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  • Unreported Judgment

Thorne v Brisbane City Council

 

[2020] QCAT 239

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Thorne v Brisbane City Council [2020] QCAT 239

PARTIES:

Stephanie Thorne

 

(applicant)

 

v

 

Brisbane City Council

 

(respondent)

APPLICATION NO/S:

GAR195-19

MATTER TYPE:

General administrative review matters

DELIVERED ON:

29 June 2020

HEARING DATES:

6 February 2020; 7 February 2020

HEARD AT:

Brisbane

DECISION OF:

Member Poteri

ORDERS:

The destruction order for the destruction of Karmae made by the Brisbane City Council on 30 April 2019 pursuant to s 127 of the Animal Management (Cats and Dogs) Act 2008 (Qld) is confirmed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where a regulated declared dangerous dog has been seized and a destruction order has been made – where allegations that the dog has seriously attacked three dogs on three separate occasions – where the issue of identification of the attacking dog is disputed by the owner

Animal Management (Cats and Dogs) Act 2008 (Qld), s 3, s 4, s 59, s 127

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

Thomas v Ipswich City Council [2015] QCATA 97

Nguyen v Brisbane City Council Animal Management [2017] QCATA 121

Cutbush v Scenic Rim Regional Council [2019] QCAT 80

APPEARANCES &

REPRESENTATION:

 

Applicant:

J Manley

Respondent:

A Swindley, Lawyer

EXHIBITS:

  1. (1)
    Two photographs and maps of Sanananda Street, Darra.
  2. (2)
    Two photographs of a Shar Pei dog by the name of Kenny.
  3. (3)
    Photographs of the enclosure for Karmae on the Applicant’s property at 38 Sanananda Street, Darra.
  4. (4)
    Transcript of a recorded conversation between A Johnson and J Lynch dated 14/7/2018.
  5. (5)
    Transcript of a recorded conversation between G Rasleigh and J Lynch dated 18/7/2018.
  6. (6)
    Photograph of Karmae.
  7. (7)
    Copy of an email from Ms Lewis of Ipswich City Council and the Applicant dated 19/10/2016.
  8. (8)
    Agreed Chronology of relevant events 23/8/2016 to 11/9/2019.
  9. (9)
    Transcript of the recorded conversations between B Tatters and J Mills dated 28/3/2019.
  10. (10)
    Copy of the certificate of registration of Karmae effective from 18/8/2019 and 17/8/2020.

REASONS FOR DECISION

Representation, Proceedings and Background

  1. [1]
    This matter was heard on 6 and 7 of February 2020. At the commencement of the hearing, Ms J Manley applied for leave to appear for the Applicant. Ms Manley is a lay person and is a relative by marriage of the Applicant, who was not present during the hearing. I spoke to the Applicant by remote conferencing who advised me that she could not afford to take time off work and Ms Manley could represent her interests at the hearing. I explained the shortcomings with this process. Ms Swindley, the Respondent’s representative did not object to Ms Manley appearing on behalf of the Applicant. I agreed to Ms Manley representing the Applicant, however, I imposed the condition that I would discuss the progress of the hearing with the Applicant after each main break in the proceedings. I carried out this process during the hearing and the Applicant advised me that she was happy with the way the hearing was progressing and how Ms Manley was representing her interests.
  2. [2]
    I should also point out that Ms Swindley provided great assistance to the Tribunal and Ms Manley. At the conclusion of the hearing Ms Manley thanked Ms Swindley for the fair way that the hearing was conducted and thanked Ms Swindley for the assistance provided to her.
  3. [3]
    At the commencement of proceedings on 6 February 2020, no jurisdiction issues were raised by either party, so I proceeded to hear the Application.
  4. [4]
    The history in these proceedings goes back to 2016 in Ipswich. The background facts are not in dispute with the exception of the issue of the Applicant giving notice of her move to an address at 38 Sanananda Street, Darra. I will comment on this issue later.
  5. [5]
    The details of the background as set out in the Respondent’s submissions are now outlined.
  6. [6]
    Karmae is a female, tan coloured Staffordshire Terrier cross bred dog which was first registered to the Applicant at 9 Glengarry Lane, Raceview, within the limits of the Ipswich City Council (‘the ICC’). Whilst residing in Raceview, the Applicant also kept another Staffordshire Terrier cross bred dog named ‘Biscuit’ at 9 Glengarry Lane. The Applicant no longer has Biscuit.
  7. [7]
    Subsequent to receiving a complaint about a dog attack on 23 September 2016 in Ipswich, which resulted in the death of the victim dog, the ICC investigated and determined that Karmae and Biscuit were responsible for the attack. At the time of the attack, the attacking animals were at large, un-collared and not in the control or custody of any person
  8. [8]
    The ICC served the Applicant with a proposal to regulate both Karmae and Biscuit as ‘dangerous dogs’ pursuant to s 89 of the Animal Management (Cats and Dogs) Act 2008 (Qld) (‘the AM Act’) on 28 September 2016. The Applicant made submissions in her dogs’ defence to the ICC.
  9. [9]
    On 14 October 2016, an authorised person from the ICC confirmed the decision to declare both Biscuit and Karmae as dangerous pursuant to s 94 of the AM Act. The ICC issued a notice to the Applicant advising her of her obligations to keep Karmae and Biscuit in accordance with the conditions set out in Schedule 1 of the AM Act, and also of her rights to seek an internal review of the decision. The Applicant was served personally on 14 October 2016.
  10. [10]
    Following the declaration, the Applicant was required to comply with each of the conditions set out in Schedule 1 of the AM Act in keeping Karmae.
  11. [11]
    In late 2016 the Applicant, together with her partner Mr Benjamin Manley and Karmae, moved to 38 Sanananda Street, Darra, in Brisbane. The Applicant did not notify the Respondent, that she had moved into the area with a regulated dog and she did not register Karmae with the Respondent.

