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Waugh v Goondiwindi Regional Council[2018] QCAT 296

Waugh v Goondiwindi Regional Council[2018] QCAT 296

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Waugh v Goondiwindi Regional Council [2018] QCAT 296

PARTIES:

MELISSA WAUGH

(applicant)

 

v

 

GOONDIWINDI REGIONAL COUNCIL

(respondent)

APPLICATION NO/S:

GAR141-18

MATTER TYPE:

General administrative review matters

DELIVERED ON:

24 August 2018

HEARING DATE:

30 July 2018

HEARD AT:

Brisbane

DECISION OF:

Dr Collier, Member

ORDERS:

The decision of the Respondent is confirmed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – dog destruction order – where one animal was killed and another mortally injured as a result of an attack by dogs

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20(1), s 20(2), s 24

Animal Management (Cats and Dogs) Act 2008 (Qld), s 3, s 3(d), s 89(1), s 89(2)(a), s 89(2)(b), s 89(7), s 95(1),
s 95(4), s 127(2), s 127(4), s 127A, s 127A(2), Chapter 4, Schedule 2

Bradshaw v Moreton Bay Regional Council [2017] QCATA 139

Briginshaw v Briginshaw (1938) 60 CLR 336

Lee v Brisbane City Council (No 2) [2012] QCATA 64

APPEARANCES & REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

J Quinnell, Director Corporate Services

K Roberts, Council Legal Officer

REASONS FOR DECISION

  1. [1]
    Ms Melissa Waugh owns two dogs, Boss and Bindy, both are apparently Roman nose bull terriers or dogs crossed from a related breed. At the relevant time Ms Waugh was a tenant with her partner, Shannon Peterson, at 161 Albert St Inglewood.
  2. [2]
    Boss is an entire male, and Bindy an entire female. Bindy was pregnant at the relevant time. Neither dog had been registered with the local authority.
  3. [3]
    Boss and Bindy were restrained within Ms Waugh’s residence by corrugated iron fixed to the fence neighbouring 165 Albert St Inglewood, supplemented with an electrified wire and some other metal pieces.
  4. [4]
    At the relevant time the electrified wire was not operating and the corrugated iron on the fence between the two neighbours was breached by holes that had been dug, apparently by dogs, underneath the iron.
  5. [5]
    Consequent on that breach, on 27 March 2018 Boss and Bindy escaped from their confinement at approximately 12:30 and entered 165 Albert St wherein lived three German Shepherd dogs.
  6. [6]
    Boss and Bindy savaged the German Shepherd dogs, leaving one dead from the attack, one that had to be euthanised as a result of injuries from the attack, while the third dog hid and was apparently uninjured.
  7. [7]
    During the attack a neighbour, Ken McPherson, brought Boss and Bindy under control with the use of a stockwhip. Shortly after this Ms Waugh returned home and tethered her dogs.
  8. [8]
    As a result of the attack police were called at approximately 12:45 on 27 March 2018 and attended 165 Albert St.
  9. [9]
    The Council subsequently issued dangerous dog declarations and destruction orders in respect of each of Boss and Bindy.
  10. [10]
    At the request of Ms Waugh the Council reviewed its destruction orders and, after consideration, affirmed the destruction orders.
  11. [11]
    Ms Waugh now seeks to have this Tribunal set aside the destruction orders.

