Hazelgrove v Isaac Regional Council
[2018] QCAT 134
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- Unreported Judgment
- Hazelgrove v Isaac Regional Council[2018] QCAT 134
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Hazelgrove v Isaac Regional Council[2018] QCAT 134
Hazelgrove v Isaac Regional Council[2018] QCAT 134
CITATION: | Hazelgrove v Isaac Regional Council [2018] QCAT 134 |
PARTIES: | Neville Ernest Mervyn Hazelgrove (Applicant) v Isaac Regional Council (Respondent) |
APPLICATION NUMBER: | GAR198-17 |
MATTER TYPE: | General administrative review matters |
HEARD ON: | 15 March 2018 |
HEARD AT: | Mackay |
DECISION OF: | Member Beckinsale |
DELIVERED ON: | 2 May 2018 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | The decision of the Isaac Regional Council to declare Pugsley a dangerous dog is confirmed. |
CATCHWORDS: | ADMINISTRATIVE REVIEW - ADMINISTRATIVE TRIBUNALS - QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL - declaration of dangerous dogs Animal (Cats and Dogs) Management Act 2008 (Qld), s 3, s 4, s 59, s 70(1), s 89(1), s 89(2)(a), s 89(2)(b), s 89(3), s 89(7), s 95, s 127(4), s 194, s 195, s 96(1)(a)(b), Schedule 2 Criminal Code 1899 (Qld), s 1 Queensland Civil and Administrative Act 2009 (Qld), s 19, s 20(1), s 20(2), s 21, s 24 Bradshaw v Moreton Bay Regional Council [2017] QCATA 139 Briginshaw v Briginshaw (1938) CLR 336 Lee v Brisbane City Council (No 2) [2012] QCATA 64 Thomas v Ipswich City Council [2015] QCATA 97 |
APPEARANCES: |
|
APPLICANT: | Neville Hazelgrove |
RESPONDENT: | Isaac Regional Council |
REPRESENTATIVES: |
|
APPLICANT: | self-represented |
RESPONDENT: | represented by Mr Stewart-Harris |
REASONS FOR DECISION
Background
- [1]Darryl and Delroy Doyle were the owners of an elderly Tabby cat they named Gracie. She was a stray they adopted and they had her for over seventeen years. Mr and Mrs Doyle allege Gracie was killed by dogs in April 2016.
- [2]Following initial investigations, the Isaac Regional Council declined to take action against the dogs the Doyle’s believed were responsible for the attack on Gracie. The Doyle’s were highly critical of that decision.
- [3]The council conducted an internal review and then contracted an interstate workplace investigations firm to conduct an external review.
- [4]Subsequently the council issued Regulated (Dangerous) Dog Declarations in accordance with Section 95 of the Animal Management Act (Cats and Dogs) 2008 (the AM Act) with respect to a black Labrador named Bandit, owned by Neville Hazelgrove, and a Huskey cross named Pugsley, owned by Mr Hazelgrove’s son, Rick Hazelgrove. Upon internal review requested by the dogs’ owner, council confirmed its decision to issue Dangerous Dog Declarations.
- [5]Bandit died and Neville Hazelgrove applied to the Tribunal for a review of the decision to declare Pugsley a dangerous dog. The Dangerous Dog Declaration with respect to Pugsley was issued to Rick Hazelgrove but he was not involved at any stage of the proceedings before the Tribunal. At the hearing Neville Hazelgrove said he was now the owner of Pugsley and had registered himself as owner with the council. With the consent of both parties and relying on section 62(1)[1] of the Queensland Civil and Administrative Tribunal Act 2009, I made a direction that “Neville Ernest Mervyn Hazelgrove is the proper applicant in these proceedings.”