The First Attack – 13 July 2018

  1. [12]
    On 14 July 2018 the Respondent received a complaint regarding a dog attack on 13 July 2018 near the corner of Sanananda Street and Markham Street in Darra.
  2. [13]
    The attack was a ‘serious attack’ for the purposes of the legislation, resulting in grievous bodily harm to the victim animal, ‘Ngoan’, a six and a half year-old, black and white Maltese Terrier cross bred dog. The victim animal was leashed at the time. At the time of the attack, the attacking animal was at large, un-collared and not in the control or custody of any person.
  3. [14]
    An investigation was carried out by the Respondent which determined that Karmae was the attacking dog.
  4. [15]
    Karmae was not registered with the Respondent at the time.
  5. [16]
    On 9 August 2018, the Respondent seized Karmae. A decision was made to issue a notice of destruction on 14 August 2018. After receiving submissions from the Applicant, the destruction order was revoked and the Applicant was issued with a compliance notice in respect of the keeping of a regulated dangerous dog.
  6. [17]
    An inspection carried out on 17 August 2018 confirmed that the relevant enclosure at the Applicant’s premises was not compliant, and that the information contained in the PPID registry recorded Karmae as still residing at 9 Glengarry Lane, Raceview. An inspection later on the same day confirmed that the enclosure was compliant.
  7. [18]
    Karmae was returned to the Applicant in the following days.

The Second Attack – 28 March 2019

  1. [19]
    On 28 March 2019, the BCC received a complaint regarding a dog attack outside 28 Sanananda Street, Darra.
  2. [20]
    The attack was a serious attack for the purposes of the AM Act, resulting in bodily harm to the victim animal, ‘Kodie’, a 10-year-old black and white Staffordshire Terrier cross bred dog. The victim animal was leashed at the time. At the time of the attack, the attacking animal was at large, un-collared, without a muzzle and not in the control or custody of any person.
  3. [21]
    An investigation was carried out by the Respondent which determined that Karmae was the attacking dog
  4. [22]
    The Respondent seized Karmae pursuant to section 125 of the AM Act later on the same day.

The Council’s Decision

  1. [23]
    On 30 April 2019, the Respondent issued a notice of destruction for the Applicant’s dog, Karmae (the Decision), pursuant to s 127 of the AM Act. Pursuant to s 181 of the AM Act, the Applicant requested the Respondent to review the Decision. An authorised officer of the Respondent reviewed the Decision and on 22 May 2018, the Respondent confirmed the Decision.
  2. [24]
    Pursuant to s 188 of the AM Act, the Applicant filed an application for review (the Application) of the Decision in this Tribunal.

Review

  1. [25]
    I am reviewing the Decision pursuant to s 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’). Therefore, I am hearing this Application by way of a fresh hearing on the merits.
  2. [26]
    The onus of proof in these proceedings is not what can be proved beyond a reasonable doubt – as is required for criminal charges – but what can be proved on the balance of probabilities. That is, what is more probable than not.
  3. [27]
    Reference has been made to Karmae attacking another dog in Ipswich and being declared a regulated dangerous dog in Ipswich pursuant to the AM Act and the Applicant moving to her address at 38 Sanananda Street, Darra without giving the relevant notice to the various authorities. The Applicant has provided a copy of an email (Exhibit 7). Ms Manley has submitted that the Applicant did inform the ICC of the proposed change of address. This appears to be an attempt to advise the relevant authorities of a change in circumstances. On this basis, I do not propose to make any findings adverse to the Applicant in regard to giving notice of the change of address. I do note, however, that as at 13 July 2018, Karmae was not registered with the Respondent and the enclosure for keeping Karmae at 38 Sanananda Street, Darra was not compliant with the relevant legislation. These facts are not in dispute.

The Issues in dispute

  1. [28]
    The Applicant is not disputing that the attacks occurred, or that the attacks were ‘serious attacks’ for the purposes of the AM Act; what is disputed is whether Karmae was the attacking dog in regard to the attacks on both 13 July 2018 and 28 March 2019.

