Younger v City of Gold Coast Council
[2025] QCAT 402
•21 October 2025
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION: YOUNGER V CITY OF GOLD COAST COUNCIL [2025] QCAT 402 PARTIES:
KAREN YOUNGER (applicant)
v
CITY OF GOLD COAST COUNCIL (respondent)
APPLICATION NO:
GAR290-24
MATTER TYPE:
General administrative review matters
DELIVERED ON:
21 October 2025
HEARING DATE:
30 September 2025
HEARD AT:
Southport
DECISION OF:
Member McVeigh
ORDER:
The decision of the City of Gold Coast Council to declare Shuggy to be a regulated (dangerous) dog is set aside.
APPEARANCES & REPRESENTATION:
Applicant:
Self-represented
Respondent:
Woods Hatcher Solicitors
REASONS FOR DECISION
What this application is about
On 24 June 2022 there was an incident at the off-leash dog park at Nick Pavlis Park. By letter dated 28 March 2024 the City of Gold Coast Council (City) confirmed the original decision to declare Shuggy, one of the dogs present when the incident occurred, to be a regulated (dangerous) dog. Shuggy’s owner, Karen Younger, wants that decision to be set aside. Shuggy is a desexed male Irish wolfhound neo mastiff crossbreed.
Legal framework
The management of dogs by the humans who own them is regulated by the Animal Management (Cats and Dogs) Act 2008 (Qld) (the Act). The purposes of the Act include promoting the responsible ownership of dogs and providing for the effective management of regulated dogs.[1] These purposes are primarily achieved by imposing obligations on owners to exercise effective control of dogs in particular circumstances and ensure dogs do not attack or cause fear.[2]
[1]The Act s 3.
[2]Ibid s 4(m).
The Act gives local government the power to declare a dog to be menacing or dangerous, in each case described under the umbrella of regulated dog. The purpose of declaring a dog to be a regulated dog is twofold:
(a)to protect the community from damage or injury, or risk of damage or injury, from regulated dogs; and
(b)to ensure that regulated dogs are:
(i) not a risk to community health or safety; and
(ii) controlled and kept in a way consistent with community expectations and the rights of individuals.[3]
[3]Ibid s 59.
City’s role
If a dog:
(a)has attacked (but not seriously), or acted in a way that caused fear to, a person or another animal, or
(b)may, in the opinion of an authorised person having regard to the way the dog has behaved towards a person or another animal, seriously attack, or act in a way that causes fear to, the person or animal
a local government authority may declare a particular dog to be a declared menacing dog.[4]
[4]Ibid s 89(3).
If a dog:
(a)has seriously attacked, or acted in a way that caused fear to, a person or another animal, or
(b)may, in the opinion of an authorised person having regard to the way the dog has behaved towards a person or another animal, seriously attack, or act in a way that causes fear to, the person or animal
a local government authority may declare a particular dog to be a declared dangerous dog.[5]
[5]Ibid s 89(2).
Seriously attack means:
(a)in relation to a person, to attack the person in a way that causes the death of, or grievous bodily harm or bodily harm to, the person; or
(b)in relation to an animal, to attack the animal in a way that causes the death of the animal, or maims or wounds the animal.[6]
[6]Ibid s 89(6).
‘Grievous bodily harm’ and ‘bodily harm’ have the meanings given by the Criminal Code Act 1899 (Qld) (‘Criminal Code’), s 1.[7] Under the Criminal Code: ‘bodily harm’ means any bodily injury which interferes with health or comfort; ‘grievous bodily harm’ means the loss of a distinct part or an organ of the body; or serious disfigurement; or any bodily injury of such a nature that, if left untreated, would endanger or be likely to endanger life, or cause or be likely to cause permanent injury to health; whether or not treatment is or could have been available.
[7]Ibid sch 2.
Attack is not defined. In the Macquarie Dictionary attack is relevantly defined to mean to set upon with force; begin hostilities against; attack the enemy.
Before making a regulated dog declaration the City must give the owner a chance to make written representations to show why the proposed declaration should not be made.[8]
[8]Ibid s 90.
If the proposed declaration notice is for a dangerous dog declaration the owner of the dog the subject of the proposed declaration notice must ensure the dog is muzzled when not at home.[9]
[9]Ibid s 93.