Legal Framework
- [6]In reviewing a decision, the Tribunal does so by way of a fresh hearing on the merits.[2] The Tribunal must decide the review in accordance with the Queensland Civil and Administrative Tribunal Act 2009 and the act giving jurisdiction to hear the matter.[3] The Tribunal stands in the shoes of the decision maker and is required to produce the correct and preferable decision.[4]
- [7]The Tribunal may confirm the decision, amend the decision or set aside the decision and substitute a new decision.[5]
- [8]The decision maker is required[6] to assist the Tribunal to reach the correct and preferable decision.
- [9]Section 3 of the AM Act sets out that the purposes of the AM Act include the effective management of regulated dogs and to promote responsible ownership.
- [10]Section 4 sets out how those purposes are to be primarily achieved and include: imposing registration on dog owners; appointing authorised officers to investigate, monitor and enforce compliance with the AM Act and imposing obligations on particular persons to ensure dogs do not attack or cause fear.
- [11]Section 59 of the AM Act 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 and to ensure that the dogs are controlled and kept in a way consistent with community expectations and the rights of individuals. The section sets out how the purposes are to be achieved, including imposing conditions on keeping, and requirements for control of, regulated dogs and allowing authorised persons to seize or destroy dogs in particular circumstances.
- [12]The AM Act empowers a local government to declare a particular dog to be a declared dangerous dog[7] if the dog has seriously attacked, or acted in a way that caused fear to a person or another animal[8], or 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.[9]
- [13]
- [14]The AM Act provides a menacing dog declaration may be made for a dog only if the above grounds exist for the dog, except that the attack was not serious.[13]
- [15]The regulations to the AM Act include provisions that the owner of a declared dangerous dog must provide specified enclosures and signage and that the dog is to be desexed (unless desexing is likely to be a serious risk to the dog’s health[14]), tagged and muzzled and under effective control when away from its residence. In the case of a dog which is declared menacing, neither desexing nor muzzling are required. The registration fee for a regulated dog is substantially more than for an unregulated dog.
- [16]The making of such declarations is discretionary and with the AM Act not providing criteria for exercising that discretion, the Tribunal must look to the objects of the AM Act to[15] to determine legislative intent.
- [17]The Appeal Tribunal has noted that whether a dog was acting in response to being attacked, provoked or teased is “not irrelevant” and that “all the circumstances need to be taken into account in the exercise of the discretion.”[16] More recently the Appeal Tribunal[17], in considering a destruction order, emphasised that extensive enquiry is required in exercising the discretion under section 127(4) of the AM Act. Although the exercise of the discretion under section 127(4) may be somewhat different in that a destruction order has been expressed to be “a last resort”, it is in similar terms to section 89 and arguably the same extensive enquiry is required.
- [18]The standard of proof required in findings of fact by the Tribunal is that the Tribunal be “comfortably satisfied” having regard to the nature and consequence of the facts to be proved.[18]
- [19]The matters to be addressed by me are essentially: did Pugsley seriously attack Gracie; if so, how should the discretion be exercised in determining whether a regulated dog declaration should be made?
- [20]Both the Doyles and Mr Hazelgrove were seriously unhappy with the council and the processes undertaken by the council. As the review by the Tribunal is by way of a fresh hearing on the merits, I have not needed to give consideration to the criticisms of the council nor to the internal or external reviews undertaken. Nor did I give any consideration to any proceedings in the Magistrates Court between Mr and Mrs Doyle and Mr Hazelgrove.
Evidence of the Attack
Delma Doyle
- [21]Mrs Doyle’s evidence was that she and her husband were asleep in bed in the early morning of 24 April 2016 at 4.45am when she was woken by the sound of her cat meowing loudly. She also heard the growling of a dog. She called out to her husband and went from the bed to a window which looked onto the back yard. Although it was still dark, the yard was well lit by two sensor lights which had activated. She said she could see two dogs which had Gracie between them. A black dog had Gracie’s head in its mouth. The other was roan coloured. Mrs Doyle said she called to her husband that two dogs had Gracie. She yelled at the dogs and the black dog let Gracie go and ran from the back yard. The roan dog continued to shake Gracie violently. She heard her husband at the back door. The roan dog then ran off with her cat in its mouth. Mrs Doyle dressed and went outside. She said her husband was nowhere to be seen. She went around their yard calling out and looking for Gracie. Sometime later while she was still searching for Gracie, Mr Doyle returned to the house. He told her he had followed the dogs home. He got changed out of pyjamas and left the house to look for Gracie. Mrs Doyle continued to search in their own yard.
