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Queensland Judgments
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  • Unreported Judgment

Parker v Sunshine Coast Council

 

[2016] QCAT 350

CITATION:

Parker v Sunshine Coast Council [2016] QCAT 350

PARTIES:

Philip Joseph Parker

(Applicant)

 

v

 

Sunshine Coast Council

(Respondent)

APPLICATION NUMBER:

GAR125-16

MATTER TYPE:

General administrative review matters

HEARING DATE:

26 September 2016

HEARD AT:

Maroochydore

DECISION OF:

Member Rogers

DELIVERED ON:

5 October 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

CATCHWORDS:

  1. The decision by Sunshine Coast Council dated 7 July 2016 to declare Ajax a menacing dog is set aside.

ADMINISTRATIVE REVIEW – MENACING DOG DECLARATION – where dog injured another dog– whether decision to declare a regulated dog declaration is discretionary– whether an attack occurred

Animal Management (Cats and Dogs) Act 2008 (Qld) s 3 s 59 s 112(1)(a)(ii) s 125(1)(a).

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20 s 28(3)

APPEARANCES:

APPLICANT:

Mr Philip Parker

RESPONDENT:

Mr Marskel, an officer of Sunshine Coast  Council

REASONS FOR DECISION

  1. [1]
    Mr Parker is the owner of a young German Shepherd male dog named Ajax. He seeks a review of the decision made by the Sunshine Coast Council on 7 July 2106 to declare Ajax a menacing dog.
  2. [2]
    This decision was based on three separate incidents attributed to Ajax which occurred on 10, 13 and 15 May 2016.
  3. [3]
    On 10 May 2016 Ms Harrison was walking her small white terrier Sunny, when she became aware of a big dog roaming free in the vicinity. The dog was wet and his hackles were up. She had been to obedience school with Sunny and knew to remain calm. She stopped and tried to put Sunny, who was on a leash, behind her. The big dog came up to her, and went to Sunny’s hindquarters. She noticed the dog had taken hold of Sunny’s leg and she stamped her foot to make it let go. Sunny was yelping. The big dog did not let go. Ms Harrison shouted for help and some workmen from a nearby building site and an elderly lady from a nearby house came to her assistance and released the dogs. The workers restrained the big dog and tied him to a fence.
  4. [4]
    Ms Harrison was shaken and crying. The neighbour offered her a glass of water but she said she wanted to get home. After she started to walk home she noticed Sunny was limping. She picked him up and felt her hand was wet from blood. She then called the Council and took Sunny to the vet.
  5. [5]
    Ms Harrison says she is now not comfortable walking Sunny alone or with her kids anywhere near this area. If she saw the dog again she would wait to avoid it. She said she had seen the big dog before but only behind its gates, she had not seen it roaming. She just wants to see the dog in an appropriate fully fenced yard.
  6. [6]
    Mr Bell, an authorised officer of the council, gave evidence that he went to the building site and released the dog. He scanned the dog for a microchip and identified the dog as Ajax. He took Ajax to a Council facility and attempts were made to contact the owner.
  7. [7]
    A Veterinary Certificate was supplied from Dr Sarah Morton. It states

‘I examined “Sonny” an 11 month old West Highland White Terrier on Tuesday 10th May. I performed a general physical examination on this dog after the reported dog fight incident. There are 2 significant puncture wounds around the base of his LEFT hind leg and bruising and swelling associated with the wounds. These injuries are consistent with dog fight wounds’.

