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Halden v Sunshine Coast Council[2015] QCAT 456

Halden v Sunshine Coast Council[2015] QCAT 456

CITATION:

Halden v Sunshine Coast Council [2015] QCAT 456

PARTIES:

Jacob Lee Halden

(Applicant)

v

 

Sunshine Coast Council

(Respondent)

APPLICATION NUMBER:

GAR195-15

MATTER TYPE:

General administrative review matters

HEARING DATE:

2 November 2015

HEARD AT:

Maroochydore

DECISION OF:

Member McLean Williams

DELIVERED ON:

20 November 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

Application for review dismissed.

CATCHWORDS:

General administrative review matters - concurrent dangerous dog declaration and destruction order pursuant to s.127A the Animal Management (Cats and Dogs) Act 2008; circumstances of actual attack on a person; unwillingness by owner to allow dog to be de-sexed.  Circumstances of owner having no fixed abode.

Animal Management (Cats and Dogs) Act 2008 (Qld) ss. 3, 5, 59, 60, 70, 89, 127, 127A, Schedule 1

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 20, 24.

APPEARANCES and REPRESENTATION (If any): 

Applicant:

In person

Respondent:

Ms Shanagh Jacobs

Reasons for Decision

  1. [1]
    On 25th August 2015 Mr Jacob Lee Halden (‘the Applicant’) filed an Application to Review a Decision, seeking a review of a decision by the Sunshine Coast Council (‘the Respondent’) by which his dog, an American Staffordshire-Bull Terrier cross named Sooka, was concurrently declared to be dangerous, and ordered to be destroyed. 
  2. [2]
    The Respondent made the decision under review on 3 July 2015, pursuant to the Animal Management (Cats and Dogs) Act 2008 (‘the Animal Management Act’). 
  3. [3]
    Section 188 of the Animal Management Act provides that decisions of this type may be externally reviewed, by QCAT.  Accordingly, the original decision (subsequently affirmed by the Respondent during an internal review on 6 August 2015), now becomes - in the language of the Queensland Civil and Administrative Tribunal Act 2009 (‘the QCAT Act’) - a “reviewable decision”, pursuant to Chapter 2 Division 3 of the QCAT Act. The external review is conducted by means of a fresh hearing on the merits, and QCAT now ‘stands in the shoes’ of the original decision-maker.[1]

Factual Background

  1. [4]
    The Applicant is the owner of three unregistered American Staffordshire Bull Terriers.  Sooka (the subject of these proceedings) is an entire male dog, aged approximately two years; Leyla, is an entire female aged approximately four years; and Kimba is an entire male, aged approximately two years.
  2. [5]
    The Applicant is a tradesman.  In the first half of 2015 the Applicant was residing temporarily on the Sunshine Coast yet had no intention of remaining on the Sunshine Coast.  In late May 2015 Mr Halden had arranged to travel to Weipa in order to make arrangements for his re-location to that town on a longer-term basis, in order to pursue employment opportunities.  The plan, at that stage, had been that Mr Halden would initially be in Weipa for approximately four weeks before his then temporarily returning to the Sunshine Coast in order to collect his belongings, and dogs, for relocation. 
  3. [6]
    During the period that he was to be away in Weipa, Mr Halden made interim arrangements for the three dogs to be kennelled on the Sunshine Coast at a commercial kennel facility called ‘the Pet Resort’, at Meridan Plains.  In order for the dogs to be kennelled, they had first to be vaccinated.  Accordingly Mr Halden left his dogs with a veterinarian at Cooroy, and departed for Weipa.  Consequential arrangements were put in place for the three dogs to be collected from the vet surgery by employees from the Pet Resort, and to be transported back to the Pet Resort where the dogs were to then remain until Mr Halden returned from Weipa to collect them, on or about 26 June 2015. 
  4. [7]
    The three dogs arrived at the Pet Resort on 26 May 2015.  Upon their arrival and in accordance with Mr Halden’s instructions they were placed in three separate, yet adjoining pens, and were also kept apart from other animals.  The next twelve days were essentially uneventful.
  5. [8]
    On Monday 8th June 2015, a female employee of the Pet Resort, ‘AJE’, commenced on the task of cleaning the holding pen occupied by Sooka.   AJE opened a rear door and released Sooka into an adjoining exercise run, whilst she cleaned that pen.  Once the pen had been cleaned, the rear door was re-opened, with the intention of re-kennelling Sooka.  AJE called out to Sooka to come back into the pen, yet rather than enter the pen, Sooka attacked AJE.  What transpired during that attack is best understood from AJE’s own witness statement:

“Sooka was running in the exercise run exploring and sniffing.  When he started to come back towards me his body language changed and I tried to put him back into his pen and he decided that it was a good idea to run away again. 

I said ‘Sooka come here, Sooka come on back to your room, come on mate’ and he just looked at me like, what are you saying and he came to run back in and then stopped and looked at me and his pupils dilated and his face changed, reminds me of a gym junkie or someone on speed or steroids.  You can see it in the face when they get angry and it was terrifying.  Sooka then jumped on my front as though he was trying to play.

Sooka grabbed the front of my pants just under my stomach, then went back to ground and then went up for my right leg.  Sooka was snapping and trying to grab anything.  He went from trotting around the yard like a lamb to launching onto me.  I have had this previously with other dogs and so I recognised the signs. 

I knew within two seconds that things were about to get ugly. 

I thought I’m in trouble so I put my hands out to calm him down and push him away.  I needed to turn and get away but I could not run.  I turned side on and put my hands right near his face.  By that stage he launched at the back of my leg and was pulling at my trousers.  I called out to alert other staff and screamed ‘Ben, Ben’ because at that stage I was being attacked.

He, (Sooka) had pinned me to the back wall and I was on the ground so I had no chance to run for the pen door.  Instinct was to cover my face and curl up in a ball.  I did not want to elbow him in case he burred up.  This went on for five minutes or so and I was screaming ‘Ben, Ben’ all the time.

Sooka had got the back of my leg.  I put my hands up to protect my face as Sooka was also trying to get to my throat.  He was dragging me around the yard.  I started to hold onto his jaws against my leg and I knew that if I held onto his face he could not shake me off.

I was wearing a whistle but I did not think to use this.  I was just in save myself mode and thought I was going to die.  Ben and Kate fellow workers arrived, Ben with a hose, I was screaming to get Sooka off me.  Ben started hosing the dog.  [A]s soon as Sooka released, I got up and bolted for the pen door.  Sooka launched again onto my back grabbing at my hair, lucky I had hair extensions which were ripped out.  I made it into the pen from the run area. 

I remember thinking I’m going to die, he’s going to tear my throat out and let’s hope it will be quick.  I kept thinking don’t tear the femoral artery.  I am the most experienced handler there and yet Sooka gave me no warning.  Just the change in the eyes and then he was on me.”