- [22]Mr Doyle had not gone far when he called to her from across the road that he had found Gracie and to bring something to pick her up with. She went inside and brought towels to where Gracie lay which was just across the road. Mrs Doyle described Gracie as a mess appearing to have crushed ribs, a broken jaw and three broken legs. They carried her home where she died within minutes.
- [23]Mrs Doyle said Mr Doyle left the house saying he would tell the dogs’ owner they had found Gracie. When Mr Doyle returned he told her the owner had been abusive.
- [24]Mrs Doyle said when she found out where Mr Doyle had followed the dogs to, she realised the black dog was the same she had seen about a year ago take Gracie’s pink plastic food bowl from the back yard. On that occasion she had been in her kitchen when through the window she saw a black dog with the bowl in its mouth passing the side of the house from back to front. She quickly went out the front door and saw the black dog crossing the road. It was being followed by a tan puppy. She remembered feeling concern the puppy may get run over. She followed both dogs down the street and around the corner until she saw the black dog going through a gap under a fence into a yard. The puppy followed the black dog under the fence. She had not been able to see whether the black dog still had the bowl in its mouth.
- [25]Mrs Doyle said she did not want to enter the yard. She called to a nearby neighbour, a woman she knew who then yelled out to the people in the house where the dogs had gone. A youth came out and Mrs Doyle told him his dog had taken her cat’s food bowl. She said he replied “no” and that the dogs had been locked up under the house all day. She told him she had seen the dog with the bowl in its mouth and that she had seen the dog go under the fence. She then spotted the bowl in long grass on the footpath near to the hole in the fence. She told the youth she had found the bowl and picked it up and went home.
- [26]At the hearing Mrs Doyle said she was unaware whether she had seen this same black dog, which she described as “Labrador sized” at any time other than when it had the bowl but was adamant it was the same black dog she saw with Gracie it its mouth.
Darryl Doyle
- [27]Mr Doyle said he had been asleep in bed on the morning of 24 April 2016. He was woken about 4.45am by the sound of Gracie screaming out. He could hear the sound of dogs coming from the back yard and thought Gracie was being attacked. He ran from bed to the back door and heard his wife yell out that dogs had got Gracie. He ran and opened the front door from where he saw a black dog across the road and a roan dog just metres away leaving the yard with Gracie in its mouth. He said there were two sensor lights on at the front which gave him a clear view of the roan dog and of the back of the black dog as it headed away.
- [28]Mr Doyle said he followed the dogs although he was bare foot and wearing pyjamas. It was dark and he had not taken his phone or a torch but he said he could see the outline of the dogs and had them in his view when they rounded a corner. He said he picked up his pace to the corner about fifteen or twenty metres from where he was. As he neared the corner he could see the dogs had slowed down and were sniffing around a tree. He said he had a clear view of the dogs from a street light. He said he could tell the dogs did not have Gracie from the way they moved. He remained behind the fence watching the dogs. He said he did not want them to know he was following them. He watched them head around the next corner and out of sight again. He hurried to that corner and saw that the dogs had gone up a driveway about ten metres away. He glimpsed their rears as they went through an open gate into a yard. As Mr Doyle got to this open gateway he saw the two dogs go up the stairs of the house onto the verandah and walk to a closed glass door and look through. Lights were on at the house and someone was up. He did not enter the yard but knocked on the side of the house which he could reach from where he stood.