The 13 July 2018 attack

  1. [29]
    Evidence was given that Mr D Cao, who resides at 21 Markham Street, Darra, which is shown on Exhibit 1, was walking his six and a half year-old Maltese Terrier and weighing 11 kilograms, named ‘Ngoan’, when Ngoan was attacked by another dog and sustained very serious injuries. The attack was unprovoked and the attacking dog was uncollared and did not have a muzzle. At the time of the attack, the attacking dog was not in the custody or under the control of any person.
  2. [30]
    The attack occurred outside of 52 Sanananda Street, Darra, which is down the road from the number 38 address. Ms Lynch has provided a statement dated 3 December 2018 and gave oral evidence. Her evidence is that around 9:30am, she noticed an Asian man walking his small white dog on a leash and then she went into her lounge room when she was alerted to a man yelling and a dog yelping. When she went outside, she noticed a large brown dog attacking the smaller dog and shaking it. She assisted the man and the injured dog and then chased the attacking dog away up Sanananda Street.
  3. [31]
    Dr K Lewis provided a statement dated 11 December 2018, in which she states that she treated the injuries to Ngoan. Photographs of the injuries to Ngoan are annexed to the statement of Dr Lewis. She describes the injuries as severe life threatening wounds to the right chest, abdomen and hip. She says that Ngoan underwent extensive surgery and if the wounds were left untreated would endanger or likely endanger the life of Ngoan. That is, the injuries were ‘grievous bodily harm’ injuries as set out in s 1 of Schedule 1 of the Criminal Code Act 1899 (Qld). Ngoan has since recovered from the injuries.
  4. [32]
    Ms Lynch described the attacking dog as being tan in colour, of medium size and of an unknown breed but she described the dog as ‘easily identifiable’ with a white patch on its chest and a pointy nose.
  5. [33]
    Ms Lynch gave evidence that at around 9am the next day on 14 July 2018, she saw the attacking dog wandering out of the front of her house in Sanananda Street, Darra when she took steps to chase the dog back to its home. She followed the dog up Sanananda Street where it showed signs of aggression. The dog then went into the address at 38 Sanananda Street where she noticed two males sitting at the front of the house. She asked the younger male if the dog was his and he said it was. She told him that the dog attacked another dog the previous day. The male suggested the attacking dog may have been another dog called ‘Kenny’. She also says that a female inside the house started yelling and swearing at her in an aggressive manner.
  6. [34]
    Ms Lynch gave evidence that she informed the owner of the dog about the location of the attacking dog.
  7. [35]
    In evidence there is a copy of a transcribed telephone conversation between Ms Manley and a Mr J Crowe who was at the 38 Sanananda Street address when Ms Lynch arrived at the address on 14 July 2018. His version of events is vague but he says that Karmae was wandering within their eyesight that morning and that Ms Lynch was aggressive. Mr Crowe did not give evidence and I do not believe his evidence really contradicts Ms Lynch’s evidence.
  8. [36]
    Mr B Manley and Mr E Halliday gave evidence that they were at 38 Sanananda Street, Darra for the morning of 13 July 2018 because they were expecting the delivery of a pool table that day. They gave evidence that Karmae was with them the whole time. They do, however, concede that Kamae was not in their sight the whole time. Also the utility of this evidence is questionable because the delivery driver of the pool table, a Mr Sin Wu (Ken), advised one of the Respondent’s investigators that when he delivered the pool table to 38 Sanananda Street, Darra he did not see any dogs. Further, he advised the investigator that he had been contacted by Mr Manley who suggested to Mr Wu that he should say that he saw a dog at the premises when he delivered the pool table. Mr Wu advised the investigator that he did not feel comfortable with saying this and declined to make this statement.
  9. [37]
    Ms G Madill provided a statement dated 4 September 2018 where she stated that she witnessed the attack and she describes the attacking dog as being ‘a red/tan American Pitbull type dog, with very light eyes’. She also stated, ‘I recall seeing this dog wandering on Sanananda Street about 9am on 8 August 2018, as well as other occasions’.
  10. [38]
    I found Ms Lynch to be a very convincing witness and she was very clear in her evidence.
  11. [39]
    Ms Manley in cross examination and submissions suggests that the witnesses may have mistaken ‘Karmae’ for ‘Kenny’ and that Mr Cao may have been mistaken about the time of his walk. There is a photograph of ‘Kenny’ in Exhibit 2. Kenny has a very different appearance to Karmae. I do not believe there are any significant inconsistencies in the evidence presented by the Respondent in these proceedings. Further, the evidence of Mr Wu being approached to make a statement and the uncooperative attitude of Applicant and Mr Manley when Karmae was being seized in August 2018, especially referring to Karmae as ‘Brutus’ and a long nosed cat, raises issues of credit with the evidence of  Mr Manley.
  12. [40]
    I believe the evidence of the witnesses, Mr Cao, Ms Madill, Mr Wu and Ms Lynch is consistent and I prefer the evidence of these witnesses. Accordingly, I am satisfied that:
    1. (a)
      the attacking dog on 13 July 2018 was Karmae;
    2. (b)
      the attack was unprovoked and serious as set out in s 89 of the AM Act and the attack caused grievous bodily harm to Ngoan;
    3. (c)
      the attack caused fear and distress to Mr Cao; and
    4. (d)
      on 13 and 14 July 2018, as well as on  other occasions, Karmae was wandering Sanananda Street, Darra without a muzzle or a collar and was not in the custody or under the control of any person.