  1. [9]
    After this attack AJE was conveyed by ambulance to the Nambour Hospital.  She required two separate surgeries and, by the end of it, had received more than 100 sutures to various wounds, primarily located on her right thigh and right hand. 
  2. [10]
    A medical report from the Nambour General Hospital reveals that AJE sustained eight (8) separate lacerations, described in the medical report as ‘deep and extensive’, as well as a number of other, more superficial wounds.  Photographs taken at the hospital reveal the extensive and graphic nature of her injuries.  AJE’s injuries readily qualify as being at least bodily harm, if not grievous bodily harm.[2]    AJE continues to require rehabilitation therapy.
  3. [11]
    On 10th June 2015 the Sunshine Coast Council received a report of the dog attack incident that has just been described. Sooka was collected by a Council Officer from the Pet Resort, and was impounded by the Council, and an investigation was instigated. 
  4. [12]
    On 3rd July 2015, and in consequence of that investigation, the Sunshine Coast Council issued Mr Halden with a Proposed Declaration Notice, under the Animal Management Act wherein it indicated that the Respondent proposed to declare Sooka to be a regulated (dangerous) dog, and to destroy Sooka.  The Proposed Declaration Notice was accompanied by a summary of the evidence and other information that had been relied on by the Council decision maker when making that decision.  Mr Halden was also advised of his statutory right[3] to make submissions as to why Sooka should not now be declared dangerous, and destroyed. 
  5. [13]
    On 16 July 2015 Mr Halden requested an internal review of that decision, pursuant to Chapter 8 Part 1 of the Animal Management Act, by a more senior council officer.  As part of that, Mr Halden complained that he suspected that Sooka had been mistreated whilst at the Pet Resort, and the attack may have arisen because Sooka had ingested amphetamines. 
  6. [14]
    On 6 August 2015 Ms Sheryl Krome, the internal review officer at the Sunshine Coast Council advised that her review decision was to uphold the original decision to declare Sooka a dangerous dog and to issue a destruction order.  The Applicant has since applied for this external review to QCAT.

Relevant Law

  1. [15]
    The Animal Management Act binds all persons and applies throughout the state of Queensland: s.5.  In other words, a declaration made under the Act in regards to a dog on the Sunshine Coast applies with equal force no matter that the dog may be relocated to another part of Queensland.
  2. [16]
    The purposes[4] of the Act include for the provision of a scheme for the effective management of what the Act refers to as ‘regulated dogs’ as well as to promote the responsible ownership of cats, and dogs.  The statutory regime for regulated dogs is established by Chapter 4 of the Act, which expresses the specific purposes of the regulated dog regime, in s.59.  These include, inter alia, “protecting the community from damage or injury, or risk of damage or injury from regulated dogs”;[5] and “ensuring that dogs are not a risk to community health or safety”[6].  These key purposes are expressed to be matters that are primarily achieved by a declaration regime for dogs that are variously ‘dangerous’, ‘menacing’ or ‘restricted’; then imposing various conditions and rules on the consequential ownership of such dogs; as well as by allowing dogs to be seized or destroyed, in particular circumstances.[7]
  3. [17]
    ‘Regulated dogs’ include various restricted breeds and particular dogs that are individually declared by a local authority to be either ‘dangerous’ or ‘menacing’, see: s.60.  A dog may be declared to be dangerous if grounds for that declaration exist under s.89(2), which provides that a dog may only be declared dangerous if:

(a),  the dog has seriously attacked, or acted in a way that caused fear to, a person or another animal; or

  1. (b)
    the dog 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.
  1. [18]
    In circumstances where it is proposed to make a regulated dog declaration, notice must first be given to the owner: s.90; and the owner may then make written representations as to why that proposed declaration ought not be made.  The local government must then consider any written representations that are made by the owner before a regulated dog declaration is in fact made: s.94.
  2. [19]
    If a declaration is made, and a dog is thereby declared to be dangerous, mandatory (and quite onerous) conditions apply to that dog’s owner for the remainder of the life of their dog.  Under s.70 the dog must be de-sexed.  Pursuant to Schedule One of the Animal Management Act the dog must also:
  • be implanted, with a prescribed permanent implantation device (PPID);
  • wear a prescribed tag;
  • be muzzled, and under effective human control at all times when in a public place;
  • be accommodated in a specified enclosure;
  • not usually be kept at a place, other than the place specified in the dog’s registration notice;
  • be kept at a place that is prominently sign-posted with a warning ‘BEWARE – DANGEROUS DOG’ and any changes of address for the declared dog must be notified to the local government authorities within seven days.
  1. [20]
    Pursuant to s.127 of the Animal Management Act a local authority has the power to order the destruction of a dog that has previously been declared to be a regulated dog.  Pursuant to s.127A, a local authority may also make a concurrent regulated dog declaration and destruction order.[8]  In this case Sooka has been the subject of a concurrent regulated dog declaration and destruction order, pursuant to s.127A. 