- [29]Mr Doyle said only when he knocked did the dogs become aware he was there. They started barking. Neville Hazelgrove came out of the house. Mr Doyle said he told Mr Hazelgrove he was there to let him know his dogs had attacked his cat in his yard. He said he told Mr Hazelgrove he could not find the cat and he was letting him know now as he was the sort of bloke who, if Mr Doyle was to later come back and say his cat had been killed, would say it wasn’t his dogs. Mr Doyle said Mr Hazelgrove twice asked him “What these dogs?” gesturing at the dogs on the verandah. Mr Doyle said Mr Hazelgrove asked him whether he had opened the gate and he said he had not. Mr Doyle said Mr Hazelgrove told him to “ ‘f’ off “. Mr Doyle said the dogs made no attempt to get to him and remained on the verandah.
- [30]Mr Doyle said he walked away with Mr Hazelgrove abusing at him. He called for Gracie but could not see her and returned home. He thought he might have been home about half an hour and by the time he went out again to look for Gracie it was getting lighter. He had dressed and taken his phone. He found Gracie lying badly injured in a front garden bed just across the road from his house. He called out to his wife that he had found her and she brought over a towel to wrap her in. He took photos of Gracie while waiting for Mrs Doyle. Gracie died shortly after they got her home.
- [31]Mr Doyle said he returned to Mr Hazelgrove’s house by which time it was becoming daylight. He said the house was now in darkness and the gate was shut. The dogs started barking after he knocked. He knocked three times before a young man came out. He asked for his father and the young man said he’d get him. When Mr Hazelgrove came out Mr Doyle asked him if he wanted to come down to the gate to speak with him. Mr Doyle said he refused. Mr Doyle said he told Mr Hazelgrove he was letting him know he had found Gracie dead. She had been killed by his dogs. Mr Hazelgrove asked whether Mr Doyle had seen the dogs kill his cat. Mr Doyle said he told Mr Hazelgrove he had seen them in his yard and they killed his cat. Mr Doyle says Mr Hazelgrove told him “fuck off you silly old cunt or you will end up like your cat” and went back into his house with Mr Doyle calling out to him. Mr Doyle said he then went home.
- [32]Mr Doyle said he had not taken any further notice of the appearance of the dogs or whether there was blood on them, either on this occasion or when he earlier had called at Mr Hazelgrove’s house. He had absolutely no doubt that the dogs he followed from his yard were those at Mr Hazelgrove’s house. He denied Mr Hazelgrove’s suggestion that he had seen dogs’ similar in appearance to Mr Hazelgrove’s dogs and then observed Mr Hazelgrove’s dogs on the verandah and assumed they were the dogs which were in his yard. He denied Mr Hazelgrove’s suggestion that he himself had opened the gate.
- [33]Mr and Mrs Doyle arranged that day to deliver Gracie’s body to a pet cremation service.
- [34]
- [35]Both Mr and Mrs Doyle attended at the Council and gave a statement to an employee. Those sworn statements are both dated 4 May 2016[21].
- [36]Mr Doyle agreed there were inconsistencies between his statements dated 26 April 2016 and 4 May 2016. He said there were errors in the statement as typed out by the council employee. He said he had been offered the opportunity to take home the statement to read through but he had just quickly signed it there and then without properly reading through it although it was sworn by him. He said he was still very emotional at the time. He said he had noticed errors when he read it later. He said he had not told Mr Hazelgrove he had found Gracie in his garden.
Neville Hazelgrove
- [37]Mr Hazelgrove failed to comply with the Tribunal’s direction in relation to filing material made 31 July 2017 and reiterated 2 November 2017. Although he indicated at the directions hearing 2 November 2017 that he intended calling his son Jesse as a witness, nothing was filed by him other than the application to review a decision on 17 July 2017.
- [38]The Tribunal had also directed 2 November 2017 that “no party will be allowed to present any evidence at the hearing that is not contained in the filed material without justifying the need for such additional evidence to the Tribunal.”
