Hutton v Logan City Council[2018] QCAT 127

REASONS FOR DECISION

1. [1]
   Mr Hutton has applied for review of the decision of the respondent Council to declare his dogs – Nellie, a tan Neapolitan Mastiff, and Aria, a blue Neapolitan Mastiff – to be menacing dogs under s 89(3) of the Animal Management (Cats and Dogs) Act 2008 (Qld).

1. [2]
   The declaration arose out of an incident on the evening of 17 February 2017 in which Mr Hutton’s neighbour’s dog, Buddy, was injured. A veterinary report of Buddy’s injuries confirms that an attack occurred.

1. [3]
   Based on testimony from Mr Hutton’s neighbours, Mr Daniel Lim and his sister, Ms Rebecca Lim, the Council says Mr Hutton’s dogs carried out the attack. Mr Hutton denies that his dogs caused the injury.

1. [4]
   Mr Hutton and his wife, Mrs Nicole Hutton, say their dogs were locked up in their back yard when the attack occurred and therefore could not have carried out the attack. However, Mr Lim and Ms Lim say they witnessed the attack and recognise Mr Hutton’s dogs as the dogs that attacked Buddy.

1. [5]
   It is common ground that, if Mr Hutton’s dogs attacked Buddy as alleged, the Council’s power to make the order was enlivened, but if not the decision must be set aside.

1. [6]
   Thus the main issue to be resolved is whether Nellie and/or Aria caused Buddy’s injuries. In resolving this issue, the Tribunal must choose between conflicting evidence, with both accounts supported by two witnesses.

1. [7]
   Neither the Huttons nor the Lims are disinterested witnesses. The Huttons will be required to comply with statutory requirements for the containment of their dogs and be liable for substantially increased registration fees if the declarations stand. The Lims have an emotional investment in the matter as a consequence, it seems, of issues related to a previous dog owned by the Huttons, and also seek reimbursement of their veterinary costs relating to the attack.^[1]

The conflicting evidence

1. [8]
   Mr Hutton gave evidence that the dogs got out while he was mowing at about 10-00 am or 11-00 am on 17 February 2017. He went looking for them but could not find them. Mr Hutton was not able to say when the dogs returned or that he saw anyone lock them in his back yard.

1. [9]
   However, he maintained that when the neighbours (Mr Lim and his father) roused him and his wife and daughter by coming over at around 10-00pm that evening – as described further below – the dogs were contained in their back yard behind the six-foot, ‘middle fence’. He said that before he came out to respond to the calls from Mr Lim and his father, he had seen the dogs out the back through the glass French doors.

1. [10]
   Mrs Hutton gave evidence that she arrived home from work at about 5-30 pm. Mr Hutton had suggested that Mrs Hutton must have put the dogs back in the enclosed back yard at around that time but Mrs Hutton clarified that she saw the dogs when she fed them out the back at around 8-00 pm.

1. [11]
   Mrs Hutton also said that the heated discussion began with the Lims talking about difficulties with a Staffy the Huttons had not had for about six years. Mr Lim denied that he ever said the dogs were Staffies but said ‘The only time I mentioned Staffy was when I told him in the past he had his Staffy enter into our yard’.

1. [12]
   While the heated discussion was going on, Mrs Hutton said the dogs must have been out the back because ‘if they were to hear something like this going on’ and they were in the front yard they would have come straight over to her and Mr Hutton. She confirmed that they were not barking or putting up a commotion at that time.

1. [13]
   Mrs Hutton also said that, after the heated discussion with Mr Lim, they (Mr and Mrs Hutton) went back inside the house and opened up the back door and saw that the dogs were in the enclosed back yard.

1. [14]
   Mr Lim and Ms Lim said they were awoken at around 10-00 pm by a dog fight and saw a tan dog and a black dog attacking or threatening to attack Buddy who was tied up on a long lead in their front yard. They both maintained that they were able to identify the dogs as Mr Hutton’s dogs, saying they could see clearly because their sensor light came on because of the dog fight.

1. [15]
   After chasing away the dogs, Mr Lim said he saw them heading off in the direction of Mr Hutton’s home and then saw them in the Huttons’ front yard. He tried unsuccessfully to call out to Mr Hutton from the dividing fence and then went with his father into the front yard of Mr Hutton’s property and up to his door, carrying the same poles they had used to chase the dogs away from Buddy to protect themselves.

1. [16]
   The heated discussion then ensued. During this time, Mr Lim maintains that he saw the dogs in the Huttons’ front yard, near where the Huttons’ cars were parked, some distance away from where the verbal altercation was taking place. He said his father kept on eye on the dogs.

1. [17]
   There was other oral evidence given, including of things claimed to have been said to one another, which it is not necessary to set out in detail.

Which evidence should be preferred?

1. [18]
   Although somewhat agitated, Mr Hutton impressed as an honest witness. He openly admitted that his dogs got out on the afternoon of the attack and that he could not find them, and that their previous dog, an English Staffy, would dig under the fence on both sides.

1. [19]
   Likewise, I formed a favourable impression of Mrs Hutton as a witness. She did not attempt to gild the lily. She corrected the impression that she had put the dogs away when she came home around 5-30 pm. She offered without prompting that the Staffy they had around six years earlier was ‘a very problematic dog’.

1. [20]
   Neither Mr Hutton nor Mrs Hutton took the opportunity to claim that they recalled putting the dogs in the back yard, merely that they were there, as Mrs Hutton said, when she fed them at around 8-00 pm, and when the Lims came over after the incident with Buddy.