This QCAT Application for Review

  1. [21]
    Hearings before QCAT are conducted de novo and all of the evidence available to the original decision-maker, as well as any new evidence not previously available to the original decision-maker is to be considered by QCAT in order for the Tribunal to make what the QCAT Act terms to be the ‘correct and preferable decision’,[9] in accordance with the requirements of the Animal Management Act.

Available Evidence

  1. [22]
    In addition to the victim statement of AJE, already referred to in paragraph [8] of these reasons for decision, the following evidence has been made available to QCAT by the Respondent:
  1. (a)
    Written Submissions from the Respondent;
  2. (b)
    Statement of Sheryl Krome, Manager of Community Response Sunshine Coast Council, annexing: (i) correspondence to the Council from Mr Haldane; (ii) correspondence from the RSPCA regarding allegations of mistreatment to the Applicant’s animals (including Sooka); and (iii) written advice from a veterinarian and pound facility staff regarding allegations that Sooka may have ingested amphetamines.
  3. (c)
    Statement of Robert Evans, rapid response officer (the Council investigating officer), annexing various documents including, inter alia the Council incident report; photographs of Sooka; medical information and reports on the injuries sustained by AJE (including photographs of the wounds sustained by her); photographs and aerial views of the Pet Resort facility;
  4. (d)
    Witness statement of Mr Matthew Heness, rapid response officer, annexing colour photographs of the Applicant’s three dogs and the Pet Resort facility, and a short DVD of Sooka taken on 10 June 2015;
  5. (e)
    Statement of Kenneth Vincent Moroney, rapid response officer, annexing further photographs;
  6. (f)
    Statement of KMB, employee of the Pet Resort, Meridan Plains;
  7. (g)
    Statement of BJB, employee of the Pet Resort, Meridan Plains.