- [39]At the hearing Mr Hazelgrove said he had not understood what was expected of him. By way of any statement from Mr Hazelgrove, the Tribunal had only documents included in the Council’s statement of reasons being his handwritten letter dated 27 April 2017[22] and a letter dated 22 December 2016[23] from solicitors acting on behalf of Mr Hazelgrove and his wife.
- [40]When asked why there was no statement in any material by his son Jesse, Mr Hazelgrove said the Council’s employee who had spoken to Jesse had taken his statement and he thought it would be in Council’s material.
- [41]Mr Hazelgrove and Jesse Hazelgrove were both allowed to give evidence at the hearing and be cross-examined, despite the failure to comply with directions.
- [42]Mr Hazelgrove explained that his family also loved animals and listed the many pets they had kept. He said he had not been aware of the episode related by Mrs Doyle involving the pink bowl.
- [43]Mr Hazelgrove said he was asleep in bed when his 25 year old son, Cody came and woke him. He went out and spoke to Mr Doyle who told him he was there to tell him his dogs had killed Mr Doyle’s cat. He recalled asking him whether he had opened the gate. He said Mr Doyle said “it’s people like you that always say things like that”. He told Mr Doyle to come back at a better hour. Both dogs were sitting at his feet. He said he had asked Mr Doyle, who from where he was standing could see them on the verandah, whether he was referring to “these dogs.” He said he asked Mr Doyle whether he could see blood. He said Mr Doyle left and he went back to bed.
- [44]Mr Hazelgrove said Mr Doyle had returned and banged on the side of his house. He said this time Cody and Jesse, were out in the lounge so the three of them were there the second time. He said by this time he was cranky with Mr Doyle for “twice terrorising my kid banging on the side of my house”, referring to his younger son who was asleep in bed at the time. He said he had asked Mr Doyle if he knew what “ ‘f’ing time” it was. He described Mr Doyle as “going off”. Mr Doyle told him the dogs had killed his cat. He said he told Mr Doyle the best thing he could do was go home and bury his cat but did not recollect saying anything else to him.
- [45]Mr Hazelgrove said that at this time Jesse told him the dogs could not be responsible as he had sat with them when he got home.
Jesse Hazelgrove
- [46]Jesse Hazelgrove said at the time of the incident involving Mr Doyle, his family had four dogs at the house. Two lived there and two were his brother Rick’s dogs. Rick’s male dog Club would try to mate with the family’s Labrador bitch Bandit, so when Rick’s dogs were there, they kept Club and a dog called Roxie in the back yard and Bandit and Rick’s dog Pugsley in the front.
- [47]Jesse said on the morning Mr Doyle came to the house he had been out working on a mate’s car. He said he had looked at the time he left his mate’s house which was 4.20am. He said it was a ten minute trip home so he would have arrived home about 4.30am.
- [48]Jesse said when he got home he had opened the gate to get into the yard. He said the front lights were on as always. He said it was still dark but “you could see a bit of sun” and there was a full moon and it was not a pitch dark night. He said he sat on a chair on the front verandah having a smoke and patting Bandit who was there with Pugsley. He then went inside and had a shower before heading to the room he shared with his ten year old brother. He had not fallen asleep when he heard banging on the bedroom wall from outside. He said he got up and his father was already at the door. Jesse said he stayed in the kitchen and did not hear the conversation his father had. His father came back inside and said a person said the dogs were out. Jesse said he said they were here when he got home and the gate was closed. Jesse said the man came back about fifteen minutes later and banged on the wall again. He said he stayed inside and did not hear what was said.
- [49]Jesse said a month before the incident with Mr Doyle, the dogs went out through the gate he had left open but they were sent straight back in. He said he had never known the dogs to get out under the fence. He never spoke to anyone to give a statement.
