Lee v Brisbane City Council[2012] QCA 284

SUPREME COURT OF QUEENSLAND

[1] HOLMES JA:  Section 150 of the Queensland Civil and Administrative Tribunal Act 2009 sets the conditions on which a person may appeal to this court against a decision of the appeal tribunal of the Queensland Civil and Administrative Tribunal refusing an application for leave to appeal to that tribunal.  The appeal may be brought only on a question of law and with this court’s leave.  The applicant seeks leave for such an appeal and an extension of time for the making of the leave application which, without an order of this court, would be out of time under s 151(2) of the Queensland Civil and Administrative Tribunal Act.

[2] The rather complicated history of applications which has led here begins with a decision of a delegate of the Brisbane City Council to make a regulated dog declaration under s 94 of the Animal Management (Cats and Dogs) Act 2008 in respect of a German Shepherd whose registered owner is the applicant.  Section 89(2) of that Act permits the making of a dangerous dog regulation where, inter alia, a dog “has seriously attacked...another animal”.  “Seriously attack” is defined in s89(7) as meaning:

“...to attack in a way causing bodily harm, grievous bodily harm or death.”

“Bodily harm” is defined in schedule 2 as having the meaning given the expression by s 1 of the Criminal Code, which is:

“...any bodily injury which interferes with health or comfort.”

[3] The delegate’s reasons for making the declaration were that the dog had attacked and injured another animal; that statements from witnesses confirmed the incident; that the Brisbane City Council had photographic evidence of the injury and a veterinary certificate confirming its extent; and that the dog had endangered the health of another animal in breach of the relevant standards.  The consequence of the declaration was that the applicant was required to meet a set of conditions for the management of the dog.

[4] The applicant sought internal review of the decision.  After a review of the evidence and of the procedure adopted by the first decision maker, the reviewing officer decided to uphold the original decision.  The applicant then sought review of that decision by the Queensland Civil and Administrative Tribunal in its review jurisdiction exercised under division 3 part 1 chapter 2 of the Queensland Civil and Administrative Tribunal Act.  Under s 20(2) of that Act, the review was heard and decided as a fresh hearing on the merits.

[5] The review tribunal found that in the incident in question another dog, a spaniel, had run out into the street and started barking at a German Shepherd.  The German Shepherd took the spaniel in its mouth and shook it.  The spaniel sustained a number of puncture wounds requiring veterinary treatment.  The applicant submitted that the German Shepherd could not be said to have attacked the other dog because it had not begun the hostilities.  The review tribunal considered that the definition in s 89(7) made it clear that the words “seriously attack” involved some physical contact or assault.  In any ordinary meaning of the word, the German Shepherd had attacked the spaniel – which had not previously made any contact with it - in a way causing bodily harm.  The review tribunal expressed itself satisfied on the evidence that the German Shepherd seriously attacked the spaniel.

[6] The applicant relied on two particular pieces of evidence on the question of the dog’s identification.  The first was a letter from a person who described herself as a “canine behavioural specialist” and who had assessed the German Shepherd after the event.  She did not see in him any signs of aggression towards other dogs.  She observed, in general terms, that sometimes smaller dogs issue challenges to larger dogs.  The second document was a note from a veterinary surgery which noted that the German Shepherd, when examined there, did not snap or bite but showed by its behaviour that there was a possibility that, if stressed, it might bite.  Unsurprisingly, the review tribunal did not find that evidence helpful.  The tribunal accepted the evidence of witnesses identifying the applicant’s dog as the German Shepherd involved in the incident and accordingly, confirmed the decision regulating the German Shepherd as a declared dangerous dog.

[7] The applicant then sought to appeal to the appeal tribunal of the Queensland Civil and Administrative Tribunal.  Section 142(3)(b) of the Queensland Civil and Administrative Tribunal Act requires the leave of the appeal tribunal before an appeal may be made to it on a question of fact or on a question of mixed law and fact.  The appeal tribunal summarised the proposed grounds of appeal as whether the evidence proved, to the required standard of proof, that the applicant’s dog was the German Shepherd involved in the incident; whether it proved, to the required standard, that the German Shepherd seriously attacked the Spaniel in terms of s89(2); and whether the decision to regulate the German Shepherd as a dangerous dog was supportable on the evidence.

[8] The appeal tribunal reviewed the evidence and observed that the evidence of those witnesses accepted by the review tribunal established on the balance of probabilities that the German Shepherd was the applicant’s dog.  As to the question of whether the German Shepherd had “seriously attacked” the spaniel, the appeal tribunal noted that it was arguable the spaniel had first attacked the German Shepherd by running towards him and barking, but that did not alter the fact that the German Shepherd seriously attacked the Spaniel, which posed little threat, causing him bodily harm.  It was no answer to say that the larger dog might have been reacting when he attacked the other.

[9] The appeal tribunal refused leave to appeal, finding that the evidence before the review tribunal supported a view that on the occasion in question the German Shepherd attacked the Spaniel and that there was adequate evidence to support the decision to regulate the German Shepherd as a dangerous dog.

[10] The applicant contended error in the construction of the word “attack”, which is not defined in the Animal Management (Cats and Dogs) Act.  She relied on a decision of the New South Wales Supreme Court, Lake Macquarie City Council v Morris,[1] which concerned a prosecution under s 16 of the Companion Animals Act 1998 (NSW), the offence being that the defendant owned two dogs which attacked another animal.  As in the Queensland legislation, the word “attack” was not defined.  Johnson J noted dictionary definitions and the meaning attributed to the word in other statutory contexts.  It was clear, however, he said, from the section creating the offence that it was not necessary to establish an “attack” that physical contact had occurred between the dog and the animal said to have been attacked; it would be sufficient if the dog’s actions involved an act of hostility or aggression of a kind discussed in other cases.[2]

[11] That case is not really helpful.  It may be accepted that the behaviour of the spaniel in running and barking could, as the appeal tribunal said, be characterised as an attack.  But at issue was whether the German Shepherd had seriously attacked the spaniel, as that expression is defined in s 89(7).  It will be a question of fact whether what a dog does amounts to an attack for the purposes of the section, and in deciding that question, hostile behaviour by the animal which is the victim may be relevant.  There may be a factual issue, for example, as to whether one dog biting another is attacking or simply defending itself (although where there has been no physical contact preceding the bite, defence is a less likely conclusion).  But as a matter of law, there is nothing in s 89 which precludes a finding of attack where the behaviour of the dog in question is a response to aggression from its victim.  To put it another way, it is not a pre-requisite to a finding of serious attack by one dog on another that there be a finding that the second dog has itself done nothing which could be described as an attack.

[12] There is no reason to doubt the correctness of the appeal tribunal’s approach in regarding the proposition that the spaniel might first have attacked as not precluding a finding of serious attack by the German Shepherd.  There was evidence to support a finding that the German Shepherd had committed an attack of that kind.

[13] The applicant also asserted that, on the balance of probabilities, her dog was not the German Shepherd involved in the incident.  That is a pure question of fact which cannot give rise to an appeal to this court.

[14] The applicant explained the confusion which had led to the late filing of the application for leave to appeal, and I would grant the necessary extension of time.  But because there is no viable argument on a question of law, I would refuse the application for leave to appeal and order that the applicant pay the respondent’s costs.

[15] WHITE JA: I have read the reasons for judgment of Holmes JA and agree with her Honour’s reasons and the orders which she proposes.

[16] APPLEGARTH J: I agree with the reasons of Holmes JA and the orders proposed by her Honour.