The 28 March 2019 attack

  1. [41]
    Ms S A Peschek, who was pregnant at the time of the attack, has provided evidence that about 9:30am on 28 March 2019, she was walking her dog, named ‘Kodie’, using a collar and lead along a park on Sanananda Street, Darra. Kodie is a black and white Staffordshire Bull Terrier of some 10 years of age and is less than 50 cm tall.
  2. [42]
    Ms Peschek says that another dog came from a yard across Sanananda Street making ‘gnarly’ sounds and came up to Kodie, started sniffing Kodi and suddenly attacked Kodie. She says the other dog was a light tan colour about one metre tall, of big and solid build with a very ‘boxy/boofy head’. She says that the dog latched onto Kodie and started tossing Kodie and appeared to be trying to kill Kodie. She also says that she feared that she would be attacked by the dog, and that she has never seen the other dog before. At the time of the attack, the attacking dog was uncollared and without a muzzle and not in the custody or under the control of any person.
  3. [43]
    Ms Perschek says that a red truck stopped and the driver provided assistance to her by picking up Kodie. The other dog then ran off down the road but continued to look back at Kodie. She says that there was lots of blood on Kodie’s ear and neck and she became hysterical. She says that she accepted a lift from the truck driver and then took Kodie to the Goodna Veterinary surgery for treatment. Kodie was treated for the injuries to the ear and neck and antibiotics were prescribed for Kodie.
  4. [44]
    Dr D Watkins provided a statement dated 11 April 2019 where he states he treated Kodie for multiple lacerations to the right ear, puncture wounds to the right side of the face and submandibular regions with associated haemorrhage and subcutaneous swelling. The wounds had to be cleaned which required an anaesthetic, which is a risky procedure for a dog of Kodie’s age. Kodie has since recovered from the injuries.
  5. [45]
    Ms J A Mills gave evidence that about 9:30am on 28 March 2019, she was in her yard in Sanananda Street, Darra when she witnessed a dog attacking another smaller dog. She says that a lady was leading the smaller dog and she described the larger dog as a light brown Staffordshire Terrier (or, ‘Staffy’) and that this dog came out of her neighbour’s yard. She says that the Staffy sniffed the smaller dog and suddenly attacked it by biting it on the right side of the head and neck. She says that she remained in her driveway as the attack was violent and she was afraid to intervene. She says that the woman who was leading the smaller dog started screaming and made an effort to stop the attack. Mr Mills also says that, at one stage, the Staffy pinned the smaller dog on its back.
  6. [46]
    Ms Mills says that a red truck stopped and the driver intervened by trying to kick the Staffy. She says that after a short time, the Staffy let go and ran about 30 metres down the road and continued to wander in Sanananda Street. Ms Mills says that she assisted the woman who was distraught, and she could see that the smaller dog’s right ear was damaged. After spending some time with the woman, she says that she returned to her car and left. On her way out, she saw the Staffy wandering with a large black and white dog near 34 or 38 Sanananda Street.
  7. [47]
    In giving evidence, Ms Mills marked a place on the map of Sanananda Street where she says the attack took place. This place is across Sanananda Street near a park and approximately four or five houses from the address at 38 Sanananda Street.
  8. [48]
    In her statement dated 1 August 2019, Ms Mills has elaborated on her statement dated 17 April 2019, where she says that shortly after the attack she made a complaint about the Staffy to the Respondent and stated that she was sitting in her car watching the Staffy and another big black and white dog, and they were not acting aggressively to each other. She stated that the dogs were wandering down a grassed pathway next to the address at 38 Sanananda Street. The Respondent requested that she keep an eye on the Staffy. She also says the Staffy was going in and out of the open garage door at the address at 38 Sanananda Street. She says that by the time a council officer arrived, she had lost sight of the two dogs.
  9. [49]
    In giving evidence, Ms Mills says that she did not notice any white markings on the Staffy and that she had been in the area for about five months and she had not seen the Staffy before. She did, however, say that while she was watching the two dogs she noticed that the Staffy went in and out of the open garage at the address at 38 Sanananda Street, three or four  times, whereas the big black and white dog did not go into the open garage.
  10. [50]
    Mr B Tatters is a compliance officer with the Respondent and responded to the complaint of Ms Mills on 28 March 2019. He says that he rang Ms Mills at approximately 9:41am when she was outside of the address at 38 Sanananda Street and asked her to keep an eye on the two dogs.  He says that at approximately 9:52am, he met Ms Mills at an address in Markham Street, Darra which is a street parallel to Sanananda Street. He says that Ms Mills told him that the two dogs were coming in and out of an address at 38 Sanananda Street and they did not have collars or muzzles.
  11. [51]
    Mr Tatters says that shortly after Ms Mills left, he caught sight of two dogs which he described as a tan and white ‘Staffy cross Mastiff type of dog’ and the other dog was a black and white Staffordshire Terrier cross. He says the black and white dog proceeded towards Markham Street and the other dog ran past him towards Sanananda Street. Because of issues with the black and white dog he did not pursue the Staffy. The black and white dog was eventually identified as ‘Boof’.
  12. [52]
    Mr Tatters says that he received information about the registration of a regulated dangerous dog situated at an address at 38 Sanananda Street. He was shown a photograph of this dog, which was Karmae, from another officer of the Respondent. He says that he confirmed that the Staffy that he saw walking past his car was in fact Karmae.
  13. [53]
    The Applicant has raised some issues with the evidence of Ms Mills and Mr Tatters. The Applicant says that the Staffy was wandering into other properties, as well as the address at 38 Sanananda Street. The Applicant also says that Ms Mills did not identify the Staffy as having a white patch on its chest and that Ms Mills had never seen the Staffy before the day of the attack. The Applicant also says that Mr Tatters did not see which address the Staffy went to after he lost sight of it.
  14. [54]
    It is my view that these are very minor issues and on balance, I am satisfied that the dog that was responsible for the attack on Kodie was Karmae. I am of this view because:
    1. (a)
      Ms Mills is a very convincing witness and I preferred her evidence of the events that day;
    2. (b)
      Ms Mills witnessed the attack on Kodie. The attack was close to the address at 38 Sanananda Street, and shortly after the attack Ms Mills noticed the Staffy going in and out of properties, including the garage at 38 Sanananda Street; whereas, Ms Mills did not see the big black and white dog go in and out of that garage;
    3. (c)
      Mr Tatters arrived very soon after the attack on Kodie and noticed a tan and white Staffordshire Terrier cross with a big black and white dog, and he identified the Staffordshire Terrier cross as Karmae from a photograph; and
    4. (d)
      the Applicant has suggested that there are other problem dogs in the area, including Kenny and Boof. Neither Kenny nor Boof look like Karmae. Further, there was no other evidence presented to the Tribunal by the Applicant of any other problem dogs in the area that resemble Karmae who were wandering in the vicinity of Sanananda Street around the time of the attack.
  15. [55]
    Accordingly, I am satisfied that:
    1. (a)
      Karmae was responsible for the attack on Kodie;
    2. (b)
      the attack was unprovoked and serious as set out in s 89 of the AM Act and the attack caused serious injuries to Kodie;
    3. (c)
      at the time of the attack Karmae was wandering unsupervised in the general vicinity of Sanananda Street without a muzzle or collar; and
    4. (d)
      in the attack, Karmae caused fear and distress to Ms Peschek.