Other evidence
- [50]
- [51]
- [52]A Temperament/Behavioural Dog Assessment[27] was provided from Valerie Barker, a dog behavioural therapist, who reported she attended on Pugsley and Bandit at their home on 3 December 2016. She noted specifically the dogs had been accused of killing a cat. She reported both dogs were friendly and upon testing, showed no signs of potential aggression. They demonstrated normal behaviour when tested for chase response. They were passive and well behaved when exposed to strangers in the street. Ms Barker concluded in relation to each of Bandit and Pugsley:
“is not a danger, has no evidenced issue with animals or people (under these assessment conditions) and is not likely, without provocation, to attack or bite any person or animal.”[28]
- [53]Ms Barker was not made available as a witness.
- [54]Mr Hazelgrove also submitted photographs and screen shots from social media, one of which he said showed Bandit and Pugsley and others of a pair of dogs which he described as identical and were known to roam his neighbourhood.
Submissions about the attack
- [55]Mr Hazelgrove was adamant his dogs were not involved in the attack on Gracie. He says it was not possible they were out of the yard. He denied they had ever got out through holes under the fence or that the gate was ever left open. Essentially his submission appeared to be that Mr Doyle had lost sight of the dogs involved in the attack and spotting the dogs on Mr Hazelgrove’s verandah with their similar appearances, drew the false conclusion they were the dogs that attacked Gracie.
- [56]In his submission to the Council regarding its proposal to declare the dogs dangerous, Mr Hazelgrove poses only one question: “Why did Mr Doyle not see where the offending dogs drop the so called wounded cat if he was in persuit (sic) of the so called offending dogs?”
- [57]At the hearing Mr Hazelgrove submitted it was significant that in his statement dated 4 May 2016 taken by the Council employee, Mr Doyle described finding his cat in a garden bed across the road but later in the statement is quoted as telling Mr Hazelgrove that he “found the cat dead in my garden.”
- [58]Mr Hazelgrove submitted that there should have been blood or other signs of the attack on his dogs if they were involved. He was critical of the Doyle’s decision to have their cat cremated without taking it to a vet to obtain evidence such as bite marks or DNA.
- [59]Mr Hazelgrove said the dogs had never been any problem around the numerous pets, including cats, kept by his family.
- [60]Mr Hazelgrove said if Pugsley is found to have caused the death of the cat he will have him put down.
- [61]Mr Stewart-Harris for the Council submitted that the Tribunal should accept the Doyle’s evidence, and that cross examination addressed any anomalies in written material.
Discussion as to attack
- [62]Mrs Doyle’s evidence, although emotional, was consistent and clear as to what she witnessed when woken by the sound of her cat being attacked. She had a view of the attack from her bedroom window with the yard being well lit by sensor lights. I accept her evidence as to the attack on her cat being by a roan dog and a black dog she recognised as having taken her cat’s food bowl some time ago. I accept her evidence that sometime prior to that attack, she followed two dogs who were in her yard, to what she now knows is the Hazelgrove’s house and watched as they got under the fence. I accept her evidence that a youth at the house simply denied the dogs were out.
- [63]Mr Doyle was also emotional although it was nearly two years since his cat’s death. There was no inconsistency between the statement he wrote himself and the evidence he gave at the hearing. The earlier statement lacks the relevant detail. The statement he gave to the council employee provides more detail but has inconsistencies. Mr Hazelgrove appeared to consider the most significant was the reference to where Gracie was found. Quite clearly Mr Doyle says earlier in the statement he found her across the road in a garden bed[29] and that is corroborated by Mrs Doyle. Whether he later tells Mr Hazelgrove[30] the cat was found dead, or near dead, in a garden or his garden does not to me impact the main issue of whether the dogs he saw attacking the cat are the dogs he says he followed back to Mr Hazelgrove’s property.
- [64]Mr Hazelgrove, in submissions to Council, raised the fact that Mr Doyle did not see the dogs drop the cat although he said he followed them all the way home. Given Mr Doyle’s evidence about the manner in which he followed the dogs and that it was not daylight at the time, I do not find that he did not see the cat dropped, affects the cogency of Mr Doyle’s evidence.
