2019, though without injury, and Mr Tomlinson on 4 April 2019, also without injury.
[72] Section 53C(1)(c)
77.On this basis it seems clear that the decision-maker may decide to destroy the dog. But there is no requirement to do so, rather there is a discretion. The Act specifies some relevant considerations which I consider, and this includes any other relevant matter.
Safety of the public
78.In making a decision under section 53C, the Registrar must consider the safety of the public and other animals.[73] As discussed, the protection of the public is a purpose of the Act and the legislative regime it contains. It is unclear what public means here. The general legal definition is “the community as an aggregate, but not as an organised whole”, but it takes its particular meaning from the context in which the term is used.[74] The context here suggests that it means the community of people that the dog may come into contact with. It could be suggested that it means such people outside the domestic home in which the dog lives, but I do not think that is correct; I think they are included in the concept of public here.[75] But even if this is not the case the safety of members of the dog’s family can be considered as another relevant matter. I consider a number of people and groups of people who may come into contact with and be at risk from the dog.
[73] Section 53C(3)(a)(i)
[74] LexisNexis Concise Australian Law Dictionary, (LexisNexis, 4th edition)
[75] Lau v Registrar, Domestic Animals Act 2000 [2018] ACAT 119 at [69]
79.First, the applicant, who is the dog’s principal owner and carer. Ms XY has a close relationship with the dog. She says she obtains a lot of support from Z and that the impact of her companionship cannot be overstated. She visits the dog regularly when the dog is in the pound. She said she felt healthier and happier with the dog in the house. Ms Corlett confirmed conversations with Ms XY where she said that she and her kids felt safe when the dog was with them; she protected them.[76]
[76] Application; exhibit T1, pages T53-55; exhibit A2; transcript of proceedings 3 June 2019 pages 39, 45 and 76
80.But the incident on 28 May suggests that that the dog may in certain circumstances be aggressive and menacing toward and even attack Ms XY herself, though without injury on that occasion. Mr Ehlers confirmed the possibility of this scenario as discussed at paragraph [62] above, and this seems to be what happened on 28 May 2019. He noted that dogs are fairly predictable and that therefore Z may show redirected aggression again in a similar situation.[77] Therefore it seems possible that the dog would in some circumstances attack Ms XY again.
[77] Transcript of proceedings 3 June 2019 pages 102-3
81.Second, Ms XY’s children also have a strong bond with the dog. Ms XY said the children adore the dog and she thought they were better off with the dog. She stated that the children love her; they fight over her all the time, whose room she is going to stay in, sleep in and everything.[78] The applicant has no concerns for the children in relation to the dog, or for her friends and family.[79] She admitted that she knows dogs can seriously injure people but she did not think that there was a risk of Z seriously injuring anyone.[80] A friend of the applicant said the dog was an exceptionally well behaved and loving dog, friendly and good with the kids.[81]
[78] Transcript of proceedings 3 June 2019 page 45
[79] Transcript of proceedings 3 June 2019 pages 18-19 and 45
[80] Exhibit A6; transcript of proceedings 3 June 2019 page 48
[81] Transcript of proceedings 3 June 2019 page 46
82.Mr Ehlers stated that the risk of returning the dog to the house with children would depend on the children and what they do with the dog:
If the dog didn't see them as any sort of a threat, I don't know there would be too much of an issue. If they're tormenting the dog or teasing the dog in some way, well then it's more of an issue. It depends a lot on the children, as it always does depend a lot on the owner's, sort of how they respond and such. So it would depend.[82]
[82] Transcript of proceedings 3 June 2019 page 106
83.Mr Ehlers also raised issues about whether the relationship with the boys would change as they became adolescents, and stated that when boys start turning into men some dogs do not like that and become a little bit more dominant towards them and see them as more of a threat. But he did not think this would happen towards these children as they turn into men, because the dog has grown up with them. Other males might have an issue.[83]
[83] Transcript of proceedings 3 June 2019 page 108
84.The incident on 25 June 2019 suggests that the dog may in certain circumstances be aggressive and menacing toward and even attack and bite Ms XY’s children. It is noted that the bite was not a significant one. And this incident needs to be put in the context of the period when the dog has lived with Ms XY and her children apparently without major incidents.