The City must consider any written representations and evidence accompanying them and if it is satisfied that the relevant ground still exists, it must make the regulated dog declaration for the dog.[10]
[10]Ibid s 94.
If a regulated dog declaration is made by a local government or authorised person appointed by a local government, the owner of the dog may apply to the chief executive officer of the City for an internal review of the decision.[11]
[11]Ibid s 181(2).
The internal review must not be dealt with by:
(a)the person who made the original decision;
(b)a person in a less senior office than the person who made the original decision.[12]
[12]Ibid s 185(2).
If the designated review decision confirms the original decision, for the purpose of an application for external review, the original decision is taken to be the designated review decision.[13]
[13]Ibid s 185(4).
The chief executive must, within 10 days after making a designated review decision, give the applicant notice (the review notice) of the review decision.
The tribunal’s role
A recipient of a review decision by the chief executive is entitled to apply to this tribunal for an external review of the decision.[14]
[14]Ibid s 188.
The tribunal conducts a fresh hearing on the merits, taking into account not only the material before the original decisionmaker, but also all the evidence before it, in order to come to the correct and preferable decision based on the law as it stands, not as it was 24 June 2022.[15]
[15]Builders Licensing Board v Sperway Constructions (Syd.) Pty Ltd (1976) 135 CLR 616.
I am bound to follow decisions of the appeal tribunal.[16] In Brisbane City Council v Roy[17] it was decided that if the local government authority is satisfied about the facts out of which the power to make the proposed dangerous dog declaration arises, the power must be exercised. There is no discretionary element involved. If the grounds of the proposed regulated dangerous dog order are not made out, then the regulated dog declaration proposed cannot be made and nor can any other order. This is the case because the mandatory notice provisions relate only to the proposed order.
[16]Clark v Queensland Building and Construction Commission [2024] QCAT 329.
[17][2020] QCATA 147.
In Lee v Brisbane City Council (Lee),[18] a judgment of the Court of Appeal, the Court said that it will be a question of fact whether what a dog does amounts to an attack. In Murdock v Brisbane City Council,[19] Member Mott said that Lee stood for the following propositions:
(a)whether a dog’s behaviour amounts to an attack is a question of fact;
(b)hostile behaviour by the victim is a relevant consideration;
(c)whether the dog is acting in self-defence is a relevant consideration; but
(d)even if there is aggression or hostile behaviour from a victim, it is still possible to conclude that a dog attacked the victim.[20]
[18][2012] QCA 284, [10]–[12].
[19][2025] QCAT 297.
[20]Ibid [37].
In Smart v Mackay Regional Council[21] Member Ellis dealt with an incident involving a dog in a chicken coop. Her concern was whether the dog’s actions constituted an attack or whether the dog was simply (in its mind) playing. On the facts of that case, it was found that the dog did not growl, bark, yap aggressively or charge at a person. When the owner of the chickens went into the coop the dog released the chicken from under its paw, sat on command of a stranger and allowed the owner of the chickens to attach a lead to its collar and tie it up. Member Ellis was satisfied that if the dog had wanted to kill the chicken it could have done so easily. The fact that the chicken was not killed supported the finding that the dog thought it was a great game rather than it was going for the kill.
The evidence
[21][2019] QCAT 236.
Karen Younger
Ms Younger is the owner of Shuggy. She made an affidavit[22] and was cross-examined.
[22]Exhibit 2.
She made her first statement describing the incident on 12 July 2022.[23] She described the incident in the dog park as follows:
[23]Hearing book pp 168–172.
My dog Shuggy was happy and relaxed while playing with two of his staffy friends for 20 minutes…
When I noticed a woman approaching the fenced dog park with her kelpie, I started to make my way to the gate to leave…
Shuggy … was sitting waiting patiently at the inside gate.
The owner of the kelpie shouted if she was okay to enter. The owners of the two staffys said okay. I did not respond as I was walking towards the gate in the process of leaving.
…
While walking towards the gate to collect my dog and go home and (sic) witnessed my dog sitting, though starting to tap dance and get excited to meet the kelpie.
After the kelpie and owner entered the dog park my dog started sniffing her dog. I heard her shout loudly and saw her strike my dog, I heard ‘get away’ repeated loudly.
The kelpie owner was still at the gate… she lifted up her dog.
Shuggy was getting mixed high energy signals from the kelpie owner.