  1. [8]
    Mr Parker, who was not present on this occasion, gave evidence he believed some unknown person had let Ajax out of the yard because the yard was secure. He said the incident could more properly be described as an altercation rather than an attack because on the reports Ajax approached Sunny from behind and the puncture wounds were not serious. This is normal dog behaviour with an unfortunate outcome.
  2. [9]
    On 12 May Mr Parker collected Ajax from the Council facility. Mr Bell gave evidence there was an understanding Ajax would be taken to a dog minding facility while the incident was investigated.  Mr Parker decided to keep Ajax in his care because at that time no Proposed Declaration Notice had issued and did not take Ajax to the Pet resort. He refused a request by a Council officer to conduct a containment inspection at his premises.
  3. [10]
    On 13 May Ms Penlington states at about 8.30 am she was getting ready for work when she saw a dog trying to get into her backyard. Her three small dogs were becoming distressed so she took them in the house. She states she was afraid for her dogs but she had no fears for herself during this time. She believed the dog was capable of jumping her side fence, which was about five foot high.
  4. [11]
    Ms Penlington is a member of the Pet Partnership Program. She has spent a lot of time with dogs and is committed to promoting responsible pet ownership. She has worked with dogs needing rehabilitation and has witnessed a lot of animal aggression.
  5. [12]
    The night of 13 May 2016 she went onto Facebook and saw a post by Mr Parker, with a photo of Ajax, saying his dog had gone missing. There was a comment by a concerned friend saying ‘Has your dog gone missing again?’ She formed the view from the photo it was Ajax who had been at her backyard that morning and rang Mr Parker. There are different versions about the conversation but there was no evidence Mr Parker denied it was Ajax at that time. It is Ms Penlington’s evidence she asked Mr Parker if his dog was missing that morning and he said ‘Yes.’ There were 8 texts and a further phone call between them over the following week. Mr Parker said the second phone call was to reassure him his dog would not be euthanized.
  6. [13]
    Ms Penlington said in her first conversation with Mr Parker he appeared to have a cavalier attitude to her concern about his dog’s containment so she contacted Council on 16 May 2016 to report the incident.
  7. [14]
    Mr Parker denied this incident involved Ajax. He said he was not working that day and Ajax was with him the whole time. He said he took Ajax for a walk about 8.30am but he was not off his leash until he reached the yard of a friend who owned a dog, Pippa. He agreed Ajax could have jumped a five foot fence.
  8. [15]
    There was a further report to Council on 15 May 2016 of a dog matching the description of the German Shepherd chasing a cat up a tree. The Tribunal was provided with a copy of the Council’s computer record documenting this report. The cat owner was not prepared to give a statement substantiating this incident.
  9. [16]
    Mr Bell and another Council officer went to Mr Parker’s house on 17 May 2016 and removed Ajax from the property. Mr Bell gave evidence they left a Proposed Declaration Notice in the letterbox and a Seizure Notice wedged in the front screen door. A photo of this Notice in the door was provided in the evidence.  Ajax was taken back into the Council dog facility for the period 17-28 May 2016 because Mr Parker refused to allow a containment inspection.
  10. [17]
    Mr Parker submitted that because the officers had untwirled the wire holding the gate shut and there was no warrant this was an illegal entry onto his property. It is the submission of Council that a warrant is not required where a delay to entering the premises will result in a risk to community health or safety[1] and, having formed the view such a risk was present, they were authorised to seize Ajax.[2]
  11. [18]
    I am of the opinion that it is not necessary to decide this issue to determine the application before the Tribunal. If I am wrong in this view then I am satisfied the three reports indicating Ajax had left the premises and was not under control, together with the vet evidence that Sunny had experienced a dog bite and the evidence of Ms Harrison and Mr Bell that it was Ajax who inflicted this bite, were sufficient for the officers to reasonably suspect there was an immediate risk to community safety if Ajax was not removed and contained.
  12. [19]
    A containment inspection was conducted on 25 May 2016 and the property passed the inspection with the exception of a minor requirement to put some black plastic across the back fence so a child could not get their hand through the wire mesh. This adjustment was made while the Council officer was still at the premises. Ajax was released back to Mr Parker.
  13. [20]
    Mr Parker has now moved house. Council conducted a containment inspection at his new property and it was found to be satisfactory.
  14. [21]
    In a review proceeding it is the responsibility of the Tribunal to arrive at ‘the correct and preferable decision’ by way of a fresh hearing on the merits.[3] The review must be conducted in accordance with the enabling Act, in this case the Animal Management (Cats and Dogs) Act 2008 (Qld). This means the Tribunal has no powers greater than the original decision maker.
  15. [22]
    The matter was initially listed as a hybrid hearing, but at the end of the hearing both parties indicated there was little likelihood of an agreed outcome and I directed the parties were not required to participate in a mediation.
  16. [23]
    The purpose of the Act is to promote the responsible ownership of dogs and cats.[4] Chapter 4 provides for the regulation of dogs and it is the purpose of that chapter to ensure dogs are not a risk to community health or safety and that they are controlled and kept in a way consistent with community expectations.[5]
  17. [24]
    S 89 of the Act provides any local government may declare a dog to be dangerous, menacing or a restricted dog. A declaration to regulate a dog may be made only by complying with the requirements of s 89. There is no obligation on a Council to conduct an investigation following a report of an incident or after seizing a stray dog. Whether it does so is discretionary. However where an investigation has been conducted and Council is satisfied the relevant ground under s 89 exists then s 94 provides it must make the appropriate regulated dog declaration. To this extent once there is a finding a relevant ground exists there is no discretion in the decision maker, a regulated dog declaration must be made.[6]  The relevant grounds include a finding of fact a dog has attacked, or acted in a way that caused fear to, a person or animal, or that it may do so.[7]
  18. [25]
    In finding a fact or facts:

‘the Tribunal must feel an actual persuasion of its (ie a fact or facts) occurrence or existence before it can be found. Reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved’[8]

  1. [26]
    In this case the consequences are substantial for dog owners. They include the requirement for additional secure fencing and enclosures, notification to the local government area when there is a change of address and containment inspections. This is onerous when a person is living in rental accommodation and moving often.  Once a declaration is made it is extremely difficult to have it lifted.
  2. [27]
    Mr Parker does move often. He was at one address in May, at another address at the time of the hearing and he indicated he was moving the next week. He is obviously attached to Ajax and was very distressed when he was first missing on 10 May 2016. He door knocked the local neighbours, searched the neighbourhood until 3am and put a post on Facebook.
  3. [28]
    Ajax is still a young dog, now about two years. He has attended six months sniffer dog training. He has not attended obedience school.
  4. [29]
    I will now consider the three separate incidents that  formed the basis of the decision.
  5. [30]
    On the first occasion there is no dispute the dog involved was Ajax. Mr Bell had identified him by his microchip. There is no evidence of aggressive behaviour by Sunny. It is Ms Harrison’s evidence Sunny was on a leash and he remained close to her. He was quiet, without snapping or growling and provided no provocation. He was approached and injured by Ajax in an incident that took ‘seconds - very quick.‘  Ajax was separated from Sunny. He was then brought under control by the workmen and tied to a fence. It was not until she started to leave that Ms Harrison realised Sunny had in fact been bitten.
  6. [31]
    Mr Bell arrived at the site of the incident after it had occurred. He spoke with the workmen and then took control of the dog. He said at that time the dog was not aggressive towards him. None of the workmen provided a statement but there are computer records of Mr Bell’s discussions with them. At the hearing Mr Bell provided pages from his notebook where he took a statement from Ms Harrison.
  7. [32]
    Mr Bell did not provide a statement as directed by the Tribunal in its direction dated 11 August 2016. The Tribunal has been provided with various pages from a computer system detailing conversations and actions. These pages were headed ‘Sunshine Coast Council’.
  8. [33]
    Directions to provide statements are made to ensure the parties to a hearing are aware of the evidence to be presented before the hearing and to give them an opportunity to prepare for and to cross examine the witnesses on their evidence. The Tribunal, in conducting a review may inform itself in any way it considers appropriate[9] however it is obligated to observe the rules of natural justice.[10]
  9. [34]
    Where there is no statement provided by Mr Bell, and no direct evidence from the workmen with whom he has had conversations, it would be dangerous to place weight on the evidence of the workmen as relayed by Mr Bell, because that could breach the requirement to afford natural justice, and I decline to do so.
  10. [35]
    Ms Harrison gave her evidence in a careful and considered manner. I accept her evidence as to what occurred. The incident was certainly very upsetting and an injury occurred to Sunny. However I am not satisfied the incident described can be considered an ‘attack’ for the purpose of the legislation.
  11. [36]
    While the term ‘seriously attack’ is defined the term ‘attack’ is not. It is my view that evidence of an injury is relevant to the issue but it is not sufficient to be satisfied an attack has occurred. This view is supported by the cases that have found there to be no attack where there is provocation.
  12. [37]
    It is relevant that during the incident Ms Harrison was able to retain control of Sunny and conduct herself as she had been taught in Sunny’s obedience class. She was not aware the dog had punctured Sunny’s leg until after the dog was removed. In other cases found to constitute an ‘attack’ there have been numerous puncture wounds demonstrating repeated bites.[11]
  13. [38]
    Ms Harrison does not describe herself as being in fear. Even her subsequent statement that she just wants to see the dog properly restrained and that she would avoid the dog suggests a wariness rather than fear. Sunny was described as yelping, which could have been in response to the pain, but there were no other behaviours described demonstrating fear.
  14. [39]
    On balance, and based only on the one witness account available, I have formed the view the incident, which occurred on 10 May 2016, did not demonstrate the fear provoking behaviour by Ajax to carry it over the threshold from an encounter resulting in an injury to an ‘attack,’ or an incident that caused fear to a person or animal, as required by s 89 of the Act.
  15. [40]
    The second incident occurred on 13 May 2106. I have considered the conflicting evidence. Ms Penlington appeared to be a reliable witness. She had a good eye for detail and clear recollections. She is experienced with dogs and accurately estimated the age of Ajax as a young dog 1-2 years. She identified Ajax from a photo with the skills of a person who has spent many years observing dogs.
  16. [41]
    Mr Parker was not a convincing witness. He had many issues with the process that was followed by Council and he was deeply concerned about his dog. He admitted he was walking Ajax along the canal about the time of the incident but says he was on a leash at all times.  I prefer the evidence of Ms Penlington and I am satisfied the dog who attempted to enter Ms Penlington’s yard was Ajax.
  17. [42]
    This incident did not allege physical contact between Ajax and a person or dog so I must be satisfied his behaviour caused fear to a person or another animal. Ms Penlington repeatedly said she was not afraid for herself but she was very concerned for her dogs. There is evidence the dogs were giving a ‘squeaky high pitched bark’ and ‘carrying on’ but this is not sufficient to demonstrate they were fearful. The fact they were at the back fence barking would suggest they felt safe from threat. They were not running away. I therefore find this incident does not establish a ground for a declaration as required by s 89.
  18. [43]
    The third incident on 15 May 2106, where Ajax was alleged to have chased a cat up a tree, was not supported by any witness or witness statement.  Mr Bell’s notes on the computer system were in evidence but he did not explain the circumstance of that report in a statement. I find this incident does not meet the requirements of s 89.
  19. [44]
    It is of great concern that Ajax was able to roam free and engage in the behaviours described by the witnesses. Mr Parker did not meet the standard of a responsible dog owner by allowing this to occur.
  20. [45]
    Mr Parker said the Council did not have concerns Ajax threatened the safety of the community because they released the dog back into his care. I do not accept that submission. The council officers thought adequate steps had been taken to protect the community during their investigation because they understood Ajax would be housed in a Pet Resort.
  21. [46]
    It is also of concern that Mr Parker initially would not allow a containment inspection to occur at his premises. This demonstrated a lack of awareness of the responsibility of Council to satisfy itself the community was safe from dogs. I note the evidence that when Mr Parker moved to his new premises he did allow a containment inspection to occur and the premises were considered adequate.
  22. [47]
    However the legislation is clear that a regulation declaration can only be made if one of the grounds in s 89 have been established and, for the reasons given above, I am not satisfied a ground has been established by the evidence.
  23. [48]
    Accordingly I set aside the decision by Council on 7 July 2016 to declare Ajax a menacing dog.