Applicant’s evidence

  1. [56]
    The Applicant gave oral evidence by telephone as she was concerned that as the sole wage earner for the family she did want to put her employment at risk. It was her view that Karmae was not the dog responsible for either of the attacks; she described Karmae as a very gentle dog with her family, who was a part of her family. She felt very passionate about Karmae. She says that she left Ipswich to escape a violent environment and she also stated that her partner, Mr Manley, was in a deep depression because he was house bound due to a work injury. She stated that Mr Manley is slowly emerging from this depression because he may soon be able to return to work.
  2. [57]
    The Applicant stated that she was of the view that the family had done their best to comply with the requirements of the Respondent and relevant legislation. She also stated that if it was possible, she was prepared to agree and abide by any further conditions for the keeping of Karmae. The Applicant has also submitted that she has purchased a mobile steel cage to fully secure Karmae. She has advised the Tribunal that because she is in rented accommodation, she cannot commit to more expensive permanent structures. During the giving of her evidence, the Applicant was very emotional. I have a great deal of sympathy for the Applicant and her family. She also stated that if her review was unsuccessful, she requests that the Respondent consider rehousing Karmae.
  3. [58]
    There is evidence from the Applicant and Mr Manley that Karmae has escaped from the 38 Sanananda Street address on various occasions. There is also evidence that when Karmae is placed inside the house she is able to access the backyard through the dog-door and is then able to access the front yard through the broken side gate. When the garage door is open, Karmae has access to the front yard and, ultimately, Sanananda Street.
  4. [59]
    The Respondent is of the view that Karmae is a very dangerous dog and the Applicant has continually failed in her responsibility as an owner to properly control Karmae. The Respondent is of the view that there is no other course other than for Karmae to be destroyed.

Law and legislation

  1. [60]
    The relevant legislation is set out in ss 3, 4, 59 and 127 of the AM Act. These provisions are set out as follows:   

3 Purposes of Act

The purposes of this Act are to

  1. (a)
    provide for the identification of cats and dogs; and
  1. (b)
    provide for the registration of dogs; and
  1. (c)
    provide for the effective management of regulated dogs; and
  1. (d)
    promote the responsible ownership of cats and dogs; and

  1. (e)
    promote the responsible breeding of dogs.