85.But this needs to be balanced with other comments by Mr Ehlers that when a dog gets into a state where they are being quite aggressive, they really do not know what they are biting and quite often they bite their owner or they bite anyone who tries to stick their hand in there; he described it as a recipe for disaster. This seems to be what happened on 28 May 2019 and 25 June 2019. He noted that dogs are fairly predictable so if people are trying to grab this dog and pull it away from the fence there is a fair chance it would show redirected aggression in a similar situation.[84] Therefore it seems possible that the dog would in some circumstances attack Ms XY’s children again.
[84] Transcript of proceedings 3 June 2019 page 102-3
86.As a general comment I note that from the evidence before the Tribunal it seems that Ms XY is an excellent mother. But life has meant that her household faces various challenges which has led to some volatile situations. If Mr VW remains a presence in the house this volatility may continue. Further, a concern which I have is that as the boys get older and become adolescents they may have difficult interactions with Ms XY or Mr VW, and may have a range of adolescent friends in the house with whom they interact in varying ways, which might increase the volatility and have some effect on the dog.
87.Third there is Mr VW. He has been the victim of the most serious attacks by the dog. He is in my view a member of the relevant public, that is the community which is likely to interact with the dog. He is sometimes a member of the domestic family of the dog.
88.The applicant described her current relationship with Mr VW as: “I don’t know what it is at the moment. It hasn’t got a heading …”.[85] She said that during the course of the relationship she had had heated fights with him, which involved screaming and damage to property. She stated that when the dog was with her she felt safe because Mr VW “won’t start on us”. She stated “he doesn’t come over to the house knowing she’s there … because the dog will bark and carry on and he doesn’t want to have an altercation with it”. Over the last year or so she has called the police in relation to Mr VW eight or so times. [86]
[85] Transcript of proceedings 3 June 2019 page 17
[86] Transcript of proceedings 3 June 2019 pages 43-45; exhibit R5 in relation to which a confidentiality order has been made
89.In relation to the incident in April 2018, even on Mr VW’s account, noting that he himself did not give evidence, he was of the view that the dog did not really take to him but he was lying on the bed and gave her a cuddle, and on his view after pushing by Ms XY, he was bitten. On Ms XY’s account Mr VW and the dog were playing on the bed for about 15 to 20 minutes. Whatever the position there seems to be a significant assumption of risk by Mr VW. It seems clear to me that in the future Mr VW should be much more cautious in relation to the dog.
90.In relation to the incident in December 2018 this was clearly a significant injury to Mr VW. But the circumstances were very unusual, and I discuss below that I think they fall within section 53C(3)(a)(ii)(A) or (B) as relevant considerations in relation to whether a destruction order should be made based on them. But I also note that Mr VW was clearly in a very difficult state when the incident occurred; it is accepted by the parties that he made a real attempt to kill himself. Given this charged environment it is difficult to assess the risk of such an attack happening again.
91.When Mr Ehlers was asked if he would have concerns about this dog returning to a house that is visited by, periodically, the male who was the subject of the two attacks he said yes.[87]
[87] Transcript of proceedings 3 June 2019 page 106
92.The evidence before the Tribunal makes clear that Ms XY and Mr VW have a volatile relationship. It seems that this relationship may continue. Again any future volatility may have some effect on the dog. In my view there is clearly a risk to Mr VW in the future. It seems that Mr VW’s behaviour adds to that risk. But nonetheless he is a person whose safety must be considered in making a decision under section 53C, and that safety is at some risk from the dog.
93.Fourth, there is also the category of other males with deep voices. Ms XY agreed that the dog had had an issue with deep male voices,[88] and that she said to the vet that the dog was wary of males with deep voices.[89] However, she stated that was on the basis of what she had been told by the previous owner.[90] There is some possibility therefore of a heightened risk for males with deep voices, but it is difficult to assess this.
[88] Transcript of proceedings 3 June 2019 page 22
[89] Transcript of proceedings 3 June 2019 page 40
[90] Transcript of proceedings 3 June 2019 page 39
94.Fifth, as to other people who come into contact with the dog, Ms XY and others who provided statements on her behalf stated that she was an exceptionally well behaved and loving dog, friendly and good with kids.[91]
[91] Transcript of proceedings 3 June 2019 page 46
95.It does not seem that the dog went into the broader community much. The incidents at the pound suggest that there would clearly be issues in relation to her relationship with other dogs, and perhaps people, if that were to occur. But there is no evidence of biting of people in the general community. The visit to the vet shows that Ms XY takes care to manage any interactions between the dog and others outside the house.