- [65]In his first written statement Mr Doyle has described following the dogs in limited terms: “I ran up the road watching where the dogs went they run (sic) in the yard on the corner.”[31]
- [66]In his statement to the council employee Mr Doyle said “When I got to the corner I couldn’t see them and I continued along the colour bond fence. As I got to the end of the fence at their driveway the dogs started barking at me. I looked through the open gate beside the driveway and I could see the same two dogs I had been following up on the verandah at the back door.”[32]
- [67]In giving oral evidence at the hearing Mr Doyle was clear that the dogs did not know he was there at their house until he knocked on the wall which is when he said they started barking. He also said at the hearing that he saw the hind quarters of the dogs retreating through the open gateway and watched them go up the three or four steps to the verandah. Those are significant differences from what is contained in the statement dated 4 May 2016 although not inconsistent with what was written in the earlier statement, although I have already noted the lack of detail in the earlier statement.
- [68]Mr Doyle said he was 99% sure he did not read the statement at the council’s offices when it was typed. He simply signed it. He agreed that was the wrong thing to do but referred to being highly emotional. Given the level of emotion still experienced by Mr Doyle when describing these matters, I accept he was highly emotional at the time of giving this statement to the council and did not read it and ought not to have signed it so quickly.
- [69]I questioned Mr Doyle at length at the hearing. He gave evidence for one and a half hours. I observed his demeanour closely. He was on occasions frustrated with the process and I had to remind him that he was a witness, not a party to these proceedings. I found his account of what occurred on the night his cat was attacked compelling. While there were inconsistencies with his oral evidence and that in his written statement of 4 May 2016, I am unaware how the statement was generated, whereas I was able to observe Mr Doyle give his evidence at the hearing and answer questions put to him by me as well as Mr Hazelgrove and Mr Stewart-Harris. I am satisfied he did not embellish his evidence but rather was required to give detail previously lacking.
- [70]Neville Hazelgrove’s evidence was of little assistance in determining whether Mr Doyle followed Bandit and Pugsley from the site of his cat being attacked, to their home. His evidence of there being no blood on his dogs is not in my view, of any import given the photographs of Gracie do not depict large bloody wounds. Mrs Doyle described a violent shaking which, although there was no veterinary evidence before the Tribunal, presumably contributed to Gracie’s death. That the Doyles arranged for Gracie’s cremation without seeking veterinary advice was understandable. She was dead. They were distressed. They witnessed the attack and Mr Doyle followed to their home the dogs which attacked. In that case the lack of veterinary or DNA evidence is not required for me to be comfortably satisfied that Bandit and Pugsley caused the cat’s death.
- [71]I am unable to discern Jesse Hazelgrove ever being mentioned as a witness to the events of 24 April 2016 until the directions hearing on 2 November 2017. Neville Hazelgrove did not say he had been unaware that Jesse came home at 4.30 that morning and sat with the dogs on the verandah at the time the Doyle’s allege the dogs were at their home attacking their cat. Jesse’s evidence at the hearing was that after Mr Doyle’s visit he immediately told his father the dogs were home when he arrived home and the gate closed. Mr Hazelgrove only said he thought Jesse gave a statement to council which would be on the file.
- [72]I earlier referred to a letter sent to council dated 22 December 2016 from solicitors acting on behalf of Mr and Mrs Hazelgrove. The letter was written to provide evidence to be taken into account by council in the course of its internal review of the decision to declare Mr Hazelgrove’s dogs dangerous. The Temperament/Behavioural Dog Assessments and emails of Travis Perry and Jazz McPherson as well as pages from social media depicting two dogs which looked similar to Bandit and Pugsley were enclosed and the solicitors made submissions in the letter critical of the evidence relied upon by the council in making its decision to declare the dogs dangerous.