1. [21]
   Under questioning, Mr Hutton answered that he did not know what the dogs were doing during the discussion with the Lims, saying: ‘well, I don’t know at that stage, well, because I was in the heat of the argument . . . so it’s not like, you know – the dogs were not anywhere in that front yard’. Similarly, when asked whether she checked during the heated discussion whether the dogs were in the enclosed back yard, Mrs Hutton answered: ‘Not when he [Mr Lim] was talking to us, no’.

1. [22]
   Mr Lim was questioned about how he could be sure that the dogs were Mr Hutton’s dogs, whether he had seen the dogs previously and had become familiar with their appearance. He replied:

So I actually run on – in my back yard, so I can see the dogs as I’m running across because there’s little slits that I can see through the fencing dividing us, and I can see his – his dogs.

1. [23]
   Mr Lim went on to maintain that he was familiar with the dogs, ‘the size, the breed, the colour’.

1. [24]
   Ms Lim also maintained that she was ‘very familiar’ with the Huttons’ dogs. Asked how she recognised the dogs, Ms Lim replied:

Because I’ve seen them wandering up and down the street previously. I’ve offered one of them water in the past. They’ve been outside our gate quite a few times.

1. [25]
   Mr Hutton put to Ms Lim that the dog she gave water to was a Staffy. This exchange followed:

MR HUTTON: . . . that occasion you gave water to a dog, that was a Staffy, a blue Staffy. So you can’t even – you just admitted that you can’t tell the difference between a Staffy and a Neo Mastiff, so how do you know that those dogs were the dogs? --- [MS LIM:] The two dogs that I saw there were clearly the dogs that I’ve seen around your property, around your house. The dog I gave water to could have been two, three years ago. I assumed that you had the same dog because I was looking at the colour.

. . .

But what my point is, is I’m trying to make this. You can identify the dogs, but yet you can’t tell the difference between those two breeds. So you’ve just said before that the dog you gave water was the dogs (sic) that you positively can identify in the fight, when clearly they’re not the same dogs? --- I said that I’ve seen your dogs – the two wandering up and down the street.

Yeah, and you’ve given them water - - - ? --- The water incident event

Yeah? --- could have happened two, three years ago - - -

Yeah? --- which, in my mind, I thought could have been the same dog based on the colour. If you say that it’s not the same dog, then that incident I don’t think is related to this event. . .

1. [26]
   And a little later in the cross-examination, Ms Lim replies:

I can tell the difference. It’s my memory that is vague from the two years ago event where I gave your dog water.

Okay? --- I remember the colour of the dog. Perhaps it’s not this dog. I assumed it’s the same dog, but I can confirm the two dogs I say, I have seen wandering up and down the street.

1. [27]
   Mr Lim and Ms Lim no doubt believe that Mr Hutton’s dogs attacked Buddy and that they are able to identify the attacking dogs as Mr Hutton’s dogs. However, Mr Lim’s stated basis for obtaining sufficient familiarity to identify the dogs – seeing them through slits in the fence while running in his back yard – is not a strong foundation for his evidence. Ms Lim’s evidence of her confidence in her ability to identify the dogs is undermined by her confusion about the dog she gave water to.

1. [28]
   Further, it seems improbable that dogs that have carried out a vicious attack would stand by quietly in the Huttons’ front yard, not barking or making a commotion, while neighbours with poles and torches were engaged in a heated altercation with their owners at 10-00 o’clock at night. While it is not impossible that that occurred, it is contrary to common experience of dog behaviour. On balance, for this reason, I prefer Mr and Mrs Hutton’s account that the dogs were not in the front yard at that time.

1. [29]
   Mr Lim said that during the heated exchange, Mrs Hutton offered to pay the veterinary costs. Ms Lim attempted to corroborate this by saying that she was standing near the fence trying to hear what was being said and heard Mrs Hutton refer to veterinary fees. Mrs Hutton did not positively deny saying they would pay the veterinary fees but said she could not remember saying it. Mr Hutton denied hearing Mrs Hutton say they would pay the veterinary fees.

1. [30]
   I have considered whether this statement, if it occurred, would assist in resolving the matter. It does not directly prove or disprove whether the dogs could have caused the attack. It might be suggested that to make this offer Mrs Hutton must have known that the dogs were not contained at home and later reconstructed a story that the dogs were so contained, but this was not put to Mrs Hutton in cross-examination. Such a statement would also need to be considered in its context – Mrs Hutton having been awoken from her sleep and confronted by an angry verbal altercation, and trying to move the discussion to the footpath. In the circumstances, I find this evidence of little assistance in resolving the central issue in the case.

1. [31]
   Overall, having regard to the factors mentioned above relating to the identification evidence and the location of the dogs during the heated exchange, and the favourable impression I formed of Mr and Mrs Hutton’s evidence for the reasons stated, I am not reasonably satisfied that Mr Hutton’s dogs caused the injuries to Buddy. The menacing dog orders must therefore be set aside.

1. [32]
   I have reached this conclusion on balance and with the benefit of hearing oral evidence and cross-examination of the witnesses. I observe that it was not unreasonable of the Council to issue the declaration, having regard to the statements obtained from Mr Lim and Ms Lim. I also observe that, although Mr and Mrs Hutton have been successful on this occasion, greater care to keep their dogs enclosed would be advisable to avoid future issues.