96.Sixth, as to the danger to other dogs, the applicant stated that while Z did not like other dogs, she had never seen her attack another dog. The evidence of Ms Gabriel suggested Z has an issue with other dogs. The evidence of the incidents at the pound confirms that Z does not get on with other dogs, and she has engaged in significant aggression and fence fighting on occasions. But as Ms XY noted, while at the kennel Z was growling and leaping at the fence, so was the other dog.[92] Mr Ehlers stated that dogs fence fighting can be a little bit similar to human road rage, where the person can be quite animated and verbally aggressive because they know they are pretty safe in their car; when a dog was going at a fence, they know the other dog cannot get to them, so they're quite a bit braver.[93] While this is noted, these incidents and Mr Ehlers’ evidence suggest that worryingly it is those looking after Z who may be most at risk in such situations.
Circumstances of the attack
[92] Transcript of proceedings 3 June 2019 page 41
[93] Transcript of proceedings 3 June 2019 page 102
97.The Act also requires the decision-maker to consider the circumstances of the attack including whether the person or animal provoked the dog, and whether the person or animal was attacked because the dog came to the aid of a person or animal the dog could be expected to protect.[94] The decision-maker must also consider if the attack was on premises occupied by the keeper of the dog, the person or animal was on the premises without lawful excuse, but that is not relevant here. It seems that the existence of such circumstances weighs against making a destruction order.
[94] Section 53C(3)(a)(ii))(A) and (B)
98.As to whether Mr VW provoked the dog in the December 2018 incident, ‘provoke’ is not defined in the Act but generally means:
1. to anger, enrage, exasperate, or vex;
2. to stir up, arouse or call forth;
3. to incite or stimulate (a person etc.) to action
4. to give rise to, or bring about.[95]
[95] Macquarie Dictionary
It is impossible to tell what motivated the dog. But it is possible to see what actions were called forth or brought about. There was some evidence that Mr VW pushed a scooter and hit the dog in the face. It was said that the dog responded by biting Mr VW. If this is correct it seems clear that Mr VW provoked, as in called forth or brought about, the bite.
99.But even if this is not correct, it seems to me that Mr VW was attacked because the dog came to the aid of a person the dog could be expected to protect, namely Ms XY. Ms XY was the principal owner and carer of Z and she gave evidence that the bond between her and the dog was and is very strong. The dog may have seen other instances of Mr VW verbally abusing Ms XY (see paragraph [88] above). At any rate as discussed the evidence is that Mr VW and Ms XY were yelling at each other within a very charged atmosphere at the time of the December 2018 bite, and this involved Mr VW verbally abusing Ms XY. I do not think it is necessary for Mr VW to have actually physically assaulted Ms XY for the requirements in section 53C(3)(a)(ii)(B) to be met. A dog or person can come to the aid of a person who is being verbally abused. As with the concept of provoke in section 53C(3)(a)(ii)(A) discussed above, it is impossible to tell what motivated the dog. But it is possible to see what actions were called forth or brought about. It seems likely that the attack on Mr VW was called forth or brought about because the dog came to the aid of Ms XY, who was being verbally abused, and Ms XY was a person the dog could be expected to protect. The evidence of Mr Ehlers at paragraphs [60] and [65] above noted this as a possibility. The fact that Ms XY and Mr VW were having a heated argument does not detract from this conclusion.
Any other relevant matter
100.The decision-maker may consider any other relevant matter. I note several relevant matters. One is that there are alternatives to a destruction order. An alternative would be training of the dog. Ms XY indicated that she would be willing to undertake this. Mr Ehlers stated that he would not put the dog in obedience classes, because of her attacking the other dogs near the fence line, but this could involve a behaviourist visiting the home where the dog is. But he noted that this was not an exact science, so you are not really sure how much improvement you would get, but you would like to think there would be improvement.[96] Given the seriousness of the attacks and the uncertainty of the outcome, I do not think that this would be sufficient to address the safety of the public concern in this case.