Legal framework

  1. [12]
    In reviewing a decision, the Tribunal does so by way of a fresh hearing on the merits.[1] The Tribunal must decide the review in accordance with the Queensland Civil and Administrative Tribunal Act 2009 (Qld) and the Act giving jurisdiction to hear the matter.[2] The Tribunal stands in the shoes of the decision maker and is required to produce the correct and preferable decision.[3]
  2. [13]
    The Tribunal may confirm or amend the decision, or set aside the decision and substitute a new decision, or set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate.[4]
  3. [14]
    The principal legislation regulating domestic cats and dogs and giving the Tribunal power to hear this matter is the Animal Management (Cats and Dogs) Act 2008 (Qld) (‘AM Act’).
  4. [15]
    Section 3 of the AM Act sets out the purpose of the Act, which includes to promote the responsible ownership of cats and dogs.[5]
  5. [16]
    Section 127 of the AM Act gives an authorised person[6] the power to destroy a regulated dog.[7]
  6. [17]
    Section 127A of the AM Act gives an authorised person the power to issue a proposed regulated dog declaration notice and a destruction order concurrently.
  7. [18]
    The AM Act empowers a local government to declare a particular dog a dangerous dog[8] if the dog has seriously attacked, or acted in a way that caused fear to a person or another animal,[9] 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.[10]
  8. [19]
    A serious attack means to attack in a way causing bodily harm, grievous bodily harm or death.[11]
  9. [20]
    Whether a dog was acting in response to being attacked, provoked or teased is ‘not irrelevant’ and ‘all the circumstances need to be taken into account in the exercise of the discretion.’[12]
  10. [21]
    When reviewing a destruction order the Tribunal is required to undertake extensive enquiry before exercising its discretion under section 127(4) of the AM Act.[13] The same obligation can be inferred when the Tribunal is required to exercise its discretion under s 127A(2) of the Act.
  11. [22]
    The standard of proof required in findings of fact by the Tribunal is that the Tribunal must be ‘comfortably satisfied’ having regard to the nature and consequence of the facts to be proved.[14]

Evidence of the Council

  1. [23]
    The principal evidence tendered by the Council comprised 119 pages of material filed 12 June 2018. This material appears to have been prepared for an earlier hearing before Senior Member Browne, but remains relevant to this hearing and was tendered in evidence by the Council.
  2. [24]
    The Council evidence included five contemporaneous ‘Dog Incident Statement of Events’ from: Kylie Babington (the owner of the German Shepherds); Lynda Puglia; Michael Murphy (the father of Ms Babington, and present in the residence at 165 Albert St during the attack); Ken McPherson (a neighbour of Ms Babington); and Heather Hohn (a neighbour of Ms Babington, and partner of Ken McPherson).
  3. [25]
    The statement of Dean Pollock, the Council Ranger/Local Laws Officer dated 7 June 2018 provided evidence concerning what the Council did after the attack in dealing with Boss and Bindy.
  4. [26]
    Each of the statements from these witnesses confirms the narrative that Boss and Bindy entered the backyard of Ms Babington’s residence at 165 Albert St Inglewood on 27 March 2018 and savaged three German Shepherd dogs. This attack could only be described as savage and serious.
  5. [27]
    Yvonne Turner is the mother of the occupant of 1 Goodrich St Inglewood. 1 Goodrich St is a neighbouring property to 161 Albert St. After the attack Ms Turner provided a statement concerning her experience with Boss and Bindy. While there was some uncertainty as to the dates when Ms Turner made the observations she recorded, there is no doubt about her concerns. In her statement she said, when speaking of Boss and Bindy, inter alia:

[On the day of the attack, about] 9.30am I went to my daughter’s house at 1 Goodrich St to turn off the sprinkler… I noticed the commotion going on between the dogs from 163[15] [sic] and 165 Albert St… I tried to get their attention but nothing was going to distract them.

Last Friday… I was watering at Melissa’s again. The dogs were viciously throwing themselves at the fence towards me and barking and jumping up and scratching at the fence trying to get at me. The red dog was able to jump to the top of the tin fence. This frightened me so I went to Lachlan’s[16] house and asked him to come to the house as a witness to the dog’s vicious behaviour towards me, I was fearful they would attack me.

Every time it is the same behaviour and I am terrified. I even take an axe with me to make me feel a little more protected. I don’t do anything to aggravate the dogs.

  1. [28]
    Mr Murphy, who was inside Ms Babington’s house at 165 Albert St at the time of the attack said, in his statement:

I stayed upstairs as I was too scared to go down. Ken McPherson [who controlled the dogs with his stockwhip] and Sid Powell appeared to break them up and I spoke to them through the window.