Shuggy was in shock, unsure of how to respond to the kelpie owner. We are a quiet family and never strike, shout or threaten each other.
I arrived at the gate seconds later. The kelpie owner was now on the ground trying to restrain her excited dog.
I easily grabbed my dog by the collar and put him out the gate, where he sat patiently and silently waiting for me.
The first thing the kelpie owner said was ‘I know I shouldn’t get in the middle of a dog fight’ placing herself as the antagonist at the heart of the supposed danger.
The kelpie owner said ‘I’m sorry Dusty, that was all my fault’, … She kept on repeating that it was all her fault. Whilst holding her dog very, very tightly.
I asked her if she was okay, she said yes.
The kelpie owner continued to hold her dog very tightly and he was frantically trying to get free.
I noticed a little bleeding and looked everywhere. It was coming from her palms which were around her dog’s claws. Her dog’s nails were scratching her hands and making them bleed.
…
Ms Younger says that later that day she was called by the kelpie owner who ‘bullied’ her to pay the vet bill, threatening to come to her home to collect $200 in cash if she did not go to the vet’s premises to pay the bill.
In cross-examination she denied that the fact she had paid the vet’s bill was an admission. She said she paid the bill because she was terrified of what Ms Angela Wheatley might do if she didn’t pay.
She says that she walked to the vet’s with Shuggy. When they arrived Ms Wheatley said ‘oh there you are, is THAT your dog’. She did not see any injuries on the kelpie. She paid the invoice and received a receipt.
Ms Younger concluded her statement by writing:
Unfortunately this incident has happened, and I acknowledge that Shuggy and myself have enrolled in personal dog training. He is a wonderful animal with a friendly demeanour. He responded in fear and has not ever exhibited vicious or dangerous propensities in the past. Our family now suffers with emotional distress. My dog was provoked by the alleged victim contributing to the alleged incident at the most dangerous and unpredictable area of the dog park. I have never witnessed my dog cause harm or fear to another person.
In cross-examination Ms Younger denied that her statement ‘Unfortunately this incident has happened…’ was an admission that Shuggy had attacked anyone. She said she meant that the incident had happened to Shuggy, triggering a fear response.
Ms Younger made further passionate representations to the City on 12 September 2022 in response to the proposed regulated (dangerous dog) declaration.[24] They included a ‘millisecond by millisecond analysis of what actually happened at the dog park on 24 June 2020’. She wrote:
[24]Exhibit 1.
Ms Younger would never allow her dog to charge or rush at strangers, one older woman and a puppy kelpie…
Shuggy initiated play with Dusty
Angela started shouting loudly and repeatedly …at Shuggy to ‘GET AWAY’
Angela misinterpreted Shuggy’s excited dog behaviour … as aggression …
…
Shuggy has not initiated any physical contact with Angela or Dusty at this time…
…
Angela bent down to pick up Dusty in her arms, she could not hold his weight on her legs and fell to the ground on her bum with Dusty tightly gripped in her arms …
Ms Younger was now next to Angela, with Shuggy on his belly playfully nuzzling the back leg of Dusty, trying to get him to play …
…
I did not allow my dog to charge at an unknown old woman and her dog. I did not allow my dog to attack her or her dog.
With the new knowledge of this unique event a stranger misinterpreting my dog’s boisterous playful behaviour as being threatening … as soon as I learned from the altercation that my dog has a fear trigger I paid for ongoing one on one training for behaviour modification for Shuggy and I (sic).
…
After the incident… Angela was hysterical…
For the first 5 minutes Angela could barely string a coherent sentence together
…
The first thing [she] said was ‘I know I shouldn’t get in the middle of a dog fight’.
… she kept on repeating it was her fault
…
At no point did Shuggy scratch or bite Angela
The submissions of 12 September 2022 also included commentary on documents provided by the City as follows:
(a)Shuggy did not attack anyone;
(b)Ms Younger witnessed a single tooth mark – no blood, on the hind leg of the dog. No significant injury to the skin or soft tissue.
(c)The vet reported 3 play bite marks/nips all if (sic) which did not need any stitches …
(d)Shuggy was silent, not growling …
(e)Ms Wheatley DID NOT jump on her dog …
(f)Ms Wheatley appeared to be hysterical and delirious …;
(g)Shuggy was not placed over the fence. Ms Younger safely and quickly took the dog by the collar through the first latched gate …
Ms Younger was critical of errors in the City’s documents and also of unconscious bias due to the language used.