Applicant’s Evidence

  1. [23]
    Mr Halden adduced no actual evidence, and nor did he seek to challenge any of the eyewitness evidence by way of cross-examination. Mr Halden did however make various submissions, (including a written summary of submissions), which was received by QCAT as Exhibit One in these proceedings.  The Tribunal has also had particular regard to the original written correspondence hand-delivered by Mr Halden to the Respondent Council, on 16 July 2015.[10] 
  2. [24]
    In summary, Mr Halden is overtly critical of the manner in which his dogs were treated whilst they were accommodated at the Pet Resort. He is of the view that mistreatment gave rise to distress in Sooka, which then caused Sooka to attack AJE.  In his correspondence to the Respondent and in his submissions before QCAT the Applicant makes the following key points:
  1. (a)
    Sooka was not handled in accordance with his specific instructions;
  2. (b)
    Sooka was underfed, and all three of his dogs were neglected.  Sooka’s behaviour may have arisen in consequence to the mistreatment meted out to him whilst kennelled at the Pet Resort;
  3. (c)
    Alternatively there are suggestions that AJE tried to cuddle Sooka when Mr Halden had specifically warned that Sooka was a trained guard dog, and thus an entirely inappropriate dog for attempted cuddling;
  4. (d)
    Other than this one dog attack there is no evidence of any similar behaviour by Sooka and there have been no subsequent incidents;
  5. (e)
    There is some evidence (Photographs D20 and D21 annexed to the statement of Mathew Heness) that staff at the Pet Resort formed an unfavourable judgement upon Sooka, and they may have mistreated him accordingly;
  6. (f)
    Sooka might have been given amphetamines, thus explaining his aberrant behaviour.
  7. (g)
    Mr Halden ought be allowed to have his dog back and be allowed to move to acreage in the Gold Coast Hinterland, which he is currently trying to source for rental, particularly given that he had acted responsibly in electing to kennel his dogs whilst away at Weipa on business;
  8. (h)
    This incident is not a dangerous dog incident rather it is an instance of workplace negligence, by AJE.  A complaint was not even made by the Pet Resort to the Respondent Council until the proprietors of the Pet Resort were concerned that Mr Halden might refuse to pay them their kennelling fee in all the circumstances.
  1. [25]
    Although the Applicant is understandably aggrieved by the circumstances that have arisen, (feeling in particular that he acted entirely responsibly by ensuring that his dogs were kennelled at an approved facility during his absence on business), there is not any evidence that lends any objective support to his criticisms of the Pet Resort.  Although it seems plausible that staff at the Pet Resort formed an unfavourable view of Sooka (consider here in particular photographs D20 and D21 annexed to the Statement of Matthew Heness) it is entirely unclear whether this was a view that was formed before or after the attack on AJE on 8th June 2015, and nor can I conclude that this resulted in their mistreatment of Sooka. 
  2. [26]
    In actual point of fact there is no evidence that any of the dogs were mistreated.  Veterinary and RSPCA advice obtained during the initial Council investigations does not support that contention.  Nor is there any credible evidence that Sooka may have ingested amphetamines.  None of the eyewitness accounts (particularly that of the victim, AJE) have been displaced in any way by any contrary evidence.  The fact of Sooka having attacked AJE is now incontrovertible.  On any objective assessment, that attack was sudden, unexpected, and completely unprovoked.  The genesis of that attack must therefore most probably lie within the temperament and propensities of Sooka. 
  3. [27]
    I find in accordance with s.89(2)(a) of the Animal Management Act that Sooka has seriously attacked a person, and that it is appropriate having regard to the specific objects and purposes of the Animal Management Act that Sooka be declared to be a dangerous dog.
  4. [28]
    As summarised in paragraph [19] of these Reasons for Decision various mandatory permit conditions (the Schedule 1 conditions) apply throughout the remainder of the life of any dog that is declared to be dangerous. 
  5. [29]
    During the hearing of this Application for Review at Maroochydore the possibility of continued ownership of Sooka by the Applicant was explored by the Tribunal with both the Applicant and the Respondent Council.  In response thereto Mr Halden indicated, in very clear terms, that he was not interested in owning Sooka if Sooka were to be castrated; despite this being an unavoidable requirement under s.70 of the Animal Management Act for any dog that is declared to be dangerous.  Equally, the Respondent Council raised the practical problem that Mr Halden is of no fixed abode: and hence is unable to comply with the domicile and enclosure requirements mandated by Schedule 1 of the Animal Management Act.  The Applicant did not provide any evidence as to how these issues could be satisfactorily addressed by him, yet submitted that he should be allowed to take Sooka to an as yet indeterminate location, which is hoped will eventually be a leased acreage property, somewhere in the Gold Coast Hinterland.  Unfortunately that proposal is too speculative, and no confidence can repose that the requirements of Schedule 1 can be satisfactorily met by Mr Halden on the evidence that was made available to QCAT. In these circumstances the correct and preferable decision by QCAT is now to confirm the decision under review.
  6. [30]
    The Application for Review of a Decision is dismissed.

Footnotes

[1]QCAT Act s 20(2).

[2]  Animal Management Act s 89(7).

[3]Act, ss 90(1); 127(6)-(8).

[4]Animal Management Act s 3.

[5]Section 59(1)(a).

[6]Section 59(1)(b)(i).

[7]Section 59(2).

[8]Animal Management Act s 127A(2).

[9]QCAT Act s.20(1); see also Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589.

[10]Now annexure A to the Statement of Sheryl Krome.

Close

Editorial Notes

  • Published Case Name:

    Jacob Lee Halden v Sunshine Coast Council

  • Shortened Case Name:

    Halden v Sunshine Coast Council

  • MNC:

    [2015] QCAT 456

  • Court:

    QCAT

  • Judge(s):

    Member McLean Williams

  • Date:

    20 Nov 2015

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
1 citation
Jump To
Cite 1 - (1979) 24 ALR 577

Cases Citing

Case NameFull CitationFrequency
McKenzie v Brisbane City Council [2016] QCAT 2672 citations
1

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