[96] Transcript of proceedings 3 June 2019 pages 105-6
101.An alternative would be to rehouse or sell the dog. Given the incidents discussed in this decision this would seem difficult. The respondent did not indicate that this was an option.
102.Another alternative would be to issue a control order under sections 53C, 53CA and 70. The respondent provided a draft order at the hearing. But the respondent noted that, in their view, the requirements for releasing a seized dog were not met. A dog seized under section 56 can only be released if there is not an unacceptable risk to the safety of the public and other animals from the dog being released (section 62(2)(h)). A dog seized under section 59, which it appears that Z was, can only be released if there is not an unacceptable risk to the safety of the public from the dog being released and kept in accordance with the conditions of any control order (section 64(2)(h)). The respondent doubted that these tests could be met in this case. Further, there is doubt that the terms of the control order proposed, or any possible control order, could appropriately protect the public, in particular the domestic family, in this case.[97]
[97] Transcript of proceedings 13 June 2019 pages 40-44
103.Another alternative would be an order that the dog is a dangerous dog under section 22. Section 22(2) allows the decision-maker to declare a dog dangerous if it has attacked or harassed a person. The incidents discussed above show this to be the case. The respondent submitted that if a destruction order was not made, then this was the next appropriate alternative.[98]
[98] Transcript of proceedings 13 June 2019 pages 41-44
104.It is also relevant that Ms XY has managed the dog for a period of time without incident. She strongly believes that Z should not be destroyed and is supported in this view by some members of her family and friends. The applicant said she would be happy with rehoming the dog, a declaration that Z is a dangerous dog, and having training for the dog.[99]
[99] Transcript of proceedings 3 June 2019 page 46
105.It is also relevant that Mr Ehlers as an expert has concerns about the dog. His evidence indicated the complexity of the situation, but did indicate significant risks. Further, the original destruction decision of the respondent, and the evidence from officers of the Domestic Animals Services Unit indicate a significant concern in relation to the risks posed by the dog. These are officers who regularly deal with dogs and their views are therefore informed by significant experience. The original decision-maker made the destruction decision, and as discussed above the RAC made a unanimous decision for destruction. Ms Corlett, the investigator, did not make any recommendation which reflected the complexities in this case. Ms Corlett gave evidence that in light of the subsequent events not discussed in her submission she would have looked at either dangerous dog order or a destruction order.[100]
Balancing the factors
[100] Transcript of proceedings 3 June 2019 page 87
106.I found this a very difficult decision. It raises acutely the tension between on the one hand the important positive role that dogs can play in our society; Z is of significant benefit to Ms XY and her family. And on the other hand the safety of the public, including Ms XY and her family; there is no doubt that Z poses some risk to the public, including Ms XY and her family. I found it useful to divide the consideration into the incidents in 2018 which involved principally Mr VW, and the incidents in 2019 which involved a broader range of people.
The incidents in 2018
107.In relation to the attacks on Mr VW in 2018 I think that the requirements for a destruction order under section 53C are met. The attacks in both April 2018 and December 2018 were attacks which caused an injury to Mr VW.[101] The decision maker is not obliged to destroy the dog under section 53B of the Domestic Animals Act, but may do so under section 53C.
[101] Section 53C(1)(a)
108.As discussed, the decision-maker must consider in these circumstances the safety of the public and other animals,[102] but the evidence was that the dog was a danger to only one person. And that person had a history of verbally abusing Ms XY and was doing so when the principal incident occurred in December 2018. Mr VW was clearly in a very bad way at that time, but it is not unreasonable to expect Mr VW to adjust his behaviour to address his relationship with the dog and Ms XY in the future. There was in fact evidence that Z kept Ms XY safe, and at least she felt safer with her around (see paragraph [88] above).
[102] Section 53C(3)(a)
109.There was no evidence of attacks or aggressive or menacing behaviour against any other persons. There was significant evidence that when at home the dog was an important family pet who behaved appropriately in relation to family and friends, leaving aside Mr VW.
110.As also discussed, the decision-maker must consider the circumstances of the attacks.[103] On the principal occasion in December 2018 when Mr VW was attacked, this was because the dog came to the aid of Ms XY as a person the dog could be expected to protect.[104] It also seems likely that Mr VW provoked the dog.[105] In relation to the incident in April 2018 there seems to be a significant assumption of risk by Mr VW in playing with the dog on a bed which he was aware did not like him during which the incident occurred.