She set out the positive steps she had taken after the incident to understand and manage triggers to Shuggy’s behaviour.
Ms Younger explained the important role that Shuggy plays in her life. She wrote:
The proposal reads like Shuggy was a viscous attacker. Quite the contrary. He wanted to play with the dog and a shy dog and an abusive, hysterical human triggered my dog into play biting and fear reacting.
Ms Younger attached six letters from members of the community who have known her and Shuggy for years. Each of them supports Ms Younger and opposes the proposed declaration that Shuggy is a dangerous dog. They are not relevant to resolving the question before me.
Ms Younger made an affidavit[25] and was cross-examined.
[25]Exhibit 2.
I will not set out Ms Younger’s complaints about the process followed by the City. Many of those complaints are either unfounded or of no relevance to the matter before me. My task in this hearing de novo is to assess the evidence before me.
Angela Wheatley
Ms Wheatley was caring for Dusty, her daughter’s kelpie pup, on Friday 24 June 2022. She gave a statement on 28 June 2022.[26]
[26]Hearing book pp 159–61.
She said:
…there were 3 dogs … and they were all running along the fence line as Dusty … and I were also running towards the entry gate. We got to the first gate and went into the pre-entry section … Dusty was still on his lead standing at the gate waiting for me to let him in. Before I opened the gate the large black and white dog was waiting at the gate and I yelled out to the 2 women that were standing towards the other end of the area ‘are they friendly?’
The reply was yes they are fine, just take your dog’s lead off before letting him in the gate. …
Dusty was about to run into the park as he had done on other days when we had been to this park… as soon as he went into the run the large black and white dog attacked him and started to drag him away and Dusty was trying to get away but the dog was all over him attacking him. I threw myself onto Dusty to try and (sic) protect him and in the process of my actions, I had put myself in a position of direct attack as the dog continued to try and attack Dusty.
At another moment during the attack, the dog latched onto my left side of my upper chest and ripped my T-shirt, this was a direct attack on me at this stage. Dusty sustained approximately 6 puncture wounds to his chest and legs and I sustained approximately 15 wounds mainly on my right hand and forearm, scratches and 2 fingers on my left hand had gone blue (I didn’t really notice this at the time as I just saw blood on my hands and on Dusty). I don’t really recall seeing who got the dog away from us but Dusty and I were sitting on the ground and I was holding Dusty not really knowing how much injury he had sustained. The other woman (owner of the other 2 dogs) that was in the park phoned the … vet. We saw the vet, he checked Dusty’s wounds and ability to walk. He wasn’t able to walk as he was limping on his back leg and front leg. The vet … administered antibiotics and pain relief via injection.
I then went to the nearest Doctor’s surgery …given antibiotics.
Ms Wheatley made an affidavit on 21 February 2025.[27] The affidavit was essentially a repetition of her evidence from her statement.
[27]Hearing book pp 1–11.
Ms Younger prepared a detailed written response to Ms Wheatley’s affidavit.[28] In it she pointed to various inconsistencies with other evidence, internal contradictions and a lack of independent or objective evidence to support various statements. They included:
(a)Ms Wheatley’s statement that Shuggy was ‘waiting at the gate’ before she opened the gate to the dog park which was inconsistent with Ms Brown’s statement that she took her dogs to the far back corner of the park with Shuggy to allow space for Dusty to get into the park.
(b)A lack of specifics as to how ‘the attack’ was allegedly initiated or how Dusty was ‘dragged away’.
(c)Ms Wheatley’s failure to mention which of her hands Shuggy allegedly had in his mouth.
(d)Describing the number (15) and type of wounds (puncture) to her right hand in a manner inconsistent with the photographs.
(e)Failing to provide any independent medical evidence about the nature of the wounds or about the post-traumatic stress she allegedly suffers since the incident.
(f)Exaggerating Dusty’s injuries by saying he ‘couldn’t walk’ whereas the vet reported that Dusty was limping.
[28]Exhibit 4.