4 How purposes are to be primarily achieved

The purposes are to be primarily achieved by the following

  1. (a)
    imposing obligations about identification devices for cats and dogs on their owners, sellers, authorised implanters and operators of pounds or shelters;
  2. (b)
    imposing obligations on owners and veterinary surgeons about tattooing cats and dogs for desexing;
  3. (c)
    imposing registration obligations on dog breeders;
  4. (d)
    regulating the supply of dogs and the advertising of dogs for supply;
  5. (e)
    providing for the sharing of information about dog breeders with particular agencies and entities that are responsible for animal welfare;
  6. (f)
    imposing registration obligations on dog owners;
  7. (g)
    imposing obligations on regulated dog owners;
  8. (h)
    providing for the chief executive to establish a breeder register and regulated dog register;
  9. (i)
    appointing authorised persons to investigate, monitor and enforce compliance with this Act;
  10. (j)
    requiring those who may provide PPID registry services to be licensed and imposing obligations on licensees;
  11. (k)
    requiring local governments to keep a general register about dogs;
  12. (l)
    imposing obligations on particular persons to ensure dogs do not attack or cause fear;
  13. (m)
    prohibiting anyone from allowing or encouraging a dog to attack or cause fear to people or other animals.

59 Purpose of ch 4 and its achievement

  1. The purposes of this chapter are to —
  1. (a)
    protect the community from damage or injury, or risk of damage or injury, from particular types of dogs called ‘regulated dogs’; and
  2. (b)
    ensure the dogs are –
  1. (i)
    not a risk to community health or safety; and
  2. (ii)
    controlled and kept in a way consistent with community expectations and the rights of individuals.
  1. The purposes are to be achieved primarily by the following—
  1. (a)
    providing for local governments to declare dogs to be dangerous dogs, menacing dogs or restricted dogs;
  2. (b)
    providing for the compulsory desexing of declared dangerous dogs and restricted dogs;
  3. (c)
    providing for identification of dogs as regulated dogs;
  4. (d)
    providing for permits for restricted dogs;
  5. (e)
    imposing conditions on keeping, and requirements for the control of, regulated dogs;
  6. (f)
    allowing authorised persons to seize or destroy dogs in particular circumstances;
  7. (g)
    providing for local governments to administer, and be responsible for, the matters mentioned in paragraphs (a) to (f).

127 Power to destroy seized regulated dog

  1. (1)
    This section applies if the dog is a regulated dog.
  2. (2)
    The authorised person may, without notice, immediately destroy the dog if
  1. (a)
    the person reasonably believes the dog is dangerous and the person can not control it; or
  2. (b)
    an owner of the dog has asked the person to destroy it.
  1. (3)
    The person may destroy the dog 3 days after the seizure if
  1. (a)
    the dog
  1. (i)
    was not seized under section 125(1)(b)(i); and
  2. (ii)
    has no registered owner, or apparently has no registered owner; and
  3. (iii)
    is not the subject of a regulated dog declaration by the relevant local government; and
  1. (b)
    the person or the relevant local government does not know of anyone who owns, or is a responsible person for, the dog.
  1. (4)
    If subsection (3) does not apply, the person may make an order (a destruction order) stating the person proposes to destroy the dog 14 days after the order is served.
  1. (5)
    The destruction order must
  1. (a)
    be served on
  1. (i)
    the registered owner of the dog; or
  2. (ii)
    if the dog has no registered owner - any person who owns, or is a responsible person for, the dog; and
  1. (b)
    include or be accompanied by an information notice about the decision to give the destruction order.
  1. (6)
    If a destruction order is made for the dog, the person may destroy the dog 14 days after the order is served if no application for internal review has been made relating to the order.
  1. (7)
    If an application for internal review has been made against the order, the person may destroy the dog if
  1. (a)
    the internal review is finally decided or is otherwise ended; and
  2. (b)
    no application for external review of the order has been made; and
  3. (c)
    the order is still in force.
  1. (8)
    If an application for external review of the order is made, the person may destroy the dog if
  1. (a)
    the external review is finally decided or is otherwise ended; and
  2. (b)
    the order is still in force.
  1. [61]
    Section 3 of the AM Act outlines the purposes of the AM Act. Two of those purposes are to provide effective regulation of regulated dogs and promote responsible ownership of dogs.
  2. [62]
    Section 4 of the AM Act outlines how the purposes of the Act are to be achieved. Two of the ways the purposes are to be achieved is to impose registration obligations on dog owners and impose obligations on regulated dog owners.
  3. [63]
    Section 59 of Chapter 4 of the AM Act sets out the purposes of declaring dogs regulated dogs. In essence, one of the purposes is to protect the community from damage or the risk of damage from a regulated dog. Another purpose is to ensure that regulated dogs are not a risk to community health and safety and regulated dogs are properly controlled and kept in a way consistent with community expectations and the rights of individuals.
  4. [64]
    Schedule 1 of the AM Act sets the requirements for a regulated dog to wear a collar at all times and to be muzzled when it outside of its enclosure
  5. [65]
    Pursuant to s 60(a) of the AM Act, a regulated dog is a declared dangerous dog.
  6. [66]
    The relevant law is concisely set out by Member Gordon in the matter of Cutbush v Scenic Rim Regional Council [2019] QCAT 80 at paragraphs [164] to [168]. In Cutbush, reference is made to the decisions of Thomas v Ipswich City Council [2015] QCATA 97 and Nguyen v Brisbane City Council Animal Management [2017] QCATA 121. These paragraphs are set out as follows:           

