Vero v Sunshine Coast Council
[2018] QCAT 190
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- Unreported Judgment
- Vero v Sunshine Coast Council[2018] QCAT 190
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Vero v Sunshine Coast Council[2018] QCAT 190
Vero v Sunshine Coast Council[2018] QCAT 190
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Vero v Sunshine Coast Council [2018] QCAT 190 |
PARTIES: | JED VERO (applicant) v SUNSHINE COAST COUNCIL (respondent) |
APPLICATION NO/S: | GAR047-18 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 29 June 2018 |
HEARING DATE: | 25 June 2018 |
HEARD AT: | Caloundra |
DECISION OF: | Member Deane |
ORDERS: | The decision of the Sunshine Coast Council to issue a destruction order for the dog Dexter is confirmed. |
CATCHWORDS: | ADMINISTRATIVE REVIEW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – whether destruction order of a dangerous dog ought to be set aside or confirmed – where risk of further non-compliance Animal Management (Cats and Dogs) Act 2008 (Qld), s 3, s 4, s 59, s 60, s 61, s 89, s 94, s 127 Queensland Civil and Administrative Tribunal Act 009 (Qld), s 20, s 24, s 28 Bradshaw v Moreton Bay Regional Council [2017] QCATA 139 |
APPEARANCES & REPRESENTATION: |
|
Applicant: | Self-represented |
Respondent: | Mr Guy Lalor of Sunshine Coast Council |
REASONS FOR DECISION
- [1]Mr Vero seeks review of the Sunshine Coast Council’s destruction order of his dog, Dexter (Decision).[1]
- [2]
- [3]The purposes of the AM Act include to provide for the effective management of regulated dogs[4] and to promote the responsible ownership of dogs.[5] Section 4 of the AM Act sets out how the purposes are to primarily be achieved and includes imposing obligations on regulated dog owners[6] and imposing obligations on particular persons to ensure dogs do not attack or cause fear.[7]
- [4]The purposes of Chapter 4 of the AM Act, which relates to regulated dogs are to:
- (a)
- (b)
- [5]Mr Vero’s Application[11] to review the Decision did not set out any information as to why the Decision should be set aside. At the same time, Mr Vero also filed an Application to extend time for the filing of the Application, which indicated that he sought not only to set aside the Decision but also the earlier decision of the Council to declare his dog a dangerous dog. Mr Vero’s basis for seeking the orders was that his dog was not a dangerous dog but rather a very friendly dog.
- [6]By direction dated 20 March 2018, the time for filing the Application to review the destruction order was extended to 2 February 2018. The Tribunal did not grant an extension of time within which to file an application to review the earlier dangerous dog declaration.
- [7]On a review, the Tribunal has power to confirm or amend the Council’s decision, set aside the decision and substitute its own or set aside the decision and return it to the Council for reconsideration.[12] The Tribunal’s function is to reach the correct and preferable decision after a fresh hearing on the merits.[13]
- [8]
- [9]I find that the correct and preferable decision, on the evidence before me, is to confirm the Council’s destruction order.
- [10]Despite directions,[15] Mr Vero did not file any witness statements. In these circumstances, I allowed him an opportunity to provide oral evidence to outline the reasons why the Decision ought to be set aside.
- [11]I also permitted Mr Vero to put into evidence what was essentially a character reference for Dexter by someone who said that she knew Dexter for three years. The text message or email was read into evidence by Mr Lalor from Mr Vero’s phone. Her evidence was that in her experience Dexter’s attack on the cat, which resulted in him being declared a dangerous dog, was out of character.
- [12]Mr Vero does not accept that Dexter attacked the cat. He contends that his dog was playing with the cat or that the cat attacked or provoked his dog. Mr Vero conceded that he was not present when the incident occurred. No statements by persons, who witnessed the incident, which support Mr Vero’s version of events, are before me. I place little weight on these contentions.
- [13]I accept the evidence before me that Dexter was declared a dangerous dog as a consequence of him inflicting wounds on a cat, which resulted in the death of the cat, a family pet. Conditions imposed by the Council included that the dog must be kept under effective control[16] while not at the place stated on Dexter’s registration and must usually be held within an appropriate enclosure while at the place stated on Dexter’s registration.
- [14]The undisputed evidence is that since the dangerous dog declaration was made Dexter has been found roaming at large and therefore not under effective control on five occasions.[17] There is no evidence before me that Dexter attacked any person or animal on those occasions. Mr Vero’s evidence is that he has gone to considerable effort and cost to build an enclosure to contain his dog and that he has taken further steps to modify the enclosure since the dog has escaped his property. He described his dog’s ability to escape as magical. Later in the hearing he acknowledged that somehow his dog had dug or climbed his way out of the enclosure on the first three occasions but acknowledged he really didn’t know how he had escaped.
- [15]Council officers attended at Mr Vero’s property to inspect the enclosure and took photographs on 2 November 2017.[18] The Council submit that based on that inspection the dog could not escape from the enclosure.
- [16]On the material before me a previous destruction order issued on 5 October 2017 was withdrawn after an internal review was completed on 3 November 2017 and after undertakings by Mr Vero to comply with the regulated dangerous dog conditions.
- [17]Mr Chang-Chien, a Council officer, gave evidence,[19] which I accept, that he attended Mr Vero’s property on 2 November 2017 and reminded Mr Vero, that a regulated dangerous dog must wear the Council supplied identity collar and Council supplied identification tag, must usually be kept in the enclosure and must wear a muzzle in public.