Ms Wheatley attended for cross-examination by video link. She gave a much more dramatic and detailed account of events in her cross-examination than in the statement she made days after the incident. I have no doubt that the events at the dog park on 24 June 2022 were very stressful for Ms Wheatley. Given the lack of detail in her contemporaneous statement, her inability to recall who moved Shuggy away from her as she sat on the ground clutching Dusty and her concession during cross-examination that she could not recall who said what at the time because she was traumatised, I have no hesitation in accepting that she was in shock as events unfolded and that her focus was on Dusty. While she was unshaken in cross-examination in her belief that it was Shuggy that ‘attacked Dusty, biting him wherever he could latch onto’ I treat her evidence with considerable caution.
Ms Wheatley saw her own doctor the next day who treated an infection in the open wounds. She did not ask for a doctor’s certificate and she has not sought help to manage her fear of large dogs.
Marie Brown
Ms Brown was at the dog park on 24 June 2022 with her ‘pups’.[29] She gave a statement on 13 July 2022.[30] She said:
The mastiff X and owner entered and all 3 pups played perfectly fine.
A lady walked up to the gate with her kelpie pup and asked if our pups were friendly. I reply (sic) mine are.
I took my pups to the far back corner of the park with the mastiff dog to give the pup space to get in.
The kelpie pup got half a metre into the park and the mastiff had the kelpie in his mouth and attacking it. The owner of the dog was on the ground trying to protect their kelpie. Mastiff owner was trying to get the mastiff.
I tried to keep my pups out of the attack. Hoping the ladies could stop it.
I ran down. Grabbed the mastiff. He had the kelpie owners hand in his mouth so I released and re grabbed him by the collar/scruff while he wasn’t biting and put him in the side pen.
Took the kelpie and kelpie owner to get vet and doctor treatment.
[29]Her dogs were Staffordshire terriers.
[30]Hearing book pp 188–90.
She added a comment that ‘Pawsome academy had some incidents with the mastiff biting other dogs there also’.
Ms Brown made an affidavit on 19 February 2025.[31] The affidavit was essentially a repetition of her evidence from her statement.
[31]Ibid pp 12–3.
Ms Younger prepared a detailed written response to Ms Brown’s affidavit.[32] In it she pointed to various inconsistencies, internal contradictions and a lack of independent or objective evidence to support various statements. Ms Younger suggests that Ms Brown is not an independent witness as her dogs were involved in the incident. She questioned the accuracy of, and motive behind, Ms Brown’s comment about Shuggy’s behaviour at Pawsome academy. Ms Younger attached a bundle of Daycare report cards from Pawsome Academy which support of her argument that Shuggy is playful and not aggressive. The reports from Pawsome Academy are irrelevant, but Ms Younger’s criticism of Ms Brown for raising the allegation in her first statement is not without merit.
[32]Exhibit 6.
Ms Brown attended for cross-examination by telephone. She confirmed that Shuggy was in a playful mood. She said that he was not aggressive towards her. She heard Ms Wheatley call out things such as ‘stop it’, ‘get it off’ and ‘help’. She was yelling at her two dogs to keep them away from Shuggy and Dusty.
The version of events Ms Brown gave in evidence differed in some respects from her statement on 13 July 2022. When giving her evidence she said that:
(a)Shuggy peeled down the hill to the gate, a distance of about 200 m;
(b)when she got involved (which was after it occurred to her that the two ladies did not have things under control because of the screaming, yelping and barking she heard) Shuggy had the lady’s hand and the pup in its mouth;
(c)she observed bite marks on the lady’s hands and arms;
(d)she observed blood on the pup who was yelping in an unhappy fashion;
(e)she had no difficulty getting Shuggy over the gate as she is used to lifting 50 kg buckets in her work environment.
I formed the view that Ms Brown had a tendency to exaggerate, adding colour to her oral evidence that was inconsistent with, or additional to, the statement she gave shortly after the incident. By way of example, she first said that Shuggy ‘had the kelpie owner’s hand in his mouth’ and subsequently said Shuggy had ‘the lady’s hand and the pup in its mouth’. A second example relates to her observation while giving evidence that there were ‘bite marks on the lady’s hands and arms’ which was neither supported by the photographs or evidence of Ms Wheatley.
Rogers
Dean Rogers is an animal management inspector employed by the City. He provided an affidavit.[33] He was cross-examined. He is the only City employee who has ever seen Shuggy and then only behind the closed screen door.