It was pointed out in Thomas v Ipswich City Council [2015] QCATA 97 that there is no guidance in the AM Act about how the discretion whether or not to destroy a dog should be applied. In those circumstances, the importance of ensuring that the legislative intent of the Act is applied when exercising that discretion was emphasised. The Appeal Tribunal identified that legislative intent as follows:-

[16] In the absence of any specific criteria, the legislative intent must be ascertained from the legislative scheme. Section 3 provides that the purposes of the AM Act include providing for effective management of regulated dogs. Section 4 specifies how the purposes are primarily to be achieved. These means include imposing obligations on regulated dog owners; appointing officers to monitor compliance with the AM Act; and imposing obligations on some persons to ensure dogs do not attack or cause fear. Section 59 sets out that the purposes of ‘Chapter 4 Regulated Dogs’ include protecting the community from damage or injury, or risk of damage or injury, from regulated dogs; ensuring that regulated dogs are not a risk to community health and safety; and ensuring regulated dogs are kept in a way consistent with community expectations and the rights of individuals.

[17] Section 97 requires an owner or person responsible for a declared dangerous dog to ensure that permit conditions as provided for in Schedule 1 are adhered to. The conditions include enclosure requirements; implantation with a PPID and wearing an identifying tag of a specified type; for a dangerous dog, muzzling and being effectively controlled if not at its registered address; and signage. Section 125 sets out circumstances in which dogs can be seized by Council. Under s 127, if a regulated dog cannot be controlled it may be immediately destroyed. It also provides for a destruction order to be made, as it was in Bruce’s case under s127(4). We do not consider that the defences to the offence provisions assist.

[18] It is clear that the AM Act is primarily directed towards the effective management and responsible ownership of dogs and that the destruction of a dog is a ‘last resort.’ It is generally where the mechanisms in the Act for management fail, or are ineffective, that destruction arises. The essential question is whether the dog constitutes, or is likely to constitute, a threat to the safety of other animals or to people, by attacking them or causing fear, to the extent that the threat may only be satisfactorily dealt with by the destruction of the dog.

Paragraphs [16] and [18] of the above passages in Thomas were cited with approval in Bradshaw v Moreton Bay Regional Council [2017] QCATA 139.

In Nguyen v Gold Coast City Council Animal Management [2017] QCATA 121 Senior Member Brown sitting in the Appeal Tribunal, said that he would pose the question slightly differently from that in Thomas:

[31] … the essential question is whether the dog can be controlled taking into consideration the threat, or likely threat, to the safety of other animals or to people by attacking them or causing fear, posed by the dog.

[32] Determining whether a dog can be controlled will require a consideration by a decision maker of a range of matters which might include:

  1. (a)
    The relevant history of the behaviour of the dog giving rise to consideration of the making of a destruction order;
  2. (b)
    Any other relevant history of the behaviour of the dog including the circumstances giving rise to the declaration that the dog is a regulated dog;
  3. (c)
    The current behaviour of the dog including whether the behaviour of the dog has been, and/or could be, modified through appropriate training;
  4. (d)
    The arrangements for the dog at its place of residence including the security of any enclosure and whether any interaction by the dog with persons, including household members and other persons entering upon the property, poses a threat of harm to such persons;
  5. (e)
    The risk the dog poses to community health or safety including the risk of harm to people and other animals outside the place of residence of the dog;
  6. (f)
    Compliance by the owner of the dog with any permit conditions imposed as a result of the dog being declared a regulated dog;
  7. (g)
    Whether the owner of the dog demonstrates insight into, and understanding of, the dog’s behaviour and has acted appropriately to mitigate any risk posed by the dog to people or animals;
  8. (h)
    The rights of individuals, including the owner of the dog.

[33] The decision maker must also take into consideration the purposes of the Act generally, the purposes of Chapter 4 specifically, and how the Act states those purposes are to be achieved. As the Appeal Tribunal said in Thomas any decision must be made in the context of the legislative scheme, and specifically Chapter 4 of the AM Act, in which the protection of the community is clearly given a higher priority than individual rights of dog owners.

[footnotes omitted]

The ‘last resort’ test and the ‘the threat posed by the dog can only satisfactorily be dealt with by its destruction’ test in Thomas have been cited in subsequent tribunal decisions. In some of them the tests have been referred to but not obviously applied in their bare form; in others, they have been applied directly. The ‘ability to control’ test in Nguyen has not been cited as far as I am aware.

Overall the tribunal’s discretion must be exercised to achieve the correct and preferable decision on the merits, in a fair and just way, and in accordance with the statute concerned, which includes the objects of the statute. Whilst attempting to lay down some criteria to be applied in these cases may help to achieve consistency, the tests must be approached with caution. There is a danger that the tribunal may apply a test which it itself has devised, instead of applying the discretion given to it by the statute and in accordance with the statute.

[Footnotes omitted].