- [18]The evidence is that since that inspection and the withdrawal of the previous destruction order, Dexter has escaped twice. Mr Vero contends that his dog may have escaped on 10 November 2017 by opening the front door, while Mr Vero slept and that since this incident he has installed a deadlock.
- [19]Mr Vero contends that his workers let his dog out of the enclosure and failed to ensure the dog was secured in the enclosure prior to leaving so that his dog was able to escape out the front gate on 12 November 2017. His evidence is that he has taken further steps to modify the gate closure and lock so that it cannot be opened without a remote control.
- [20]Mr Vero acknowledged that his dog was not wearing the required identification tag and collar when he last escaped as he considered making his dog wear it while at his house was cruel.
- [21]It is a serious matter to order the destruction of a pet. Having regard to the purposes of the AM Act, community safety and the meeting of community expectations are important considerations in the exercise of the discretion.
- [22]The Appeal Tribunal has previously found that
The Council’s power to make the destruction order was based on s 127(4) of the AM Act which does not prescribe how the power to make a destruction order is to be exercised nor what factors the decision-maker must take into account. But open-ended discretions are not to be exercised at the whim of the decision-maker. The scope, purpose, and objects of the legislation must be taken into account to interpret the extent and ambit of discretion.[20]
The general discretion under s 127(4) to order that an animal be destroyed is not limited to a consideration of the seriousness of the attack and the risk of another serious injury occurring by the dog giving rise to seizure. As determined in Thomas’s case, the question, and the exercise of discretion that follows, is to be based on 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. As held in Thomas’ case, the discretion exercised will also involve a consideration of, amongst other things, the legislative intent of the AM Act and the purpose of the Act.[21]
- [23]The injury, leading to the dangerous dog declaration, Mr Vero’s dog caused to the cat was serious. The evidence before me, which I accept, is that the injuries resulted in the cat’s death.
- [24]While I accept Mr Vero has taken some steps to keep his dog contained, Mr Vero’s evidence was that:
- (a)he only kept the dog in the enclosure while Mr Vero was not at the property;
- (b)he kept the dog in the house at night;
- (c)he did not keep the required collar and tag on him as it was bulky and hot during summer.
- (a)
- [25]This evidence demonstrates that Mr Vero did not strictly comply with the conditions imposed for the keeping of his regulated dog. I am not satisfied that Mr Vero takes seriously all his responsibilities to maintain control of his dog and to comply with the conditions imposed to minimise the risk to the community and in particular the risk to other animals. I consider there is a serious risk that there will be continuing noncompliance with the conditions. This risk of noncompliance creates a risk to community safety.
- [26]Mr Lalor accepted, on behalf of the Council, that the dog had not displayed aggression towards people based on the time he has been kept in the Council pound. The Council’s position is that the dog displays aggression towards animals. Mr Lalor referred to an event while the dog was being walked at the pound where the dog displayed aggression towards a rooster and that the dog has since been kept away from other animals.
- [27]Mr Vero submitted that he believed he could keep his dog ‘in’ but that if he was returned to him and escaped again that he would not object to a destruction order being carried out. The Council contends, and I accept, that Mr Vero has on several previous occasions undertaken to ensure the containment of his dog only to have his dog escape within days. This appears at least in part to be attributed to Mr Vero’s views about the inappropriateness of the conditions under which a regulated dangerous dog is required to be maintained.
- [28]The exercising of this discretion requires a balancing of the public interest of community safety against Mr Vero’s private interest to maintain his relationship with his pet. Mr Vero has not maintained a relationship with his dog since it was seized. He acknowledged that he had not visited his dog at the pound since he was seized on 12 November 2017 and stated that it would be too difficult to see his dog and then leave him behind.
- [29]I am satisfied that Mr Vero’s dog constitutes a threat to the safety of other animals by attacking them to the extent that the threat may only be satisfactorily dealt with by the destruction of the dog.
- [30]Mr Lalor indicated that the Council does not wish to pursue an order for costs for keeping the dog in the pound and so I do not consider that matter further.
Footnotes
[1]Attachment forming part of Exhibit 1, Internal review decision dated 19 December 2017 to confirm destruction order made 21 November 2017.
[2]Made 14 July 2017. The AM Act, s 61, s 89(a) and s 94.
[3]The AM Act, s 60.
[4]Ibid s 3(c).
[5]Ibid s 3(d).
[6]Ibid s 4(g).
[7]Ibid s 4(l).
[8]Ibid s 59 (1)(a).
[9]Ibid s 59 (1)(b)(i).
[10]Ibid s 59 (1)(b)(ii).
[11]Exhibit 1 filed 2 February 2018.
[12]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 24.
[13]Ibid s 20.
[14]Ibid s 28(2).
[15]Directions dated 20 March 2018, 24 May 2018 and 8 June 2018.
[16]The AM Act, s 64.
[17]18 August 2017; 14 September 2017; 27 October 2017; 10 November 2017; 12 November 2017.
[18]Forms part of Exhibit 2.
[19]Statement dated 10 April 2018 forming part of Exhibit 2.
[20]Bradshaw v Moreton Bay Regional Council [2017] QCATA 139, [46].
[21]Ibid, [51].