  1. [29]
    There is no doubt that Boss and Bindy are aggressive dogs that cause fear to people who are near them.
  2. [30]
    After the attack both Boss and Bindy were taken into the custody of the Council and have been there since. Bindy has subsequently delivered her pups which have been returned to the possession of Ms Waugh.
  3. [31]
    By an application dated 5 April 2018 Ms Waugh sought a review by the Council of its destruction order.
  4. [32]
    The review of the Council’s decision was undertaken by Jason Quinnell, Director of Corporate Services for the Council. Mr Quinnell prepared a written decision dated 12 April 2018 in which he confirmed the decision of the Council to order the destruction of Boss and Bindy based upon:[17]
    1. my consideration of the aggressive nature of the attack; and
    2. the conditions that could be imposed upon the regulated dog declaration for the dangerous dogs [in effect, he found that they would be inadequate in this case]; and
    3. the relevant points submitted by the dog owner for review; and
    4. the evidence gathered and provided.
  5. [33]
    In his decision Mr Quinnell said the following:[18]

In my view it could not be reasonably argued that this was a simple dog fight over territory as suggested by the dog owner in the request for a review. The prolonged and sustained nature of the attack and the consequences suggest that this was an act of aggression.

  1. [34]
    In considering whether the Dangerous Dog declaration would be sufficient, rather than an order for the dogs’ destruction, Mr Quinnell argued that the conditions applicable to Dangerous Dogs would not be sufficient in this case. In respect of the obligation on the owners of Dangerous Dogs to fit an identification tag and collar and display a public notice on the property where the dogs are homed, he said:[19]

This attack occurred on neighbouring property such that a person intervening to protect their animals may not be aware of the notice on the premises, The collar if fitted would have made those witnessing the attack aware of the dangerous dog declaration but would not have prevented the attack. A small child would not be aware of the purpose of the collar not likely to pay attention to a public notice on a gate [sic].

  1. [35]
    Based on the review decision by Mr Quinnell, Ms Waugh appealed to this Tribunal to set aside the destruction orders and to make a decision that does not include destruction of her dogs.
  2. [36]
    At the request of the Tribunal the Council provided a copy of all notices issued by the Council since mid-2016 in respect of dogs housed at 161 Albert St. Documents supplied by the Council show that there were 7 complaints made by three people concerning noise from barking dogs, five notices concerning a failure to register dogs, and one notice concerning the presence of more than 2 dogs on the premises without a proper permit.
  3. [37]
    There is also evidence that fines imposed by the Council have not been paid by Ms Waugh leading to the fines being referred to SPER.
  4. [38]
    Further, a statement dated 28 March 2018 by John Duffield, Council Environmental Health Officer, recorded evidence collected by local laws officer Dean Pollock following the dog attack. Two comments made by Mr Pollock are relevant to the Tribunal’s decision, namely:

During the interview, Melissa Waugh stated that the dogs had been having a go at each other at the fence for 5 years.

Mrs Kylie Babington … stated that there had been a previous attack by these dogs [Boss and Bindy] on one of her dogs approximately eighteen months ago that was not reported to Council, as she was friends with the neighbour.

  1. [39]
    It would be reasonable to infer from this series of complaints and actions that Ms Waugh is not a responsible dog owner.
  2. [40]
    This evidence demonstrates that there has been a real risk of dog aggression over a long period of time, and avoiding a serious attack would require diligent attention from all dog owners in keeping the dogs separate.
  3. [41]
    During the hearing Mr Quinnell of the Council conceded, on questioning, that the Council had not declared Boss and Bindy regulated dogs[20] prior to the attack.
  4. [42]
    Mr Quinnell also conceded that the public would be less likely to be affected by Boss and Bindy if they were relocated to a remote location as proposed by Ms Waugh.