- [73]It seems highly improbable, that if Jesse Hazelgrove had witnessed what he claimed to have witnessed at the hearing, that his statement would not have been included in this solicitors’ letter. Jesse Hazelgrove’s statement goes directly as to the dogs’ whereabouts at the time the Doyles allege they were attacking their cat and would mean that evidence as to the temperament of the dogs was unnecessary. If there was an eye witness to the dogs’ whereabouts at the exact time of the alleged attack that would clearly have been the most important evidence to give to the council. My conclusion is that the evidence did not exist.
- [74]For the reasons above I prefer the evidence of Mr Doyle over that of Jesse Hazelgrove. I do not agree, that given the definite time frames attested to by witnesses, that Jesse Hazelgrove’s evidence can stand alongside that of Mr Doyle’s.
- [75]I additionally note the evidence of Mrs Doyle, which I have accepted, that she had previously witnessed Bandit take a food bowl from her yard and return to her own yard under the fence.
- [76]In all the circumstances, I am “comfortably satisfied”[33] that the dogs which attacked and caused the death of Gracie the cat, were Bandit and Pugsley. The attack was a serious attack in accordance with the AM Act.
Matters to Be Considered in Exercising Discretion
- [77]There was no evidence before the Tribunal that Pugsley has ever posed any threat to persons. Nor was there any evidence he has previously attacked or injured another animal. His owner did not accept that Pugsley left his yard and attacked Gracie saying it was not possible but I have made findings that has occurred. In my view the objects of the AM Act will be best met with the dangerous dog declaration against Pugsley being upheld so that he will be properly contained within his yard to prevent future attacks of this nature. I do not think it appropriate to declare him merely menacing as the attack was serious, resulting in the death of another animal.
- [78]Nor would I consider it appropriate to order the destruction of Pugsley as that measure should be a “last resort.”[34]
- [79]I order that the decision of the Isaac Regional Council to declare Pugsley dangerous is upheld.
Footnotes
[1] Which provides “The Tribunal may give a direction at any time in a proceeding and do whatever is necessary for the speedy and fair conduct of the proceeding.”
[2] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(2).
[3] Ibid, s 19.
[4] Ibid, s 20(1).
[5] Ibid, s 24.
[6] Ibid, s 21.
[7] Animal (Cats and Dogs) Management Act 2008 (Qld), s 89(1).
[8] Ibid, s 89(2)(a).
[9] Animal (Cats and Dogs) Management Act 2008 (Qld), s 89(2)(b).
[10] Ibid Schedule 2 Dictionary “bodily harm” has the meaning given by the Criminal Code 1899 s 1 which is “bodily harm” means any injury which interferes with health or comfort.”
[11] Ibid “grievous bodily harm means an injury which if left untreated would endanger or be likely to endanger life, or cause or be likely to cause permanent injury to health.”
[12] Animal (Cats and Dogs) Management Act 2008 (Qld), s 89(7).
[13] Ibid, s 89(3).
[14] Ibid, s 70(1).
[15] Ibid, s 3.
[16] Lee v Brisbane City Council (No 2) [2012] QCATA 64.
[17] Bradshaw v Moreton Bay Regional Council [2017] QCATA 139.
[18] Briginshaw v Briginshaw (1938) CLR 336.
[19] Statement of reasons at page 1.
[20] Ibid at page 4.
[21] Ibid at page 7 and 12.
[22] Statement of reasons at page 90.
[23] Ibid at page 58.
[24] Op cit statement of reasons at page 58.
[25] Statement of reasons at page 70.
[26] Ibid at page 71.
[27] Statement of Reasons at page 60 to 69.
[28] At pages 63 and 68.
[29] Statement of Reasons at page 14.
[30] Ibid at page 15.
[31] Statement of Reasons at page 5.
[32] Statement of Reasons at page 13.
[33] Briginshaw v Briginshaw op cit.
[34] Thomas v Ipswich City Council [2015] QCATA 97.