Findings

  1. [67]
    The evidence in this proceeding demonstrates the following:
    1. (a)
      Karmae is a very aggressive and dangerous dog when it is outside of its enclosure or yard, and when not supervised or under the control of a person. Karmae is a different dog when it interacts with the Applicant and her family.
    2. (b)
      Karmae is an important part of the Applicant’s family. If Karmae was to be destroyed the Applicant and her family would be extremely upset.
    3. (c)
      There is no doubt that when Karmae is unsupervised and is outside the Applicant’s property the dog is a significant risk to the community.
    4. (d)
      No evidence was presented to the Tribunal that Karmae’s behaviour can be modified by appropriate training. The Applicant was proposing to provide material in this regard but has stated that she was not able to afford the cost of obtaining an expert’s opinion.
    5. (e)
      Since 2016, Karmae has been involved in or responsible for three very serious dog attacks. These attacks have caused serious life-threatening injuries to one dog, and the death of another dog.
    6. (f)
      The attacks occurred outside the Applicant’s property whilst Karmae was wandering in public areas. At the time of the attacks, Karmae was un-collared, not wearing a muzzle, and not supervised or under the control of any person.
    7. (g)
      Karmae has the ability to escape from the 38 Sanananda Street address.
    8. (h)
      The attacks were unprovoked.
    9. (i)
      The attacks caused distress and fear to the owners of the victim dogs. In the last attack, the owner was pregnant.
    10. (j)
      On 13 July 2018, the Applicant’s property at 38 Sanananda Street was not compliant with the relevant legislation for keeping a regulated dangerous dog. That is, the enclosure was not compliant and there was no signage at the front of the property.
    11. (k)
      On 13 July 2018, Karmae was not registered with the Respondent. Karmae is now registered. The enclosure to keep Karmae was compliant with relevant legislation when Karmae was returned to the Applicant in August 2018.
    12. (l)
      The Applicant disputes that her dog was involved in the last two attacks.
    13. (m)
      If Karmae is returned to her care, the Applicant has stated that she would abide by all legislation and any reasonable conditions imposed by the Respondent.
  2. [68]
    The question that is before this Tribunal is whether there is no other option other than to order the destruction of Karmae.
  3. [69]
    The Respondent must administer the provisions of the AM Act for individuals and the community in general. The provisions of the AM Act impose obligations on owners of animals so the general community is safe from harm. The individual must take responsibility for the control of dogs, especially if their dog is known to be aggressive and violent.
  4. [70]
    I am not convinced that the Applicant will be able to control Karmae in the future, either by herself or with the assistance of Mr Manley. The Applicant and Mr Manley have an unfortunate history of not complying with the lawful requirements for keeping a regulated dangerous dog. For example, when the Applicant moved to Brisbane from Ipswich, Karmae was not registered, and as at 13 July 2018, the Applicant’s property was not compliant with regard to keeping a regulated dangerous dog. Further, the attack on 13 July 2018 occurred when Karmae was wandering without a collar or muzzle. Also at the time of the attack on 28 March 2019, Karmae was registered and the property at 38 Sanananda Street may have been compliant in regard to keeping a regulated dangerous dog but Karmae was wandering, unsupervised, away from her home without a collar or a muzzle. There is also independent evidence that Karmae had been seen on other occasions wandering the streets in the vicinity of Sanananda Street unsupervised and without a collar or muzzle.
  5. [71]
    One issue that is of concern is the Applicant’s position that Karmae is not responsible for the last two attacks. This position is in the face of independent evidence to the contrary. Also, I do not believe the Applicant and her family have been fully cooperative with the Respondent’s officers and there is evidence that Mr Manley took steps to influence the evidence of a witness.
  6. [72]
    Taking the position that Karmae is not responsible for the last two attacks means that the Applicant has ignored the victims of the last two attacks. In these attacks, two dogs were seriously injured and the owners were left traumatised by the attacks. Also, there would obviously have been a significant financial cost for the owners as veterinarian treatment was required for both dogs.
  7. [73]
    Whilst I have sympathy for the Applicant and her partner regarding their personal circumstances, given the history, the facts and law involved in these proceedings, it is my view that the Decision made by the Respondent was the correct and preferable decision in the circumstances. Therefore, I must confirm the Decision to order the destruction of Karmae.
  8. [74]
    Given the destruction of Karmae will be a traumatic experience for the Applicant, I hope that the Respondent will allow sufficient time for the Applicant and her family to visit Karmae before any destruction order is carried out. Also, the Applicant during the hearing suggested that it may be appropriate to house Karmae with another owner, possibly in a rural environment. If such a proposal is submitted by the Applicant, I hope that the Respondent gives due consideration to such a proposal. As explained to the Applicant, these are matters for the Respondent to consider as the Tribunal has no power to make any orders regarding these issues.

Order

The destruction order for the destruction of Karmae made by the Brisbane City Council on 30 April 2019 pursuant to s 127 of the Animal Management (Cats and Dogs) Act 2008 (Qld) is confirmed.

Close

Editorial Notes

  • Published Case Name:

    Thorne v Brisbane City Council

  • Shortened Case Name:

    Thorne v Brisbane City Council

  • MNC:

    [2020] QCAT 239

  • Court:

    QCAT

  • Judge(s):

    Member Poteri

  • Date:

    29 Jun 2020

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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