Evidence of Melissa Waugh

  1. [43]
    Ms Waugh gave her testimony to the Tribunal by telephone. Ms Waugh’s partner, Shannon McPherson was with her on the telephone, and Mr McPherson also gave testimony.
  2. [44]
    Ms Waugh raised a number of issues for the Tribunal to consider in making a decision concerning the dogs’ destruction. These were:
    1. (a)
      the German Shepherd dogs were responsible for digging the holes under the corrugated iron that gave Boss and Bindy access to 165 Albert St;
    2. (b)
      the electric wire had become inoperative due to the actions of the German Shepherd dogs;
    3. (c)
      the German Shepherds were aggressive towards Boss and Bindy;
    4. (d)
      the German Shepherds were aggressive to the local postie that led to Australia Post refusing to deliver post to 165 Albert St;
    5. (e)
      that she had resided with her dogs at 161 Albert St for four years and there had been no prior attack;
    6. (f)
      despite claims that Boss and Bindy had been barking and aggressive on previous occasions before the attack they had not been declared Dangerous Dogs by the Council;
    7. (g)
      neither Boss nor Bindy have ever been aggressive towards family members, including children;
    8. (h)
      Bindy was more territorial and aggressive than usual because she was in pup; and
    9. (i)
      Ms Waugh and her partner are moving to a new property at a remote location, 44 km from Inglewood, with nearest neighbours 2km away, and which has appropriate accommodation for her dogs.
  3. [45]
    Photographic evidence tendered shows that the corrugated iron between the two properties was bent-in towards 161 Albert St, where Boss and Bindy were housed, suggesting that the German Shepherd dogs were principally responsible for creating the holes under the iron allowing Boss and Bindy to enter the neighbouring property.
  4. [46]
    Ms Waugh’s evidence was that the holes under the fence between the neighbouring properties were dug within the space of 24-48 hours and she had not detected this before the attack. While this is possible, it is unlikely that, after four years of residence, any of the dogs would not have attempted to dig under the fence previously. The presence of ad-hoc barriers such as the car bull-bar on the 161 Albert St side of the fence is suggestive of an attempt to defeat earlier such attempts. The evident weakness of the corrugated iron as a means of separating the groups of dogs should have obliged Ms Waugh to be particularly vigilant about confining her dogs.
  5. [47]
    Ms Waugh gave evidence that she conducted regular, indeed daily, inspections of the fenceline to ensure confinement of her dogs; that the circumstances leading to the fatal attack involved a combination of events in between her inspections of the fenceline: the German Shepherds were responsible for digging holes large enough for Boss and Bindy to enter the adjacent yard; the German Shepherds caused the failure of the electric wire; and the German Shepherds behaved in an aggressive manner to her dogs encouraging Boss and Bindy to attack.
  6. [48]
    While such a combination of events within the space of a day or two is possible, the evidence suggests that most of these factors are part of a continuing pattern of behaviour between both sets of dogs. Indeed, the potential for a vicious attack is the prime reason Ms Waugh took measures to confine her dogs within her property.
  7. [49]
    In regard to the claim by Ms Waugh that the German Shepherds were aggressive to postal employees, I am persuaded by the evidence of local laws office Dean Pollock contained in the file notes of the Council to the effect that Mr Pollock contacted Inglewood Post Office and was informed that postal workers had never refused to deliver mail to 165 Albert St as the German Shepherd dogs were always confined to the back yard of that property.

Applying the law and evidence

  1. [50]
    By notice dated 29 March 2018 and delivered to Ms Waugh, the Council gave notice that it proposed to declare each of Boss and Bindy a dangerous dog.
  2. [51]
    Also on 29 March 2018, and delivered to Ms Waugh, the Council issued a destruction order in respect of each of Boss and Bindy.
  3. [52]
    Pursuant to the notice dated 29 March 2018, Boss and Bindy were declared dangerous dogs, and therefore regulated dogs, by the Council on 18 April 2018.
  4. [53]
    Section 127A of the AM Act permits an authorized person to make a destruction order for a dog if it is appropriate to do so[21], providing the owner is given a copy of the destruction order accompanied by an information notice about the decision to make a regulated dog declaration.[22]
  5. [54]
    By delivering the proposal to declare Boss and Bindy regulated dogs on the same date as it issued the destruction order, 29 March 2018, the Council has complied with the requirement to provide Ms Waugh with the relevant notices. The fact that the regulated dog orders came into effect later, on 18 April 2018, does not alter the effectiveness of the notices dated 29 March 2018.
  6. [55]
    There is a balance to be struck in making a decision concerning the fate of Boss and Bindy: the protection of human and animal lives, against the destruction of the dogs as a last resort.
  7. [56]
    The relevant test is set out by the Tribunal in the case of Bradshaw v Moreton Bay Regional Council:[23]

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.