[103] Section 53C(3)(a)(ii)
[104] Section 53C(3)(a)(ii)(B)
[105] Section 53C(3)(a)(ii)(A)
111.In my view these very unusual incidents suggest that the behaviour of the dog could be managed by an order that she is a dangerous dog under section 22 or a control order under sections 53C(4),53CA and 70(4).
112.If the evidence had been left on this basis, the Tribunal would have not made an order for the destruction of the dog. But it would have made an order that she is a dangerous dog under section 22 or issue a control order under sections 53C(4), 53CA and 70(4).
Incidents in 2019
113.But the respondent provided further more recent evidence in the hearing that Z on occasions has been aggressive or menacing to other dogs when held at the pound. Importantly, the evidence was also that on one occasion the dog tried to bite an officer of Domestic Animals Services, on another Ms XY herself, and more recently had actually bitten Ms XY’s son. The basic facts in this regard were not disputed by Ms XY. It is noted that as discussed at paragraph [52] above while Ms XY conceded that the dog “jumped up”, she denied she snapped at her. Ms Granville-Edge stated that Z snapped at Ms XY’s hand; I think it is likely that Z did so; but even if this specific act did not occur, this was a significant event of concern.
114.These incidents suggest that the safety of a broader range of people is at risk from the dog, including members of the domestic family of the dog and others who might come into contact with her.
115.These incidents do not fall within any of the specific categories set out in section 53C(3)(a)(ii). Rather the evidence in relation to them and that of Mr Ehlers was that the interaction of the dog with other dogs and humans resulted in the dog getting into a state where it was quite aggressive.
116.The regime in the Domestic Animals Act, including that concerning a destruction decision under section 53C, seeks to protect the safety of the public, including in my view those in the dog’s domestic home. The evidence of aggression towards her domestic family and a worker at the pound is a worrying development when added to the evidence of the earlier attacks.
117.While Ms XY and a number of her family and friends were strongly supportive of saving the dog, the evidence of an expert Mr Ehlers and of officers of the Domestic Animals Services showed significant concern as to the risk posed by the dog including to her domestic family.
118.It also appears that Ms XY struggles to control the dog when it is in a state which may lead to aggression. It does seem that volatile situations, male voices or interactions with other dogs may put the dog in a state which leads to aggression, and such situations are likely to occur in the future.
119.There is doubt that a dangerous dog order under section 22 or a control order under sections 53C(4),53CA and 70(4) can address these concerns. For example the regulation of dangerous dogs in sections 26, 27, 28 and the Regulations seem to focus on protecting members of the general public external to the dog’s domestic family. Similarly, the draft control order provided by the respondent focusses on keeping Z in a secure yard and managing her interactions with others when she leaves the home. But the incidents suggest that it may be the dog’s domestic family which is the at most risk. I have real doubts that these arrangements can address the risk which is posed by the dog to its domestic family.
120.In the end I think that the safety of the public, including Ms XY, her children, Mr VW and others caring for Z, is the principal purpose behind the Act. Recent amendments and the explanatory statements for these confirm this. And this purpose should be given the greater weight in decision making under the Act. When the evidence suggested that the risk was just to Mr VW, I think that this could have been managed without a destruction order. Given the incidents in 2019 show that the risk may be to Ms XY, her children or others caring for the dog, and I have real doubts whether these can be managed in other ways, I think the safety of the public suggests that a destruction order should be made, even though this will be distressing for Ms XY and her children.
121.This leads the Tribunal very reluctantly to decide that a destruction order should be made.
………………………………..
Senior Member R Orr QC
HEARING DETAILS
FILE NUMBER:
AT 17/19
PARTIES, APPLICANT:
Ms XY
PARTIES, RESPONDENT:
Registrar, Domestic Animals Act 2000
COUNSEL APPEARING, APPLICANT
N/A
COUNSEL APPEARING, RESPONDENT
Mr Nigel Oram
SOLICITORS FOR APPLICANT
N/A
SOLICITORS FOR RESPONDENT
ACT Government Solicitor
TRIBUNAL MEMBERS:
Senior Member R Orr QC
DATES OF HEARING:
3 June 2019, 13 June 2019
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