[33]Hearing book pp 14–49.
Soloai
Lester Soloai is the team leader, animal management employed by the City. He provided an affidavit. [34] He was cross-examined.
[34]Ibid pp 50–62.
He explained how he went about making his recommendation to confirm the original decision to declare Shuggy a dangerous dog. Correctly, his focus was on ‘what happened on the day’, not on Shuggy’s behaviour before or since. He acknowledged that the evidence from the people there on the day was contradictory, as is usually the case. Taking it all into account he found it difficult to say that nothing had happened.
Travers
Mark Travers is the City Inspectorate Senior Operations Officer employed by the City. He provided an affidavit[35] and was cross-examined His review of the regulated dangerous dog decision for the chief executive officer is the decision under review.
[35]Ibid pp 63–70.
He confirmed that his decision had been based on documents on the file which included:
(a)statements from three witnesses (observing that eyewitnesses are not infallible);
(b)a video of injuries to the ‘victim dog’;
(c)a veterinary report;
(d)photographs of injuries sustained by the ‘victim’;
(e)a video of Shuggy undergoing training;
(f)a behavioural report for Shuggy provided by a dog trainer;
(g)a report by Dan Rogers;
(h)the proposed regulated (dangerous dog) declaration;
(i)the regulated (dangerous dog) declaration;
(j)a further regulated (dangerous dog) declaration;
(k)information contained in Ms Younger’s request for review received 12 September 2022;[36]
(l)information contained in Ms Younger’s request for review received 7 March 2024; and
(m)the City’s duty of care to the community.
[36]Exhibit 1.
Section 21 material
The City provided a two volume hearing book which contained copies of relevant documents. These included:
(a)the vet’s record of the consultation for Dusty on 24 June 2022[37] which recorded ‘LHL multiple punctures LFL deep puncture lateral mid humerus and 1 cm shallow cut on chest. … dog can walk but limping L front and rear legs. Advised not to close punctures …’ The vet gave injections and prescribed tablets;
(b)five photographs of an injured hand;[38]
(c)the proposed regulated dog declaration notice dated 17 July 2022;[39]
(d)the City’s review notice dated 13 October 2022;[40]
(e)the regulated dog declaration dated 30 January 2023.[41]
Consideration
[37]Hearing book p 162.
[38]Ibid pp 163–7.
[39]Ibid pp 192–7.
[40]Ibid pp 204–13.
[41]Ibid p 240.
Did Shuggy attack Ms Wheatley or Dusty?
The first question I must address is whether or not Shuggy attacked Ms Wheatley or Dusty. This is a question of fact which I must decide on the evidence before me. The version of events given by each witness present at the time the incident occurred is quite different. Each person’s version of events also changed with the passage of time.
It appears that the City has a standard form which it uses to record witness statements. The form has a template set of questions regarding a ‘dog attack’. The template standard form reinforces in the minds of the witness that there has been an attack by the frequent use of the word. In this case both Ms Wheatley and Ms Brown remained convinced that Shuggy attacked Ms Wheatley and Dusty, while Ms Younger was equally convinced that was not the case.
In considering the question I have given more weight to the relatively contemporaneous statements made in 2022 than to the affidavits and oral evidence. In my experience the closer in time a witness provides their description of events the more likely it is that the description is accurate, not embellished or over-dramatised with the passing of time. That said, the relatively contemporaneous accounts of the three witnesses present many contradictions. No doubt it was a very stressful situation for each of the ladies present. It is not surprising that their recollections differ.
There are some common facts:
(a)the incident happened within metres of the entry into the off-leash area of the park;
(b)Ms Brown was further away (approximately 200 metres) from the entry into the off-leash area than either Ms Wheatley or Ms Younger when the incident commenced;
(c)Ms Wheatley was shouting at Shuggy to ‘get away’;
(d)Dusty was barking or yelping;
(e)Ms Wheatley focussed her attention on Dusty, holding him tightly in her arms;
(f)when Ms Wheatley was on the ground she continued to hold Dusty;
(g)Shuggy was close to Mrs Wheatley who was holding Dusty in her arms;
(h)Ms Younger was beside Mrs Wheatley and Ms Brown was still some distance away;
(i)there was blood on Ms Wheatley’s hands;
(j)it was a very stressful event for Ms Wheatley and she was in shock.