  1. [57]
    The same considerations are required of the Tribunal in this case under s 127A(2) of the AM Act as they were under s 127(4) of that Act referred to in Bradshaw v Moreton Bay Regional Council.
  2. [58]
    While Boss and Bindy may well be affectionate to their human family as Ms Waugh asserts, they have demonstrated a willingness and an ability to act in concert to cause death and grievous bodily harm to other animals through savage and serious aggression.
  3. [59]
    I am comfortably satisfied that the evidence discloses that Boss and Bindy gave rise to fear among people – fear that was reasonable and justified.
  4. [60]
    Boss and Bindy have shown aggressive behaviour over a period of years. Whichever set of dogs dug the holes under the fence thus providing the opportunity for Boss and Bindy to access 165 Albert St, it was Boss and Bindy that took advantage of the opportunity and used it to effect a serious attack.
  5. [61]
    Boss and Bindy did not act in protection of their property, but entered into another property with the intention of causing injury or death to other animals. There can be no confidence that, once set upon a course of aggressive behaviour these dogs would not do the same thing again if the opportunity was presented, with the risk that on a future occasion it could involve livestock, other animals, or a child.
  6. [62]
    I am comfortably satisfied that Boss and Bindy engaged in a serious attack and that they have the willingness to do this again if the opportunity is presented.
  7. [63]
    I am not convinced that Ms Waugh has demonstrated that she is a responsible dog owner. There have been numerous complaints made over the last two years concerning the behaviour of her dogs. The dogs were not registered by her despite notices from the Council. She has demonstrated a preparedness to ignore warnings from the Council and to refuse to pay fines imposed as a result of her conduct.
  8. [64]
    While relocating Boss and Bindy to a more remote location may reduce the risk of attack by her dogs, the evidence suggests that there can be insufficient confidence Ms Waugh will adhere to her obligations as a responsible owner. For this reason a real risk to the community would continue from her ownership and control of Boss and Bindy.
  9. [65]
    Boss and Bindy have demonstrated their ability and willingness to escape from confinement similar to that required of regulated dogs, as happened in their escape from 161 Albert St. Their ability and willingness to do so in the future represents a real likelihood.
  10. [66]
    The balance struck by the Council in its decision to have Boss and Bindy destroyed is appropriate. It is a correct decision, and it is the preferable decision.

Decision

  1. [67]
    The decision of Goondiwindi Regional Council to destroy Boss and Bindy is confirmed.

Footnotes

[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(2).

[2]  Ibid s 19.

[3]  Ibid s 20(1).

[4]  Ibid, s 24.

[5]  AM Act, s 3(d).

[6]  Ibid s 104.

[7]  Ibid Chapter 4.

[8]  Ibid s 89(1).

[9]  Ibid s 89(2)(a).

[10]  Ibid s 89(2)(b).

[11]  Ibid s 89(7); Schedule 2, Dictionary.

[12] Lee v Brisbane City Council (No 2) [2012] QCATA 64.

[13] Bradshaw v Moreton Bay Regional Council [2017] QCATA 139.

[14] Briginshaw v Briginshaw (1938) 60 CLR 336.

[15]  There is no 163 Albert St; the reference is to 161 Albert St.

[16]  This is a reference to Constable Lachlan Sharpe who lives opposite 1 Goodrich St.

[17]  Internal Review Decision Notes – Waugh – Destruction Order Declaration, Jason Quinnell - Director Corporate Services, 12 April 2018, p 3.

[18]  Ibid p 1.

[19]  Ibid p 2.

[20]  Regulated dogs includes declared dangerous dogs under Chapter 4 of the AM Act.

[21]  AM Act, s 127A(2).

[22]  Ibid ss 95(1), 95(4).

[23] Bradshaw v Moreton Bay Regional Council [2017] QCATA 139.

Close

Editorial Notes

  • Published Case Name:

    Waugh v Goondiwindi Regional Council

  • Shortened Case Name:

    Waugh v Goondiwindi Regional Council

  • MNC:

    [2018] QCAT 296

  • Court:

    QCAT

  • Judge(s):

    Member Collier

  • Date:

    24 Aug 2018

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
Bradshaw v Moreton Bay Regional Council [2017] QCATA 139
3 citations
Jump To
Cite 1 - [2017] QCATA 139
Cite 2 - [2017] QCATA 139
Cite 3 - [2017] QCATA 139
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Lee v Brisbane City Council (No 2) [2012] QCATA 64
2 citations
Jump To
Cite 1 - [2012] QCATA 64
Cite 2 - [2012] QCATA 64

Cases Citing

No judgments on Queensland Judgments cite this judgment.

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