Footnotes

[1] Animal Management (Cats and Dogs) Act 2008 (Qld) s 112(1)(a)(ii).

[2]  Ibid s 125(1)(a).

[3] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20.

[4] Animal Management (Cats and Dogs) Act 2008 s 3

[5]  Ibid s 59.

[6] Van Cuylenburg v Tablelands Regional Council [2011] QCAT 722. Decisions which have taken the view the decision to regulate is discretionary include Brake v Gold Coast City Council [2015] QCAT 52 at para 38,  McKenzie v Brisbane City Council [2016] QCAT 267 at para 8 and Hermanussen v Brisbane City Council [2012] QCAT 710 at para 15.

[7]  Ibid s 89(2).

[8] Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2 per Dixon J.

[9] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28(3)(d).

[10]  Ibid s 28 (3)(a).

[11]  See, for example, OBrien v Gladstone Regional Council [2014] QCAT 618, Fogarty v Turville on behalf of the Brisbane City Council [2010] QCAT 394.

Close

Editorial Notes

  • Published Case Name:

    Parker v Sunshine Coast Council

  • Shortened Case Name:

    Parker v Sunshine Coast Council

  • MNC:

    [2016] QCAT 350

  • Court:

    QCAT

  • Judge(s):

    Member Rogers

  • Date:

    05 Oct 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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