There is no evidence that Shuggy was growling, barking, or yapping aggressively before, during or after the incident. To the contrary, the evidence is that Shuggy had been playing with Ms Brown’s dogs for some time before the arrival of Ms Wheatley and Dusty at the dog park and waited quietly outside the gate after the incident while the humans got themselves under control.
Ms Younger and Ms Wheatley both say that Shuggy was near the gate when Dusty came into the off-leash section of the dog park. I reject Ms Brown’s evidence, given for the first time during cross-examination, that Shuggy peeled down the hill to the gate. This was an example of Ms Brown’s tendency to embroider her evidence. I prefer the version given by Ms Younger and Ms Wheatley, each of whom was in the immediate proximity of the part of the park where Shuggy and Dusty were situated.
No doubt things unfolded quickly after Ms Wheatley let Dusty off his leash.
Ms Younger and Ms Wheatley gave different versions as to what happened after Dusty entered the off-leash area:
(a)Ms Younger says that Shuggy started sniffing Dusty, but Ms Wheatley insists that Shuggy latched onto Dusty.
(b)Ms Younger says that Ms Wheatley shouted ‘get away’ loudly and repeatedly and struck or kicked Shuggy, but Ms Wheatley could not remember whether or not she struck or kicked Shuggy.
(c)Ms Younger says that when she arrived at the gate Ms Wheatley had lost her balance when lifting Dusty and was on the ground trying to restrain her excited dog, but Ms Wheatley says that she threw herself onto Dusty.
(d)Ms Younger says that she easily grabbed Shuggy by the collar and put him out the gate, where he sat patiently and silently waiting for her. Ms Wheatley does not recall who got the dog away from her.
While I am sure Ms Wheatley believes her version of events, I suspect that she has filled in some of the blanks in her memory with information provided by Ms Brown in the hours after the incident. I have no doubt that she was traumatised by events which occurred when she was trying to remove Dusty from the attentions of a boisterous large dog.
Ms Brown’s version, which became more dramatic over time, situated her and her two dogs at some distance from the incident when it commenced, put her in the position of a rescuer entering the ‘melee’, grabbing Shuggy off Ms Wheatley, throwing him over the fence, arranging the visit to the vet and driving Ms Wheatley about for the rest of the day. I am not persuaded that her evidence which became more dramatic over time is accurate. I prefer Ms Younger’s evidence.
I am not satisfied that there is evidence that Shuggy attacked Ms Wheatley. Whether Ms Wheatley lost her balance when lifting Dusty or threw herself onto the ground to protect Dusty, there was no suggestion that Shuggy forced her to the ground. There is no persuasive evidence that Shuggy approached Ms Wheatley until she was on the ground with Dusty held tight in her arms. Ms Wheatley’s contemporaneous statement did not say that she had been bitten on her hands or breast. She did not say that her hand was in Shuggy’s mouth. At the time of the incident both she and Ms Younger saw blood on her hands. She reported that her T-shirt had been ripped and that she had approximately 15 scratches, mainly on her right hand and forearm. The injuries to Ms Wheatley’s hands shown in the photographs look more like scratches than puncture wounds. They do not look like injuries that would have been sustained if Ms Wheatley’s hand had been in Shuggy’s mouth as Ms Brown said was the case. There is no medical evidence. I have no means of knowing whether the injuries to Ms Wheatley were caused by Shuggy or by Dusty.
Rather than setting upon Dusty with force or seeking to hurt him, I suspect that Shuggy was attempting to play with Dusty when he was on his level close to the ground.
As a matter of fact, I am not satisfied that Shuggy attacked either Ms Wheatley or Dusty. Although one cannot know what was in a dog’s mind, it seems that his behaviour immediately before, during and immediately after the incident was consistent with a belief that he had found a new playmate, not with acting in a way intended to cause fear to Dusty or Ms Wheatley.
The mere fact that Ms Younger paid Dusty’s vet bill does not assist in deciding whether Shuggy attacked Dusty. It may be that she did so because she felt threatened or it may be due to the overall stress she felt after the incident. Either way, her actions are not Shuggy’s actions.
What order should be made?
As I am not satisfied that in fact Shuggy attacked either Ms Wheatley or Dusty the decision to declare Shuggy a regulated (dangerous) dog will be set aside.
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